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H. B. No. 484 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Kozlowski, Newbold, Terhar, Johnson, Hagan, R., Foley, Young, Grossman, Blessing, Schuring, Peterson, Wachtmann, Baker, Sprague, Hagan, C., Brenner, Stebelton, Stinziano, Antonio
A BILL
To amend section 4141.01 and to enact sections
4141.50 to 4141.55 of the Revised Code to create
the short-time unemployment compensation program.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 4141.01 be amended and sections
4141.50, 4141.51, 4141.52, 4141.53, 4141.54, and 4141.55 of the
Revised Code be enacted to read as follows:
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, Indian tribes,
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 1184(c) and 1101(a)(15)(H) of the
"Immigration and Nationality Act," 66 Stat. 163, 189, 8 U.S.C.A.
1101(a)(15)(H)(ii)(a), 1184(c), 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, and Indian
tribes, had in employment, as defined in divisions (B)(2)(a) and
(B)(2)(l) 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 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.
(l) Service performed by an individual in the employ of an
Indian tribe as defined by section 4(e) of the "Indian
Self-Determination and Education Assistance Act," 88 Stat. 2204
(1975), 25 U.S.C.A. 450b(e), including any subdivision,
subsidiary, or business enterprise wholly owned by an Indian tribe
provided that the service is excluded from employment as defined
in the "Federal Unemployment Tax Act," 53 Stat. 183, (1939), 26
U.S.C.A. 3301 and 3306(c)(7) and is not excluded under division
(B)(3) of this section.
(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 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.
(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 or for Indian tribes;
(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.
(z) Service performed for an Indian tribe as described in
division (B)(2)(l) of this section when performed in any of the
following manners:
(i) As a publicly elected official;
(ii) As a member of an Indian tribal council;
(iii) As a member of a legislative or judiciary body;
(iv) In a position which, pursuant to Indian tribal law, is
designated as a major nontenured policymaking or advisory
position, or a policymaking or advisory position where the
performance of the duties ordinarily does not require more than
eight hours of time per week;
(v) As an employee serving on a temporary basis in the case
of a fire, storm, snow, earthquake, flood, or similar emergency.
(aa) Service performed after December 31, 1971, for a
nonprofit organization, this state or its instrumentalities, a
political subdivision or its instrumentalities, or an Indian tribe
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.
(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 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 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, including an educational
institution operated by an Indian tribe, 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 or by the Indian
tribe 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, including an educational institution operated by
an Indian tribe, 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, other government agency,
or Indian tribe 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.
(DD) "Cost savings day" means any unpaid day off from work in
which employees continue to accrue employee benefits which have a
determinable value including, but not limited to, vacation,
pension contribution, sick time, and life and health insurance.
(EE) "Affected unit" means a group of two or more employees,
including a department or shift, designated by an employer to
participate in a short-time compensation plan.
(FF) "Fringe benefit" means health insurance, a retirement
benefit received under a pension plan as defined in section 1002
of the "Employee Retirement Income Security Act of 1974," 88 Stat.
832, 29 U.S.C. 1001 et seq., a paid vacation day, a paid holiday,
sick leave, or any other similar employee benefit provided by an
employer.
(GG) "Normal weekly hours of work" means the number of hours
in a week that an employee normally works for an employer or an
average of forty hours per week over a two-week pay period,
whichever is less.
(HH) "Participating employee" means an employee who works a
reduced number of hours under an approved short-time compensation
plan.
(II) "Participating employer" means an employer who has a
short-time compensation plan.
(JJ) "Short-time compensation benefit" means an unemployment
compensation benefit that is payable to a participating employee.
(KK) "Short-time compensation plan" means a plan for reducing
unemployment under which employees who are members of an affected
unit share the work remaining after a reduction in the employees'
normal weekly hours of work.
Sec. 4141.50. There is hereby created the short-time
unemployment compensation program. An employer who wishes to
participate in the program shall submit a plan to the director of
job and family services that satisfies the requirements listed in
section 4141.51 of the Revised Code. If an employee the employer
covers under the plan is subject to a collective bargaining
agreement, the employer shall have the employee's collective
bargaining agent approve the plan in writing, and the employer
shall submit that approval to the director with the employer's
proposed plan.
Sec. 4141.51. (A) The director of job and family services
shall approve a short-time compensation plan submitted under
section 4141.50 of the Revised Code if all of the following are
satisfied:
(1) The employer identifies a specific affected unit in the
plan to which the plan will apply.
(2) The employer identifies in the plan the employees in the
affected unit by name and social security number.
(3) The employer includes a provision in the plan that
reduces the normal weekly hours of work for an employee in the
affected unit identified in the plan by at least ten per cent but
not more than sixty per cent.
(4) The employer states in the plan that the plan applies to
at least ten per cent of the employees within the affected unit.
(5) The employer states in the plan that the participating
employer will continue to provide fringe benefits on the same
basis as the fringe benefits were provided before the reduction in
work hours to implement the plan and that, in no event, will the
level of any health benefit provided be reduced due to the
reduction in hours.
(6) The employer certifies in the plan that the
implementation of a short-time compensation plan and resulting
reduction in work hours is in lieu of temporary layoffs that would
affect at least ten per cent of the employees within the affected
unit and result in an equivalent reduction in work hours and
certifies in the plan the estimated number of layoffs that would
have occurred absent the ability to participate in the short-time
compensation program.
