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To amend sections 119.14, 1349.61, 4111.03, 4121.01, | 1 |
4123.01, and 4141.01 of the Revised Code to | 2 |
establish a test to determine whether an | 3 |
individual providing services for or on behalf of | 4 |
certain motor transportation companies is | 5 |
considered an employee under Ohio's Overtime, | 6 |
Workers' Compensation, and Unemployment | 7 |
Compensation Laws. | 8 |
Section 1. That sections 119.14, 1349.61, 4111.03, 4121.01, | 9 |
4123.01, and 4141.01 of the Revised Code be amended to read as | 10 |
follows: | 11 |
Sec. 119.14. (A) For any small business that engages in a | 12 |
paperwork violation, the state agency or regulatory authority that | 13 |
regulates the field of operation in which the business operates | 14 |
shall waive any and all administrative fines or civil penalties on | 15 |
that small business for the violation, if the paperwork violation | 16 |
is a first-time offense. | 17 |
(B) When an agency or regulatory authority waives an | 18 |
administrative fine or civil penalty under this section, the state | 19 |
agency or regulatory authority shall require the small business to | 20 |
correct the violation within a reasonable period of time. | 21 |
(C) Notwithstanding this section, a state agency or | 22 |
regulatory authority may impose administrative fines or civil | 23 |
penalties on a small business for a paperwork violation that is a | 24 |
first-time offense for any of the following reasons: | 25 |
(1) The violation has the potential to cause serious harm to | 26 |
the public interest as determined by a state agency or regulatory | 27 |
authority director; | 28 |
(2) The violation involves a small business knowingly or | 29 |
willfully engaging in conduct that may result in a felony | 30 |
conviction; | 31 |
(3) Failure to impose an administrative fine or civil penalty | 32 |
for the violation would impede or interfere with the detection of | 33 |
criminal activity; | 34 |
(4) The violation is of a law concerning the assessment or | 35 |
collection of any tax, debt, revenue, or receipt; | 36 |
(5) The violation presents a direct danger to the public | 37 |
health or safety, results in a financial loss to an employee | 38 |
39 | |
risk of severe environmental harm, as determined by the head of | 40 |
the agency or regulatory authority; | 41 |
(6) The violation is a failure to comply with a federal | 42 |
requirement for a program that has been delegated from the federal | 43 |
government to a state agency or regulatory authority and where the | 44 |
federal requirement includes a requirement to impose a fine. | 45 |
(D)(1) Nothing in this section shall prohibit a state agency | 46 |
or regulatory authority from waiving administrative fines or civil | 47 |
penalties incurred by a small business for a paperwork violation | 48 |
that is not a first-time offense. | 49 |
(2) Any administrative fine or civil penalty that is waived | 50 |
under this section | 51 |
any additional fines or penalties associated with a subsequent | 52 |
violation for noncompliance with the same paperwork requirement. | 53 |
(E) This section shall not apply to any violation by a small | 54 |
business of a statutory or regulatory requirement mandating the | 55 |
collection of information by a state agency or regulatory body if | 56 |
that small business previously violated any such requirement | 57 |
mandating the collection of information. | 58 |
(F) Nothing in this section shall be construed to diminish | 59 |
the responsibility for any citizen or business to apply for and | 60 |
obtain a permit, license, or authorizing document that is required | 61 |
to engage in a regulated activity, or otherwise comply with state | 62 |
or federal law. | 63 |
(G) As used in this section: | 64 |
(1) "Small business" has the same meaning as defined by the | 65 |
Code of Federal Regulations, Title 13, Chapter 1, Part 121. | 66 |
(2) "Paperwork violation" means the violation of any | 67 |
statutory or regulatory requirement in the Revised Code mandating | 68 |
the collection of information by a state agency or regulatory | 69 |
body. | 70 |
(3) "First-time offense" means the first instance of a | 71 |
violation of the particular statutory or regulatory requirement | 72 |
mandating the collection of information by a state agency or | 73 |
regulatory body. | 74 |
(4) "Employee" means any individual employed by an employer | 75 |
but does not include: | 76 |
(a) Any individual employed by the United States; | 77 |
(b) Any individual employed as a babysitter in the employer's | 78 |
home, or a live-in companion to a sick, convalescing, or elderly | 79 |
person whose principal duties do not include housekeeping; | 80 |
(c) Any individual engaged in the delivery of newspapers to | 81 |
the consumer; | 82 |
(d) Any individual employed as an outside salesperson | 83 |
compensated by commissions or employed in a bona fide executive, | 84 |
administrative, or professional capacity as such terms are defined | 85 |
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 | 86 |
U.S.C. 201, as amended; | 87 |
(e) Any individual who works or provides personal services of | 88 |
a charitable nature in a hospital or health institution for which | 89 |
compensation is not sought or contemplated; | 90 |
(f) A member of a police or fire protection agency or student | 91 |
employed on a part-time or seasonal basis by a political | 92 |
subdivision of this state; | 93 |
(g) Any individual in the employ of a camp or recreational | 94 |
area for children under eighteen years of age and owned and | 95 |
operated by a nonprofit organization or group of organizations | 96 |
described in section 501(c)(3) of the "Internal Revenue Code of | 97 |
1954," and exempt from income tax under section 501(a) of that | 98 |
code; | 99 |
(h) Any individual employed directly by the house of | 100 |
representatives or directly by the senate. | 101 |
Sec. 1349.61. (A)(1) Subject to division (C) of this | 102 |
section, no person or entity shall sell a gift card to a purchaser | 103 |
containing an expiration date that is less than two years after | 104 |
the date the gift card is issued. | 105 |
(2) No person or entity, within two years after a gift card | 106 |
is issued, shall charge service charges or fees relative to that | 107 |
gift card, including dormancy fees, latency fees, or | 108 |
administrative fees, that have the effect of reducing the total | 109 |
amount for which the holder of the gift card may redeem the gift | 110 |
card. | 111 |
(B) A gift card sold without an expiration date is valid | 112 |
until redeemed or replaced with a new gift card. | 113 |
(C) Division (A) of this section does not apply to any of the | 114 |
following gift cards: | 115 |
(1) A gift card that is distributed by the issuer to a | 116 |
consumer pursuant to an awards, loyalty, or promotional program | 117 |
without any money or anything of value being given in exchange for | 118 |
the gift card by the consumer; | 119 |
(2) A gift card that is sold below face value at a volume | 120 |
discount to employers or to nonprofit and charitable organizations | 121 |
for fundraising purposes, if the expiration date on that gift card | 122 |
is not more than thirty days after the date of sale; | 123 |
(3) A gift card that is sold by a nonprofit or charitable | 124 |
organization for fundraising purposes; | 125 |
(4) A gift card that an employer gives to an employee if use | 126 |
of the gift card is limited to the employer's business | 127 |
establishment, which may include a group of merchants that are | 128 |
affiliated with that business establishment; | 129 |
(5) A gift certificate issued in accordance with section | 130 |
1533.131 of the Revised Code that may be used to obtain hunting | 131 |
and fishing licenses, fur taker, special deer, and special wild | 132 |
turkey permits, and wetlands habitat stamps; | 133 |
(6) A gift card that is usable with multiple, unaffiliated | 134 |
sellers of goods or services; | 135 |
(7) A gift card that an employer issues to an employee in | 136 |
recognition of services performed by the employee. | 137 |
(D) Whoever violates division (A)(2) of this section is | 138 |
liable to the holder for any amount that the redemption value of | 139 |
the gift card was reduced, any court costs incurred, and | 140 |
reasonable attorney's fees. | 141 |
(E) As used in this section: | 142 |
(1) "Gift card" means a certificate, electronic card, or | 143 |
other medium issued by a merchant that evidences the giving of | 144 |
consideration in exchange for the right to redeem the certificate, | 145 |
electronic card, or other medium for goods, food, services, | 146 |
credit, or money of at least an equal value, including any | 147 |
electronic card issued by a merchant with a monetary value where | 148 |
the issuer has received payment for the full monetary value for | 149 |
the future purchase or delivery of goods or services and any | 150 |
certificate issued by a merchant where the issuer has received | 151 |
payment for the full monetary face value of the certificate for | 152 |
the future purchase or delivery of goods and services. "Gift card" | 153 |
does not include a prepaid calling card used to make telephone | 154 |
calls. | 155 |
(2) "Employer" | 156 |
meaning as in section 4121.01 of the Revised Code. | 157 |
(3) "Employee" means every person who may be required or | 158 |
directed by any employer, in consideration of direct or indirect | 159 |
gain or profit, to engage in any employment, or to go, or work, or | 160 |
be at any time in any place of employment. | 161 |
Sec. 4111.03. (A) An employer shall pay an employee for | 162 |
overtime at a wage rate of one and one-half times the employee's | 163 |
wage rate for hours worked in excess of forty hours in one | 164 |
workweek, in the manner and methods provided in and subject to the | 165 |
exemptions of section 7 and section 13 of the "Fair Labor | 166 |
Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 207, 213, as | 167 |
amended. | 168 |
Any employee employed in agriculture shall not be covered by | 169 |
the overtime provision of this section. | 170 |
(B) If a county employee elects to take compensatory time off | 171 |
in lieu of overtime pay, for any overtime worked, compensatory | 172 |
time may be granted by the employee's administrative superior, on | 173 |
a time and one-half basis, at a time mutually convenient to the | 174 |
employee and the administrative superior within one hundred eighty | 175 |
days after the overtime is worked. | 176 |
(C) A county appointing authority with the exception of the | 177 |
county department of job and family services may, by rule or | 178 |
resolution as is appropriate, indicate the authority's intention | 179 |
not to be bound by division (B) of this section, and to adopt a | 180 |
different policy for the calculation and payment of overtime than | 181 |
that established by that division. Upon adoption, the alternative | 182 |
overtime policy prevails. Prior to the adoption of an alternative | 183 |
overtime policy, a county appointing authority with the exception | 184 |
of the county department of job and family services shall give a | 185 |
written notice of the alternative policy to each employee at least | 186 |
ten days prior to its effective date. | 187 |
(D) As used in this section: | 188 |
(1) "Employ" means to suffer or to permit to work. | 189 |
(2) "Employer" means the state of Ohio, its | 190 |
instrumentalities, and its political subdivisions and their | 191 |
instrumentalities, any individual, partnership, association, | 192 |
corporation, business trust, or any person or group of persons, | 193 |
acting in the interest of an employer in relation to an employee, | 194 |
but does not include an employer whose annual gross volume of | 195 |
sales made for business done is less than one hundred fifty | 196 |
thousand dollars, exclusive of excise taxes at the retail level | 197 |
which are separately stated. | 198 |
(3) "Employee" means any individual employed by an employer | 199 |
but does not include: | 200 |
(a) Any individual employed by the United States; | 201 |
(b) Any individual employed as a | 202 |
the employer's home, or a live-in companion to a sick, | 203 |
convalescing, or elderly person whose principal duties do not | 204 |
include housekeeping; | 205 |
(c) Any individual engaged in the delivery of newspapers to | 206 |
the consumer; | 207 |
(d) Any individual employed as an outside salesperson | 208 |
compensated by commissions or employed in a bona fide executive, | 209 |
administrative, or professional capacity as such terms are defined | 210 |
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 | 211 |
U.S.C.A. 201, as amended; | 212 |
(e) Any individual who works or provides personal services of | 213 |
a charitable nature in a hospital or health institution for which | 214 |
