H. B. No. 183 As Introduced

Representatives Daniels, Allen, C. Evans, Seitz, Setzer, Raga, Ujvagi

A BILL

To amend section 4123.01 and to enact sections 1
4125.01 to 4125.08 and 4125.99 of the Revised Code 2
to register professional employer organizations 3
for purposes of enforcing compliance with workers' 4
compensation laws. 5

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That section 4123.01 be amended and sections 6
4125.01, 4125.02, 4125.03, 4125.04, 4125.05, 4125.06, 4125.07, 7
4125.08, and 4125.99 of the Revised Code be enacted to read as 8
follows: 9

       Sec. 4123.01. As used in this chapter: 10

       (A)(1) "Employee" means: 11

       (a) Every person in the service of the state, or of any 12
county, municipal corporation, township, or school district 13
therein, including regular members of lawfully constituted police 14
and fire departments of municipal corporations and townships, 15
whether paid or volunteer, and wherever serving within the state 16
or on temporary assignment outside thereof, and executive officers 17
of boards of education, under any appointment or contract of hire, 18
express or implied, oral or written, including any elected 19
official of the state, or of any county, municipal corporation, or 20
township, or members of boards of education. 21

       As used in division (A)(1)(a) of this section, the term 22
"employee" includes the following persons when responding to an 23
inherently dangerous situation that calls for an immediate 24
response on the part of the person, regardless of whether the 25
person is within the limits of the jurisdiction of the person's 26
regular employment or voluntary service when responding, on the 27
condition that the person responds to the situation as the person 28
otherwise would if the person were on duty in the person's 29
jurisdiction: 30

       (i) Off-duty peace officers. As used in division (A)(1)(a)(i) 31
of this section, "peace officer" has the same meaning as in 32
section 2935.01 of the Revised Code. 33

       (ii) Off-duty firefighters, whether paid or volunteer, of a 34
lawfully constituted fire department. 35

       (iii) Off-duty first responders, emergency medical 36
technicians-basic, emergency medical technicians-intermediate, or 37
emergency medical technicians-paramedic, whether paid or 38
volunteer, of an ambulance service organization or emergency 39
medical service organization pursuant to Chapter 4765. of the 40
Revised Code. 41

       (b) Every person in the service of any person, firm, or 42
private corporation, including any public service corporation, 43
that (i) employs one or more persons regularly in the same 44
business or in or about the same establishment under any contract 45
of hire, express or implied, oral or written, including aliens and 46
minors, household workers who earn one hundred sixty dollars or 47
more in cash in any calendar quarter from a single household and 48
casual workers who earn one hundred sixty dollars or more in cash 49
in any calendar quarter from a single employer, or (ii) is bound 50
by any such contract of hire or by any other written contract, to 51
pay into the state insurance fund the premiums provided by this 52
chapter. 53

       (c) Every person who performs labor or provides services 54
pursuant to a construction contract, as defined in section 4123.79 55
of the Revised Code, if at least ten of the following criteria 56
apply: 57

       (i) The person is required to comply with instructions from 58
the other contracting party regarding the manner or method of 59
performing services; 60

       (ii) The person is required by the other contracting party to 61
have particular training; 62

       (iii) The person's services are integrated into the regular 63
functioning of the other contracting party; 64

       (iv) The person is required to perform the work personally; 65

       (v) The person is hired, supervised, or paid by the other 66
contracting party; 67

       (vi) A continuing relationship exists between the person and 68
the other contracting party that contemplates continuing or 69
recurring work even if the work is not full time; 70

       (vii) The person's hours of work are established by the other 71
contracting party; 72

       (viii) The person is required to devote full time to the 73
business of the other contracting party; 74

       (ix) The person is required to perform the work on the 75
premises of the other contracting party; 76

       (x) The person is required to follow the order of work set by 77
the other contracting party; 78

       (xi) The person is required to make oral or written reports 79
of progress to the other contracting party; 80

       (xii) The person is paid for services on a regular basis such 81
as hourly, weekly, or monthly; 82

       (xiii) The person's expenses are paid for by the other 83
contracting party; 84

       (xiv) The person's tools and materials are furnished by the 85
other contracting party; 86

       (xv) The person is provided with the facilities used to 87
perform services; 88

       (xvi) The person does not realize a profit or suffer a loss 89
as a result of the services provided; 90

