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S. B. No. 92 As IntroducedAs Introduced
125th General Assembly | Regular Session | 2003-2004 |
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Senators Nein, Armbruster, Carey
A BILL
To amend sections 3121.898, 3121.899, 4141.01, 4141.281, and 4141.29 of the Revised Code, and to amend Section 3 of S.B. 99 of the 124th General Assembly to modify limitations on the use of new hire reports under the Child Support Law, to change unemployment compensation eligibility requirements when unemployment is caused by a major disaster, to modify the authority of reviewing courts with respect to unemployment compensation appeals, and to delay the implementation of specified unemployment compensation application requirements for a year.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3121.898, 3121.899, 4141.01, 4141.281, and 4141.29 of the Revised Code be amended to read as follows: Sec. 3121.898. The department of job and family services shall use the new
hire reports it
receives
to for any of the following purposes set forth in 42 U.S.C. 653a, as amended, including: (A) To locate individuals for the
purposes of establishing paternity; and for establishing, modifying, and enforcing
child support orders being administered by child support
enforcement agencies in this state; and to detect
fraud in any
program administered by the department.
(B) To verify eligibility for any of the following programs:
(1) Any Title IV-A program as defined in section 5101.80 of the Revised Code;
(2) The medicaid program authorized by Chapter 5111. of the Revised Code;
(3) The unemployment compensation program authorized by Chapter 4141. of the Revised Code;
(4) The food stamp program authorized by section 5101.54 of the Revised Code;
(5) Any other program authorized in 42 U.S.C. 1320b-7(b), as amended.
(C) The administration of the employment security program under the director of job and family services and the administration of the workers' compensation system pursuant to Chapters 4121., 4123., 4127., and 4131. of the Revised Code.
Sec. 3121.899. (A) The new hire reports filed with the department of job and family services pursuant to section 3121.891 of the Revised Code shall not be considered public records
for
purposes of section 149.43 of the
Revised Code. The director of job and family services may
adopt rules under section 3125.51 of the
Revised
Code governing access to, and
use and disclosure of, information contained in the new hire reports. The (B) The department of job and family services may disclose information in the new hire reports to all of the following: (1) Any child support enforcement agency and any
agent of the department or under contract with a child support enforcement agency that
is under contract with the department for the purposes listed in
division (A) of section 3121.898 of the Revised Code. The department
may submit to the
bureau of workers' compensation
a copy of
any new hire report it receives; (2) Any county department of job and family services and any agent under contract with a county department of job and family services for the purposes listed in division (B) of section 3121.898 of the Revised Code;
(3) Employees of the department of job and family services and any agent under contract with the department of job and family services for the purposes listed in divisions (B) and (C) of section 3121.898 of the Revised Code;
(4) The administrator of workers' compensation for the purpose of administering the workers' compensation system pursuant to Chapters 4121., 4123., 4127., and 4131. of the Revised Code.
Sec. 4141.01. As used in this chapter, unless the context
otherwise requires: (A)(1) "Employer" means the state, its instrumentalities,
its political subdivisions and their instrumentalities, and any
individual or type of organization including any partnership,
limited
liability company, association, trust, estate, joint-stock
company,
insurance
company, or corporation, whether domestic or
foreign, or the
receiver, trustee in bankruptcy, trustee, or the
successor
thereof, or the legal representative of a deceased
person who
subsequent to December 31, 1971, or in the case of
political
subdivisions or their instrumentalities, subsequent to
December
31, 1973: (a) Had in employment at least one individual, or in the
case of a nonprofit organization, subsequent to December 31,
1973,
had not less than four individuals in employment for some
portion
of a day in each of twenty different calendar weeks, in
either the
current or the preceding calendar year whether or not
the same
individual was in employment in each such day; or (b) Except for a nonprofit organization, had paid for
service in employment wages of fifteen hundred dollars or more in
any calendar quarter in either the current or preceding calendar
year; or (c) Had paid, subsequent to December 31, 1977, for
employment in domestic service in a local college club, or local
chapter of a college fraternity or sorority, cash remuneration of
one thousand dollars or more in any calendar quarter in the
current calendar year or the preceding calendar year, or had paid
subsequent to December 31, 1977, for employment in domestic
service in a private home cash remuneration of one thousand
dollars in any calendar quarter in the current
calendar year or
the preceding calendar year: (i) For the purposes of divisions (A)(1)(a) and (b) of
this
section, there shall not be taken into account any wages
paid to,
or employment of, an individual performing domestic
service as
described in this division. (ii) An employer under this division shall not be an
employer with respect to wages paid for any services other than
domestic service unless the employer is also found to be an
employer under division (A)(1)(a), (b), or (d) of this section. (d) As a farm operator or a crew leader subsequent to
December 31, 1977, had in employment individuals in agricultural
labor; and (i) During any calendar quarter in the current calendar
year
or the preceding calendar year, paid cash remuneration of
twenty
thousand dollars or more for the agricultural labor; or (ii) Had at least ten individuals in employment in
agricultural labor, not including agricultural workers who are
aliens
admitted to the United States to perform agricultural labor
pursuant to sections 214(e) and
101(a)(15)(H) of the "Immigration
and
Nationality Act," 66 Stat. 163, 8 U.S.C.A.
1101(a)(15)(H)(ii)(a), for some portion of a day in
each of the
twenty different calendar weeks, in either the
current or
preceding calendar year whether or not the same
individual was in
employment in each day; or (e) Is not otherwise an employer as defined under division
(A)(1)(a) or (b) of this section; and (i) For which, within either the current or preceding
calendar year, service, except for domestic service in a private
home not covered under division (A)(1)(c) of this section, is or
was performed with respect to which such employer is liable for
any federal tax against which credit may be taken for
contributions required to be paid into a state unemployment fund; (ii) Which, as a condition for approval of this chapter
for
full tax credit against the tax imposed by the "Federal
Unemployment Tax Act," 84 Stat. 713, 26 U.S.C.A. 3301 to 3311,
is
required, pursuant to such act to be an employer under this
chapter; or (iii) Who became an employer by election under division
(A)(4) or (5) of this section and for the duration of such
election; or (f) In the case of the state, its instrumentalities, its
political subdivisions, and their instrumentalities, had in
employment, as defined in division (B)(2)(a) of this section, at
least one individual; (g) For the purposes of division (A)(1)(a) of this
section,
if any week includes both the thirty-first day of
December and the
first day of January, the days of that week
before the first day
of January shall be considered one calendar
week and the days
beginning the first day of January another
week. (2) Each individual employed to perform or to assist in
performing the work of any agent or employee of an employer is
employed by such employer for all the purposes of this chapter,
whether such individual was hired or paid directly by such
employer or by such agent or employee, provided the employer had
actual or constructive knowledge of the work. All individuals
performing services for an employer of any person in this state
who maintains two or more establishments within this state are
employed by a single employer for the purposes of this chapter. (3) An employer subject to this chapter within any
calendar
year is subject to this chapter during the whole of such
year and
during the next succeeding calendar year. (4) An employer not otherwise subject to this chapter who
files with the director of job and family services
a written
election to become an employer subject to this
chapter for not
less than two calendar years shall, with the
written approval of
such election by the director,
become an
employer subject to this
chapter to the same extent as all other
employers as of the date
stated in such approval, and shall cease
to be subject to this
chapter as of the first day of January of
any calendar year
subsequent to such two calendar years only if
at least thirty days
prior to such first day of January the
employer has filed with the
director a written
notice to that effect. (5) Any employer for whom services that do not constitute
employment are performed may file with the
director a
written
election that all such services performed by individuals
in the
employer's employ in one or more distinct establishments or places
of
business shall be deemed to constitute employment for all the
purposes of this chapter, for not less than two calendar years.
Upon written
approval of the election by the director, such
services shall be deemed to constitute employment subject to this
chapter from and after the date stated in such approval. Such
services shall cease to be employment subject to this chapter as
of the first day of January of any calendar year subsequent to
such two calendar years only if at least thirty days prior to
such
first day of January such employer has filed with the
director a
written notice to that effect. (B)(1) "Employment" means
service performed by an individual
for
remuneration under any contract of
hire, written or oral,
express or implied, including service
performed in interstate
commerce and service performed by an
officer of a corporation,
without regard to whether such service
is executive, managerial,
or manual in nature, and without regard
to whether such officer is
a stockholder or a member of the board
of directors of the
corporation,
unless it is shown to the satisfaction of the
director that such individual
has been and will continue to be
free from direction or control
over the performance of such
service, both
under a
contract of service and in fact.
The
director shall adopt rules to define
"direction or control." (2) "Employment" includes: (a) Service performed after December 31, 1977, by an
individual in the employ of the state or any of its
instrumentalities, or any political subdivision thereof or any of
its instrumentalities or any instrumentality of more than one of
the foregoing or any instrumentality of any of the foregoing and
one or more other states or political subdivisions and without
regard to divisions (A)(1)(a) and (b) of this section, provided
that such service is excluded from employment as defined in the
"Federal Unemployment Tax Act," 53 Stat. 183, 26 U.S.C.A. 3301,
3306(c)(7) and is not excluded under division (B)(3) of this
section; or the services of employees covered by voluntary
election, as provided under divisions (A)(4) and (5) of this
section; (b) Service performed after December 31, 1971, by an
individual in the employ of a religious, charitable, educational,
or other organization which is excluded from the term
"employment"
as defined in the "Federal Unemployment Tax Act," 84
Stat. 713, 26
U.S.C.A. 3301 to 3311, solely by reason of
section 26
U.S.C.A.
