substantially all, the individuals constituting its membership are employees of an employer conducting the principal part of its business in the United States; or (2) the headquarters of such local lodge or division is located in the United States; and an individual shall be deemed to be in the service of such a general committee only if (1) he is representing a local lodge or division described in clauses (1) or (2) immediately above; or (2) all, or substantially all, the individuals represented by it are employees of an employer conducting the principal part of its business in the United States; or (3) he acts in the capacity of a general chairman or an assistant general chairman of a general committee which represents individuals rendering service in the United States to an employer, but in such case if his office or headquarters is not located in the United States and the individuals represented by such general committee are employees of an employer not conducting the principal part of its business in the United States, only such proportion of the remuneration for such service shall be regarded as compensation as the proportion which the mileage in the United States under the jurisdiction of such general committee bears to the total mileage under its jurisdiction, unless such mileage formula is inapplicable in which case the Board may prescribe such other formula as it finds to be equitable, and if the application of such mileage formula, or such other formula as the Board may prescribe, would result in the compensation of the individual being less than 10 per centum of his remuneration for such service no part of such remuneration shall be regarded as compensation. Provided further, That an individual not a citizen or resident of the United States shall not be deemed to be in the service of an employer when rendering service outside the United States to an employer who is required under the laws applicable in the place where the service is rendered to employ therein, in whole or in part, citizens or residents thereof; and the laws applicable on August 29, 1935, in the place where the service is rendered shall be deemed to have been applicable there at all times prior to that date.

§ 203.2 General definition of employee. An individual shall be an employee whenever (a) he is engaged in performing compensated service for an employer or (b) he is in an employment relation to an employer, or (c) he is an employee representative, or (d) he is an officer of an employer.

§ 203.3 When an individual is performing service for an employer. The legal relationship of employer and employee is defined by the act. Thus, an individual is performing service for an employer if:

(a) He is subject to the right of an employer, directly or through another, to

supervise and direct the manner in which his services are rendered; or

(b) In rendering professional or technical services he is integrated into the staff of the employer; or

(c) He is rendering personal services on the property used in the operations of the employer and the services are integrated into those operations.

These provisions are controlling irrespective of whether the service is performed on a part-time basis, and, with respect to paragraph (a) of this section, irrespective of whether the right to supervise and direct is exercised.

§ 203.4 When service is compensated. Service shall be "compensated" if it is performed for compensation, as that term is defined in Part 222 of this chapter: Provided, however, That service prior to September 1941, of a station employee whose duties consisted of or included the carrying of passengers' hand baggage and otherwise assisting passengers at passenger stations shall be considered compensated service although the individual's remuneration was, in whole or in part, in the form of tips. (For the effect of compensation of less than $3.00 per month earned after December 31, 1936, for service to a local lodge or division of a railway-labor-organization employer, see Part 222 of this chapter.) (Secs. 3, 10, 50 Stat. 311, 314 as amended by secs. 2, 209, Pub. Law 572, 79th Cong., 45 U. S. C. 228c, 228j)

§ 203.5 Service outside the United States. (a) An individual shall not be an employee by reason of rendition of service to an employer other than a local lodge or division, or a general committee of a railway-labor-organization employer, not conducting the principal part of of its business in the United States except while engaged in performing service for it in the United States.

(b) An individual shall not be an employee by reason of rendition of service to a local lodge or division, unless:

(1) All, or substantially all the individuals constituting the membership of such local lodge or division are employees of an employer conducting the principal part of its business in the United States; or

(2) The headquarters of such local lodge or dvision is located in the United States.

(c) An individual shall not be an employee by reason of rendition of service

to a general committee of a railwaylabor-organization employer, unless:

(1) Such individual is representing a local lodge or division all, or substantially all, of whose members are employees of an employer conducting the principal part of its business in the United States or the headquarters of such local lodge or division is located in the United States; or

(2) All or substantially all, the individuals represented by such a general committee are employees of an employer conducting the principal part of its business in the United States; or

(3) Such an individual acts in the capacity of a general chairman or an assistant general chairman of a general committee which represents individuals rendering service in the United States to an employer; Provided, however, That if the office or headquarters of such general chairman or assistant general chairman is not located within the United States he will not be an employee unless 10 per cent or more of his remuneration for service as general chairman or assistant general chairman is creditable as compensation, the creditable compensation to be computed according to the proportion which the mileage in the United States under the jurisdiction of such general committee bears to the total mileage under its jurisdiction, or according to a formula to be prescribed by the Board if the mileage formula is inapplicable.

