[Code of Federal Regulations]

[Title 20, Volume 1]

[Revised as of April 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 20CFR322.9]



[Page 555-556]

 

                      TITLE 20--EMPLOYEES' BENEFITS

 

                  CHAPTER II--RAILROAD RETIREMENT BOARD

 

PART 322_REMUNERATION--Table of Contents

 

Sec.  322.9  Subsidiary remuneration.



    (a) Definition.The term ``subsidiary remuneration'' means 

remuneration not in excess of an average of $15 per day for the period 

with respect to which it is payable or accrues, if

    (1) The work from which the remuneration derives requires 

substantially less than full time as determined by generally prevailing 

standards; and

    (2) The work is susceptible of performance at such times and under 

such circumstances as not to be inconsistent with the holding of normal 

full-time employment in another occupation.

    (b) Exception. If a claimant's remuneration is ``compensation'' as 

defined in part 302 of this chapter, such remuneration is not subsidiary 

unless the claimant had base year compensation from a different position 

or occupation of not less than two and one-half times the monthly 

compensation base for months in the base year in which he or she 

received the remuneration. Compensation in excess of an average of $15 

per day is remuneration for the days for which it is payable or accrues.

    (c) Period for which remuneration is payable or accrues. The 

``period'' of time



[[Page 556]]



used in determining whether remuneration averages more than $15 per day 

depends on the terms and conditions of the employment and the rate of 

payment for the work. If the claimant is paid a monthly salary, the 

``month'' is the period with respect to which the pay must average not 

more than $15 per day. The average is the monthly salary divided by 30. 

If the claimant is paid a weekly salary, the amount of the salary is 

divided by seven. If the claimant is paid by the hour or the day, the 

``period'' is the day. Where payment is made by the hour or the day, the 

pay is not added up and then averaged out over the week or the month. 

For example, earnings of $20 on one day and $10 on another day do not 

average out to $15 per day so as to permit both days to be considered as 

days of unemployment or days of sickness.

    (d) Substantially less than full time. The phrase ``substantially 

less than full time'' means employment of not more than four hours per 

day.

    (e) Compatibility with full time employment. Work is considered to 

be susceptible of performance at such times and under such circumstances 

as not to be inconsistent with the holding of normal full-time 

employment in another position or occupation if it is a form of 

secondary employment that a claimant has done or could do at his or her 

own convenience while performing the duties of his or her railroad job.

    (f) Determinations. The Board shall make a determination whether 

remuneration is subsidiary by applying the standards in this section to 

the facts of each case. Earnings that average more than $15 per day are 

not subsidiary remuneration under any circumstances. Also, earnings of 

any amount that are included in a claimant's qualifying base year 

compensation are not subsidiary remuneration. Even if earnings do not 

exceed an average of $15 per day, they may still not be subsidiary 

remuneration if the claimant worked more than four hours per day or if 

the work had to be performed at such times and under such circumstances 

as to be inconsistent with the holding of normal full-time work in his 

or her regular railroad work. If the evidence does not establish that 

the earnings are subsidiary remuneration, the question whether they are 

remuneration for particular days will then be considered.

    (g) Examples. The following examples illustrate this section.

    (1) A claimant receives a salary of $350 per month for serving as 

secretary-treasurer of the local lodge of his union. He performs a 

variety of duties at his own convenience while holding down a full-time 

railroad job in his craft. The average payment per day is not more than 

$15 and is, therefore, subsidiary remuneration.

    (2) A claimant worked three hours per day, at $5 per hour, in the 

family insurance business. He was marked up for work as an extra board 

trainman and worked whenever he was called. When called, he skipped work 

in the family insurance business. His insurance earnings of $15 per day 

were subsidiary remuneration.

    (3) While unemployed from her railroad job, a claimant took a job as 

a school bus driver. She worked from 7 a.m. to 9 a.m., and 2:30 p.m. to 

5:30 p.m. Her regular railroad job was a daytime job from 8 a.m. to 4:30 

p.m. Her pay as a school bus driver was not subsidiary remuneration 

because the job was not compatible with the holding of full time work in 

her regular railroad occupation.



[65 FR 14460, Mar. 17, 2000]