3306(c)(8) of that act and is not excluded under
division (B)(3)
of this section; (c) Domestic service performed after December 31, 1977,
for
an employer, as provided in division (A)(1)(c) of this
section; (d) Agricultural labor performed after December 31, 1977,
for a farm operator or a crew leader, as provided in division
(A)(1)(d) of this section; (e) Service not covered under division (B)(1) of this
section which is performed after December 31, 1971: (i) As an agent-driver or commission-driver engaged in
distributing meat products, vegetable products, fruit products,
bakery products, beverages other than milk, laundry, or
dry-cleaning services, for the individual's employer or
principal; (ii) As a traveling or city salesperson, other than as an
agent-driver or commission-driver, engaged on a full-time basis
in
the solicitation on behalf of and in the transmission to
the
salesperson's employer or principal except for sideline
sales
activities on
behalf of some other person of orders from
wholesalers,
retailers, contractors, or operators of hotels,
restaurants, or
other similar establishments for merchandise for
resale, or
supplies for use in their business operations, provided
that for
the purposes of this division (B)(2)(e)(ii) of this
section, the
services shall be deemed employment if the contract
of service
contemplates that substantially all of the services are
to be
performed personally by the individual and that the
individual does not have a substantial investment in facilities
used in connection with the performance of the services other
than
in facilities for transportation, and the services are not
in the
nature of a single transaction that is not a part of a
continuing
relationship with the person for whom the services are
performed. (f) An individual's entire service performed within or
both
within and without the state if: (i) The service is localized in this state. (ii) The service is not localized in any state, but some
of
the service is performed in this state and either the base of
operations, or if there is no base of operations then the place
from which such service is directed or controlled, is in this
state or the base of operations or place from which such service
is directed or controlled is not in any state in which some part
of the service is performed but the individual's residence is in
this state. (g) Service not covered under division (B)(2)(f)(ii) of
this
section and performed entirely without this state, with
respect to
no part of which contributions are required and paid
under an
unemployment compensation law of any other state, the
Virgin
Islands, Canada, or of the United States, if the
individual
performing such service is a resident of this state
and the
director
approves the election of the employer for whom such
services are
performed; or, if the individual is not a resident of
this
state but the
place from which the service is directed or
controlled is in this
state, the entire services of such
individual shall be deemed to
be employment subject to this
chapter, provided service is deemed
to be localized within this
state if the service is performed
entirely within this state or if
the service is performed both
within and without this state but
the service performed without
this state is incidental to the
individual's service within the
state, for example, is temporary
or transitory in nature or
consists of isolated transactions; (h) Service of an individual who is a citizen of the
United
States, performed outside the United States except in
Canada after
December 31, 1971, or the Virgin Islands, after
December 31, 1971,
and before the first day of January of the
year following that in
which the United States secretary of labor
approves the Virgin
Islands law for the first time, in the employ
of an American
employer, other than service which is "employment"
under divisions
(B)(2)(f) and (g) of this section or similar
provisions of another
state's law, if: (i) The employer's principal place of business in the
United
States is located in this state; (ii) The employer has no place of business in the United
States, but the employer is an individual who is a resident of
this state; or the employer is a corporation which is organized
under the laws of this state, or the employer is a partnership or
a trust and the number of partners or trustees who are residents
of this state is greater than the number who are residents of any
other state; or (iii) None of the criteria of divisions (B)(2)(f)(i) and
(ii) of this section is met but the employer has elected coverage
in this state or the employer having failed to elect coverage in
any state, the individual has filed a claim for benefits, based
on
such service, under this chapter. (i) For the purposes of division (B)(2)(h) of this
section,
the term "American employer" means an employer who is an
individual who is a resident of the United States; or a
partnership, if two-thirds or more of the partners are residents
of the United States; or a trust, if all of the trustees are
residents of the United States; or a corporation organized under
the laws of the United States or of any state, provided the term
"United States" includes the states, the District of Columbia,
the
Commonwealth of Puerto Rico, and the Virgin Islands. (j) Notwithstanding any other provisions of divisions
(B)(1)
and (2) of this section, service, except for domestic
service in a
private home not covered under division (A)(1)(c) of
this section,
with respect to which a tax is required to be paid
under any
federal law imposing a tax against which credit may be
taken for
contributions required to be paid into a state
unemployment fund,
or service, except for domestic service in a
private home not
covered under division (A)(1)(c) of this
section, which, as a
condition for full tax credit against the
tax imposed by the
"Federal Unemployment Tax Act," 84 Stat. 713,
26 U.S.C.A. 3301 to
3311, is required to be covered under this
chapter. (k) Construction services performed by any individual under
a
construction contract, as defined in section 4141.39 of the
Revised Code, if
the director determines that the employer for
whom
services are performed
has
the right to direct or control the
performance of the services and that the
individuals who perform
the services receive remuneration for the services
performed. The
director shall presume that the
employer for whom
services are
performed has the right to direct or control the performance of
the services if ten or more of the following criteria apply: (i) The employer directs or controls the
manner or method by
which instructions are given to the individual performing
services; (ii) The employer requires particular training for
the
individual performing services; (iii) Services performed by the individual are
integrated
into the regular functioning of the employer; (iv) The employer requires that services be provided
by a
particular individual; (v) The employer hires, supervises, or pays the
wages of the
individual performing services; (vi) A continuing relationship between the employer
and the
individual performing services exists which contemplates
continuing or
recurring work, even if not full-time work; (vii) The employer requires the individual to
perform
services during established hours; (viii) The employer requires that the individual
performing
services be devoted on a full-time basis to the business of the
employer; (ix) The employer requires the individual to perform
services on the employer's premises; (x) The employer requires the individual performing
services
to follow the order of work established by the employer; (xi) The employer requires the individual performing
services to make oral or
written reports of progress; (xii) The employer makes payment to the individual
for
services on a regular basis, such as hourly, weekly, or monthly; (xiii) The employer pays expenses for the individual
performing services; (xiv) The employer furnishes the tools and materials
for use
by the individual to perform services; (xv) The individual performing services has not
invested in
the facilities used to perform services; (xvi) The individual performing services does not
realize a
profit or suffer a loss as a result of the performance of the
services; (xvii) The individual performing services is not
performing
services for more than two employers simultaneously; (xviii) The individual performing services does not
make the
services available to the general public; (xix) The employer has a right to discharge the
individual
performing services; (xx) The individual performing services has the
right to end
the individual's relationship with the employer without incurring
liability pursuant to an employment contract or agreement. (3) "Employment" does not include the following services
if
they are found not subject to the "Federal Unemployment Tax
Act,"
84 Stat. 713 (1970), 26 U.S.C.A. 3301 to 3311, and if
the services
are not required to be included under division (B)(2)(j) of this
section: (a) Service performed after December 31, 1977, in
agricultural labor, except as provided in division (A)(1)(d) of
this section; (b) Domestic service performed after December 31, 1977, in
a
private home, local college club, or local chapter of a college
fraternity or sorority except as provided in division (A)(1)(c)
of
this section; (c) Service performed after December 31, 1977, for this
state or a political subdivision as described in division
(B)(2)(a) of this
section when performed: (i) As a publicly elected official; (ii) As a member of a legislative body, or a member of the
judiciary; (iii) As a military member of the Ohio national guard; (iv) As an employee, not in the classified service as
defined in section 124.11 of the Revised Code, serving on a
temporary basis in case of fire, storm, snow, earthquake, flood,
or similar emergency; (v) In a position which, under or pursuant to law, is
designated as a major nontenured policymaking or advisory
position, not in the classified service of the state, or a
policymaking or advisory position the performance of the duties
of
which ordinarily does not require more than eight hours per
week. (d) In the employ of any governmental unit or
instrumentality of the United States; (e) Service performed after December 31, 1971: (i) Service in the employ of an educational institution or
institution of higher education, including those operated by the
state or a political subdivision, if such service is performed by
a student who is enrolled and is regularly attending classes at
the educational institution or institution of higher education;
or (ii) By an individual who is enrolled at a nonprofit or
public educational institution which normally maintains a regular
faculty and curriculum and normally has a regularly organized
body
of students in attendance at the place where its educational
activities are carried on as a student in a full-time program,
taken for credit at the institution, which combines academic
instruction with work experience, if the service is an integral
part of the program, and the institution has so certified to the
employer, provided that this subdivision shall not apply to
service performed in a program established for or on behalf of an
employer or group of employers; (f) Service performed by an individual in the employ of
the
individual's son, daughter, or spouse and service performed by a
child
under the age of eighteen in the employ of the child's
