The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
H. B. No. 522 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
| |
Cosponsors:
Representatives Beck, Ruhl, Stebelton
A BILL
To amend sections 119.14, 1349.61, 4111.03, 4121.01,
4123.01, and 4141.01 of the Revised Code to
establish a test to determine whether an
individual providing services for or on behalf of
certain motor transportation companies is
considered an employee under Ohio's Overtime,
Workers' Compensation, and Unemployment
Compensation Laws.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 119.14, 1349.61, 4111.03, 4121.01,
4123.01, and 4141.01 of the Revised Code be amended to read as
follows:
Sec. 119.14. (A) For any small business that engages in a
paperwork violation, the state agency or regulatory authority that
regulates the field of operation in which the business operates
shall waive any and all administrative fines or civil penalties on
that small business for the violation, if the paperwork violation
is a first-time offense.
(B) When an agency or regulatory authority waives an
administrative fine or civil penalty under this section, the state
agency or regulatory authority shall require the small business to
correct the violation within a reasonable period of time.
(C) Notwithstanding this section, a state agency or
regulatory authority may impose administrative fines or civil
penalties on a small business for a paperwork violation that is a
first-time offense for any of the following reasons:
(1) The violation has the potential to cause serious harm to
the public interest as determined by a state agency or regulatory
authority director;
(2) The violation involves a small business knowingly or
willfully engaging in conduct that may result in a felony
conviction;
(3) Failure to impose an administrative fine or civil penalty
for the violation would impede or interfere with the detection of
criminal activity;
(4) The violation is of a law concerning the assessment or
collection of any tax, debt, revenue, or receipt;
(5) The violation presents a direct danger to the public
health or safety, results in a financial loss to an employee as
defined in section 4111.03 of the Revised Code, or presents the
risk of severe environmental harm, as determined by the head of
the agency or regulatory authority;
(6) The violation is a failure to comply with a federal
requirement for a program that has been delegated from the federal
government to a state agency or regulatory authority and where the
federal requirement includes a requirement to impose a fine.
(D)(1) Nothing in this section shall prohibit a state agency
or regulatory authority from waiving administrative fines or civil
penalties incurred by a small business for a paperwork violation
that is not a first-time offense.
(2) Any administrative fine or civil penalty that is waived
under this section, may be reinstated and imposed in addition to
any additional fines or penalties associated with a subsequent
violation for noncompliance with the same paperwork requirement.
(E) This section shall not apply to any violation by a small
business of a statutory or regulatory requirement mandating the
collection of information by a state agency or regulatory body if
that small business previously violated any such requirement
mandating the collection of information.
(F) Nothing in this section shall be construed to diminish
the responsibility for any citizen or business to apply for and
obtain a permit, license, or authorizing document that is required
to engage in a regulated activity, or otherwise comply with state
or federal law.
(G) As used in this section:
(1) "Small business" has the same meaning as defined by the
Code of Federal Regulations, Title 13, Chapter 1, Part 121.
(2) "Paperwork violation" means the violation of any
statutory or regulatory requirement in the Revised Code mandating
the collection of information by a state agency or regulatory
body.
(3) "First-time offense" means the first instance of a
violation of the particular statutory or regulatory requirement
mandating the collection of information by a state agency or
regulatory body.
(4) "Employee" means any individual employed by an employer
but does not include:
(a) Any individual employed by the United States;
(b) Any individual employed as a babysitter in the employer's
home, or a live-in companion to a sick, convalescing, or elderly
person whose principal duties do not include housekeeping;
(c) Any individual engaged in the delivery of newspapers to
the consumer;
(d) Any individual employed as an outside salesperson
compensated by commissions or employed in a bona fide executive,
administrative, or professional capacity as such terms are defined
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29
U.S.C. 201, as amended;
(e) Any individual who works or provides personal services of
a charitable nature in a hospital or health institution for which
compensation is not sought or contemplated;
(f) A member of a police or fire protection agency or student
employed on a part-time or seasonal basis by a political
subdivision of this state;
(g) Any individual in the employ of a camp or recreational
area for children under eighteen years of age and owned and
operated by a nonprofit 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;
(h) Any individual employed directly by the house of
representatives or directly by the senate.
