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H. B. No. 347 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Representatives Phillips, Driehaus
Cosponsors:
Representatives Barborak, Clyde, Foley, Hagan, R., Heard, Lundy, Mallory, Ramos, Sheehy, Strahorn
A BILL
To amend sections 121.083, 1349.61, 4111.02, 4111.14,
4113.15, 4115.03, 4121.01, 4123.01, 4123.026,
4141.01, and 5747.01 and to enact sections 4175.01
to 4175.18 and 4175.99 of the Revised Code to
create a generally uniform definition of employee
for specified labor laws and to create a uniform
standard to determine whether an individual
performing services for an employer is an employee
of that employer.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 121.083, 1349.61, 4111.02, 4111.14,
4113.15, 4115.03, 4121.01, 4123.01, 4123.026, 4141.01, and 5747.01
be amended and sections 4175.01, 4175.02, 4175.03, 4175.04,
4175.05, 4175.06, 4175.07, 4175.08, 4175.09, 4175.10, 4175.11,
4175.12, 4175.13, 4175.14, 4175.15, 4175.16, 4175.17, 4175.18, and
4175.99 of the Revised Code be enacted to read as follows:
Sec. 121.083. The superintendent of industrial compliance in
the department of commerce shall do all of the following:
(A) Administer and enforce the general laws of this state
pertaining to buildings, pressure piping, boilers, bedding,
upholstered furniture, and stuffed toys, steam engineering,
elevators, plumbing, licensed occupations regulated by the
department, and travel agents, as they apply to plans review,
inspection, code enforcement, testing, licensing, registration,
and certification.
(B) Exercise the powers and perform the duties delegated to
the superintendent by the director of commerce under Chapters
4109., 4111., and 4115., and 4175. of the Revised Code.
(C) Collect and collate statistics as are necessary.
(D) Examine and license persons who desire to act as steam
engineers, to operate steam boilers, and to act as inspectors of
steam boilers, provide for the scope, conduct, and time of such
examinations, provide for, regulate, and enforce the renewal and
revocation of such licenses, inspect and examine steam boilers and
make, publish, and enforce rules and orders for the construction,
installation, inspection, and operation of steam boilers, and do,
require, and enforce all things necessary to make such
examination, inspection, and requirement efficient.
(E) Rent and furnish offices as needed in cities in this
state for the conduct of its affairs.
(F) Oversee a chief of construction and compliance, a chief
of operations and maintenance, a chief of licensing and
certification, a chief of worker protection, and other designees
appointed by the director to perform the duties described in this
section.
(G) Enforce the rules the board of building standards adopts
pursuant to division (A)(2) of section 4104.43 of the Revised Code
under the circumstances described in division (D) of that section.
(H) Accept submissions, establish a fee for submissions, and
review submissions of certified welding and brazing procedure
specifications, procedure qualification records, and performance
qualification records for building services piping as required by
section 4104.44 of the Revised Code.
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. 4111.02. Every employer, as defined in Section 34a of
Article II, Ohio Constitution, shall pay each of the employer's
employees at a wage rate of not less than the wage rate specified
in Section 34a of Article II, Ohio Constitution.
The director of commerce annually shall adjust the wage rate
as specified in Section 34a of Article II, Ohio Constitution.
As used in this section, "employee" has the same meaning as
in section 4111.14 4175.01 of the Revised Code.
Sec. 4111.14. (A) Pursuant to the general assembly's
authority to establish a minimum wage under Section 34 of Article
II, Ohio Constitution, this section is in implementation of
Section 34a of Article II, Ohio Constitution. In implementing
Section 34a of Article II, Ohio Constitution, the general assembly
hereby finds that the purpose of Section 34a of Article II, Ohio
Constitution, is to:
(1) Ensure that Ohio employees, as defined in division (B)(1)
of this section, are paid the wage rate required by Section 34a of
Article II, Ohio Constitution;
(2) Ensure that covered Ohio employers maintain certain
records that are directly related to the enforcement of the wage
rate requirements in Section 34a of Article II, Ohio Constitution;
(3) Ensure that Ohio employees who are paid the wage rate
required by Section 34a of Article II, Ohio Constitution, may
enforce their right to receive that wage rate in the manner set
forth in Section 34a of Article II, Ohio Constitution; and
(4) Protect the privacy of Ohio employees' pay and personal
information specified in Section 34a of Article II, Ohio
Constitution, by restricting an employee's access, and access by a
person acting on behalf of that employee, to the employee's own
pay and personal information.
(B) In accordance with Section 34a of Article II, Ohio
Constitution, the terms "employer," "employee," "employ," and
"person," and "independent contractor" have the same meanings as
in the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29
U.S.C. 203, as amended. In construing the meaning of these terms,
due consideration and great weight shall be given to the United
States department of labor's and federal courts' interpretations
of those terms under the Fair Labor Standards Act and its
regulations. As used in division (B) of this section:
(1), "Employee employee" means individuals employed in Ohio,
but does not mean individuals who are excluded from the definition
of "employee" under 29 U.S.C. 203(e) or individuals who are
exempted from the minimum wage requirements in 29 U.S.C. 213 and
from the definition of "employee" in this chapter.
(2) "Employ" and "employee" do not include any person acting
as a volunteer. In construing who is a volunteer, "volunteer"
shall have the same meaning as in sections 553.101 to 553.106 of
Title 29 of the Code of Federal Regulations, as amended, and due
consideration and great weight shall be given to the United States
department of labor's and federal courts' interpretations of the
term "volunteer" under the Fair Labor Standards Act and its
regulations has the same meaning as in section 4175.01 of the
Revised Code.
(C) In accordance with Section 34a of Article II, Ohio
Constitution, the state may issue licenses to employers
authorizing payment of a wage below that required by Section 34a
of Article II, Ohio Constitution, to individuals with mental or
physical disabilities that may otherwise adversely affect their
opportunity for employment. In issuing such licenses, the state
shall abide by the rules adopted pursuant to section 4111.06 of
the Revised Code.
(D)(1) In accordance with Section 34a of Article II, Ohio
Constitution, individuals employed in or about the property of an
employer or an individual's residence on a casual basis are not
included within the coverage of Section 34a of Article II, Ohio
Constitution. As used in division (D) of this section:
(a) "Casual basis" means employment that is irregular or
intermittent and that is not performed by an individual whose
vocation is to be employed in or about the property of the
employer or individual's residence. In construing who is employed
on a "casual basis," due consideration and great weight shall be
given to the United States department of labor's and federal
courts' interpretations of the term "casual basis" under the Fair
Labor Standards Act and its regulations.
(b) "An individual employed in or about the property of an
employer or individual's residence" means an individual employed
on a casual basis or an individual employed in or about a
residence on a casual basis, respectively.
(2) In accordance with Section 34a of Article II, Ohio
Constitution, employees of a solely family-owned and operated
business who are family members of an owner are not included
within the coverage of Section 34a of Article II, Ohio
Constitution. As used in division (D)(2) of this section, "family
member" means a parent, spouse, child, stepchild, sibling,
grandparent, grandchild, or other member of an owner's immediate
family.
(E) In accordance with Section 34a of Article II, Ohio
Constitution, an employer shall at the time of hire provide an
employee with the employer's name, address, telephone number, and
other contact information and update such information when it
changes. As used in division (E) of this section:
(1) "Other contact information" may include, where
applicable, the address of the employer's internet site on the
world wide web, the employer's electronic mail address, fax
number, or the name, address, and telephone number of the
employer's statutory agent. "Other contact information" does not
include the name, address, telephone number, fax number, internet
site address, or electronic mail address of any employee,
shareholder, officer, director, supervisor, manager, or other
individual employed by or associated with an employer.
(2) "When it changes" means that the employer shall provide
its employees with the change in its name, address, telephone
number, or other contact information within sixty business days
after the change occurs. The employer shall provide the changed
information by using any of its usual methods of communicating
with its employees, including, but not limited to, listing the
change on the employer's internet site on the world wide web,
internal computer network, or a bulletin board where it commonly
posts employee communications or by insertion or inclusion with
employees' paychecks or pay stubs.
(F) In accordance with Section 34a of Article II, Ohio
Constitution, an employer shall maintain a record of the name,
address, occupation, pay rate, hours worked for each day worked,
and each amount paid an employee for a period of not less than
three years following the last date the employee was employed by
that employer. As used in division (F) of this section:
(1) "Address" means an employee's home address as maintained
in the employer's personnel file or personnel database for that
employee.
(2)(a) With respect to employees who are not exempt from the
overtime pay requirements of the Fair Labor Standards Act or this
chapter, "pay rate" means an employee's base rate of pay.
(b) With respect to employees who are exempt from the
overtime pay requirements of the Fair Labor Standards Act or this
chapter, "pay rate" means an employee's annual base salary or
other rate of pay by which the particular employee qualifies for
that exemption under the Fair Labor Standards Act or this chapter,
but does not include bonuses, stock options, incentives, deferred
compensation, or any other similar form of compensation.
(3) "Record" means the name, address, occupation, pay rate,
hours worked for each day worked, and each amount paid an employee
in one or more documents, databases, or other paper or electronic
forms of record-keeping maintained by an employer. No one
particular method or form of maintaining such a record or records
is required under this division. An employer is not required to
create or maintain a single record containing only the employee's
name, address, occupation, pay rate, hours worked for each day
worked, and each amount paid an employee. An employer shall
maintain a record or records from which the employee or person
acting on behalf of that employee could reasonably review the
information requested by the employee or person.
An employer is not required to maintain the records specified
in division (F)(3) of this section for any period before January
1, 2007. On and after January 1, 2007, the employer shall maintain
the records required by division (F)(3) of this section for three
years from the date the hours were worked by the employee and for
three years after the date the employee's employment ends.
(4)(a) Except for individuals specified in division (F)(4)(b)
of this section, "hours worked for each day worked" means the
total amount of time worked by an employee in whatever increments
the employer uses for its payroll purposes during a day worked by
the employee. An employer is not required to keep a record of the
time of day an employee begins and ends work on any given day. As
used in division (F)(4) of this section, "day" means a fixed
period of twenty-four consecutive hours during which an employee
performs work for an employer.
(b) An employer is not required to keep records of "hours
worked for each day worked" for individuals for whom the employer
is not required to keep those records under the Fair Labor
Standards Act and its regulations or individuals who are not
subject to the overtime pay requirements specified in section
4111.03 of the Revised Code.
(5) "Each amount paid an employee" means the total gross
wages paid to an employee for each pay period. As used in division
(F)(5) of this section, "pay period" means the period of time
designated by an employer to pay an employee the employee's gross
wages in accordance with the employer's payroll practices under
section 4113.15 of the Revised Code.
(G) In accordance with Section 34a of Article II, Ohio
Constitution, an employer must provide such information without
charge to an employee or person acting on behalf of an employee
upon request. As used in division (G) of this section:
(1) "Such information" means the name, address, occupation,
pay rate, hours worked for each day worked, and each amount paid
for the specific employee who has requested that specific
employee's own information and does not include the name, address,
occupation, pay rate, hours worked for each day worked, or each
amount paid of any other employee of the employer. "Such
information" does not include hours worked for each day worked by
individuals for whom an employer is not required to keep that
information under the Fair Labor Standards Act and its regulations
or individuals who are not subject to the overtime pay
requirements specified in section 4111.03 of the Revised Code.
(2) "Acting on behalf of an employee" means a person acting
on behalf of an employee as any of the following:
(a) The certified or legally recognized collective bargaining
representative for that employee under the applicable federal law
or Chapter 4117. of the Revised Code;
(b) The employee's attorney;
(c) The employee's parent, guardian, or legal custodian.
A person "acting on behalf of an employee" must be
specifically authorized by an employee in order to make a request
for that employee's own name, address, occupation, pay rate, hours
worked for each day worked, and each amount paid to that employee.
