| (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.
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