Sec. 1349.61. (A)(1) Subject to division (C) of this
section, no person or entity shall sell a gift card to a purchaser
containing an expiration date that is less than two years after
the date the gift card is issued.
(2) No person or entity, within two years after a gift card
is issued, shall charge service charges or fees relative to that
gift card, including dormancy fees, latency fees, or
administrative fees, that have the effect of reducing the total
amount for which the holder of the gift card may redeem the gift
card.
(B) A gift card sold without an expiration date is valid
until redeemed or replaced with a new gift card.
(C) Division (A) of this section does not apply to any of the
following gift cards:
(1) A gift card that is distributed by the issuer to a
consumer pursuant to an awards, loyalty, or promotional program
without any money or anything of value being given in exchange for
the gift card by the consumer;
(2) A gift card that is sold below face value at a volume
discount to employers or to nonprofit and charitable organizations
for fundraising purposes, if the expiration date on that gift card
is not more than thirty days after the date of sale;
(3) A gift card that is sold by a nonprofit or charitable
organization for fundraising purposes;
(4) A gift card that an employer gives to an employee if use
of the gift card is limited to the employer's business
establishment, which may include a group of merchants that are
affiliated with that business establishment;
(5) A gift certificate issued in accordance with section
1533.131 of the Revised Code that may be used to obtain hunting
and fishing licenses, fur taker, special deer, and special wild
turkey permits, and wetlands habitat stamps;
(6) A gift card that is usable with multiple, unaffiliated
sellers of goods or services;
(7) A gift card that an employer issues to an employee in
recognition of services performed by the employee.
(D) Whoever violates division (A)(2) of this section is
liable to the holder for any amount that the redemption value of
the gift card was reduced, any court costs incurred, and
reasonable attorney's fees.
(E) As used in this section:
(1) "Gift card" means a certificate, electronic card, or
other medium issued by a merchant that evidences the giving of
consideration in exchange for the right to redeem the certificate,
electronic card, or other medium for goods, food, services,
credit, or money of at least an equal value, including any
electronic card issued by a merchant with a monetary value where
the issuer has received payment for the full monetary value for
the future purchase or delivery of goods or services and any
certificate issued by a merchant where the issuer has received
payment for the full monetary face value of the certificate for
the future purchase or delivery of goods and services. "Gift card"
does not include a prepaid calling card used to make telephone
calls.
(2) "Employer" and "employee" have has the same meanings
meaning as in section 4121.01 of the Revised Code.
(3) "Employee" means every person who may be required or
directed by any employer, in consideration of direct or indirect
gain or profit, to engage in any employment, or to go, or work, or
be at any time in any place of employment.
Sec. 4111.03. (A) An employer shall pay an employee for
overtime at a wage rate of one and one-half times the employee's
wage rate for hours worked in excess of forty hours in one
workweek, in the manner and methods provided in and subject to the
exemptions of section 7 and section 13 of the "Fair Labor
Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 207, 213, as
amended.
Any employee employed in agriculture shall not be covered by
the overtime provision of this section.
(B) If a county employee elects to take compensatory time off
in lieu of overtime pay, for any overtime worked, compensatory
time may be granted by the employee's administrative superior, on
a time and one-half basis, at a time mutually convenient to the
employee and the administrative superior within one hundred eighty
days after the overtime is worked.
(C) A county appointing authority with the exception of the
county department of job and family services may, by rule or
resolution as is appropriate, indicate the authority's intention
not to be bound by division (B) of this section, and to adopt a
different policy for the calculation and payment of overtime than
that established by that division. Upon adoption, the alternative
overtime policy prevails. Prior to the adoption of an alternative
overtime policy, a county appointing authority with the exception
of the county department of job and family services shall give a
written notice of the alternative policy to each employee at least
ten days prior to its effective date.
(D) As used in this section:
(1) "Employ" means to suffer or to permit to work.
(2) "Employer" means the state of Ohio, its
instrumentalities, and its political subdivisions and their
instrumentalities, any individual, partnership, association,
corporation, business trust, or any person or group of persons,
acting in the interest of an employer in relation to an employee,
but does not include an employer whose annual gross volume of
sales made for business done is less than one hundred fifty
thousand dollars, exclusive of excise taxes at the retail level
which are separately stated.