(3) "Provide" means that an employer shall provide the
requested information within thirty business days after the date
the employer receives the request, unless either of the following
occurs:
(a) The employer and the employee or person acting on behalf
of the employee agree to some alternative time period for
providing the information.
(b) The thirty-day period would cause a hardship on the
employer under the circumstances, in which case the employer must
provide the requested information as soon as practicable.
(4) A "request" made by an employee or a person acting on
behalf of an employee means a request by an employee or a person
acting on behalf of an employee for the employee's own
information. The employer may require that the employee provide
the employer with a written request that has been signed by the
employee and notarized and that reasonably specifies the
particular information being requested. The employer may require
that the person acting on behalf of an employee provide the
employer with a written request that has been signed by the
employee whose information is being requested and notarized and
that reasonably specifies the particular information being
requested.
(H) In accordance with Section 34a of Article II, Ohio
Constitution, an employee, person acting on behalf of one or more
employees, and any other interested party may file a complaint
with the state for a violation of any provision of Section 34a of
Article II, Ohio Constitution, or any law or regulation
implementing its provisions. Such complaint shall be promptly
investigated and resolved by the state. The employee's name shall
be kept confidential unless disclosure is necessary to resolution
of a complaint and the employee consents to disclosure. As used in
division (H) of this section:
(1) "Complaint" means a complaint of an alleged violation
pertaining to harm suffered by the employee filing the complaint,
by a person acting on behalf of one or more employees, or by an
interested party.
(2) "Acting on behalf of one or more employees" has the same
meaning as "acting on behalf of an employee" in division (G)(2) of
this section. Each employee must provide a separate written and
notarized authorization before the person acting on that
employee's or those employees' behalf may request the name,
address, occupation, pay rate, hours worked for each day worked,
and each amount paid for the particular employee.
(3) "Interested party" means a party who alleges to be
injured by the alleged violation and who has standing to file a
complaint under common law principles of standing.
(4) "Resolved by the state" means that the complaint has been
resolved to the satisfaction of the state.
(5) "Shall be kept confidential" means that the state shall
keep the name of the employee confidential as required by division
(H) of this section.
(I) In accordance with Section 34a of Article II, Ohio
Constitution, the state may on its own initiative investigate an
employer's compliance with Section 34a of Article II, Ohio
Constitution, and any law or regulation implementing Section 34a
of Article II, Ohio Constitution. The employer shall make
available to the state any records related to such investigation
and other information required for enforcement of Section 34a of
Article II, Ohio Constitution or any law or regulation
implementing Section 34a of Article II, Ohio Constitution. The
state shall investigate an employer's compliance with this section
in accordance with the procedures described in section 4111.04 of
the Revised Code. All records and information related to
investigations by the state are confidential and are not a public
record subject to section 149.43 of the Revised Code. This
division does not prevent the state from releasing to or
exchanging with other state and federal wage and hour regulatory
authorities information related to investigations.
(J) In accordance with Section 34a of Article II, Ohio
Constitution, damages shall be calculated as an additional two
times the amount of the back wages and in the case of a violation
of an anti-retaliation provision an amount set by the state or
court sufficient to compensate the employee and deter future
violations, but not less than one hundred fifty dollars for each
day that the violation continued. The "not less than one hundred
fifty dollar" penalty specified in division (J) of this section
shall be imposed only for violations of the anti-retaliation
provision in Section 34a of Article II, Ohio Constitution.
(K) In accordance with Section 34a of Article II, Ohio
Constitution, an action for equitable and monetary relief may be
brought against an employer by the attorney general and/or an
employee or person acting on behalf of an employee or all
similarly situated employees in any court of competent
jurisdiction, including the court of common pleas of an employee's
county of residence, for any violation of Section 34a of Article
II, Ohio Constitution, or any law or regulation implementing its
provisions within three years of the violation or of when the
violation ceased if it was of a continuing nature, or within one
year after notification to the employee of final disposition by
the state of a complaint for the same violation, whichever is
later.
(1) As used in division (K) of this section, "notification"
means the date on which the notice was sent to the employee by the
state.
(2) No employee shall join as a party plaintiff in any civil
action that is brought under division (K) of this section by an
employee, person acting on behalf of an employee, or person acting
on behalf of all similarly situated employees unless that employee
first gives written consent to become such a party plaintiff and
that consent is filed with the court in which the action is
brought.
(3) A civil action regarding an alleged violation of this
section shall be maintained only under division (K) of this
section. This division does not preclude the joinder in a single
civil action of an action under this division and an action under
section 4111.10 of the Revised Code.
(4) Any agreement between an employee and employer to work
for less than the wage rate specified in Section 34a of Article
II, Ohio Constitution, is no defense to an action under this
section.
(L) In accordance with Section 34a of Article II, Ohio
Constitution, there shall be no exhaustion requirement, no
procedural, pleading, or burden of proof requirements beyond those
that apply generally to civil suits in order to maintain such
action and no liability for costs or attorney's fees on an
employee except upon a finding that such action was frivolous in
accordance with the same standards that apply generally in civil
suits. Nothing in division (L) of this section affects the right
of an employer and employee to agree to submit a dispute under
this section to alternative dispute resolution, including, but not
limited to, arbitration, in lieu of maintaining the civil suit
specified in division (K) of this section. Nothing in this
division limits the state's ability to investigate or enforce this
section.
(M) An employer who provides such information specified in
Section 34a of Article II, Ohio Constitution, shall be immune from
any civil liability for injury, death, or loss to person or
property that otherwise might be incurred or imposed as a result
of providing that information to an employee or person acting on
behalf of an employee in response to a request by the employee or
person, and the employer shall not be subject to the provisions of
Chapters 1347. and 1349. of the Revised Code to the extent that
such provisions would otherwise apply. As used in division (M) of
this section, "such information," "acting on behalf of an
employee," and "request" have the same meanings as in division (G)
of this section.
(N) As used in this section, "the state" means the director
of commerce.
Sec. 4113.15. (A) Every individual, firm, partnership,
association, or corporation doing business in this state shall, on
or before the first day of each month, pay all its employees the
wages earned by them during the first half of the preceding month
ending with the fifteenth day thereof, and shall, on or before the
fifteenth day of each month, pay such employees the wages earned
by them during the last half of the preceding calendar month. If
at any time of payment an employee is absent from his the
employee's regular place of labor and does not receive his the
employee's wages through an authorized representative, such person
shall be entitled to said payment at any time thereafter upon
demand upon the proper paymaster at the place where such wages are
usually paid and where such pay is due. This section does not
prohibit the daily or weekly payment of wages. The or the use of a
longer time lapse that is customary to a given trade, profession
or occupation, or establishment of a different time lapse by
written contract or by operation of law.
(B) Where wages remain unpaid for thirty days beyond the
regularly scheduled payday or, in the case where no regularly
scheduled payday is applicable, for sixty days beyond the filing
by the employee of a claim or for sixty days beyond the date of
the agreement, award, or other act making wages payable and no
contest court order or dispute of any wage claim including the
assertion of a counterclaim exists accounting for nonpayment, the
employer, in addition, as liquidated damages, is liable to the
employee in an amount equal to six per cent of the amount of the
claim still unpaid and not in contest or disputed or two hundred
dollars, whichever is greater.
(C) In the absence of a contest, court order or dispute, an
employer who is party to an agreement to pay or provide fringe
benefits to an employee or to make any employee authorized
deduction becomes a trustee of any funds required by such
agreement to be paid to any person, organization, or governmental
agency from the time that the duty to make such payment arises. No
person shall, without reasonable justification or excuse for such
failure, knowingly fail or refuse to pay to the appropriate
person, organization, or governmental agency the amount necessary
to provide the benefits or accomplish the purpose of any employee
authorized deduction, within thirty days after the close of the
pay period during which the employee earned or had deducted the
amount of money necessary to pay for the fringe benefit or make
any employee authorized deduction. A failure or refusal to pay,
regardless of the number of employee pay accounts involved,
constitutes one offense for the first delinquency of thirty days
and a separate offense for each successive delinquency of thirty
days.
(D) As used in this section and section 4113.16 of the
Revised Code:
(1) "Wage" means the net amount of money payable to an
employee, including any guaranteed pay or reimbursement for
expenses, less any federal, state, or local taxes withheld; any
deductions made pursuant to a written agreement for the purpose of
providing the employee with any fringe benefits; and any employee
authorized deduction.
(2) "Fringe benefits" includes but is not limited to health,
welfare, or retirement benefits, whether paid for entirely by the
employer or on the basis of a joint employer-employee
contribution, or vacation, separation, or holiday pay.
(3) "Employee authorized deduction" includes but is not
limited to deductions for the purpose of any of the following: (a)
purchase
(a) Purchase of United States savings bonds or corporate
stocks or bonds, (b) a;
(b) A charitable contribution, (c) credit;
(c) Credit union savings or other regular savings program, or
(d) repayment;
(d) Repayment of a loan or other obligation.
(4) "Employee" has the same meaning as in section 4175.01 of
the Revised Code.
Sec. 4115.03. As used in sections 4115.03 to 4115.16 of the
Revised Code:
(A) "Public authority" means any officer, board, or
commission of the state, or any political subdivision of the
state, authorized to enter into a contract for the construction of
a public improvement or to construct the same by the direct
employment of labor, or any institution supported in whole or in
part by public funds and said sections apply to expenditures of
such institutions made in whole or in part from public funds.
(B) "Construction" means any of the following:
(1) Except as provided in division (B)(3) of this section,
any new construction of a public improvement, the total overall
project cost of which is fairly estimated to be more than the
following amounts and performed by other than full-time employees
who have completed their probationary periods in the classified
service of a public authority:
(a) One hundred twenty-five thousand dollars, beginning on
the effective date of this amendment September 29, 2011, and
continuing for one year thereafter;
(b) Two hundred thousand dollars, beginning when the time
period described in division (B)(1)(a) of this section expires and
continuing for one year thereafter;
(c) Two hundred fifty thousand dollars, beginning when the
time period described in division (B)(1)(b) of this section
expires.
(2) Except as provided in division (B)(4) of this section,
any reconstruction, enlargement, alteration, repair, remodeling,
renovation, or painting of a public improvement, the total overall
project cost of which is fairly estimated to be more than the
following amounts and performed by other than full-time employees
who have completed their probationary period in the classified
civil service of a public authority:
(a) Thirty-eight thousand dollars, beginning on the effective
date of this amendment September 29, 2011, and continuing for one
year thereafter;
(b) Sixty thousand dollars, beginning when the time period
described in division (B)(2)(a) of this section expires and
continuing for one year thereafter;
(c) Seventy-five thousand dollars, beginning when the time
period described in division (B)(2)(b) of this section expires.
(3) Any new construction of a public improvement that
involves roads, streets, alleys, sewers, ditches, and other works
connected to road or bridge construction, the total overall
project cost of which is fairly estimated to be more than
seventy-eight thousand two hundred fifty-eight dollars adjusted
biennially by the director of commerce pursuant to section
4115.034 of the Revised Code and performed by other than full-time
employees who have completed their probationary periods in the
classified service of a public authority;
(4) Any reconstruction, enlargement, alteration, repair,
remodeling, renovation, or painting of a public improvement that
involves roads, streets, alleys, sewers, ditches, and other works
connected to road or bridge construction, the total overall
project cost of which is fairly estimated to be more than
twenty-three thousand four hundred forty-seven dollars adjusted
biennially by the director of commerce pursuant to section
4115.034 of the Revised code Code and performed by other than
full-time employees who have completed their probationary periods
in the classified service of a public authority.
