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<ns0:AuthorText authorType="LEAD_AUTHOR">Introduced by Committee on Labor and Employment (Assembly Members Ortega (Chair), Elhawary, Kalra, and Ward)</ns0:AuthorText>
<ns0:Authors>
<ns0:Committee>
<ns0:Contribution>LEAD_AUTHOR</ns0:Contribution>
<ns0:House>ASSEMBLY</ns0:House>
<ns0:Name>Committee on Labor and Employment</ns0:Name>
<ns0:Members>Assembly Members Ortega (Chair), Elhawary, Kalra, and Ward</ns0:Members>
</ns0:Committee>
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<ns0:Title> An act to amend Sections 2778 and 2783 of the Labor Code, relating to employment.</ns0:Title>
<ns0:RelatingClause>employment</ns0:RelatingClause>
<ns0:GeneralSubject>
<ns0:Subject>Worker classification: employees and independent contractors: licensed manicurists: commercial fishers.</ns0:Subject>
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<html:p>Existing law requires a 3-part test, commonly known as the “ABC” test, to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission. Under the ABC test, a person providing labor or services for remuneration is considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business. Existing law charges the Labor Commissioner with the enforcement of labor laws, including worker classification.</html:p>
<html:p>Existing law exempts specified occupations and business relationships from the application of the ABC test described above. Existing law, instead, provides that these exempt relationships are governed by the multifactor test previously adopted in the case of S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. Existing law includes an exemption for services provided by a licensed manicurist, subject to the manicurist meeting specified conditions, and makes this exemption for licensed manicurists inoperative on January 1, 2025.</html:p>
<html:p>This bill would delete the January 1, 2025, inoperative date, and, instead, until January 1, 2029, reapply the above-specified exemption to certain licensed manicurists. The bill would also require the Employment Development Department and the Division of Labor Standards Enforcement to, by June 1, 2026, report to the Legislature the annual number of allegations of misclassification or other specified violations involving licensed manicurists since January 1, 2020, as specified.</html:p>
<html:p> Existing law also provides an exemption for a commercial fisher working on an American vessel, as defined. Existing law makes those commercial fishers eligible for unemployment insurance benefits subject to certain conditions, and requires the Employment Development Department to issue an annual report, on March 1,
to the Legislature on the use of unemployment insurance in the commercial fishing industry, as provided. Existing law makes these various provisions related to commercial fishers working on an American vessel inoperative on January 1, 2026.</html:p>
<html:p>This bill would extend the inoperative date to January 1, 2031, and, thereby, until January 1, 2031, reapply the above-specified exemption to those commercial fishers, as prescribed. The bill would change the above-described annual reporting date from March 1 to June 30.</html:p>
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<ns0:Preamble>The people of the State of California do enact as follows:</ns0:Preamble>
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<ns0:Num>SECTION 1.</ns0:Num>
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Section 2778 of the
<ns0:DocName>Labor Code</ns0:DocName>
is amended to read:
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<ns0:Num>2778.</ns0:Num>
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<html:p>
(a)
<html:span class="EnSpace"/>
Section 2775 and the holding in Dynamex do not apply to a contract for “professional services” as defined below, and instead the determination of whether the individual is an employee or independent contractor shall be governed by Borello if the hiring entity demonstrates that all of the following factors are satisfied:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
The individual maintains a business location, which may include the individual’s residence, that is separate from the hiring entity. Nothing in this paragraph prohibits an individual from choosing to perform services at the location of the hiring entity.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
If work is performed more than six months after
the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses or permits for the individual to practice in their profession.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
The individual has the ability to set or negotiate their own rates for the services performed.
</html:p>
<html:p>
(4)
<html:span class="EnSpace"/>
Outside of project completion dates and reasonable business hours, the individual has the ability to set the individual’s own hours.
</html:p>
<html:p>
(5)
<html:span class="EnSpace"/>
The individual is customarily engaged in the same type of work performed
under contract with another hiring entity or holds themselves out to other potential customers as available to perform the same type of work.