       (xvii) The person is not performing services for a number of 91
employers at the same time; 92

       (xviii) The person does not make the same services available 93
to the general public; 94

       (xix) The other contracting party has a right to discharge 95
the person; 96

       (xx) The person has the right to end the relationship with 97
the other contracting party without incurring liability pursuant 98
to an employment contract or agreement. 99

       Every person in the service of any independent contractor or 100
subcontractor who has failed to pay into the state insurance fund 101
the amount of premium determined and fixed by the administrator of 102
workers' compensation for the person's employment or occupation or 103
if a self-insuring employer has failed to pay compensation and 104
benefits directly to the employer's injured and to the dependents 105
of the employer's killed employees as required by section 4123.35 106
of the Revised Code, shall be considered as the employee of the 107
person who has entered into a contract, whether written or verbal, 108
with such independent contractor unless such employees or their 109
legal representatives or beneficiaries elect, after injury or 110
death, to regard such independent contractor as the employer. 111

       (2) "Employee" does not mean: 112

       (a) A duly ordained, commissioned, or licensed minister or 113
assistant or associate minister of a church in the exercise of 114
ministry; or 115

       (b) Any officer of a family farm corporation. 116

       Any employer may elect to include as an "employee" within 117
this chapter, any person excluded from the definition of 118
"employee" pursuant to division (A)(2) of this section. If an 119
employer is a partnership, sole proprietorship, or family farm 120
corporation, such employer may elect to include as an "employee" 121
within this chapter, any member of such partnership, the owner of 122
the sole proprietorship, or the officers of the family farm 123
corporation. In the event of an election, the employer shall serve 124
upon the bureau of workers' compensation written notice naming the 125
persons to be covered, include such employee's remuneration for 126
premium purposes in all future payroll reports, and no person 127
excluded from the definition of "employee" pursuant to division 128
(A)(2) of this section, proprietor, or partner shall be deemed an 129
employee within this division until the employer has served such 130
notice. 131

       For informational purposes only, the bureau shall prescribe 132
such language as it considers appropriate, on such of its forms as 133
it considers appropriate, to advise employers of their right to 134
elect to include as an "employee" within this chapter a sole 135
proprietor, any member of a partnership, the officers of a family 136
farm corporation, or a person excluded from the definition of 137
"employee" under division (A)(2)(a) of this section, that they 138
should check any health and disability insurance policy, or other 139
form of health and disability plan or contract, presently covering 140
them, or the purchase of which they may be considering, to 141
determine whether such policy, plan, or contract excludes benefits 142
for illness or injury that they might have elected to have covered 143
by workers' compensation. 144

       (B) "Employer" means: 145

       (1) The state, including state hospitals, each county, 146
municipal corporation, township, school district, and hospital 147
owned by a political subdivision or subdivisions other than the 148
state; 149

       (2) Every person, firm, professional employer organization as 150
defined in section 4125.01 of the Revised Code, and private 151
corporation, including any public service corporation, that (a) 152
has in service one or more employees or shared employees regularly 153
in the same business or in or about the same establishment under 154
any contract of hire, express or implied, oral or written, or (b) 155
is bound by any such contract of hire or by any other written 156
contract, to pay into the insurance fund the premiums provided by 157
this chapter. 158

       All such employers are subject to this chapter. Any member of 159
a firm or association, who regularly performs manual labor in or 160
about a mine, factory, or other establishment, including a 161
household establishment, shall be considered an employee in 162
determining whether such person, firm, or private corporation, or 163
public service corporation, has in its service, one or more 164
employees and the employer shall report the income derived from 165
such labor to the bureau as part of the payroll of such employer, 166
and such member shall thereupon be entitled to all the benefits of 167
an employee. 168

       (C) "Injury" includes any injury, whether caused by external 169
accidental means or accidental in character and result, received 170
in the course of, and arising out of, the injured employee's 171
employment. "Injury" does not include: 172

       (1) Psychiatric conditions except where the conditions have 173
arisen from an injury or occupational disease; 174

       (2) Injury or disability caused primarily by the natural 175
deterioration of tissue, an organ, or part of the body; 176

       (3) Injury or disability incurred in voluntary participation 177
in an employer-sponsored recreation or fitness activity if the 178
employee signs a waiver of the employee's right to compensation or 179
benefits under this chapter prior to engaging in the recreation or 180
fitness activity. 181