(C) "Public improvement" includes all buildings, roads,
streets, alleys, sewers, ditches, sewage disposal plants, water
works, and all other structures or works constructed by a public
authority of the state or any political subdivision thereof or by
any person who, pursuant to a contract with a public authority,
constructs any structure for a public authority of the state or a
political subdivision thereof. When a public authority rents or
leases a newly constructed structure within six months after
completion of such construction, all work performed on such
structure to suit it for occupancy by a public authority is a
"public improvement." "Public improvement" does not include an
improvement authorized by section 1515.08 of the Revised Code that
is constructed pursuant to a contract with a soil and water
conservation district, as defined in section 1515.01 of the
Revised Code, or performed as a result of a petition filed
pursuant to Chapter 6131., 6133., or 6135. of the Revised Code,
wherein no less than seventy-five per cent of the project is
located on private land and no less than seventy-five per cent of
the cost of the improvement is paid for by private property owners
pursuant to Chapter 1515., 6131., 6133., or 6135. of the Revised
Code.
(D) "Locality" means the county wherein the physical work
upon any public improvement is being performed.
(E) "Prevailing wages" means the sum of the following:
(1) The basic hourly rate of pay;
(2) The rate of contribution irrevocably made by a contractor
or subcontractor to a trustee or to a third person pursuant to a
fund, plan, or program;
(3) The rate of costs to the contractor or subcontractor
which may be reasonably anticipated in providing the following
fringe benefits to laborers and mechanics pursuant to an
enforceable commitment to carry out a financially responsible plan
or program which was communicated in writing to the laborers and
mechanics affected:
(a) Medical or hospital care or insurance to provide such;
(b) Pensions on retirement or death or insurance to provide
such;
(c) Compensation for injuries or illnesses resulting from
occupational activities if it is in addition to that coverage
required by Chapters 4121. and 4123. of the Revised Code;
(d) Supplemental unemployment benefits that are in addition
to those required by Chapter 4141. of the Revised Code;
(f) Disability and sickness insurance;
(h) Vacation and holiday pay;
(i) Defraying of costs for apprenticeship or other similar
training programs which are beneficial only to the laborers and
mechanics affected;
(j) Other bona fide fringe benefits.
None of the benefits enumerated in division (E)(3) of this
section may be considered in the determination of prevailing wages
if federal, state, or local law requires contractors or
subcontractors to provide any of such benefits.
(F) "Interested party," with respect to a particular contract
for construction of a public improvement, means:
(1) Any person who submits a bid for the purpose of securing
the award of the contract;
(2) Any person acting as a subcontractor of a person
described in division (F)(1) of this section;
(3) Any bona fide organization of labor which has as members
or is authorized to represent employees of a person described in
division (F)(1) or (2) of this section and which exists, in whole
or in part, for the purpose of negotiating with employers
concerning the wages, hours, or terms and conditions of employment
of employees;
(4) Any association having as members any of the persons
described in division (F)(1) or (2) of this section.
(G) Except as used in division (A) of this section, "officer"
means an individual who has an ownership interest or holds an
office of trust, command, or authority in a corporation, business
trust, partnership, or association.
(H) "Employee" has the same meaning as in section 4175.01 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) "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 has the same meaning as
in section 4175.01 of the Revised Code.
(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.
(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" has the same meaning as in section 4175.01 of the
Revised Code, except that "employee" also 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)(a) 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)(b) Off-duty firefighters, whether paid or volunteer, of
a lawfully constituted fire department.;
(iii)(c) 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.
(2) "Employee" does not mean any of the following:
(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 of workers' compensation 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.
Sec. 4123.026. (A) The administrator of workers'
compensation, or a self-insuring public employer for the peace
officers, firefighters, and emergency medical workers employed by
or volunteering for that self-insuring public employer, shall pay
the costs of conducting post-exposure medical diagnostic services,
consistent with the standards of medical care existing at the time
of the exposure, to investigate whether an injury or occupational
disease was sustained by a peace officer, firefighter, or
emergency medical worker when coming into contact with the blood
or other body fluid of another person in the course of and arising
out of the peace officer's, firefighter's, or emergency medical
worker's employment, or when responding to an inherently dangerous
situation in the manner described in, and in accordance with the
conditions specified under, division (A)(1)(a) of section 4123.01
of the Revised Code, through any of the following means:
(1) Splash or spatter in the eye or mouth, including when
received in the course of conducting mouth-to-mouth resuscitation;
(2) A puncture in the skin;
(3) A cut in the skin or another opening in the skin such as
an open sore, wound, lesion, abrasion, or ulcer.
(B) As used in this section:
(1) "Peace officer" has the same meaning as in section
2935.01 of the Revised Code.
(2) "Firefighter" means a firefighter, whether paid or
volunteer, of a lawfully constituted fire department.
(3) "Emergency medical worker" means a first responder,
emergency medical technician-basic, emergency medical
technician-intermediate, or emergency medical
technician-paramedic, certified under Chapter 4765. of the Revised
Code, whether paid or volunteer.
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 a delivery driver
engaged in distributing meat products, vegetable products, fruit
products, bakery products, beverages other than milk, laundry, or
parcels, freight, dry-cleaning services, for the individual's
employer or principal similar products;
(ii) As a traveling or city salesperson, other than as an
agent-driver or commission-driver a delivery 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.
(bb) Participation in a learn to earn program as defined in
section 4141.293 of the Revised Code.
(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) "Employee" has the same meaning as in section 4175.01 of
the Revised Code, unless the services performed by the individual
do not constitute "employment" as defined in division (B) of this
section.
Sec. 4175.01. As used in this chapter:
(A) "Aggrieved party" means any of the following entities
that believes that the entity has been injured by an employer's
alleged violation of section 4175.02 of the Revised Code:
(2) An employer association;
(4) A labor organization.
(B) "Construction" means any constructing, altering,
reconstructing, repairing, rehabilitating, refinishing,
refurbishing, remodeling, remediating, renovating, custom
fabricating, maintenance, landscaping, improving, wrecking,
painting, decorating, demolishing, and adding to or subtracting
from any building, structure, highway, roadway, street, bridge,
alley, sewer, ditch, sewage disposal plant, water works, parking
facility, railroad, excavation, or other structure, project,
development, real property or improvement, or to do any part
thereof, regardless of whether the performance of the work
involves the addition to or fabrication of any material or article
of merchandise into any structure, project, development, real
property, or improvement. "Construction" includes moving
construction-related materials to the job site and removing
construction-related materials from the job site.
(C) "Contractor" means any sole proprietorship, partnership,
firm, corporation, limited liability company, association, or
other entity permitted by law to do business within this state
that engages in construction. "Contractor" does not include either
of the following:
(1) The state or its officers, agencies, or political
subdivisions;
(2) The federal government.
(D)(1) "Employee" means an individual who performs services
for compensation for an employer.
(2) "Employee" does not mean an individual who performs
services for an employer and to whom all of the following
conditions apply:
(a) The individual has been and continues to be free from
control and direction in connection with the performance of the
service.
(b) The individual customarily is engaged in an independently
established trade, occupation, profession, or business of the same
nature of the trade, occupation, profession, or business involved
in the service performed.
(c) The individual is a separate and distinct business entity
from the entity for which the service is being performed or, if
the individual is providing construction services and is a sole
proprietorship or a partner in a partnership, the individual is a
legitimate sole proprietorship or a partner in a legitimate
partnership to which section 4175.04 of the Revised Code applies,
as applicable.
(d) The individual incurs the main expenses and has
continuing or recurring business liabilities related to the
service performed.
(e) The individual is liable for breach of contract for
failure to complete the service.
(f) An agreement, written or oral, express or implied, exists
describing the service to be performed, the payment the individual
will receive for performance of the service, and the time frame
for completion of the service.
(g) The service performed by the individual is outside of the
usual course of business of the employer.
(E) "Employer" means any person, the state, any agency or
instrumentality of the state, and any municipal corporation,
county, township, school district, or other political subdivision
or any agency or instrumentality thereof that engages an
individual to perform services.
(F) "Interested party" means any of the following entities:
(1) Any contractor who submits a bid for the purpose of
securing the award of a contract for construction of a public
improvement as that term is defined in section 4115.03 of the
Revised Code;
(2) Any person acting as a subcontractor of a contractor
described in division (F)(1) of this section;
(3) Any bona fide labor organization that has as members or
is authorized to represent employees of a person described in
division (F)(1) or (2) of this section;
(4) Any association having as members any of the persons
described in division (F)(1) or (2) of this section.
(G) "Labor organization" has the same meaning as in section
3517.01 of the Revised Code.
(H) "State agency" has the same meaning as in section 1.60 of
the Revised Code.
(I) "Subcontractor" means any person who undertakes to
perform construction services under a contract with any individual
other than the owner, part owner, or lessee.
Sec. 4175.02. (A) No employer shall fail to designate an
individual who performs services for the employer as an employee
unless the conditions described in division (D)(2) of section
4175.01 of the Revised Code apply to that individual. The director
of commerce shall not use an employer's failure to withhold
federal or state income taxes with respect to an individual or to
include remuneration paid to an individual for purposes of section
4123.26 or 4141.20 of the Revised Code when making a determination
as to whether the employer violated this division. The director
shall not use an individual's election to obtain workers'
compensation coverage as a sole proprietor or a partnership in
making a determination as to whether the individual has violated
this division. The burden of proof is on the party asserting that
an individual is not an employee.
(B) No employer shall retaliate through discharge, or in any
other manner, against any individual for exercising any rights
granted under this chapter.
(C) No employer shall retaliate against an individual if the
individual does any of the following:
(1) Makes a complaint to an employer, coworker, community
organization, or to a federal or state agency or at a public
hearing, stating that provisions of this chapter allegedly have
been violated;
(2) Causes to be instituted any proceeding under or related
to this chapter;
(3) Testifies or prepares to testify in an investigation or
proceeding under this chapter;
(4) Opposes misclassification.
(D) No employer shall attempt to cause or cause an individual
to waive the provisions of this chapter or to enter into a
predispute waiver.
(E) No employer shall violate a rule adopted by the director
pursuant to section 4175.06 of the Revised Code.
(F) No person shall require or request an individual to enter
into an agreement or sign a document that results in the
misclassification of the individual as an independent contractor
or otherwise does not accurately reflect the individual's
relationship with an employer.
Sec. 4175.03. This chapter shall apply only to determinations
as to whether an individual is an employer for purposes of section
4111.02, 4111.14, 4113.15, or 4115.03 of the Revised Code or
Chapter 4121., 4123., 4141., or 5747. of the Revised Code. Nothing
in this chapter shall be construed as to limit the application of
any other remedies available at law or in equity.
Sec. 4175.04. An employer and the director of commerce shall
consider a sole proprietorship or partnership that performs
construction services for the employer to be a legitimate sole
proprietorship or a legitimate partnership if the employer
demonstrates all of the following:
(A) The sole proprietorship or partnership performs the
construction service free from the direction or control of the
employer over the means and manner of providing the service,
subject only to the right of the employer for whom the service is
provided to specify the desired result.
(B) The sole proprietorship or partnership is not subject to
cancellation or destruction upon severance of the relationship
with the employer.
(C) The owner of the sole proprietorship or the partners in
the partnership have a substantial investment of capital in the
sole proprietorship or partnership beyond ordinary tools and
equipment and a personal vehicle.
(D) The sole proprietorship or partnership owns the capital
goods, gains the profits, and bears the losses of the sole
proprietorship or partnership.
(E) The sole proprietorship or partnership makes its
construction services available to the general public or the
business community on a continuing basis.
(F) The sole proprietorship or partnership reported a profit
or loss or earnings from self-employment on the sole
proprietorship or partnership's federal income tax schedule.
(G) The sole proprietorship or partnership performs
construction services for the employer under the name of the sole
proprietorship or partnership.
(H) If the construction services the sole proprietorship or
partnership provides to the employer require a license or permit
in order to provide those services, the sole proprietorship or
partnership obtains the appropriate license or permit in the name
of the sole proprietorship or partnership name and directly pays
for the appropriate license or permit.