father or mother; (g) Service performed for one or more principals by an
individual who is compensated on a commission basis, who in the
performance of the work is master of the individual's own
time and
efforts,
and whose remuneration is wholly dependent on the amount
of
effort the individual chooses to expend, and which service is
not
subject to the "Federal Unemployment Tax Act," 53 Stat. 183
(1939), 26
U.S.C.A. 3301 to 3311. Service performed after
December 31,
1971: (i) By an individual for an employer as an insurance agent
or as an insurance solicitor, if all this service is performed
for
remuneration solely by way of commission; (ii) As a home worker performing work, according to
specifications furnished by the employer for whom the services
are
performed, on materials or goods furnished by such employer
which
are required to be returned to the employer or to a person
designated for that purpose. (h) Service performed after December 31, 1971: (i) In the employ of a church or convention or association
of churches, or in an organization which is operated primarily
for
religious purposes and which is operated, supervised,
controlled,
or principally supported by a church or convention or
association
of churches; (ii) By a duly ordained, commissioned, or licensed
minister
of a church in the exercise of the individual's
ministry or by a
member of a religious order in the exercise of duties required by
such order; or (iii) In a facility conducted for the purpose of carrying
out a program of rehabilitation for individuals whose earning
capacity is impaired by age or physical or mental deficiency or
injury, or providing remunerative work for individuals who
because
of their impaired physical or mental capacity cannot be
readily
absorbed in the competitive labor market, by an
individual
receiving such rehabilitation or remunerative work; (i) Service performed after June 30, 1939, with respect to
which unemployment compensation is payable under the "Railroad
Unemployment Insurance Act," 52 Stat. 1094 (1938), 45 U.S.C. 351; (j) Service performed by an individual in the employ of
any
organization exempt from income tax under section 501 of the
"Internal Revenue Code of 1954," if the remuneration for such
service does not exceed fifty dollars in any calendar quarter, or
if such service is in connection with the collection of dues or
premiums for a fraternal beneficial society, order, or
association
and is performed away from the home office or is
ritualistic
service in connection with any such society, order,
or
association; (k) Casual labor not in the course of an employer's trade
or
business; incidental service performed by an officer,
appraiser,
or member of a finance committee of a bank, building
and loan
association, savings and loan association, or savings
association
when the remuneration for such incidental service
exclusive of the
amount paid or allotted for directors' fees does
not exceed sixty
dollars per calendar quarter is casual labor; (l) Service performed in the employ of a voluntary
employees' beneficial association providing for the payment of
life, sickness, accident, or other benefits to the members of
such
association or their dependents or their designated
beneficiaries,
if admission to a membership in such association
is limited to
individuals who are officers or employees of a
municipal or public
corporation, of a political subdivision of
the state, or of the
United States and no part of the net
earnings of such association
inures, other than through such
payments, to the benefit of any
private shareholder or
individual; (m) Service performed by an individual in the employ of a
foreign government, including service as a consular or other
officer or employee or of a nondiplomatic representative; (n) Service performed in the employ of an instrumentality
wholly owned by a foreign government if the service is of a
character similar to that performed in foreign countries by
employees of the United States or of an instrumentality thereof
and if the director finds that the secretary of
state of the
United States has certified to the secretary of the treasury of
the United States that the foreign government, with respect to
whose instrumentality exemption is claimed, grants an equivalent
exemption with respect to similar service performed in the
foreign
country by employees of the United States and of
instrumentalities
thereof; (o) Service with respect to which unemployment
compensation
is payable under an unemployment compensation system
established
by an act of congress; (p) Service performed as a student nurse in the employ of
a
hospital or a nurses' training school by an individual who is
enrolled and is regularly attending classes in a nurses' training
school chartered or approved pursuant to state law, and service
performed as an intern in the employ of a hospital by an
individual who has completed a four years' course in a medical
school chartered or approved pursuant to state law; (q) Service performed by an individual under the age of
eighteen in the delivery or distribution of newspapers or
shopping
news, not including delivery or distribution to any
point for
subsequent delivery or distribution; (r) Service performed in the employ of the United States
or
an instrumentality of the United States immune under the
constitution Constitution of the United States from the contributions imposed
by this chapter, except that to the extent that congress permits
states to require any instrumentalities of the United States to
make payments into an unemployment fund under a state
unemployment
compensation act, this chapter shall be applicable
to such
instrumentalities and to services performed for such
instrumentalities in the same manner, to the same extent, and on
the same terms as to all other employers, individuals, and
services, provided that if this state is not certified for any
year by the proper agency of the United States under section 3304
of the "Internal Revenue Code of 1954," the payments required of
such instrumentalities with respect to such year shall be
refunded
by the director from the fund in the same
manner
and within the
same period as is provided in division (E) of
section 4141.09 of
the Revised Code with respect to contributions
erroneously
collected; (s) Service performed by an individual as a member of a
band
or orchestra, provided such service does not represent the
principal occupation of such individual, and which service is not
subject to or required to be covered for full tax credit against
the tax imposed by the "Federal Unemployment Tax Act," 53 Stat.
183 (1939), 26 U.S.C.A. 3301 to 3311. Service performed after
December
31, 1971, for a nonprofit organization, this state or its
instrumentalities, or a political subdivision or its
instrumentalities, as part of an unemployment work-relief or
work-training program assisted or financed in whole or in part by
any federal agency or an agency of a state or political
subdivision thereof, by an individual receiving the work-relief
or
work-training. (t) Service performed in the employ of a day camp whose
camping season does not exceed twelve weeks in any calendar year,
and which service is not subject to the "Federal Unemployment Tax
Act," 53 Stat. 183 (1939), 26 U.S.C.A. 3301 to 3311. Service
performed
after December 31, 1971: (i) In the employ of a hospital, if the service is
performed
by a patient of the hospital, as defined in division
(W) of this
section; (ii) For a prison or other correctional institution by an
inmate of the prison or correctional institution; (iii) Service performed after December 31, 1977, by an
inmate of a custodial institution operated by the state, a
political subdivision, or a nonprofit organization. (u) Service that is performed by a nonresident
alien
individual for the period the individual temporarily is present in
the
United States as a nonimmigrant under division
(F), (J), (M),
or (Q) of section
101(a)(15) of the "Immigration and Nationality
Act," 66 Stat. 163, 8 U.S.C.A. 1101, as amended, that is
excluded
under section 3306(c)(19) of the "Federal
Unemployment Tax Act,"
53 Stat. 183
(1939), 26 U.S.C.A. 3301 to 3311. (v) Notwithstanding any other provisions of division
(B)(3)
of this section, services that are excluded under
divisions
(B)(3)(g), (j), (k), and (l) of this section shall not
be excluded
from employment when performed for a nonprofit
organization, as
defined in division (X) of this section, or for
this state or its
instrumentalities, or for a political
subdivision or its
instrumentalities; (w) Service that is performed by an individual working as an
election official or election worker if the amount of remuneration
received by
the individual during
the calendar year for services
as an election official or election worker is
less than one
thousand
dollars; (x) Service performed for an elementary or secondary school
that
is operated primarily for religious purposes, that is
described in
subsection 501(c)(3) and exempt from federal income
taxation under subsection 501(a) of the Internal
Revenue Code,
26
U.S.C.A. 501; (y) Service performed by a person committed to a penal
institution. (4) If the services performed during one half or more of
any
pay period by an employee for the person employing that
employee
constitute employment, all the services of such employee
for such
period shall be deemed to be employment; but if the services
performed during more than one half of any such pay period by an
employee for the person employing that employee do not
constitute
employment, then none of the services of such employee for such
period shall be deemed to be employment. As used in division
(B)(4) of this section, "pay period" means a period, of not more
than thirty-one consecutive days, for which payment of
remuneration is ordinarily made to the employee by the person
employing that employee. Division (B)(4) of this section
does not
apply to services performed in a pay period by an employee for the
person
employing that employee, if any of such service is excepted
by division
(B)(3)(o) of this section. (C) "Benefits" means money payments payable to an
individual
who has established benefit rights, as provided in
this chapter,
for loss of remuneration due to the individual's unemployment. (D) "Benefit rights" means the weekly benefit amount and
the
maximum benefit amount that may become payable to an
individual
within the individual's benefit year as determined by the
director. (E) "Claim for benefits" means a claim for waiting period
or
benefits for a designated week. (F) "Additional claim" means the first claim for benefits
filed following any separation from employment during a benefit
year; "continued claim" means any claim other than the first
claim
for benefits and other than an additional claim. (G)(1) "Wages" means remuneration paid to an employee by
each of the employee's employers with respect to employment;
except that
wages shall not include that part of remuneration paid
during any
calendar year to an individual by an employer or such
employer's
predecessor in interest in the same business or
enterprise, which
in any calendar year is in excess of eight
thousand two hundred fifty dollars on and after January 1, 1992;
eight thousand five hundred dollars on and after January 1, 1993;
eight thousand seven hundred fifty dollars on and after January
1,
1994; and nine thousand dollars on and after January 1, 1995.
