As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 137

Representatives Phillips, Driehaus 

Cosponsors: Representatives Murray, Lundy, Yuko, Hagan, R., Foley, Szollosi, Okey, Pillich, Garland, Clyde 

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A BILL

To amend sections 121.083, 1349.61, 4111.02, 4111.14,

1

4113.15, 4115.03, 4121.01, 4123.01, 4123.026,

2

4141.01, and 5747.01 and to enact sections 4175.01

3

to 4175.18 and 4175.99 of the Revised Code to

4

create a generally uniform definition of employee

5

for specified labor laws and to create a uniform

6

standard to determine whether an individual

7

performing services for an employer is an employee

8

of that employer.

9

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

Section 1. That sections 121.083, 1349.61, 4111.02, 4111.14,	10
4113.15, 4115.03, 4121.01, 4123.01, 4123.026, 4141.01, and 5747.01	11
be amended and sections 4175.01, 4175.02, 4175.03, 4175.04,	12
4175.05, 4175.06, 4175.07, 4175.08, 4175.09, 4175.10, 4175.11,	13
4175.12, 4175.13, 4175.14, 4175.15, 4175.16, 4175.17, 4175.18, and	14
4175.99 of the Revised Code be enacted to read as follows:	15

Sec. 121.083.  The superintendent of labor in the department	16
of commerce shall do all of the following:	17

(A) Administer and enforce the general laws of this state	18
pertaining to buildings, pressure piping, boilers, bedding,	19
upholstered furniture, and stuffed toys, steam engineering,	20
elevators, plumbing, licensed occupations regulated by the	21
department, and travel agents, as they apply to plans review,	22
inspection, code enforcement, testing, licensing, registration,	23
and certification.	24

(B) Exercise the powers and perform the duties delegated to	25
the superintendent by the director of commerce under Chapters	26
4109., 4111., and 4115., and 4175. of the Revised Code.	27

(C) Collect and collate statistics as are necessary.

28

(D) Examine and license persons who desire to act as steam	29
engineers, to operate steam boilers, and to act as inspectors of	30
steam boilers, provide for the scope, conduct, and time of such	31
examinations, provide for, regulate, and enforce the renewal and	32
revocation of such licenses, inspect and examine steam boilers and	33
make, publish, and enforce rules and orders for the construction,	34
installation, inspection, and operation of steam boilers, and do,	35
require, and enforce all things necessary to make such	36
examination, inspection, and requirement efficient.	37

(E) Rent and furnish offices as needed in cities in this	38
state for the conduct of its affairs.	39

(F) Oversee a chief of construction and compliance, a chief	40
of operations and maintenance, a chief of licensing and	41
certification, a chief of worker protection, and other designees	42
appointed by the director to perform the duties described in this	43
section.	44

(G) Enforce the rules the board of building standards adopts	45
pursuant to division (A)(2) of section 4104.43 of the Revised Code	46
under the circumstances described in division (D) of that section.	47

(H) Accept submissions, establish a fee for submissions, and	48
review submissions of certified welding and brazing procedure	49
specifications, procedure qualification records, and performance	50
qualification records for building services piping as required by	51
section 4104.44 of the Revised Code.	52

Sec. 1349.61.  (A)(1) Subject to division (C) of this	53
section, no person or entity shall sell a gift card to a purchaser	54
containing an expiration date that is less than two years after	55
the date the gift card is issued.	56

(2) No person or entity, within two years after a gift card	57
is issued, shall charge service charges or fees relative to that	58
gift card, including dormancy fees, latency fees, or	59
administrative fees, that have the effect of reducing the total	60
amount for which the holder of the gift card may redeem the gift	61
card.	62

(B) A gift card sold without an expiration date is valid	63
until redeemed or replaced with a new gift card.	64

(C) Division (A) of this section does not apply to any of the	65
following gift cards:	66

(1) A gift card that is distributed by the issuer to a	67
consumer pursuant to an awards, loyalty, or promotional program	68
without any money or anything of value being given in exchange for	69
the gift card by the consumer;	70

(2) A gift card that is sold below face value at a volume	71
discount to employers or to nonprofit and charitable organizations	72
for fundraising purposes, if the expiration date on that gift card	73
is not more than thirty days after the date of sale;	74

(3) A gift card that is sold by a nonprofit or charitable	75
organization for fundraising purposes;	76

(4) A gift card that an employer gives to an employee if use	77
of the gift card is limited to the employer's business	78
establishment, which may include a group of merchants that are	79
affiliated with that business establishment;	80

(5) A gift certificate issued in accordance with section	81
1533.131 of the Revised Code that may be used to obtain hunting	82
and fishing licenses, fur taker, special deer, and special wild	83
turkey permits, and wetlands habitat stamps;	84

(6) A gift card that is usable with multiple, unaffiliated	85
sellers of goods or services;	86

(7) A gift card that an employer issues to an employee in	87
recognition of services performed by the employee.	88

(D) Whoever violates division (A)(2) of this section is	89
liable to the holder for any amount that the redemption value of	90
the gift card was reduced, any court costs incurred, and	91
reasonable attorney's fees.	92

(E) As used in this section:

93

(1) "Gift card" means a certificate, electronic card, or	94
other medium issued by a merchant that evidences the giving of	95
consideration in exchange for the right to redeem the certificate,	96
electronic card, or other medium for goods, food, services,	97
credit, or money of at least an equal value, including any	98
electronic card issued by a merchant with a monetary value where	99
the issuer has received payment for the full monetary value for	100
the future purchase or delivery of goods or services and any	101
certificate issued by a merchant where the issuer has received	102
payment for the full monetary face value of the certificate for	103
the future purchase or delivery of goods and services. "Gift card"	104
does not include a prepaid calling card used to make telephone	105
calls.	106

(2) "Employer" and "employee" havehas the same meanings	107
meaning as in section 4121.01 of the Revised Code.	108

(3) "Employee" means every person who may be required or	109
directed by any employer, in consideration of direct or indirect	110
gain or profit, to engage in any employment, or to go, or work, or	111
be at any time in any place of employment.	112

Sec. 4111.02.  Every employer, as defined in Section 34a of	113
Article II, Ohio Constitution, shall pay each of the employer's	114
employees at a wage rate of not less than the wage rate specified	115
in Section 34a of Article II, Ohio Constitution.	116

The director of commerce annually shall adjust the wage rate	117
as specified in Section 34a of Article II, Ohio Constitution.	118

As used in this section, "employee" has the same meaning as	119
in section 4111.144175.01 of the Revised Code.	120

Sec. 4111.14. (A) Pursuant to the general assembly's	121
authority to establish a minimum wage under Section 34 of Article	122
II, Ohio Constitution, this section is in implementation of	123
Section 34a of Article II, Ohio Constitution. In implementing	124
Section 34a of Article II, Ohio Constitution, the general assembly	125
hereby finds that the purpose of Section 34a of Article II, Ohio	126
Constitution, is to:	127

(1) Ensure that Ohio employees, as defined in division (B)(1)	128
of this section, are paid the wage rate required by Section 34a of	129
Article II, Ohio Constitution;	130

(2) Ensure that covered Ohio employers maintain certain	131
records that are directly related to the enforcement of the wage	132
rate requirements in Section 34a of Article II, Ohio Constitution;	133

(3) Ensure that Ohio employees who are paid the wage rate	134
required by Section 34a of Article II, Ohio Constitution, may	135
enforce their right to receive that wage rate in the manner set	136
forth in Section 34a of Article II, Ohio Constitution; and	137

(4) Protect the privacy of Ohio employees' pay and personal	138
information specified in Section 34a of Article II, Ohio	139
Constitution, by restricting an employee's access, and access by a	140
person acting on behalf of that employee, to the employee's own	141
pay and personal information.	142

(B) In accordance with Section 34a of Article II, Ohio	143
Constitution, the terms "employer," "employee," "employ," and	144
"person," and "independent contractor" have the same meanings as	145
in the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29	146
U.S.C. 203, as amended. In construing the meaning of these terms,	147
due consideration and great weight shall be given to the United	148
States department of labor's and federal courts' interpretations	149
of those terms under the Fair Labor Standards Act and its	150
regulations. As used in division (B) of this section:	151

(1), "Employeeemployee" means individuals employed in Ohio,	152
but does not mean individuals who are excluded from the definition	153
of "employee" under 29 U.S.C. 203(e) or individuals who are	154
exempted from the minimum wage requirements in 29 U.S.C. 213 and	155
from the definition of "employee" in this chapter.	156

(2) "Employ" and "employee" do not include any person acting	157
as a volunteer. In construing who is a volunteer, "volunteer"	158
shall have the same meaning as in sections 553.101 to 553.106 of	159
Title 29 of the Code of Federal Regulations, as amended, and due	160
consideration and great weight shall be given to the United States	161
department of labor's and federal courts' interpretations of the	162
term "volunteer" under the Fair Labor Standards Act and its	163
regulationshas the same meaning as in section 4175.01 of the	164
Revised Code.	165

(C) In accordance with Section 34a of Article II, Ohio	166
Constitution, the state may issue licenses to employers	167
authorizing payment of a wage below that required by Section 34a	168
of Article II, Ohio Constitution, to individuals with mental or	169
physical disabilities that may otherwise adversely affect their	170
opportunity for employment. In issuing such licenses, the state	171
shall abide by the rules adopted pursuant to section 4111.06 of	172
the Revised Code.	173

(D)(1) In accordance with Section 34a of Article II, Ohio	174
Constitution, individuals employed in or about the property of an	175
employer or an individual's residence on a casual basis are not	176
included within the coverage of Section 34a of Article II, Ohio	177
Constitution. As used in division (D) of this section:	178

(a) "Casual basis" means employment that is irregular or	179
intermittent and that is not performed by an individual whose	180
vocation is to be employed in or about the property of the	181
employer or individual's residence. In construing who is employed	182
on a "casual basis," due consideration and great weight shall be	183
given to the United States department of labor's and federal	184
courts' interpretations of the term "casual basis" under the Fair	185
Labor Standards Act and its regulations.	186

(b) "An individual employed in or about the property of an	187
employer or individual's residence" means an individual employed	188
on a casual basis or an individual employed in or about a	189
residence on a casual basis, respectively.	190

(2) In accordance with Section 34a of Article II, Ohio	191
Constitution, employees of a solely family-owned and operated	192
business who are family members of an owner are not included	193
within the coverage of Section 34a of Article II, Ohio	194
Constitution. As used in division (D)(2) of this section, "family	195
member" means a parent, spouse, child, stepchild, sibling,	196
grandparent, grandchild, or other member of an owner's immediate	197
family.	198

(E) In accordance with Section 34a of Article II, Ohio	199
Constitution, an employer shall at the time of hire provide an	200
employee with the employer's name, address, telephone number, and	201
other contact information and update such information when it	202
changes. As used in division (E) of this section:	203

(1) "Other contact information" may include, where	204
applicable, the address of the employer's internet site on the	205
world wide web, the employer's electronic mail address, fax	206
number, or the name, address, and telephone number of the	207
employer's statutory agent. "Other contact information" does not	208
include the name, address, telephone number, fax number, internet	209
site address, or electronic mail address of any employee,	210
shareholder, officer, director, supervisor, manager, or other	211
individual employed by or associated with an employer.	212

(2) "When it changes" means that the employer shall provide	213
its employees with the change in its name, address, telephone	214
number, or other contact information within sixty business days	215
after the change occurs. The employer shall provide the changed	216
information by using any of its usual methods of communicating	217
with its employees, including, but not limited to, listing the	218
change on the employer's internet site on the world wide web,	219
internal computer network, or a bulletin board where it commonly	220
posts employee communications or by insertion or inclusion with	221
employees' paychecks or pay stubs.	222

(F) In accordance with Section 34a of Article II, Ohio	223
Constitution, an employer shall maintain a record of the name,	224
address, occupation, pay rate, hours worked for each day worked,	225
and each amount paid an employee for a period of not less than	226
three years following the last date the employee was employed by	227
that employer. As used in division (F) of this section:	228

(1) "Address" means an employee's home address as maintained	229
in the employer's personnel file or personnel database for that	230
employee.	231

(2)(a) With respect to employees who are not exempt from the	232
overtime pay requirements of the Fair Labor Standards Act or this	233
chapter, "pay rate" means an employee's base rate of pay.	234

(b) With respect to employees who are exempt from the	235
overtime pay requirements of the Fair Labor Standards Act or this	236
chapter, "pay rate" means an employee's annual base salary or	237
other rate of pay by which the particular employee qualifies for	238
that exemption under the Fair Labor Standards Act or this chapter,	239
but does not include bonuses, stock options, incentives, deferred	240
compensation, or any other similar form of compensation.	241

(3) "Record" means the name, address, occupation, pay rate,	242
hours worked for each day worked, and each amount paid an employee	243
in one or more documents, databases, or other paper or electronic	244
forms of record-keeping maintained by an employer. No one	245
particular method or form of maintaining such a record or records	246
is required under this division. An employer is not required to	247
create or maintain a single record containing only the employee's	248
name, address, occupation, pay rate, hours worked for each day	249
worked, and each amount paid an employee. An employer shall	250
maintain a record or records from which the employee or person	251
acting on behalf of that employee could reasonably review the	252
information requested by the employee or person.	253

An employer is not required to maintain the records specified	254
in division (F)(3) of this section for any period before January	255
1, 2007. On and after January 1, 2007, the employer shall maintain	256
the records required by division (F)(3) of this section for three	257
years from the date the hours were worked by the employee and for	258
three years after the date the employee's employment ends.	259

(4)(a) Except for individuals specified in division (F)(4)(b)	260
of this section, "hours worked for each day worked" means the	261
total amount of time worked by an employee in whatever increments	262
the employer uses for its payroll purposes during a day worked by	263
the employee. An employer is not required to keep a record of the	264
time of day an employee begins and ends work on any given day. As	265
used in division (F)(4) of this section, "day" means a fixed	266
period of twenty-four consecutive hours during which an employee	267
performs work for an employer.	268

(b) An employer is not required to keep records of "hours	269
worked for each day worked" for individuals for whom the employer	270
is not required to keep those records under the Fair Labor	271
Standards Act and its regulations or individuals who are not	272
subject to the overtime pay requirements specified in section	273
4111.03 of the Revised Code.	274

(5) "Each amount paid an employee" means the total gross	275
wages paid to an employee for each pay period. As used in division	276
(F)(5) of this section, "pay period" means the period of time	277
designated by an employer to pay an employee the employee's gross	278
wages in accordance with the employer's payroll practices under	279
section 4113.15 of the Revised Code.	280

(G) In accordance with Section 34a of Article II, Ohio	281
Constitution, an employer must provide such information without	282
charge to an employee or person acting on behalf of an employee	283
upon request. As used in division (G) of this section:	284

(1) "Such information" means the name, address, occupation,	285
pay rate, hours worked for each day worked, and each amount paid	286
for the specific employee who has requested that specific	287
employee's own information and does not include the name, address,	288
occupation, pay rate, hours worked for each day worked, or each	289
amount paid of any other employee of the employer. "Such	290
information" does not include hours worked for each day worked by	291
individuals for whom an employer is not required to keep that	292
information under the Fair Labor Standards Act and its regulations	293
or individuals who are not subject to the overtime pay	294
requirements specified in section 4111.03 of the Revised Code.	295

(2) "Acting on behalf of an employee" means a person acting	296
on behalf of an employee as any of the following:	297

(a) The certified or legally recognized collective bargaining	298
representative for that employee under the applicable federal law	299
or Chapter 4117. of the Revised Code;	300

(b) The employee's attorney;

301

(c) The employee's parent, guardian, or legal custodian.

302

A person "acting on behalf of an employee" must be	303
specifically authorized by an employee in order to make a request	304
for that employee's own name, address, occupation, pay rate, hours	305
worked for each day worked, and each amount paid to that employee.	306

(3) "Provide" means that an employer shall provide the	307
requested information within thirty business days after the date	308
the employer receives the request, unless either of the following	309
occurs:	310

(a) The employer and the employee or person acting on behalf	311
of the employee agree to some alternative time period for	312
providing the information.	313

(b) The thirty-day period would cause a hardship on the	314
employer under the circumstances, in which case the employer must	315
provide the requested information as soon as practicable.	316

(4) A "request" made by an employee or a person acting on	317
behalf of an employee means a request by an employee or a person	318
acting on behalf of an employee for the employee's own	319
information. The employer may require that the employee provide	320
the employer with a written request that has been signed by the	321
employee and notarized and that reasonably specifies the	322
particular information being requested. The employer may require	323
that the person acting on behalf of an employee provide the	324
employer with a written request that has been signed by the	325
employee whose information is being requested and notarized and	326
that reasonably specifies the particular information being	327
requested.	328

(H) In accordance with Section 34a of Article II, Ohio	329
Constitution, an employee, person acting on behalf of one or more	330
employees, and any other interested party may file a complaint	331
with the state for a violation of any provision of Section 34a of	332
Article II, Ohio Constitution, or any law or regulation	333
implementing its provisions. Such complaint shall be promptly	334
investigated and resolved by the state. The employee's name shall	335
be kept confidential unless disclosure is necessary to resolution	336
of a complaint and the employee consents to disclosure. As used in	337
division (H) of this section:	338

(1) "Complaint" means a complaint of an alleged violation	339
pertaining to harm suffered by the employee filing the complaint,	340
by a person acting on behalf of one or more employees, or by an	341
interested party.	342

(2) "Acting on behalf of one or more employees" has the same	343
meaning as "acting on behalf of an employee" in division (G)(2) of	344
this section. Each employee must provide a separate written and	345
notarized authorization before the person acting on that	346
employee's or those employees' behalf may request the name,	347
address, occupation, pay rate, hours worked for each day worked,	348
and each amount paid for the particular employee.	349

(3) "Interested party" means a party who alleges to be	350
injured by the alleged violation and who has standing to file a	351
complaint under common law principles of standing.	352

(4) "Resolved by the state" means that the complaint has been	353
resolved to the satisfaction of the state.	354

(5) "Shall be kept confidential" means that the state shall	355
keep the name of the employee confidential as required by division	356
(H) of this section.	357

(I) In accordance with Section 34a of Article II, Ohio	358
Constitution, the state may on its own initiative investigate an	359
employer's compliance with Section 34a of Article II, Ohio	360
Constitution, and any law or regulation implementing Section 34a	361
of Article II, Ohio Constitution. The employer shall make	362
available to the state any records related to such investigation	363
and other information required for enforcement of Section 34a of	364
Article II, Ohio Constitution or any law or regulation	365
implementing Section 34a of Article II, Ohio Constitution. The	366
state shall investigate an employer's compliance with this section	367
in accordance with the procedures described in section 4111.04 of	368
the Revised Code. All records and information related to	369
investigations by the state are confidential and are not a public	370
record subject to section 149.43 of the Revised Code. This	371
division does not prevent the state from releasing to or	372
exchanging with other state and federal wage and hour regulatory	373
authorities information related to investigations.	374

(J) In accordance with Section 34a of Article II, Ohio	375
Constitution, damages shall be calculated as an additional two	376
times the amount of the back wages and in the case of a violation	377
of an anti-retaliation provision an amount set by the state or	378
court sufficient to compensate the employee and deter future	379
violations, but not less than one hundred fifty dollars for each	380
day that the violation continued. The "not less than one hundred	381
fifty dollar" penalty specified in division (J) of this section	382
shall be imposed only for violations of the anti-retaliation	383
provision in Section 34a of Article II, Ohio Constitution.	384

(K) In accordance with Section 34a of Article II, Ohio	385
Constitution, an action for equitable and monetary relief may be	386
brought against an employer by the attorney general and/or an	387
employee or person acting on behalf of an employee or all	388
similarly situated employees in any court of competent	389
jurisdiction, including the court of common pleas of an employee's	390
county of residence, for any violation of Section 34a of Article	391
II, Ohio Constitution, or any law or regulation implementing its	392
provisions within three years of the violation or of when the	393
violation ceased if it was of a continuing nature, or within one	394
year after notification to the employee of final disposition by	395
the state of a complaint for the same violation, whichever is	396
later.	397

(1) As used in division (K) of this section, "notification"	398
means the date on which the notice was sent to the employee by the	399
state.	400

(2) No employee shall join as a party plaintiff in any civil	401
action that is brought under division (K) of this section by an	402
employee, person acting on behalf of an employee, or person acting	403
on behalf of all similarly situated employees unless that employee	404
first gives written consent to become such a party plaintiff and	405
that consent is filed with the court in which the action is	406
brought.	407

(3) A civil action regarding an alleged violation of this	408
section shall be maintained only under division (K) of this	409
section. This division does not preclude the joinder in a single	410
civil action of an action under this division and an action under	411
section 4111.10 of the Revised Code.	412

