SECTION 815.134. Employment Status: Employee or Independent Contractor  


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  • (a) Subject to specific inclusions and exceptions to employment enumerated in Chapter 201 of the Act, the Agency and the Commission shall use the guidelines referenced in §821.5 of this title as the official guidelines for use in determining employment status.

    (b) Notwithstanding subsection (a) of this section, in Title 4, Subtitle A of the Texas Labor Code, "employment" does not include a marketplace contractor that satisfies the requirements of paragraph (2) of this subsection.

    (1) For purposes of this subsection:

    (A) The term "digital network" means an online-enabled application or website offered by a marketplace platform for the public (including third-party individuals and entities) to use to find and contact a marketplace contractor to perform one or more needed services.

    (B) The term "marketplace platform" means a corporation, partnership, sole proprietorship, or other entity operating in this state that:

    (i) uses a digital network to connect marketplace contractors to the public (including third-party individuals and entities) seeking the type of service or services offered by the marketplace contractors;

    (ii) accepts service requests from the public (including third-party individuals and entities) only through its digital network, and does not accept service requests by telephone, by facsimile, or in person at physical retail locations; and

    (iii) does not perform the services offered by the marketplace contractor at or from a physical business location that is operated by the platform in the state.

    (C) The term "marketplace contractor" or "contractor" means any individual, corporation, partnership, sole proprietorship, or other entity that enters into an agreement with a marketplace platform to use the platform's digital network to provide services to the public (including third-party individuals or entities) seeking the type of service or services offered by the marketplace contractor.

    (2) A marketplace contractor shall not be treated as being in employment of the marketplace platform for the purposes of Title 4, Subtitle A of the Texas Labor Code, if in contract and in fact all of the following conditions are met:

    (A) That all or substantially all of the payment paid to the contractor shall be on a per-job or transaction basis;

    (B) The marketplace platform does not unilaterally prescribe specific hours during which the marketplace contractor must be available to accept service requests from the public (including third-party individuals or entities) submitted through the marketplace platform's digital network;

    (C) The marketplace platform does not prohibit the marketplace contractor from using a digital network offered by any other marketplace platform;

    (D) The marketplace platform does not restrict the contractor from engaging in any other occupation or business;

    (E) The marketplace contractor is free from control by the marketplace platform as to where and when the marketplace contractor works and when the marketplace contractor accesses the marketplace platform's digital network;

    (F) The marketplace contractor bears all or substantially all of the contractor's own expenses that are incurred by the contractor in performing the service or services;

    (G) The marketplace contractor is responsible for providing the necessary tools, materials, and equipment to perform the service or services;

    (H) The marketplace platform does not control the details or methods for the services performed by a marketplace contractor by requiring the marketplace contractor to follow specified instructions governing how to perform the services; and

    (I) The marketplace platform does not require the contractor to attend mandatory meetings or mandatory training.

    (3) This section shall not apply to any of the following:

    (A) Services performed in the employ of a state, or any political subdivision of the state, or in the employ of an Indian tribe, or any instrumentality of a state, any political subdivision of a state, or any Indian tribe that is wholly owned by one or more states or political subdivisions or Indian tribes, but only if the services are excluded from employment as defined in the Federal Unemployment Tax Act, 26 U.S.C. §3301 - 3311, solely by reason of §3306(c)(7) of that Act.

    (B) Services performed by an individual in the employ of a religious, charitable, educational, or other organization, but only if the services are excluded from employment as defined in the Federal Unemployment Tax Act, 26 U.S.C. §§3301 - 3311, solely by reason of §3306(c)(8) of that Act.

    (C) Services performed by marketplace platforms regulated as Professional Employer Organizations and professional employer services under §§91.001(14) and (15) of the Texas Labor Code.

    (D) Services performed by temporary employees and temporary help firms as defined in §§201.011(20) and (21) of the Texas Labor Code.

    (E) Services explicitly exempted under any other state law.

Source Note: The provisions of this §815.134 adopted to be effective February 19, 2007, 32 TexReg 628; amended to be effective April 29, 2019, 44 TexReg 2160