(I) The sole proprietorship or partnership furnishes the
tools and equipment necessary for the sole proprietorship or
partnership to provide the construction service for the employer.
(J) If necessary, the sole proprietorship or partnership
hires its own employees without obtaining approval from the
employer, pays those employees without direct reimbursement from
the employer, and reports the employees' income to the internal
revenue service.
(K) The employer does not represent the sole proprietorship
or the partners of the partnership as an employee of the employer
to the employer's customers.
(L) The sole proprietorship or partnership performs similar
construction services for others on whatever basis and whenever
the sole proprietorship or partnership chooses.
If the director of commerce, using the factors listed in this
section, determines that a sole proprietorship or partnership
performing construction services for an employer is not a
legitimate sole proprietorship or a legitimate partnership, the
director shall consider the owner of the sole proprietorship, each
partner of the partnership, and each of the employees of the sole
proprietorship or partnership, as applicable, as an employee of
the employer for the purposes of this chapter.
Sec. 4175.05. The provisions of this chapter apply to all
subcontractors or lower tier subcontractors.
A contractor is liable under this chapter for the failure of
any subcontractor or lower tier subcontractor to properly classify
individuals performing services related to construction as
employees. A subcontractor is liable under this chapter for the
failure of any lower tier subcontractor to properly classify
individuals performing services related to construction as
employees.
Sec. 4175.06. The director of commerce shall enforce this
chapter. The director shall hire as many investigators and other
personnel as the director determines are necessary to administer
and enforce this chapter. The director may adopt reasonable rules
in accordance with Chapter 119. of the Revised Code to implement
and administer this chapter.
Sec. 4175.07. (A) Any aggrieved party may file a complaint
with the director of commerce against an employer if the aggrieved
party reasonably believes that the employer is in violation of
section 4175.02 of the Revised Code. The director shall conduct
investigations in connection with the administration and
enforcement of this chapter.
(B) Any investigator employed by the division of industrial
compliance within the department of commerce is authorized to do
both of the following:
(1) Visit and inspect, at all reasonable times, all of the
offices and job sites maintained by the employer who is the
subject of the complaint;
(2) Inspect and audit, at all reasonable times, all documents
necessary to determine whether an individual performing services
for the employer is an employee.
(C) The director may compel, by subpoena, the attendance and
testimony of witnesses and the production of books, payrolls,
records, papers, and other evidence in any investigation, and may
administer oaths to witnesses.
(D) Upon completion of an investigation under this section,
the investigator shall submit the results of the investigator's
investigation to the superintendent of industrial compliance.
Sec. 4175.08. If, after receiving the results of an
investigation conducted pursuant to section 4175.07 of the Revised
Code, the superintendent of industrial compliance determines that
reasonable evidence exists that an employer has violated section
4175.02 of the Revised Code, the superintendent shall send a
written notice to the director of commerce informing the director
of the superintendent's determination.
Within seven days after the director receives a written
report from the superintendent, the director shall send a written
notice to the employer who is the subject of the investigation in
the same manner as prescribed in section 119.07 of the Revised
Code for licensees, except that the notice shall specify that a
hearing will be held and shall specify the date, time, and place
of the hearing. The director shall hold a hearing regarding the
alleged violation in the same manner prescribed for an
adjudication hearing under section 119.09 of the Revised Code. If
the director, after the hearing, determines a violation has
occurred, the director may discipline the employer in accordance
with section 4175.09 of the Revised Code. The director's
determination is an order that the person may appeal in accordance
with section 119.12 of the Revised Code. If an employer who
allegedly committed a violation of section 4175.02 of the Revised
Code fails to appear for a hearing, the director may request the
court of common pleas of the county where the alleged violation
occurred to compel the person to appear before the director for a
hearing.
Sec. 4175.09. (A) If, after a hearing held in accordance with
section 4175.08 of the Revised Code, the director of commerce
determines that an employer violated section 4175.02 of the
Revised Code, the director may do any of the following:
(1) Issue and cause to be served on any party an order to
cease and desist from further violation of that section;
(2) Take affirmative or other action the director considers
reasonable to eliminate the effect of the violation;
(3) Collect the amount of any wages, salary, employment
benefits, or other compensation denied or lost to an individual
because the employer misclassified the individual;
(4) Assess any civil penalty allowed under section 4175.10 or
4175.11 of the Revised Code.
(B) If the director assesses an employer a civil penalty for
a violation of section 4175.02 of the Revised Code and the
employer fails to pay that civil penalty within the time period
prescribed by the director, the director shall forward to the
attorney general the name of the employer and the amount of the
civil penalty for the purpose of collecting that civil penalty. In
addition to the civil penalty assessed pursuant to this section,
the employer also shall pay any fee assessed by the attorney
general for collection of the civil penalty.
(C) The attorney general shall bring any action for relief
requested by the director in the name of the people of the state
of Ohio.
Sec. 4175.10. (A) Except as otherwise provided in division
(B) of this section and section 4175.11 of the Revised Code, if,
after a hearing conducted pursuant to section 4175.08 of the
Revised Code, the director of commerce determines that an employer
has violated section 4175.02 of the Revised Code, the employer
shall be subject to a civil penalty of one thousand five hundred
dollars for each violation.
(B) Except as otherwise provided in section 4175.11 of the
Revised Code if, after a hearing held in accordance with section
4175.08 of the Revised Code, the director determines that the
employer has committed a violation of section 4175.02 of the
Revised Code and that violation occurred within five years after
the date the director made a determination that resulted in the
director assessing the employer a civil penalty under division (A)
or (B) of this section, the employer is subject to a civil penalty
not less than one thousand five hundred dollars or more than two
thousand five hundred dollars for each violation found by the
director that occurred during that five-year period.
(C) For purposes of this section, each violation of section
4175.02 of the Revised Code constitutes a separate violation for
each individual or rule involved and for each day the violation
continues.
(D) The director shall base the amount of the civil penalty
assessed under this section upon the director's determination of
the gravity of the violations committed by the employer.
Sec. 4175.11. (A) Whoever knowingly violates section 4175.02
of the Revised Code, or whoever obstructs the director of commerce
or any other person authorized to inspect places of employment
pursuant to section 4175.07 of the Revised Code is liable for
penalties up to double the amount specified in section 4175.10 of
the Revised Code.
(B) An employer who is liable under division (A) of this
section because the employer knowingly violated section 4175.02 of
the Revised Code also is liable to the employee who was injured by
the employer's violation for punitive damages in an amount equal
to the amount of the penalties assessed against the employer
pursuant to division (A) of this section.
(C) The director shall impose the penalties described in
divisions (A) and (B) of this section if a preponderance of the
evidence demonstrates that the employer acted knowingly when
committing the violation.
Sec. 4175.12. If the director of commerce determines that an
alleged violation of this chapter has occurred that may result in
a penalty assessed pursuant to section 4175.99 of the Revised
Code, the director shall refer the matter to the appropriate
prosecutorial authority.
Sec. 4175.13. If the director of commerce believes that any
employer allegedly has violated a valid order issued by the
director pursuant to section 4175.09 of the Revised Code, the
director may commence an action in the court of common pleas in
the county where the alleged violation has occurred and obtain
from the court an order compelling the employer to obey the order
of the director or be found guilty of contempt of court and
punished in accordance with Chapter 2705. of the Revised Code.
Sec. 4175.14. (A) An aggrieved party may bring a civil
action in the court of common pleas in the county where the
alleged violation occurred or where any individual who is party to
the action resides, without regard to exhaustion of any
alternative administrative remedies provided in this chapter. An
aggrieved party may bring a civil action on behalf of the
aggrieved party or on behalf of any other individual who is
similarly situated to the aggrieved party. If a court or a jury in
a civil action brought pursuant to this division determines that a
violation of section 4175.02 of the Revised Code has occurred, the
court shall award to the plaintiff all of the following:
(1) The amount of any wages, salary, employment benefits, or
other compensation denied or lost to an individual by reason of
the violation, plus an equal amount in liquidated damages;
(2) Compensatory damages and an amount up to five hundred
dollars for each violation of section 4175.02 of the Revised Code;
(3) In the case of a violation of division (B) or (C) of
section 4175.02 of the Revised Code, all legal or equitable relief
that the court determines appropriate;
(4) Attorney's fees and costs.
(B) An aggrieved party shall bring an action under division
(A) of this section not later than three years after the last day
the aggrieved individual or individual for whom the aggrieved
party is bringing the action performed services for an employer
who has allegedly violated section 4175.02 of the Revised Code.
The three-year period specified in this division is tolled if the
employer has deterred the ability of an individual to bring an
action under this section or to file a complaint under section
4175.07 of the Revised Code.
(C) If the director of commerce has determined under section
4175.09 of the Revised Code that an employer is subject to a civil
penalty under section 4175.10 or 4175.11 of the Revised Code for a
violation of section 4175.02 of the Revised Code, an aggrieved
party, within ninety days after the director issues that
determination, may bring a civil action in the court of common
pleas in the county where the violation occurred to enforce that
penalty. If an aggrieved party elects to bring such an action, the
aggrieved party shall notify the director of that election in
writing. During that ninety-day period, the attorney general shall
not bring an action to enforce that penalty. After the ninety-day
period expires, only the attorney general, on behalf of the
director and in accordance with this chapter, may bring an action
to collect the civil penalty. In any civil action brought by an
aggrieved party pursuant to this division, the court shall award
the aggrieved party ten per cent of the amount of the penalty owed
by the employer, and the remaining amount recovered shall be
awarded to the director.
Sec. 4175.15. (A) The director of commerce shall create a
summary of the requirements of this chapter in English and Spanish
and shall post that summary on the official web site maintained by
the department of commerce and on the bulletin boards located in
each of the offices of the department.
(B) If an employer engages an individual to perform services
and that individual is not considered an employee, that employer
shall post and keep posted, in a conspicuous place on each job
site where that individual performs services and in each of the
employer's offices, the notice prepared by the director pursuant
to division (A) of this section. The director shall furnish copies
of the notice without charge to an employer upon request.
Sec. 4175.16. The director of commerce shall create a list
of employers who have committed multiple violations of section
4175.02 of the Revised Code. The director shall add an employer's
name to the list if the director assesses against the employer the
civil penalty described in division (B) of section 4175.10 of the
Revised Code. The list shall include the name of the employer and
the date that the employer committed the employer's most recent
violation. The director shall notify an employer that the employer
will be added to this list within five days after the director
determines that the employer will be added to the list. The
director shall publish the list on the web site maintained by the
department of commerce. No state agency shall enter into a
contract with an employer included in that list for a period of
four years after the date of the employer's most recent violation.
The director shall remove an employer's name and information from
the list upon expiration of the time period of the employer's
debarment.
Sec. 4175.17. The director of commerce, the director of job
and family services, the tax commissioner, and the administrator
of workers' compensation shall share information concerning any
suspected misclassification by an employer or entity of one or
more of the employer's employees as independent contractors in
violation of section 4175.02 of the Revised Code. Upon determining
that an employer has misclassified an employee as an independent
contractor in violation of division (A) of that section, the
director of commerce shall notify the director of job and family
services, the tax commissioner, and the administrator, each of
whom shall determine whether the employer's violation of section
4175.02 of the Revised Code results in the employer not complying
with the requirements of Chapter 4121., 4123., 4127., 4131.,
4141., or 5747. of the Revised Code, as applicable. The director
of commerce shall make that determination with respect to sections
4111.02, 4111.14, 4113.15, or 4115.03 to 4115.21 of the Revised
Code. The determination made by the director of commerce that an
employer has misclassified an employee as an independent
contractor is binding on the director of job and family services,
the tax commissioner, and the administrator unless the individual
is otherwise not considered an employee under the applicable law.