(4) Any agreement between an employee and employer to work	413
for less than the wage rate specified in Section 34a of Article	414
II, Ohio Constitution, is no defense to an action under this	415
section.	416

(L) In accordance with Section 34a of Article II, Ohio	417
Constitution, there shall be no exhaustion requirement, no	418
procedural, pleading, or burden of proof requirements beyond those	419
that apply generally to civil suits in order to maintain such	420
action and no liability for costs or attorney's fees on an	421
employee except upon a finding that such action was frivolous in	422
accordance with the same standards that apply generally in civil	423
suits. Nothing in division (L) of this section affects the right	424
of an employer and employee to agree to submit a dispute under	425
this section to alternative dispute resolution, including, but not	426
limited to, arbitration, in lieu of maintaining the civil suit	427
specified in division (K) of this section. Nothing in this	428
division limits the state's ability to investigate or enforce this	429
section.	430

(M) An employer who provides such information specified in	431
Section 34a of Article II, Ohio Constitution, shall be immune from	432
any civil liability for injury, death, or loss to person or	433
property that otherwise might be incurred or imposed as a result	434
of providing that information to an employee or person acting on	435
behalf of an employee in response to a request by the employee or	436
person, and the employer shall not be subject to the provisions of	437
Chapters 1347. and 1349. of the Revised Code to the extent that	438
such provisions would otherwise apply. As used in division (M) of	439
this section, "such information," "acting on behalf of an	440
employee," and "request" have the same meanings as in division (G)	441
of this section.	442

(N) As used in this section, "the state" means the director	443
of commerce.	444

Sec. 4113.15.  (A) Every individual, firm, partnership,	445
association, or corporation doing business in this state shall, on	446
or before the first day of each month, pay all its employees the	447
wages earned by them during the first half of the preceding month	448
ending with the fifteenth day thereof, and shall, on or before the	449
fifteenth day of each month, pay such employees the wages earned	450
by them during the last half of the preceding calendar month. If	451
at any time of payment an employee is absent from histhe	452
employee's regular place of labor and does not receive histhe	453
employee's wages through an authorized representative, such person	454
shall be entitled to said payment at any time thereafter upon	455
demand upon the proper paymaster at the place where such wages are	456
usually paid and where such pay is due. This section does not	457
prohibit the daily or weekly payment of wages. Theor the use of a	458
longer time lapse that is customary to a given trade, profession	459
or occupation, or establishment of a different time lapse by	460
written contract or by operation of law.	461

(B) Where wages remain unpaid for thirty days beyond the	462
regularly scheduled payday or, in the case where no regularly	463
scheduled payday is applicable, for sixty days beyond the filing	464
by the employee of a claim or for sixty days beyond the date of	465
the agreement, award, or other act making wages payable and no	466
contest court order or dispute of any wage claim including the	467
assertion of a counterclaim exists accounting for nonpayment, the	468
employer, in addition, as liquidated damages, is liable to the	469
employee in an amount equal to six per cent of the amount of the	470
claim still unpaid and not in contest or disputed or two hundred	471
dollars, whichever is greater.	472

(C) In the absence of a contest, court order or dispute, an	473
employer who is party to an agreement to pay or provide fringe	474
benefits to an employee or to make any employee authorized	475
deduction becomes a trustee of any funds required by such	476
agreement to be paid to any person, organization, or governmental	477
agency from the time that the duty to make such payment arises. No	478
person shall, without reasonable justification or excuse for such	479
failure, knowingly fail or refuse to pay to the appropriate	480
person, organization, or governmental agency the amount necessary	481
to provide the benefits or accomplish the purpose of any employee	482
authorized deduction, within thirty days after the close of the	483
pay period during which the employee earned or had deducted the	484
amount of money necessary to pay for the fringe benefit or make	485
any employee authorized deduction. A failure or refusal to pay,	486
regardless of the number of employee pay accounts involved,	487
constitutes one offense for the first delinquency of thirty days	488
and a separate offense for each successive delinquency of thirty	489
days.	490

(D) As used in this section and section 4113.16 of the	491
Revised Code:	492

(1) "Wage" means the net amount of money payable to an	493
employee, including any guaranteed pay or reimbursement for	494
expenses, less any federal, state, or local taxes withheld; any	495
deductions made pursuant to a written agreement for the purpose of	496
providing the employee with any fringe benefits; and any employee	497
authorized deduction.	498

(2) "Fringe benefits" includes but is not limited to health,	499
welfare, or retirement benefits, whether paid for entirely by the	500
employer or on the basis of a joint employer-employee	501
contribution, or vacation, separation, or holiday pay.	502

(3) "Employee authorized deduction" includes but is not	503
limited to deductions for the purpose of any of the following: (a)	504
purchase	505

(a) Purchase of United States savings bonds or corporate	506
stocks or bonds, (b) a;	507

(b) A charitable contribution, (c) credit;

508

(c) Credit union savings or other regular savings program, or	509
(d) repayment;	510

(d) Repayment of a loan or other obligation.

511

(4) "Employee" has the same meaning as in section 4175.01 of	512
the Revised Code.	513

Sec. 4115.03.  As used in sections 4115.03 to 4115.16 of the	514
Revised Code:	515

(A) "Public authority" means any officer, board, or	516
commission of the state, or any political subdivision of the	517
state, authorized to enter into a contract for the construction of	518
a public improvement or to construct the same by the direct	519
employment of labor, or any institution supported in whole or in	520
part by public funds and said sections apply to expenditures of	521
such institutions made in whole or in part from public funds.	522

(B) "Construction" means either of the following:

523

(1) Any new construction of any public improvement, the total	524
overall project cost of which is fairly estimated to be more than	525
fifty thousand dollars adjusted biennially by the director of	526
commerce pursuant to section 4115.034 of the Revised Code and	527
performed by other than full-time employees who have completed	528
their probationary periods in the classified service of a public	529
authority;	530

(2) Any reconstruction, enlargement, alteration, repair,	531
remodeling, renovation, or painting of any public improvement, the	532
total overall project cost of which is fairly estimated to be more	533
than fifteen thousand dollars adjusted biennially by the	534
administratordirector pursuant to section 4115.034 of the Revised	535
Code and performed by other than full-time employees who have	536
completed their probationary period in the classified civil	537
service of a public authority.	538

(C) "Public improvement" includes all buildings, roads,	539
streets, alleys, sewers, ditches, sewage disposal plants, water	540
works, and all other structures or works constructed by a public	541
authority of the state or any political subdivision thereof or by	542
any person who, pursuant to a contract with a public authority,	543
constructs any structure for a public authority of the state or a	544
political subdivision thereof. When a public authority rents or	545
leases a newly constructed structure within six months after	546
completion of such construction, all work performed on such	547
structure to suit it for occupancy by a public authority is a	548
"public improvement." "Public improvement" does not include an	549
improvement authorized by section 1515.08 of the Revised Code that	550
is constructed pursuant to a contract with a soil and water	551
conservation district, as defined in section 1515.01 of the	552
Revised Code, or performed as a result of a petition filed	553
pursuant to Chapter 6131., 6133., or 6135. of the Revised Code,	554
wherein no less than seventy-five per cent of the project is	555
located on private land and no less than seventy-five per cent of	556
the cost of the improvement is paid for by private property owners	557
pursuant to Chapter 1515., 6131., 6133., or 6135. of the Revised	558
Code.	559

(D) "Locality" means the county wherein the physical work	560
upon any public improvement is being performed.	561

(E) "Prevailing wages" means the sum of the following:

562

(1) The basic hourly rate of pay;

563

(2) The rate of contribution irrevocably made by a contractor	564
or subcontractor to a trustee or to a third person pursuant to a	565
fund, plan, or program;	566

(3) The rate of costs to the contractor or subcontractor	567
which may be reasonably anticipated in providing the following	568
fringe benefits to laborers and mechanics pursuant to an	569
enforceable commitment to carry out a financially responsible plan	570
or program which was communicated in writing to the laborers and	571
mechanics affected:	572

(a) Medical or hospital care or insurance to provide such;

573

(b) Pensions on retirement or death or insurance to provide	574
such;	575

(c) Compensation for injuries or illnesses resulting from	576
occupational activities if it is in addition to that coverage	577
required by Chapters 4121. and 4123. of the Revised Code;	578

(d) Supplemental unemployment benefits that are in addition	579
to those required by Chapter 4141. of the Revised Code;	580

(e) Life insurance;

581

(f) Disability and sickness insurance;

582

(g) Accident insurance;

583

(h) Vacation and holiday pay;

584

(i) Defraying of costs for apprenticeship or other similar	585
training programs which are beneficial only to the laborers and	586
mechanics affected;	587

(j) Other bona fide fringe benefits.

588

None of the benefits enumerated in division (E)(3) of this	589
section may be considered in the determination of prevailing wages	590
if federal, state, or local law requires contractors or	591
subcontractors to provide any of such benefits.	592

(F) "Interested party," with respect to a particular public	593
improvement, means:	594

(1) Any person who submits a bid for the purpose of securing	595
the award of a contract for construction of the public	596
improvement;	597

(2) Any person acting as a subcontractor of a person	598
mentioned in division (F)(1) of this section;	599

(3) Any bona fide organization of labor which has as members	600
or is authorized to represent employees of a person mentioned in	601
division (F)(1) or (2) of this section and which exists, in whole	602
or in part, for the purpose of negotiating with employers	603
concerning the wages, hours, or terms and conditions of employment	604
of employees;	605

(4) Any association having as members any of the persons	606
mentioned in division (F)(1) or (2) of this section.	607

(G) Except as used in division (A) of this section, "officer"	608
means an individual who has an ownership interest or holds an	609
office of trust, command, or authority in a corporation, business	610
trust, partnership, or association.	611

(H) "Employee" has the same meaning as in section 4175.01 of	612
the Revised Code.	613

Sec. 4121.01.  (A) As used in sections 4121.01 to 4121.29 of	614
the Revised Code:	615

(1) "Place of employment" means every place, whether indoors	616
or out, or underground, and the premises appurtenant thereto,	617
where either temporarily or permanently any industry, trade, or	618
business is carried on, or where any process or operation,	619
directly or indirectly related to any industry, trade, or	620
business, is carried on and where any person is directly or	621
indirectly employed by another for direct or indirect gain or	622
profit, but does not include any place where persons are employed	623
in private domestic service or agricultural pursuits which do not	624
involve the use of mechanical power.	625

(2) "Employment" means any trade, occupation, or process of	626
manufacture or any method of carrying on such trade, occupation,	627
or process of manufacture in which any person may be engaged,	628
except in such private domestic service or agricultural pursuits	629
as do not involve the use of mechanical power.	630

(3) "Employer" means every person, firm, corporation, agent,	631
manager, representative, or other person having control or custody	632
of any employment, place of employment, or employee.	633

(4) "Employee" means every person who may be required or	634
directed by any employer, in consideration of direct or indirect	635
gain or profit, to engage in any employment, or to go, or work, or	636
be at any time in any place of employmenthas the same meaning as	637
in section 4175.01 of the Revised Code.	638

(5) "Frequenter" means every person, other than an employee,	639
who may go in or be in a place of employment under circumstances	640
which render the person other than a trespasser.	641

(6) "Deputy" means any person employed by the industrial	642
commission or the bureau of workers' compensation, designated as a	643
deputy by the commission or the administrator of workers'	644
compensation, who possesses special, technical, scientific,	645
managerial, professional, or personal abilities or qualities in	646
matters within the jurisdiction of the commission or the bureau,	647
and who may be engaged in the performance of duties under the	648
direction of the commission or the bureau calling for the exercise	649
of such abilities or qualities.	650

(7) "Order" means any decision, rule, regulation, direction,	651
requirement, or standard, or any other determination or decision	652
that the bureau is empowered to and does make.	653

(8) "General order" means an order that applies generally	654
throughout the state to all persons, employments, or places of	655
employment, or all persons, employments, or places of employment	656
of a class under the jurisdiction of the bureau. All other orders	657
shall be considered special orders.	658

(9) "Local order" means any ordinance, order, rule, or	659
determination of the legislative authority of any municipal	660
corporation, or any trustees, or board or officers of any	661
municipal corporation upon any matter over which the bureau has	662
jurisdiction.	663

(10) "Welfare" means comfort, decency, and moral well-being.

664

(11) "Safe" or "safety," as applied to any employment or a	665
place of employment, means such freedom from danger to the life,	666
health, safety, or welfare of employees or frequenters as the	667
nature of the employment will reasonably permit, including	668
requirements as to the hours of labor with relation to the health	669
and welfare of employees.	670

(12) "Employee organization" means any labor or bona fide	671
organization in which employees participate and that exists for	672
the purpose, in whole or in part, of dealing with employers	673
concerning grievances, labor disputes, wages, hours, terms, and	674
other conditions of employment.	675

(B) As used in the Revised Code:

676

(1) "Industrial commission" means the chairperson of the	677
three-member industrial commission created pursuant to section	678
4121.02 of the Revised Code when the context refers to the	679
authority vested in the chairperson as the chief executive officer	680
of the three-member industrial commission pursuant to divisions	681
(A), (B), (C), and (D) of section 4121.03 of the Revised Code.	682

(2) "Industrial commission" means the three-member industrial	683
commission created pursuant to section 4121.02 of the Revised Code	684
when the context refers to the authority vested in the	685
three-member industrial commission pursuant to division (E) of	686
section 4121.03 of the Revised Code.	687

(3) "Industrial commission" means the industrial commission	688
as a state agency when the context refers to the authority vested	689
in the industrial commission as a state agency.	690

Sec. 4123.01.  As used in this chapter:

691

(A)(1) "Employee" means:

692

(a) Every person in the service of the state, or of any	693
county, municipal corporation, township, or school district	694
therein, including regular members of lawfully constituted police	695
and fire departments of municipal corporations and townships,	696
whether paid or volunteer, and wherever serving within the state	697
or on temporary assignment outside thereof, and executive officers	698
of boards of education, under any appointment or contract of hire,	699
express or implied, oral or written, including any elected	700
official of the state, or of any county, municipal corporation, or	701
township, or members of boards of education.	702

As used in division (A)(1)(a) of this section, the term	703
"employee"has the same meaning as in section 4175.01 of the	704
Revised Code, except that "employee" also includes the following	705
persons when responding to an inherently dangerous situation that	706
calls for an immediate response on the part of the person,	707
regardless of whether the person is within the limits of the	708
jurisdiction of the person's regular employment or voluntary	709
service when responding, on the condition that the person responds	710
to the situation as the person otherwise would if the person were	711
on duty in the person's jurisdiction:	712

(i)(a) Off-duty peace officers. As used in division	713
(A)(1)(a)(i) of this section, "peace officer" has the same meaning	714
as in section 2935.01 of the Revised Code.	715

(ii)(b) Off-duty firefighters, whether paid or volunteer, of	716
a lawfully constituted fire department.	717

(iii)(c) Off-duty first responders, emergency medical	718
technicians-basic, emergency medical technicians-intermediate, or	719
emergency medical technicians-paramedic, whether paid or	720
volunteer, of an ambulance service organization or emergency	721
medical service organization pursuant to Chapter 4765. of the	722
Revised Code.	723

(b) Every person in the service of any person, firm, or	724
private corporation, including any public service corporation,	725
that (i) employs one or more persons regularly in the same	726
business or in or about the same establishment under any contract	727
of hire, express or implied, oral or written, including aliens and	728
minors, household workers who earn one hundred sixty dollars or	729
more in cash in any calendar quarter from a single household and	730
casual workers who earn one hundred sixty dollars or more in cash	731
in any calendar quarter from a single employer, or (ii) is bound	732
by any such contract of hire or by any other written contract, to	733
pay into the state insurance fund the premiums provided by this	734
chapter.	735

(c) Every person who performs labor or provides services	736
pursuant to a construction contract, as defined in section 4123.79	737
of the Revised Code, if at least ten of the following criteria	738
apply:	739

(i) The person is required to comply with instructions from	740
the other contracting party regarding the manner or method of	741
performing services;	742

(ii) The person is required by the other contracting party to	743
have particular training;	744

(iii) The person's services are integrated into the regular	745
functioning of the other contracting party;	746

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

747

(v) The person is hired, supervised, or paid by the other	748
contracting party;	749

(vi) A continuing relationship exists between the person and	750
the other contracting party that contemplates continuing or	751
recurring work even if the work is not full time;	752

(vii) The person's hours of work are established by the other	753
contracting party;	754

(viii) The person is required to devote full time to the	755
business of the other contracting party;	756

(ix) The person is required to perform the work on the	757
premises of the other contracting party;	758

(x) The person is required to follow the order of work set by	759
the other contracting party;	760

(xi) The person is required to make oral or written reports	761
of progress to the other contracting party;	762

(xii) The person is paid for services on a regular basis such	763
as hourly, weekly, or monthly;	764

(xiii) The person's expenses are paid for by the other	765
contracting party;	766

(xiv) The person's tools and materials are furnished by the	767
other contracting party;	768

(xv) The person is provided with the facilities used to	769
perform services;	770

(xvi) The person does not realize a profit or suffer a loss	771
as a result of the services provided;	772

(xvii) The person is not performing services for a number of	773
employers at the same time;	774

(xviii) The person does not make the same services available	775
to the general public;	776

(xix) The other contracting party has a right to discharge	777
the person;	778

(xx) The person has the right to end the relationship with	779
the other contracting party without incurring liability pursuant	780
to an employment contract or agreement.	781

Every person in the service of any independent contractor or	782
subcontractor who has failed to pay into the state insurance fund	783
the amount of premium determined and fixed by the administrator of	784
workers' compensation for the person's employment or occupation or	785
if a self-insuring employer has failed to pay compensation and	786
benefits directly to the employer's injured and to the dependents	787
of the employer's killed employees as required by section 4123.35	788
of the Revised Code, shall be considered as the employee of the	789
person who has entered into a contract, whether written or verbal,	790
with such independent contractor unless such employees or their	791
legal representatives or beneficiaries elect, after injury or	792
death, to regard such independent contractor as the employer.	793

(d) Every person to whom all of the following apply:

794

(i) The person is a resident of a state other than this state	795
and is covered by that other state's workers' compensation law;	796

(ii) The person performs labor or provides services for that	797
person's employer while temporarily within this state;	798

(iii) The laws of that other state do not include the	799
provisions described in division (H)(4) of section 4123.54 of the	800
Revised Code.	801

(2) "Employee" does not mean any of the following:

802

(a) A duly ordained, commissioned, or licensed minister or	803
assistant or associate minister of a church in the exercise of	804
ministry;	805

(b) Any officer of a family farm corporation;

806

(c) An individual incorporated as a corporation; or

807

(d) An individual who otherwise is an employee of an employer	808
but who signs the waiver and affidavit specified in section	809
4123.15 of the Revised Code on the condition that the	810
administrator of workers' compensation has granted a waiver and	811
exception to the individual's employer under section 4123.15 of	812
the Revised Code.	813

Any employer may elect to include as an "employee" within	814
this chapter, any person excluded from the definition of	815
"employee" pursuant to division (A)(2) of this section. If an	816
employer is a partnership, sole proprietorship, individual	817
incorporated as a corporation, or family farm corporation, such	818
employer may elect to include as an "employee" within this	819
chapter, any member of such partnership, the owner of the sole	820
proprietorship, the individual incorporated as a corporation, or	821
the officers of the family farm corporation. In the event of an	822
election, the employer shall serve upon the bureau of workers'	823
compensation written notice naming the persons to be covered,	824
include such employee's remuneration for premium purposes in all	825
future payroll reports, and no person excluded from the definition	826
of "employee" pursuant to division (A)(2) of this section,	827
proprietor, individual incorporated as a corporation, or partner	828
shall be deemed an employee within this division until the	829
employer has served such notice.	830

For informational purposes only, the bureau shall prescribe	831
such language as it considers appropriate, on such of its forms as	832
it considers appropriate, to advise employers of their right to	833
elect to include as an "employee" within this chapter a sole	834
proprietor, any member of a partnership, an individual	835
incorporated as a corporation, the officers of a family farm	836
corporation, or a person excluded from the definition of	837
"employee" under division (A)(2) of this section, that they should	838
check any health and disability insurance policy, or other form of	839
health and disability plan or contract, presently covering them,	840
or the purchase of which they may be considering, to determine	841
whether such policy, plan, or contract excludes benefits for	842
illness or injury that they might have elected to have covered by	843
workers' compensation.	844

(B) "Employer" means:

845

(1) The state, including state hospitals, each county,	846
municipal corporation, township, school district, and hospital	847
owned by a political subdivision or subdivisions other than the	848
state;	849

(2) Every person, firm, professional employer organization as	850
defined in section 4125.01 of the Revised Code, and private	851
corporation, including any public service corporation, that (a)	852
has in service one or more employees or shared employees regularly	853
in the same business or in or about the same establishment under	854
any contract of hire, express or implied, oral or written, or (b)	855
is bound by any such contract of hire or by any other written	856
contract, to pay into the insurance fund the premiums provided by	857
this chapter.	858