compensation is not sought or contemplated; | 215 |
(f) A member of a police or fire protection agency or student | 216 |
employed on a part-time or seasonal basis by a political | 217 |
subdivision of this state; | 218 |
(g) Any individual in the employ of a camp or recreational | 219 |
area for children under eighteen years of age and owned and | 220 |
operated by a nonprofit organization or group of organizations | 221 |
described in Section 501(c)(3) of the "Internal Revenue Code of | 222 |
1954," and exempt from income tax under Section 501(a) of that | 223 |
code; | 224 |
(h) Any individual employed directly by the house of | 225 |
representatives or directly by the senate; | 226 |
(i) An individual who provides services for or on behalf of a | 227 |
motor transportation company transporting property; who is an | 228 |
operator of a car, van, truck, tractor, or truck-tractor that is | 229 |
licensed and registered under Chapter 4503. of the Revised Code or | 230 |
a similar law of another state; and to whom the majority of the | 231 |
following factors apply: | 232 |
(i) The individual owns the vehicle used to provide the | 233 |
service or holds it under a bona fide lease arrangement. | 234 |
(ii) The individual is responsible for the maintenance of the | 235 |
vehicle used to provide the service. | 236 |
(iii) The individual is responsible for the operating costs | 237 |
of the vehicle used to provide the service, including fuel, | 238 |
repairs, supplies, vehicle insurance, and personal expenses, | 239 |
except that the individual may be paid the carrier's fuel | 240 |
surcharge and incidental costs, including tolls, permits, and | 241 |
lumper fees. | 242 |
(iv) The individual is responsible for supplying the | 243 |
necessary personal services to operate the vehicle used to provide | 244 |
the service. | 245 |
(v) The compensation paid to the individual is based on | 246 |
factors related to work performed, including a percentage of any | 247 |
schedule of rates, and not on the basis of the hours or time | 248 |
expended. | 249 |
(vi) The individual substantially controls the means and | 250 |
manner of performing the services, in conformance with regulatory | 251 |
requirements and specifications of the shipper. | 252 |
(vii) The individual enters into a written contract that | 253 |
describes the relationship between the individual and the company | 254 |
for whom the individual is performing the service to be that of an | 255 |
independent contractor and not that of an employee. | 256 |
(4) "Motor transportation company" has the same meaning as in | 257 |
section 4921.02 of the Revised Code. | 258 |
Sec. 4121.01. (A) As used in sections 4121.01 to 4121.29 of | 259 |
the Revised Code: | 260 |
(1) "Place of employment" means every place, whether indoors | 261 |
or out, or underground, and the premises appurtenant thereto, | 262 |
where either temporarily or permanently any industry, trade, or | 263 |
business is carried on, or where any process or operation, | 264 |
directly or indirectly related to any industry, trade, or | 265 |
business, is carried on and where any person is directly or | 266 |
indirectly employed by another for direct or indirect gain or | 267 |
profit, but does not include any place where persons are employed | 268 |
in private domestic service or agricultural pursuits which do not | 269 |
involve the use of mechanical power. | 270 |
(2) "Employment" means any trade, occupation, or process of | 271 |
manufacture or any method of carrying on such trade, occupation, | 272 |
or process of manufacture in which any person may be engaged, | 273 |
except in such private domestic service or agricultural pursuits | 274 |
as do not involve the use of mechanical power. | 275 |
(3) "Employer" means every person, firm, corporation, agent, | 276 |
manager, representative, or other person having control or custody | 277 |
of any employment, place of employment, or employee. | 278 |
(4)(a) "Employee" means | 279 |
directed by any employer, in consideration of direct or indirect | 280 |
gain or profit, to engage in any employment, or to go, or work, or | 281 |
be at any time in any place of employment. | 282 |
(b) "Employee" does not include a person who provides | 283 |
services for or on behalf of a motor transportation company | 284 |
transporting property; who is an operator of a car, van, truck, | 285 |
tractor, or truck-tractor that is licensed and registered under | 286 |
Chapter 4503. of the Revised Code or a similar law of another | 287 |
state; and to whom the majority of the following factors apply: | 288 |
(i) The person owns the vehicle used to provide the service | 289 |
or holds it under a bona fide lease arrangement. | 290 |
(ii) The person is responsible for the maintenance of the | 291 |
vehicle used to provide the service. | 292 |
(iii) The person is responsible for the operating costs of | 293 |
the vehicle used to provide the service, including fuel, repairs, | 294 |
supplies, vehicle insurance, and personal expenses, except that | 295 |
the person may be paid the carrier's fuel surcharge and incidental | 296 |
costs, including tolls, permits, and lumper fees. | 297 |
(iv) The person is responsible for supplying the necessary | 298 |
personal services to operate the vehicle used to provide the | 299 |
service. | 300 |
(v) The compensation paid to the person is based on factors | 301 |
related to work performed, including a percentage of any schedule | 302 |
of rates, and not on the basis of the hours or time expended. | 303 |
(vi) The person substantially controls the means and manner | 304 |
of performing the services, in conformance with regulatory | 305 |
requirements and specifications of the shipper. | 306 |
(vii) The person enters into a written contract that | 307 |
describes the relationship between the person and the company for | 308 |
whom the person is performing the service to be that of an | 309 |
independent contractor and not that of an employee. | 310 |
(5) "Frequenter" means every person, other than an employee, | 311 |
who may go in or be in a place of employment under circumstances | 312 |
which render the person other than a trespasser. | 313 |
(6) "Deputy" means any person employed by the industrial | 314 |
commission or the bureau of workers' compensation, designated as a | 315 |
deputy by the commission or the administrator of workers' | 316 |
compensation, who possesses special, technical, scientific, | 317 |
managerial, professional, or personal abilities or qualities in | 318 |
matters within the jurisdiction of the commission or the bureau, | 319 |
and who may be engaged in the performance of duties under the | 320 |
direction of the commission or the bureau calling for the exercise | 321 |
of such abilities or qualities. | 322 |
(7) "Order" means any decision, rule, regulation, direction, | 323 |
requirement, or standard, or any other determination or decision | 324 |
that the bureau is empowered to and does make. | 325 |
(8) "General order" means an order that applies generally | 326 |
throughout the state to all persons, employments, or places of | 327 |
employment, or all persons, employments, or places of employment | 328 |
of a class under the jurisdiction of the bureau. All other orders | 329 |
shall be considered special orders. | 330 |
(9) "Local order" means any ordinance, order, rule, or | 331 |
determination of the legislative authority of any municipal | 332 |
corporation, or any trustees, or board or officers of any | 333 |
municipal corporation upon any matter over which the bureau has | 334 |
jurisdiction. | 335 |
(10) "Welfare" means comfort, decency, and moral well-being. | 336 |
(11) "Safe" or "safety," as applied to any employment or a | 337 |
place of employment, means such freedom from danger to the life, | 338 |
health, safety, or welfare of employees or frequenters as the | 339 |
nature of the employment will reasonably permit, including | 340 |
requirements as to the hours of labor with relation to the health | 341 |
and welfare of employees. | 342 |
(12) "Employee organization" means any labor or bona fide | 343 |
organization in which employees participate and that exists for | 344 |
the purpose, in whole or in part, of dealing with employers | 345 |
concerning grievances, labor disputes, wages, hours, terms, and | 346 |
other conditions of employment. | 347 |
(13) "Motor transportation company" has the same meaning as | 348 |
in section 4921.02 of the Revised Code. | 349 |
(B) As used in the Revised Code: | 350 |
(1) "Industrial commission" means the chairperson of the | 351 |
three-member industrial commission created pursuant to section | 352 |
4121.02 of the Revised Code when the context refers to the | 353 |
authority vested in the chairperson as the chief executive officer | 354 |
of the three-member industrial commission pursuant to divisions | 355 |
(A), (B), (C), and (D) of section 4121.03 of the Revised Code. | 356 |
(2) "Industrial commission" means the three-member industrial | 357 |
commission created pursuant to section 4121.02 of the Revised Code | 358 |
when the context refers to the authority vested in the | 359 |
three-member industrial commission pursuant to division (E) of | 360 |
section 4121.03 of the Revised Code. | 361 |
(3) "Industrial commission" means the industrial commission | 362 |
as a state agency when the context refers to the authority vested | 363 |
in the industrial commission as a state agency. | 364 |
Sec. 4123.01. As used in this chapter: | 365 |
(A)(1) "Employee" means: | 366 |
(a) Every person in the service of the state, or of any | 367 |
county, municipal corporation, township, or school district | 368 |
therein, including regular members of lawfully constituted police | 369 |
and fire departments of municipal corporations and townships, | 370 |
whether paid or volunteer, and wherever serving within the state | 371 |
or on temporary assignment outside thereof, and executive officers | 372 |
of boards of education, under any appointment or contract of hire, | 373 |
express or implied, oral or written, including any elected | 374 |
official of the state, or of any county, municipal corporation, or | 375 |
township, or members of boards of education. | 376 |
As used in division (A)(1)(a) of this section, the term | 377 |
"employee" includes the following persons when responding to an | 378 |
inherently dangerous situation that calls for an immediate | 379 |
response on the part of the person, regardless of whether the | 380 |
person is within the limits of the jurisdiction of the person's | 381 |
regular employment or voluntary service when responding, on the | 382 |
condition that the person responds to the situation as the person | 383 |
otherwise would if the person were on duty in the person's | 384 |
jurisdiction: | 385 |
(i) Off-duty peace officers. As used in division (A)(1)(a)(i) | 386 |
of this section, "peace officer" has the same meaning as in | 387 |
section 2935.01 of the Revised Code. | 388 |
(ii) Off-duty firefighters, whether paid or volunteer, of a | 389 |
lawfully constituted fire department. | 390 |
(iii) Off-duty first responders, emergency medical | 391 |
technicians-basic, emergency medical technicians-intermediate, or | 392 |
emergency medical technicians-paramedic, whether paid or | 393 |
volunteer, of an ambulance service organization or emergency | 394 |
medical service organization pursuant to Chapter 4765. of the | 395 |
Revised Code. | 396 |
(b) Every person in the service of any person, firm, or | 397 |
private corporation, including any public service corporation, | 398 |
that (i) employs one or more persons regularly in the same | 399 |
business or in or about the same establishment under any contract | 400 |
of hire, express or implied, oral or written, including aliens and | 401 |
minors, household workers who earn one hundred sixty dollars or | 402 |
more in cash in any calendar quarter from a single household and | 403 |
casual workers who earn one hundred sixty dollars or more in cash | 404 |
in any calendar quarter from a single employer, or (ii) is bound | 405 |
by any such contract of hire or by any other written contract, to | 406 |
pay into the state insurance fund the premiums provided by this | 407 |
chapter. | 408 |
(c) Every person who performs labor or provides services | 409 |
pursuant to a construction contract, as defined in section 4123.79 | 410 |
of the Revised Code, if at least ten of the following criteria | 411 |
apply: | 412 |
(i) The person is required to comply with instructions from | 413 |
the other contracting party regarding the manner or method of | 414 |
performing services; | 415 |
(ii) The person is required by the other contracting party to | 416 |
have particular training; | 417 |
(iii) The person's services are integrated into the regular | 418 |
functioning of the other contracting party; | 419 |
