20 CFR 404.1270-404.1274
Pursuant to the State's request for review under section 21(a) of the Social Security Act, the Commissioner affirmed assessments made on the basis that services performed by wage earners as registrars of vital statistics, were performed as employees of the State and thus were covered under section 218 of the Social Security Act and the Nebraska agreement for coverage of State and local employees.
The State of Nebraska timely requested a review pursuant to section 218(s) of the Administration's assessments of contributions due. The Secretary has delegated to the Commissioner of Social Security authority to make reviews and findings and to give notice of his findings as required by section 218(s). The assessments were based on the Administration's determination that the services of all registrars of vital statistics were performed in an employment relationship with the State and were covered under the terms of the State's section 218 agreement with the Secretary.
There are 94 registrars of vital statistics in Nebraska performing services under substantially similar conditions. They are appointed by the State Department of Health and serve during the pleasure of the Department. Their duties involve the reporting of births and deaths to the Department of Health. In this connection, the State furnished each registrar with a Manual of Instructions for County Registrars, which provides, in part, that: "The county registrar, subject to the direction and supervision of the Bureau of Vital Statistics, is responsible for the registration of all births, deaths, and fetal deaths (still- births) in his registration area." In addition, the Director of the Bureau of Vital Statistics visits local registrars occasionally and they are furnished periodic letters of instruction or advice. They are compensated for their services by fees paid by the County in which they serve.
The Revised Statutes of Nebraska, as pertinent thereto, provides:
71-601 Vital statistics; duties of Department of Health. The Department of Health shall provide for the registration of births, deaths, marriages and divorces, and shall promulgate such rules as are necessary to carry out the purpose of sections 71-601 to 71-616.
71-602 Vital statistics; local registrars. The Department of Health shall appoint municipal or county clerks as local registrars, who shall have such territorial jurisdiction as may be conferred on them by the Department.
71-603 Local registrars; term; deputies. Local registrars shall hold office during the pleasure of the Department of Health. They shall, immediately after their appointment, select deputies to act for them when they are absent, ill, or otherwise disqualified.
71-605 Death certificates; burial permits; how executed.
(3) A completed death certificate shall be filed with the registrar of the county in which the death occurred before the body is interred, deposited in a vault, or otherwise disposed of. If it is impossible to complete the certificate of death within the period of time prescribed above, the funeral director shall notify the coroner and registrar in the county where death occurred and obtain their written approval before any disposal of the remains can be made.
(4) Except as otherwise provided, the county registrar shall, upon receipt of a death certificate properly and completely filled out, issue a burial or transit permit. No sexton or other person in charge of a cemetery shall allow the interment of a body without first receiving such a burial permit.
No agent of any railroad or other transportation company shall allow the shipment of any body without the county registrar's transit permit. All burial permit shall be countersigned and dated by the section or other person in charge of cemeteries. All transit permits shall be countersigned and dated by the agent of the transportation company when received. Each transit permit shall be returned within ten days to the county registrar by whom they were issued.
(5) All burial or transit permits, issued in accordance with the law of the place where the death occurred, may be accepted by the county registrar of the county, where the body is to be interred or otherwise disposed of, as a basis upon which he shall issue a burial permit.
71-608 Local registrars; reports. Local registrars shall, on or before the fifth day of each month, forward to the Department of Health the original certificates filed with them during the preceding month; provided if an emergency should arise whereby a certificate is required by the Department, then the local registrar, upon request from the State Registrar, must supply the same. In case no birth or death has occurred the previous month, the local registrar shall so report on a card provided for that purpose.
71-611 Department of Health, forms; duty to supply; local registrars; fees. The Department of Health shall supply all necessary blanks, forms and instructions to the local registrars, physicians and undertakers. It shall certify to the county board of each county, quarterly, the number of certificates of birth and death received from each local registrar in the county. For each certificate and for each report showing no birth or no death, the local registrar shall be entitled to the sum of fifty cents to be paid by the county for which the certificate or report is made.
There is no disagreement as to these facts. It is the State's view, however, that registrars of vital statistics are not employees for purposes of social security coverage because they are not subject to sufficient control over the manner and method of performing their duties to be employees under the usual common-law rules for determining an employer-employee relationship.
The Commissioner found, on review pursuant to the State's request, that registrars of vital statistics in Nebraska are public officers. As public officers, the Commissioner found, they are employees for social security purposes under the terms of the agreement between the State of Nebraska and the Secretary of Health, Education, and Welfare by which coverage was extended to the services of employees of the State and its political subdivisions and section 218(b)(3) of the Social Security Act. In addition, the Commissioner found that while the nature of the work was such that personal supervision was not necessary, the State did, by means of the statutes which define the duties and powers of local registrars and by means of the written instructions furnished them, effectively reserve to itself the right to control and direct the activities of registrars of vital statistics to a degree sufficient to establish the existence of an employer-employee relationship under the usual common-law rules. The Commissioner further found that the fees received by local registrars constituted remuneration for employment and thus were wages for social security purposes. On the basis of these findings the Commissioner affirmed the assessments.
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