All such employers are subject to this chapter. Any member of	859
a firm or association, who regularly performs manual labor in or	860
about a mine, factory, or other establishment, including a	861
household establishment, shall be considered an employee in	862
determining whether such person, firm, or private corporation, or	863
public service corporation, has in its service, one or more	864
employees and the employer shall report the income derived from	865
such labor to the bureau as part of the payroll of such employer,	866
and such member shall thereupon be entitled to all the benefits of	867
an employee.	868

(C) "Injury" includes any injury, whether caused by external	869
accidental means or accidental in character and result, received	870
in the course of, and arising out of, the injured employee's	871
employment. "Injury" does not include:	872

(1) Psychiatric conditions except where the claimant's	873
psychiatric conditions have arisen from an injury or occupational	874
disease sustained by that claimant or where the claimant's	875
psychiatric conditions have arisen from sexual conduct in which	876
the claimant was forced by threat of physical harm to engage or	877
participate;	878

(2) Injury or disability caused primarily by the natural	879
deterioration of tissue, an organ, or part of the body;	880

(3) Injury or disability incurred in voluntary participation	881
in an employer-sponsored recreation or fitness activity if the	882
employee signs a waiver of the employee's right to compensation or	883
benefits under this chapter prior to engaging in the recreation or	884
fitness activity;	885

(4) A condition that pre-existed an injury unless that	886
pre-existing condition is substantially aggravated by the injury.	887
Such a substantial aggravation must be documented by objective	888
diagnostic findings, objective clinical findings, or objective	889
test results. Subjective complaints may be evidence of such a	890
substantial aggravation. However, subjective complaints without	891
objective diagnostic findings, objective clinical findings, or	892
objective test results are insufficient to substantiate a	893
substantial aggravation.	894

(D) "Child" includes a posthumous child and a child legally	895
adopted prior to the injury.	896

(E) "Family farm corporation" means a corporation founded for	897
the purpose of farming agricultural land in which the majority of	898
the voting stock is held by and the majority of the stockholders	899
are persons or the spouse of persons related to each other within	900
the fourth degree of kinship, according to the rules of the civil	901
law, and at least one of the related persons is residing on or	902
actively operating the farm, and none of whose stockholders are a	903
corporation. A family farm corporation does not cease to qualify	904
under this division where, by reason of any devise, bequest, or	905
the operation of the laws of descent or distribution, the	906
ownership of shares of voting stock is transferred to another	907
person, as long as that person is within the degree of kinship	908
stipulated in this division.	909

(F) "Occupational disease" means a disease contracted in the	910
course of employment, which by its causes and the characteristics	911
of its manifestation or the condition of the employment results in	912
a hazard which distinguishes the employment in character from	913
employment generally, and the employment creates a risk of	914
contracting the disease in greater degree and in a different	915
manner from the public in general.	916

(G) "Self-insuring employer" means an employer who is granted	917
the privilege of paying compensation and benefits directly under	918
section 4123.35 of the Revised Code, including a board of county	919
commissioners for the sole purpose of constructing a sports	920
facility as defined in section 307.696 of the Revised Code,	921
provided that the electors of the county in which the sports	922
facility is to be built have approved construction of a sports	923
facility by ballot election no later than November 6, 1997.	924

(H) "Public employer" means an employer as defined in	925
division (B)(1) of this section.	926

(I) "Sexual conduct" means vaginal intercourse between a male	927
and female; anal intercourse, fellatio, and cunnilingus between	928
persons regardless of gender; and, without privilege to do so, the	929
insertion, however slight, of any part of the body or any	930
instrument, apparatus, or other object into the vaginal or anal	931
cavity of another. Penetration, however slight, is sufficient to	932
complete vaginal or anal intercourse.	933

(J) "Other-states' insurer" means an insurance company that	934
is authorized to provide workers' compensation insurance coverage	935
in any of the states that permit employers to obtain insurance for	936
workers' compensation claims through insurance companies.	937

(K) "Other-states' coverage" means insurance coverage	938
purchased by an employer for workers' compensation claims that	939
arise in a state or states other than this state and that are	940
filed by the employees of the employer or those employee's	941
dependents, as applicable, in that other state or those other	942
states.	943

Sec. 4123.026. (A) The administrator of workers'	944
compensation, or a self-insuring public employer for the peace	945
officers, firefighters, and emergency medical workers employed by	946
or volunteering for that self-insuring public employer, shall pay	947
the costs of conducting post-exposure medical diagnostic services,	948
consistent with the standards of medical care existing at the time	949
of the exposure, to investigate whether an injury or occupational	950
disease was sustained by a peace officer, firefighter, or	951
emergency medical worker when coming into contact with the blood	952
or other body fluid of another person in the course of and arising	953
out of the peace officer's, firefighter's, or emergency medical	954
worker's employment, or when responding to an inherently dangerous	955
situation in the manner described in, and in accordance with the	956
conditions specified under, division (A)(1)(a) of section 4123.01	957
of the Revised Code, through any of the following means:	958

(1) Splash or spatter in the eye or mouth, including when	959
received in the course of conducting mouth-to-mouth resuscitation;	960

(2) A puncture in the skin;

961

(3) A cut in the skin or another opening in the skin such as	962
an open sore, wound, lesion, abrasion, or ulcer.	963

(B) As used in this section:

964

(1) "Peace officer" has the same meaning as in section	965
2935.01 of the Revised Code.	966

(2) "Firefighter" means a firefighter, whether paid or	967
volunteer, of a lawfully constituted fire department.	968

(3) "Emergency medical worker" means a first responder,	969
emergency medical technician-basic, emergency medical	970
technician-intermediate, or emergency medical	971
technician-paramedic, certified under Chapter 4765. of the Revised	972
Code, whether paid or volunteer.	973

Sec. 4141.01.  As used in this chapter, unless the context	974
otherwise requires:	975

(A)(1) "Employer" means the state, its instrumentalities, its	976
political subdivisions and their instrumentalities, Indian tribes,	977
and any individual or type of organization including any	978
partnership, limited liability company, association, trust,	979
estate, joint-stock company, insurance company, or corporation,	980
whether domestic or foreign, or the receiver, trustee in	981
bankruptcy, trustee, or the successor thereof, or the legal	982
representative of a deceased person who subsequent to December 31,	983
1971, or in the case of political subdivisions or their	984
instrumentalities, subsequent to December 31, 1973:	985

(a) Had in employment at least one individual, or in the case	986
of a nonprofit organization, subsequent to December 31, 1973, had	987
not less than four individuals in employment for some portion of a	988
day in each of twenty different calendar weeks, in either the	989
current or the preceding calendar year whether or not the same	990
individual was in employment in each such day; or	991

(b) Except for a nonprofit organization, had paid for service	992
in employment wages of fifteen hundred dollars or more in any	993
calendar quarter in either the current or preceding calendar year;	994
or	995

(c) Had paid, subsequent to December 31, 1977, for employment	996
in domestic service in a local college club, or local chapter of a	997
college fraternity or sorority, cash remuneration of one thousand	998
dollars or more in any calendar quarter in the current calendar	999
year or the preceding calendar year, or had paid subsequent to	1000
December 31, 1977, for employment in domestic service in a private	1001
home cash remuneration of one thousand dollars in any calendar	1002
quarter in the current calendar year or the preceding calendar	1003
year:	1004

(i) For the purposes of divisions (A)(1)(a) and (b) of this	1005
section, there shall not be taken into account any wages paid to,	1006
or employment of, an individual performing domestic service as	1007
described in this division.	1008

(ii) An employer under this division shall not be an employer	1009
with respect to wages paid for any services other than domestic	1010
service unless the employer is also found to be an employer under	1011
division (A)(1)(a), (b), or (d) of this section.	1012

(d) As a farm operator or a crew leader subsequent to	1013
December 31, 1977, had in employment individuals in agricultural	1014
labor; and	1015

(i) During any calendar quarter in the current calendar year	1016
or the preceding calendar year, paid cash remuneration of twenty	1017
thousand dollars or more for the agricultural labor; or	1018

(ii) Had at least ten individuals in employment in	1019
agricultural labor, not including agricultural workers who are	1020
aliens admitted to the United States to perform agricultural labor	1021
pursuant to sections 1184(c) and 1101(a)(15)(H) of the	1022
"Immigration and Nationality Act," 66 Stat. 163, 189, 8 U.S.C.A.	1023
1101(a)(15)(H)(ii)(a), 1184(c), for some portion of a day in each	1024
of the twenty different calendar weeks, in either the current or	1025
preceding calendar year whether or not the same individual was in	1026
employment in each day; or	1027

(e) Is not otherwise an employer as defined under division	1028
(A)(1)(a) or (b) of this section; and	1029

(i) For which, within either the current or preceding	1030
calendar year, service, except for domestic service in a private	1031
home not covered under division (A)(1)(c) of this section, is or	1032
was performed with respect to which such employer is liable for	1033
any federal tax against which credit may be taken for	1034
contributions required to be paid into a state unemployment fund;	1035

(ii) Which, as a condition for approval of this chapter for	1036
full tax credit against the tax imposed by the "Federal	1037
Unemployment Tax Act," 84 Stat. 713, 26 U.S.C.A. 3301 to 3311, is	1038
required, pursuant to such act to be an employer under this	1039
chapter; or	1040

(iii) Who became an employer by election under division	1041
(A)(4) or (5) of this section and for the duration of such	1042
election; or	1043

(f) In the case of the state, its instrumentalities, its	1044
political subdivisions, and their instrumentalities, and Indian	1045
tribes, had in employment, as defined in divisions (B)(2)(a) and	1046
(B)(2)(l) of this section, at least one individual;	1047

(g) For the purposes of division (A)(1)(a) of this section,	1048
if any week includes both the thirty-first day of December and the	1049
first day of January, the days of that week before the first day	1050
of January shall be considered one calendar week and the days	1051
beginning the first day of January another week.	1052

(2) Each individual employed to perform or to assist in	1053
performing the work of any agent or employee of an employer is	1054
employed by such employer for all the purposes of this chapter,	1055
whether such individual was hired or paid directly by such	1056
employer or by such agent or employee, provided the employer had	1057
actual or constructive knowledge of the work. All individuals	1058
performing services for an employer of any person in this state	1059
who maintains two or more establishments within this state are	1060
employed by a single employer for the purposes of this chapter.	1061

(3) An employer subject to this chapter within any calendar	1062
year is subject to this chapter during the whole of such year and	1063
during the next succeeding calendar year.	1064

(4) An employer not otherwise subject to this chapter who	1065
files with the director of job and family services a written	1066
election to become an employer subject to this chapter for not	1067
less than two calendar years shall, with the written approval of	1068
such election by the director, become an employer subject to this	1069
chapter to the same extent as all other employers as of the date	1070
stated in such approval, and shall cease to be subject to this	1071
chapter as of the first day of January of any calendar year	1072
subsequent to such two calendar years only if at least thirty days	1073
prior to such first day of January the employer has filed with the	1074
director a written notice to that effect.	1075

(5) Any employer for whom services that do not constitute	1076
employment are performed may file with the director a written	1077
election that all such services performed by individuals in the	1078
employer's employ in one or more distinct establishments or places	1079
of business shall be deemed to constitute employment for all the	1080
purposes of this chapter, for not less than two calendar years.	1081
Upon written approval of the election by the director, such	1082
services shall be deemed to constitute employment subject to this	1083
chapter from and after the date stated in such approval. Such	1084
services shall cease to be employment subject to this chapter as	1085
of the first day of January of any calendar year subsequent to	1086
such two calendar years only if at least thirty days prior to such	1087
first day of January such employer has filed with the director a	1088
written notice to that effect.	1089

(B)(1) "Employment" means service performed by an individual	1090
for remuneration under any contract of hire, written or oral,	1091
express or implied, including service performed in interstate	1092
commerce and service performed by an officer of a corporation,	1093
without regard to whether such service is executive, managerial,	1094
or manual in nature, and without regard to whether such officer is	1095
a stockholder or a member of the board of directors of the	1096
corporation, unless it is shown to the satisfaction of the	1097
director that such individual has been and will continue to be	1098
free from direction or control over the performance of such	1099
service, both under a contract of service and in fact. The	1100
director shall adopt rules to define "direction or control."	1101

(2) "Employment" includes:

1102

(a) Service performed after December 31, 1977, by an	1103
individual in the employ of the state or any of its	1104
instrumentalities, or any political subdivision thereof or any of	1105
its instrumentalities or any instrumentality of more than one of	1106
the foregoing or any instrumentality of any of the foregoing and	1107
one or more other states or political subdivisions and without	1108
regard to divisions (A)(1)(a) and (b) of this section, provided	1109
that such service is excluded from employment as defined in the	1110
"Federal Unemployment Tax Act," 53 Stat. 183, 26 U.S.C.A. 3301,	1111
3306(c)(7) and is not excluded under division (B)(3) of this	1112
section; or the services of employees covered by voluntary	1113
election, as provided under divisions (A)(4) and (5) of this	1114
section;	1115

(b) Service performed after December 31, 1971, by an	1116
individual in the employ of a religious, charitable, educational,	1117
or other organization which is excluded from the term "employment"	1118
as defined in the "Federal Unemployment Tax Act," 84 Stat. 713, 26	1119
U.S.C.A. 3301 to 3311, solely by reason of section 26 U.S.C.A.	1120
3306(c)(8) of that act and is not excluded under division (B)(3)	1121
of this section;	1122

(c) Domestic service performed after December 31, 1977, for	1123
an employer, as provided in division (A)(1)(c) of this section;	1124

(d) Agricultural labor performed after December 31, 1977, for	1125
a farm operator or a crew leader, as provided in division	1126
(A)(1)(d) of this section;	1127

(e) Service not covered under division (B)(1) of this section	1128
which is performed after December 31, 1971:	1129

(i) As an agent-driver or commission-drivera delivery driver	1130
engaged in distributing meat products, vegetable products, fruit	1131
products, bakery products, beverages other than milk, laundry, or	1132
parcels, freight, dry-cleaning services, for the individual's	1133
employer or principalsimilar products;	1134

(ii) As a traveling or city salesperson, other than as an	1135
agent-driver or commission-drivera delivery driver, engaged on a	1136
full-time basis in the solicitation on behalf of and in the	1137
transmission to the salesperson's employer or principal except for	1138
sideline sales activities on behalf of some other person of orders	1139
from wholesalers, retailers, contractors, or operators of hotels,	1140
restaurants, or other similar establishments for merchandise for	1141
resale, or supplies for use in their business operations, provided	1142
that for the purposes of division (B)(2)(e)(ii) of this section,	1143
the services shall be deemed employment if the contract of service	1144
contemplates that substantially all of the services are to be	1145
performed personally by the individual and that the individual	1146
does not have a substantial investment in facilities used in	1147
connection with the performance of the services other than in	1148
facilities for transportation, and the services are not in the	1149
nature of a single transaction that is not a part of a continuing	1150
relationship with the person for whom the services are performed.	1151

(f) An individual's entire service performed within or both	1152
within and without the state if:	1153

(i) The service is localized in this state.

1154

(ii) The service is not localized in any state, but some of	1155
the service is performed in this state and either the base of	1156
operations, or if there is no base of operations then the place	1157
from which such service is directed or controlled, is in this	1158
state or the base of operations or place from which such service	1159
is directed or controlled is not in any state in which some part	1160
of the service is performed but the individual's residence is in	1161
this state.	1162

(g) Service not covered under division (B)(2)(f)(ii) of this	1163
section and performed entirely without this state, with respect to	1164
no part of which contributions are required and paid under an	1165
unemployment compensation law of any other state, the Virgin	1166
Islands, Canada, or of the United States, if the individual	1167
performing such service is a resident of this state and the	1168
director approves the election of the employer for whom such	1169
services are performed; or, if the individual is not a resident of	1170
this state but the place from which the service is directed or	1171
controlled is in this state, the entire services of such	1172
individual shall be deemed to be employment subject to this	1173
chapter, provided service is deemed to be localized within this	1174
state if the service is performed entirely within this state or if	1175
the service is performed both within and without this state but	1176
the service performed without this state is incidental to the	1177
individual's service within the state, for example, is temporary	1178
or transitory in nature or consists of isolated transactions;	1179

(h) Service of an individual who is a citizen of the United	1180
States, performed outside the United States except in Canada after	1181
December 31, 1971, or the Virgin Islands, after December 31, 1971,	1182
and before the first day of January of the year following that in	1183
which the United States secretary of labor approves the Virgin	1184
Islands law for the first time, in the employ of an American	1185
employer, other than service which is "employment" under divisions	1186
(B)(2)(f) and (g) of this section or similar provisions of another	1187
state's law, if:	1188

(i) The employer's principal place of business in the United	1189
States is located in this state;	1190

(ii) The employer has no place of business in the United	1191
States, but the employer is an individual who is a resident of	1192
this state; or the employer is a corporation which is organized	1193
under the laws of this state, or the employer is a partnership or	1194
a trust and the number of partners or trustees who are residents	1195
of this state is greater than the number who are residents of any	1196
other state; or	1197

(iii) None of the criteria of divisions (B)(2)(f)(i) and (ii)	1198
of this section is met but the employer has elected coverage in	1199
this state or the employer having failed to elect coverage in any	1200
state, the individual has filed a claim for benefits, based on	1201
such service, under this chapter.	1202

(i) For the purposes of division (B)(2)(h) of this section,	1203
the term "American employer" means an employer who is an	1204
individual who is a resident of the United States; or a	1205
partnership, if two-thirds or more of the partners are residents	1206
of the United States; or a trust, if all of the trustees are	1207
residents of the United States; or a corporation organized under	1208
the laws of the United States or of any state, provided the term	1209
"United States" includes the states, the District of Columbia, the	1210
Commonwealth of Puerto Rico, and the Virgin Islands.	1211

(j) Notwithstanding any other provisions of divisions (B)(1)	1212
and (2) of this section, service, except for domestic service in a	1213
private home not covered under division (A)(1)(c) of this section,	1214
with respect to which a tax is required to be paid under any	1215
federal law imposing a tax against which credit may be taken for	1216
contributions required to be paid into a state unemployment fund,	1217
or service, except for domestic service in a private home not	1218
covered under division (A)(1)(c) of this section, which, as a	1219
condition for full tax credit against the tax imposed by the	1220
"Federal Unemployment Tax Act," 84 Stat. 713, 26 U.S.C.A. 3301 to	1221
3311, is required to be covered under this chapter.	1222

(k) Construction services performed by any individual under a	1223
construction contract, as defined in section 4141.39 of the	1224
Revised Code, if the director determines that the employer for	1225
whom services are performed has the right to direct or control the	1226
performance of the services and that the individuals who perform	1227
the services receive remuneration for the services performed. The	1228
director shall presume that the employer for whom services are	1229
performed has the right to direct or control the performance of	1230
the services if ten or more of the following criteria apply:	1231

(i) The employer directs or controls the manner or method by	1232
which instructions are given to the individual performing	1233
services;	1234

(ii) The employer requires particular training for the	1235
individual performing services;	1236

(iii) Services performed by the individual are integrated	1237
into the regular functioning of the employer;	1238

(iv) The employer requires that services be provided by a	1239
particular individual;	1240

(v) The employer hires, supervises, or pays the wages of the	1241
individual performing services;	1242

(vi) A continuing relationship between the employer and the	1243
individual performing services exists which contemplates	1244
continuing or recurring work, even if not full-time work;	1245

(vii) The employer requires the individual to perform	1246
services during established hours;	1247

(viii) The employer requires that the individual performing	1248
services be devoted on a full-time basis to the business of the	1249
employer;	1250

(ix) The employer requires the individual to perform services	1251
on the employer's premises;	1252

(x) The employer requires the individual performing services	1253
to follow the order of work established by the employer;	1254

(xi) The employer requires the individual performing services	1255
to make oral or written reports of progress;	1256

(xii) The employer makes payment to the individual for	1257
services on a regular basis, such as hourly, weekly, or monthly;	1258

(xiii) The employer pays expenses for the individual	1259
performing services;	1260

(xiv) The employer furnishes the tools and materials for use	1261
by the individual to perform services;	1262

(xv) The individual performing services has not invested in	1263
the facilities used to perform services;	1264

(xvi) The individual performing services does not realize a	1265
profit or suffer a loss as a result of the performance of the	1266
services;	1267

(xvii) The individual performing services is not performing	1268
services for more than two employers simultaneously;	1269

(xviii) The individual performing services does not make the	1270
services available to the general public;	1271

(xix) The employer has a right to discharge the individual	1272
performing services;	1273