Notwithstanding any provision of this section to the contrary,
nothing in this chapter shall be construed to limit or otherwise
constrain the duties and powers of the administrator under
Chapters 4121., 4123., 4127., and 4131. of the Revised Code, the
director of job and family services under Chapter 4141. of the
Revised Code, or the tax commissioner under Chapter 5747. of the
Revised Code.
Sec. 4175.18. There is hereby created in the state treasury
the employee classification fund. The director of commerce shall
deposit all moneys the director receives under this chapter,
including civil penalties, into the fund. The director shall use
the fund for the administration, investigation, and other expenses
incurred in carrying out the director's powers and duties under
this chapter. If, at the end of a fiscal year, the director
determines that excess moneys exist in the fund, the director
shall coordinate with the director of budget and management to
transfer the excess funds to the division of administration fund
created under section 121.08 of the Revised Code.
Sec. 4175.99. (A) An employer or person that knowingly
violates division (A), (B), (C), (E), or (F) of section 4175.02 of
the Revised Code, for the first offense, is guilty of a
misdemeanor of the fourth degree, and for any subsequent violation
of division (A), (B), (C), (E), or (F) of section 4175.02 of the
Revised Code committed within a five-year period beginning on the
date the employer or person previously was convicted of or pleaded
guilty to the first violation, the employer or entity is guilty of
a felony of the fifth degree.
(B) Whoever violates division (D) of section 4175.02 of the
Revised Code is guilty of a misdemeanor of the fourth degree.
Sec. 5747.01. Except as otherwise expressly provided or
clearly appearing from the context, any term used in this chapter
that is not otherwise defined in this section has the same meaning
as when used in a comparable context in the laws of the United
States relating to federal income taxes or if not used in a
comparable context in those laws, has the same meaning as in
section 5733.40 of the Revised Code. Any reference in this chapter
to the Internal Revenue Code includes other laws of the United
States relating to federal income taxes.
(A) "Adjusted gross income" or "Ohio adjusted gross income"
means federal adjusted gross income, as defined and used in the
Internal Revenue Code, adjusted as provided in this section:
(1) Add interest or dividends on obligations or securities of
any state or of any political subdivision or authority of any
state, other than this state and its subdivisions and authorities.
(2) Add interest or dividends on obligations of any
authority, commission, instrumentality, territory, or possession
of the United States to the extent that the interest or dividends
are exempt from federal income taxes but not from state income
taxes.
(3) Deduct interest or dividends on obligations of the United
States and its territories and possessions or of any authority,
commission, or instrumentality of the United States to the extent
that the interest or dividends are included in federal adjusted
gross income but exempt from state income taxes under the laws of
the United States.
(4) Deduct disability and survivor's benefits to the extent
included in federal adjusted gross income.
(5) Deduct benefits under Title II of the Social Security Act
and tier 1 railroad retirement benefits to the extent included in
federal adjusted gross income under section 86 of the Internal
Revenue Code.
(6) In the case of a taxpayer who is a beneficiary of a trust
that makes an accumulation distribution as defined in section 665
of the Internal Revenue Code, add, for the beneficiary's taxable
years beginning before 2002, the portion, if any, of such
distribution that does not exceed the undistributed net income of
the trust for the three taxable years preceding the taxable year
in which the distribution is made to the extent that the portion
was not included in the trust's taxable income for any of the
trust's taxable years beginning in 2002 or thereafter.
"Undistributed net income of a trust" means the taxable income of
the trust increased by (a)(i) the additions to adjusted gross
income required under division (A) of this section and (ii) the
personal exemptions allowed to the trust pursuant to section
642(b) of the Internal Revenue Code, and decreased by (b)(i) the
deductions to adjusted gross income required under division (A) of
this section, (ii) the amount of federal income taxes attributable
to such income, and (iii) the amount of taxable income that has
been included in the adjusted gross income of a beneficiary by
reason of a prior accumulation distribution. Any undistributed net
income included in the adjusted gross income of a beneficiary
shall reduce the undistributed net income of the trust commencing
with the earliest years of the accumulation period.
(7) Deduct the amount of wages and salaries, if any, not
otherwise allowable as a deduction but that would have been
allowable as a deduction in computing federal adjusted gross
income for the taxable year, had the targeted jobs credit allowed
and determined under sections 38, 51, and 52 of the Internal
Revenue Code not been in effect.
(8) Deduct any interest or interest equivalent on public
obligations and purchase obligations to the extent that the
interest or interest equivalent is included in federal adjusted
gross income.
(9) Add any loss or deduct any gain resulting from the sale,
exchange, or other disposition of public obligations to the extent
that the loss has been deducted or the gain has been included in
computing federal adjusted gross income.
(10) Deduct or add amounts, as provided under section 5747.70
of the Revised Code, related to contributions to variable college
savings program accounts made or tuition units purchased pursuant
to Chapter 3334. of the Revised Code.
(11)(a) Deduct, to the extent not otherwise allowable as a
deduction or exclusion in computing federal or Ohio adjusted gross
income for the taxable year, the amount the taxpayer paid during
the taxable year for medical care insurance and qualified
long-term care insurance for the taxpayer, the taxpayer's spouse,
and dependents. No deduction for medical care insurance under
division (A)(11) of this section shall be allowed either to any
taxpayer who is eligible to participate in any subsidized health
plan maintained by any employer of the taxpayer or of the
taxpayer's spouse, or to any taxpayer who is entitled to, or on
application would be entitled to, benefits under part A of Title
XVIII of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.
301, as amended. For the purposes of division (A)(11)(a) of this
section, "subsidized health plan" means a health plan for which
the employer pays any portion of the plan's cost. The deduction
allowed under division (A)(11)(a) of this section shall be the net
of any related premium refunds, related premium reimbursements, or
related insurance premium dividends received during the taxable
year.
(b) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income during the
taxable year, the amount the taxpayer paid during the taxable
year, not compensated for by any insurance or otherwise, for
medical care of the taxpayer, the taxpayer's spouse, and
dependents, to the extent the expenses exceed seven and one-half
per cent of the taxpayer's federal adjusted gross income.
(c) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income, any amount
included in federal adjusted gross income under section 105 or not
excluded under section 106 of the Internal Revenue Code solely
because it relates to an accident and health plan for a person who
otherwise would be a "qualifying relative" and thus a "dependent"
under section 152 of the Internal Revenue Code but for the fact
that the person fails to meet the income and support limitations
under section 152(d)(1)(B) and (C) of the Internal Revenue Code.
(d) For purposes of division (A)(11) of this section,
"medical care" has the meaning given in section 213 of the
Internal Revenue Code, subject to the special rules, limitations,
and exclusions set forth therein, and "qualified long-term care"
has the same meaning given in section 7702B(c) of the Internal
Revenue Code. Solely for purposes of divisions (A)(11)(a) and (c)
of this section, "dependent" includes a person who otherwise would
be a "qualifying relative" and thus a "dependent" under section
152 of the Internal Revenue Code but for the fact that the person
fails to meet the income and support limitations under section
152(d)(1)(B) and (C) of the Internal Revenue Code.
(12)(a) Deduct any amount included in federal adjusted gross
income solely because the amount represents a reimbursement or
refund of expenses that in any year the taxpayer had deducted as
an itemized deduction pursuant to section 63 of the Internal
Revenue Code and applicable United States department of the
treasury regulations. The deduction otherwise allowed under
division (A)(12)(a) of this section shall be reduced to the extent
the reimbursement is attributable to an amount the taxpayer
deducted under this section in any taxable year.
(b) Add any amount not otherwise included in Ohio adjusted
gross income for any taxable year to the extent that the amount is
attributable to the recovery during the taxable year of any amount
deducted or excluded in computing federal or Ohio adjusted gross
income in any taxable year.
(13) Deduct any portion of the deduction described in section
1341(a)(2) of the Internal Revenue Code, for repaying previously
reported income received under a claim of right, that meets both
of the following requirements:
(a) It is allowable for repayment of an item that was
included in the taxpayer's adjusted gross income for a prior
taxable year and did not qualify for a credit under division (A)
or (B) of section 5747.05 of the Revised Code for that year;
(b) It does not otherwise reduce the taxpayer's adjusted
gross income for the current or any other taxable year.
(14) Deduct an amount equal to the deposits made to, and net
investment earnings of, a medical savings account during the
taxable year, in accordance with section 3924.66 of the Revised
Code. The deduction allowed by division (A)(14) of this section
does not apply to medical savings account deposits and earnings
otherwise deducted or excluded for the current or any other
taxable year from the taxpayer's federal adjusted gross income.
(15)(a) Add an amount equal to the funds withdrawn from a
medical savings account during the taxable year, and the net
investment earnings on those funds, when the funds withdrawn were
used for any purpose other than to reimburse an account holder
for, or to pay, eligible medical expenses, in accordance with
section 3924.66 of the Revised Code;
(b) Add the amounts distributed from a medical savings
account under division (A)(2) of section 3924.68 of the Revised
Code during the taxable year.
(16) Add any amount claimed as a credit under section
5747.059 or 5747.65 of the Revised Code to the extent that such
amount satisfies either of the following:
(a) The amount was deducted or excluded from the computation
of the taxpayer's federal adjusted gross income as required to be
reported for the taxpayer's taxable year under the Internal
Revenue Code;
(b) The amount resulted in a reduction of the taxpayer's
federal adjusted gross income as required to be reported for any
of the taxpayer's taxable years under the Internal Revenue Code.
(17) Deduct the amount contributed by the taxpayer to an
individual development account program established by a county
department of job and family services pursuant to sections 329.11
to 329.14 of the Revised Code for the purpose of matching funds
deposited by program participants. On request of the tax
commissioner, the taxpayer shall provide any information that, in
the tax commissioner's opinion, is necessary to establish the
amount deducted under division (A)(17) of this section.
(18) Beginning in taxable year 2001 but not for any taxable
year beginning after December 31, 2005, if the taxpayer is married
and files a joint return and the combined federal adjusted gross
income of the taxpayer and the taxpayer's spouse for the taxable
year does not exceed one hundred thousand dollars, or if the
taxpayer is single and has a federal adjusted gross income for the
taxable year not exceeding fifty thousand dollars, deduct amounts
paid during the taxable year for qualified tuition and fees paid
to an eligible institution for the taxpayer, the taxpayer's
spouse, or any dependent of the taxpayer, who is a resident of
this state and is enrolled in or attending a program that
culminates in a degree or diploma at an eligible institution. The
deduction may be claimed only to the extent that qualified tuition
and fees are not otherwise deducted or excluded for any taxable
year from federal or Ohio adjusted gross income. The deduction may
not be claimed for educational expenses for which the taxpayer
claims a credit under section 5747.27 of the Revised Code.
(19) Add any reimbursement received during the taxable year
of any amount the taxpayer deducted under division (A)(18) of this
section in any previous taxable year to the extent the amount is
not otherwise included in Ohio adjusted gross income.
(20)(a)(i) Subject to divisions (A)(20)(a)(iii), (iv), and
(v) of this section, add five-sixths of the amount of depreciation
expense allowed by subsection (k) of section 168 of the Internal
Revenue Code, including the taxpayer's proportionate or
distributive share of the amount of depreciation expense allowed
by that subsection to a pass-through entity in which the taxpayer
has a direct or indirect ownership interest.
(ii) Subject to divisions (A)(20)(a)(iii), (iv), and (v) of
this section, add five-sixths of the amount of qualifying section
179 depreciation expense, including the taxpayer's proportionate
or distributive share of the amount of qualifying section 179
depreciation expense allowed to any pass-through entity in which
the taxpayer has a direct or indirect ownership interest.
(iii) Subject to division (A)(20)(a)(v) of this section, for
taxable years beginning in 2012 or thereafter, if the increase in
income taxes withheld by the taxpayer is equal to or greater than
ten per cent of income taxes withheld by the taxpayer during the
taxpayer's immediately preceding taxable year, "two-thirds" shall
be substituted for "five-sixths" for the purpose of divisions
(A)(20)(a)(i) and (ii) of this section.
