SSR 61-6. DOMESTIC SERVICE BY FAMILY MEMBER

Where a woman, who had lived with her brother since 1927 and had kept house and cooked for him and had received a home and support in return, alleged that the brother had paid her $100 a month beginning July 1956, although there was no change in her services; and where the woman worked at her own discretion without any control or direction by her brother, both before and after he began paying her; held, the woman was not an employee of her brother and, therefore, any payments made to her by her brother are not "wages" within the meaning of section 209 of the Social Security Act.

A and B, who are sister and brother, have maintained a common household on B's farm since 1927. B has always done the farm work, and A has kept house and cooked for him and has received her room and board in return. It is alleged that in July 1956, A became an employee of B under an oral agreement. Under the alleged agreement, A was to be paid $100 a month for the same services that she had formerly performed without pay. Both before and after the agreement A worked at her own discretion. She was not required to work any specific hours; she received no instructions from B as to how to do her work; and B had no right to give A instructions or to dismiss her.

Section 209 of the Social Security Act provides that the term "wages" means all remuneration for employment, with certain exceptions are not material here.

Section 210(j) of the Social Security Act provides that the term "employee" means any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee. The guides for determining, under such rules, whether an employer-employee relationship exists are found in Regulations No. 4, ยง 404.1004(c). Generally, these guides provide that such a relationship exists if the person for whom the services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished.

In determining whether an employment relationship exists in those cases where a member of one's family performs domestic service in his home, the existence of a contract of employment, the dependency status of the alleged employee, the work history of the alleged employee, and the details as to remuneration are major factors to be considered. In several cases where services had previously been performed without remuneration under a family cooperative arrangement and where there was no change in the method of operation after the alleged employment relationship began, the courts have ruled that no employment relationship existed. See Norment v. Hobby, 124 F.Supp. 489 (1953); Thurston v. Hobby, 133 F.Supp. 205 (1955); Folsom v. O'Neal, 250 F.2d 946 (1957).

In the present case, the relationship between A and B was a close family cooperative arrangement based on mutual love and affection. A had performed her services without pay since 1927 and had received a home and support in return. There was no change in the relationship or in A's duties after July 1956, when she allegedly became an employee. B at no time had any right to direct A in the performance of her services or to dismiss her. These factors clearly negate the existence of the right to control necessary to establish the common-law relationship of employer and employee. The payment of money, though a factor in establishing an employer-employee relationship, is not sufficient of itself to establish such a relationship.

Accordingly, it is held that A was not the employee of her brother and, therefore, any payments made to her by her brother are not wages within the meaning of section 209 of the Social Security Act.


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