</html:p>
<html:p>
(6)
<html:span class="EnSpace"/>
The individual customarily and regularly exercises discretion and independent judgment in the performance of the services.
</html:p>
<html:p>
(b)
<html:span class="EnSpace"/>
For purposes of this section:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
An “individual” includes an individual providing services as a sole proprietor or other business entity.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
“Professional services” means services that meet any of the following:
</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
Marketing, provided that the contracted work is original and creative in character and the result of which depends
primarily on the invention, imagination, or talent of the individual or work that is an essential part of or necessarily incident to any of the contracted work.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
Administrator of human resources, provided that the contracted work is predominantly intellectual and varied in character and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
Travel agent services provided by either of the following:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
A person regulated by the Attorney General under Article 2.6 (commencing with Section 17550) of Chapter 1 of Part 3 of Division 7 of the Business and Professions Code.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
An individual who is a seller of travel within the meaning of subdivision (a) of Section 17550.1 of the Business and Professions Code and who is exempt from the registration under subdivision (g) of Section 17550.20 of the Business and Professions Code.
</html:p>
<html:p>
(D)
<html:span class="EnSpace"/>
Graphic design.
</html:p>
<html:p>
(E)
<html:span class="EnSpace"/>
Grant writer.
</html:p>
<html:p>
(F)
<html:span class="EnSpace"/>
(i)
<html:span class="EnSpace"/>
Fine artist.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
For the purposes of this subparagraph, “fine artist” means an individual who creates works of art to be appreciated primarily or solely for their imaginative, aesthetic, or intellectual content, including drawings, paintings, sculptures, mosaics, works of calligraphy, works of graphic art, crafts, or mixed
media.
</html:p>
<html:p>
(G)
<html:span class="EnSpace"/>
Services provided by an enrolled agent who is licensed by the United States Department of the Treasury to practice before the Internal Revenue Service pursuant to Part 10 of Subtitle A of Title 31 of the Code of Federal Regulations.
</html:p>
<html:p>
(H)
<html:span class="EnSpace"/>
Payment processing agent through an independent sales organization.
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
Services provided by any of the following:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
By a still photographer, photojournalist, videographer, or photo editor who works under a written contract that specifies the rate of pay and obligation to pay by a defined time, as long as the individual providing the services is not directly replacing an employee who performed the same work at the
same volume for the hiring entity; the individual does not primarily perform the work at the hiring entity’s business location, notwithstanding paragraph (1) of subdivision (a); and the individual is not restricted from working for more than one hiring entity. This subclause is not applicable to a still photographer, photojournalist, videographer, or photo editor who works on motion pictures, which is inclusive of, but is not limited to, theatrical or commercial productions, broadcast news, television, and music videos. Nothing in this section restricts a still photographer, photojournalist, photo editor, or videographer from distributing, licensing, or selling their work product to another business, except as prohibited under copyright laws or workplace collective bargaining agreements.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
To a digital content aggregator by a still
photographer, photojournalist, videographer, or photo editor.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
For the purposes of this subparagraph the following definitions apply:
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
“Photo editor” means an individual who performs services ancillary to the creation of digital content, such as retouching, editing, and keywording.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
“Digital content aggregator” means a licensing intermediary that obtains a license or assignment of copyright from a still
photographer, photojournalist, videographer, or photo editor for the purposes of distributing that copyright by way of sublicense or assignment, to the intermediary’s third-party end users.
</html:p>
<html:p>
(J)
<html:span class="EnSpace"/>
Services provided by a freelance writer, translator, editor, copy editor, illustrator, or newspaper cartoonist who works under a written contract that specifies the rate of pay, intellectual property rights, and obligation to pay by a defined time, as long as the individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity; the individual does not primarily perform the work at the hiring entity’s business location, notwithstanding paragraph (1) of subdivision (a); and the individual is not restricted from working for more than one hiring entity.
