1. (1) The salesperson is engaged on a full-time basis. Full-time under this section means the salesperson devotes at least 80% of the salesperson's working time in any quarter to the solicitation of orders for one employer. This is true even if the salesperson works for the employer less than 40 hours per week.

2. (2) The salesperson solicits orders from wholesalers, retailers, contractors, or operators of hotels or restaurants. The salesperson must solicit orders from certain types of customers. Generally, the following types of customers are not included: manufacturers, schools, hospitals, churches, institutions, municipalities, and state and federal governments. However, a clearly identifiable and separate business carried on through such a customer, such as a bookstore or gift shop, is a "retailer." The salesperson must solicit orders from the following types of customers:

   1. (a) wholesalers who buy merchandise in comparatively large quantities and sell such merchandise in smaller quantities to jobbers and retailers for resale;
   2. (b) retailers who sell merchandise to the ultimate consumers;
   3. (c) contractors who, for a fixed price, undertake the performance of work on an independent basis, such as construction contractors and certain service organizations including, electrical, plumbing, painting, building, window washing, and delivery service contractors; or
   4. (d) operators of hotels, restaurants, or establishments similar to hotels or restaurants whose primary function is the furnishing of food, lodging, or both food and lodging.

3. (3) The salesperson takes orders for merchandise for resale or supplies used in business.

   1. (a) Merchandise for resale includes goods, wares, and commodities that ordinarily are for trade and commerce and purchased for resale. This term refers specifically to tangible materials that do not lose their identities between the time of purchase and the time of resale.
   2. (b) Supplies for use in the customer's business operations means articles consumed in conducting or promoting the customers' businesses. Generally the term "supplies" includes tangible items that are not "merchandise for resale" or capital items. Services such as radio time and advertising space are intangible items and not within the definition. However, calendars, advertising novelties, or other similar items used by the advertiser in the advertiser's business constitutes "supplies."
4. (4) The contract of service contemplates that substantially each service is to be performed personally by the worker. The services to which the contract relates may not be delegated to any other person by the worker who undertakes the contract to perform such services.
5. (5) The worker does not have a substantial investment in facilities used in connection with the performance of services. The facilities include equipment and premises available for the work but does not include such tools and equipment or clothing as are commonly provided by employees.
6. (6) The services are part of a continuing relationship with the person for whom the services are performed.

Outside commissioned salespersons are excluded from the Act under the outside commissioned salesperson exclusion contained in Subsection 35A-4-205(1)(p) unless the following "traveling or city salesperson" conditions apply.

KEY: unemployment compensation, employment tests, independent contractor

Date of Last Change: October 28, 2022

Notice of Continuation: March 3, 2025

Authorizing, and Implemented or Interpreted Law: 35A-4-204; 26 USC 3304(a)(6)(A)