(iv) The person is required to perform the work personally; | 420 |
(v) The person is hired, supervised, or paid by the other | 421 |
contracting party; | 422 |
(vi) A continuing relationship exists between the person and | 423 |
the other contracting party that contemplates continuing or | 424 |
recurring work even if the work is not full time; | 425 |
(vii) The person's hours of work are established by the other | 426 |
contracting party; | 427 |
(viii) The person is required to devote full time to the | 428 |
business of the other contracting party; | 429 |
(ix) The person is required to perform the work on the | 430 |
premises of the other contracting party; | 431 |
(x) The person is required to follow the order of work set by | 432 |
the other contracting party; | 433 |
(xi) The person is required to make oral or written reports | 434 |
of progress to the other contracting party; | 435 |
(xii) The person is paid for services on a regular basis such | 436 |
as hourly, weekly, or monthly; | 437 |
(xiii) The person's expenses are paid for by the other | 438 |
contracting party; | 439 |
(xiv) The person's tools and materials are furnished by the | 440 |
other contracting party; | 441 |
(xv) The person is provided with the facilities used to | 442 |
perform services; | 443 |
(xvi) The person does not realize a profit or suffer a loss | 444 |
as a result of the services provided; | 445 |
(xvii) The person is not performing services for a number of | 446 |
employers at the same time; | 447 |
(xviii) The person does not make the same services available | 448 |
to the general public; | 449 |
(xix) The other contracting party has a right to discharge | 450 |
the person; | 451 |
(xx) The person has the right to end the relationship with | 452 |
the other contracting party without incurring liability pursuant | 453 |
to an employment contract or agreement. | 454 |
Every person in the service of any independent contractor or | 455 |
subcontractor who has failed to pay into the state insurance fund | 456 |
the amount of premium determined and fixed by the administrator of | 457 |
workers' compensation for the person's employment or occupation or | 458 |
if a self-insuring employer has failed to pay compensation and | 459 |
benefits directly to the employer's injured and to the dependents | 460 |
of the employer's killed employees as required by section 4123.35 | 461 |
of the Revised Code, shall be considered as the employee of the | 462 |
person who has entered into a contract, whether written or verbal, | 463 |
with such independent contractor unless such employees or their | 464 |
legal representatives or beneficiaries elect, after injury or | 465 |
death, to regard such independent contractor as the employer. | 466 |
(d) Every person to whom all of the following apply: | 467 |
(i) The person is a resident of a state other than this state | 468 |
and is covered by that other state's workers' compensation law; | 469 |
(ii) The person performs labor or provides services for that | 470 |
person's employer while temporarily within this state; | 471 |
(iii) The laws of that other state do not include the | 472 |
provisions described in division (H)(4) of section 4123.54 of the | 473 |
Revised Code. | 474 |
(e) Every person who provides services for or on behalf of a | 475 |
motor transportation company transporting property and who is an | 476 |
operator of a car, van, truck, tractor, or truck-tractor that is | 477 |
licensed and registered under Chapter 4503. of the Revised Code or | 478 |
a similar law of another state, unless a majority of the following | 479 |
factors apply to the person: | 480 |
(i) The person owns the vehicle used to provide the service | 481 |
or holds it under a bona fide lease arrangement. | 482 |
(ii) The person is responsible for the maintenance of the | 483 |
vehicle used to provide the service. | 484 |
(iii) The person is responsible for the operating costs of | 485 |
the vehicle used to provide the service, including fuel, repairs, | 486 |
supplies, vehicle insurance, and personal expenses, except that | 487 |
the person may be paid the carrier's fuel surcharge and incidental | 488 |
costs, including tolls, permits, and lumper fees. | 489 |
(iv) The person is responsible for supplying the necessary | 490 |
personal services to operate the vehicle used to provide the | 491 |
service. | 492 |
(v) The compensation paid to the person is based on factors | 493 |
related to work performed, including a percentage of any schedule | 494 |
of rates, and not on the basis of the hours or time expended. | 495 |
(vi) The person substantially controls the means and manner | 496 |
of performing the services, in conformance with regulatory | 497 |
requirements and specifications of the shipper. | 498 |
(vii) The individual enters into a written contract that | 499 |
describes the relationship between the person and the company for | 500 |
whom the person is performing the service to be that of an | 501 |
independent contractor and not that of an employee. | 502 |
(2) "Employee" does not mean: | 503 |
(a) A duly ordained, commissioned, or licensed minister or | 504 |
assistant or associate minister of a church in the exercise of | 505 |
ministry; | 506 |
(b) Any officer of a family farm corporation; | 507 |
(c) An individual incorporated as a corporation; or | 508 |
(d) An individual who otherwise is an employee of an employer | 509 |
but who signs the waiver and affidavit specified in section | 510 |
4123.15 of the Revised Code on the condition that the | 511 |
administrator has granted a waiver and exception to the | 512 |
individual's employer under section 4123.15 of the Revised Code. | 513 |
Any employer may elect to include as an "employee" within | 514 |
this chapter, any person excluded from the definition of | 515 |
"employee" pursuant to division (A)(2) of this section. If an | 516 |
employer is a partnership, sole proprietorship, individual | 517 |
incorporated as a corporation, or family farm corporation, such | 518 |
employer may elect to include as an "employee" within this | 519 |
chapter, any member of such partnership, the owner of the sole | 520 |
proprietorship, the individual incorporated as a corporation, or | 521 |
the officers of the family farm corporation. In the event of an | 522 |
election, the employer shall serve upon the bureau of workers' | 523 |
compensation written notice naming the persons to be covered, | 524 |
include such employee's remuneration for premium purposes in all | 525 |
future payroll reports, and no person excluded from the definition | 526 |
of "employee" pursuant to division (A)(2) of this section, | 527 |
proprietor, individual incorporated as a corporation, or partner | 528 |
shall be deemed an employee within this division until the | 529 |
employer has served such notice. | 530 |
For informational purposes only, the bureau shall prescribe | 531 |
such language as it considers appropriate, on such of its forms as | 532 |
it considers appropriate, to advise employers of their right to | 533 |
elect to include as an "employee" within this chapter a sole | 534 |
proprietor, any member of a partnership, an individual | 535 |
incorporated as a corporation, the officers of a family farm | 536 |
corporation, or a person excluded from the definition of | 537 |
"employee" under division (A)(2) of this section, that they should | 538 |
check any health and disability insurance policy, or other form of | 539 |
health and disability plan or contract, presently covering them, | 540 |
or the purchase of which they may be considering, to determine | 541 |
whether such policy, plan, or contract excludes benefits for | 542 |
illness or injury that they might have elected to have covered by | 543 |
workers' compensation. | 544 |
(B) "Employer" means: | 545 |
(1) The state, including state hospitals, each county, | 546 |
municipal corporation, township, school district, and hospital | 547 |
owned by a political subdivision or subdivisions other than the | 548 |
state; | 549 |
(2) Every person, firm, professional employer organization as | 550 |
defined in section 4125.01 of the Revised Code, and private | 551 |
corporation, including any public service corporation, that (a) | 552 |
has in service one or more employees or shared employees regularly | 553 |
in the same business or in or about the same establishment under | 554 |
any contract of hire, express or implied, oral or written, or (b) | 555 |
is bound by any such contract of hire or by any other written | 556 |
contract, to pay into the insurance fund the premiums provided by | 557 |
this chapter. | 558 |
All such employers are subject to this chapter. Any member of | 559 |
a firm or association, who regularly performs manual labor in or | 560 |
about a mine, factory, or other establishment, including a | 561 |
household establishment, shall be considered an employee in | 562 |
determining whether such person, firm, or private corporation, or | 563 |
public service corporation, has in its service, one or more | 564 |
employees and the employer shall report the income derived from | 565 |
such labor to the bureau as part of the payroll of such employer, | 566 |
and such member shall thereupon be entitled to all the benefits of | 567 |
an employee. | 568 |
(C) "Injury" includes any injury, whether caused by external | 569 |
accidental means or accidental in character and result, received | 570 |
in the course of, and arising out of, the injured employee's | 571 |
employment. "Injury" does not include: | 572 |
(1) Psychiatric conditions except where the claimant's | 573 |
psychiatric conditions have arisen from an injury or occupational | 574 |
disease sustained by that claimant or where the claimant's | 575 |
psychiatric conditions have arisen from sexual conduct in which | 576 |
the claimant was forced by threat of physical harm to engage or | 577 |
participate; | 578 |
(2) Injury or disability caused primarily by the natural | 579 |
deterioration of tissue, an organ, or part of the body; | 580 |
(3) Injury or disability incurred in voluntary participation | 581 |
in an employer-sponsored recreation or fitness activity if the | 582 |
employee signs a waiver of the employee's right to compensation or | 583 |
benefits under this chapter prior to engaging in the recreation or | 584 |
fitness activity; | 585 |
(4) A condition that pre-existed an injury unless that | 586 |
pre-existing condition is substantially aggravated by the injury. | 587 |
Such a substantial aggravation must be documented by objective | 588 |
diagnostic findings, objective clinical findings, or objective | 589 |
test results. Subjective complaints may be evidence of such a | 590 |
substantial aggravation. However, subjective complaints without | 591 |
objective diagnostic findings, objective clinical findings, or | 592 |
objective test results are insufficient to substantiate a | 593 |
substantial aggravation. | 594 |
(D) "Child" includes a posthumous child and a child legally | 595 |
adopted prior to the injury. | 596 |
(E) "Family farm corporation" means a corporation founded for | 597 |
the purpose of farming agricultural land in which the majority of | 598 |
the voting stock is held by and the majority of the stockholders | 599 |
are persons or the spouse of persons related to each other within | 600 |
the fourth degree of kinship, according to the rules of the civil | 601 |
law, and at least one of the related persons is residing on or | 602 |
actively operating the farm, and none of whose stockholders are a | 603 |
corporation. A family farm corporation does not cease to qualify | 604 |
under this division where, by reason of any devise, bequest, or | 605 |
the operation of the laws of descent or distribution, the | 606 |
ownership of shares of voting stock is transferred to another | 607 |
person, as long as that person is within the degree of kinship | 608 |
stipulated in this division. | 609 |
(F) "Occupational disease" means a disease contracted in the | 610 |
course of employment, which by its causes and the characteristics | 611 |
of its manifestation or the condition of the employment results in | 612 |
a hazard which distinguishes the employment in character from | 613 |
employment generally, and the employment creates a risk of | 614 |
contracting the disease in greater degree and in a different | 615 |
manner from the public in general. | 616 |
(G) "Self-insuring employer" means an employer who is granted | 617 |
the privilege of paying compensation and benefits directly under | 618 |
section 4123.35 of the Revised Code, including a board of county | 619 |
commissioners for the sole purpose of constructing a sports | 620 |
facility as defined in section 307.696 of the Revised Code, | 621 |
provided that the electors of the county in which the sports | 622 |
facility is to be built have approved construction of a sports | 623 |
