SSR 62-30. EMPLOYER-EMPLOYEE RELATIONSHIP -- PRACTICAL NURSE

R, a practical nurse, inquired at a social security district office

whether she or the patient who had engaged her services was responsible

for reporting her remuneration to the District Director of Internal

Revenue, so that she could be credited with these earnings for purposes of

old-age, survivors, and disability insurance. (The patient, B, had refused

to report the earnings). The answer to R's question depends on whether she

was B's employee or was self-employed. If she was B's employee, B must

report R's wages (and pay taxes thereon, as required by the Federal

Insurance Contributions Act), which wages would then be entered on R's

social security earnings record. On the other hand, if R was

self-employed, she cannot be credited with self-employment income for the

year unless she reports such income to the District Director of Internal

Revenue as required by the Self-Employment Contributions Act.

R had graduated as a practical nurse from the X Hospital and had recently

passed a State examination for licensing. She was listed as a practical

nurse in the telephone director and in a registry of practical nurses.

R was engaged by B from a registry of practical nurses to perform nursing

services for B in B's home. She worked an 8-hour shift, 7 days a week. R's

duties consisted of administering medicines, giving hypodermic injections,

enemas, alcohol rubs, baths, and keeping a chart of the medications given.

She also served food to B and washed the dishes used by B and herself. R

was furnished instructions about her duties by the two attending

physicians. Although she ministered to B, she was for the most part not

subject to supervision or direction by B.

isted of administering medicines, giving hypodermic injections,

enemas, alcohol rubs, baths, and keeping a chart of the medications given.

She also served food to B and washed the dishes used by B and herself. R

was furnished instructions about her duties by the two attending

physicians. Although she ministered to B, she was for the most part not

subject to supervision or direction by B.

Under section 210(j)(2) of the Social Security Act, the term "employee"

includes an individual who, under the usual common-law rules applicable in

determining the employer-employee relationship, has the status of an

employee. Whether an individual is an employee under such rules depends

upon the facts in each case. The guides for determining whether an

employer-employee relationship exists are found in Regulations No. 4, §

404.1004( c ). Generally, such relationship exists when the person

for whom the services are performed has the right to control and direct

the individual who performs the service, not only as to the result to be

accomplished by the work but also as to the manner and means by which that

result is accomplished.

In the past several years the status of practical nurses as a group has

undergone a change from one of a practically domestic role to that of a

qualified semi-professional. Almost uniform statutes now in force in all

50 States require that before qualifying as a licensed practical nurse an

individual must successfully complete a prescribed course of formal

training and pass the State's licensing examination. By reason of these

training and licensing requirements the nursing and medical professions

generally recognize licensed practical nurses as qualified to render

nursing services in all but the most acute or complex cases.

fore qualifying as a licensed practical nurse an

individual must successfully complete a prescribed course of formal

training and pass the State's licensing examination. By reason of these

training and licensing requirements the nursing and medical professions

generally recognize licensed practical nurses as qualified to render

nursing services in all but the most acute or complex cases.

Licensed practical nurses who perform private duty nursing ordinarily

have discretion in the exercise of their nursing services. Although they

may follow instructions of an attending physician, they are for the most

part not subject to sufficient supervision or control by the person for

whom they are rendering services to warrant a finding that their services

are performed in an employment relationship.

As in all situations where a determination as to the existence of an

employment relationship is required, the complete facts and all

circumstances must be considered. The pertinent factors which are of

primary significance in determining whether an employment relationship

exists between a licensed practical nurse and a person for whom the

services are performed are: (a) the type and nature of services performed;

(b) the control exercised and by whom; (c) the type of license, if any,

held by the individual; and (d) whether or not the services were performed

in the conduct of an independent trade, business, or profession.

whether an employment relationship

exists between a licensed practical nurse and a person for whom the

services are performed are: (a) the type and nature of services performed;

(b) the control exercised and by whom; (c) the type of license, if any,

held by the individual; and (d) whether or not the services were performed

in the conduct of an independent trade, business, or profession.

R held herself out as being available to perform services as a practical

nurse by being listed in the telephone directory and in the nurse's

registry. She had completed formal training and was licensed according to

State requirements. The services she performed were semi-professional in

nature rather than those of a domestic, consisting of the administering of

medications and treatments prescribed by the attending physicians; and in

the performance of these services she was subject to little direction and

control by B. The only domestic service rendered by R was the washing of

B's dishes, which was incidental to the nursing duties.

Accordingly, it is held that R was not an employee of B since

there did not exist, under the usual common-law rules, a sufficient right

of control to establish the relationship of employer and employee between

R and B.

When a person is regularly engaged in an occupation or profession for

profit and, as to such occupation or profession, is not an employee, he is

generally self-employed and, with certain exceptions not pertinent here,

his net earnings from such self-employment can be credited as

self-employment income. Accordingly, it is further held that R, in

performing services as a practical nurse for B, was self-employed.

Therefore, in order to be credited with self-employment income, R must

report such income to the District Director of Internal Revenue as

required by the Self-Employment Contributions Act.