Remuneration in excess of such amounts shall be deemed wages
subject to contribution to the same extent that such remuneration
is defined as wages under the "Federal Unemployment
Tax Act," 84
Stat. 714 (1970), 26 U.S.C.A. 3301 to 3311, as
amended. The
remuneration paid an employee by an employer with respect to
employment in another state, upon which contributions were
required and paid by such employer under the unemployment
compensation act of such other state, shall be included as a part
of remuneration in computing the amount specified in this
division. (2) Notwithstanding division (G)(1) of this section, if,
as
of the computation date for any calendar year, the
director
determines that the level of the
unemployment
compensation fund is
sixty per cent or more below the minimum
safe level as defined in
section 4141.25 of the Revised Code,
then, effective the first day
of January of the following
calendar year, wages subject to this
chapter shall not include
that part of remuneration paid during
any calendar year to an
individual by an employer or such
employer's predecessor in
interest in the same business or
enterprise which is in excess of
nine thousand dollars. The
increase in the dollar amount of
wages subject to this chapter
under this division shall remain in
effect from the date of the
director's
determination
pursuant to division (G)(2) of this
section and thereafter
notwithstanding the fact that the level in
the fund may
subsequently become less than sixty per cent below
the minimum
safe level. (H)(1) "Remuneration" means all compensation for personal
services, including commissions and bonuses and the cash value of
all compensation in any medium other than cash, except that in
the
case of agricultural or domestic service, "remuneration"
includes
only cash remuneration. Gratuities customarily received
by an
individual in the course of the individual's employment from
persons
other than the individual's employer and which are
accounted for by such
individual to the individual's employer are
taxable wages. The reasonable cash value of compensation paid in any
medium
other than cash shall be estimated and determined in
accordance
with rules prescribed by the director,
provided
that
"remuneration" does not include: (a) Payments as provided in divisions (b)(2) to (b)(16) of
section 3306 of the "Federal Unemployment Tax Act," 84 Stat. 713,
26 U.S.C.A. 3301 to 3311, as amended; (b) The payment by an employer, without deduction from the
remuneration of the individual in the employer's employ, of the
tax imposed
upon an individual in the employer's employ under
section
3101 of the
"Internal Revenue Code of 1954," with respect
to services
performed after October 1, 1941. (2) "Cash remuneration" means all remuneration paid in
cash,
including commissions and bonuses, but not including the
cash
value of all compensation in any medium other than cash. (I) "Interested party" means the director and any
party to
whom notice of a determination of an application for
benefit
rights or a claim for benefits is required to be given
under
section 4141.28 of the Revised Code. (J) "Annual payroll" means the total amount of wages
subject
to contributions during a twelve-month period ending with
the last
day of the second calendar quarter of any calendar year. (K) "Average annual payroll" means the average of the last
three annual payrolls of an employer, provided that if, as of any
computation date, the employer has had less than three annual
payrolls in such three-year period, such average shall be based
on
the annual payrolls which the employer has had as of such date. (L)(1) "Contributions" means the money payments to the
state
unemployment compensation fund required of employers by
section
4141.25 of the Revised Code and of the state and any of
its
political subdivisions electing to pay contributions under
section
4141.242 of the Revised Code. Employers paying
contributions
shall be described as "contributory employers." (2) "Payments in lieu of contributions" means the money
payments to the state unemployment compensation fund required of
reimbursing employers under sections 4141.241 and 4141.242 of the
Revised Code. (M) An individual is "totally unemployed" in any week
during
which the individual performs no services and with respect to
such
week no remuneration is payable to the individual. (N) An individual is "partially unemployed" in any week
if,
due to involuntary loss of work, the total remuneration
payable to
the individual for such week is less than the
individual's weekly
benefit amount. (O) "Week" means the calendar week ending at midnight
Saturday unless an equivalent week of seven consecutive calendar
days is prescribed by the director. (1) "Qualifying week" means any calendar week in an
individual's base period with respect to which the individual
earns or is
paid remuneration in employment subject to this
chapter. A
calendar week with respect to which an individual
earns
remuneration but for which payment was not made within the
base
period, when necessary to qualify for benefit rights, may be
considered to be a qualifying week. The number of qualifying
weeks which may be established in a calendar quarter shall not
exceed the number of calendar weeks in the quarter. (2) "Average weekly wage" means the amount obtained by
dividing an individual's total remuneration for all qualifying
weeks during the base period by the number of such qualifying
weeks, provided that if the computation results in an amount
that
is not a multiple of one dollar, such amount shall be
rounded to
the next lower multiple of one dollar. (P) "Weekly benefit amount" means the amount of benefits
an
individual would be entitled to receive for one week of total
unemployment. (Q)(1) "Base period" means the first four of the last five
completed calendar quarters immediately preceding the first day
of
an individual's benefit year, except as provided in division
(Q)(2) of this section. (2) If an individual does not have sufficient qualifying
weeks and wages in the base period to qualify for benefit rights,
the individual's base period shall be the four most recently
completed
calendar quarters preceding the first day of the
individual's
benefit year. Such base period shall be known as the
"alternate
base period." If information as to weeks and wages for
the most
recent quarter of the alternate base period is not
available to
the director from the regular quarterly reports of
wage
information, which are systematically accessible, the
director may, consistent with the provisions of
section
4141.28 of
the Revised Code, base the determination of
eligibility for
benefits on the affidavit of the claimant with
respect to weeks
and wages for that calendar quarter. The
claimant shall furnish
payroll documentation, where available, in
support of the
affidavit. The determination based upon the
alternate base period
as it relates to the claimant's benefit
rights, shall be amended
when the quarterly report of wage
information from the employer is
timely received and that
information causes a change in the
determination. As provided in
division (B) of
section
4141.28 of
the Revised
Code, any
benefits paid
and charged to an
employer's
account, based upon a
claimant's
affidavit, shall be
adjusted
effective as of the
beginning of the
claimant's benefit
year. No
calendar quarter in
a base period or
alternate base
period shall
be used to establish
a subsequent
benefit year. (3) The "base period" of a combined wage claim, as
described
in division (H) of section 4141.43 of the Revised Code,
shall be
the base period prescribed by the law of the state in
which the
claim is allowed. (4) For purposes of determining the weeks that comprise a
completed calendar quarter under this division, only those weeks
ending at midnight Saturday within the calendar quarter shall be
utilized. (R)(1) "Benefit year" with respect to an individual means
the
fifty-two week period beginning with the first day of that
week
with respect to which the individual first files a valid
application for
determination of benefit rights, and thereafter
the fifty-two
week period beginning with the first day of that
week with
respect to which the individual next files a valid
application
for determination of benefit rights after the
termination of
the individual's last preceding benefit year,
except that the
application shall
not be considered valid unless
the individual has had employment
in six weeks that is subject to
this chapter or the unemployment
compensation act of another
state, or the United States, and has,
since the beginning of the
individual's previous benefit year, in
the employment earned three
times the average weekly wage
determined for the previous benefit
year. The "benefit year" of
a combined wage claim, as described
in division (H) of section
4141.43 of the Revised Code, shall be
the benefit year prescribed
by the law of the state in which the
claim is allowed. Any
application for determination of
benefit
rights made in
accordance with section 4141.28 of the Revised Code
is valid if
the individual filing such application is unemployed,
has been
employed by an employer or employers subject to this
chapter in
at least twenty qualifying weeks within the
individual's base period, and has earned
or been paid remuneration
at an average
weekly wage
of not less than twenty-seven and
one-half per cent of the statewide average
weekly wage for such
weeks.