       (D) "Child" includes a posthumous child and a child legally 182
adopted prior to the injury. 183

       (E) "Family farm corporation" means a corporation founded for 184
the purpose of farming agricultural land in which the majority of 185
the voting stock is held by and the majority of the stockholders 186
are persons or the spouse of persons related to each other within 187
the fourth degree of kinship, according to the rules of the civil 188
law, and at least one of the related persons is residing on or 189
actively operating the farm, and none of whose stockholders are a 190
corporation. A family farm corporation does not cease to qualify 191
under this division where, by reason of any devise, bequest, or 192
the operation of the laws of descent or distribution, the 193
ownership of shares of voting stock is transferred to another 194
person, as long as that person is within the degree of kinship 195
stipulated in this division. 196

       (F) "Occupational disease" means a disease contracted in the 197
course of employment, which by its causes and the characteristics 198
of its manifestation or the condition of the employment results in 199
a hazard which distinguishes the employment in character from 200
employment generally, and the employment creates a risk of 201
contracting the disease in greater degree and in a different 202
manner from the public in general. 203

       (G) "Self-insuring employer" means an employer who is granted 204
the privilege of paying compensation and benefits directly under 205
section 4123.35 of the Revised Code, including a board of county 206
commissioners for the sole purpose of constructing a sports 207
facility as defined in section 307.696 of the Revised Code, 208
provided that the electors of the county in which the sports 209
facility is to be built have approved construction of a sports 210
facility by ballot election no later than November 6, 1997. 211

       (H) "Public employer" means an employer as defined in 212
division (B)(1) of this section. 213

       Sec. 4125.01. As used in this chapter: 214

        (A) "Client employer" means a sole proprietor, partnership, 215
association, limited liability company, or corporation that enters 216
into a professional employer organization agreement and is 217
assigned shared employees by the professional employer 218
organization. 219

        (B) "Coemploy" means the sharing of the responsibilities and 220
liabilities of being an employer. 221

        (C) "Professional employer organization" means a sole 222
proprietor, partnership, association, limited liability company, 223
or corporation that enters into an agreement with one or more 224
client employers for the purpose of coemploying all or part of the 225
client employer's workforce at the client employer's work site. 226

        (D) "Professional employer organization agreement" means a 227
written contract between a professional employer organization and 228
a client employer to coemploy employees for a duration of not less 229
than twelve months in accordance with the requirements of this 230
chapter. 231

        (E) "Shared employee" means an individual intended to be 232
assigned to a client employer on a permanent basis, not as a 233
temporary supplement to the client employer's workforce, who is 234
coemployed by a professional employer organization and a client 235
employer pursuant to a professional employer organization 236
agreement. 237

       Sec. 4125.02. The administrator of the bureau of workers' 238
compensation shall adopt rules in accordance with Chapter 119. of 239
the Revised Code to administer and enforce this chapter. 240

       Sec. 4125.03. (A) The professional employer organization with 241
whom a shared employee is coemployed shall do all of the 242
following: 243

        (1) Pay wages associated with a shared employee pursuant to 244
the terms and conditions of compensation in the professional 245
employer organization agreement between the professional employer 246
organization and the client employer; 247

        (2) Pay all related payroll taxes associated with a shared 248
employee independent of the terms and conditions contained in the 249
professional employer organization agreement between the 250
professional employer organization and the client employer; 251

       (3) Maintain workers' compensation coverage, pay all workers' 252
compensation premiums and manage all workers' compensation claims, 253
filings, and related procedures associated with a shared employee 254
in compliance with Chapters 4121. and 4123. of the Revised Code, 255
except that when shared employees include family farm officers, 256
ordained ministers, or corporate officers of the client employer, 257
payroll reports shall include the entire amount of payroll 258
associated with those persons; 259

        (4) Provide written notice to each shared employee it assigns 260
to perform services to a client employer of the relationship 261
between and the responsibilities of the professional employer 262
organization and the client employer; 263

       (5) Maintain complete records separately listing the payroll, 264
manual classifications, and workers' compensation claims, if any, 265
of each shared employee grouped in a manner that indicates the 266
client employer that coemploys each shared employee. 267

        (B) The professional employer organization with whom a shared 268
employee is coemployed has a right of direction and control over 269
each shared employee assigned to a client employer's location. 270

