Chapter 4141-1
4141-1-01 Employer defined.
For the purposes of these rules, unless the context indicates to
the contrary, the term "contributory employer" shall mean an
employer liable for the payment of contributions. The term
"reimbursing employer" shall apply to a public entity as defined in
division (A) of section 4141.242 of the Revised Code, or a
nonprofit organization which has elected under section 4141.241 of
the Revised Code, to make payments in lieu of contributions. When
the term "employer" is used it means the rule is applicable to
either a contributory or a reimbursing employer.
4141-1-03 General partnerships.
General partners in a general partnership are not in the employment
of the partnership. Such partners shall not be considered in
determining the total number of individuals in the employment of a
firm. Wages received by them do not constitute remuneration under
Chapter 4141. of the Revised Code.
4141-1-04 Limited partnership associations, limited
partnerships and limited liability companies.
-
Members of a limited partnership association, as that term is
defined in Chapter 1783. of the Revised Code, are deemed to be in
the employment of the association if performing services for
remuneration for the association.
-
Individuals who are limited partners in a limited partnership
pursuant to Chapter 1782. of the Revised Code shall be considered
in the employment of the limited partnership to the extent that
remuneration in a form other than a share of profits is received by
such limited partners for services performed for the limited
partnership.
- The
determination as to whether individuals are in employment with
limited liability companies for the purposes of Chapter 4141. of
the Revised Code shall be determined based on the limited liability
company's tax classification for federal income and unemployment
tax purposes as follows:
- A single member limited liability company that is disregarded
as an entity separate from its owner for federal income and
unemployment tax purposes will also be disregarded for purposes of
Chapter 4141. of the Revised Code. Thus, if the single member of a
disregarded limited liability company is an individual, the limited
liability company will be treated as a sole proprietorship for
purposes of this chapter.
- A single or multi-member limited liability company that is
classified as a corporation for federal income and unemployment tax
purposes will also be classified as a corporation for purposes of
Chapter 4141. of the Revised Code.
If an officer of a limited liability company that is classified as
a corporation receives remuneration for services rendered to the
limited liability company or renders services in anticipation of
receiving remuneration from the limited liability company, the
officer shall be considered in the employment of such limited
liability company, as provided in division (B)(1) of section
4141.01 of the Revised Code.
- If a limited liability company has two or more members and is
classified as a partnership for federal income and unemployment tax
purposes, any members who are individuals will be treated as
partners for purposes of Chapter 4141. of the Revised Code.
4141-1-05 Corporate officers and directors.
- If an officer of a corporation received remuneration for
services rendered to the corporation or renders
services in anticipation of receiving remuneration from the
corporation, the officer shall be considered in the employment of
such corporation as provided in division (B)(1) of section 4141.01
of the Revised Code.
- Remuneration received by an officer of a corporation for
services performed for the corporation which meets the terms of
paragraph (A) of this rule may not be treated as partnership income
by what may be known as a sub-chapter's arrangement or by some
other similar arrangement.
- A director of a corporation who performs only the usual duties
of a director shall not be considered in the employment of such
corporation.
4141-3-05 Definition of employment.
- Except as specifically provided in sections 4141.01(B)(2)(K)
and 4141.39 of the Revised Code, a worker is in employment when an
"employer-employee" relationship exists between the worker and the
person for whom the individual performs services and the director
determines that:
- The person for whom services are performed has the right to
direct or control the performance of such services; and
- Remuneration is received by the worker for services
performed.
- As an
aid to determining whether there is sufficient direction or control
present, the common law rules identify twenty factors or elements.