facility by ballot election no later than November 6, 1997. | 624 |
(H) "Public employer" means an employer as defined in | 625 |
division (B)(1) of this section. | 626 |
(I) "Sexual conduct" means vaginal intercourse between a male | 627 |
and female; anal intercourse, fellatio, and cunnilingus between | 628 |
persons regardless of gender; and, without privilege to do so, the | 629 |
insertion, however slight, of any part of the body or any | 630 |
instrument, apparatus, or other object into the vaginal or anal | 631 |
cavity of another. Penetration, however slight, is sufficient to | 632 |
complete vaginal or anal intercourse. | 633 |
(J) "Other-states' insurer" means an insurance company that | 634 |
is authorized to provide workers' compensation insurance coverage | 635 |
in any of the states that permit employers to obtain insurance for | 636 |
workers' compensation claims through insurance companies. | 637 |
(K) "Other-states' coverage" means insurance coverage | 638 |
purchased by an employer for workers' compensation claims that | 639 |
arise in a state or states other than this state and that are | 640 |
filed by the employees of the employer or those employee's | 641 |
dependents, as applicable, in that other state or those other | 642 |
states. | 643 |
(L) "Motor transportation company" has the same meaning as in | 644 |
section 4921.02 of the Revised Code. | 645 |
Sec. 4141.01. As used in this chapter, unless the context | 646 |
otherwise requires: | 647 |
(A)(1) "Employer" means the state, its instrumentalities, its | 648 |
political subdivisions and their instrumentalities, Indian tribes, | 649 |
and any individual or type of organization including any | 650 |
partnership, limited liability company, association, trust, | 651 |
estate, joint-stock company, insurance company, or corporation, | 652 |
whether domestic or foreign, or the receiver, trustee in | 653 |
bankruptcy, trustee, or the successor thereof, or the legal | 654 |
representative of a deceased person who subsequent to December 31, | 655 |
1971, or in the case of political subdivisions or their | 656 |
instrumentalities, subsequent to December 31, 1973: | 657 |
(a) Had in employment at least one individual, or in the case | 658 |
of a nonprofit organization, subsequent to December 31, 1973, had | 659 |
not less than four individuals in employment for some portion of a | 660 |
day in each of twenty different calendar weeks, in either the | 661 |
current or the preceding calendar year whether or not the same | 662 |
individual was in employment in each such day; or | 663 |
(b) Except for a nonprofit organization, had paid for service | 664 |
in employment wages of fifteen hundred dollars or more in any | 665 |
calendar quarter in either the current or preceding calendar year; | 666 |
or | 667 |
(c) Had paid, subsequent to December 31, 1977, for employment | 668 |
in domestic service in a local college club, or local chapter of a | 669 |
college fraternity or sorority, cash remuneration of one thousand | 670 |
dollars or more in any calendar quarter in the current calendar | 671 |
year or the preceding calendar year, or had paid subsequent to | 672 |
December 31, 1977, for employment in domestic service in a private | 673 |
home cash remuneration of one thousand dollars in any calendar | 674 |
quarter in the current calendar year or the preceding calendar | 675 |
year: | 676 |
(i) For the purposes of divisions (A)(1)(a) and (b) of this | 677 |
section, there shall not be taken into account any wages paid to, | 678 |
or employment of, an individual performing domestic service as | 679 |
described in this division. | 680 |
(ii) An employer under this division shall not be an employer | 681 |
with respect to wages paid for any services other than domestic | 682 |
service unless the employer is also found to be an employer under | 683 |
division (A)(1)(a), (b), or (d) of this section. | 684 |
(d) As a farm operator or a crew leader subsequent to | 685 |
December 31, 1977, had in employment individuals in agricultural | 686 |
labor; and | 687 |
(i) During any calendar quarter in the current calendar year | 688 |
or the preceding calendar year, paid cash remuneration of twenty | 689 |
thousand dollars or more for the agricultural labor; or | 690 |
(ii) Had at least ten individuals in employment in | 691 |
agricultural labor, not including agricultural workers who are | 692 |
aliens admitted to the United States to perform agricultural labor | 693 |
pursuant to sections 1184(c) and 1101(a)(15)(H) of the | 694 |
"Immigration and Nationality Act," 66 Stat. 163, 189, 8 U.S.C.A. | 695 |
1101(a)(15)(H)(ii)(a), 1184(c), for some portion of a day in each | 696 |
of the twenty different calendar weeks, in either the current or | 697 |
preceding calendar year whether or not the same individual was in | 698 |
employment in each day; or | 699 |
(e) Is not otherwise an employer as defined under division | 700 |
(A)(1)(a) or (b) of this section; and | 701 |
(i) For which, within either the current or preceding | 702 |
calendar year, service, except for domestic service in a private | 703 |
home not covered under division (A)(1)(c) of this section, is or | 704 |
was performed with respect to which such employer is liable for | 705 |
any federal tax against which credit may be taken for | 706 |
contributions required to be paid into a state unemployment fund; | 707 |
(ii) Which, as a condition for approval of this chapter for | 708 |
full tax credit against the tax imposed by the "Federal | 709 |
Unemployment Tax Act," 84 Stat. 713, 26 U.S.C.A. 3301 to 3311, is | 710 |
required, pursuant to such act to be an employer under this | 711 |
chapter; or | 712 |
(iii) Who became an employer by election under division | 713 |
(A)(4) or (5) of this section and for the duration of such | 714 |
election; or | 715 |
(f) In the case of the state, its instrumentalities, its | 716 |
political subdivisions, and their instrumentalities, and Indian | 717 |
tribes, had in employment, as defined in divisions (B)(2)(a) and | 718 |
(B)(2)(l) of this section, at least one individual; | 719 |
(g) For the purposes of division (A)(1)(a) of this section, | 720 |
if any week includes both the thirty-first day of December and the | 721 |
first day of January, the days of that week before the first day | 722 |
of January shall be considered one calendar week and the days | 723 |
beginning the first day of January another week. | 724 |
(2) Each individual employed to perform or to assist in | 725 |
performing the work of any agent or employee of an employer is | 726 |
employed by such employer for all the purposes of this chapter, | 727 |
whether such individual was hired or paid directly by such | 728 |
employer or by such agent or employee, provided the employer had | 729 |
actual or constructive knowledge of the work. All individuals | 730 |
performing services for an employer of any person in this state | 731 |
who maintains two or more establishments within this state are | 732 |
employed by a single employer for the purposes of this chapter. | 733 |
(3) An employer subject to this chapter within any calendar | 734 |
year is subject to this chapter during the whole of such year and | 735 |
during the next succeeding calendar year. | 736 |
(4) An employer not otherwise subject to this chapter who | 737 |
files with the director of job and family services a written | 738 |
election to become an employer subject to this chapter for not | 739 |
less than two calendar years shall, with the written approval of | 740 |
such election by the director, become an employer subject to this | 741 |
chapter to the same extent as all other employers as of the date | 742 |
stated in such approval, and shall cease to be subject to this | 743 |
chapter as of the first day of January of any calendar year | 744 |
subsequent to such two calendar years only if at least thirty days | 745 |
prior to such first day of January the employer has filed with the | 746 |
director a written notice to that effect. | 747 |
(5) Any employer for whom services that do not constitute | 748 |
employment are performed may file with the director a written | 749 |
election that all such services performed by individuals in the | 750 |
employer's employ in one or more distinct establishments or places | 751 |
of business shall be deemed to constitute employment for all the | 752 |
purposes of this chapter, for not less than two calendar years. | 753 |
Upon written approval of the election by the director, such | 754 |
services shall be deemed to constitute employment subject to this | 755 |
chapter from and after the date stated in such approval. Such | 756 |
services shall cease to be employment subject to this chapter as | 757 |
of the first day of January of any calendar year subsequent to | 758 |
such two calendar years only if at least thirty days prior to such | 759 |
first day of January such employer has filed with the director a | 760 |
written notice to that effect. | 761 |
(B)(1) "Employment" means service performed by an individual | 762 |
for remuneration under any contract of hire, written or oral, | 763 |
express or implied, including service performed in interstate | 764 |
commerce and service performed by an officer of a corporation, | 765 |
without regard to whether such service is executive, managerial, | 766 |
or manual in nature, and without regard to whether such officer is | 767 |
a stockholder or a member of the board of directors of the | 768 |
corporation, unless it is shown to the satisfaction of the | 769 |
director that such individual has been and will continue to be | 770 |
free from direction or control over the performance of such | 771 |
service, both under a contract of service and in fact. The | 772 |
director shall adopt rules to define "direction or control." | 773 |
(2) "Employment" includes: | 774 |
(a) Service performed after December 31, 1977, by an | 775 |
individual in the employ of the state or any of its | 776 |
instrumentalities, or any political subdivision thereof or any of | 777 |
its instrumentalities or any instrumentality of more than one of | 778 |
the foregoing or any instrumentality of any of the foregoing and | 779 |
one or more other states or political subdivisions and without | 780 |
regard to divisions (A)(1)(a) and (b) of this section, provided | 781 |
that such service is excluded from employment as defined in the | 782 |
"Federal Unemployment Tax Act," 53 Stat. 183, 26 U.S.C.A. 3301, | 783 |
3306(c)(7) and is not excluded under division (B)(3) of this | 784 |
section; or the services of employees covered by voluntary | 785 |
election, as provided under divisions (A)(4) and (5) of this | 786 |
section; | 787 |
(b) Service performed after December 31, 1971, by an | 788 |
individual in the employ of a religious, charitable, educational, | 789 |
or other organization which is excluded from the term "employment" | 790 |
as defined in the "Federal Unemployment Tax Act," 84 Stat. 713, 26 | 791 |
U.S.C.A. 3301 to 3311, solely by reason of section 26 U.S.C.A. | 792 |
3306(c)(8) of that act and is not excluded under division (B)(3) | 793 |
of this section; | 794 |
(c) Domestic service performed after December 31, 1977, for | 795 |
an employer, as provided in division (A)(1)(c) of this section; | 796 |
(d) Agricultural labor performed after December 31, 1977, for | 797 |
a farm operator or a crew leader, as provided in division | 798 |
(A)(1)(d) of this section; | 799 |
(e) | 800 |
service not covered under division (B)(1) of this section which is | 801 |
performed after December 31, 1971: | 802 |
(i) As an agent-driver or commission-driver engaged in | 803 |
distributing meat products, vegetable products, fruit products, | 804 |
bakery products, beverages other than milk, laundry, or | 805 |
dry-cleaning services, for the individual's employer or principal; | 806 |
(ii) As a traveling or city salesperson, other than as an | 807 |
agent-driver or commission-driver, engaged on a full-time basis in | 808 |
the solicitation on behalf of and in the transmission to the | 809 |
salesperson's employer or principal except for sideline sales | 810 |
activities on behalf of some other person of orders from | 811 |
wholesalers, retailers, contractors, or operators of hotels, | 812 |
restaurants, or other similar establishments for merchandise for | 813 |
resale, or supplies for use in their business operations, provided | 814 |
that for the purposes of division (B)(2)(e)(ii) of this section, | 815 |
the services shall be deemed employment if the contract of service | 816 |
contemplates that substantially all of the services are to be | 817 |
performed personally by the individual and that the individual | 818 |
does not have a substantial investment in facilities used in | 819 |
connection with the performance of the services other than in | 820 |