(3) "Employee" means any individual employed by an employer
but does not include:
(a) Any individual employed by the United States;
(b) Any individual employed as a baby-sitter babysitter in
the employer's home, or a live-in companion to a sick,
convalescing, or elderly person whose principal duties do not
include housekeeping;
(c) Any individual engaged in the delivery of newspapers to
the consumer;
(d) Any individual employed as an outside salesperson
compensated by commissions or employed in a bona fide executive,
administrative, or professional capacity as such terms are defined
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29
U.S.C.A. 201, as amended;
(e) Any individual who works or provides personal services of
a charitable nature in a hospital or health institution for which
compensation is not sought or contemplated;
(f) A member of a police or fire protection agency or student
employed on a part-time or seasonal basis by a political
subdivision of this state;
(g) Any individual in the employ of a camp or recreational
area for children under eighteen years of age and owned and
operated by a nonprofit 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;
(h) Any individual employed directly by the house of
representatives or directly by the senate;
(i) An individual who provides services for or on behalf of a
motor transportation company transporting property; who is an
operator of a car, van, truck, tractor, or truck-tractor that is
licensed and registered under Chapter 4503. of the Revised Code or
a similar law of another state; and to whom the majority of the
following factors apply:
(i) The individual owns the vehicle used to provide the
service or holds it under a bona fide lease arrangement.
(ii) The individual is responsible for the maintenance of the
vehicle used to provide the service.
(iii) The individual is responsible for the operating costs
of the vehicle used to provide the service, including fuel,
repairs, supplies, vehicle insurance, and personal expenses,
except that the individual may be paid the carrier's fuel
surcharge and incidental costs, including tolls, permits, and
lumper fees.
(iv) The individual is responsible for supplying the
necessary personal services to operate the vehicle used to provide
the service.
(v) The compensation paid to the individual is based on
factors related to work performed, including a percentage of any
schedule of rates, and not on the basis of the hours or time
expended.
(vi) The individual substantially controls the means and
manner of performing the services, in conformance with regulatory
requirements and specifications of the shipper.
(vii) The individual enters into a written contract that
describes the relationship between the individual and the company
for whom the individual is performing the service to be that of an
independent contractor and not that of an employee.
(4) "Motor transportation company" has the same meaning as in
section 4921.02 of the Revised Code.
Sec. 4121.01. (A) As used in sections 4121.01 to 4121.29 of
the Revised Code:
(1) "Place of employment" means every place, whether indoors
or out, or underground, and the premises appurtenant thereto,
where either temporarily or permanently any industry, trade, or
business is carried on, or where any process or operation,
directly or indirectly related to any industry, trade, or
business, is carried on and where any person is directly or
indirectly employed by another for direct or indirect gain or
profit, but does not include any place where persons are employed
in private domestic service or agricultural pursuits which do not
involve the use of mechanical power.
(2) "Employment" means any trade, occupation, or process of
manufacture or any method of carrying on such trade, occupation,
or process of manufacture in which any person may be engaged,
except in such private domestic service or agricultural pursuits
as do not involve the use of mechanical power.
(3) "Employer" means every person, firm, corporation, agent,
manager, representative, or other person having control or custody
of any employment, place of employment, or employee.
(4)(a) "Employee" means every a person who may be required or
directed by any employer, in consideration of direct or indirect
gain or profit, to engage in any employment, or to go, or work, or
be at any time in any place of employment.
(b) "Employee" does not include a person who provides
services for or on behalf of a motor transportation company
transporting property; who is an operator of a car, van, truck,
tractor, or truck-tractor that is licensed and registered under
Chapter 4503. of the Revised Code or a similar law of another
state; and to whom the majority of the following factors apply:
(i) The person owns the vehicle used to provide the service
or holds it under a bona fide lease arrangement.
(ii) The person is responsible for the maintenance of the
vehicle used to provide the service.
(iii) The person is responsible for the operating costs of
the vehicle used to provide the service, including fuel, repairs,
supplies, vehicle insurance, and personal expenses, except that
the person may be paid the carrier's fuel surcharge and incidental
costs, including tolls, permits, and lumper fees.