(iv) Subject to division (A)(20)(a)(v) of this section, for
taxable years beginning in 2012 or thereafter, a taxpayer is not
required to add an amount under division (A)(20) of this section
if the increase in income taxes withheld by the taxpayer and by
any pass-through entity in which the taxpayer has a direct or
indirect ownership interest is equal to or greater than the sum of
(I) the amount of qualifying section 179 depreciation expense and
(II) the amount of depreciation expense allowed to the taxpayer by
subsection (k) of section 168 of the Internal Revenue Code, and
including the taxpayer's proportionate or distributive shares of
such amounts allowed to any such pass-through entities.
(v) If a taxpayer directly or indirectly incurs a net
operating loss for the taxable year for federal income tax
purposes, to the extent such loss resulted from depreciation
expense allowed by subsection (k) of section 168 of the Internal
Revenue Code and by qualifying section 179 depreciation expense,
"the entire" shall be substituted for "five-sixths of the" for the
purpose of divisions (A)(20)(a)(i) and (ii) of this section.
The tax commissioner, under procedures established by the
commissioner, may waive the add-backs related to a pass-through
entity if the taxpayer owns, directly or indirectly, less than
five per cent of the pass-through entity.
(b) Nothing in division (A)(20) of this section shall be
construed to adjust or modify the adjusted basis of any asset.
(c) To the extent the add-back required under division
(A)(20)(a) of this section is attributable to property generating
nonbusiness income or loss allocated under section 5747.20 of the
Revised Code, the add-back shall be sitused to the same location
as the nonbusiness income or loss generated by the property for
the purpose of determining the credit under division (A) of
section 5747.05 of the Revised Code. Otherwise, the add-back shall
be apportioned, subject to one or more of the four alternative
methods of apportionment enumerated in section 5747.21 of the
Revised Code.
(d) For the purposes of division (A)(20)(a)(v) of this
section, net operating loss carryback and carryforward shall not
include the allowance of any net operating loss deduction
carryback or carryforward to the taxable year to the extent such
loss resulted from depreciation allowed by section 168(k) of the
Internal Revenue Code and by the qualifying section 179
depreciation expense amount.
(e) For the purposes of divisions (A)(20) and (21) of this
section:
(i) "Income taxes withheld" means the total amount withheld
and remitted under sections 5747.06 and 5747.07 of the Revised
Code by an employer during the employer's taxable year.
(ii) "Increase in income taxes withheld" means the amount by
which the amount of income taxes withheld by an employer during
the employer's current taxable year exceeds the amount of income
taxes withheld by that employer during the employer's immediately
preceding taxable year.
(iii) "Qualifying section 179 depreciation expense" means the
difference between (I) the amount of depreciation expense directly
or indirectly allowed to a taxpayer under section 179 of the
Internal Revised Code, and (II) the amount of depreciation expense
directly or indirectly allowed to the taxpayer under section 179
of the Internal Revenue Code as that section existed on December
31, 2002.
(21)(a) If the taxpayer was required to add an amount under
division (A)(20)(a) of this section for a taxable year, deduct one
of the following:
(i) One-fifth of the amount so added for each of the five
succeeding taxable years if the amount so added was five-sixths of
qualifying section 179 depreciation expense or depreciation
expense allowed by subsection (k) of section 168 of the Internal
Revenue Code;
(ii) One-half of the amount so added for each of the two
succeeding taxable years if the amount so added was two-thirds of
such depreciation expense;
(iii) One-sixth of the amount so added for each of the six
succeeding taxable years if the entire amount of such depreciation
expense was so added.
(b) If the amount deducted under division (A)(21)(a) of this
section is attributable to an add-back allocated under division
(A)(20)(c) of this section, the amount deducted shall be sitused
to the same location. Otherwise, the add-back shall be apportioned
using the apportionment factors for the taxable year in which the
deduction is taken, subject to one or more of the four alternative
methods of apportionment enumerated in section 5747.21 of the
Revised Code.
(c) No deduction is available under division (A)(21)(a) of
this section with regard to any depreciation allowed by section
168(k) of the Internal Revenue Code and by the qualifying section
179 depreciation expense amount to the extent that such
depreciation results in or increases a federal net operating loss
carryback or carryforward. If no such deduction is available for a
taxable year, the taxpayer may carry forward the amount not
deducted in such taxable year to the next taxable year and add
that amount to any deduction otherwise available under division
(A)(21)(a) of this section for that next taxable year. The
carryforward of amounts not so deducted shall continue until the
entire addition required by division (A)(20)(a) of this section
has been deducted.
(d) No refund shall be allowed as a result of adjustments
made by division (A)(21) of this section.
(22) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, the amount the taxpayer received during the taxable year as
reimbursement for life insurance premiums under section 5919.31 of
the Revised Code.
(23) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, the amount the taxpayer received during the taxable year as
a death benefit paid by the adjutant general under section 5919.33
of the Revised Code.
(24) Deduct, to the extent included in federal adjusted gross
income and not otherwise allowable as a deduction or exclusion in
computing federal or Ohio adjusted gross income for the taxable
year, military pay and allowances received by the taxpayer during
the taxable year for active duty service in the United States
army, air force, navy, marine corps, or coast guard or reserve
components thereof or the national guard. The deduction may not be
claimed for military pay and allowances received by the taxpayer
while the taxpayer is stationed in this state.
(25) Deduct, to the extent not otherwise allowable as a
deduction or exclusion in computing federal or Ohio adjusted gross
income for the taxable year and not otherwise compensated for by
any other source, the amount of qualified organ donation expenses
incurred by the taxpayer during the taxable year, not to exceed
ten thousand dollars. A taxpayer may deduct qualified organ
donation expenses only once for all taxable years beginning with
taxable years beginning in 2007.
For the purposes of division (A)(25) of this section:
(a) "Human organ" means all or any portion of a human liver,
pancreas, kidney, intestine, or lung, and any portion of human
bone marrow.
(b) "Qualified organ donation expenses" means travel
expenses, lodging expenses, and wages and salary forgone by a
taxpayer in connection with the taxpayer's donation, while living,
of one or more of the taxpayer's human organs to another human
being.
(26) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, amounts received by the taxpayer as retired personnel pay
for service in the uniformed services or reserve components
thereof, or the national guard, or received by the surviving
spouse or former spouse of such a taxpayer under the survivor
benefit plan on account of such a taxpayer's death. If the
taxpayer receives income on account of retirement paid under the
federal civil service retirement system or federal employees
retirement system, or under any successor retirement program
enacted by the congress of the United States that is established
and maintained for retired employees of the United States
government, and such retirement income is based, in whole or in
part, on credit for the taxpayer's uniformed service, the
deduction allowed under this division shall include only that
portion of such retirement income that is attributable to the
taxpayer's uniformed service, to the extent that portion of such
retirement income is otherwise included in federal adjusted gross
income and is not otherwise deducted under this section. Any
amount deducted under division (A)(26) of this section is not
included in a taxpayer's adjusted gross income for the purposes of
section 5747.055 of the Revised Code. No amount may be deducted
under division (A)(26) of this section on the basis of which a
credit was claimed under section 5747.055 of the Revised Code.
(27) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, the amount the taxpayer received during the taxable year
from the military injury relief fund created in section 5101.98 of
the Revised Code.
(28) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, the amount the taxpayer received as a veterans bonus during
the taxable year from the Ohio department of veterans services as
authorized by Section 2r of Article VIII, Ohio Constitution.
(29) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, any income derived from a transfer agreement or from the
enterprise transferred under that agreement under section 4313.02
of the Revised Code.
(30) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, Ohio college opportunity or federal Pell grant amounts
received by the taxpayer or the taxpayer's spouse or dependent
pursuant to section 3333.122 of the Revised Code or 20 U.S.C.
1070a, et seq., and used to pay room or board furnished by the
educational institution for which the grant was awarded at the
institution's facilities, including meal plans administered by the
institution. For the purposes of this division, receipt of a grant
includes the distribution of a grant directly to an educational
institution and the crediting of the grant to the enrollee's
account with the institution.
(31) Deduct one-half of the taxpayer's Ohio small business
investor income, the deduction not to exceed sixty-two thousand
five hundred dollars for each spouse if spouses file separate
returns under section 5747.08 of the Revised Code or one hundred
twenty-five thousand dollars for all other taxpayers. No
pass-through entity may claim a deduction under this division.
For the purposes of this division, "Ohio small business
investor income" means the portion of a taxpayer's adjusted gross
income that is business income reduced by deductions from business
income and apportioned or allocated to this state under sections
5747.21 and 5747.22 of the Revised Code, to the extent not
otherwise deducted or excluded in computing federal or Ohio
adjusted gross income for the taxable year.
(B) "Business income" means income, including gain or loss,
arising from transactions, activities, and sources in the regular
course of a trade or business and includes income, gain, or loss
from real property, tangible property, and intangible property if
the acquisition, rental, management, and disposition of the
property constitute integral parts of the regular course of a
trade or business operation. "Business income" includes income,
including gain or loss, from a partial or complete liquidation of
a business, including, but not limited to, gain or loss from the
sale or other disposition of goodwill.
(C) "Nonbusiness income" means all income other than business
income and may include, but is not limited to, compensation, rents
and royalties from real or tangible personal property, capital
gains, interest, dividends and distributions, patent or copyright
royalties, or lottery winnings, prizes, and awards.
(D) "Compensation" means any form of remuneration paid to an
employee for personal services.
(E) "Fiduciary" means a guardian, trustee, executor,
administrator, receiver, conservator, or any other person acting
in any fiduciary capacity for any individual, trust, or estate.
(F) "Fiscal year" means an accounting period of twelve months
ending on the last day of any month other than December.
(G) "Individual" means any natural person.
(H) "Internal Revenue Code" means the "Internal Revenue Code
of 1986," 100 Stat. 2085, 26 U.S.C.A. 1, as amended.
(I) "Resident" means any of the following, provided that
division (I)(3) of this section applies only to taxable years of a
trust beginning in 2002 or thereafter:
(1) An individual who is domiciled in this state, subject to
section 5747.24 of the Revised Code;
(2) The estate of a decedent who at the time of death was
domiciled in this state. The domicile tests of section 5747.24 of
the Revised Code are not controlling for purposes of division
(I)(2) of this section.
(3) A trust that, in whole or part, resides in this state. If
only part of a trust resides in this state, the trust is a
resident only with respect to that part.
For the purposes of division (I)(3) of this section:
(a) A trust resides in this state for the trust's current
taxable year to the extent, as described in division (I)(3)(d) of
this section, that the trust consists directly or indirectly, in
whole or in part, of assets, net of any related liabilities, that
were transferred, or caused to be transferred, directly or
indirectly, to the trust by any of the following:
(i) A person, a court, or a governmental entity or
instrumentality on account of the death of a decedent, but only if
the trust is described in division (I)(3)(e)(i) or (ii) of this
section;
(ii) A person who was domiciled in this state for the
purposes of this chapter when the person directly or indirectly
transferred assets to an irrevocable trust, but only if at least
one of the trust's qualifying beneficiaries is domiciled in this
state for the purposes of this chapter during all or some portion
of the trust's current taxable year;
(iii) A person who was domiciled in this state for the
purposes of this chapter when the trust document or instrument or
part of the trust document or instrument became irrevocable, but
only if at least one of the trust's qualifying beneficiaries is a
resident domiciled in this state for the purposes of this chapter
during all or some portion of the trust's current taxable year. If
a trust document or instrument became irrevocable upon the death
of a person who at the time of death was domiciled in this state
for purposes of this chapter, that person is a person described in
division (I)(3)(a)(iii) of this section.
(b) A trust is irrevocable to the extent that the transferor
is not considered to be the owner of the net assets of the trust
under sections 671 to 678 of the Internal Revenue Code.