        (C) Notwithstanding division (B) of this section, a client 271
employer may retain sufficient direction and control over a shared 272
employee as is necessary to conduct the client employer's business 273
and to discharge any fiduciary responsibility that it may have, or 274
to comply with any applicable licensure, regulatory, or statutory 275
requirement of the client employer. 276

       Sec. 4125.04. (A) When a client employer enters into a 277
professional employer organization agreement with a professional 278
employer organization, the professional employer organization is 279
the employer of record and the succeeding employer for the 280
purposes of determining a workers' compensation experience rating 281
pursuant to Chapter 4123. of the Revised Code. 282

        (B) Pursuant to Section 35 of Article II, Ohio Constitution 283
and section 4123.74 of the Revised Code, the exclusive remedy for 284
a shared employee to recover for injuries, diseases, or death 285
incurred in the course of and arising out of the employment 286
relationship against either the professional employer organization 287
or the client employer are those benefits provided under Chapters 288
4121. and 4123. of the Revised Code. 289

       Sec. 4125.05. (A) Not later than thirty days after the 290
effective date of this section or not later than thirty days after 291
the formation of a professional employer organization, whichever 292
date occurs later, a professional employer organization operating 293
in this state shall register with the administrator of the bureau 294
of workers' compensation on forms provided by the administrator. 295
Following initial registration, each professional employer 296
organization shall register with the administrator annually on or 297
before the thirty-first day of December. 298

        (B) Initial registration and each annual registration renewal 299
shall include all of the following: 300

        (1) A list of each of the professional employer 301
organization's client employers current as of the date of 302
registration for purposes of initial registration or current as of 303
the date of annual registration renewal, or within thirty days of 304
adding or releasing a client, whichever is appropriate, that 305
includes the client employer's name, address, federal tax 306
identification number, and bureau of workers' compensation risk 307
number; 308

        (2) A financial statement prepared by an independent 309
certified public accountant in accordance with generally accepted 310
accounting principles, within six months prior to the date of 311
initial registration or renewal; 312

        (3) A fee as determined by the administrator; 313

        (4) Any other information required by the administrator. 314

        (C) The administrator, with the advice and consent of the 315
workers' compensation oversight commission, may adopt rules in 316
accordance with Chapter 119. of the Revised Code to require 317
professional employer organizations to provide security in the 318
form of a bond or letter of credit not to exceed an amount equal 319
to the premiums incurred for the two most recent payroll periods, 320
prior to any discounts or dividends, to meet the financial 321
obligations of the professional employer organizations pursuant to 322
this chapter and Chapters 4121. and 4123. of the Revised Code. 323

       (D) Notwithstanding divisions (B)(2) and (3) of this section, 324
a professional employer organization that qualifies for 325
self-insurance or retrospective rating under section 4123.29 or 326
4123.35 of the Revised Code shall abide by the financial 327
disclosure and bonding requirements pursuant to those sections and 328
the rules adopted under those sections in place of the 329
requirements set forth in divisions (B)(2) and (3) of this 330
section. 331

       (E) Except to the extent necessary for the administrator to 332
administer the statutory duties of the administrator and for 333
employees of the state to perform their official duties, all 334
records, reports, client lists, and other information obtained 335
from a professional employer organization under divisions (A) and 336
(B) of this section are confidential and shall not be published or 337
open to public inspection. 338

       Sec. 4125.06. (A) In accordance with Chapter 119. of the 339
Revised Code, the administrator of the bureau of workers' 340
compensation may deny registration or revoke the registration of a 341
professional employer organization and rescind its status as a 342
coemployer upon reasonable belief that the professional employer 343
organization has done any of the following: 344

        (1) Willfully violated this chapter or any rule adopted 345
pursuant to this chapter; 346

        (2) Intentionally made a material misrepresentation or 347
misstatement in its application for registration; 348

        (3) Obtained or attempted to obtain registration through 349
misrepresentation or fraud; 350

        (4) Misappropriated or converted to its own, or improperly 351
withheld, money required to be held in a fiduciary capacity in 352
accordance with Chapters 4121. and 4123. of the Revised Code; 353

        (5) Used fraudulent, coercive, or dishonest practices or 354
demonstrated incompetence, untrustworthiness, or financial 355
irresponsibility; 356