(xx) The individual performing services has the right to end	1274
the individual's relationship with the employer without incurring	1275
liability pursuant to an employment contract or agreement.	1276

(l) Service performed by an individual in the employ of an	1277
Indian tribe as defined by section 4(e) of the "Indian	1278
Self-Determination and Education Assistance Act," 88 Stat. 2204	1279
(1975), 25 U.S.C.A. 450b(e), including any subdivision,	1280
subsidiary, or business enterprise wholly owned by an Indian tribe	1281
provided that the service is excluded from employment as defined	1282
in the "Federal Unemployment Tax Act," 53 Stat. 183, (1939), 26	1283
U.S.C.A. 3301 and 3306(c)(7) and is not excluded under division	1284
(B)(3) of this section.	1285

(3) "Employment" does not include the following services if	1286
they are found not subject to the "Federal Unemployment Tax Act,"	1287
84 Stat. 713 (1970), 26 U.S.C.A. 3301 to 3311, and if the services	1288
are not required to be included under division (B)(2)(j) of this	1289
section:	1290

(a) Service performed after December 31, 1977, in	1291
agricultural labor, except as provided in division (A)(1)(d) of	1292
this section;	1293

(b) Domestic service performed after December 31, 1977, in a	1294
private home, local college club, or local chapter of a college	1295
fraternity or sorority except as provided in division (A)(1)(c) of	1296
this section;	1297

(c) Service performed after December 31, 1977, for this state	1298
or a political subdivision as described in division (B)(2)(a) of	1299
this section when performed:	1300

(i) As a publicly elected official;

1301

(ii) As a member of a legislative body, or a member of the	1302
judiciary;	1303

(iii) As a military member of the Ohio national guard;

1304

(iv) As an employee, not in the classified service as defined	1305
in section 124.11 of the Revised Code, serving on a temporary	1306
basis in case of fire, storm, snow, earthquake, flood, or similar	1307
emergency;	1308

(v) In a position which, under or pursuant to law, is	1309
designated as a major nontenured policymaking or advisory	1310
position, not in the classified service of the state, or a	1311
policymaking or advisory position the performance of the duties of	1312
which ordinarily does not require more than eight hours per week.	1313

(d) In the employ of any governmental unit or instrumentality	1314
of the United States;	1315

(e) Service performed after December 31, 1971:

1316

(i) Service in the employ of an educational institution or	1317
institution of higher education, including those operated by the	1318
state or a political subdivision, if such service is performed by	1319
a student who is enrolled and is regularly attending classes at	1320
the educational institution or institution of higher education; or	1321

(ii) By an individual who is enrolled at a nonprofit or	1322
public educational institution which normally maintains a regular	1323
faculty and curriculum and normally has a regularly organized body	1324
of students in attendance at the place where its educational	1325
activities are carried on as a student in a full-time program,	1326
taken for credit at the institution, which combines academic	1327
instruction with work experience, if the service is an integral	1328
part of the program, and the institution has so certified to the	1329
employer, provided that this subdivision shall not apply to	1330
service performed in a program established for or on behalf of an	1331
employer or group of employers;	1332

(f) Service performed by an individual in the employ of the	1333
individual's son, daughter, or spouse and service performed by a	1334
child under the age of eighteen in the employ of the child's	1335
father or mother;	1336

(g) Service performed for one or more principals by an	1337
individual who is compensated on a commission basis, who in the	1338
performance of the work is master of the individual's own time and	1339
efforts, and whose remuneration is wholly dependent on the amount	1340
of effort the individual chooses to expend, and which service is	1341
not subject to the "Federal Unemployment Tax Act," 53 Stat. 183	1342
(1939), 26 U.S.C.A. 3301 to 3311. Service performed after December	1343
31, 1971:	1344

(i) By an individual for an employer as an insurance agent or	1345
as an insurance solicitor, if all this service is performed for	1346
remuneration solely by way of commission;	1347

(ii) As a home worker performing work, according to	1348
specifications furnished by the employer for whom the services are	1349
performed, on materials or goods furnished by such employer which	1350
are required to be returned to the employer or to a person	1351
designated for that purpose.	1352

(h) Service performed after December 31, 1971:

1353

(i) In the employ of a church or convention or association of	1354
churches, or in an organization which is operated primarily for	1355
religious purposes and which is operated, supervised, controlled,	1356
or principally supported by a church or convention or association	1357
of churches;	1358

(ii) By a duly ordained, commissioned, or licensed minister	1359
of a church in the exercise of the individual's ministry or by a	1360
member of a religious order in the exercise of duties required by	1361
such order; or	1362

(iii) In a facility conducted for the purpose of carrying out	1363
a program of rehabilitation for individuals whose earning capacity	1364
is impaired by age or physical or mental deficiency or injury, or	1365
providing remunerative work for individuals who because of their	1366
impaired physical or mental capacity cannot be readily absorbed in	1367
the competitive labor market, by an individual receiving such	1368
rehabilitation or remunerative work;	1369

(i) Service performed after June 30, 1939, with respect to	1370
which unemployment compensation is payable under the "Railroad	1371
Unemployment Insurance Act," 52 Stat. 1094 (1938), 45 U.S.C. 351;	1372

(j) Service performed by an individual in the employ of any	1373
organization exempt from income tax under section 501 of the	1374
"Internal Revenue Code of 1954," if the remuneration for such	1375
service does not exceed fifty dollars in any calendar quarter, or	1376
if such service is in connection with the collection of dues or	1377
premiums for a fraternal beneficial society, order, or association	1378
and is performed away from the home office or is ritualistic	1379
service in connection with any such society, order, or	1380
association;	1381

(k) Casual labor not in the course of an employer's trade or	1382
business; incidental service performed by an officer, appraiser,	1383
or member of a finance committee of a bank, building and loan	1384
association, savings and loan association, or savings association	1385
when the remuneration for such incidental service exclusive of the	1386
amount paid or allotted for directors' fees does not exceed sixty	1387
dollars per calendar quarter is casual labor;	1388

(l) Service performed in the employ of a voluntary employees'	1389
beneficial association providing for the payment of life,	1390
sickness, accident, or other benefits to the members of such	1391
association or their dependents or their designated beneficiaries,	1392
if admission to a membership in such association is limited to	1393
individuals who are officers or employees of a municipal or public	1394
corporation, of a political subdivision of the state, or of the	1395
United States and no part of the net earnings of such association	1396
inures, other than through such payments, to the benefit of any	1397
private shareholder or individual;	1398

(m) Service performed by an individual in the employ of a	1399
foreign government, including service as a consular or other	1400
officer or employee or of a nondiplomatic representative;	1401

(n) Service performed in the employ of an instrumentality	1402
wholly owned by a foreign government if the service is of a	1403
character similar to that performed in foreign countries by	1404
employees of the United States or of an instrumentality thereof	1405
and if the director finds that the secretary of state of the	1406
United States has certified to the secretary of the treasury of	1407
the United States that the foreign government, with respect to	1408
whose instrumentality exemption is claimed, grants an equivalent	1409
exemption with respect to similar service performed in the foreign	1410
country by employees of the United States and of instrumentalities	1411
thereof;	1412

(o) Service with respect to which unemployment compensation	1413
is payable under an unemployment compensation system established	1414
by an act of congress;	1415

(p) Service performed as a student nurse in the employ of a	1416
hospital or a nurses' training school by an individual who is	1417
enrolled and is regularly attending classes in a nurses' training	1418
school chartered or approved pursuant to state law, and service	1419
performed as an intern in the employ of a hospital by an	1420
individual who has completed a four years' course in a medical	1421
school chartered or approved pursuant to state law;	1422

(q) Service performed by an individual under the age of	1423
eighteen in the delivery or distribution of newspapers or shopping	1424
news, not including delivery or distribution to any point for	1425
subsequent delivery or distribution;	1426

(r) Service performed in the employ of the United States or	1427
an instrumentality of the United States immune under the	1428
Constitution of the United States from the contributions imposed	1429
by this chapter, except that to the extent that congress permits	1430
states to require any instrumentalities of the United States to	1431
make payments into an unemployment fund under a state unemployment	1432
compensation act, this chapter shall be applicable to such	1433
instrumentalities and to services performed for such	1434
instrumentalities in the same manner, to the same extent, and on	1435
the same terms as to all other employers, individuals, and	1436
services, provided that if this state is not certified for any	1437
year by the proper agency of the United States under section 3304	1438
of the "Internal Revenue Code of 1954," the payments required of	1439
such instrumentalities with respect to such year shall be refunded	1440
by the director from the fund in the same manner and within the	1441
same period as is provided in division (E) of section 4141.09 of	1442
the Revised Code with respect to contributions erroneously	1443
collected;	1444

(s) Service performed by an individual as a member of a band	1445
or orchestra, provided such service does not represent the	1446
principal occupation of such individual, and which service is not	1447
subject to or required to be covered for full tax credit against	1448
the tax imposed by the "Federal Unemployment Tax Act," 53 Stat.	1449
183 (1939), 26 U.S.C.A. 3301 to 3311.	1450

(t) Service performed in the employ of a day camp whose	1451
camping season does not exceed twelve weeks in any calendar year,	1452
and which service is not subject to the "Federal Unemployment Tax	1453
Act," 53 Stat. 183 (1939), 26 U.S.C.A. 3301 to 3311. Service	1454
performed after December 31, 1971:	1455

(i) In the employ of a hospital, if the service is performed	1456
by a patient of the hospital, as defined in division (W) of this	1457
section;	1458

(ii) For a prison or other correctional institution by an	1459
inmate of the prison or correctional institution;	1460

(iii) Service performed after December 31, 1977, by an inmate	1461
of a custodial institution operated by the state, a political	1462
subdivision, or a nonprofit organization.	1463

(u) Service that is performed by a nonresident alien	1464
individual for the period the individual temporarily is present in	1465
the United States as a nonimmigrant under division (F), (J), (M),	1466
or (Q) of section 101(a)(15) of the "Immigration and Nationality	1467
Act," 66 Stat. 163, 8 U.S.C.A. 1101, as amended, that is excluded	1468
under section 3306(c)(19) of the "Federal Unemployment Tax Act,"	1469
53 Stat. 183 (1939), 26 U.S.C.A. 3301 to 3311.	1470

(v) Notwithstanding any other provisions of division (B)(3)	1471
of this section, services that are excluded under divisions	1472
(B)(3)(g), (j), (k), and (l) of this section shall not be excluded	1473
from employment when performed for a nonprofit organization, as	1474
defined in division (X) of this section, or for this state or its	1475
instrumentalities, or for a political subdivision or its	1476
instrumentalities or for Indian tribes;	1477

(w) Service that is performed by an individual working as an	1478
election official or election worker if the amount of remuneration	1479
received by the individual during the calendar year for services	1480
as an election official or election worker is less than one	1481
thousand dollars;	1482

(x) Service performed for an elementary or secondary school	1483
that is operated primarily for religious purposes, that is	1484
described in subsection 501(c)(3) and exempt from federal income	1485
taxation under subsection 501(a) of the Internal Revenue Code, 26	1486
U.S.C.A. 501;	1487

(y) Service performed by a person committed to a penal	1488
institution.	1489

(z) Service performed for an Indian tribe as described in	1490
division (B)(2)(l) of this section when performed in any of the	1491
following manners:	1492

(i) As a publicly elected official;

1493

(ii) As a member of an Indian tribal council;

1494

(iii) As a member of a legislative or judiciary body;

1495

(iv) In a position which, pursuant to Indian tribal law, is	1496
designated as a major nontenured policymaking or advisory	1497
position, or a policymaking or advisory position where the	1498
performance of the duties ordinarily does not require more than	1499
eight hours of time per week;	1500

(v) As an employee serving on a temporary basis in the case	1501
of a fire, storm, snow, earthquake, flood, or similar emergency.	1502

(aa) Service performed after December 31, 1971, for a	1503
nonprofit organization, this state or its instrumentalities, a	1504
political subdivision or its instrumentalities, or an Indian tribe	1505
as part of an unemployment work-relief or work-training program	1506
assisted or financed in whole or in part by any federal agency or	1507
an agency of a state or political subdivision, thereof, by an	1508
individual receiving the work-relief or work-training.	1509

(4) If the services performed during one half or more of any	1510
pay period by an employee for the person employing that employee	1511
constitute employment, all the services of such employee for such	1512
period shall be deemed to be employment; but if the services	1513
performed during more than one half of any such pay period by an	1514
employee for the person employing that employee do not constitute	1515
employment, then none of the services of such employee for such	1516
period shall be deemed to be employment. As used in division	1517
(B)(4) of this section, "pay period" means a period, of not more	1518
than thirty-one consecutive days, for which payment of	1519
remuneration is ordinarily made to the employee by the person	1520
employing that employee. Division (B)(4) of this section does not	1521
apply to services performed in a pay period by an employee for the	1522
person employing that employee, if any of such service is excepted	1523
by division (B)(3)(o) of this section.	1524

(C) "Benefits" means money payments payable to an individual	1525
who has established benefit rights, as provided in this chapter,	1526
for loss of remuneration due to the individual's unemployment.	1527

(D) "Benefit rights" means the weekly benefit amount and the	1528
maximum benefit amount that may become payable to an individual	1529
within the individual's benefit year as determined by the	1530
director.	1531

(E) "Claim for benefits" means a claim for waiting period or	1532
benefits for a designated week.	1533

(F) "Additional claim" means the first claim for benefits	1534
filed following any separation from employment during a benefit	1535
year; "continued claim" means any claim other than the first claim	1536
for benefits and other than an additional claim.	1537

(G)(1) "Wages" means remuneration paid to an employee by each	1538
of the employee's employers with respect to employment; except	1539
that wages shall not include that part of remuneration paid during	1540
any calendar year to an individual by an employer or such	1541
employer's predecessor in interest in the same business or	1542
enterprise, which in any calendar year is in excess of eight	1543
thousand two hundred fifty dollars on and after January 1, 1992;	1544
eight thousand five hundred dollars on and after January 1, 1993;	1545
eight thousand seven hundred fifty dollars on and after January 1,	1546
1994; and nine thousand dollars on and after January 1, 1995.	1547
Remuneration in excess of such amounts shall be deemed wages	1548
subject to contribution to the same extent that such remuneration	1549
is defined as wages under the "Federal Unemployment Tax Act," 84	1550
Stat. 714 (1970), 26 U.S.C.A. 3301 to 3311, as amended. The	1551
remuneration paid an employee by an employer with respect to	1552
employment in another state, upon which contributions were	1553
required and paid by such employer under the unemployment	1554
compensation act of such other state, shall be included as a part	1555
of remuneration in computing the amount specified in this	1556
division.	1557

(2) Notwithstanding division (G)(1) of this section, if, as	1558
of the computation date for any calendar year, the director	1559
determines that the level of the unemployment compensation fund is	1560
sixty per cent or more below the minimum safe level as defined in	1561
section 4141.25 of the Revised Code, then, effective the first day	1562
of January of the following calendar year, wages subject to this	1563
chapter shall not include that part of remuneration paid during	1564
any calendar year to an individual by an employer or such	1565
employer's predecessor in interest in the same business or	1566
enterprise which is in excess of nine thousand dollars. The	1567
increase in the dollar amount of wages subject to this chapter	1568
under this division shall remain in effect from the date of the	1569
director's determination pursuant to division (G)(2) of this	1570
section and thereafter notwithstanding the fact that the level in	1571
the fund may subsequently become less than sixty per cent below	1572
the minimum safe level.	1573

(H)(1) "Remuneration" means all compensation for personal	1574
services, including commissions and bonuses and the cash value of	1575
all compensation in any medium other than cash, except that in the	1576
case of agricultural or domestic service, "remuneration" includes	1577
only cash remuneration. Gratuities customarily received by an	1578
individual in the course of the individual's employment from	1579
persons other than the individual's employer and which are	1580
accounted for by such individual to the individual's employer are	1581
taxable wages.	1582

The reasonable cash value of compensation paid in any medium	1583
other than cash shall be estimated and determined in accordance	1584
with rules prescribed by the director, provided that	1585
"remuneration" does not include:	1586

(a) Payments as provided in divisions (b)(2) to (b)(16) of	1587
section 3306 of the "Federal Unemployment Tax Act," 84 Stat. 713,	1588
26 U.S.C.A. 3301 to 3311, as amended;	1589

(b) The payment by an employer, without deduction from the	1590
remuneration of the individual in the employer's employ, of the	1591
tax imposed upon an individual in the employer's employ under	1592
section 3101 of the "Internal Revenue Code of 1954," with respect	1593
to services performed after October 1, 1941.	1594

(2) "Cash remuneration" means all remuneration paid in cash,	1595
including commissions and bonuses, but not including the cash	1596
value of all compensation in any medium other than cash.	1597

(I) "Interested party" means the director and any party to	1598
whom notice of a determination of an application for benefit	1599
rights or a claim for benefits is required to be given under	1600
section 4141.28 of the Revised Code.	1601

(J) "Annual payroll" means the total amount of wages subject	1602
to contributions during a twelve-month period ending with the last	1603
day of the second calendar quarter of any calendar year.	1604

(K) "Average annual payroll" means the average of the last	1605
three annual payrolls of an employer, provided that if, as of any	1606
computation date, the employer has had less than three annual	1607
payrolls in such three-year period, such average shall be based on	1608
the annual payrolls which the employer has had as of such date.	1609

(L)(1) "Contributions" means the money payments to the state	1610
unemployment compensation fund required of employers by section	1611
4141.25 of the Revised Code and of the state and any of its	1612
political subdivisions electing to pay contributions under section	1613
4141.242 of the Revised Code. Employers paying contributions shall	1614
be described as "contributory employers."	1615

(2) "Payments in lieu of contributions" means the money	1616
payments to the state unemployment compensation fund required of	1617
reimbursing employers under sections 4141.241 and 4141.242 of the	1618
Revised Code.	1619

(M) An individual is "totally unemployed" in any week during	1620
which the individual performs no services and with respect to such	1621
week no remuneration is payable to the individual.	1622

(N) An individual is "partially unemployed" in any week if,	1623
due to involuntary loss of work, the total remuneration payable to	1624
the individual for such week is less than the individual's weekly	1625
benefit amount.	1626

(O) "Week" means the calendar week ending at midnight	1627
Saturday unless an equivalent week of seven consecutive calendar	1628
days is prescribed by the director.	1629

(1) "Qualifying week" means any calendar week in an	1630
individual's base period with respect to which the individual	1631
earns or is paid remuneration in employment subject to this	1632
chapter. A calendar week with respect to which an individual earns	1633
remuneration but for which payment was not made within the base	1634
period, when necessary to qualify for benefit rights, may be	1635
considered to be a qualifying week. The number of qualifying weeks	1636
which may be established in a calendar quarter shall not exceed	1637
the number of calendar weeks in the quarter.	1638

(2) "Average weekly wage" means the amount obtained by	1639
dividing an individual's total remuneration for all qualifying	1640
weeks during the base period by the number of such qualifying	1641
weeks, provided that if the computation results in an amount that	1642
is not a multiple of one dollar, such amount shall be rounded to	1643
the next lower multiple of one dollar.	1644

(P) "Weekly benefit amount" means the amount of benefits an	1645
individual would be entitled to receive for one week of total	1646
unemployment.	1647

(Q)(1) "Base period" means the first four of the last five	1648
completed calendar quarters immediately preceding the first day of	1649
an individual's benefit year, except as provided in division	1650
(Q)(2) of this section.	1651

(2) If an individual does not have sufficient qualifying	1652
weeks and wages in the base period to qualify for benefit rights,	1653
the individual's base period shall be the four most recently	1654
completed calendar quarters preceding the first day of the	1655
individual's benefit year. Such base period shall be known as the	1656
"alternate base period." If information as to weeks and wages for	1657
the most recent quarter of the alternate base period is not	1658
available to the director from the regular quarterly reports of	1659
wage information, which are systematically accessible, the	1660
director may, consistent with the provisions of section 4141.28 of	1661
the Revised Code, base the determination of eligibility for	1662
benefits on the affidavit of the claimant with respect to weeks	1663
and wages for that calendar quarter. The claimant shall furnish	1664
payroll documentation, where available, in support of the	1665
affidavit. The determination based upon the alternate base period	1666
as it relates to the claimant's benefit rights, shall be amended	1667
when the quarterly report of wage information from the employer is	1668
timely received and that information causes a change in the	1669
determination. As provided in division (B) of section 4141.28 of	1670
the Revised Code, any benefits paid and charged to an employer's	1671
account, based upon a claimant's affidavit, shall be adjusted	1672
effective as of the beginning of the claimant's benefit year. No	1673
calendar quarter in a base period or alternate base period shall	1674
be used to establish a subsequent benefit year.	1675

(3) The "base period" of a combined wage claim, as described	1676
in division (H) of section 4141.43 of the Revised Code, shall be	1677
the base period prescribed by the law of the state in which the	1678
claim is allowed.	1679