facilities for transportation, and the services are not in the | 821 |
nature of a single transaction that is not a part of a continuing | 822 |
relationship with the person for whom the services are performed. | 823 |
(f) An individual's entire service performed within or both | 824 |
within and without the state if: | 825 |
(i) The service is localized in this state. | 826 |
(ii) The service is not localized in any state, but some of | 827 |
the service is performed in this state and either the base of | 828 |
operations, or if there is no base of operations then the place | 829 |
from which such service is directed or controlled, is in this | 830 |
state or the base of operations or place from which such service | 831 |
is directed or controlled is not in any state in which some part | 832 |
of the service is performed but the individual's residence is in | 833 |
this state. | 834 |
(g) Service not covered under division (B)(2)(f)(ii) of this | 835 |
section and performed entirely without this state, with respect to | 836 |
no part of which contributions are required and paid under an | 837 |
unemployment compensation law of any other state, the Virgin | 838 |
Islands, Canada, or of the United States, if the individual | 839 |
performing such service is a resident of this state and the | 840 |
director approves the election of the employer for whom such | 841 |
services are performed; or, if the individual is not a resident of | 842 |
this state but the place from which the service is directed or | 843 |
controlled is in this state, the entire services of such | 844 |
individual shall be deemed to be employment subject to this | 845 |
chapter, provided service is deemed to be localized within this | 846 |
state if the service is performed entirely within this state or if | 847 |
the service is performed both within and without this state but | 848 |
the service performed without this state is incidental to the | 849 |
individual's service within the state, for example, is temporary | 850 |
or transitory in nature or consists of isolated transactions; | 851 |
(h) Service of an individual who is a citizen of the United | 852 |
States, performed outside the United States except in Canada after | 853 |
December 31, 1971, or the Virgin Islands, after December 31, 1971, | 854 |
and before the first day of January of the year following that in | 855 |
which the United States secretary of labor approves the Virgin | 856 |
Islands law for the first time, in the employ of an American | 857 |
employer, other than service which is "employment" under divisions | 858 |
(B)(2)(f) and (g) of this section or similar provisions of another | 859 |
state's law, if: | 860 |
(i) The employer's principal place of business in the United | 861 |
States is located in this state; | 862 |
(ii) The employer has no place of business in the United | 863 |
States, but the employer is an individual who is a resident of | 864 |
this state; or the employer is a corporation which is organized | 865 |
under the laws of this state, or the employer is a partnership or | 866 |
a trust and the number of partners or trustees who are residents | 867 |
of this state is greater than the number who are residents of any | 868 |
other state; or | 869 |
(iii) None of the criteria of divisions (B)(2)(f)(i) and (ii) | 870 |
of this section is met but the employer has elected coverage in | 871 |
this state or the employer having failed to elect coverage in any | 872 |
state, the individual has filed a claim for benefits, based on | 873 |
such service, under this chapter. | 874 |
(i) For the purposes of division (B)(2)(h) of this section, | 875 |
the term "American employer" means an employer who is an | 876 |
individual who is a resident of the United States; or a | 877 |
partnership, if two-thirds or more of the partners are residents | 878 |
of the United States; or a trust, if all of the trustees are | 879 |
residents of the United States; or a corporation organized under | 880 |
the laws of the United States or of any state, provided the term | 881 |
"United States" includes the states, the District of Columbia, the | 882 |
Commonwealth of Puerto Rico, and the Virgin Islands. | 883 |
(j) Notwithstanding any other provisions of divisions (B)(1) | 884 |
and (2) of this section, service, except for domestic service in a | 885 |
private home not covered under division (A)(1)(c) of this section, | 886 |
with respect to which a tax is required to be paid under any | 887 |
federal law imposing a tax against which credit may be taken for | 888 |
contributions required to be paid into a state unemployment fund, | 889 |
or service, except for domestic service in a private home not | 890 |
covered under division (A)(1)(c) of this section, which, as a | 891 |
condition for full tax credit against the tax imposed by the | 892 |
"Federal Unemployment Tax Act," 84 Stat. 713, 26 U.S.C.A. 3301 to | 893 |
3311, is required to be covered under this chapter. | 894 |
(k) Construction services performed by any individual under a | 895 |
construction contract, as defined in section 4141.39 of the | 896 |
Revised Code, if the director determines that the employer for | 897 |
whom services are performed has the right to direct or control the | 898 |
performance of the services and that the individuals who perform | 899 |
the services receive remuneration for the services performed. The | 900 |
director shall presume that the employer for whom services are | 901 |
performed has the right to direct or control the performance of | 902 |
the services if ten or more of the following criteria apply: | 903 |
(i) The employer directs or controls the manner or method by | 904 |
which instructions are given to the individual performing | 905 |
services; | 906 |
(ii) The employer requires particular training for the | 907 |
individual performing services; | 908 |
(iii) Services performed by the individual are integrated | 909 |
into the regular functioning of the employer; | 910 |
(iv) The employer requires that services be provided by a | 911 |
particular individual; | 912 |
(v) The employer hires, supervises, or pays the wages of the | 913 |
individual performing services; | 914 |
(vi) A continuing relationship between the employer and the | 915 |
individual performing services exists which contemplates | 916 |
continuing or recurring work, even if not full-time work; | 917 |
(vii) The employer requires the individual to perform | 918 |
services during established hours; | 919 |
(viii) The employer requires that the individual performing | 920 |
services be devoted on a full-time basis to the business of the | 921 |
employer; | 922 |
(ix) The employer requires the individual to perform services | 923 |
on the employer's premises; | 924 |
(x) The employer requires the individual performing services | 925 |
to follow the order of work established by the employer; | 926 |
(xi) The employer requires the individual performing services | 927 |
to make oral or written reports of progress; | 928 |
(xii) The employer makes payment to the individual for | 929 |
services on a regular basis, such as hourly, weekly, or monthly; | 930 |
(xiii) The employer pays expenses for the individual | 931 |
performing services; | 932 |
(xiv) The employer furnishes the tools and materials for use | 933 |
by the individual to perform services; | 934 |
(xv) The individual performing services has not invested in | 935 |
the facilities used to perform services; | 936 |
(xvi) The individual performing services does not realize a | 937 |
profit or suffer a loss as a result of the performance of the | 938 |
services; | 939 |
(xvii) The individual performing services is not performing | 940 |
services for more than two employers simultaneously; | 941 |
(xviii) The individual performing services does not make the | 942 |
services available to the general public; | 943 |
(xix) The employer has a right to discharge the individual | 944 |
performing services; | 945 |
(xx) The individual performing services has the right to end | 946 |
the individual's relationship with the employer without incurring | 947 |
liability pursuant to an employment contract or agreement. | 948 |
(l) Service performed by an individual in the employ of an | 949 |
Indian tribe as defined by section 4(e) of the "Indian | 950 |
Self-Determination and Education Assistance Act," 88 Stat. 2204 | 951 |
(1975), 25 U.S.C.A. 450b(e), including any subdivision, | 952 |
subsidiary, or business enterprise wholly owned by an Indian tribe | 953 |
provided that the service is excluded from employment as defined | 954 |
in the "Federal Unemployment Tax Act," 53 Stat. 183 | 955 |
U.S.C.A. 3301 and 3306(c)(7) and is not excluded under division | 956 |
(B)(3) of this section. | 957 |
(m) Service performed by an individual for or on behalf of a | 958 |
motor transportation company transporting property and the | 959 |
individual is an operator of a car, van, truck, tractor, or | 960 |
truck-tractor that is licensed and registered under Chapter 4503. | 961 |
of the Revised Code or a similar law of another state, unless the | 962 |
majority of the following factors apply to the individual: | 963 |
(i) The individual owns the vehicle used to provide the | 964 |
service or holds it under a bona fide lease arrangement. | 965 |
(ii) The individual is responsible for the maintenance of the | 966 |
vehicle used to provide the service. | 967 |
(iii) The individual is responsible for the operating costs | 968 |
of the vehicle used to provide the service, including fuel, | 969 |
repairs, supplies, vehicle insurance, and personal expenses, | 970 |
except that the individual may be paid the carrier's fuel | 971 |
surcharge and incidental costs, including tolls, permits, and | 972 |
lumper fees. | 973 |
(iv) The individual is responsible for supplying the | 974 |
necessary personal services to operate the vehicle used to provide | 975 |
the service. | 976 |
(v) The compensation paid to the individual is based on | 977 |
factors related to work performed, including a percentage of any | 978 |
schedule of rates, and not on the basis of the hours or time | 979 |
expended. | 980 |
(vi) The individual substantially controls the means and | 981 |
manner of performing the services, in conformance with regulatory | 982 |
requirements and specifications of the shipper. | 983 |
(vii) The individual enters into a written contract that | 984 |
describes the relationship between the individual and the company | 985 |
for whom the individual is performing the service to be that of an | 986 |
independent contractor and not that of an employee. | 987 |
(3) "Employment" does not include the following services if | 988 |
they are found not subject to the "Federal Unemployment Tax Act," | 989 |
84 Stat. 713 (1970), 26 U.S.C.A. 3301 to 3311, and if the services | 990 |
are not required to be included under division (B)(2)(j) of this | 991 |
section: | 992 |
(a) Service performed after December 31, 1977, in | 993 |
agricultural labor, except as provided in division (A)(1)(d) of | 994 |
this section; | 995 |
(b) Domestic service performed after December 31, 1977, in a | 996 |
private home, local college club, or local chapter of a college | 997 |
fraternity or sorority except as provided in division (A)(1)(c) of | 998 |
this section; | 999 |
(c) Service performed after December 31, 1977, for this state | 1000 |
or a political subdivision as described in division (B)(2)(a) of | 1001 |
this section when performed: | 1002 |
(i) As a publicly elected official; | 1003 |
(ii) As a member of a legislative body, or a member of the | 1004 |
judiciary; | 1005 |
(iii) As a military member of the Ohio national guard; | 1006 |
(iv) As an employee, not in the classified service as defined | 1007 |
in section 124.11 of the Revised Code, serving on a temporary | 1008 |
basis in case of fire, storm, snow, earthquake, flood, or similar | 1009 |
emergency; | 1010 |
(v) In a position which, under or pursuant to law, is | 1011 |
designated as a major nontenured policymaking or advisory | 1012 |
position, not in the classified service of the state, or a | 1013 |
policymaking or advisory position the performance of the duties of | 1014 |
which ordinarily does not require more than eight hours per week. | 1015 |
(d) In the employ of any governmental unit or instrumentality | 1016 |
of the United States; | 1017 |
(e) Service performed after December 31, 1971: | 1018 |
(i) Service in the employ of an educational institution or | 1019 |
institution of higher education, including those operated by the | 1020 |
state or a political subdivision, if such service is performed by | 1021 |
a student who is enrolled and is regularly attending classes at | 1022 |
the educational institution or institution of higher education; or | 1023 |
(ii) By an individual who is enrolled at a nonprofit or | 1024 |
public educational institution which normally maintains a regular | 1025 |