§ 203.6 Age, citizenship and other factors. The age, citizenship or residence of an individual, or his designation as other than an "employee" shall not be controlling in determining whether or not such individual is an employee within the meaning of the act, except that an individual not a citizen or resident of the United States shall not be deemed to be in the service of an employer when rendering service outside the United States to an employer who is required by the laws of the place where the service is performed to employ, in whole or in part, citizens or residents thereof and the laws in force therein on August 29, 1935, shall be deemed to have been in force at all times prior to that date, and in no case shall the years of service include any service after the end of the calendar year in which the individual attains the age of sixty-five and after June 30, 1937. (Secs.

1, 10, 50 Stat. 308, 314 as amended, 45 U. S. C. 228a, 228j)

§ 203.7 Local lodge employee. An individual who, prior to January 1, 1937, shall have rendered service to a local lodge or division of a railway labor organization included as an employer under section 1 (a) of the act, shall be an employee with respect to such service to such local lodge or division only if he was on August 29, 1935, in the service of or in an employment relation to an employer which was a carrier. An individual who, subsequent to December 31, 1936, shall have rendered service to a local lodge or division of a railway labor organization included as an employer under section 1 (a) of the act, shall be an employee with respect to such service to such local lodge or division only with respect to such service as was preceded by service, or an employment relation, on or after August 29, 1935, to an employer which was a carrier. (For the effect of compensation less than $3.00 per month earned after December 31, 1936, for service to a local lodge or division of a railway-labor-organization employer, see Part 222 of this chapter.)

208.29 208.31

When disability annuities cease. Cessation of disability annuity not prejudicial to further eligibility. AUTHORITY. §§ 208.1 to 208.31 inclusive (with exceptions cited in parentheses following sections affected), issued under secs. 2, 10, 50 Stat. 309, 314, secs. 203, 205, 206, Pub. Law 572, 79th Cong., 45 U.S.C., 228b, 228j.

SOURCE: §§ 208.1 to 208.31, inclusive, contained in Regulations, Railroad Retirement Board, Jan. 31, 1947, 12 F.R. 859, except as noted following provisions affected.

§ 208.1 Statutory provision.

(a) The following described individuals, if they shall have been employees on or after the enactment date, shall, subject to the conditions set forth in section 1 (b), (c), and (d) of the Act as amended be eligible for annuities after they shall have ceased to render compensated service to any person, whether or not an employer as defined in section 1 (a) of the Act as amended (but with the right to engage in other employment to the extent not prohibited by subsection (d) of the Act as amended):

(1) Individuals who on or after the enactment date shall be sixty-five years of age or

over.

(2) Women who will have attained the age of sixty and will have completed thirty years of service.

(3) Individuals who will have attained the age of sixty and will have completed thirty years of service, but the annuity of such an individual shall be reduced by one one-hundred-and-eightieth for each calendar month that he is under age sixty-five when his annuity begins to accrue.

(4) Individuals having a current connection with the railroad industry, and whose permanent physical or mental condition is such as to be disabling for work in their regular occupation, and who (1) will have completed twenty years of service or (ii) will have attained the age of sixty. The Board, with the cooperation of employers and employees, shall secure the establishment of standards determining the physical and mental conditions which permanently disqualify employees for work in the several Occupations in the railroad industry, and the Board, employers, and employees shall cooperate in the promotion of the greatest practicable degree of uniformity in the standards applied by the several employers. An individual's condition shall be deemed to be disabling for work in his regular occupation if he will have been disqualified by his employer because of disability for service in his regular occupation in accordance with the applicable standards so established; if the employee will not have been so disqualified by his employer, the Board shall determine whether his condition is disabling for work in his regular occupation in accordance with the standards generally established; and, if the employee's regular occupation is not one with respect to which standards will have been established, the standards relating to a reasonably comparable occupation shall be used. If there is no such comparable occupation, the Board shall determine whether the employee's condition is disabling for work in his regular occupation by determining whether under the practices generally prevailing in industries in which such occupation exists such condition is a permanent disqualification for work in such occupation. For the purposes of this section, an employee's "regular occupation" shall be deemed to be the occupation in

which he will have been engaged in more calendar months than the calendar months in which he will have been engaged in any other occupation during the last preceding five calendar years, whether or not consecutive, in each of which years he will have earned wages or salary, except that, if an employee establishes that during the last fifteen consecutive calendar years he will have been engaged in another occupation in one-half or more of all the months in which he will have earned wages or salary, he may claim such other occupation as his regular occupation; or

(5) Individuals whose permanent physical or mental condition is such that they are unable to engage in any regular employment and who (1) have completed ten years of service, or (11) have attained the age of sixty.