        (6) Failed to appear, without reasonable cause or excuse, in 357
response to a subpoena lawfully issued by the administrator of the 358
bureau of workers' compensation; 359

        (7) Failed to comply with the requirements of this chapter. 360

        (B) Upon revocation of the registration of a professional 361
employer organization, all client employers associated with that 362
professional employer organization shall file payroll reports and 363
pay workers' compensation premiums directly to the administrator 364
on its own behalf at a rate determined by the administrator based 365
solely on the claims experience of the client employer. 366

       (C) Upon revocation of a professional employer organization's 367
registration, each client employer associated with that 368
professional employer organization shall file on its own behalf 369
the appropriate documents or data with all state and federal 370
agencies as required by law with respect to any shared employee 371
the client employer and the professional employer organization 372
shared. 373

       Sec. 4125.07. Not later than fourteen calendar days after the 374
date on which a professional employer organization agreement is 375
terminated, the professional employer organization is adjudged 376
bankrupt, the professional employer organization ceases operations 377
within the state of Ohio, or the registration of the professional 378
employer organization is revoked, the professional employer 379
organization shall submit to the administrator of the bureau of 380
workers' compensation and each client employer associated with 381
that professional employer organization a completed workers' 382
compensation lease termination notice form provided by the 383
administrator. The completed form shall include all client payroll 384
information listed in a format specified by the administrator and 385
notice of all workers' compensation claims that have been reported 386
to the professional employer organization in accordance with its 387
internal reporting policies. 388

       Sec. 4125.08. Nothing in this chapter exempts a professional 389
employer organization, client employer, or shared employee from 390
any applicable federal, state, or local licensing, registration, 391
or certification statutes or regulations. An individual required 392
to obtain and maintain a license, registration, or certification 393
under law and who is a shared employee of a professional employer 394
organization and a client employer is an employee of the client 395
employer for purposes of obtaining and maintaining the appropriate 396
license, registration, or certification as required by law. A 397
professional employer organization does not engage in any 398
occupation, trade, or profession that requires a license, 399
certification, or registration solely by entering into a 400
professional employer agreement with a client employer or 401
coemploying a shared employee. 402

       Sec. 4125.99. Whoever violates section 4125.05 of the Revised 403
Code is guilty of a minor misdemeanor. Whoever knowingly violates 404
section 4125.05 of the Revised Code is guilty of a misdemeanor of 405
the second degree. 406

       Section 2. That existing section 4123.01 of the Revised Code 407
is hereby repealed. 408

       Section 3. Section 4123.01 of the Revised Code is presented 409
in this act as a composite of the section as amended by both H.B. 410
675 and Am. Sub. S.B. 223 of the 124th General Assembly. The 411
General Assembly, applying the principle stated in division (B) of 412
section 1.52 of the Revised Code that amendments are to be 413
harmonized if reasonably capable of simultaneous operation, finds 414
that the composite is the resulting version of the section in 415
effect prior to the effective date of the section as presented in 416
this act. 417

Section 1. That section 4123.01 be amended and sections	6
4125.01, 4125.02, 4125.03, 4125.04, 4125.05, 4125.06, 4125.07,	7
4125.08, and 4125.99 of the Revised Code be enacted to read as	8
follows:	9

(a) Every person in the service of the state, or of any	12
county, municipal corporation, township, or school district	13
therein, including regular members of lawfully constituted police	14
and fire departments of municipal corporations and townships,	15
whether paid or volunteer, and wherever serving within the state	16
or on temporary assignment outside thereof, and executive officers	17
of boards of education, under any appointment or contract of hire,	18
express or implied, oral or written, including any elected	19
official of the state, or of any county, municipal corporation, or	20
township, or members of boards of education.	21

As used in division (A)(1)(a) of this section, the term	22
"employee" includes the following persons when responding to an	23
inherently dangerous situation that calls for an immediate	24
response on the part of the person, regardless of whether the	25
person is within the limits of the jurisdiction of the person's	26
regular employment or voluntary service when responding, on the	27
condition that the person responds to the situation as the person	28
otherwise would if the person were on duty in the person's	29
jurisdiction:	30

(i) Off-duty peace officers. As used in division (A)(1)(a)(i)	31
of this section, "peace officer" has the same meaning as in	32
section 2935.01 of the Revised Code.	33