faculty and curriculum and normally has a regularly organized body | 1026 |
of students in attendance at the place where its educational | 1027 |
activities are carried on as a student in a full-time program, | 1028 |
taken for credit at the institution, which combines academic | 1029 |
instruction with work experience, if the service is an integral | 1030 |
part of the program, and the institution has so certified to the | 1031 |
employer, provided that this subdivision shall not apply to | 1032 |
service performed in a program established for or on behalf of an | 1033 |
employer or group of employers | 1034 |
(f) Service performed by an individual in the employ of the | 1035 |
individual's son, daughter, or spouse and service performed by a | 1036 |
child under the age of eighteen in the employ of the child's | 1037 |
father or mother; | 1038 |
(g) Service performed for one or more principals by an | 1039 |
individual who is compensated on a commission basis, who in the | 1040 |
performance of the work is master of the individual's own time and | 1041 |
efforts, and whose remuneration is wholly dependent on the amount | 1042 |
of effort the individual chooses to expend, and which service is | 1043 |
not subject to the "Federal Unemployment Tax Act," 53 Stat. 183 | 1044 |
(1939), 26 U.S.C.A. 3301 to 3311. Service performed after December | 1045 |
31, 1971: | 1046 |
(i) By an individual for an employer as an insurance agent or | 1047 |
as an insurance solicitor, if all this service is performed for | 1048 |
remuneration solely by way of commission; | 1049 |
(ii) As a home worker performing work, according to | 1050 |
specifications furnished by the employer for whom the services are | 1051 |
performed, on materials or goods furnished by such employer which | 1052 |
are required to be returned to the employer or to a person | 1053 |
designated for that purpose. | 1054 |
(h) Service performed after December 31, 1971: | 1055 |
(i) In the employ of a church or convention or association of | 1056 |
churches, or in an organization which is operated primarily for | 1057 |
religious purposes and which is operated, supervised, controlled, | 1058 |
or principally supported by a church or convention or association | 1059 |
of churches; | 1060 |
(ii) By a duly ordained, commissioned, or licensed minister | 1061 |
of a church in the exercise of the individual's ministry or by a | 1062 |
member of a religious order in the exercise of duties required by | 1063 |
such order; or | 1064 |
(iii) In a facility conducted for the purpose of carrying out | 1065 |
a program of rehabilitation for individuals whose earning capacity | 1066 |
is impaired by age or physical or mental deficiency or injury, or | 1067 |
providing remunerative work for individuals who because of their | 1068 |
impaired physical or mental capacity cannot be readily absorbed in | 1069 |
the competitive labor market, by an individual receiving such | 1070 |
rehabilitation or remunerative work | 1071 |
(i) Service performed after June 30, 1939, with respect to | 1072 |
which unemployment compensation is payable under the "Railroad | 1073 |
Unemployment Insurance Act," 52 Stat. 1094 (1938), 45 U.S.C. 351; | 1074 |
(j) Service performed by an individual in the employ of any | 1075 |
organization exempt from income tax under section 501 of the | 1076 |
"Internal Revenue Code of 1954," if the remuneration for such | 1077 |
service does not exceed fifty dollars in any calendar quarter, or | 1078 |
if such service is in connection with the collection of dues or | 1079 |
premiums for a fraternal beneficial society, order, or association | 1080 |
and is performed away from the home office or is ritualistic | 1081 |
service in connection with any such society, order, or | 1082 |
association; | 1083 |
(k) Casual labor not in the course of an employer's trade or | 1084 |
business; incidental service performed by an officer, appraiser, | 1085 |
or member of a finance committee of a bank, building and loan | 1086 |
association, savings and loan association, or savings association | 1087 |
when the remuneration for such incidental service exclusive of the | 1088 |
amount paid or allotted for directors' fees does not exceed sixty | 1089 |
dollars per calendar quarter is casual labor; | 1090 |
(l) Service performed in the employ of a voluntary employees' | 1091 |
beneficial association providing for the payment of life, | 1092 |
sickness, accident, or other benefits to the members of such | 1093 |
association or their dependents or their designated beneficiaries, | 1094 |
if admission to a membership in such association is limited to | 1095 |
individuals who are officers or employees of a municipal or public | 1096 |
corporation, of a political subdivision of the state, or of the | 1097 |
United States and no part of the net earnings of such association | 1098 |
inures, other than through such payments, to the benefit of any | 1099 |
private shareholder or individual; | 1100 |
(m) Service performed by an individual in the employ of a | 1101 |
foreign government, including service as a consular or other | 1102 |
officer or employee or of a nondiplomatic representative; | 1103 |
(n) Service performed in the employ of an instrumentality | 1104 |
wholly owned by a foreign government if the service is of a | 1105 |
character similar to that performed in foreign countries by | 1106 |
employees of the United States or of an instrumentality thereof | 1107 |
and if the director finds that the secretary of state of the | 1108 |
United States has certified to the secretary of the treasury of | 1109 |
the United States that the foreign government, with respect to | 1110 |
whose instrumentality exemption is claimed, grants an equivalent | 1111 |
exemption with respect to similar service performed in the foreign | 1112 |
country by employees of the United States and of instrumentalities | 1113 |
thereof; | 1114 |
(o) Service with respect to which unemployment compensation | 1115 |
is payable under an unemployment compensation system established | 1116 |
by an act of congress; | 1117 |
(p) Service performed as a student nurse in the employ of a | 1118 |
hospital or a nurses' training school by an individual who is | 1119 |
enrolled and is regularly attending classes in a nurses' training | 1120 |
school chartered or approved pursuant to state law, and service | 1121 |
performed as an intern in the employ of a hospital by an | 1122 |
individual who has completed a four years' course in a medical | 1123 |
school chartered or approved pursuant to state law; | 1124 |
(q) Service performed by an individual under the age of | 1125 |
eighteen in the delivery or distribution of newspapers or shopping | 1126 |
news, not including delivery or distribution to any point for | 1127 |
subsequent delivery or distribution; | 1128 |
(r) Service performed in the employ of the United States or | 1129 |
an instrumentality of the United States immune under the | 1130 |
Constitution of the United States from the contributions imposed | 1131 |
by this chapter, except that to the extent that congress permits | 1132 |
states to require any instrumentalities of the United States to | 1133 |
make payments into an unemployment fund under a state unemployment | 1134 |
compensation act, this chapter shall be applicable to such | 1135 |
instrumentalities and to services performed for such | 1136 |
instrumentalities in the same manner, to the same extent, and on | 1137 |
the same terms as to all other employers, individuals, and | 1138 |
services, provided that if this state is not certified for any | 1139 |
year by the proper agency of the United States under section 3304 | 1140 |
of the "Internal Revenue Code of 1954," the payments required of | 1141 |
such instrumentalities with respect to such year shall be refunded | 1142 |
by the director from the fund in the same manner and within the | 1143 |
same period as is provided in division (E) of section 4141.09 of | 1144 |
the Revised Code with respect to contributions erroneously | 1145 |
collected; | 1146 |
(s) Service performed by an individual as a member of a band | 1147 |
or orchestra, provided such service does not represent the | 1148 |
principal occupation of such individual, and which service is not | 1149 |
subject to or required to be covered for full tax credit against | 1150 |
the tax imposed by the "Federal Unemployment Tax Act," 53 Stat. | 1151 |
183 (1939), 26 U.S.C.A. 3301 to 3311. | 1152 |
(t) Service performed in the employ of a day camp whose | 1153 |
camping season does not exceed twelve weeks in any calendar year, | 1154 |
and which service is not subject to the "Federal Unemployment Tax | 1155 |
Act," 53 Stat. 183 (1939), 26 U.S.C.A. 3301 to 3311. Service | 1156 |
performed after December 31, 1971: | 1157 |
(i) In the employ of a hospital, if the service is performed | 1158 |
by a patient of the hospital, as defined in division (W) of this | 1159 |
section; | 1160 |
(ii) For a prison or other correctional institution by an | 1161 |
inmate of the prison or correctional institution; | 1162 |
(iii) Service performed after December 31, 1977, by an inmate | 1163 |
of a custodial institution operated by the state, a political | 1164 |
subdivision, or a nonprofit organization. | 1165 |
(u) Service that is performed by a nonresident alien | 1166 |
individual for the period the individual temporarily is present in | 1167 |
the United States as a nonimmigrant under division (F), (J), (M), | 1168 |
or (Q) of section 101(a)(15) of the "Immigration and Nationality | 1169 |
Act," 66 Stat. 163, 8 U.S.C.A. 1101, as amended, that is excluded | 1170 |
under section 3306(c)(19) of the "Federal Unemployment Tax Act," | 1171 |
53 Stat. 183 (1939), 26 U.S.C.A. 3301 to 3311. | 1172 |
(v) Notwithstanding any other provisions of division (B)(3) | 1173 |
of this section, services that are excluded under divisions | 1174 |
(B)(3)(g), (j), (k), and (l) of this section shall not be excluded | 1175 |
from employment when performed for a nonprofit organization, as | 1176 |
defined in division (X) of this section, or for this state or its | 1177 |
instrumentalities, or for a political subdivision or its | 1178 |
instrumentalities or for Indian tribes; | 1179 |
(w) Service that is performed by an individual working as an | 1180 |
election official or election worker if the amount of remuneration | 1181 |
received by the individual during the calendar year for services | 1182 |
as an election official or election worker is less than one | 1183 |
thousand dollars; | 1184 |
(x) Service performed for an elementary or secondary school | 1185 |
that is operated primarily for religious purposes, that is | 1186 |
described in subsection 501(c)(3) and exempt from federal income | 1187 |
taxation under subsection 501(a) of the Internal Revenue Code, 26 | 1188 |
U.S.C.A. 501; | 1189 |
(y) Service performed by a person committed to a penal | 1190 |
institution. | 1191 |
(z) Service performed for an Indian tribe as described in | 1192 |
division (B)(2)(l) of this section when performed in any of the | 1193 |
following manners: | 1194 |
(i) As a publicly elected official; | 1195 |
(ii) As a member of an Indian tribal council; | 1196 |
(iii) As a member of a legislative or judiciary body; | 1197 |
(iv) In a position which, pursuant to Indian tribal law, is | 1198 |
designated as a major nontenured policymaking or advisory | 1199 |
position, or a policymaking or advisory position where the | 1200 |
performance of the duties ordinarily does not require more than | 1201 |
eight hours of time per week; | 1202 |
(v) As an employee serving on a temporary basis in the case | 1203 |
of a fire, storm, snow, earthquake, flood, or similar emergency. | 1204 |
(aa) Service performed after December 31, 1971, for a | 1205 |
nonprofit organization, this state or its instrumentalities, a | 1206 |
political subdivision or its instrumentalities, or an Indian tribe | 1207 |
as part of an unemployment work-relief or work-training program | 1208 |
assisted or financed in whole or in part by any federal agency or | 1209 |
an agency of a state or political subdivision, thereof, by an | 1210 |
individual receiving the work-relief or work-training. | 1211 |
(4) If the services performed during one half or more of any | 1212 |
pay period by an employee for the person employing that employee | 1213 |
constitute employment, all the services of such employee for such | 1214 |
period shall be deemed to be employment; but if the services | 1215 |
performed during more than one half of any such pay period by an | 1216 |
employee for the person employing that employee do not constitute | 1217 |
employment, then none of the services of such employee for such | 1218 |
period shall be deemed to be employment. As used in division | 1219 |
(B)(4) of this section, "pay period" means a period, of not more | 1220 |