(c) With respect to a trust other than a charitable lead
trust, "qualifying beneficiary" has the same meaning as "potential
current beneficiary" as defined in section 1361(e)(2) of the
Internal Revenue Code, and with respect to a charitable lead trust
"qualifying beneficiary" is any current, future, or contingent
beneficiary, but with respect to any trust "qualifying
beneficiary" excludes a person or a governmental entity or
instrumentality to any of which a contribution would qualify for
the charitable deduction under section 170 of the Internal Revenue
Code.
(d) For the purposes of division (I)(3)(a) of this section,
the extent to which a trust consists directly or indirectly, in
whole or in part, of assets, net of any related liabilities, that
were transferred directly or indirectly, in whole or part, to the
trust by any of the sources enumerated in that division shall be
ascertained by multiplying the fair market value of the trust's
assets, net of related liabilities, by the qualifying ratio, which
shall be computed as follows:
(i) The first time the trust receives assets, the numerator
of the qualifying ratio is the fair market value of those assets
at that time, net of any related liabilities, from sources
enumerated in division (I)(3)(a) of this section. The denominator
of the qualifying ratio is the fair market value of all the
trust's assets at that time, net of any related liabilities.
(ii) Each subsequent time the trust receives assets, a
revised qualifying ratio shall be computed. The numerator of the
revised qualifying ratio is the sum of (1) the fair market value
of the trust's assets immediately prior to the subsequent
transfer, net of any related liabilities, multiplied by the
qualifying ratio last computed without regard to the subsequent
transfer, and (2) the fair market value of the subsequently
transferred assets at the time transferred, net of any related
liabilities, from sources enumerated in division (I)(3)(a) of this
section. The denominator of the revised qualifying ratio is the
fair market value of all the trust's assets immediately after the
subsequent transfer, net of any related liabilities.
(iii) Whether a transfer to the trust is by or from any of
the sources enumerated in division (I)(3)(a) of this section shall
be ascertained without regard to the domicile of the trust's
beneficiaries.
(e) For the purposes of division (I)(3)(a)(i) of this
section:
(i) A trust is described in division (I)(3)(e)(i) of this
section if the trust is a testamentary trust and the testator of
that testamentary trust was domiciled in this state at the time of
the testator's death for purposes of the taxes levied under
Chapter 5731. of the Revised Code.
(ii) A trust is described in division (I)(3)(e)(ii) of this
section if the transfer is a qualifying transfer described in any
of divisions (I)(3)(f)(i) to (vi) of this section, the trust is an
irrevocable inter vivos trust, and at least one of the trust's
qualifying beneficiaries is domiciled in this state for purposes
of this chapter during all or some portion of the trust's current
taxable year.
(f) For the purposes of division (I)(3)(e)(ii) of this
section, a "qualifying transfer" is a transfer of assets, net of
any related liabilities, directly or indirectly to a trust, if the
transfer is described in any of the following:
(i) The transfer is made to a trust, created by the decedent
before the decedent's death and while the decedent was domiciled
in this state for the purposes of this chapter, and, prior to the
death of the decedent, the trust became irrevocable while the
decedent was domiciled in this state for the purposes of this
chapter.
(ii) The transfer is made to a trust to which the decedent,
prior to the decedent's death, had directly or indirectly
transferred assets, net of any related liabilities, while the
decedent was domiciled in this state for the purposes of this
chapter, and prior to the death of the decedent the trust became
irrevocable while the decedent was domiciled in this state for the
purposes of this chapter.
(iii) The transfer is made on account of a contractual
relationship existing directly or indirectly between the
transferor and either the decedent or the estate of the decedent
at any time prior to the date of the decedent's death, and the
decedent was domiciled in this state at the time of death for
purposes of the taxes levied under Chapter 5731. of the Revised
Code.
(iv) The transfer is made to a trust on account of a
contractual relationship existing directly or indirectly between
the transferor and another person who at the time of the
decedent's death was domiciled in this state for purposes of this
chapter.
(v) The transfer is made to a trust on account of the will of
a testator who was domiciled in this state at the time of the
testator's death for purposes of the taxes levied under Chapter
5731. of the Revised Code.
(vi) The transfer is made to a trust created by or caused to
be created by a court, and the trust was directly or indirectly
created in connection with or as a result of the death of an
individual who, for purposes of the taxes levied under Chapter
5731. of the Revised Code, was domiciled in this state at the time
of the individual's death.
(g) The tax commissioner may adopt rules to ascertain the
part of a trust residing in this state.
(J) "Nonresident" means an individual or estate that is not a
resident. An individual who is a resident for only part of a
taxable year is a nonresident for the remainder of that taxable
year.
(K) "Pass-through entity" has the same meaning as in section
5733.04 of the Revised Code.
(L) "Return" means the notifications and reports required to
be filed pursuant to this chapter for the purpose of reporting the
tax due and includes declarations of estimated tax when so
required.
(M) "Taxable year" means the calendar year or the taxpayer's
fiscal year ending during the calendar year, or fractional part
thereof, upon which the adjusted gross income is calculated
pursuant to this chapter.
(N) "Taxpayer" means any person subject to the tax imposed by
section 5747.02 of the Revised Code or any pass-through entity
that makes the election under division (D) of section 5747.08 of
the Revised Code.
(O) "Dependents" means dependents as defined in the Internal
Revenue Code and as claimed in the taxpayer's federal income tax
return for the taxable year or which the taxpayer would have been
permitted to claim had the taxpayer filed a federal income tax
return.
(P) "Principal county of employment" means, in the case of a
nonresident, the county within the state in which a taxpayer
performs services for an employer or, if those services are
performed in more than one county, the county in which the major
portion of the services are performed.
(Q) As used in sections 5747.50 to 5747.55 of the Revised
Code:
(1) "Subdivision" means any county, municipal corporation,
park district, or township.
(2) "Essential local government purposes" includes all
functions that any subdivision is required by general law to
exercise, including like functions that are exercised under a
charter adopted pursuant to the Ohio Constitution.
(R) "Overpayment" means any amount already paid that exceeds
the figure determined to be the correct amount of the tax.
(S) "Taxable income" or "Ohio taxable income" applies only to
estates and trusts, and means federal taxable income, as defined
and used in the Internal Revenue Code, adjusted as follows:
(1) Add interest or dividends, net of ordinary, necessary,
and reasonable expenses not deducted in computing federal taxable
income, on obligations or securities of any state or of any
political subdivision or authority of any state, other than this
state and its subdivisions and authorities, but only to the extent
that such net amount is not otherwise includible in Ohio taxable
income and is described in either division (S)(1)(a) or (b) of
this section:
(a) The net amount is not attributable to the S portion of an
electing small business trust and has not been distributed to
beneficiaries for the taxable year;
(b) The net amount is attributable to the S portion of an
electing small business trust for the taxable year.
(2) Add interest or dividends, net of ordinary, necessary,
and reasonable expenses not deducted in computing federal taxable
income, on obligations of any authority, commission,
instrumentality, territory, or possession of the United States to
the extent that the interest or dividends are exempt from federal
income taxes but not from state income taxes, but only to the
extent that such net amount is not otherwise includible in Ohio
taxable income and is described in either division (S)(1)(a) or
(b) of this section;
(3) Add the amount of personal exemption allowed to the
estate pursuant to section 642(b) of the Internal Revenue Code;
(4) Deduct interest or dividends, net of related expenses
deducted in computing federal taxable income, on obligations of
the United States and its territories and possessions or of any
authority, commission, or instrumentality of the United States to
the extent that the interest or dividends are exempt from state
taxes under the laws of the United States, but only to the extent
that such amount is included in federal taxable income and is
described in either division (S)(1)(a) or (b) of this section;
(5) Deduct the amount of wages and salaries, if any, not
otherwise allowable as a deduction but that would have been
allowable as a deduction in computing federal taxable income for
the taxable year, had the targeted jobs credit allowed under
sections 38, 51, and 52 of the Internal Revenue Code not been in
effect, but only to the extent such amount relates either to
income included in federal taxable income for the taxable year or
to income of the S portion of an electing small business trust for
the taxable year;
(6) Deduct any interest or interest equivalent, net of
related expenses deducted in computing federal taxable income, on
public obligations and purchase obligations, but only to the
extent that such net amount relates either to income included in
federal taxable income for the taxable year or to income of the S
portion of an electing small business trust for the taxable year;
(7) Add any loss or deduct any gain resulting from sale,
exchange, or other disposition of public obligations to the extent
that such loss has been deducted or such gain has been included in
computing either federal taxable income or income of the S portion
of an electing small business trust for the taxable year;
(8) Except in the case of the final return of an estate, add
any amount deducted by the taxpayer on both its Ohio estate tax
return pursuant to section 5731.14 of the Revised Code, and on its
federal income tax return in determining federal taxable income;
(9)(a) Deduct any amount included in federal taxable income
solely because the amount represents a reimbursement or refund of
expenses that in a previous year the decedent had deducted as an
itemized deduction pursuant to section 63 of the Internal Revenue
Code and applicable treasury regulations. The deduction otherwise
allowed under division (S)(9)(a) of this section shall be reduced
to the extent the reimbursement is attributable to an amount the
taxpayer or decedent deducted under this section in any taxable
year.
(b) Add any amount not otherwise included in Ohio taxable
income for any taxable year to the extent that the amount is
attributable to the recovery during the taxable year of any amount
deducted or excluded in computing federal or Ohio taxable income
in any taxable year, but only to the extent such amount has not
been distributed to beneficiaries for the taxable year.
(10) Deduct any portion of the deduction described in section
1341(a)(2) of the Internal Revenue Code, for repaying previously
reported income received under a claim of right, that meets both
of the following requirements:
(a) It is allowable for repayment of an item that was
included in the taxpayer's taxable income or the decedent's
adjusted gross income for a prior taxable year and did not qualify
for a credit under division (A) or (B) of section 5747.05 of the
Revised Code for that year.
(b) It does not otherwise reduce the taxpayer's taxable
income or the decedent's adjusted gross income for the current or
any other taxable year.
(11) Add any amount claimed as a credit under section
5747.059 or 5747.65 of the Revised Code to the extent that the
amount satisfies either of the following:
(a) The amount was deducted or excluded from the computation
of the taxpayer's federal taxable income as required to be
reported for the taxpayer's taxable year under the Internal
Revenue Code;
(b) The amount resulted in a reduction in the taxpayer's
federal taxable income as required to be reported for any of the
taxpayer's taxable years under the Internal Revenue Code.
(12) Deduct any amount, net of related expenses deducted in
computing federal taxable income, that a trust is required to
report as farm income on its federal income tax return, but only
if the assets of the trust include at least ten acres of land
satisfying the definition of "land devoted exclusively to
agricultural use" under section 5713.30 of the Revised Code,
regardless of whether the land is valued for tax purposes as such
land under sections 5713.30 to 5713.38 of the Revised Code. If the
trust is a pass-through entity investor, section 5747.231 of the
Revised Code applies in ascertaining if the trust is eligible to
claim the deduction provided by division (S)(12) of this section
in connection with the pass-through entity's farm income.
Except for farm income attributable to the S portion of an
electing small business trust, the deduction provided by division
(S)(12) of this section is allowed only to the extent that the
trust has not distributed such farm income. Division (S)(12) of
this section applies only to taxable years of a trust beginning in
2002 or thereafter.
(13) Add the net amount of income described in section 641(c)
of the Internal Revenue Code to the extent that amount is not
included in federal taxable income.
(14) Add or deduct the amount the taxpayer would be required
to add or deduct under division (A)(20) or (21) of this section if
the taxpayer's Ohio taxable income were computed in the same
manner as an individual's Ohio adjusted gross income is computed
under this section. In the case of a trust, division (S)(14) of
this section applies only to any of the trust's taxable years
beginning in 2002 or thereafter.
(T) "School district income" and "school district income tax"
have the same meanings as in section 5748.01 of the Revised Code.