Such satisfactory proof shall be made from time to time as prescribed by the Board, of the disability provided for in subparagraph 4 or 5 of this paragraph and of the continuance of such disability (according to the standards applied in the establishment of such disability) until the employee attains the age of sixty-five. If the individual fails to comply with the requirements prescribed by the Board as to proof of the continuance of the disability until he attains the age of sixty-five years, his right to an annuity by reason of such disability shall, except for good cause shown to the Board, cease, but without prejudice to his rights to any subsequent annuity to which he may be entitled. If before attaining the age of sixtyfive an employee in receipt of an annuity under subparagraph 4 or 5 of this paragraph is found by the Board to be no longer disabled as provided in said paragraph his annuity shall cease upon the last day of the month in which he ceases to be so disabled. An employee, in receipt of such annuity, who earns more than $75 in service for hire, or in self-employment, in each of any six consecutive calendar months, shall be deemed to cease to be so disabled in the last of such six months; and such employee shall report to the Board immediately all such service for hire, or such self-employment. If after cessation of his disability annuity the employee will have acquired additional years of service, such additional years of service may be credited to him with the same effect as if no annuity had previously been awarded to him.

(b) An annuity shall be paid only if the applicant shall have relinquished such rights as he may have to return to the service of an employer and of the person by whom he was last employed; but this requirement shall not apply to the individuals mentioned in paragraphs (a) 4 and 5 of this section prior to attaining age sixty-five.

(c) An annuity shall begin to accrue as of a date to be specified in a written application (to be made in such manner and form as may be prescribed by the Board and to be

signed by the individual entitled thereto), but:

(1) not before the date following the last day of compensated service of the applicant, and

(2) not more than sixty days before the filing of the application.

§ 208.2 Employee status. To be eligible for an annuity an individual, in addition to other qualifications, must have been an employee on August 29, 1935 or, if not an employee on that date, he must have rendered service subsequent to December 31, 1936 as an employee. (Secs. 1, 10, 50 Stat. 308, 314 as amended; 45 U. S. C. 228a, 228j.)

§ 208.5 Current connection with the railroad industry; (self-employment). For the purposes of this part, § 225.8, and Part 237 of this chapter, in determining whether an individual had a "current connection with the railroad industry," self-employment shall not be considered "regular employment." (For statutory provision see Part 237 of this chapter) [Reg., Feb. 28, 1947, 12 F.R. 1594]

§ 208.7 Annuities for employees. (a) Subject to the provisions of paragraphs (b) and (c) of this section, an individual who has been an employee on or after August 29, 1935, and ceased to render service for compensation to any person, whether or not an employer under the act, is eligible for an annuity if:

(1) The individual has attained the age of sixty-five, or the individual is a woman, and (i) has attained the age of sixty and (ii) has completed at least three-hundred and fifty-four months of service, or

(2) The individual has attained the age of sixty and has completed at least three-hundred and fifty-four months of service, but the annuity of such an individual, other than a woman, shall be reduced by one one-hundred and eightieth for each calendar month he is under age sixty-five when his annuity begins to accrue, or

(3) The individual has a current connection with the railroad industry and his permanent physical or mental condition is such as to be disabling for work in his regular occupation, and (i) has completed at least two-hundred and thirty-four months of service, or (ii) has attained the age of sixty, or

(4) The physical or mental condition of the individual is such that he is un

728472-48-SUPP. X-BK. 3 -30

able to engage in any regular employment and (i) has completed at least one-hundred and fourteen months of service, or (ii) has attained the age of sixty.

(b) No annuity shall be certified for payment to an individual until such time as he has filed with the Board a duly executed application form, has established by proof satisfactory to the Board that he possesses all the qualifications therefor, and, except for an individual whose eligibility for an annuity is determined in accordance with subparagraphs (3) or (4) of paragraph (a) of this section, has relinquished rights to return to service as required by Part 216 of this chapter. In no case shall an annuity begin to accrue earlier than (1) two months prior to the date upon which the application therefor was filed with the Board, or (2) July 1, or December 1, respectively, if such application is filed with the Board on August 31 or January 31; or (3) the day following the last day of the applicant's compensated service. An individual whose eligibility for an annuity is determined in accordance with subparagraphs (3) or (4) of paragraph (a) of this section, shall relinquish rights to return to service as required by Part 216 of this chapter upon his attainment of age sixty-five.