(ii) Off-duty firefighters, whether paid or volunteer, of a	34
lawfully constituted fire department.	35

(iii) Off-duty first responders, emergency medical	36
technicians-basic, emergency medical technicians-intermediate, or	37
emergency medical technicians-paramedic, whether paid or	38
volunteer, of an ambulance service organization or emergency	39
medical service organization pursuant to Chapter 4765. of the	40
Revised Code.	41

(b) Every person in the service of any person, firm, or	42
private corporation, including any public service corporation,	43
that (i) employs one or more persons regularly in the same	44
business or in or about the same establishment under any contract	45
of hire, express or implied, oral or written, including aliens and	46
minors, household workers who earn one hundred sixty dollars or	47
more in cash in any calendar quarter from a single household and	48
casual workers who earn one hundred sixty dollars or more in cash	49
in any calendar quarter from a single employer, or (ii) is bound	50
by any such contract of hire or by any other written contract, to	51
pay into the state insurance fund the premiums provided by this	52
chapter.	53

(c) Every person who performs labor or provides services	54
pursuant to a construction contract, as defined in section 4123.79	55
of the Revised Code, if at least ten of the following criteria	56
apply:	57

(i) The person is required to comply with instructions from	58
the other contracting party regarding the manner or method of	59
performing services;	60

(ii) The person is required by the other contracting party to	61
have particular training;	62

(iii) The person's services are integrated into the regular	63
functioning of the other contracting party;	64

(v) The person is hired, supervised, or paid by the other	66
contracting party;	67

(vi) A continuing relationship exists between the person and	68
the other contracting party that contemplates continuing or	69
recurring work even if the work is not full time;	70

(vii) The person's hours of work are established by the other	71
contracting party;	72

(viii) The person is required to devote full time to the	73
business of the other contracting party;	74

(ix) The person is required to perform the work on the	75
premises of the other contracting party;	76

(x) The person is required to follow the order of work set by	77
the other contracting party;	78

(xi) The person is required to make oral or written reports	79
of progress to the other contracting party;	80

(xii) The person is paid for services on a regular basis such	81
as hourly, weekly, or monthly;	82

(xiii) The person's expenses are paid for by the other	83
contracting party;	84

(xiv) The person's tools and materials are furnished by the	85
other contracting party;	86

(xv) The person is provided with the facilities used to	87
perform services;	88

(xvi) The person does not realize a profit or suffer a loss	89
as a result of the services provided;	90

(xvii) The person is not performing services for a number of	91
employers at the same time;	92

(xviii) The person does not make the same services available	93
to the general public;	94

(xix) The other contracting party has a right to discharge	95
the person;	96

(xx) The person has the right to end the relationship with	97
the other contracting party without incurring liability pursuant	98
to an employment contract or agreement.	99

Every person in the service of any independent contractor or	100
subcontractor who has failed to pay into the state insurance fund	101
the amount of premium determined and fixed by the administrator of	102
workers' compensation for the person's employment or occupation or	103
if a self-insuring employer has failed to pay compensation and	104
benefits directly to the employer's injured and to the dependents	105
of the employer's killed employees as required by section 4123.35	106
of the Revised Code, shall be considered as the employee of the	107
person who has entered into a contract, whether written or verbal,	108
with such independent contractor unless such employees or their	109
legal representatives or beneficiaries elect, after injury or	110
death, to regard such independent contractor as the employer.	111

(a) A duly ordained, commissioned, or licensed minister or	113
assistant or associate minister of a church in the exercise of	114
ministry; or	115

Any employer may elect to include as an "employee" within	117
this chapter, any person excluded from the definition of	118
"employee" pursuant to division (A)(2) of this section. If an	119
employer is a partnership, sole proprietorship, or family farm	120
corporation, such employer may elect to include as an "employee"	121
within this chapter, any member of such partnership, the owner of	122
the sole proprietorship, or the officers of the family farm	123
corporation. In the event of an election, the employer shall serve	124
upon the bureau of workers' compensation written notice naming the	125
persons to be covered, include such employee's remuneration for	126
premium purposes in all future payroll reports, and no person	127
excluded from the definition of "employee" pursuant to division	128
(A)(2) of this section, proprietor, or partner shall be deemed an	129
employee within this division until the employer has served such	130
notice.	131