(4) For purposes of determining the weeks that comprise a	1680
completed calendar quarter under this division, only those weeks	1681
ending at midnight Saturday within the calendar quarter shall be	1682
utilized.	1683

(R)(1) "Benefit year" with respect to an individual means the	1684
fifty-two week period beginning with the first day of that week	1685
with respect to which the individual first files a valid	1686
application for determination of benefit rights, and thereafter	1687
the fifty-two week period beginning with the first day of that	1688
week with respect to which the individual next files a valid	1689
application for determination of benefit rights after the	1690
termination of the individual's last preceding benefit year,	1691
except that the application shall not be considered valid unless	1692
the individual has had employment in six weeks that is subject to	1693
this chapter or the unemployment compensation act of another	1694
state, or the United States, and has, since the beginning of the	1695
individual's previous benefit year, in the employment earned three	1696
times the average weekly wage determined for the previous benefit	1697
year. The "benefit year" of a combined wage claim, as described in	1698
division (H) of section 4141.43 of the Revised Code, shall be the	1699
benefit year prescribed by the law of the state in which the claim	1700
is allowed. Any application for determination of benefit rights	1701
made in accordance with section 4141.28 of the Revised Code is	1702
valid if the individual filing such application is unemployed, has	1703
been employed by an employer or employers subject to this chapter	1704
in at least twenty qualifying weeks within the individual's base	1705
period, and has earned or been paid remuneration at an average	1706
weekly wage of not less than twenty-seven and one-half per cent of	1707
the statewide average weekly wage for such weeks. For purposes of	1708
determining whether an individual has had sufficient employment	1709
since the beginning of the individual's previous benefit year to	1710
file a valid application, "employment" means the performance of	1711
services for which remuneration is payable.	1712

(2) Effective for benefit years beginning on and after	1713
December 26, 2004, any application for determination of benefit	1714
rights made in accordance with section 4141.28 of the Revised Code	1715
is valid if the individual satisfies the criteria described in	1716
division (R)(1) of this section, and if the reason for the	1717
individual's separation from employment is not disqualifying	1718
pursuant to division (D)(2) of section 4141.29 or section 4141.291	1719
of the Revised Code. A disqualification imposed pursuant to	1720
division (D)(2) of section 4141.29 or section 4141.291 of the	1721
Revised Code must be removed as provided in those sections as a	1722
requirement of establishing a valid application for benefit years	1723
beginning on and after December 26, 2004.	1724

(3) The statewide average weekly wage shall be calculated by	1725
the director once a year based on the twelve-month period ending	1726
the thirtieth day of June, as set forth in division (B)(3) of	1727
section 4141.30 of the Revised Code, rounded down to the nearest	1728
dollar. Increases or decreases in the amount of remuneration	1729
required to have been earned or paid in order for individuals to	1730
have filed valid applications shall become effective on Sunday of	1731
the calendar week in which the first day of January occurs that	1732
follows the twelve-month period ending the thirtieth day of June	1733
upon which the calculation of the statewide average weekly wage	1734
was based.	1735

(4) As used in this division, an individual is "unemployed"	1736
if, with respect to the calendar week in which such application is	1737
filed, the individual is "partially unemployed" or "totally	1738
unemployed" as defined in this section or if, prior to filing the	1739
application, the individual was separated from the individual's	1740
most recent work for any reason which terminated the individual's	1741
employee-employer relationship, or was laid off indefinitely or	1742
for a definite period of seven or more days.	1743

(S) "Calendar quarter" means the period of three consecutive	1744
calendar months ending on the thirty-first day of March, the	1745
thirtieth day of June, the thirtieth day of September, and the	1746
thirty-first day of December, or the equivalent thereof as the	1747
director prescribes by rule.	1748

(T) "Computation date" means the first day of the third	1749
calendar quarter of any calendar year.	1750

(U) "Contribution period" means the calendar year beginning	1751
on the first day of January of any year.	1752

(V) "Agricultural labor," for the purpose of this division,	1753
means any service performed prior to January 1, 1972, which was	1754
agricultural labor as defined in this division prior to that date,	1755
and service performed after December 31, 1971:	1756

(1) On a farm, in the employ of any person, in connection	1757
with cultivating the soil, or in connection with raising or	1758
harvesting any agricultural or horticultural commodity, including	1759
the raising, shearing, feeding, caring for, training, and	1760
management of livestock, bees, poultry, and fur-bearing animals	1761
and wildlife;	1762

(2) In the employ of the owner or tenant or other operator of	1763
a farm in connection with the operation, management, conservation,	1764
improvement, or maintenance of such farm and its tools and	1765
equipment, or in salvaging timber or clearing land of brush and	1766
other debris left by hurricane, if the major part of such service	1767
is performed on a farm;	1768

(3) In connection with the production or harvesting of any	1769
commodity defined as an agricultural commodity in section 15 (g)	1770
of the "Agricultural Marketing Act," 46 Stat. 1550 (1931), 12	1771
U.S.C. 1141j, as amended, or in connection with the ginning of	1772
cotton, or in connection with the operation or maintenance of	1773
ditches, canals, reservoirs, or waterways, not owned or operated	1774
for profit, used exclusively for supplying and storing water for	1775
farming purposes;	1776

(4) In the employ of the operator of a farm in handling,	1777
planting, drying, packing, packaging, processing, freezing,	1778
grading, storing, or delivering to storage or to market or to a	1779
carrier for transportation to market, in its unmanufactured state,	1780
any agricultural or horticultural commodity, but only if the	1781
operator produced more than one half of the commodity with respect	1782
to which such service is performed;	1783

(5) In the employ of a group of operators of farms, or a	1784
cooperative organization of which the operators are members, in	1785
the performance of service described in division (V)(4) of this	1786
section, but only if the operators produced more than one-half of	1787
the commodity with respect to which the service is performed;	1788

(6) Divisions (V)(4) and (5) of this section shall not be	1789
deemed to be applicable with respect to service performed:	1790

(a) In connection with commercial canning or commercial	1791
freezing or in connection with any agricultural or horticultural	1792
commodity after its delivery to a terminal market for distribution	1793
for consumption; or	1794

(b) On a farm operated for profit if the service is not in	1795
the course of the employer's trade or business.	1796

As used in division (V) of this section, "farm" includes	1797
stock, dairy, poultry, fruit, fur-bearing animal, and truck farms,	1798
plantations, ranches, nurseries, ranges, greenhouses, or other	1799
similar structures used primarily for the raising of agricultural	1800
or horticultural commodities and orchards.	1801

(W) "Hospital" means an institution which has been registered	1802
or licensed by the Ohio department of health as a hospital.	1803

(X) "Nonprofit organization" means an organization, or group	1804
of organizations, described in section 501(c)(3) of the "Internal	1805
Revenue Code of 1954," and exempt from income tax under section	1806
501(a) of that code.	1807

(Y) "Institution of higher education" means a public or	1808
nonprofit educational institution, including an educational	1809
institution operated by an Indian tribe, which:	1810

(1) Admits as regular students only individuals having a	1811
certificate of graduation from a high school, or the recognized	1812
equivalent;	1813

(2) Is legally authorized in this state or by the Indian	1814
tribe to provide a program of education beyond high school; and	1815

(3) Provides an educational program for which it awards a	1816
bachelor's or higher degree, or provides a program which is	1817
acceptable for full credit toward such a degree, a program of	1818
post-graduate or post-doctoral studies, or a program of training	1819
to prepare students for gainful employment in a recognized	1820
occupation.	1821

For the purposes of this division, all colleges and	1822
universities in this state are institutions of higher education.	1823

(Z) For the purposes of this chapter, "states" includes the	1824
District of Columbia, the Commonwealth of Puerto Rico, and the	1825
Virgin Islands.	1826

(AA) "Alien" means, for the purposes of division (A)(1)(d) of	1827
this section, an individual who is an alien admitted to the United	1828
States to perform service in agricultural labor pursuant to	1829
sections 214 (c) and 101 (a)(15)(H) of the "Immigration and	1830
Nationality Act," 66 Stat. 163, 8 U.S.C.A. 1101.	1831

(BB)(1) "Crew leader" means an individual who furnishes	1832
individuals to perform agricultural labor for any other employer	1833
or farm operator, and:	1834

(a) Pays, either on the individual's own behalf or on behalf	1835
of the other employer or farm operator, the individuals so	1836
furnished by the individual for the service in agricultural labor	1837
performed by them;	1838

(b) Has not entered into a written agreement with the other	1839
employer or farm operator under which the agricultural worker is	1840
designated as in the employ of the other employer or farm	1841
operator.	1842

(2) For the purposes of this chapter, any individual who is a	1843
member of a crew furnished by a crew leader to perform service in	1844
agricultural labor for any other employer or farm operator shall	1845
be treated as an employee of the crew leader if:	1846

(a) The crew leader holds a valid certificate of registration	1847
under the "Farm Labor Contractor Registration Act of 1963," 90	1848
Stat. 2668, 7 U.S.C. 2041; or	1849

(b) Substantially all the members of the crew operate or	1850
maintain tractors, mechanized harvesting or crop-dusting	1851
equipment, or any other mechanized equipment, which is provided by	1852
the crew leader; and	1853

(c) If the individual is not in the employment of the other	1854
employer or farm operator within the meaning of division (B)(1) of	1855
this section.	1856

(3) For the purposes of this division, any individual who is	1857
furnished by a crew leader to perform service in agricultural	1858
labor for any other employer or farm operator and who is not	1859
treated as in the employment of the crew leader under division	1860
(BB)(2) of this section shall be treated as the employee of the	1861
other employer or farm operator and not of the crew leader. The	1862
other employer or farm operator shall be treated as having paid	1863
cash remuneration to the individual in an amount equal to the	1864
amount of cash remuneration paid to the individual by the crew	1865
leader, either on the crew leader's own behalf or on behalf of the	1866
other employer or farm operator, for the service in agricultural	1867
labor performed for the other employer or farm operator.	1868

(CC) "Educational institution" means an institution other	1869
than an institution of higher education as defined in division (Y)	1870
of this section, including an educational institution operated by	1871
an Indian tribe, which:	1872

(1) Offers participants, trainees, or students an organized	1873
course of study or training designed to transfer to them	1874
knowledge, skills, information, doctrines, attitudes, or abilities	1875
from, by, or under the guidance of an instructor or teacher; and	1876

(2) Is approved, chartered, or issued a permit to operate as	1877
a school by the state board of education, other government agency,	1878
or Indian tribe that is authorized within the state to approve,	1879
charter, or issue a permit for the operation of a school.	1880

For the purposes of this division, the courses of study or	1881
training which the institution offers may be academic, technical,	1882
trade, or preparation for gainful employment in a recognized	1883
occupation.	1884

(DD) "Cost savings day" means any unpaid day off from work in	1885
which employees continue to accrue employee benefits which have a	1886
determinable value including, but not limited to, vacation,	1887
pension contribution, sick time, and life and health insurance.	1888

(EE) "Employee" has the same meaning as in section 4175.01 of	1889
the Revised Code, unless the services performed by the individual	1890
do not constitute "employment" as defined in division (B) of this	1891
section.	1892

Sec. 4175.01.  As used in this chapter:

1893

(A) "Aggrieved party" means any of the following entities	1894
that believes that the entity has been injured by an employer's	1895
alleged violation of section 4175.02 of the Revised Code:	1896

(1) An employee;

1897

(2) An employer association;

1898

(3) An interested party;

1899

(4) A labor organization.

1900

(B) "Construction" means any constructing, altering,	1901
reconstructing, repairing, rehabilitating, refinishing,	1902
refurbishing, remodeling, remediating, renovating, custom	1903
fabricating, maintenance, landscaping, improving, wrecking,	1904
painting, decorating, demolishing, and adding to or subtracting	1905
from any building, structure, highway, roadway, street, bridge,	1906
alley, sewer, ditch, sewage disposal plant, water works, parking	1907
facility, railroad, excavation, or other structure, project,	1908
development, real property or improvement, or to do any part	1909
thereof, regardless of whether the performance of the work	1910
involves the addition to or fabrication of any material or article	1911
of merchandise into any structure, project, development, real	1912
property, or improvement. "Construction" includes moving	1913
construction-related materials to the job site and removing	1914
construction-related materials from the job site.	1915

(C) "Contractor" means any sole proprietorship, partnership,	1916
firm, corporation, limited liability company, association, or	1917
other entity permitted by law to do business within this state	1918
that engages in construction. "Contractor" does not include either	1919
of the following:	1920

(1) The state or its officers, agencies, or political	1921
subdivisions;	1922

(2) The federal government.

1923

(D)(1) "Employee" means an individual who performs services	1924
for compensation for an employer.	1925

(2) "Employee" does not mean an individual who performs	1926
services for an employer and to whom all of the following	1927
conditions apply:	1928

(a) The individual has been and continues to be free from	1929
control and direction in connection with the performance of the	1930
service.	1931

(b) The individual customarily is engaged in an independently	1932
established trade, occupation, profession, or business of the same	1933
nature of the trade, occupation, profession, or business involved	1934
in the service performed.	1935

(c) The individual is a separate and distinct business entity	1936
from the entity for which the service is being performed or if the	1937
individual is providing construction services and is a sole	1938
proprietorship or a partner in a partnership, the individual is a	1939
legitimate sole proprietorship or a partner in a legitimate	1940
partnership to which section 4175.04 of the Revised Code applies,	1941
as applicable.	1942

(d) The individual incurs the main expenses and has	1943
continuing or recurring business liabilities related to the	1944
service performed.	1945

(e) The individual is liable for breach of contract for	1946
failure to complete the service.	1947

(f) An agreement, written or oral, express or implied, exists	1948
describing the service to be performed, the payment the individual	1949
will receive for performance of the service, and the time frame	1950
for completion of the service.	1951

(g) The service performed by the individual is outside of the	1952
usual course of business of the employer.	1953

(E) "Employer" means any person, the state, any agency or	1954
instrumentality of the state, and any municipal corporation,	1955
county, township, school district, or other political subdivision	1956
or any agency or instrumentality thereof that engages an	1957
individual to perform services.	1958

(F) "Interested party" means any of the following entities:

1959

(1) Any contractor who submits a bid for the purpose of	1960
securing the award of a contract for construction of a public	1961
improvement as that term is defined in section 4115.03 of the	1962
Revised Code;	1963

(2) Any person acting as a subcontractor of a contractor	1964
described in division (F)(1) of this section;	1965

(3) Any bona fide labor organization that has as members or	1966
is authorized to represent employees of a person described in	1967
division (F)(1) or (2) of this section;	1968

(4) Any association having as members any of the persons	1969
described in division (F)(1) or (2) of this section.	1970

(G) "Labor organization" has the same meaning as in section	1971
3517.01 of the Revised Code.	1972

(H) "State agency" has the same meaning as in section 1.60 of	1973
the Revised Code.	1974

(I) "Subcontractor" means any person who undertakes to	1975
perform construction services under a contract with any individual	1976
other than the owner, part owner, or lessee.	1977

Sec. 4175.02.  (A) No employer shall fail to designate an	1978
individual who performs services for the employer as an employee	1979
unless the conditions described in division (D)(2) of section	1980
4175.01 of the Revised Code apply to that individual. The director	1981
of commerce shall not use an employer's failure to withhold	1982
federal or state income taxes with respect to an individual or to	1983
include remuneration paid to an individual for purposes of section	1984
4123.26 or 4141.20 of the Revised Code when making a determination	1985
as to whether the employer violated this division. The director	1986
shall not use an individual's election to obtain workers'	1987
compensation coverage as a sole proprietor or a partnership in	1988
making a determination as to whether the individual has violated	1989
this division. The burden of proof is on the party asserting that	1990
an individual is not an employee.	1991

(B) No employer shall retaliate through discharge, or in any	1992
other manner, against any individual for exercising any rights	1993
granted under this chapter.	1994

(C) No employer shall retaliate against an individual if the	1995
individual does any of the following:	1996

(1) Makes a complaint to an employer, coworker, community	1997
organization, or to a federal or state agency or at a public	1998
hearing, stating that provisions of this chapter allegedly have	1999
been violated;	2000

(2) Causes to be instituted any proceeding under or related	2001
to this chapter;	2002

(3) Testifies or prepares to testify in an investigation or	2003
proceeding under this chapter;	2004

(4) Opposes misclassification.

2005

(D) No employer shall attempt to cause or cause an individual	2006
to waive the provisions of this chapter or to enter into a	2007
predispute waiver.	2008

(E) No employer shall violate a rule adopted by the director	2009
pursuant to section 4175.06 of the Revised Code.	2010

(F) No person shall require or request an individual to enter	2011
into an agreement or sign a document that results in the	2012
misclassification of the individual as an independent contractor	2013
or otherwise does not accurately reflect the individual's	2014
relationship with an employer.	2015

Sec. 4175.03. This chapter shall apply only to determinations	2016
as to whether an individual is an employer for purposes of section	2017
4111.02, 4111.14, 4113.15, or 4115.03 of the Revised Code or	2018
Chapter 4121., 4123., 4141., or 5747. of the Revised Code. Nothing	2019
in this chapter shall be construed as to limit the application of	2020
any other remedies available at law or in equity.	2021

Sec. 4175.04. An employer and the director of commerce shall	2022
consider a sole proprietorship or partnership that performs	2023
construction services for the employer to be a legitimate sole	2024
proprietorship or a legitimate partnership if the employer	2025
demonstrates all of the following:	2026

(A) The sole proprietorship or partnership performs the	2027
construction service free from the direction or control of the	2028
employer over the means and manner of providing the service,	2029
subject only to the right of the employer for whom the service is	2030
provided to specify the desired result.	2031

(B) The sole proprietorship or partnership is not subject to	2032
cancellation or destruction upon severance of the relationship	2033
with the employer.	2034

(C) The owner of the sole proprietorship or the partners in	2035
the partnership have a substantial investment of capital in the	2036
sole proprietorship or partnership beyond ordinary tools and	2037
equipment and a personal vehicle.	2038

(D) The sole proprietorship or partnership owns the capital	2039
goods, gains the profits, and bears the losses of the sole	2040
proprietorship or partnership.	2041

(E) The sole proprietorship or partnership makes its	2042
construction services available to the general public or the	2043
business community on a continuing basis.	2044

(F) The sole proprietorship or partnership reported a profit	2045
or loss or earnings from self-employment on the sole	2046
proprietorship or partnership's federal income tax schedule.	2047

(G) The sole proprietorship or partnership performs	2048
construction services for the employer under the name of the sole	2049
proprietorship or partnership.	2050

(H) If the construction services the sole proprietorship or	2051
partnership provides to the employer require a license or permit	2052
in order to provide those services, the sole proprietorship or	2053
partnership obtains the appropriate license or permit in the name	2054
of the sole proprietorship or partnership name and directly pays	2055
for the appropriate license or permit.	2056

(I) The sole proprietorship or partnership furnishes the	2057
tools and equipment necessary for the sole proprietorship or	2058
partnership to provide the construction service for the employer.	2059

(J) If necessary, the sole proprietorship or partnership	2060
hires its own employees without obtaining approval from the	2061
employer, pays those employees without direct reimbursement from	2062
the employer, and reports the employees' income to the internal	2063
revenue service.	2064

(K) The employer does not represent the sole proprietorship	2065
or the partners of the partnership as an employee of the employer	2066
to the employer's customers.	2067

(L) The sole proprietorship or partnership performs similar	2068
construction services for others on whatever basis and whenever	2069
the sole proprietorship or partnership chooses.	2070

If the director of commerce, using the factors listed in this	2071
section, determines that a sole proprietorship or partnership	2072
performing construction services for an employer is not a	2073
legitimate sole proprietorship or a legitimate partnership, the	2074
director shall consider the owner of the sole proprietorship, each	2075
partner of the partnership, and each of the employees of the sole	2076
proprietorship or partnership, as applicable, as an employee of	2077
the employer for the purposes of this chapter.	2078

Sec. 4175.05. The provisions of this chapter apply to all	2079
subcontractors or lower tier subcontractors.	2080

A contractor is liable under this chapter for the failure of	2081
any subcontractor or lower tier subcontractor to properly classify	2082
individuals performing services related to construction as	2083
employees. A subcontractor is liable under this chapter for the	2084
failure of any lower tier subcontractor to properly classify	2085
individuals performing services related to construction as	2086
employees.	2087

Sec. 4175.06.  The director of commerce shall enforce this	2088
chapter. The director shall hire as many investigators and other	2089
personnel as the director determines are necessary to administer	2090
and enforce this chapter. The director may adopt reasonable rules	2091
in accordance with Chapter 119. of the Revised Code to implement	2092
and administer this chapter.	2093