When present, each of these factors serves to indicate some degree
of direction or control. The degree of importance of each factor
varies depending on the occupation and the factual context in which
the services are performed. The twenty factors set forth below are
designed only as guides for determining whether sufficient
direction or control exists and must be considered in
totality:
- The worker is required to comply with the instructions of the
person for whom services are being performed, regarding when,
where, and how the worker is to perform the services;
- The person for whom services are being performed requires
particular training for the worker performing services;
- The services provided are part of the regular business of the
person for whom services are being performed;
- The person for whom services are being performed requires that
services be provided by a particular worker;
- The person for whom services are being performed hires,
supervises or pays the wages of the worker performing
services;
- A continuing relationship exists between the person for whom
services are being performed and the worker performing services
which contemplates continuing or recurring work, even if not full
time;
- The person for whom services are being performed requires set
hours during which services are to be performed;
- The person for whom services are being performed requires the
worker to devote himself or herself full time to the business of
the person for whom services are being performed;
- The person for whom services are being performed requires that
work be performed on its premises;
- The person for whom services are being performed requires that
the worker follow the order of work set by the person for whom
services are being performed;
- The person for whom services are being performed requires the
worker to make oral or written progress reports;
- The person for whom services are being performed pays the
worker on a regular basis such as hourly, weekly or monthly;
- The person for whom services are being performed pays expenses
for the worker performing services;
- The person for whom services are being performed furnishes
tools. Instrumentalities, and other materials for use by the worker
in performing services;
- There is a lack of investment by the worker in the facilities
used to perform services;
- There is a lack of profit or loss to the worker performing
services as a result of the performance of such services;
- The worker performing services is not performing services for a
number of persons at the same time;
- The worker performing services does not make such services
available to the general public;
- The person for whom services are being performed has a right to
discharge the worker performing services;
- The worker performing services has the right to end the
relationship with the person for whom services are being performed
without incurring liability pursuant to an employment contract or
agreement.
The director shall make a determination, based on the factors
listed in this rule as to whether or not an employment relationship
exists purposes of Chapter 4141. of the Revised Code.
4141-3-06 Temporary services agencies.
- "Temporary services agency" means any employer which employs
staff to perform services on a temporary basis for a third party
and receives a fee for providing such services.
- Individuals provided by temporary service agencies to third
parties to perform services under agreement between such third
parties and temporary services agencies are in employment with the
temporary service agencies until separated from employment with
such temporary service agencies.
4141-3-07 Employee leasing.
- "Employee leasing company" means an entity which provides
individuals to third party clients to perform services on a
permanent basis and receives a fee for providing such
individuals.
- "Client" means an entity to which individuals are provided by
an employee leasing company to perform services on a permanent
basis.
- Individuals provided by an employee leasing company to perform
services for its clients may be determined to be in employment with
the employee leasing company if it is established that:
- The employee leasing company has the right to exercise
direction or control over the performance of services by such
individuals;
- Remuneration is received from the employee leasing company by
the individuals for services performed.
Direction or control may be evidenced as provided by paragraph (B)
of rule 4141-3-05 of the Administrative Code.
Sole proprietors, corporate officers and general partners in
general and limited partnerships serving client entities may not be
determined to be under the direction or control of the employee
leasing company providing individuals to perform services to such
client.
"Domestic employer" means an employer who employs domestic workers
and meets the requirements specified in division (A)(1)(c) of
section 4141.01 of the Revised Code. "Domestic worker" means an
individual who performs services for a domestic employer in a
private household, local college club, or local chapter of a
college fraternity or sorority. Such services include, but are not
limited to, those rendered by cooks, maids, butlers, valets, paid
companions, babysitters, gardeners, yard workers, janitors, grooms,
and chauffeurs of automobiles for family use. Service performed by
a domestic worker for a domestic employer is covered in accordance
with the provisions of division (B)(2)(c) of section 4141.01 of the
Revised Code. Service performed by a domestic worker for an
employer who does not meet the provisions of division (A)(1)(c) of
section 4141.01 of the Revised Code is not domestic service.
4141-5-03 Family relationships.
For the purposes of division (B)(3)(f) of section 4141.01 of the
Revised Code:
- The
services performed by an individual for a partnership will be
excluded only if the relationship of each partner to the worker
meets the requirements of division (B)(3)(f) of section 4141.01 of
the Revised Code.
- The
services performed by an individual for a corporation cannot be
excluded under division (B)(3)(f) of section 4141.01 of the Revised
Code, even if the corporation is family owned.
4141-5-04 Determination of excluded
employment.