(c) Except as provided in § 208.31 and in section 407 of the 1946 amendments to the Railroad Retirement Act enacted as Public Law 572, 79th Cong., after an annuity has been awarded to an individual, he shall not be eligible for an increase in such annuity, or for a new or additional annuity, by reason of acquiring, after the annuity awarded him began to accrue, any additional service or compensation or any additional eligibility qualifications.

§ 208.9 Regular occupation defined. For the purpose of an annuity under § 208.7 (a) (3), an individual's regular occupation shall be his occupation in the railroad industry in which (a) he has been engaged in service for hire, including service for hire outside the railroad industry, in more calendar months than the calendar months in which he has been engaged in service for hire in any other occupation, whether or not in the railroad industry, during the last preceding five calendar years, whether or not consecutive, or (b) he has been engaged in service for hire, including service for hire outside the railroad industry,

Page 3329

in not less than one-half of all the months in which he has been engaged in service for hire, whether or not in the railroad industry, during the last preceding fifteen consecutive calendar years.

§ 208.11 Establishment of permanent disability for work in the applicant's "regular occupation". An individual's physical or mental condition shall be deemed to be permanently disabling for work in his "regular occupation", whether or not he has been disqualified for such work by his employer, if, in accordance with the occupational disability standards established by the Board, he is physically or mentally unable to perform the duties of such occupation, and the facts of his physical or mental condition afford a reasonable basis for an inference that such condition is permanent. The cause of the disabling physical or mental condition is immaterial. If the employee's regular occupation is one with respect to which occupational disability standards have not been established by the Board, the occupational disability standards established by the Board for a reasonably comparable occupation in the railroad industry shall govern the determination of the individual's inability to work in his regular occupation; and in the absence of such comparable occupation, such determination shall be made by ascertaining whether under the practices generally prevailing in other industries having such occupation, the individual's physical or mental condition is a permanent disqualification for work in his regular occupation. The condition of permanent disability for work in the individual's regular occupation must be established in each particular case in the manner and to the extent prescribed by the Board.

§ 208.13 "Any regular employment” defined. "Regular employment" as used in this part and Part 237 of this chapter means full or part time service for remuneration by an individual in the employ of another on a recurring basis. For the purposes of this section, an individual performing service for remuneration, whether or not under a contract, shall be deemed to be in the employ of another unless such service is performed as a part of his independently established trade, business or occupation; and in the absence of evidence to the contrary, an individual shall be presumed to be regularly employed if he has been paid remuneration of not less than $200 in each of two consecutive calendar quarters.

[Preceding section, in small type, superseded by following section during period covered by this Supplement]

§ 208.13 "Any regular employment” defined. "Regular employment" as used in this part and Part 237 of this chapter means full or part time service for remuneration by an individual in the employ of another on a continuing or recurring basis. For the purposes of this section, an individual performing service for remuneration, whether or not under a contract, shall be deemed to be in the employ of another unless such service is performed as a part of his independently established trade, business or occupation; and in the absence of evidence to the contrary, an individual shall be presumed to be regularly employed if he has been paid remuneration by one or more employers (other than an employer under the act) of not less than $200 in each of two consecutive calendar quarters. [Board Order 47157, Apr. 10, 1947, 12 F.R. 3243]

§ 208.15 Cessation of service to a local lodge or division. In determining whether an individual has ceased to render compensated service to a local lodge or division of a railway-labororganization employer the Board shall not consider as a day of compensated service any day in any month with respect to which month the individual earned compensation that is required to be disregarded within the provisions of § 222.3 (f) of this chapter. (Sec. 10, 50 Stat. 314, sec. 25, 54 Stat. 1100; 45 U. S. C. 228a, 228j)

§ 208.17 Establishment of permanent disability for any regular employment. (a) An individual is permanently disabled from engaging in any regular employment whenever his physical or mental condition is such that he is unable to perform regularly, in the usual and customary manner, the substantial and material duties of any regular and gainful employment which is substantial and not trifling, with any employer, whether or not subject to the act, and the facts of his physical or mental condition afford a reasonable basis for an inference that such condition is permanent.

(b) The condition of permanent disability for any regular employment must be established in each particular case in the manner and to the extent prescribed by the Board. The following disabilities, while not an exclusive or exhaustive catalogue of conditions under