Sec. 4175.07.  Any aggrieved party may file a complaint with	2094
the director of commerce against an employer if the aggrieved	2095
party reasonably believes that the employer is in violation of	2096
section 4175.02 of the Revised Code. The director shall conduct	2097
investigations in connection with the administration and	2098
enforcement of this chapter. Any investigator employed by the	2099
division of labor within the department of commerce is authorized	2100
to visit and inspect, at all reasonable times, all of the offices	2101
and job sites maintained by the employer who is the subject of the	2102
complaint, and is authorized to inspect and audit, at all	2103
reasonable times, all documents necessary to determine whether an	2104
individual performing services for the employer is an employee.	2105
The director may compel, by subpoena, the attendance and testimony	2106
of witnesses and the production of books, payrolls, records,	2107
papers, and other evidence in any investigation, and may	2108
administer oaths to witnesses. Upon completion of an investigation	2109
under this section, the investigator shall submit the results of	2110
the investigator's investigation to the superintendent of labor.	2111

Sec. 4175.08.  If, after receiving the results of an	2112
investigation conducted pursuant to section 4175.07 of the Revised	2113
Code, the superintendent of labor determines that reasonable	2114
evidence exists that an employer has violated section 4175.02 of	2115
the Revised Code, the superintendent shall send a written notice	2116
to the director of commerce informing the director of the	2117
superintendent's determination.	2118

Within seven days after the director receives a written	2119
report from the superintendent, the director shall send a written	2120
notice to the employer who is the subject of the investigation in	2121
the same manner as prescribed in section 119.07 of the Revised	2122
Code for licensees, except that the notice shall specify that a	2123
hearing will be held and shall specify the date, time, and place	2124
of the hearing. The director shall hold a hearing regarding the	2125
alleged violation in the same manner prescribed for an	2126
adjudication hearing under section 119.09 of the Revised Code. If	2127
the director, after the hearing, determines a violation has	2128
occurred, the director may discipline the employer in accordance	2129
with section 4175.09 of the Revised Code. The director's	2130
determination is an order that the person may appeal in accordance	2131
with section 119.12 of the Revised Code. If an employer who	2132
allegedly committed a violation of section 4175.02 of the Revised	2133
Code fails to appear for a hearing, the director may request the	2134
court of common pleas of the county where the alleged violation	2135
occurred to compel the person to appear before the director for a	2136
hearing.	2137

Sec. 4175.09. (A) If, after a hearing held in accordance with	2138
section 4175.08 of the Revised Code, the director of commerce	2139
determines that an employer violated section 4175.02 of the	2140
Revised Code, the director may do any of the following:	2141

(1) Issue and cause to be served on any party an order to	2142
cease and desist from further violation of that section;	2143

(2) Take affirmative or other action the director considers	2144
reasonable to eliminate the effect of the violation;	2145

(3) Collect the amount of any wages, salary, employment	2146
benefits, or other compensation denied or lost to an individual	2147
because the employer misclassified the individual;	2148

(4) Assess any civil penalty allowed under section 4175.10 or	2149
4175.11 of the Revised Code.	2150

(B) If the director assesses an employer a civil penalty for	2151
a violation of section 4175.02 of the Revised Code and the	2152
employer fails to pay that civil penalty within the time period	2153
prescribed by the director, the director shall forward to the	2154
attorney general the name of the employer and the amount of the	2155
civil penalty for the purpose of collecting that civil penalty. In	2156
addition to the civil penalty assessed pursuant to this section,	2157
the employer also shall pay any fee assessed by the attorney	2158
general for collection of the civil penalty.	2159

(C) The attorney general shall bring any action for relief	2160
requested by the director in the name of the people of the state	2161
of Ohio.	2162

Sec. 4175.10. (A) Except as otherwise provided in division	2163
(B) of this section and section 4175.11 of the Revised Code, if,	2164
after a hearing conducted pursuant to section 4175.08 of the	2165
Revised Code, the director of commerce determines that an employer	2166
has violated section 4175.02 of the Revised Code, the employer	2167
shall be subject to a civil penalty of one thousand five hundred	2168
dollars for each violation.	2169

(B) Except as otherwise provided in section 4175.11 of the	2170
Revised Code if, after a hearing held in accordance with section	2171
4175.08 of the Revised Code, the director determines that the	2172
employer has committed a violation of section 4175.02 of the	2173
Revised Code and that violation occurred within five years after	2174
the date the director made a determination that resulted in the	2175
director assessing the employer a civil penalty under division (A)	2176
or (B) of this section, the employer is subject to a civil penalty	2177
not less than one thousand five hundred dollars or more than two	2178
thousand five hundred dollars for each violation found by the	2179
director that occurred during that five-year period.	2180

(C) For purposes of this section, each violation of section	2181
4175.02 of the Revised Code constitutes a separate violation for	2182
each individual or rule involved and for each day the violation	2183
continues.	2184

(D) The director shall base the amount of the civil penalty	2185
assessed under this section upon the director's determination of	2186
the gravity of the violations committed by the employer.	2187

Sec. 4175.11.  (A) Whoever knowingly violates section 4175.02	2188
of the Revised Code, or whoever obstructs the director of commerce	2189
or any other person authorized to inspect places of employment	2190
pursuant to section 4175.07 of the Revised Code is liable for	2191
penalties up to double the amount specified in section 4175.10 of	2192
the Revised Code.	2193

(B) An employer who is liable under division (A) of this	2194
section because the employer knowingly violated section 4175.02 of	2195
the Revised Code also is liable to the employee who was injured by	2196
the employer's violation for punitive damages in an amount equal	2197
to the amount of the penalties assessed against the employer	2198
pursuant to division (A) of this section.	2199

(C) The director shall impose the penalties described in	2200
divisions (A) and (B) of this section if a preponderance of the	2201
evidence demonstrates that the employer acted knowingly when	2202
committing the violation.	2203

Sec. 4175.12.  If the director of commerce determines that an	2204
alleged violation of this chapter has occurred that may result in	2205
a penalty assessed pursuant to section 4175.99 of the Revised	2206
Code, the director shall refer the matter to the appropriate	2207
prosecutorial authority.	2208

Sec. 4175.13.  If the director of commerce believes that any	2209
employer allegedly has violated a valid order issued by the	2210
director pursuant to section 4175.09 of the Revised Code, the	2211
director may commence an action in the court of common pleas in	2212
the county where the alleged violation has occurred and obtain	2213
from the court an order compelling the employer to obey the order	2214
of the director or be found guilty of contempt of court and	2215
punished in accordance with Chapter 2705. of the Revised Code.	2216

Sec. 4175.14.  (A) An aggrieved party may file suit in the	2217
court of common pleas in the county where the alleged violation	2218
occurred or where any individual who is party to the action	2219
resides, without regard to exhaustion of any alternative	2220
administrative remedies provided in this chapter. An aggrieved	2221
party may bring an action on behalf of the aggrieved party or on	2222
behalf of any other individual who is similarly situated to the	2223
aggrieved party. If a court or a jury in a civil action brought	2224
pursuant to this division determines that a violation of section	2225
4175.02 of the Revised Code has occurred, the court shall award to	2226
the plaintiff all of the following:	2227

(1) The amount of any wages, salary, employment benefits, or	2228
other compensation denied or lost to an individual by reason of	2229
the violation, plus an equal amount in liquidated damages;	2230

(2) Compensatory damages and an amount up to five hundred	2231
dollars for each violation of section 4175.02 of the Revised Code;	2232

(3) In the case of a violation of division (B) or (C) of	2233
section 4175.02 of the Revised Code, all legal or equitable relief	2234
that the court determines appropriate;	2235

(4) Attorney's fees and costs.

2236

(B) An aggrieved party shall bring an action under division	2237
(A) of this section not later than three years after the last day	2238
the aggrieved individual or individual for whom the aggrieved	2239
party is bringing the action performed services for an employer	2240
who has allegedly violated section 4175.02 of the Revised Code.	2241
The three-year period specified in this division is tolled if the	2242
employer has deterred the ability of an individual to bring an	2243
action under this section or to file a complaint under section	2244
4175.07 of the Revised Code.	2245

(C) If the director of commerce has determined under section	2246
4175.09 of the Revised Code that an employer is subject to a civil	2247
penalty under section 4175.10 or 4175.11 of the Revised Code for a	2248
violation of section 4175.02 of the Revised Code, an aggrieved	2249
party, within ninety days after the director issues that	2250
determination, may bring a civil action in the court of common	2251
pleas in the county where the violation occurred to enforce that	2252
penalty. If an aggrieved party elects to bring such an action, the	2253
aggrieved party shall notify the director of that election in	2254
writing. During that ninety-day period, the attorney general shall	2255
not bring an action to enforce that penalty. After the ninety-day	2256
period expires, only the attorney general, on behalf of the	2257
director and in accordance with this chapter, may bring an action	2258
to collect the civil penalty. In any civil action brought by an	2259
aggrieved party pursuant to this division, the court shall award	2260
the aggrieved party ten per cent of the amount of the penalty owed	2261
by the employer, and the remaining amount recovered shall be	2262
awarded to the director.	2263

Sec. 4175.15.  (A) The director of commerce shall create a	2264
summary of the requirements of this chapter in English and Spanish	2265
and shall post that summary on the official web site maintained by	2266
the department of commerce and on the bulletin boards located in	2267
each of the offices of the department.	2268

(B) If an employer engages an individual to perform services	2269
and that individual is not considered an employee, that employer	2270
shall post and keep posted, in a conspicuous place on each job	2271
site where that individual performs services and in each of the	2272
employer's offices, the notice prepared by the director pursuant	2273
to division (A) of this section. The director shall furnish copies	2274
of the notice without charge to an employer upon request.	2275

Sec. 4175.16.  The director of commerce shall create a list	2276
of employers who have committed multiple violations of section	2277
4175.02 of the Revised Code. The director shall add an employer's	2278
name to the list if the director assesses against the employer the	2279
civil penalty described in division (B) of section 4175.10 of the	2280
Revised Code. The list shall include the name of the employer and	2281
the date that the employer committed the employer's most recent	2282
violation. The director shall notify an employer that the employer	2283
will be added to this list within five days after the director	2284
determines that the employer will be added to the list. The	2285
director shall publish the list on the web site maintained by the	2286
department of commerce. No state agency shall enter into a	2287
contract with an employer included in that list for a period of	2288
four years after the date of the employer's most recent violation.	2289
The director shall remove an employer's name and information from	2290
the list upon expiration of the time period of the employer's	2291
debarment.	2292

Sec. 4175.17.  The director of commerce, the director of job	2293
and family services, the tax commissioner, and the administrator	2294
of workers' compensation shall share information concerning any	2295
suspected misclassification by an employer or entity of one or	2296
more of the employer's employees as independent contractors in	2297
violation of section 4175.02 of the Revised Code. Upon determining	2298
that an employer has misclassified an employee as an independent	2299
contractor in violation of division (A) of that section, the	2300
director of commerce shall notify the director of job and family	2301
services, the tax commissioner, and the administrator, each of	2302
whom shall determine whether the employer's violation of section	2303
4175.02 of the Revised Code results in the employer not complying	2304
with the requirements of sections 4111.02, 4111.14, 4113.15, or	2305
4115.03 to 4115.21 or Chapter 4121., 4123., 4127., 4131., 4141.,	2306
or 5747. of the Revised Code, as applicable. The determination	2307
made by the director of commerce that an employer has	2308
misclassified an employee as an independent contractor is binding	2309
on the director of job and family services, the tax commissioner,	2310
and the administrator unless the individual is otherwise not	2311
considered an employee under the applicable law. Notwithstanding	2312
any provision of this section to the contrary, nothing in this	2313
chapter shall be construed to limit or otherwise constrain the	2314
duties and powers of the administrator under Chapters 4121.,	2315
4123., 4127., and 4131. of the Revised Code, the director of job	2316
and family services under Chapter 4141. of the Revised Code, or	2317
the tax commissioner under Chapter 5747. of the Revised Code.	2318

Sec. 4175.18.  There is hereby created in the state treasury	2319
the employee classification fund. The director of commerce shall	2320
deposit all moneys the director receives under this chapter,	2321
including civil penalties, into the fund. The director shall use	2322
the fund for the administration, investigation, and other expenses	2323
incurred in carrying out the director's powers and duties under	2324
this chapter. If, at the end of a fiscal year, the director	2325
determines that excess moneys exist in the fund, the director	2326
shall coordinate with the director of budget and management to	2327
transfer the excess funds to the division of administration fund	2328
created under section 121.08 of the Revised Code.	2329

Sec. 4175.99.  (A) An employer or person that knowingly	2330
violates division (A), (B), (C), (E), or (F) of section 4175.02 of	2331
the Revised Code, for the first offense, is guilty of a	2332
misdemeanor of the fourth degree, and for any subsequent violation	2333
of division (A), (B), (C), (E), or (F) of section 4175.02 of the	2334
Revised Code committed within a five-year period beginning on the	2335
date the employer or person previously was convicted of or pleaded	2336
guilty to the first violation, the employer or entity is guilty of	2337
a felony of the fifth degree.	2338

(B) Whoever violates division (D) of section 4175.02 of the	2339
Revised Code is guilty of a misdemeanor of the fourth degree.	2340

Sec. 5747.01.  Except as otherwise expressly provided or	2341
clearly appearing from the context, any term used in this chapter	2342
that is not otherwise defined in this section has the same meaning	2343
as when used in a comparable context in the laws of the United	2344
States relating to federal income taxes or if not used in a	2345
comparable context in those laws, has the same meaning as in	2346
section 5733.40 of the Revised Code. Any reference in this chapter	2347
to the Internal Revenue Code includes other laws of the United	2348
States relating to federal income taxes.	2349

As used in this chapter:

2350

(A) "Adjusted gross income" or "Ohio adjusted gross income"	2351
means federal adjusted gross income, as defined and used in the	2352
Internal Revenue Code, adjusted as provided in this section:	2353

(1) Add interest or dividends on obligations or securities of	2354
any state or of any political subdivision or authority of any	2355
state, other than this state and its subdivisions and authorities.	2356

(2) Add interest or dividends on obligations of any	2357
authority, commission, instrumentality, territory, or possession	2358
of the United States to the extent that the interest or dividends	2359
are exempt from federal income taxes but not from state income	2360
taxes.	2361

(3) Deduct interest or dividends on obligations of the United	2362
States and its territories and possessions or of any authority,	2363
commission, or instrumentality of the United States to the extent	2364
that the interest or dividends are included in federal adjusted	2365
gross income but exempt from state income taxes under the laws of	2366
the United States.	2367

(4) Deduct disability and survivor's benefits to the extent	2368
included in federal adjusted gross income.	2369

(5) Deduct benefits under Title II of the Social Security Act	2370
and tier 1 railroad retirement benefits to the extent included in	2371
federal adjusted gross income under section 86 of the Internal	2372
Revenue Code.	2373

(6) In the case of a taxpayer who is a beneficiary of a trust	2374
that makes an accumulation distribution as defined in section 665	2375
of the Internal Revenue Code, add, for the beneficiary's taxable	2376
years beginning before 2002, the portion, if any, of such	2377
distribution that does not exceed the undistributed net income of	2378
the trust for the three taxable years preceding the taxable year	2379
in which the distribution is made to the extent that the portion	2380
was not included in the trust's taxable income for any of the	2381
trust's taxable years beginning in 2002 or thereafter.	2382
"Undistributed net income of a trust" means the taxable income of	2383
the trust increased by (a)(i) the additions to adjusted gross	2384
income required under division (A) of this section and (ii) the	2385
personal exemptions allowed to the trust pursuant to section	2386
642(b) of the Internal Revenue Code, and decreased by (b)(i) the	2387
deductions to adjusted gross income required under division (A) of	2388
this section, (ii) the amount of federal income taxes attributable	2389
to such income, and (iii) the amount of taxable income that has	2390
been included in the adjusted gross income of a beneficiary by	2391
reason of a prior accumulation distribution. Any undistributed net	2392
income included in the adjusted gross income of a beneficiary	2393
shall reduce the undistributed net income of the trust commencing	2394
with the earliest years of the accumulation period.	2395

(7) Deduct the amount of wages and salaries, if any, not	2396
otherwise allowable as a deduction but that would have been	2397
allowable as a deduction in computing federal adjusted gross	2398
income for the taxable year, had the targeted jobs credit allowed	2399
and determined under sections 38, 51, and 52 of the Internal	2400
Revenue Code not been in effect.	2401

(8) Deduct any interest or interest equivalent on public	2402
obligations and purchase obligations to the extent that the	2403
interest or interest equivalent is included in federal adjusted	2404
gross income.	2405

(9) Add any loss or deduct any gain resulting from the sale,	2406
exchange, or other disposition of public obligations to the extent	2407
that the loss has been deducted or the gain has been included in	2408
computing federal adjusted gross income.	2409

(10) Deduct or add amounts, as provided under section 5747.70	2410
of the Revised Code, related to contributions to variable college	2411
savings program accounts made or tuition units purchased pursuant	2412
to Chapter 3334. of the Revised Code.	2413

(11)(a) Deduct, to the extent not otherwise allowable as a	2414
deduction or exclusion in computing federal or Ohio adjusted gross	2415
income for the taxable year, the amount the taxpayer paid during	2416
the taxable year for medical care insurance and qualified	2417
long-term care insurance for the taxpayer, the taxpayer's spouse,	2418
and dependents. No deduction for medical care insurance under	2419
division (A)(11) of this section shall be allowed either to any	2420
taxpayer who is eligible to participate in any subsidized health	2421
plan maintained by any employer of the taxpayer or of the	2422
taxpayer's spouse, or to any taxpayer who is entitled to, or on	2423
application would be entitled to, benefits under part A of Title	2424
XVIII of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.	2425
301, as amended. For the purposes of division (A)(11)(a) of this	2426
section, "subsidized health plan" means a health plan for which	2427
the employer pays any portion of the plan's cost. The deduction	2428
allowed under division (A)(11)(a) of this section shall be the net	2429
of any related premium refunds, related premium reimbursements, or	2430
related insurance premium dividends received during the taxable	2431
year.	2432

(b) Deduct, to the extent not otherwise deducted or excluded	2433
in computing federal or Ohio adjusted gross income during the	2434
taxable year, the amount the taxpayer paid during the taxable	2435
year, not compensated for by any insurance or otherwise, for	2436
medical care of the taxpayer, the taxpayer's spouse, and	2437
dependents, to the extent the expenses exceed seven and one-half	2438
per cent of the taxpayer's federal adjusted gross income.	2439

(c) Deduct, to the extent not otherwise deducted or excluded	2440
in computing federal or Ohio adjusted gross income, any amount	2441
included in federal adjusted gross income under section 105 or not	2442
excluded under section 106 of the Internal Revenue Code solely	2443
because it relates to an accident and health plan for a person who	2444
otherwise would be a "qualifying relative" and thus a "dependent"	2445
under section 152 of the Internal Revenue Code but for the fact	2446
that the person fails to meet the income and support limitations	2447
under section 152(d)(1)(B) and (C) of the Internal Revenue Code.	2448

(d) For purposes of division (A)(11) of this section,	2449
"medical care" has the meaning given in section 213 of the	2450
Internal Revenue Code, subject to the special rules, limitations,	2451
and exclusions set forth therein, and "qualified long-term care"	2452
has the same meaning given in section 7702B(c) of the Internal	2453
Revenue Code. Solely for purposes of divisions (A)(11)(a) and (c)	2454
of this section, "dependent" includes a person who otherwise would	2455
be a "qualifying relative" and thus a "dependent" under section	2456
152 of the Internal Revenue Code but for the fact that the person	2457
fails to meet the income and support limitations under section	2458
152(d)(1)(B) and (C) of the Internal Revenue Code.	2459

(12)(a) Deduct any amount included in federal adjusted gross	2460
income solely because the amount represents a reimbursement or	2461
refund of expenses that in any year the taxpayer had deducted as	2462
an itemized deduction pursuant to section 63 of the Internal	2463
Revenue Code and applicable United States department of the	2464
treasury regulations. The deduction otherwise allowed under	2465
division (A)(12)(a) of this section shall be reduced to the extent	2466
the reimbursement is attributable to an amount the taxpayer	2467
deducted under this section in any taxable year.	2468

(b) Add any amount not otherwise included in Ohio adjusted	2469
gross income for any taxable year to the extent that the amount is	2470
attributable to the recovery during the taxable year of any amount	2471
deducted or excluded in computing federal or Ohio adjusted gross	2472
income in any taxable year.	2473

(13) Deduct any portion of the deduction described in section	2474
1341(a)(2) of the Internal Revenue Code, for repaying previously	2475
reported income received under a claim of right, that meets both	2476
of the following requirements:	2477