Each individual or organization seeking to be excluded from
liability as an employer must submit a report to determine
liability on a form provided by the director. The director will
rule in writing whether there is liability. Any change in the
character, purpose, or method of operation of such an individual or
organization shall be reported immediately to the director by the
individual or organization in order that the effect of any such
change upon liability may be determined.
4141-5-05 Work relief or work training program
exclusion.
- "Employment" does not include service performed 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 such work relief or work training.
- In order for services to be excluded from employment under an
unemployment work-relief or work-training program that is financed
or assisted in whole or in part by any federal agency or an agency
of a state or a political subdivision of a state, such program must
have as a minimum the following characteristics:
- The employer-employee relationship is based more on the
participants' and communities' needs than normal economic
considerations such as increased demand or the filling of a bona
fide job vacancy;
- Qualifications for the jobs take into account as indispensable
factors the economic status, i.e., the standing conferred by income
and assets, of applicants;
- The products or services are secondary to providing financial
assistance, training, or work-experience to individuals to relieve
them of their unemployment or poverty or to reduce their dependence
upon various measures of relief, even though the work may be
meaningful or serve a useful public purpose
- Such an unemployment work-relief or work-training program must
also have one or more of the following characteristics:
- The wages, hours, and conditions of work are not commensurate
with those prevailing in the locality for similar work;
- The jobs did not, or rarely did, exist before the program began
(other than under similar programs) and there is little likelihood
they will be continued when the program is discontinued;
- The services furnished, if any, are in the public interest and
are not otherwise provided by the employer or its
contractors;
- The jobs do not displace regularly employed workers or impair
existing contracts for services.
4141-5-06 Major nontenured policymaking or advisory
positions.
- For the purposes of division (B)(3)(c)(v) of section 4141.01 of
the Revised Code, an individual is deemed to be in a "major
nontenured policymaking or advisory position" when the following
factors are met:
- The individual serves:
- In a position designated under section 121.03 or 121.05 of the
Revised Code; or
- As a member of the board or commission to which the individual
was appointed by the governor subject to the advice and consent of
the senate;
- The individual is not in the classified service of the
state.
- Only individuals meeting all of the factors in this rule may be
determined to be in a "major nontenured policymaking or advisory
position." If the director determines that all of the factors in
this rule have not been met, then the individual shall be
determined to be in employment for purposes of Chapter 4141. of the
Revised Code.
4141-7-02 Coverage election by political
subdivision.
A political subdivision desiring coverage of its employees, not
otherwise covered, shall submit with its voluntary election
application a certified copy of the ordinance or resolution
authorizing the political subdivision to apply for voluntary
election and providing for payment in lieu of contributions.
4141-7-03 Out-of-state services.
- An
employer for which services are performed by an individual entirely
outside the state, may request that the director determine such
services to be in employment subject to Chapter 4141. of the
Revised Code. In order to make such a determination, the director
must find that contributions are not required by another state to
be paid with respect to wages for such services, and the individual
performing such services is a resident of this state. The employer
shall make application on a form provided by the director.
- A determination that service performed by an individual
entirely outside the state is in employment subject to Chapter
4141. of the Revised Code may be terminated by the director if it
is found that such service is subject to the unemployment
compensation law of another state. The effective date of
termination shall be the date the employer incurred liability under
such other state unemployment compensation law, provided a notice
has been filed by the employer with this department within ninety
days after the incurrence of such liability. If notice is not filed
by the employer within ninety days after such liability date, the
termination date shall be the first day of the calendar quarter in
which notice is filed.
4141-7-04 Voluntary election applying to successor-in-interest in
whole or in part.
The successor-in-interest, in whole or in part, is bound by the
voluntary election of the previous employer, which voluntary
election remains in effect regardless of the ownership of the
business for a minimum of two calendar years from the effective
date thereof and until the director has been notified in writing of
the successor's desire to terminate such voluntary election as
provided under division (A)(4) or (A)(5) of section 4141.01 of the
Revised Code.
4141-7-05 Termination of voluntary
election.
For good cause, the director may, effective as of the close of
business on December thirty-first of the second calendar year after
the effective date of the election, or on any date thereafter,
terminate a voluntary election.
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