</html:p>
<html:p>
(K)
<html:span class="EnSpace"/>
Services provided by an individual as a content contributor,
adviser, producer, narrator, or cartographer for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work in any format or media, who works under a written contract that specifies the rate of pay, intellectual property rights, and obligation to pay by a defined time, as long as the individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity, the individual does not primarily perform the work at the hiring entity’s business location notwithstanding paragraph (1) of subdivision (a), and the individual is not restricted from working for more than one hiring entity.
</html:p>
<html:p>
(L)
<html:span class="EnSpace"/>
(i)
<html:span class="EnSpace"/>
Services provided by a licensed esthetician, licensed electrologist, licensed manicurist, licensed barber, or
licensed cosmetologist provided that the individual:
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
Sets their own rates, processes their own payments, and is paid directly by clients.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
Sets their own hours of work and has sole discretion to decide the number of clients and which clients for whom they will provide services.
</html:p>
<html:p>
(III)
<html:span class="EnSpace"/>
Has their own book of business and schedules their own appointments.
</html:p>
<html:p>
(IV)
<html:span class="EnSpace"/>
Maintains their own business license for the services offered to clients.
</html:p>
<html:p>
(V)
<html:span class="EnSpace"/>
If the individual is performing services at the location of the hiring entity, then the individual issues a Form 1099 to the salon or business owner
from which they rent their business space.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
The Employment Development Department and the Division of Labor Standards Enforcement shall report to the Legislature by June 1, 2026, in compliance with Section 9795 of the Government Code, the annual number of allegations of misclassification or other violations of this code involving licensed manicurists since January 1, 2020, including the number of investigations undertaken, the number of workers impacted, and the number and
outcomes of enforcement actions initiated.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
This subparagraph shall become inoperative, with respect to licensed manicurists, on January 1, 2029.
</html:p>
<html:p>
(M)
<html:span class="EnSpace"/>
A specialized performer hired by a performing arts company or organization to teach a master class for no more than one week. “Master class” means a specialized course for limited duration that is not regularly offered by the hiring entity and is taught by an expert in a recognized field of artistic endeavor who does not work for the hiring entity to teach on a regular basis.
</html:p>
<html:p>
(N)
<html:span class="EnSpace"/>
Services provided by an appraiser, as defined in Part 3 (commencing with Section 11300) of Division 4 of the Business and Professions Code.
</html:p>
<html:p>
(O)
<html:span class="EnSpace"/>
Registered professional foresters licensed pursuant to Article 3 (commencing with Section 750) of Chapter 2.5 of Division 1 of the Public Resources Code.
</html:p>
<html:p>
(c)
<html:span class="EnSpace"/>
Section 2775 and the holding in Dynamex do not apply to the following, which are subject to the Business and Professions Code:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
A real estate licensee licensed by the State of California pursuant to Division 4 (commencing with Section 10000) of the Business and Professions Code, for whom the determination of employee or independent contractor status shall be governed by subdivision (b) of
Section 10032 of the Business and Professions Code. If that section is not applicable, then this determination shall be governed as follows:
</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
For purposes of unemployment insurance by Section 650 of the Unemployment Insurance Code.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
For purposes of workers’ compensation by Section 3200 et seq.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
For all other purposes in the Labor Code by Borello. The statutorily imposed duties of a responsible broker under Section 10015.1 of the Business and Professions Code are not factors to be considered under the Borello test.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
A home inspector, as defined in Section 7195 of the Business and Professions Code, and subject to the provisions of Chapter 9.3 (commencing
with Section 7195) of Division 3 of that code.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
A repossession agency licensed pursuant to Section 7500.2 of the Business and Professions Code, for whom the determination of employee or independent contractor status shall be governed by Section 7500.2 of the Business and Professions Code, if the repossession agency is free from the control and direction of the hiring person or entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
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<ns0:BillSection id="id_97E95944-1F60-4FEB-9DB2-50A2E560F810">
<ns0:Num>SEC. 2.</ns0:Num>
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Section 2783 of the
<ns0:DocName>Labor Code</ns0:DocName>
is amended to read:
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<ns0:Num>2783.</ns0:Num>
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<html:p>Section 2775 and the holding in Dynamex do not apply to the following occupations as defined in the paragraphs below, and instead, the determination of employee or independent contractor status for individuals in those occupations shall be governed by Borello:</html:p>
<html:p>
(a)
<html:span class="EnSpace"/>
A person or organization that is licensed by the Department of Insurance pursuant to Chapter 5 (commencing with Section 1621), Chapter 6 (commencing with Section 1760), or Chapter 8 (commencing with Section 1831) of Part 2 of Division 1 of the Insurance Code or a person who provides underwriting inspections, premium audits, risk management, claims adjusting, third-party administration consistent with use of the term “third-party administrator,”
as defined in subdivision (cc) of Section 10112.1 of Title 8 of the California Code of Regulations, or loss control work for the insurance and financial service industries.