For purposes of determining whether an individual has had
sufficient
employment since the beginning of the individual's
previous benefit year to
file a valid application, "employment"
means the performance of services for which remuneration is
payable. (2) Effective for
benefit years beginning on and after
December 28, 2003 26, 2004, any
application for determination of benefit
rights made in
accordance
with section 4141.28 of the Revised Code
is valid if
the
individual
satisfies the criteria described in
division (R)(1)
of
this
section, and if the reason for the
individual's
separation
from employment is not disqualifying
pursuant to
division (D)(2)
of section
4141.29 or section 4141.291
of the
Revised
Code. A
disqualification
imposed pursuant to
division
(D)(2) of section
4141.29 or
section 4141.291 of the
Revised
Code must be removed as
provided in those sections as a
requirement of establishing a
valid application for benefit
years
beginning on and after December 28, 2003 26, 2004. (3) The statewide average weekly wage shall be calculated by
the
director once a year based on the twelve-month
period ending
the
thirtieth day of June, as set forth in division
(B)(3) of
section 4141.30 of the Revised Code, rounded down to
the nearest
dollar. Increases or decreases in the amount of remuneration
required to have been earned or paid in order for individuals to
have filed
valid applications shall become effective on Sunday of
the calendar week in
which the first day of January occurs that
follows the twelve-month period
ending the thirtieth day of June
upon which the calculation of the statewide
average weekly wage
was based. (4) As used in this division, an individual is "unemployed"
if, with
respect to
the
calendar week in which such application is
filed, the
individual is
"partially unemployed" or "totally
unemployed" as defined in this
section or if, prior to filing the
application, the
individual was separated
from the individual's
most recent work for any reason which
terminated the individual's
employee-employer relationship,
or was laid off indefinitely or
for a definite period of seven or more days. (S) "Calendar quarter" means the period of three
consecutive
calendar months ending on the thirty-first day of
March, the
thirtieth day of June, the thirtieth day of September,
and the
thirty-first day of December, or the equivalent thereof
as the
director prescribes by rule. (T) "Computation date" means the first day of the third
calendar quarter of any calendar year. (U) "Contribution period" means the calendar year
beginning
on the first day of January of any year. (V) "Agricultural labor," for the purpose of this
division,
means any service performed prior to January 1, 1972,
which was
agricultural labor as defined in this division prior to
that date,
and service performed after December 31, 1971: (1) On a farm, in the employ of any person, in connection
with cultivating the soil, or in connection with raising or
harvesting any agricultural or horticultural commodity, including
the raising, shearing, feeding, caring for, training, and
management of livestock, bees, poultry, and fur-bearing animals
and wildlife; (2) In the employ of the owner or tenant or other operator
of a farm in connection with the operation, management,
conservation, improvement, or maintenance of such farm and its
tools and equipment, or in salvaging timber or clearing land of
brush and other debris left by hurricane, if the major part of
such service is performed on a farm; (3) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15 (g)
of the "Agricultural Marketing Act," 46 Stat. 1550 (1931), 12
U.S.C. 1141j, as amended, or in connection with the ginning of
cotton, or in connection with the operation or maintenance of
ditches, canals, reservoirs, or waterways, not owned or operated
for profit, used exclusively for supplying and storing water for
farming purposes; (4) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing,
grading, storing, or delivering to storage or to market or to a
carrier for transportation to market, in its unmanufactured
state,
any agricultural or horticultural commodity, but only if
the
operator produced more than one half of the commodity with
respect
to which such service is performed; (5) In the employ of a group of operators of farms, or a
cooperative organization of which the operators are members, in
the performance of service described in division (V)(4) of this
section, but only if the operators produced more than one-half of
the commodity with respect to which the service is performed; (6) Divisions (V)(4) and (5) of this section shall not be
deemed to be applicable with respect to service performed: (a) In connection with commercial canning or commercial
freezing or in connection with any agricultural or horticultural
commodity after its delivery to a terminal market for
distribution
for consumption; or (b) On a farm operated for profit if the service is not in
the course of the employer's trade or business. As used in division (V) of this section, "farm" includes
stock, dairy, poultry, fruit, fur-bearing animal, and truck
farms,
plantations, ranches, nurseries, ranges, greenhouses, or
other
similar structures used primarily for the raising of
agricultural
or horticultural commodities and orchards. (W) "Hospital" means an institution which has been
registered or licensed by the Ohio department of health as a
hospital. (X) "Nonprofit organization" means an organization, or
group
of organizations, described in section 501(c)(3) of the
"Internal
Revenue Code of 1954," and exempt from income
tax under
section
501(a) of that code. (Y) "Institution of higher education" means a public or
nonprofit educational institution which: (1) Admits as regular students only individuals having a
certificate of graduation from a high school, or the recognized
equivalent; (2) Is legally authorized in this state to provide a
program
of education beyond high school; and (3) Provides an educational program for which it awards a
bachelor's or higher degree, or provides a program which is
acceptable for full credit toward such a degree, a program of
post-graduate or post-doctoral studies, or a program of training
to prepare students for gainful employment in a recognized
occupation. For the purposes of this division, all colleges and
universities in this state are institutions of higher education. (Z) For the purposes of this chapter, "states" includes
the
District of Columbia, the Commonwealth of Puerto Rico, and
the
Virgin Islands. (AA) "Alien" means, for the purposes of division (A)(1)(d)
of this section, an individual who is an alien admitted to the
United States to perform service in agricultural labor pursuant
to
sections 214 (c) and 101 (a)(15)(H) of the "Immigration and
Nationality Act," 66 Stat. 163, 8 U.S.C.A. 1101. (BB)(1) "Crew leader" means an individual who furnishes
individuals to perform agricultural labor for any other employer
or farm operator, and: (a) Pays, either on the individual's own behalf or
on
behalf
of the
other employer or farm operator, the individuals so
furnished by
the individual for the service in agricultural labor
performed by them; (b) Has not entered into a written agreement with the
other
employer or farm operator under which the agricultural
worker is
designated as in the employ of the other employer or
farm
operator. (2) For the purposes of this chapter, any individual who
is
a member of a crew furnished by a crew leader to perform
service
in agricultural labor for any other employer or farm
operator
shall be treated as an employee of the crew leader if: (a) The crew leader holds a valid certificate of
registration under the "Farm Labor Contractor Registration Act of
1963," 90 Stat. 2668, 7 U.S.C. 2041; or (b) Substantially all the members of the crew operate or
maintain tractors, mechanized harvesting or crop-dusting
equipment, or any other mechanized equipment, which is provided
by
the crew leader; and (c) If the individual is not in the employment of the
other
employer or farm operator within the meaning of division
(B)(1) of
this section. (3) For the purposes of this division, any individual who
is
furnished by a crew leader to perform service in agricultural
labor for any other employer or farm operator and who is not
treated as in the employment of the crew leader under division
(BB)(2) of this section shall be treated as the employee of the
other employer or farm operator and not of the crew leader. The
other employer or farm operator shall be treated as having paid
cash remuneration to the individual in an amount equal to the
amount of cash remuneration paid to the individual by the crew
leader, either on the crew leader's own behalf or on behalf of the
other
employer or farm operator, for the service in agricultural
labor
performed for the other employer or farm operator. (CC) "Educational institution" means an institution other
than an institution of higher education as defined in division
(Y)
of this section which: (1) Offers participants, trainees, or students an
organized
course of study or training designed to transfer to
them
knowledge, skills, information, doctrines, attitudes, or
abilities
from, by, or under the guidance of an instructor or
teacher; and (2) Is approved, chartered, or issued a permit to operate
as
a school by the state board of education or other government
agency that is authorized within the state to approve, charter,
or
issue a permit for the operation of a school. For the purposes of this division, the courses of study or
training which the institution offers may be academic, technical,
trade, or preparation for gainful employment in a recognized
occupation.
APPEALS
Any party notified of a determination of benefit rights or a
claim
for benefits determination may appeal within twenty-one
calendar days
after the written determination was sent to the
party or within an extended
period as provided under division
(D)(9) of this section.
Within twenty-one days after receipt of the appeal, the
director
of job and family services shall issue a
redetermination
or
transfer the appeal to the unemployment
compensation review
commission.
A redetermination under this
section is appealable in
the same
manner as an initial
determination by the director.
The commission shall provide an opportunity for a fair
hearing to
the interested parties of appeals over which the
commission has
jurisdiction. The commission has jurisdiction over
an appeal on
transfer or on direct appeal to the commission. If
the commission
concludes that a pending appeal does not warrant a
hearing, the
commission may remand the appeal to the director for
redetermination. The commission retains jurisdiction until the
appeal is remanded to the director or a final decision is issued
and appealed to court, or the time to request a review or to
appeal a decision of a hearing officer or the commission is
expired. Hearings before the commission are held at the hearing
officer
level and the review level. Unless otherwise provided in
this chapter,
initial hearings involving claims for compensation
and other
unemployment compensation issues are conducted at the
hearing officer
level by hearing officers appointed by the
commission. Hearings at
the review level are conducted by hearing
officers appointed by
the commission, by members of the commission
acting either
individually or collectively, and by members of the
commission and
hearing officers acting jointly. In all hearings
conducted at the
review level, the commission shall designate the
hearing officer
or officers who are to conduct the hearing. When
the term "hearing
officer" is used in reference to hearings
conducted at the review
level, the term includes members of the
commission. All decisions
issued at the review level are issued
by the commission. Provisions contained in the remainder of this paragraph apply
to hearings
at both the hearing officer level and the review
level. The principles of
due process in administrative hearings
shall
be applied to all hearings conducted under the authority of
the commission.
In conducting hearings, all hearing officers
shall control the conduct
of the hearing, exclude irrelevant or
cumulative evidence, and give
weight to the kind of evidence on
which reasonably prudent persons
are accustomed to rely in the
conduct of serious affairs. Hearing
officers have an affirmative
duty to question parties and
witnesses in order to ascertain the
relevant facts and to fully
and fairly develop the record.
Hearing
officers are not bound by
common law or statutory rules of
evidence or by technical or
formal rules of procedure. No person
shall impose upon the
claimant or the employer any burden of proof
as is required in a
court of law.
The proceedings at hearings
shall be recorded by mechanical means or otherwise as may be
prescribed by the commission. In the absence of further
proceedings, the record need not be transcribed.
After considering
all of the evidence, a hearing
officer shall issue a written
decision that sets forth the facts
as the hearing officer finds
them to be, cites the applicable law,
and gives the reasoning for
the decision.
(3) HEARING OFFICER LEVEL When an appeal is transferred to the commission by the
director,
the commission shall notify all interested parties of
the time and place of
the hearing and assign the appeal for a
hearing by a hearing officer. The
hearings shall be de novo,
except that the director's file
pertaining to a case shall be
included in the record to be considered.
Following a hearing, the hearing officer shall affirm,
modify, or
reverse the determination of the director in the manner
that appears
just and proper. The hearing officer's written
decision shall be sent to all interested parties. The decision
shall state the right of an
interested party to
request a review
by the commission. A request for review shall be filed
within twenty-one days
after the decision was sent to the
party, or within an extended
period as provided under division (D)(9) of
this section.
The
hearing officer's decision shall become final unless a
request for
review is filed and allowed or the commission removes the appeal
to itself within twenty-one days after the hearing officer's
decision is sent.