than thirty-one consecutive days, for which payment of | 1221 |
remuneration is ordinarily made to the employee by the person | 1222 |
employing that employee. Division (B)(4) of this section does not | 1223 |
apply to services performed in a pay period by an employee for the | 1224 |
person employing that employee, if any of such service is excepted | 1225 |
by division (B)(3)(o) of this section. | 1226 |
(C) "Benefits" means money payments payable to an individual | 1227 |
who has established benefit rights, as provided in this chapter, | 1228 |
for loss of remuneration due to the individual's unemployment. | 1229 |
(D) "Benefit rights" means the weekly benefit amount and the | 1230 |
maximum benefit amount that may become payable to an individual | 1231 |
within the individual's benefit year as determined by the | 1232 |
director. | 1233 |
(E) "Claim for benefits" means a claim for waiting period or | 1234 |
benefits for a designated week. | 1235 |
(F) "Additional claim" means the first claim for benefits | 1236 |
filed following any separation from employment during a benefit | 1237 |
year; "continued claim" means any claim other than the first claim | 1238 |
for benefits and other than an additional claim. | 1239 |
(G)(1) "Wages" means remuneration paid to an employee by each | 1240 |
of the employee's employers with respect to employment; except | 1241 |
that wages shall not include that part of remuneration paid during | 1242 |
any calendar year to an individual by an employer or such | 1243 |
employer's predecessor in interest in the same business or | 1244 |
enterprise, which in any calendar year is in excess of eight | 1245 |
thousand two hundred fifty dollars on and after January 1, 1992; | 1246 |
eight thousand five hundred dollars on and after January 1, 1993; | 1247 |
eight thousand seven hundred fifty dollars on and after January 1, | 1248 |
1994; and nine thousand dollars on and after January 1, 1995. | 1249 |
Remuneration in excess of such amounts shall be deemed wages | 1250 |
subject to contribution to the same extent that such remuneration | 1251 |
is defined as wages under the "Federal Unemployment Tax Act," 84 | 1252 |
Stat. 714 (1970), 26 U.S.C.A. 3301 to 3311, as amended. The | 1253 |
remuneration paid an employee by an employer with respect to | 1254 |
employment in another state, upon which contributions were | 1255 |
required and paid by such employer under the unemployment | 1256 |
compensation act of such other state, shall be included as a part | 1257 |
of remuneration in computing the amount specified in this | 1258 |
division. | 1259 |
(2) Notwithstanding division (G)(1) of this section, if, as | 1260 |
of the computation date for any calendar year, the director | 1261 |
determines that the level of the unemployment compensation fund is | 1262 |
sixty per cent or more below the minimum safe level as defined in | 1263 |
section 4141.25 of the Revised Code, then, effective the first day | 1264 |
of January of the following calendar year, wages subject to this | 1265 |
chapter shall not include that part of remuneration paid during | 1266 |
any calendar year to an individual by an employer or such | 1267 |
employer's predecessor in interest in the same business or | 1268 |
enterprise which is in excess of nine thousand dollars. The | 1269 |
increase in the dollar amount of wages subject to this chapter | 1270 |
under this division shall remain in effect from the date of the | 1271 |
director's determination pursuant to division (G)(2) of this | 1272 |
section and thereafter notwithstanding the fact that the level in | 1273 |
the fund may subsequently become less than sixty per cent below | 1274 |
the minimum safe level. | 1275 |
(H)(1) "Remuneration" means all compensation for personal | 1276 |
services, including commissions and bonuses and the cash value of | 1277 |
all compensation in any medium other than cash, except that in the | 1278 |
case of agricultural or domestic service, "remuneration" includes | 1279 |
only cash remuneration. Gratuities customarily received by an | 1280 |
individual in the course of the individual's employment from | 1281 |
persons other than the individual's employer and which are | 1282 |
accounted for by such individual to the individual's employer are | 1283 |
taxable wages. | 1284 |
The reasonable cash value of compensation paid in any medium | 1285 |
other than cash shall be estimated and determined in accordance | 1286 |
with rules prescribed by the director, provided that | 1287 |
"remuneration" does not include: | 1288 |
(a) Payments as provided in divisions (b)(2) to (b)(16) of | 1289 |
section 3306 of the "Federal Unemployment Tax Act," 84 Stat. 713, | 1290 |
26 U.S.C.A. 3301 to 3311, as amended; | 1291 |
(b) The payment by an employer, without deduction from the | 1292 |
remuneration of the individual in the employer's employ, of the | 1293 |
tax imposed upon an individual in the employer's employ under | 1294 |
section 3101 of the "Internal Revenue Code of 1954," with respect | 1295 |
to services performed after October 1, 1941. | 1296 |
(2) "Cash remuneration" means all remuneration paid in cash, | 1297 |
including commissions and bonuses, but not including the cash | 1298 |
value of all compensation in any medium other than cash. | 1299 |
(I) "Interested party" means the director and any party to | 1300 |
whom notice of a determination of an application for benefit | 1301 |
rights or a claim for benefits is required to be given under | 1302 |
section 4141.28 of the Revised Code. | 1303 |
(J) "Annual payroll" means the total amount of wages subject | 1304 |
to contributions during a twelve-month period ending with the last | 1305 |
day of the second calendar quarter of any calendar year. | 1306 |
(K) "Average annual payroll" means the average of the last | 1307 |
three annual payrolls of an employer, provided that if, as of any | 1308 |
computation date, the employer has had less than three annual | 1309 |
payrolls in such three-year period, such average shall be based on | 1310 |
the annual payrolls which the employer has had as of such date. | 1311 |
(L)(1) "Contributions" means the money payments to the state | 1312 |
unemployment compensation fund required of employers by section | 1313 |
4141.25 of the Revised Code and of the state and any of its | 1314 |
political subdivisions electing to pay contributions under section | 1315 |
4141.242 of the Revised Code. Employers paying contributions shall | 1316 |
be described as "contributory employers." | 1317 |
(2) "Payments in lieu of contributions" means the money | 1318 |
payments to the state unemployment compensation fund required of | 1319 |
reimbursing employers under sections 4141.241 and 4141.242 of the | 1320 |
Revised Code. | 1321 |
(M) An individual is "totally unemployed" in any week during | 1322 |
which the individual performs no services and with respect to such | 1323 |
week no remuneration is payable to the individual. | 1324 |
(N) An individual is "partially unemployed" in any week if, | 1325 |
due to involuntary loss of work, the total remuneration payable to | 1326 |
the individual for such week is less than the individual's weekly | 1327 |
benefit amount. | 1328 |
(O) "Week" means the calendar week ending at midnight | 1329 |
Saturday unless an equivalent week of seven consecutive calendar | 1330 |
days is prescribed by the director. | 1331 |
(1) "Qualifying week" means any calendar week in an | 1332 |
individual's base period with respect to which the individual | 1333 |
earns or is paid remuneration in employment subject to this | 1334 |
chapter. A calendar week with respect to which an individual earns | 1335 |
remuneration but for which payment was not made within the base | 1336 |
period, when necessary to qualify for benefit rights, may be | 1337 |
considered to be a qualifying week. The number of qualifying weeks | 1338 |
which may be established in a calendar quarter shall not exceed | 1339 |
the number of calendar weeks in the quarter. | 1340 |
(2) "Average weekly wage" means the amount obtained by | 1341 |
dividing an individual's total remuneration for all qualifying | 1342 |
weeks during the base period by the number of such qualifying | 1343 |
weeks, provided that if the computation results in an amount that | 1344 |
is not a multiple of one dollar, such amount shall be rounded to | 1345 |
the next lower multiple of one dollar. | 1346 |
(P) "Weekly benefit amount" means the amount of benefits an | 1347 |
individual would be entitled to receive for one week of total | 1348 |
unemployment. | 1349 |
(Q)(1) "Base period" means the first four of the last five | 1350 |
completed calendar quarters immediately preceding the first day of | 1351 |
an individual's benefit year, except as provided in division | 1352 |
(Q)(2) of this section. | 1353 |
(2) If an individual does not have sufficient qualifying | 1354 |
weeks and wages in the base period to qualify for benefit rights, | 1355 |
the individual's base period shall be the four most recently | 1356 |
completed calendar quarters preceding the first day of the | 1357 |
individual's benefit year. Such base period shall be known as the | 1358 |
"alternate base period." If information as to weeks and wages for | 1359 |
the most recent quarter of the alternate base period is not | 1360 |
available to the director from the regular quarterly reports of | 1361 |
wage information, which are systematically accessible, the | 1362 |
director may, consistent with the provisions of section 4141.28 of | 1363 |
the Revised Code, base the determination of eligibility for | 1364 |
benefits on the affidavit of the claimant with respect to weeks | 1365 |
and wages for that calendar quarter. The claimant shall furnish | 1366 |
payroll documentation, where available, in support of the | 1367 |
affidavit. The determination based upon the alternate base period | 1368 |
as it relates to the claimant's benefit rights, shall be amended | 1369 |
when the quarterly report of wage information from the employer is | 1370 |
timely received and that information causes a change in the | 1371 |
determination. As provided in division (B) of section 4141.28 of | 1372 |
the Revised Code, any benefits paid and charged to an employer's | 1373 |
account, based upon a claimant's affidavit, shall be adjusted | 1374 |
effective as of the beginning of the claimant's benefit year. No | 1375 |
calendar quarter in a base period or alternate base period shall | 1376 |
be used to establish a subsequent benefit year. | 1377 |
(3) The "base period" of a combined wage claim, as described | 1378 |
in division (H) of section 4141.43 of the Revised Code, shall be | 1379 |
the base period prescribed by the law of the state in which the | 1380 |
claim is allowed. | 1381 |
(4) For purposes of determining the weeks that comprise a | 1382 |
completed calendar quarter under this division, only those weeks | 1383 |
ending at midnight Saturday within the calendar quarter shall be | 1384 |
utilized. | 1385 |
(R)(1) "Benefit year" with respect to an individual means the | 1386 |
fifty-two week period beginning with the first day of that week | 1387 |
with respect to which the individual first files a valid | 1388 |
application for determination of benefit rights, and thereafter | 1389 |
the fifty-two week period beginning with the first day of that | 1390 |
week with respect to which the individual next files a valid | 1391 |
application for determination of benefit rights after the | 1392 |
termination of the individual's last preceding benefit year, | 1393 |
except that the application shall not be considered valid unless | 1394 |
the individual has had employment in six weeks that is subject to | 1395 |
this chapter or the unemployment compensation act of another | 1396 |
state, or the United States, and has, since the beginning of the | 1397 |
individual's previous benefit year, in the employment earned three | 1398 |
times the average weekly wage determined for the previous benefit | 1399 |
year. The "benefit year" of a combined wage claim, as described in | 1400 |
division (H) of section 4141.43 of the Revised Code, shall be the | 1401 |
benefit year prescribed by the law of the state in which the claim | 1402 |
is allowed. Any application for determination of benefit rights | 1403 |
made in accordance with section 4141.28 of the Revised Code is | 1404 |
valid if the individual filing such application is unemployed, has | 1405 |
been employed by an employer or employers subject to this chapter | 1406 |
in at least twenty qualifying weeks within the individual's base | 1407 |
period, and has earned or been paid remuneration at an average | 1408 |
weekly wage of not less than twenty-seven and one-half per cent of | 1409 |
the statewide average weekly wage for such weeks. For purposes of | 1410 |
determining whether an individual has had sufficient employment | 1411 |