(7) The employer agrees in writing in the plan to furnish the
director reports relating to the operation of the plan as the
director requests in accordance with section 4141.54 of the
Revised Code.
(8) The employer, in the plan, permits eligible employees to
participate, as appropriate, in training approved by the director,
including employer-sponsored training or worker training funded
under the federal "Workforce Investment Act of 1998," 112 Stat.
936, 29 U.S.C. 2801 et seq., as amended.
(B) An employer that traditionally has used part-time
employees shall not implement a short-term compensation plan to
subsidize the employer's employees. A seasonal employer shall not
implement a short-term compensation plan to subsidize the seasonal
employer's employees during the off-season. As used in this
division, "seasonal employer" has the same meaning as in section
4141.33 of the Revised Code.
(C) The director shall approve or deny a short-time
compensation plan and shall send a written notice to the employer
stating whether the director approved or denied the plan not later
than thirty days after the director receives the plan. If the
director denies approval of a short-time compensation plan, the
director shall state the reasons for denying approval in the
written notice sent to the employer.
Sec. 4141.52. A short-time compensation plan approved under
section 4141.51 of the Revised Code takes effect on the date the
director of job and family services approves the plan. An approved
short-time compensation plan expires on the last day of the
twelfth calendar month beginning after the effective date of the
plan. The director may terminate any approved short-time
compensation plan for good cause if the plan is not being executed
according to the terms and intent of the short-time unemployment
compensation program.
Sec. 4141.53. A participating employer may modify a
short-time compensation plan approved under section 4141.51 of the
Revised Code to meet changed conditions regarding the
participating employer's business if the modification conforms to
the basic provisions of the plan as approved by the director of
job and family services. Before implementing the proposed change,
the participating employer shall report the proposed change in
writing to the director. If the director determines that the
proposed change will result in a substantial modification of the
plan approved under section 4141.51 of the Revised Code, the
director shall reevaluate the proposed modified plan to determine
whether the plan continues to satisfy the requirements listed in
divisions (A)(1) to (6) of that section. The director shall
approve or deny the modification in accordance with that section.
If the director determines that the proposed change does not
result in a substantial modification to the approved plan, the
director shall approve the proposed change unless the director
determines that the modification does not conform to the basic
provisions of the approved plan.
Approval of a modified plan does not affect the plan's
original expiration date determined under section 4141.52 of the
Revised Code.
Sec. 4141.54. Upon request of the director of job and family
services, a participating employer shall monitor and evaluate the
operation of the participating employer's short-time compensation
plan and shall report the participating employer's findings to the
director.
Sec. 4141.55. (A) Notwithstanding section 4141.01, 4141.29,
4141.30, or 4141.31 of the Revised Code, an individual is
unemployed for purposes of this chapter in a week during which the
individual is a participating employee under a short-time
compensation plan approved under section 4141.51 of the Revised
Code that is in effect for that week.
(B) An individual is eligible to receive short-time
compensation benefits for a week in which the individual satisfies
all of the following:
(1) The individual is employed as a member of an affected
unit subject to a short-time compensation plan that was approved
before that week and is in effect for that week.
(2) The individual is able to work and is available for
full-time work with the participating employer.
(3) The individual's normal weekly hours of work have been
reduced by at least ten per cent but not more than sixty per cent
and the individual receives a corresponding reduction in wages.
(C) Notwithstanding section 4141.29 of the Revised Code, the
director of job and family services shall not deny short-time
compensation benefits for a week to an otherwise eligible
participating employee because the employee is unavailable for
work other than as required under division (B)(2) of this section,
is not actively searching for work, or refuses to apply for or to
accept work with an employer other than the participating
employee's participating employer.
(D) The director shall pay a participating employee who is
eligible for a weekly short-time compensation benefit in an amount
equal to the participating employee's regular weekly benefit
amount for a period of total unemployment as described in division
(D) of section 4141.30 of the Revised Code multiplied by the
nearest full percentage of reduction of the participating
employee's wages under the participating employee's participating
employer's short-time compensation plan. The director shall round
the amount of a short-time compensation benefit that is not a
multiple of one dollar to the next highest dollar amount.
(E) A participating employee is not entitled to receive
short-time compensation benefits and regular unemployment
compensation benefits that exceed the maximum total benefits
payable to the participating employee in a benefit year under
section 4141.30 of the Revised Code. A participating employee
shall receive short-time compensation benefits for a maximum of
twenty-six weeks regardless of whether the participating employee
has received the total maximum benefits payable for the
participating employee's benefit year. An individual who receives
short-time compensation benefits is not entitled to receive
benefits for partial unemployment under division (C) of section
4141.30 of the Revised Code for any week during which the
individual works as a participating employee. The director shall
not pay an individual short-time compensation benefits for a week
during which the individual performs paid work for the
individual's participating employer that exceeds the reduced hours
established under a short-time compensation plan.
(F) An individual who has received all of the short-time
compensation benefits and regular unemployment compensation
benefits available in a benefit year is an individual who has
exhausted regular benefits under section 4141.30 of the Revised
Code and is entitled to receive extended benefits under section
4141.301 of the Revised Code if the individual is otherwise
eligible to receive benefits under that section.
Section 2. That existing section 4141.01 of the Revised Code
is hereby repealed.
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