At the review level, the commission may affirm, modify, or
reverse
previous determinations by the director or at the hearing
officer level. At the review level, the commission may affirm,
modify, or reverse a hearing officer's decision or remand the
decision to the hearing officer level for further hearing. The
commission shall
consider an appeal at the review level under the
following
circumstances: when an appeal is required to be heard
initially
at the review level under this chapter; when the
commission
on its own motion removes an appeal to itself within
twenty-one
days after the hearing officer's decision
is sent; when
the assigned hearing officer refers an appeal to
the commission
before the hearing officer's decision is sent; or when an
interested party files a request for
review with the commission
within twenty-one days after the hearing officer's decision is
sent. (5) COMMISSION EXAMINATION The commission shall consider a request for review by an
interested party, including the reasons for the request. The
commission
may adopt rules prescribing the methods for requesting
a
review. The commission may allow or disallow the request for
review. The disallowance of a request for review constitutes a
final decision by the commission.
If the commission allows a request for review, the commission
shall
notify
all interested parties of that fact and provide a
reasonable period of time, as the commission defines by rule, in
which
interested parties may file a response. After that period
of
time, the commission, based on the record before it, may do one
of
the following: affirm the decision of the hearing officer;
provide for the appeal to be heard or reheard at the hearing
officer or review level; provide for the appeal to be heard at the
review level as a potential precedential decision; or provide for
the decision to be rewritten without further hearing at the review
level. When a further hearing is provided or the decision is
rewritten, the commission may affirm, modify, or reverse the
previous decision. The commission shall send written notice to all interested
parties when it
orders an appeal to be heard or reheard. The
notice shall include the
reasons for the hearing or rehearing. An appeal the commission identifies as potentially
precedential
shall be heard at the review level. In the notice
for that type
of hearing, the commission shall notify the
director, all
interested parties, and any other parties, as the
commission
determines appropriate, that the appeal is designated
as
potentially precedential. After the hearing, parties shall be
given the opportunity to submit briefs on the issue or issues
involved. The
commission may designate a decision as
precedential
after issuing the decision or at any point in the appeal process,
even if the commission does not initially identify the appeal as
potentially precedential. When the commission determines that it has five appeals
pending
that have common facts or common issues, the commission
may transfer the
appeals to the review level on its own motion to
be heard as a mass
appeal, including appeals from claimants
separated due to a labor
dispute, on the condition that there are
fewer than twenty-five
claimants involved. To facilitate a mass hearing, the commission may allow an
authorized agent to accept notice of hearing on behalf of
claimants. An
authorized agent may waive this notice of hearing
and also the
sending of decisions to individual claimants
represented by the
agent.
(1) TIMELINESS OF APPEALS The date of the mailing provided by the director or the
commission
is sufficient evidence upon which to conclude that a
determination,
redetermination, or decision was sent to the party
on that date.
Appeals may be filed with the director, commission,
with an
employee of another state or federal agency charged with
the duty
of accepting claims, or with the unemployment insurance
commission
of Canada. Any timely written notice by an interested
party indicating a
desire to appeal shall be accepted. The director, commission, or authorized agent must receive
the
appeal within the specified appeal period in order for the
appeal to be
deemed timely filed, except that: if the United
States
postal
service is used as the means of delivery, the
enclosing envelope must have a
postmark date or postal meter
postmark that is on or before the last day of
the specified appeal
period; and where the postmark is illegible
or missing, the appeal
is timely filed if received not later than
the end of the fifth
calendar day following the last day of the
specified appeal
period. The director and the commission may adopt rules pertaining to
alternate methods of
filing appeals under this section. Interested parties may waive, in writing, a hearing at either
the hearing
officer or review level. If the
parties waive a
hearing, the hearing officer shall issue a decision
based on the
evidence of record. Hearing officers may conduct hearings at either the hearing
officer or
review level in person or by
telephone. The commission
shall adopt rules that designate the
circumstances under which
hearing officers may conduct a hearing by
telephone or grant a
party to the hearing the opportunity to object
to a hearing by
telephone. An interested party whose hearing
would be by
telephone may elect to have an in-person hearing,
provided that
the party agrees to have the hearing at the time and
place the
commission determines pursuant to rule. Where a party requests that a hearing at either the hearing
officer or
review level be scheduled in the evening
because the
party is employed during the day, the commission shall
schedule
the hearing during hours that the party is not
employed. If a
conflict concerning a request for an evening hearing and an
in-person hearing arises, the commission shall schedule the
hearing by telephone during
evening hours. (5) NO APPEARANCE -- APPELLANT For hearings at either the hearing officer or review level,
if the appealing party fails to appear at the hearing, the hearing
officer shall dismiss the appeal. The commission shall vacate the
dismissal upon a showing that written notice of the hearing was
not sent to that party's last known address, or good
cause for the
appellant's failure to appear is shown to the commission within
fourteen days after the hearing date.
If the commission finds that the appealing party's reason for
failing to appear does not constitute good cause for failing to
appear, the commission shall send written notice of that finding,
and the appealing party may request a hearing to present testimony
on the issue of good cause for failing to appear. The appealing
party shall file a request for a hearing on the issue of good
cause for failing to appear within ten days after the commission
sends written notice indicating a finding of no good cause for
failing to appear. (6) NO APPEARANCE -- APPELLEE For hearings at either the hearing officer or review level,
if the appellee
fails to appear at the hearing, the hearing
officer shall proceed with the hearing and shall issue a decision
based
on the evidence of record. The commission shall vacate the
decision upon a showing that written notice of the hearing was not
sent to the appellee's last known address, or good
cause for the
appellee's failure to appear is shown to the
commission within
fourteen days after the hearing date. Any appeal or request for review may be executed on behalf of
any
party or any group of claimants by an agent. No finding of fact or law, decision, or order of the
director,
hearing officer, or the commission, or a reviewing court under this
section or
section 4141.28
of the Revised Code shall be given
collateral
estoppel or res judicata effect in any
separate
or
subsequent
judicial, administrative, or arbitration proceeding,
other than a
proceeding arising under this chapter. (9) EXTENSION OF APPEAL PERIODS The time for filing an appeal or a request for review under
this
section or a court appeal under section 4141.282 of the
Revised
Code shall be extended in the manner described in the
following four
sentences. When the last day of an appeal period
is
a Saturday, Sunday, or legal holiday, the appeal period is
extended to the next work day after the Saturday, Sunday, or
legal
holiday. When an interested party provides certified medical
evidence stating that the interested party's physical condition or
mental capacity prevented the interested party from filing an
appeal or request for review under this section within the
appropriate twenty-one-day period, the appeal period is extended
to twenty-one days after the end of the physical or mental
condition, and the appeal or request for review is considered
timely filed if filed within that extended period. When an
interested party provides evidence, which evidence may consist of
testimony from the interested party, that is sufficient to
establish that the party did not actually receive the
determination or decision within the applicable appeal period
under this section, and the director or the commission finds that
the interested party did not actually receive the determination or
decision within the applicable appeal period, then the appeal
period is extended to twenty-one days after the interested party
actually receives the determination or decision. When an
interested party provides evidence, which evidence may consist of
testimony from the interested party, that is sufficient to
establish that the party did not actually receive a decision
within the thirty-day appeal period provided in section 4141.282
of the Revised Code, and a court of common pleas finds that the
interested party did not actually receive the decision within that
thirty-day appeal period, then the appeal period is extended to
thirty days after the interested party actually receives the
decision.
Sec. 4141.29. Each eligible individual shall receive
benefits as compensation for loss of remuneration due to
involuntary total or partial unemployment in the amounts and
subject to the conditions stipulated in this chapter. (A) No individual is entitled to a waiting period or
benefits for any week unless the individual: (1) Has filed a valid application for determination of
benefit rights in accordance with section 4141.28 of the Revised
Code; (2) Has made a claim for benefits in accordance with
section 4141.28 of the Revised Code; (3) Has registered at an employment office or other
registration place maintained or designated by the
director of job and family
services. Registration shall be made
in accordance with the time limits,
frequency, and manner prescribed by the director. (4)(a)(i) Is able to work and available for suitable work and, except as provided in division (A)(4)(a)(ii) of this section, is actively seeking suitable work either in a locality in which
the individual has earned wages subject to this chapter
during the individual's base
period, or if the individual leaves that
locality, then in a locality where
suitable work normally is performed. (ii) The director may waive the requirement that a
claimant
be actively seeking work when the director finds
that an
either of the following is true:
(I) The individual's unemployment is directly attributable to a major disaster declared by the president of the United States pursuant to the "Disaster Relief Act of 1974," 88 Stat. 143, 42 U.S.C. 5121, and the employer's operation was adversely affected by the disaster, requests a waiver; (II) The individual has
been laid off and the employer who laid the individual off
has notified the
director within ten days after the layoff, that
work is
expected to be available for the individual within a specified
number of days not to exceed forty-five calendar days following
the last day the individual worked. In the event the individual
is not recalled within the specified period, this waiver
shall
cease to be operative with respect to that layoff. (b) The individual shall be instructed as to the efforts
that the individual must make in the search
for suitable work, except where
the active search for work requirement has been waived under
division (A)(4)(a) of this section, and shall keep a record of
where and when the individual has sought work in complying
with those
instructions and, upon request, shall produce
that record for
examination by the director. (c) An individual who is attending a training course
approved by the director meets the requirement of
this
division, if attendance was recommended by the
director
and the individual is regularly attending the course and is
making satisfactory progress. An individual also meets the
requirements of this division if the individual is
participating and
advancing in a training program, as defined in division (P) of
section 5709.61 of the Revised Code, and if an enterprise,
defined in division (B) of section 5709.61 of the Revised Code,
is paying all or part of the cost of the individual's
participation in the training program with the intention of
hiring the individual for employment as a new employee, as
defined in division (L) of section 5709.61 of the Revised Code,
for at least ninety days after the individual's completion of the
training program. (d) An individual who becomes unemployed while attending a
regularly established school and whose base period qualifying
weeks were earned in whole or in part while attending that
school, meets the availability and active search for work
requirements of division (A)(4)(a) of this section if the
individual regularly attends the school during weeks with respect to which the
individual claims unemployment benefits and makes
self available on any shift of hours for suitable
employment
with the individual's most recent employer or any other
employer in the individual's base
period, or for any other suitable employment to which the
individual is
directed, under this chapter. (e) The director shall adopt any rules
that the director deems
necessary for the administration of division (A)(4) of this
section. (f) Notwithstanding any other provisions of this section,
no otherwise eligible individual shall be denied benefits for any
week because the individual is in training approved
under section
236(a)(1) of the "Trade Act of 1974," 88 Stat. 1978, 19 U.S.C.A.