(iv) The person is responsible for supplying the necessary
personal services to operate the vehicle used to provide the
service.
(v) The compensation paid to the person is based on factors
related to work performed, including a percentage of any schedule
of rates, and not on the basis of the hours or time expended.
(vi) The person substantially controls the means and manner
of performing the services, in conformance with regulatory
requirements and specifications of the shipper.
(vii) The person enters into a written contract that
describes the relationship between the person and the company for
whom the person is performing the service to be that of an
independent contractor and not that of an employee.
(5) "Frequenter" means every person, other than an employee,
who may go in or be in a place of employment under circumstances
which render the person other than a trespasser.
(6) "Deputy" means any person employed by the industrial
commission or the bureau of workers' compensation, designated as a
deputy by the commission or the administrator of workers'
compensation, who possesses special, technical, scientific,
managerial, professional, or personal abilities or qualities in
matters within the jurisdiction of the commission or the bureau,
and who may be engaged in the performance of duties under the
direction of the commission or the bureau calling for the exercise
of such abilities or qualities.
(7) "Order" means any decision, rule, regulation, direction,
requirement, or standard, or any other determination or decision
that the bureau is empowered to and does make.
(8) "General order" means an order that applies generally
throughout the state to all persons, employments, or places of
employment, or all persons, employments, or places of employment
of a class under the jurisdiction of the bureau. All other orders
shall be considered special orders.
(9) "Local order" means any ordinance, order, rule, or
determination of the legislative authority of any municipal
corporation, or any trustees, or board or officers of any
municipal corporation upon any matter over which the bureau has
jurisdiction.
(10) "Welfare" means comfort, decency, and moral well-being.
(11) "Safe" or "safety," as applied to any employment or a
place of employment, means such freedom from danger to the life,
health, safety, or welfare of employees or frequenters as the
nature of the employment will reasonably permit, including
requirements as to the hours of labor with relation to the health
and welfare of employees.
(12) "Employee organization" means any labor or bona fide
organization in which employees participate and that exists for
the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, hours, terms, and
other conditions of employment.
(13) "Motor transportation company" has the same meaning as
in section 4921.02 of the Revised Code.
(B) As used in the Revised Code:
(1) "Industrial commission" means the chairperson of the
three-member industrial commission created pursuant to section
4121.02 of the Revised Code when the context refers to the
authority vested in the chairperson as the chief executive officer
of the three-member industrial commission pursuant to divisions
(A), (B), (C), and (D) of section 4121.03 of the Revised Code.
(2) "Industrial commission" means the three-member industrial
commission created pursuant to section 4121.02 of the Revised Code
when the context refers to the authority vested in the
three-member industrial commission pursuant to division (E) of
section 4121.03 of the Revised Code.
(3) "Industrial commission" means the industrial commission
as a state agency when the context refers to the authority vested
in the industrial commission as a state agency.
Sec. 4123.01. As used in this chapter:
(a) Every person in the service of the state, or of any
county, municipal corporation, township, or school district
therein, including regular members of lawfully constituted police
and fire departments of municipal corporations and townships,
whether paid or volunteer, and wherever serving within the state
or on temporary assignment outside thereof, and executive officers
of boards of education, under any appointment or contract of hire,
express or implied, oral or written, including any elected
official of the state, or of any county, municipal corporation, or
township, or members of boards of education.
As used in division (A)(1)(a) of this section, the term
"employee" includes the following persons when responding to an
inherently dangerous situation that calls for an immediate
response on the part of the person, regardless of whether the
person is within the limits of the jurisdiction of the person's
regular employment or voluntary service when responding, on the
condition that the person responds to the situation as the person
otherwise would if the person were on duty in the person's
jurisdiction:
(i) Off-duty peace officers. As used in division (A)(1)(a)(i)
of this section, "peace officer" has the same meaning as in
section 2935.01 of the Revised Code.
(ii) Off-duty firefighters, whether paid or volunteer, of a
lawfully constituted fire department.
(iii) Off-duty first responders, emergency medical
technicians-basic, emergency medical technicians-intermediate, or
emergency medical technicians-paramedic, whether paid or
volunteer, of an ambulance service organization or emergency
medical service organization pursuant to Chapter 4765. of the
Revised Code.