(a) It is allowable for repayment of an item that was	2478
included in the taxpayer's adjusted gross income for a prior	2479
taxable year and did not qualify for a credit under division (A)	2480
or (B) of section 5747.05 of the Revised Code for that year;	2481

(b) It does not otherwise reduce the taxpayer's adjusted	2482
gross income for the current or any other taxable year.	2483

(14) Deduct an amount equal to the deposits made to, and net	2484
investment earnings of, a medical savings account during the	2485
taxable year, in accordance with section 3924.66 of the Revised	2486
Code. The deduction allowed by division (A)(14) of this section	2487
does not apply to medical savings account deposits and earnings	2488
otherwise deducted or excluded for the current or any other	2489
taxable year from the taxpayer's federal adjusted gross income.	2490

(15)(a) Add an amount equal to the funds withdrawn from a	2491
medical savings account during the taxable year, and the net	2492
investment earnings on those funds, when the funds withdrawn were	2493
used for any purpose other than to reimburse an account holder	2494
for, or to pay, eligible medical expenses, in accordance with	2495
section 3924.66 of the Revised Code;	2496

(b) Add the amounts distributed from a medical savings	2497
account under division (A)(2) of section 3924.68 of the Revised	2498
Code during the taxable year.	2499

(16) Add any amount claimed as a credit under section	2500
5747.059 of the Revised Code to the extent that such amount	2501
satisfies either of the following:	2502

(a) The amount was deducted or excluded from the computation	2503
of the taxpayer's federal adjusted gross income as required to be	2504
reported for the taxpayer's taxable year under the Internal	2505
Revenue Code;	2506

(b) The amount resulted in a reduction of the taxpayer's	2507
federal adjusted gross income as required to be reported for any	2508
of the taxpayer's taxable years under the Internal Revenue Code.	2509

(17) Deduct the amount contributed by the taxpayer to an	2510
individual development account program established by a county	2511
department of job and family services pursuant to sections 329.11	2512
to 329.14 of the Revised Code for the purpose of matching funds	2513
deposited by program participants. On request of the tax	2514
commissioner, the taxpayer shall provide any information that, in	2515
the tax commissioner's opinion, is necessary to establish the	2516
amount deducted under division (A)(17) of this section.	2517

(18) Beginning in taxable year 2001 but not for any taxable	2518
year beginning after December 31, 2005, if the taxpayer is married	2519
and files a joint return and the combined federal adjusted gross	2520
income of the taxpayer and the taxpayer's spouse for the taxable	2521
year does not exceed one hundred thousand dollars, or if the	2522
taxpayer is single and has a federal adjusted gross income for the	2523
taxable year not exceeding fifty thousand dollars, deduct amounts	2524
paid during the taxable year for qualified tuition and fees paid	2525
to an eligible institution for the taxpayer, the taxpayer's	2526
spouse, or any dependent of the taxpayer, who is a resident of	2527
this state and is enrolled in or attending a program that	2528
culminates in a degree or diploma at an eligible institution. The	2529
deduction may be claimed only to the extent that qualified tuition	2530
and fees are not otherwise deducted or excluded for any taxable	2531
year from federal or Ohio adjusted gross income. The deduction may	2532
not be claimed for educational expenses for which the taxpayer	2533
claims a credit under section 5747.27 of the Revised Code.	2534

(19) Add any reimbursement received during the taxable year	2535
of any amount the taxpayer deducted under division (A)(18) of this	2536
section in any previous taxable year to the extent the amount is	2537
not otherwise included in Ohio adjusted gross income.	2538

(20)(a)(i) Add five-sixths of the amount of depreciation	2539
expense allowed by subsection (k) of section 168 of the Internal	2540
Revenue Code, including the taxpayer's proportionate or	2541
distributive share of the amount of depreciation expense allowed	2542
by that subsection to a pass-through entity in which the taxpayer	2543
has a direct or indirect ownership interest.	2544

(ii) Add five-sixths of the amount of qualifying section 179	2545
depreciation expense, including a person's proportionate or	2546
distributive share of the amount of qualifying section 179	2547
depreciation expense allowed to any pass-through entity in which	2548
the person has a direct or indirect ownership. For the purposes of	2549
this division, "qualifying section 179 depreciation expense" means	2550
the difference between (I) the amount of depreciation expense	2551
directly or indirectly allowed to the taxpayer under section 179	2552
of the Internal Revenue Code, and (II) the amount of depreciation	2553
expense directly or indirectly allowed to the taxpayer under	2554
section 179 of the Internal Revenue Code as that section existed	2555
on December 31, 2002.	2556

The tax commissioner, under procedures established by the	2557
commissioner, may waive the add-backs related to a pass-through	2558
entity if the taxpayer owns, directly or indirectly, less than	2559
five per cent of the pass-through entity.	2560

(b) Nothing in division (A)(20) of this section shall be	2561
construed to adjust or modify the adjusted basis of any asset.	2562

(c) To the extent the add-back required under division	2563
(A)(20)(a) of this section is attributable to property generating	2564
nonbusiness income or loss allocated under section 5747.20 of the	2565
Revised Code, the add-back shall be sitused to the same location	2566
as the nonbusiness income or loss generated by the property for	2567
the purpose of determining the credit under division (A) of	2568
section 5747.05 of the Revised Code. Otherwise, the add-back shall	2569
be apportioned, subject to one or more of the four alternative	2570
methods of apportionment enumerated in section 5747.21 of the	2571
Revised Code.	2572

(d) For the purposes of division (A) of this section, net	2573
operating loss carryback and carryforward shall not include	2574
five-sixths of the allowance of any net operating loss deduction	2575
carryback or carryforward to the taxable year to the extent such	2576
loss resulted from depreciation allowed by section 168(k) of the	2577
Internal Revenue Code and by the qualifying section 179	2578
depreciation expense amount.	2579

(21)(a) If the taxpayer was required to add an amount under	2580
division (A)(20)(a) of this section for a taxable year, deduct	2581
one-fifth of the amount so added for each of the five succeeding	2582
taxable years.	2583

(b) If the amount deducted under division (A)(21)(a) of this	2584
section is attributable to an add-back allocated under division	2585
(A)(20)(c) of this section, the amount deducted shall be sitused	2586
to the same location. Otherwise, the add-back shall be apportioned	2587
using the apportionment factors for the taxable year in which the	2588
deduction is taken, subject to one or more of the four alternative	2589
methods of apportionment enumerated in section 5747.21 of the	2590
Revised Code.	2591

(c) No deduction is available under division (A)(21)(a) of	2592
this section with regard to any depreciation allowed by section	2593
168(k) of the Internal Revenue Code and by the qualifying section	2594
179 depreciation expense amount to the extent that such	2595
depreciation resulted in or increased a federal net operating loss	2596
carryback or carryforward to a taxable year to which division	2597
(A)(20)(d) of this section does not apply.	2598

(22) Deduct, to the extent not otherwise deducted or excluded	2599
in computing federal or Ohio adjusted gross income for the taxable	2600
year, the amount the taxpayer received during the taxable year as	2601
reimbursement for life insurance premiums under section 5919.31 of	2602
the Revised Code.	2603

(23) Deduct, to the extent not otherwise deducted or excluded	2604
in computing federal or Ohio adjusted gross income for the taxable	2605
year, the amount the taxpayer received during the taxable year as	2606
a death benefit paid by the adjutant general under section 5919.33	2607
of the Revised Code.	2608

(24) Deduct, to the extent included in federal adjusted gross	2609
income and not otherwise allowable as a deduction or exclusion in	2610
computing federal or Ohio adjusted gross income for the taxable	2611
year, military pay and allowances received by the taxpayer during	2612
the taxable year for active duty service in the United States	2613
army, air force, navy, marine corps, or coast guard or reserve	2614
components thereof or the national guard. The deduction may not be	2615
claimed for military pay and allowances received by the taxpayer	2616
while the taxpayer is stationed in this state.	2617

(25) Deduct, to the extent not otherwise allowable as a	2618
deduction or exclusion in computing federal or Ohio adjusted gross	2619
income for the taxable year and not otherwise compensated for by	2620
any other source, the amount of qualified organ donation expenses	2621
incurred by the taxpayer during the taxable year, not to exceed	2622
ten thousand dollars. A taxpayer may deduct qualified organ	2623
donation expenses only once for all taxable years beginning with	2624
taxable years beginning in 2007.	2625

For the purposes of division (A)(25) of this section:

2626

(a) "Human organ" means all or any portion of a human liver,	2627
pancreas, kidney, intestine, or lung, and any portion of human	2628
bone marrow.	2629

(b) "Qualified organ donation expenses" means travel	2630
expenses, lodging expenses, and wages and salary forgone by a	2631
taxpayer in connection with the taxpayer's donation, while living,	2632
of one or more of the taxpayer's human organs to another human	2633
being.	2634

(26) Deduct, to the extent not otherwise deducted or excluded	2635
in computing federal or Ohio adjusted gross income for the taxable	2636
year, amounts received by the taxpayer as retired military	2637
personnel pay for service in the United States army, navy, air	2638
force, coast guard, or marine corps or reserve components thereof,	2639
or the national guard, or received by the surviving spouse or	2640
former spouse of such a taxpayer under the survivor benefit plan	2641
on account of such a taxpayer's death. If the taxpayer receives	2642
income on account of retirement paid under the federal civil	2643
service retirement system or federal employees retirement system,	2644
or under any successor retirement program enacted by the congress	2645
of the United States that is established and maintained for	2646
retired employees of the United States government, and such	2647
retirement income is based, in whole or in part, on credit for the	2648
taxpayer's military service, the deduction allowed under this	2649
division shall include only that portion of such retirement income	2650
that is attributable to the taxpayer's military service, to the	2651
extent that portion of such retirement income is otherwise	2652
included in federal adjusted gross income and is not otherwise	2653
deducted under this section. Any amount deducted under division	2654
(A)(26) of this section is not included in a taxpayer's adjusted	2655
gross income for the purposes of section 5747.055 of the Revised	2656
Code. No amount may be deducted under division (A)(26) of this	2657
section on the basis of which a credit was claimed under section	2658
5747.055 of the Revised Code.	2659

(27) Deduct, to the extent not otherwise deducted or excluded	2660
in computing federal or Ohio adjusted gross income for the taxable	2661
year, the amount the taxpayer received during the taxable year	2662
from the military injury relief fund created in section 5101.98 of	2663
the Revised Code.	2664

(28) Deduct, to the extent not otherwise deducted or excluded	2665
in computing federal or Ohio adjusted gross income for the taxable	2666
year, the amount the taxpayer received as a veterans bonus during	2667
the taxable year from the Ohio department of veterans services as	2668
authorized by Section 2r of Article VIII, Ohio Constitution.	2669

(29) Deduct, to the extent not otherwise deducted or excluded	2670
in computing federal or Ohio adjusted gross income for the taxable	2671
year, any loss from wagering transactions that is allowed as an	2672
itemized deduction under section 165 of the Internal Revenue Code	2673
and that the taxpayer deducted in computing federal taxable	2674
income.	2675

(B) "Business income" means income, including gain or loss,	2676
arising from transactions, activities, and sources in the regular	2677
course of a trade or business and includes income, gain, or loss	2678
from real property, tangible property, and intangible property if	2679
the acquisition, rental, management, and disposition of the	2680
property constitute integral parts of the regular course of a	2681
trade or business operation. "Business income" includes income,	2682
including gain or loss, from a partial or complete liquidation of	2683
a business, including, but not limited to, gain or loss from the	2684
sale or other disposition of goodwill.	2685

(C) "Nonbusiness income" means all income other than business	2686
income and may include, but is not limited to, compensation, rents	2687
and royalties from real or tangible personal property, capital	2688
gains, interest, dividends and distributions, patent or copyright	2689
royalties, or lottery winnings, prizes, and awards.	2690

(D) "Compensation" means any form of remuneration paid to an	2691
employee for personal services.	2692

(E) "Fiduciary" means a guardian, trustee, executor,	2693
administrator, receiver, conservator, or any other person acting	2694
in any fiduciary capacity for any individual, trust, or estate.	2695

(F) "Fiscal year" means an accounting period of twelve months	2696
ending on the last day of any month other than December.	2697

(G) "Individual" means any natural person.

2698

(H) "Internal Revenue Code" means the "Internal Revenue Code	2699
of 1986," 100 Stat. 2085, 26 U.S.C.A. 1, as amended.	2700

(I) "Resident" means any of the following, provided that	2701
division (I)(3) of this section applies only to taxable years of a	2702
trust beginning in 2002 or thereafter:	2703

(1) An individual who is domiciled in this state, subject to	2704
section 5747.24 of the Revised Code;	2705

(2) The estate of a decedent who at the time of death was	2706
domiciled in this state. The domicile tests of section 5747.24 of	2707
the Revised Code are not controlling for purposes of division	2708
(I)(2) of this section.	2709

(3) A trust that, in whole or part, resides in this state. If	2710
only part of a trust resides in this state, the trust is a	2711
resident only with respect to that part.	2712

For the purposes of division (I)(3) of this section:

2713

(a) A trust resides in this state for the trust's current	2714
taxable year to the extent, as described in division (I)(3)(d) of	2715
this section, that the trust consists directly or indirectly, in	2716
whole or in part, of assets, net of any related liabilities, that	2717
were transferred, or caused to be transferred, directly or	2718
indirectly, to the trust by any of the following:	2719

(i) A person, a court, or a governmental entity or	2720
instrumentality on account of the death of a decedent, but only if	2721
the trust is described in division (I)(3)(e)(i) or (ii) of this	2722
section;	2723

(ii) A person who was domiciled in this state for the	2724
purposes of this chapter when the person directly or indirectly	2725
transferred assets to an irrevocable trust, but only if at least	2726
one of the trust's qualifying beneficiaries is domiciled in this	2727
state for the purposes of this chapter during all or some portion	2728
of the trust's current taxable year;	2729

(iii) A person who was domiciled in this state for the	2730
purposes of this chapter when the trust document or instrument or	2731
part of the trust document or instrument became irrevocable, but	2732
only if at least one of the trust's qualifying beneficiaries is a	2733
resident domiciled in this state for the purposes of this chapter	2734
during all or some portion of the trust's current taxable year. If	2735
a trust document or instrument became irrevocable upon the death	2736
of a person who at the time of death was domiciled in this state	2737
for purposes of this chapter, that person is a person described in	2738
division (I)(3)(a)(iii) of this section.	2739

(b) A trust is irrevocable to the extent that the transferor	2740
is not considered to be the owner of the net assets of the trust	2741
under sections 671 to 678 of the Internal Revenue Code.	2742

(c) With respect to a trust other than a charitable lead	2743
trust, "qualifying beneficiary" has the same meaning as "potential	2744
current beneficiary" as defined in section 1361(e)(2) of the	2745
Internal Revenue Code, and with respect to a charitable lead trust	2746
"qualifying beneficiary" is any current, future, or contingent	2747
beneficiary, but with respect to any trust "qualifying	2748
beneficiary" excludes a person or a governmental entity or	2749
instrumentality to any of which a contribution would qualify for	2750
the charitable deduction under section 170 of the Internal Revenue	2751
Code.	2752

(d) For the purposes of division (I)(3)(a) of this section,	2753
the extent to which a trust consists directly or indirectly, in	2754
whole or in part, of assets, net of any related liabilities, that	2755
were transferred directly or indirectly, in whole or part, to the	2756
trust by any of the sources enumerated in that division shall be	2757
ascertained by multiplying the fair market value of the trust's	2758
assets, net of related liabilities, by the qualifying ratio, which	2759
shall be computed as follows:	2760

(i) The first time the trust receives assets, the numerator	2761
of the qualifying ratio is the fair market value of those assets	2762
at that time, net of any related liabilities, from sources	2763
enumerated in division (I)(3)(a) of this section. The denominator	2764
of the qualifying ratio is the fair market value of all the	2765
trust's assets at that time, net of any related liabilities.	2766

(ii) Each subsequent time the trust receives assets, a	2767
revised qualifying ratio shall be computed. The numerator of the	2768
revised qualifying ratio is the sum of (1) the fair market value	2769
of the trust's assets immediately prior to the subsequent	2770
transfer, net of any related liabilities, multiplied by the	2771
qualifying ratio last computed without regard to the subsequent	2772
transfer, and (2) the fair market value of the subsequently	2773
transferred assets at the time transferred, net of any related	2774
liabilities, from sources enumerated in division (I)(3)(a) of this	2775
section. The denominator of the revised qualifying ratio is the	2776
fair market value of all the trust's assets immediately after the	2777
subsequent transfer, net of any related liabilities.	2778

(iii) Whether a transfer to the trust is by or from any of	2779
the sources enumerated in division (I)(3)(a) of this section shall	2780
be ascertained without regard to the domicile of the trust's	2781
beneficiaries.	2782

(e) For the purposes of division (I)(3)(a)(i) of this	2783
section:	2784

(i) A trust is described in division (I)(3)(e)(i) of this	2785
section if the trust is a testamentary trust and the testator of	2786
that testamentary trust was domiciled in this state at the time of	2787
the testator's death for purposes of the taxes levied under	2788
Chapter 5731. of the Revised Code.	2789

(ii) A trust is described in division (I)(3)(e)(ii) of this	2790
section if the transfer is a qualifying transfer described in any	2791
of divisions (I)(3)(f)(i) to (vi) of this section, the trust is an	2792
irrevocable inter vivos trust, and at least one of the trust's	2793
qualifying beneficiaries is domiciled in this state for purposes	2794
of this chapter during all or some portion of the trust's current	2795
taxable year.	2796

(f) For the purposes of division (I)(3)(e)(ii) of this	2797
section, a "qualifying transfer" is a transfer of assets, net of	2798
any related liabilities, directly or indirectly to a trust, if the	2799
transfer is described in any of the following:	2800

(i) The transfer is made to a trust, created by the decedent	2801
before the decedent's death and while the decedent was domiciled	2802
in this state for the purposes of this chapter, and, prior to the	2803
death of the decedent, the trust became irrevocable while the	2804
decedent was domiciled in this state for the purposes of this	2805
chapter.	2806

(ii) The transfer is made to a trust to which the decedent,	2807
prior to the decedent's death, had directly or indirectly	2808
transferred assets, net of any related liabilities, while the	2809
decedent was domiciled in this state for the purposes of this	2810
chapter, and prior to the death of the decedent the trust became	2811
irrevocable while the decedent was domiciled in this state for the	2812
purposes of this chapter.	2813

(iii) The transfer is made on account of a contractual	2814
relationship existing directly or indirectly between the	2815
transferor and either the decedent or the estate of the decedent	2816
at any time prior to the date of the decedent's death, and the	2817
decedent was domiciled in this state at the time of death for	2818
purposes of the taxes levied under Chapter 5731. of the Revised	2819
Code.	2820

(iv) The transfer is made to a trust on account of a	2821
contractual relationship existing directly or indirectly between	2822
the transferor and another person who at the time of the	2823
decedent's death was domiciled in this state for purposes of this	2824
chapter.	2825

(v) The transfer is made to a trust on account of the will of	2826
a testator who was domiciled in this state at the time of the	2827
testator's death for purposes of the taxes levied under Chapter	2828
5731. of the Revised Code.	2829

(vi) The transfer is made to a trust created by or caused to	2830
be created by a court, and the trust was directly or indirectly	2831
created in connection with or as a result of the death of an	2832
individual who, for purposes of the taxes levied under Chapter	2833
5731. of the Revised Code, was domiciled in this state at the time	2834
of the individual's death.	2835

(g) The tax commissioner may adopt rules to ascertain the	2836
part of a trust residing in this state.	2837

(J) "Nonresident" means an individual or estate that is not a	2838
resident. An individual who is a resident for only part of a	2839
taxable year is a nonresident for the remainder of that taxable	2840
year.	2841

(K) "Pass-through entity" has the same meaning as in section	2842
5733.04 of the Revised Code.	2843

(L) "Return" means the notifications and reports required to	2844
be filed pursuant to this chapter for the purpose of reporting the	2845
tax due and includes declarations of estimated tax when so	2846
required.	2847

(M) "Taxable year" means the calendar year or the taxpayer's	2848
fiscal year ending during the calendar year, or fractional part	2849
thereof, upon which the adjusted gross income is calculated	2850
pursuant to this chapter.	2851

(N) "Taxpayer" means any person subject to the tax imposed by	2852
section 5747.02 of the Revised Code or any pass-through entity	2853
that makes the election under division (D) of section 5747.08 of	2854
the Revised Code.	2855

(O) "Dependents" means dependents as defined in the Internal	2856
Revenue Code and as claimed in the taxpayer's federal income tax	2857
return for the taxable year or which the taxpayer would have been	2858
permitted to claim had the taxpayer filed a federal income tax	2859
return.	2860

(P) "Principal county of employment" means, in the case of a	2861
nonresident, the county within the state in which a taxpayer	2862
performs services for an employer or, if those services are	2863
performed in more than one county, the county in which the major	2864
portion of the services are performed.	2865