2296, nor shall that individual be denied benefits by
reason of
leaving work to enter such training, provided the work left is
not suitable employment, or because of the application to any
week in training of provisions in this chapter, or any applicable
federal unemployment compensation law, relating to availability
for work, active search for work, or refusal to accept work. For the purposes of division (A)(4)(f) of this section,
"suitable employment" means with respect to an individual, work
of a substantially equal or higher skill level than the
individual's past adversely affected employment, as defined for
the purposes of the "Trade Act of 1974," 88 Stat. 1978, 19
U.S.C.A. 2101, and wages for such work at not less than eighty
per cent of the individual's average weekly wage as determined
for the purposes of that federal act. (5) Is unable to obtain suitable work.
An individual who is provided temporary work assignments by the
individual's
employer under agreed terms and conditions of employment, and who is
required pursuant to those terms and conditions to inquire with the
individual's employer for available work assignments upon the conclusion of
each work assignment, is not considered unable to obtain suitable
employment if suitable work assignments are available with the employer but
the individual fails to contact the employer to inquire about work
assignments. (6) Participates in reemployment services, such as job
search assistance services, if the individual has been determined
to be likely to exhaust benefits under this chapter, including
compensation payable pursuant to 5 U.S.C.A. Chapter 85, other
than extended compensation, and needs reemployment services
pursuant to the profiling system established by the
director
under division (K) of this section, unless the
director
determines that: (a) The individual has completed such services; or (b) There is justifiable cause for the claimant's failure
to participate in such services. (B) An individual suffering total or partial unemployment
is eligible for benefits for unemployment occurring subsequent to
a waiting period of one week and no benefits shall be payable
during this required waiting period, but no except when the unemployment during this waiting period is directly attributable to a major disaster declared by the president of the United States pursuant to the "Disaster Relief Act of 1974," 88 Stat. 143, 42 U.S.C. 5121. Not more than one week of
waiting period shall be required of any such individual in any
benefit year in order to establish the individual's
eligibility for total or
partial unemployment benefits. (C) The waiting period for total or partial unemployment
shall commence on the first day of the first week with respect to
which the individual first files a claim for benefits at an
employment office or other place of registration maintained or
designated by the director or on the first day of
the first
week with respect to which the individual has otherwise filed
a claim for
benefits in accordance with the rules of the department
of job and family services, provided
such claim is allowed by the director. (D) Notwithstanding division (A) of this section, no
individual may serve a waiting period or be paid benefits under
the following conditions: (1) For any week with respect to which the
director
finds that: (a) The individual's unemployment was due to a labor
dispute other than
a lockout at any factory, establishment, or other premises
located in this or any other state and owned or operated by the
employer by which the individual is or was last employed; and
for so long as
the individual's unemployment is due to such labor dispute.
No individual
shall be disqualified under this provision if either of the following
applies: (i) The individual's employment was with such employer at
any factory,
establishment, or premises located in this state, owned or
operated by such employer, other than the factory, establishment,
or premises at which the labor dispute exists, if it is shown
that the individual is not financing, participating in, or
directly
interested in such labor dispute; (ii) The individual's employment was with an employer not
involved in
the labor dispute but whose place of business was located within
the same premises as the employer engaged in the dispute, unless
the individual's employer is a wholly owned subsidiary of
the employer engaged
in the dispute, or unless the individual actively
participates in or
voluntarily stops work because of such dispute. If it is
established that the claimant was laid off for an indefinite
period and not recalled to work prior to the dispute, or was
separated by the employer prior to the dispute for reasons other
than the labor dispute, or that the individual obtained a
bona fide job with
another employer while the dispute was still in progress, such
labor dispute shall not render the employee ineligible for
benefits. (b) The individual has been given a disciplinary layoff for
misconduct
in connection with the individual's work. (2) For the duration of the individual's unemployment if
the
director finds that: (a) The individual quit work without just cause
or has been
discharged for just cause in connection with the
individual's work, provided
division (D)(2) of this section does not apply to the separation
of a person under any of the following circumstances: (i) Separation from employment for the purpose of entering
the armed forces of the United States if the individual makes
application to
enter, or is inducted into the armed forces within thirty
days
after such separation; (ii) Separation from employment pursuant to a
labor-management contract or agreement, or pursuant to an
established employer plan, program, or policy, which permits the
employee, because of lack of work, to accept a separation from employment; (iii) The individual has left employment to
accept a recall from a
prior employer or, except as provided in division
(D)(2)(a)(iv) of this section, to accept other employment
as provided under
section 4141.291 of the Revised Code, or left or was separated
from employment that was concurrent employment at the time
of the most recent separation or within six weeks prior to the most
recent separation where the remuneration, hours, or other
conditions of such concurrent employment were substantially less
favorable than the individual's most recent employment and
where such employment, if offered as new work, would be considered not
suitable under the provisions of divisions (E) and (F) of this
section. Any benefits that would otherwise be chargeable
to the account of the employer from whom an individual has left
employment or was separated from employment that was concurrent
employment under conditions described in division
(D)(2)(a)(iii) of this section, shall instead be charged
to the mutualized
account created by division (B) of section 4141.25 of the
Revised Code, except that any benefits chargeable to the account of a
reimbursing employer under division (D)(2)(a)(iii) of this
section shall be charged to the account of the reimbursing
employer and not to the mutualized account, except as
provided in division (D)(2) of section 4141.24 of the Revised Code. (iv) When an individual has been issued a definite
layoff
date by the individual's employer and before the layoff
date, the individual quits to accept other employment, the provisions of
division
(D)(2)(a)(iii) of this section apply and no
disqualification
shall be imposed under division (D) of this section. However, if
the individual fails to meet the employment and earnings
requirements of division (A)(2) of section 4141.291 of the
Revised Code, then the individual, pursuant to division
(A)(5) of this section, shall be ineligible for benefits for any week
of unemployment that occurs prior to the layoff date. (b) The individual has refused without good cause to accept
an offer
of suitable work when made by an employer either in person or to
the individual's last known address, or has refused or
failed to investigate a
referral to suitable work when directed to do so by a local
employment office of this state or another state, provided that
this division shall not cause a disqualification for a waiting
week or benefits under the following circumstances: (i) When work is offered by the individual's employer and
the individual is not
required to accept the offer pursuant to the terms of the
labor-management contract or agreement; or (ii) When the individual is attending a vocational
training course pursuant to division (A)(4) of this section
except, in the event of a refusal to accept an offer of suitable
work or a refusal or failure to investigate a referral, benefits
thereafter paid to such individual shall not be charged to the
account of any employer and, except as provided in division
(B)(1)(b) of section 4141.241 of the Revised Code, shall be
charged to the mutualized account as provided in division
(B) of
section 4141.25 of the Revised Code. (c) Such individual quit work to marry or because of
marital, parental, filial, or other domestic obligations. (d) The individual has knowingly made a false statement or
representation or knowingly failed to report any material fact
with the object of obtaining benefits to which the individual
is not
entitled. (e) The individual became unemployed by reason of commitment
to any
correctional institution. (f) The individual became unemployed because of dishonesty
in
connection with the individual's most recent or any base
period work. Remuneration earned in such work shall be excluded from
the
individual's total base period remuneration and qualifying weeks
that otherwise would be credited to
the individual for such
work in the individual's base period shall not be credited for
the purpose of determining the total benefits to which the
individual is eligible and the weekly benefit amount to be paid
under section 4141.30 of the Revised Code. Such excluded
remuneration and noncredited qualifying weeks shall be excluded
from the calculation of the maximum amount to be charged, under
division (D) of section 4141.24 and section 4141.33 of the
Revised Code, against the accounts of the individual's base
period employers. In addition, no benefits shall thereafter be
paid to the individual based upon such excluded
remuneration or
noncredited qualifying weeks. For purposes of division (D)(2)(f) of this section,
"dishonesty" means the commission of substantive theft, fraud, or
deceitful acts. (E) No individual otherwise qualified to receive benefits
shall lose the right to benefits by reason of a refusal to accept
new work if: (1) As a condition of being so employed the individual would
be
required to join a company union, or to resign from or refrain
from joining any bona fide labor organization, or would be denied
the right to retain membership in and observe the lawful rules of
any such organization. (2) The position offered is vacant due directly to a
strike, lockout, or other labor dispute. (3) The work is at an unreasonable distance from the
individual's
residence, having regard to the character of the work the
individual has been
accustomed to do, and travel to the place of work involves
expenses substantially greater than that required for the
individual's former
work, unless the expense is provided for. (4) The remuneration, hours, or other conditions of the
work offered are substantially less favorable to the individual
than those prevailing for similar work in the locality. (F) Subject to the special exceptions contained in