</html:p>
<html:p>
(b)
<html:span class="EnSpace"/>
A physician and surgeon, dentist, podiatrist, psychologist, or veterinarian licensed by the State of California pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, performing professional or medical services provided to or by a health care entity, including an entity organized as a sole proprietorship, partnership, or professional corporation as defined in Section 13401 of the Corporations Code. Nothing in this subdivision shall circumvent, undermine, or restrict the rights under federal law to organize and collectively bargain.
</html:p>
<html:p>
(c)
<html:span class="EnSpace"/>
An individual who holds an active license
from the State of California and is practicing one of the following recognized professions: lawyer, architect, landscape architect, engineer, private investigator, or accountant.
</html:p>
<html:p>
(d)
<html:span class="EnSpace"/>
A securities broker-dealer or investment adviser or their agents and representatives that are either of the following:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
Registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
Licensed by the State of California under Chapter 2 (commencing with Section 25210) or Chapter 3 (commencing with Section 25230) of Division 1 of Part 3 of Title 4 of the Corporations Code.
</html:p>
<html:p>
(e)
<html:span class="EnSpace"/>
A direct sales salesperson as described in Section 650 of the
Unemployment Insurance Code, so long as the conditions for exclusion from employment under that section are met.
</html:p>
<html:p>
(f)
<html:span class="EnSpace"/>
A manufactured housing salesperson, subject to all obligations under Part 2 (commencing with Section 18000) of Division 13 of the Health and Safety Code, including all regulations promulgated by the Department of Housing and Community Development relating to manufactured home salespersons and all other obligations of manufactured housing salespersons to members of the public. The statutorily imposed duties of a manufactured housing dealer under Section 18060.5 of the Health and Safety Code are not factors to be considered under the Borello test.
</html:p>
<html:p>
(g)
<html:span class="EnSpace"/>
A commercial fisher working on an American vessel.
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
For the purposes of this subdivision:
</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
“American vessel” has the same meaning as defined in Section 125.5 of the Unemployment Insurance Code.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
“Commercial fisher” means a person who has a valid, unrevoked commercial fishing license issued pursuant to Article 3 (commencing with Section 7850) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
“Working on an American vessel” means the taking or the attempt to take fish, shellfish, or other fishery resources of the state by any means, and includes each individual aboard an American vessel operated for fishing purposes who participates directly or indirectly in the taking of these raw fishery products, including maintaining the vessel or
equipment used aboard the vessel. However, “working on an American vessel” does not apply to anyone aboard a licensed commercial fishing vessel as a visitor or guest who does not directly or indirectly participate in the taking.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
For the purposes of this subdivision, a commercial fisher working on an American vessel is eligible for unemployment insurance benefits if they meet the definition of “employment” in Section 609 of the Unemployment Insurance Code and are otherwise eligible for those benefits pursuant to the provisions of the Unemployment Insurance Code.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
(A)
<html:span class="EnSpace"/>
Notwithstanding Section 10231.5 of the Government Code, on or before March 1, 2021, and each
June 30 thereafter, the Employment Development Department shall issue an annual report to the Legislature on the use of unemployment insurance in the commercial fishing industry. This report shall include, but not be limited to, all of the following:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
Reporting the number of commercial fishers who apply for unemployment insurance benefits.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
The number of commercial fishers who have their claims disputed.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
The number of commercial fishers who have their claims denied.