(b) Every person in the service of any person, firm, or
private corporation, including any public service corporation,
that (i) employs one or more persons regularly in the same
business or in or about the same establishment under any contract
of hire, express or implied, oral or written, including aliens and
minors, household workers who earn one hundred sixty dollars or
more in cash in any calendar quarter from a single household and
casual workers who earn one hundred sixty dollars or more in cash
in any calendar quarter from a single employer, or (ii) is bound
by any such contract of hire or by any other written contract, to
pay into the state insurance fund the premiums provided by this
chapter.
(c) Every person who performs labor or provides services
pursuant to a construction contract, as defined in section 4123.79
of the Revised Code, if at least ten of the following criteria
apply:
(i) The person is required to comply with instructions from
the other contracting party regarding the manner or method of
performing services;
(ii) The person is required by the other contracting party to
have particular training;
(iii) The person's services are integrated into the regular
functioning of the other contracting party;
(iv) The person is required to perform the work personally;
(v) The person is hired, supervised, or paid by the other
contracting party;
(vi) A continuing relationship exists between the person and
the other contracting party that contemplates continuing or
recurring work even if the work is not full time;
(vii) The person's hours of work are established by the other
contracting party;
(viii) The person is required to devote full time to the
business of the other contracting party;
(ix) The person is required to perform the work on the
premises of the other contracting party;
(x) The person is required to follow the order of work set by
the other contracting party;
(xi) The person is required to make oral or written reports
of progress to the other contracting party;
(xii) The person is paid for services on a regular basis such
as hourly, weekly, or monthly;
(xiii) The person's expenses are paid for by the other
contracting party;
(xiv) The person's tools and materials are furnished by the
other contracting party;
(xv) The person is provided with the facilities used to
perform services;
(xvi) The person does not realize a profit or suffer a loss
as a result of the services provided;
(xvii) The person is not performing services for a number of
employers at the same time;
(xviii) The person does not make the same services available
to the general public;
(xix) The other contracting party has a right to discharge
the person;
(xx) The person has the right to end the relationship with
the other contracting party without incurring liability pursuant
to an employment contract or agreement.
Every person in the service of any independent contractor or
subcontractor who has failed to pay into the state insurance fund
the amount of premium determined and fixed by the administrator of
workers' compensation for the person's employment or occupation or
if a self-insuring employer has failed to pay compensation and
benefits directly to the employer's injured and to the dependents
of the employer's killed employees as required by section 4123.35
of the Revised Code, shall be considered as the employee of the
person who has entered into a contract, whether written or verbal,
with such independent contractor unless such employees or their
legal representatives or beneficiaries elect, after injury or
death, to regard such independent contractor as the employer.
(d) Every person to whom all of the following apply:
(i) The person is a resident of a state other than this state
and is covered by that other state's workers' compensation law;
(ii) The person performs labor or provides services for that
person's employer while temporarily within this state;
(iii) The laws of that other state do not include the
provisions described in division (H)(4) of section 4123.54 of the
Revised Code.
(e) Every person who provides services for or on behalf of a
motor transportation company transporting property and who is an
operator of a car, van, truck, tractor, or truck-tractor that is
licensed and registered under Chapter 4503. of the Revised Code or
a similar law of another state, unless a majority of the following
factors apply to the person:
(i) The person owns the vehicle used to provide the service
or holds it under a bona fide lease arrangement.
(ii) The person is responsible for the maintenance of the
vehicle used to provide the service.
(iii) The person is responsible for the operating costs of
the vehicle used to provide the service, including fuel, repairs,
supplies, vehicle insurance, and personal expenses, except that
the person may be paid the carrier's fuel surcharge and incidental
costs, including tolls, permits, and lumper fees.
(iv) The person is responsible for supplying the necessary
personal services to operate the vehicle used to provide the
service.
(v) The compensation paid to the person is based on factors
related to work performed, including a percentage of any schedule
of rates, and not on the basis of the hours or time expended.
(vi) The person substantially controls the means and manner
of performing the services, in conformance with regulatory
requirements and specifications of the shipper.
(vii) The individual enters into a written contract that
describes the relationship between the person and the company for
whom the person is performing the service to be that of an
independent contractor and not that of an employee.