division (A)(4)(f) of this section and section 4141.301 of the
Revised Code, in determining whether any work is suitable for a
claimant in the administration of this chapter, the
director, in addition to the determination required under division
(E) of this section, shall consider the degree of risk to the
claimant's health, safety, and morals, the individual's
physical fitness for
the work, the individual's prior training and experience,
the length of the individual's
unemployment, the distance of the available work from the
individual's
residence, and the individual's prospects for obtaining
local work. (G) The "duration of unemployment" as used in this
section means the full period of unemployment next ensuing after
a separation from any base period or subsequent work and until an
individual has become reemployed in employment subject to this
chapter, or the unemployment compensation act of another state,
or of the United States, and until such individual has worked six
weeks and for those weeks has earned or been paid
remuneration
equal to six times an average weekly wage of not less than:
eighty-five dollars and ten cents per week beginning on June 26,
1990; and beginning on and after January 1, 1992, twenty-seven
and one-half per cent of the statewide average weekly wage as
computed each first day of January under division (B)(3) of
section 4141.30 of the Revised Code, rounded down to the nearest
dollar, except for purposes of division (D)(2)(c) of this
section, such term means the full period of unemployment next
ensuing after a separation from such work and until such
individual has become reemployed subject to the terms set forth
above, and has earned wages equal to one-half of the
individual's average
weekly wage or sixty dollars, whichever is less. (H) If a claimant is disqualified under division
(D)(2)(a), (c), or (e) of this section or found to be qualified
under the exceptions provided in division (D)(2)(a)(i),
(iii), or (iv) of this section or division (A)(2) of section
4141.291 of the Revised Code, then benefits that may
become
payable to such claimant, which are chargeable to the account of
the employer from whom the individual was separated under
such conditions,
shall be charged to the mutualized account provided in section
4141.25 of the Revised Code, provided that no charge shall be
made to the mutualized account for benefits chargeable to a
reimbursing employer, except as provided in division (D)(2)
of
section 4141.24 of the Revised Code. In the case of a
reimbursing employer, the director shall refund or
credit to
the account of the reimbursing employer any over-paid benefits
that are recovered under division (B) of section 4141.35 of the
Revised Code. (I)(1) Benefits based on service in employment as provided
in divisions (B)(2)(a) and (b) of section 4141.01 of the Revised
Code shall be payable in the same amount, on the same terms, and
subject to the same conditions as benefits payable on the basis
of other service subject to this chapter; except that after
December 31, 1977: (a) Benefits based on service in an instructional,
research, or principal administrative capacity in an institution
of higher education, as defined in division (Y) of section
4141.01 of the Revised Code; or for an educational institution as
defined in division (CC) of section 4141.01 of the Revised Code,
shall not be paid to any individual for any week of unemployment
that begins during the period between two successive
academic
years or terms, or during a similar period between two regular
but not successive terms or during a period of paid sabbatical
leave provided for in the individual's contract, if the
individual performs such services in the first of those
academic
years or terms and has a contract or a reasonable assurance that
the individual will perform services in any such capacity for any
such institution in the second of those academic years or
terms. (b) Benefits based on service for an educational
institution or an institution of higher education in other than
an instructional, research, or principal administrative capacity,
shall not be paid to any individual for any week of unemployment
which begins during the period between two successive academic
years or terms of the employing educational institution or
institution of higher education, provided the individual
performed those services for the educational institution or
institution of higher education during the first such academic
year or term and, there is a reasonable assurance that such
individual will perform those services for any educational
institution or institution of higher education in the second of
such academic years or terms. If compensation is denied to any individual for any week
under division (I)(1)(b) of this section and the individual was
not offered an opportunity to perform those services for an
institution of higher education or for an educational institution
for the second of such academic years or terms, the individual is
entitled to a retroactive payment of compensation for each week
for which the individual timely filed a claim for compensation
and for which compensation was denied solely by reason of
division (I)(1)(b) of this section. An application for
retroactive benefits shall be timely filed if received by the
director or the
director's deputy within or prior
to the end of the
fourth full calendar week after the end of the period for which
benefits were denied because of reasonable assurance of
employment. The provision for the payment of retroactive
benefits under division (I)(1)(b) of this section is applicable
to weeks of unemployment beginning on and after November 18,
1983. The provisions under division (I)(1)(b) of this section
shall be retroactive to September 5, 1982, only if, as a
condition for full tax credit against the tax imposed by the
"Federal Unemployment Tax Act," 53 Stat. 183 (1939), 26 U.S.C.A.
3301 to 3311, the United States secretary of labor determines
that
retroactivity is required by federal law. (c) With respect to weeks of unemployment beginning after
December 31, 1977, benefits shall be denied to any individual for
any week which commences during an established and customary
vacation period or holiday recess, if the individual performs any
services described in divisions (I)(1)(a) and (b) of this section
in the period immediately before the vacation period or holiday
recess, and there is a reasonable assurance that the individual
will perform any such services in the period immediately
following the vacation period or holiday recess. (d) With respect to any services described in division
(I)(1)(a), (b), or (c) of this section, benefits payable on the
basis of services in any such capacity shall be denied as
specified in division (I)(1)(a), (b), or (c) of this section to
any individual who performs such services in an educational
institution or institution of higher education while in the
employ of an educational service agency. For this purpose, the
term "educational service agency" means a governmental agency or
governmental entity that is established and operated
exclusively
for the purpose of providing services to one or more educational
institutions or one or more institutions of higher education. (e) Any individual employed by a public school district or
a county board of mental retardation shall be notified by the
thirtieth day of April each year if the individual is not to
be reemployed
the following academic year. (2) No disqualification will be imposed, between academic
years or terms or during a vacation period or holiday recess
under this division, unless the director or the
director's deputy has
received a statement in writing from the educational institution
or institution of higher education that the claimant has a
contract for, or a reasonable assurance of, reemployment for the
ensuing academic year or term. (3) If an individual has employment with an educational
institution or an institution of higher education and employment
with a noneducational employer, during the base period of the
individual's benefit year, then the individual may become
eligible for benefits during the between-term, or vacation or
holiday recess, disqualification period, based on employment
performed for the noneducational employer, provided that the
employment is sufficient to qualify the individual for benefit
rights separately from the benefit rights based on school
employment. The weekly benefit amount and maximum benefits
payable during a disqualification period shall be computed based
solely on the nonschool employment. (J) Benefits shall not be paid on the basis of employment
performed by an alien, unless the alien had been lawfully
admitted to the United States for permanent residence at the time
the services were performed, was lawfully present for purposes of
performing the services, or was otherwise permanently residing in
the United States under color of law at the time the services
were performed, under section 212(d)(5) of the "Immigration and
Nationality Act," 66 Stat. 163, 8 U.S.C.A. 1101: (1) Any data or information required of individuals
applying for benefits to determine whether benefits are not
payable to them because of their alien status shall be uniformly
required from all applicants for benefits. (2) In the case of an individual whose application for
benefits would otherwise be approved, no determination that
benefits to the individual are not payable because of the
individual's alien
status shall be made except upon a preponderance of the evidence
that the individual had not, in fact, been lawfully admitted to
the United States. (K) The director shall establish and utilize a
system
of profiling all new claimants under this chapter that: (1) Identifies which claimants will be likely to exhaust
regular compensation and will need job search assistance services
to make a successful transition to new employment; (2) Refers claimants identified pursuant to division
(K)(1) of this section to reemployment services, such as job
search assistance services, available under any state or federal
law; (3) Collects follow-up information relating to the
services received by such claimants and the employment outcomes
for such claimant's subsequent to receiving such services and
utilizes such information in making identifications pursuant to
division (K)(1) of this section; and (4) Meets such other requirements as the United States
secretary of labor determines are appropriate.
Section 2. That existing sections 3121.898, 3121.899, 4141.01, 4141.281, and 4141.29 of the Revised Code are hereby repealed.
Section 3. That Section 3 of S.B. 99 of the 124th General Assembly be amended to read as follows:
Sec. 3. Notwithstanding division (R)(2) of section 4141.01
of the Revised Code as amended by this act S.B. 99 of the 124th General Assembly, the Director of Job
and Family Services may specify that the provisions of that
division are applicable for the determination of benefit rights
involving benefit years beginning on or before December 28, 2003 26, 2004,
if the Director determines that the technological systems
necessary to effect the purposes of that division are operational
and sufficiently adequate to assure no interruption in the
discharge of the duties of the Director and the Department of Job
and Family Services under Chapter 4141. of the Revised Code.
Section 4. That existing Section 3 of S.B. 99 of the 124th General Assembly is hereby repealed.
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