</html:p>
<html:p>
(iv)
<html:span class="EnSpace"/>
The number of commercial fishers who receive unemployment insurance benefits.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
The report required by this subparagraph shall be submitted in compliance with Section 9795 of the Government Code.
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<html:p>
(4)
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This subdivision shall become inoperative on January 1,
2031, unless extended by the Legislature.
</html:p>
<html:p>
(h)
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(1)
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A newspaper distributor working under contract with a newspaper publisher, as defined in paragraph (2), or a newspaper carrier.
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<html:p>
(2)
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For purposes of this subdivision:
</html:p>
<html:p>
(A)
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“Newspaper” means a newspaper of general circulation, as defined in Section 6000 or 6008 of the Government Code, and any other publication circulated to the community in general as an extension of or substitute for that newspaper’s own publication, whether that publication be designated a “shoppers’ guide,” as a zoned edition, or otherwise. “Newspaper” may also be a publication that is published in print and that may be posted in a digital format, and distributed
periodically at daily, weekly, or other short intervals, for the dissemination of news of a general or local character and of a general or local interest.
</html:p>
<html:p>
(B)
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“Publisher” means the natural or corporate person that manages the newspaper’s business operations, including circulation.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
“Newspaper distributor” means a person or entity that contracts with a publisher to distribute newspapers to the community.
</html:p>
<html:p>
(D)
<html:span class="EnSpace"/>
“Newspaper carrier” means a person who effects physical delivery of the newspaper to the customer or reader, who is not working as an app-based driver, as defined in Chapter 10.5 (commencing with Section 7448) of Division 3 of the Business and Professions Code, during the time when the newspaper carrier is
performing the newspaper delivery services.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
(A)
<html:span class="EnSpace"/>
On or before March 1, 2025, March 1, 2026, March 1, 2027, March 1, 2028, and March 1, 2029, every newspaper publisher or distributor that hires or directly contracts with newspaper carriers shall submit to the Labor and Workforce Development Agency, in a manner prescribed by the agency and in conformity with existing law, the following information related to their workforce for the current year:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
The number of carriers for which the publisher or distributor paid payroll taxes in the previous year and the number of carriers for which the publisher or distributor did not pay payroll taxes in the previous year.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
The average wage rate paid to
carriers classified as independent contractors and as employees.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
The number of carrier wage claims filed, if any, with the Labor Commissioner or in a court of law.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
For the March 1, 2025, reporting date only, every newspaper publisher and distributor shall also report the number of carrier wage claims filed with the Labor Commissioner or in a court of law for the preceding three years.
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<html:p>
(C)
<html:span class="EnSpace"/>
Information that is submitted shall only be disclosed in accordance with Section 7927.705 of the Government Code, relating to trade secrets or other proprietary business information.
</html:p>
<html:p>
(4)
<html:span class="EnSpace"/>
This subdivision shall become inoperative on January 1, 2030, unless
extended by the Legislature.
</html:p>
<html:p>
(i)
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An individual who is engaged by an international exchange visitor program that has obtained and maintains full official designation by the United States Department of State under Part 62 (commencing with Section 62.1) of Title 22 of the Code of
Federal Regulations for the purpose of conducting, instead of participating in, international and cultural exchange visitor programs and is in full compliance with Part 62 (commencing with Section 62.1) of Title 22 of the Code of Federal Regulations.
</html:p>
<html:p>
(j)
<html:span class="EnSpace"/>
A competition judge with a specialized skill set or expertise providing services that require the exercise of discretion and independent judgment to an organization for the purposes of determining the outcome or enforcing the rules of a competition. This includes, but is not limited to, an amateur umpire or referee.
</html:p>
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</ns0:BillSection>
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