(2) "Employee" does not mean:
(a) A duly ordained, commissioned, or licensed minister or
assistant or associate minister of a church in the exercise of
ministry;
(b) Any officer of a family farm corporation;
(c) An individual incorporated as a corporation; or
(d) An individual who otherwise is an employee of an employer
but who signs the waiver and affidavit specified in section
4123.15 of the Revised Code on the condition that the
administrator has granted a waiver and exception to the
individual's employer under section 4123.15 of the Revised Code.
Any employer may elect to include as an "employee" within
this chapter, any person excluded from the definition of
"employee" pursuant to division (A)(2) of this section. If an
employer is a partnership, sole proprietorship, individual
incorporated as a corporation, or family farm corporation, such
employer may elect to include as an "employee" within this
chapter, any member of such partnership, the owner of the sole
proprietorship, the individual incorporated as a corporation, or
the officers of the family farm corporation. In the event of an
election, the employer shall serve upon the bureau of workers'
compensation written notice naming the persons to be covered,
include such employee's remuneration for premium purposes in all
future payroll reports, and no person excluded from the definition
of "employee" pursuant to division (A)(2) of this section,
proprietor, individual incorporated as a corporation, or partner
shall be deemed an employee within this division until the
employer has served such notice.
For informational purposes only, the bureau shall prescribe
such language as it considers appropriate, on such of its forms as
it considers appropriate, to advise employers of their right to
elect to include as an "employee" within this chapter a sole
proprietor, any member of a partnership, an individual
incorporated as a corporation, the officers of a family farm
corporation, or a person excluded from the definition of
"employee" under division (A)(2) of this section, that they should
check any health and disability insurance policy, or other form of
health and disability plan or contract, presently covering them,
or the purchase of which they may be considering, to determine
whether such policy, plan, or contract excludes benefits for
illness or injury that they might have elected to have covered by
workers' compensation.
(1) The state, including state hospitals, each county,
municipal corporation, township, school district, and hospital
owned by a political subdivision or subdivisions other than the
state;
(2) Every person, firm, professional employer organization as
defined in section 4125.01 of the Revised Code, and private
corporation, including any public service corporation, that (a)
has in service one or more employees or shared employees regularly
in the same business or in or about the same establishment under
any contract of hire, express or implied, oral or written, or (b)
is bound by any such contract of hire or by any other written
contract, to pay into the insurance fund the premiums provided by
this chapter.
All such employers are subject to this chapter. Any member of
a firm or association, who regularly performs manual labor in or
about a mine, factory, or other establishment, including a
household establishment, shall be considered an employee in
determining whether such person, firm, or private corporation, or
public service corporation, has in its service, one or more
employees and the employer shall report the income derived from
such labor to the bureau as part of the payroll of such employer,
and such member shall thereupon be entitled to all the benefits of
an employee.
(C) "Injury" includes any injury, whether caused by external
accidental means or accidental in character and result, received
in the course of, and arising out of, the injured employee's
employment. "Injury" does not include:
(1) Psychiatric conditions except where the claimant's
psychiatric conditions have arisen from an injury or occupational
disease sustained by that claimant or where the claimant's
psychiatric conditions have arisen from sexual conduct in which
the claimant was forced by threat of physical harm to engage or
participate;
(2) Injury or disability caused primarily by the natural
deterioration of tissue, an organ, or part of the body;
(3) Injury or disability incurred in voluntary participation
in an employer-sponsored recreation or fitness activity if the
employee signs a waiver of the employee's right to compensation or
benefits under this chapter prior to engaging in the recreation or
fitness activity;
(4) A condition that pre-existed an injury unless that
pre-existing condition is substantially aggravated by the injury.
Such a substantial aggravation must be documented by objective
diagnostic findings, objective clinical findings, or objective
test results. Subjective complaints may be evidence of such a
substantial aggravation. However, subjective complaints without
objective diagnostic findings, objective clinical findings, or
objective test results are insufficient to substantiate a
substantial aggravation.
(D) "Child" includes a posthumous child and a child legally
adopted prior to the injury.