since the beginning of the individual's previous benefit year to | 1412 |
file a valid application, "employment" means the performance of | 1413 |
services for which remuneration is payable. | 1414 |
(2) Effective for benefit years beginning on and after | 1415 |
December 26, 2004, any application for determination of benefit | 1416 |
rights made in accordance with section 4141.28 of the Revised Code | 1417 |
is valid if the individual satisfies the criteria described in | 1418 |
division (R)(1) of this section, and if the reason for the | 1419 |
individual's separation from employment is not disqualifying | 1420 |
pursuant to division (D)(2) of section 4141.29 or section 4141.291 | 1421 |
of the Revised Code. A disqualification imposed pursuant to | 1422 |
division (D)(2) of section 4141.29 or section 4141.291 of the | 1423 |
Revised Code must be removed as provided in those sections as a | 1424 |
requirement of establishing a valid application for benefit years | 1425 |
beginning on and after December 26, 2004. | 1426 |
(3) The statewide average weekly wage shall be calculated by | 1427 |
the director once a year based on the twelve-month period ending | 1428 |
the thirtieth day of June, as set forth in division (B)(3) of | 1429 |
section 4141.30 of the Revised Code, rounded down to the nearest | 1430 |
dollar. Increases or decreases in the amount of remuneration | 1431 |
required to have been earned or paid in order for individuals to | 1432 |
have filed valid applications shall become effective on Sunday of | 1433 |
the calendar week in which the first day of January occurs that | 1434 |
follows the twelve-month period ending the thirtieth day of June | 1435 |
upon which the calculation of the statewide average weekly wage | 1436 |
was based. | 1437 |
(4) As used in this division, an individual is "unemployed" | 1438 |
if, with respect to the calendar week in which such application is | 1439 |
filed, the individual is "partially unemployed" or "totally | 1440 |
unemployed" as defined in this section or if, prior to filing the | 1441 |
application, the individual was separated from the individual's | 1442 |
most recent work for any reason which terminated the individual's | 1443 |
employee-employer relationship, or was laid off indefinitely or | 1444 |
for a definite period of seven or more days. | 1445 |
(S) "Calendar quarter" means the period of three consecutive | 1446 |
calendar months ending on the thirty-first day of March, the | 1447 |
thirtieth day of June, the thirtieth day of September, and the | 1448 |
thirty-first day of December, or the equivalent thereof as the | 1449 |
director prescribes by rule. | 1450 |
(T) "Computation date" means the first day of the third | 1451 |
calendar quarter of any calendar year. | 1452 |
(U) "Contribution period" means the calendar year beginning | 1453 |
on the first day of January of any year. | 1454 |
(V) "Agricultural labor," for the purpose of this division, | 1455 |
means any service performed prior to January 1, 1972, which was | 1456 |
agricultural labor as defined in this division prior to that date, | 1457 |
and service performed after December 31, 1971: | 1458 |
(1) On a farm, in the employ of any person, in connection | 1459 |
with cultivating the soil, or in connection with raising or | 1460 |
harvesting any agricultural or horticultural commodity, including | 1461 |
the raising, shearing, feeding, caring for, training, and | 1462 |
management of livestock, bees, poultry, and fur-bearing animals | 1463 |
and wildlife; | 1464 |
(2) In the employ of the owner or tenant or other operator of | 1465 |
a farm in connection with the operation, management, conservation, | 1466 |
improvement, or maintenance of such farm and its tools and | 1467 |
equipment, or in salvaging timber or clearing land of brush and | 1468 |
other debris left by hurricane, if the major part of such service | 1469 |
is performed on a farm; | 1470 |
(3) In connection with the production or harvesting of any | 1471 |
commodity defined as an agricultural commodity in section 15 (g) | 1472 |
of the "Agricultural Marketing Act," 46 Stat. 1550 (1931), 12 | 1473 |
U.S.C. 1141j, as amended, or in connection with the ginning of | 1474 |
cotton, or in connection with the operation or maintenance of | 1475 |
ditches, canals, reservoirs, or waterways, not owned or operated | 1476 |
for profit, used exclusively for supplying and storing water for | 1477 |
farming purposes; | 1478 |
(4) In the employ of the operator of a farm in handling, | 1479 |
planting, drying, packing, packaging, processing, freezing, | 1480 |
grading, storing, or delivering to storage or to market or to a | 1481 |
carrier for transportation to market, in its unmanufactured state, | 1482 |
any agricultural or horticultural commodity, but only if the | 1483 |
operator produced more than one half of the commodity with respect | 1484 |
to which such service is performed; | 1485 |
(5) In the employ of a group of operators of farms, or a | 1486 |
cooperative organization of which the operators are members, in | 1487 |
the performance of service described in division (V)(4) of this | 1488 |
section, but only if the operators produced more than one-half of | 1489 |
the commodity with respect to which the service is performed; | 1490 |
(6) Divisions (V)(4) and (5) of this section shall not be | 1491 |
deemed to be applicable with respect to service performed: | 1492 |
(a) In connection with commercial canning or commercial | 1493 |
freezing or in connection with any agricultural or horticultural | 1494 |
commodity after its delivery to a terminal market for distribution | 1495 |
for consumption; or | 1496 |
(b) On a farm operated for profit if the service is not in | 1497 |
the course of the employer's trade or business. | 1498 |
As used in division (V) of this section, "farm" includes | 1499 |
stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, | 1500 |
plantations, ranches, nurseries, ranges, greenhouses, or other | 1501 |
similar structures used primarily for the raising of agricultural | 1502 |
or horticultural commodities and orchards. | 1503 |
(W) "Hospital" means an institution which has been registered | 1504 |
or licensed by the Ohio department of health as a hospital. | 1505 |
(X) "Nonprofit organization" means an organization, or group | 1506 |
of organizations, described in section 501(c)(3) of the "Internal | 1507 |
Revenue Code of 1954," and exempt from income tax under section | 1508 |
501(a) of that code. | 1509 |
(Y) "Institution of higher education" means a public or | 1510 |
nonprofit educational institution, including an educational | 1511 |
institution operated by an Indian tribe, which: | 1512 |
(1) Admits as regular students only individuals having a | 1513 |
certificate of graduation from a high school, or the recognized | 1514 |
equivalent; | 1515 |
(2) Is legally authorized in this state or by the Indian | 1516 |
tribe to provide a program of education beyond high school; and | 1517 |
(3) Provides an educational program for which it awards a | 1518 |
bachelor's or higher degree, or provides a program which is | 1519 |
acceptable for full credit toward such a degree, a program of | 1520 |
post-graduate or post-doctoral studies, or a program of training | 1521 |
to prepare students for gainful employment in a recognized | 1522 |
occupation. | 1523 |
For the purposes of this division, all colleges and | 1524 |
universities in this state are institutions of higher education. | 1525 |
(Z) For the purposes of this chapter, "states" includes the | 1526 |
District of Columbia, the Commonwealth of Puerto Rico, and the | 1527 |
Virgin Islands. | 1528 |
(AA) "Alien" means, for the purposes of division (A)(1)(d) of | 1529 |
this section, an individual who is an alien admitted to the United | 1530 |
States to perform service in agricultural labor pursuant to | 1531 |
sections 214 (c) and 101 (a)(15)(H) of the "Immigration and | 1532 |
Nationality Act," 66 Stat. 163, 8 U.S.C.A. 1101. | 1533 |
(BB)(1) "Crew leader" means an individual who furnishes | 1534 |
individuals to perform agricultural labor for any other employer | 1535 |
or farm operator, and: | 1536 |
(a) Pays, either on the individual's own behalf or on behalf | 1537 |
of the other employer or farm operator, the individuals so | 1538 |
furnished by the individual for the service in agricultural labor | 1539 |
performed by them; | 1540 |
(b) Has not entered into a written agreement with the other | 1541 |
employer or farm operator under which the agricultural worker is | 1542 |
designated as in the employ of the other employer or farm | 1543 |
operator. | 1544 |
(2) For the purposes of this chapter, any individual who is a | 1545 |
member of a crew furnished by a crew leader to perform service in | 1546 |
agricultural labor for any other employer or farm operator shall | 1547 |
be treated as an employee of the crew leader if: | 1548 |
(a) The crew leader holds a valid certificate of registration | 1549 |
under the "Farm Labor Contractor Registration Act of 1963," 90 | 1550 |
Stat. 2668, 7 U.S.C. 2041; or | 1551 |
(b) Substantially all the members of the crew operate or | 1552 |
maintain tractors, mechanized harvesting or crop-dusting | 1553 |
equipment, or any other mechanized equipment, which is provided by | 1554 |
the crew leader; and | 1555 |
(c) If the individual is not in the employment of the other | 1556 |
employer or farm operator within the meaning of division (B)(1) of | 1557 |
this section. | 1558 |
(3) For the purposes of this division, any individual who is | 1559 |
furnished by a crew leader to perform service in agricultural | 1560 |
labor for any other employer or farm operator and who is not | 1561 |
treated as in the employment of the crew leader under division | 1562 |
(BB)(2) of this section shall be treated as the employee of the | 1563 |
other employer or farm operator and not of the crew leader. The | 1564 |
other employer or farm operator shall be treated as having paid | 1565 |
cash remuneration to the individual in an amount equal to the | 1566 |
amount of cash remuneration paid to the individual by the crew | 1567 |
leader, either on the crew leader's own behalf or on behalf of the | 1568 |
other employer or farm operator, for the service in agricultural | 1569 |
labor performed for the other employer or farm operator. | 1570 |
(CC) "Educational institution" means an institution other | 1571 |
than an institution of higher education as defined in division (Y) | 1572 |
of this section, including an educational institution operated by | 1573 |
an Indian tribe, which: | 1574 |
(1) Offers participants, trainees, or students an organized | 1575 |
course of study or training designed to transfer to them | 1576 |
knowledge, skills, information, doctrines, attitudes, or abilities | 1577 |
from, by, or under the guidance of an instructor or teacher; and | 1578 |
(2) Is approved, chartered, or issued a permit to operate as | 1579 |
a school by the state board of education, other government agency, | 1580 |
or Indian tribe that is authorized within the state to approve, | 1581 |
charter, or issue a permit for the operation of a school. | 1582 |
For the purposes of this division, the courses of study or | 1583 |
training which the institution offers may be academic, technical, | 1584 |
trade, or preparation for gainful employment in a recognized | 1585 |
occupation. | 1586 |
(DD) "Cost savings day" means any unpaid day off from work in | 1587 |
which employees continue to accrue employee benefits which have a | 1588 |
determinable value including, but not limited to, vacation, | 1589 |
pension contribution, sick time, and life and health insurance. | 1590 |
(EE) "Motor transportation company" has the same meaning as | 1591 |
in section 4921.02 of the Revised Code. | 1592 |
Section 2. That existing sections 119.14, 1349.61, 4111.03, | 1593 |
4121.01, 4123.01, and 4141.01 of the Revised Code are hereby | 1594 |
repealed. | 1595 |
Section 3. The amendments made to sections 4111.03, 4121.01, | 1596 |
4123.01, and 4141.01 of the Revised Code under Section 1 of this | 1597 |
act do not apply to any claim or cause of action pending under | 1598 |
Chapter 4111., 4121., 4123., or 4141. of the Revised Code on the | 1599 |
effective date of this act. | 1600 |
Section 4. Section 4111.03 of the Revised Code is presented | 1601 |
in this act as a composite of the section as amended by both Sub. | 1602 |
H.B. 187 and Am. Sub. H.B. 690 of the 126th General Assembly. The | 1603 |
General Assembly, applying the principle stated in division (B) of | 1604 |
section 1.52 of the Revised Code that amendments are to be | 1605 |
harmonized if reasonably capable of simultaneous operation, finds | 1606 |
that the composite is the resulting version of the section in | 1607 |
effect prior to the effective date of the section as presented in | 1608 |
this act. | 1609 |