(U) As used in divisions (A)(8), (A)(9), (S)(6), and (S)(7)
of this section, "public obligations," "purchase obligations," and
"interest or interest equivalent" have the same meanings as in
section 5709.76 of the Revised Code.
(V) "Limited liability company" means any limited liability
company formed under Chapter 1705. of the Revised Code or under
the laws of any other state.
(W) "Pass-through entity investor" means any person who,
during any portion of a taxable year of a pass-through entity, is
a partner, member, shareholder, or equity investor in that
pass-through entity.
(X) "Banking day" has the same meaning as in section 1304.01
of the Revised Code.
(Y) "Month" means a calendar month.
(Z) "Quarter" means the first three months, the second three
months, the third three months, or the last three months of the
taxpayer's taxable year.
(AA)(1) "Eligible institution" means a state university or
state institution of higher education as defined in section
3345.011 of the Revised Code, or a private, nonprofit college,
university, or other post-secondary institution located in this
state that possesses a certificate of authorization issued by the
Ohio board of regents pursuant to Chapter 1713. of the Revised
Code or a certificate of registration issued by the state board of
career colleges and schools under Chapter 3332. of the Revised
Code.
(2) "Qualified tuition and fees" means tuition and fees
imposed by an eligible institution as a condition of enrollment or
attendance, not exceeding two thousand five hundred dollars in
each of the individual's first two years of post-secondary
education. If the individual is a part-time student, "qualified
tuition and fees" includes tuition and fees paid for the academic
equivalent of the first two years of post-secondary education
during a maximum of five taxable years, not exceeding a total of
five thousand dollars. "Qualified tuition and fees" does not
include:
(a) Expenses for any course or activity involving sports,
games, or hobbies unless the course or activity is part of the
individual's degree or diploma program;
(b) The cost of books, room and board, student activity fees,
athletic fees, insurance expenses, or other expenses unrelated to
the individual's academic course of instruction;
(c) Tuition, fees, or other expenses paid or reimbursed
through an employer, scholarship, grant in aid, or other
educational benefit program.
(BB)(1) "Modified business income" means the business income
included in a trust's Ohio taxable income after such taxable
income is first reduced by the qualifying trust amount, if any.
(2) "Qualifying trust amount" of a trust means capital gains
and losses from the sale, exchange, or other disposition of equity
or ownership interests in, or debt obligations of, a qualifying
investee to the extent included in the trust's Ohio taxable
income, but only if the following requirements are satisfied:
(a) The book value of the qualifying investee's physical
assets in this state and everywhere, as of the last day of the
qualifying investee's fiscal or calendar year ending immediately
prior to the date on which the trust recognizes the gain or loss,
is available to the trust.
(b) The requirements of section 5747.011 of the Revised Code
are satisfied for the trust's taxable year in which the trust
recognizes the gain or loss.
Any gain or loss that is not a qualifying trust amount is
modified business income, qualifying investment income, or
modified nonbusiness income, as the case may be.
(3) "Modified nonbusiness income" means a trust's Ohio
taxable income other than modified business income, other than the
qualifying trust amount, and other than qualifying investment
income, as defined in section 5747.012 of the Revised Code, to the
extent such qualifying investment income is not otherwise part of
modified business income.
(4) "Modified Ohio taxable income" applies only to trusts,
and means the sum of the amounts described in divisions (BB)(4)(a)
to (c) of this section:
(a) The fraction, calculated under section 5747.013, and
applying section 5747.231 of the Revised Code, multiplied by the
sum of the following amounts:
(i) The trust's modified business income;
(ii) The trust's qualifying investment income, as defined in
section 5747.012 of the Revised Code, but only to the extent the
qualifying investment income does not otherwise constitute
modified business income and does not otherwise constitute a
qualifying trust amount.
(b) The qualifying trust amount multiplied by a fraction, the
numerator of which is the sum of the book value of the qualifying
investee's physical assets in this state on the last day of the
qualifying investee's fiscal or calendar year ending immediately
prior to the day on which the trust recognizes the qualifying
trust amount, and the denominator of which is the sum of the book
value of the qualifying investee's total physical assets
everywhere on the last day of the qualifying investee's fiscal or
calendar year ending immediately prior to the day on which the
trust recognizes the qualifying trust amount. If, for a taxable
year, the trust recognizes a qualifying trust amount with respect
to more than one qualifying investee, the amount described in
division (BB)(4)(b) of this section shall equal the sum of the
products so computed for each such qualifying investee.
(c)(i) With respect to a trust or portion of a trust that is
a resident as ascertained in accordance with division (I)(3)(d) of
this section, its modified nonbusiness income.
(ii) With respect to a trust or portion of a trust that is
not a resident as ascertained in accordance with division
(I)(3)(d) of this section, the amount of its modified nonbusiness
income satisfying the descriptions in divisions (B)(2) to (5) of
section 5747.20 of the Revised Code, except as otherwise provided
in division (BB)(4)(c)(ii) of this section. With respect to a
trust or portion of a trust that is not a resident as ascertained
in accordance with division (I)(3)(d) of this section, the trust's
portion of modified nonbusiness income recognized from the sale,
exchange, or other disposition of a debt interest in or equity
interest in a section 5747.212 entity, as defined in section
5747.212 of the Revised Code, without regard to division (A) of
that section, shall not be allocated to this state in accordance
with section 5747.20 of the Revised Code but shall be apportioned
to this state in accordance with division (B) of section 5747.212
of the Revised Code without regard to division (A) of that
section.
If the allocation and apportionment of a trust's income under
divisions (BB)(4)(a) and (c) of this section do not fairly
represent the modified Ohio taxable income of the trust in this
state, the alternative methods described in division (C) of
section 5747.21 of the Revised Code may be applied in the manner
and to the same extent provided in that section.
(5)(a) Except as set forth in division (BB)(5)(b) of this
section, "qualifying investee" means a person in which a trust has
an equity or ownership interest, or a person or unit of government
the debt obligations of either of which are owned by a trust. For
the purposes of division (BB)(2)(a) of this section and for the
purpose of computing the fraction described in division (BB)(4)(b)
of this section, all of the following apply:
(i) If the qualifying investee is a member of a qualifying
controlled group on the last day of the qualifying investee's
fiscal or calendar year ending immediately prior to the date on
which the trust recognizes the gain or loss, then "qualifying
investee" includes all persons in the qualifying controlled group
on such last day.
(ii) If the qualifying investee, or if the qualifying
investee and any members of the qualifying controlled group of
which the qualifying investee is a member on the last day of the
qualifying investee's fiscal or calendar year ending immediately
prior to the date on which the trust recognizes the gain or loss,
separately or cumulatively own, directly or indirectly, on the
last day of the qualifying investee's fiscal or calendar year
ending immediately prior to the date on which the trust recognizes
the qualifying trust amount, more than fifty per cent of the
equity of a pass-through entity, then the qualifying investee and
the other members are deemed to own the proportionate share of the
pass-through entity's physical assets which the pass-through
entity directly or indirectly owns on the last day of the
pass-through entity's calendar or fiscal year ending within or
with the last day of the qualifying investee's fiscal or calendar
year ending immediately prior to the date on which the trust
recognizes the qualifying trust amount.
(iii) For the purposes of division (BB)(5)(a)(iii) of this
section, "upper level pass-through entity" means a pass-through
entity directly or indirectly owning any equity of another
pass-through entity, and "lower level pass-through entity" means
that other pass-through entity.
An upper level pass-through entity, whether or not it is also
a qualifying investee, is deemed to own, on the last day of the
upper level pass-through entity's calendar or fiscal year, the
proportionate share of the lower level pass-through entity's
physical assets that the lower level pass-through entity directly
or indirectly owns on the last day of the lower level pass-through
entity's calendar or fiscal year ending within or with the last
day of the upper level pass-through entity's fiscal or calendar
year. If the upper level pass-through entity directly and
indirectly owns less than fifty per cent of the equity of the
lower level pass-through entity on each day of the upper level
pass-through entity's calendar or fiscal year in which or with
which ends the calendar or fiscal year of the lower level
pass-through entity and if, based upon clear and convincing
evidence, complete information about the location and cost of the
physical assets of the lower pass-through entity is not available
to the upper level pass-through entity, then solely for purposes
of ascertaining if a gain or loss constitutes a qualifying trust
amount, the upper level pass-through entity shall be deemed as
owning no equity of the lower level pass-through entity for each
day during the upper level pass-through entity's calendar or
fiscal year in which or with which ends the lower level
pass-through entity's calendar or fiscal year. Nothing in division
(BB)(5)(a)(iii) of this section shall be construed to provide for
any deduction or exclusion in computing any trust's Ohio taxable
income.
(b) With respect to a trust that is not a resident for the
taxable year and with respect to a part of a trust that is not a
resident for the taxable year, "qualifying investee" for that
taxable year does not include a C corporation if both of the
following apply:
(i) During the taxable year the trust or part of the trust
recognizes a gain or loss from the sale, exchange, or other
disposition of equity or ownership interests in, or debt
obligations of, the C corporation.
(ii) Such gain or loss constitutes nonbusiness income.
(6) "Available" means information is such that a person is
able to learn of the information by the due date plus extensions,
if any, for filing the return for the taxable year in which the
trust recognizes the gain or loss.
(CC) "Qualifying controlled group" has the same meaning as in
section 5733.04 of the Revised Code.
(DD) "Related member" has the same meaning as in section
5733.042 of the Revised Code.
(EE)(1) For the purposes of division (EE) of this section:
(a) "Qualifying person" means any person other than a
qualifying corporation.
(b) "Qualifying corporation" means any person classified for
federal income tax purposes as an association taxable as a
corporation, except either of the following:
(i) A corporation that has made an election under subchapter
S, chapter one, subtitle A, of the Internal Revenue Code for its
taxable year ending within, or on the last day of, the investor's
taxable year;
(ii) A subsidiary that is wholly owned by any corporation
that has made an election under subchapter S, chapter one,
subtitle A of the Internal Revenue Code for its taxable year
ending within, or on the last day of, the investor's taxable year.
(2) For the purposes of this chapter, unless expressly stated
otherwise, no qualifying person indirectly owns any asset directly
or indirectly owned by any qualifying corporation.
(FF) For purposes of this chapter and Chapter 5751. of the
Revised Code:
(1) "Trust" does not include a qualified pre-income tax
trust.
(2) A "qualified pre-income tax trust" is any pre-income tax
trust that makes a qualifying pre-income tax trust election as
described in division (FF)(3) of this section.
(3) A "qualifying pre-income tax trust election" is an
election by a pre-income tax trust to subject to the tax imposed
by section 5751.02 of the Revised Code the pre-income tax trust
and all pass-through entities of which the trust owns or controls,
directly, indirectly, or constructively through related interests,
five per cent or more of the ownership or equity interests. The
trustee shall notify the tax commissioner in writing of the
election on or before April 15, 2006. The election, if timely
made, shall be effective on and after January 1, 2006, and shall
apply for all tax periods and tax years until revoked by the
trustee of the trust.
(4) A "pre-income tax trust" is a trust that satisfies all of
the following requirements:
(a) The document or instrument creating the trust was
executed by the grantor before January 1, 1972;
(b) The trust became irrevocable upon the creation of the
trust; and
(c) The grantor was domiciled in this state at the time the
trust was created.
(GG) "Uniformed services" has the same meaning as in 10
U.S.C. 101.
(HH) "Employee" has the same meaning as in section 4175.01 of
the Revised Code, unless the internal revenue service has accepted
the classification an individual as an independent contractor made
by the individual and the individual's payer.
Section 2. That existing sections 121.083, 1349.61, 4111.02,
4111.14, 4113.15, 4115.03, 4121.01, 4123.01, 4123.026, 4141.01,
and 5747.01 of the Revised Code are hereby repealed.
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