(Q) As used in sections 5747.50 to 5747.55 of the Revised	2866
Code:	2867

(1) "Subdivision" means any county, municipal corporation,	2868
park district, or township.	2869

(2) "Essential local government purposes" includes all	2870
functions that any subdivision is required by general law to	2871
exercise, including like functions that are exercised under a	2872
charter adopted pursuant to the Ohio Constitution.	2873

(R) "Overpayment" means any amount already paid that exceeds	2874
the figure determined to be the correct amount of the tax.	2875

(S) "Taxable income" or "Ohio taxable income" applies only to	2876
estates and trusts, and means federal taxable income, as defined	2877
and used in the Internal Revenue Code, adjusted as follows:	2878

(1) Add interest or dividends, net of ordinary, necessary,	2879
and reasonable expenses not deducted in computing federal taxable	2880
income, on obligations or securities of any state or of any	2881
political subdivision or authority of any state, other than this	2882
state and its subdivisions and authorities, but only to the extent	2883
that such net amount is not otherwise includible in Ohio taxable	2884
income and is described in either division (S)(1)(a) or (b) of	2885
this section:	2886

(a) The net amount is not attributable to the S portion of an	2887
electing small business trust and has not been distributed to	2888
beneficiaries for the taxable year;	2889

(b) The net amount is attributable to the S portion of an	2890
electing small business trust for the taxable year.	2891

(2) Add interest or dividends, net of ordinary, necessary,	2892
and reasonable expenses not deducted in computing federal taxable	2893
income, on obligations of any authority, commission,	2894
instrumentality, territory, or possession of the United States to	2895
the extent that the interest or dividends are exempt from federal	2896
income taxes but not from state income taxes, but only to the	2897
extent that such net amount is not otherwise includible in Ohio	2898
taxable income and is described in either division (S)(1)(a) or	2899
(b) of this section;	2900

(3) Add the amount of personal exemption allowed to the	2901
estate pursuant to section 642(b) of the Internal Revenue Code;	2902

(4) Deduct interest or dividends, net of related expenses	2903
deducted in computing federal taxable income, on obligations of	2904
the United States and its territories and possessions or of any	2905
authority, commission, or instrumentality of the United States to	2906
the extent that the interest or dividends are exempt from state	2907
taxes under the laws of the United States, but only to the extent	2908
that such amount is included in federal taxable income and is	2909
described in either division (S)(1)(a) or (b) of this section;	2910

(5) Deduct the amount of wages and salaries, if any, not	2911
otherwise allowable as a deduction but that would have been	2912
allowable as a deduction in computing federal taxable income for	2913
the taxable year, had the targeted jobs credit allowed under	2914
sections 38, 51, and 52 of the Internal Revenue Code not been in	2915
effect, but only to the extent such amount relates either to	2916
income included in federal taxable income for the taxable year or	2917
to income of the S portion of an electing small business trust for	2918
the taxable year;	2919

(6) Deduct any interest or interest equivalent, net of	2920
related expenses deducted in computing federal taxable income, on	2921
public obligations and purchase obligations, but only to the	2922
extent that such net amount relates either to income included in	2923
federal taxable income for the taxable year or to income of the S	2924
portion of an electing small business trust for the taxable year;	2925

(7) Add any loss or deduct any gain resulting from sale,	2926
exchange, or other disposition of public obligations to the extent	2927
that such loss has been deducted or such gain has been included in	2928
computing either federal taxable income or income of the S portion	2929
of an electing small business trust for the taxable year;	2930

(8) Except in the case of the final return of an estate, add	2931
any amount deducted by the taxpayer on both its Ohio estate tax	2932
return pursuant to section 5731.14 of the Revised Code, and on its	2933
federal income tax return in determining federal taxable income;	2934

(9)(a) Deduct any amount included in federal taxable income	2935
solely because the amount represents a reimbursement or refund of	2936
expenses that in a previous year the decedent had deducted as an	2937
itemized deduction pursuant to section 63 of the Internal Revenue	2938
Code and applicable treasury regulations. The deduction otherwise	2939
allowed under division (S)(9)(a) of this section shall be reduced	2940
to the extent the reimbursement is attributable to an amount the	2941
taxpayer or decedent deducted under this section in any taxable	2942
year.	2943

(b) Add any amount not otherwise included in Ohio taxable	2944
income for any taxable year to the extent that the amount is	2945
attributable to the recovery during the taxable year of any amount	2946
deducted or excluded in computing federal or Ohio taxable income	2947
in any taxable year, but only to the extent such amount has not	2948
been distributed to beneficiaries for the taxable year.	2949

(10) Deduct any portion of the deduction described in section	2950
1341(a)(2) of the Internal Revenue Code, for repaying previously	2951
reported income received under a claim of right, that meets both	2952
of the following requirements:	2953

(a) It is allowable for repayment of an item that was	2954
included in the taxpayer's taxable income or the decedent's	2955
adjusted gross income for a prior taxable year and did not qualify	2956
for a credit under division (A) or (B) of section 5747.05 of the	2957
Revised Code for that year.	2958

(b) It does not otherwise reduce the taxpayer's taxable	2959
income or the decedent's adjusted gross income for the current or	2960
any other taxable year.	2961

(11) Add any amount claimed as a credit under section	2962
5747.059 of the Revised Code to the extent that the amount	2963
satisfies either of the following:	2964

(a) The amount was deducted or excluded from the computation	2965
of the taxpayer's federal taxable income as required to be	2966
reported for the taxpayer's taxable year under the Internal	2967
Revenue Code;	2968

(b) The amount resulted in a reduction in the taxpayer's	2969
federal taxable income as required to be reported for any of the	2970
taxpayer's taxable years under the Internal Revenue Code.	2971

(12) Deduct any amount, net of related expenses deducted in	2972
computing federal taxable income, that a trust is required to	2973
report as farm income on its federal income tax return, but only	2974
if the assets of the trust include at least ten acres of land	2975
satisfying the definition of "land devoted exclusively to	2976
agricultural use" under section 5713.30 of the Revised Code,	2977
regardless of whether the land is valued for tax purposes as such	2978
land under sections 5713.30 to 5713.38 of the Revised Code. If the	2979
trust is a pass-through entity investor, section 5747.231 of the	2980
Revised Code applies in ascertaining if the trust is eligible to	2981
claim the deduction provided by division (S)(12) of this section	2982
in connection with the pass-through entity's farm income.	2983

Except for farm income attributable to the S portion of an	2984
electing small business trust, the deduction provided by division	2985
(S)(12) of this section is allowed only to the extent that the	2986
trust has not distributed such farm income. Division (S)(12) of	2987
this section applies only to taxable years of a trust beginning in	2988
2002 or thereafter.	2989

(13) Add the net amount of income described in section 641(c)	2990
of the Internal Revenue Code to the extent that amount is not	2991
included in federal taxable income.	2992

(14) Add or deduct the amount the taxpayer would be required	2993
to add or deduct under division (A)(20) or (21) of this section if	2994
the taxpayer's Ohio taxable income were computed in the same	2995
manner as an individual's Ohio adjusted gross income is computed	2996
under this section. In the case of a trust, division (S)(14) of	2997
this section applies only to any of the trust's taxable years	2998
beginning in 2002 or thereafter.	2999

(T) "School district income" and "school district income tax"	3000
have the same meanings as in section 5748.01 of the Revised Code.	3001

(U) As used in divisions (A)(8), (A)(9), (S)(6), and (S)(7)	3002
of this section, "public obligations," "purchase obligations," and	3003
"interest or interest equivalent" have the same meanings as in	3004
section 5709.76 of the Revised Code.	3005

(V) "Limited liability company" means any limited liability	3006
company formed under Chapter 1705. of the Revised Code or under	3007
the laws of any other state.	3008

(W) "Pass-through entity investor" means any person who,	3009
during any portion of a taxable year of a pass-through entity, is	3010
a partner, member, shareholder, or equity investor in that	3011
pass-through entity.	3012

(X) "Banking day" has the same meaning as in section 1304.01	3013
of the Revised Code.	3014

(Y) "Month" means a calendar month.

3015

(Z) "Quarter" means the first three months, the second three	3016
months, the third three months, or the last three months of the	3017
taxpayer's taxable year.	3018

(AA)(1) "Eligible institution" means a state university or	3019
state institution of higher education as defined in section	3020
3345.011 of the Revised Code, or a private, nonprofit college,	3021
university, or other post-secondary institution located in this	3022
state that possesses a certificate of authorization issued by the	3023
Ohio board of regents pursuant to Chapter 1713. of the Revised	3024
Code or a certificate of registration issued by the state board of	3025
career colleges and schools under Chapter 3332. of the Revised	3026
Code.	3027

(2) "Qualified tuition and fees" means tuition and fees	3028
imposed by an eligible institution as a condition of enrollment or	3029
attendance, not exceeding two thousand five hundred dollars in	3030
each of the individual's first two years of post-secondary	3031
education. If the individual is a part-time student, "qualified	3032
tuition and fees" includes tuition and fees paid for the academic	3033
equivalent of the first two years of post-secondary education	3034
during a maximum of five taxable years, not exceeding a total of	3035
five thousand dollars. "Qualified tuition and fees" does not	3036
include:	3037

(a) Expenses for any course or activity involving sports,	3038
games, or hobbies unless the course or activity is part of the	3039
individual's degree or diploma program;	3040

(b) The cost of books, room and board, student activity fees,	3041
athletic fees, insurance expenses, or other expenses unrelated to	3042
the individual's academic course of instruction;	3043

(c) Tuition, fees, or other expenses paid or reimbursed	3044
through an employer, scholarship, grant in aid, or other	3045
educational benefit program.	3046

(BB)(1) "Modified business income" means the business income	3047
included in a trust's Ohio taxable income after such taxable	3048
income is first reduced by the qualifying trust amount, if any.	3049

(2) "Qualifying trust amount" of a trust means capital gains	3050
and losses from the sale, exchange, or other disposition of equity	3051
or ownership interests in, or debt obligations of, a qualifying	3052
investee to the extent included in the trust's Ohio taxable	3053
income, but only if the following requirements are satisfied:	3054

(a) The book value of the qualifying investee's physical	3055
assets in this state and everywhere, as of the last day of the	3056
qualifying investee's fiscal or calendar year ending immediately	3057
prior to the date on which the trust recognizes the gain or loss,	3058
is available to the trust.	3059

(b) The requirements of section 5747.011 of the Revised Code	3060
are satisfied for the trust's taxable year in which the trust	3061
recognizes the gain or loss.	3062

Any gain or loss that is not a qualifying trust amount is	3063
modified business income, qualifying investment income, or	3064
modified nonbusiness income, as the case may be.	3065

(3) "Modified nonbusiness income" means a trust's Ohio	3066
taxable income other than modified business income, other than the	3067
qualifying trust amount, and other than qualifying investment	3068
income, as defined in section 5747.012 of the Revised Code, to the	3069
extent such qualifying investment income is not otherwise part of	3070
modified business income.	3071

(4) "Modified Ohio taxable income" applies only to trusts,	3072
and means the sum of the amounts described in divisions (BB)(4)(a)	3073
to (c) of this section:	3074

(a) The fraction, calculated under section 5747.013, and	3075
applying section 5747.231 of the Revised Code, multiplied by the	3076
sum of the following amounts:	3077

(i) The trust's modified business income;

3078

(ii) The trust's qualifying investment income, as defined in	3079
section 5747.012 of the Revised Code, but only to the extent the	3080
qualifying investment income does not otherwise constitute	3081
modified business income and does not otherwise constitute a	3082
qualifying trust amount.	3083

(b) The qualifying trust amount multiplied by a fraction, the	3084
numerator of which is the sum of the book value of the qualifying	3085
investee's physical assets in this state on the last day of the	3086
qualifying investee's fiscal or calendar year ending immediately	3087
prior to the day on which the trust recognizes the qualifying	3088
trust amount, and the denominator of which is the sum of the book	3089
value of the qualifying investee's total physical assets	3090
everywhere on the last day of the qualifying investee's fiscal or	3091
calendar year ending immediately prior to the day on which the	3092
trust recognizes the qualifying trust amount. If, for a taxable	3093
year, the trust recognizes a qualifying trust amount with respect	3094
to more than one qualifying investee, the amount described in	3095
division (BB)(4)(b) of this section shall equal the sum of the	3096
products so computed for each such qualifying investee.	3097

(c)(i) With respect to a trust or portion of a trust that is	3098
a resident as ascertained in accordance with division (I)(3)(d) of	3099
this section, its modified nonbusiness income.	3100

(ii) With respect to a trust or portion of a trust that is	3101
not a resident as ascertained in accordance with division	3102
(I)(3)(d) of this section, the amount of its modified nonbusiness	3103
income satisfying the descriptions in divisions (B)(2) to (5) of	3104
section 5747.20 of the Revised Code, except as otherwise provided	3105
in division (BB)(4)(c)(ii) of this section. With respect to a	3106
trust or portion of a trust that is not a resident as ascertained	3107
in accordance with division (I)(3)(d) of this section, the trust's	3108
portion of modified nonbusiness income recognized from the sale,	3109
exchange, or other disposition of a debt interest in or equity	3110
interest in a section 5747.212 entity, as defined in section	3111
5747.212 of the Revised Code, without regard to division (A) of	3112
that section, shall not be allocated to this state in accordance	3113
with section 5747.20 of the Revised Code but shall be apportioned	3114
to this state in accordance with division (B) of section 5747.212	3115
of the Revised Code without regard to division (A) of that	3116
section.	3117

If the allocation and apportionment of a trust's income under	3118
divisions (BB)(4)(a) and (c) of this section do not fairly	3119
represent the modified Ohio taxable income of the trust in this	3120
state, the alternative methods described in division (C) of	3121
section 5747.21 of the Revised Code may be applied in the manner	3122
and to the same extent provided in that section.	3123

(5)(a) Except as set forth in division (BB)(5)(b) of this	3124
section, "qualifying investee" means a person in which a trust has	3125
an equity or ownership interest, or a person or unit of government	3126
the debt obligations of either of which are owned by a trust. For	3127
the purposes of division (BB)(2)(a) of this section and for the	3128
purpose of computing the fraction described in division (BB)(4)(b)	3129
of this section, all of the following apply:	3130

(i) If the qualifying investee is a member of a qualifying	3131
controlled group on the last day of the qualifying investee's	3132
fiscal or calendar year ending immediately prior to the date on	3133
which the trust recognizes the gain or loss, then "qualifying	3134
investee" includes all persons in the qualifying controlled group	3135
on such last day.	3136

(ii) If the qualifying investee, or if the qualifying	3137
investee and any members of the qualifying controlled group of	3138
which the qualifying investee is a member on the last day of the	3139
qualifying investee's fiscal or calendar year ending immediately	3140
prior to the date on which the trust recognizes the gain or loss,	3141
separately or cumulatively own, directly or indirectly, on the	3142
last day of the qualifying investee's fiscal or calendar year	3143
ending immediately prior to the date on which the trust recognizes	3144
the qualifying trust amount, more than fifty per cent of the	3145
equity of a pass-through entity, then the qualifying investee and	3146
the other members are deemed to own the proportionate share of the	3147
pass-through entity's physical assets which the pass-through	3148
entity directly or indirectly owns on the last day of the	3149
pass-through entity's calendar or fiscal year ending within or	3150
with the last day of the qualifying investee's fiscal or calendar	3151
year ending immediately prior to the date on which the trust	3152
recognizes the qualifying trust amount.	3153

(iii) For the purposes of division (BB)(5)(a)(iii) of this	3154
section, "upper level pass-through entity" means a pass-through	3155
entity directly or indirectly owning any equity of another	3156
pass-through entity, and "lower level pass-through entity" means	3157
that other pass-through entity.	3158

An upper level pass-through entity, whether or not it is also	3159
a qualifying investee, is deemed to own, on the last day of the	3160
upper level pass-through entity's calendar or fiscal year, the	3161
proportionate share of the lower level pass-through entity's	3162
physical assets that the lower level pass-through entity directly	3163
or indirectly owns on the last day of the lower level pass-through	3164
entity's calendar or fiscal year ending within or with the last	3165
day of the upper level pass-through entity's fiscal or calendar	3166
year. If the upper level pass-through entity directly and	3167
indirectly owns less than fifty per cent of the equity of the	3168
lower level pass-through entity on each day of the upper level	3169
pass-through entity's calendar or fiscal year in which or with	3170
which ends the calendar or fiscal year of the lower level	3171
pass-through entity and if, based upon clear and convincing	3172
evidence, complete information about the location and cost of the	3173
physical assets of the lower pass-through entity is not available	3174
to the upper level pass-through entity, then solely for purposes	3175
of ascertaining if a gain or loss constitutes a qualifying trust	3176
amount, the upper level pass-through entity shall be deemed as	3177
owning no equity of the lower level pass-through entity for each	3178
day during the upper level pass-through entity's calendar or	3179
fiscal year in which or with which ends the lower level	3180
pass-through entity's calendar or fiscal year. Nothing in division	3181
(BB)(5)(a)(iii) of this section shall be construed to provide for	3182
any deduction or exclusion in computing any trust's Ohio taxable	3183
income.	3184

(b) With respect to a trust that is not a resident for the	3185
taxable year and with respect to a part of a trust that is not a	3186
resident for the taxable year, "qualifying investee" for that	3187
taxable year does not include a C corporation if both of the	3188
following apply:	3189

(i) During the taxable year the trust or part of the trust	3190
recognizes a gain or loss from the sale, exchange, or other	3191
disposition of equity or ownership interests in, or debt	3192
obligations of, the C corporation.	3193

(ii) Such gain or loss constitutes nonbusiness income.

3194

(6) "Available" means information is such that a person is	3195
able to learn of the information by the due date plus extensions,	3196
if any, for filing the return for the taxable year in which the	3197
trust recognizes the gain or loss.	3198

(CC) "Qualifying controlled group" has the same meaning as in	3199
section 5733.04 of the Revised Code.	3200

(DD) "Related member" has the same meaning as in section	3201
5733.042 of the Revised Code.	3202

(EE)(1) For the purposes of division (EE) of this section:

3203

(a) "Qualifying person" means any person other than a	3204
qualifying corporation.	3205

(b) "Qualifying corporation" means any person classified for	3206
federal income tax purposes as an association taxable as a	3207
corporation, except either of the following:	3208

(i) A corporation that has made an election under subchapter	3209
S, chapter one, subtitle A, of the Internal Revenue Code for its	3210
taxable year ending within, or on the last day of, the investor's	3211
taxable year;	3212

(ii) A subsidiary that is wholly owned by any corporation	3213
that has made an election under subchapter S, chapter one,	3214
subtitle A of the Internal Revenue Code for its taxable year	3215
ending within, or on the last day of, the investor's taxable year.	3216

(2) For the purposes of this chapter, unless expressly stated	3217
otherwise, no qualifying person indirectly owns any asset directly	3218
or indirectly owned by any qualifying corporation.	3219

(FF) For purposes of this chapter and Chapter 5751. of the	3220
Revised Code:	3221

(1) "Trust" does not include a qualified pre-income tax	3222
trust.	3223

(2) A "qualified pre-income tax trust" is any pre-income tax	3224
trust that makes a qualifying pre-income tax trust election as	3225
described in division (FF)(3) of this section.	3226

(3) A "qualifying pre-income tax trust election" is an	3227
election by a pre-income tax trust to subject to the tax imposed	3228
by section 5751.02 of the Revised Code the pre-income tax trust	3229
and all pass-through entities of which the trust owns or controls,	3230
directly, indirectly, or constructively through related interests,	3231
five per cent or more of the ownership or equity interests. The	3232
trustee shall notify the tax commissioner in writing of the	3233
election on or before April 15, 2006. The election, if timely	3234
made, shall be effective on and after January 1, 2006, and shall	3235
apply for all tax periods and tax years until revoked by the	3236
trustee of the trust.	3237

(4) A "pre-income tax trust" is a trust that satisfies all of	3238
the following requirements:	3239

(a) The document or instrument creating the trust was	3240
executed by the grantor before January 1, 1972;	3241

(b) The trust became irrevocable upon the creation of the	3242
trust; and	3243

(c) The grantor was domiciled in this state at the time the	3244
trust was created.	3245

(GG) "Employee" has the same meaning as in section 4175.01 of	3246
the Revised Code, unless the internal revenue service has accepted	3247
the classification an individual as an independent contractor made	3248
by the individual and the individual's payer.	3249

Section 2.  That existing sections 121.083, 1349.61, 4111.02,	3250
4111.14, 4113.15, 4115.03, 4121.01, 4123.01, 4123.026, 4141.01,	3251
and 5747.01 of the Revised Code are hereby repealed.	3252