(E) "Family farm corporation" means a corporation founded for
the purpose of farming agricultural land in which the majority of
the voting stock is held by and the majority of the stockholders
are persons or the spouse of persons related to each other within
the fourth degree of kinship, according to the rules of the civil
law, and at least one of the related persons is residing on or
actively operating the farm, and none of whose stockholders are a
corporation. A family farm corporation does not cease to qualify
under this division where, by reason of any devise, bequest, or
the operation of the laws of descent or distribution, the
ownership of shares of voting stock is transferred to another
person, as long as that person is within the degree of kinship
stipulated in this division.
(F) "Occupational disease" means a disease contracted in the
course of employment, which by its causes and the characteristics
of its manifestation or the condition of the employment results in
a hazard which distinguishes the employment in character from
employment generally, and the employment creates a risk of
contracting the disease in greater degree and in a different
manner from the public in general.
(G) "Self-insuring employer" means an employer who is granted
the privilege of paying compensation and benefits directly under
section 4123.35 of the Revised Code, including a board of county
commissioners for the sole purpose of constructing a sports
facility as defined in section 307.696 of the Revised Code,
provided that the electors of the county in which the sports
facility is to be built have approved construction of a sports
facility by ballot election no later than November 6, 1997.
(H) "Public employer" means an employer as defined in
division (B)(1) of this section.
(I) "Sexual conduct" means vaginal intercourse between a male
and female; anal intercourse, fellatio, and cunnilingus between
persons regardless of gender; and, without privilege to do so, the
insertion, however slight, of any part of the body or any
instrument, apparatus, or other object into the vaginal or anal
cavity of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
(J) "Other-states' insurer" means an insurance company that
is authorized to provide workers' compensation insurance coverage
in any of the states that permit employers to obtain insurance for
workers' compensation claims through insurance companies.
(K) "Other-states' coverage" means insurance coverage
purchased by an employer for workers' compensation claims that
arise in a state or states other than this state and that are
filed by the employees of the employer or those employee's
dependents, as applicable, in that other state or those other
states.
(L) "Motor transportation company" has the same meaning as in
section 4921.02 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, 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 Subject to division (B)(2)(m) of this section,
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.
(m) Service performed by an individual for or on behalf of a
motor transportation company transporting property and the
individual is an operator of a car, van, truck, tractor, or
truck-tractor that is licensed and registered under Chapter 4503.
of the Revised Code or a similar law of another state, unless the
majority of the following factors apply to the individual:
(i) The individual owns the vehicle used to provide the
service or holds it under a bona fide lease arrangement.
(ii) The individual is responsible for the maintenance of the
vehicle used to provide the service.
(iii) The individual is responsible for the operating costs
of the vehicle used to provide the service, including fuel,
repairs, supplies, vehicle insurance, and personal expenses,
except that the individual may be paid the carrier's fuel
surcharge and incidental costs, including tolls, permits, and
lumper fees.
(iv) The individual is responsible for supplying the
necessary personal services to operate the vehicle used to provide
the service.
(v) The compensation paid to the individual is based on
factors related to work performed, including a percentage of any
schedule of rates, and not on the basis of the hours or time
expended.
(vi) The individual substantially controls the means and
manner of performing the services, in conformance with regulatory
requirements and specifications of the shipper.
(vii) The individual enters into a written contract that
describes the relationship between the individual and the company
for whom the individual is performing the service to be that of an
independent contractor and not that of an employee.
(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) "Motor transportation company" has the same meaning as
in section 4921.02 of the Revised Code.
Section 2. That existing sections 119.14, 1349.61, 4111.03,
4121.01, 4123.01, and 4141.01 of the Revised Code are hereby
repealed.
Section 3. The amendments made to sections 4111.03, 4121.01,
4123.01, and 4141.01 of the Revised Code under Section 1 of this
act do not apply to any claim or cause of action pending under
Chapter 4111., 4121., 4123., or 4141. of the Revised Code on the
effective date of this act.
Section 4. Section 4111.03 of the Revised Code is presented
in this act as a composite of the section as amended by both Sub.
H.B. 187 and Am. Sub. H.B. 690 of the 126th General Assembly. The
General Assembly, applying the principle stated in division (B) of
section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation, finds
that the composite is the resulting version of the section in
effect prior to the effective date of the section as presented in
this act.
|
|