Unemployment Compensation Review Commission

   Covered and Non-covered Employment

 

   A. Employer defined

   1.  Type of entity {ORC §4141.01(A)(1)}
  1.    State, its instrumentalities, political subdivisions, and their instrumentalities.
     
  2.    Indian tribes.
     
  3.    Any individual or type of political organization:
     
    1.       partnership:
       
      1.    general partners are not employees of the partnership. {OAC 4141-1-03}
         
      2.    limited partners are employees to the extent that their pay is in a form other than a share of profits. {OAC 4141-1-04(B)}
         
      3.    members of a limited partnership association are employees if performing services for remuneration for the association. {OAC 4141-1-04(A)}
         
      4.    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. {OAC 4141-1-04(C)}
         
    2.       limited liability company.
       
    3.    association.
       
    4.       trust.
       
    5.       estate.
       
    6.    joint stock company.
       
    7.    insurance company.
       
    8.       corporation.
       
    9.    receiver/trustee in bankruptcy.
       
    10.    legal representative of deceased person.
      2.  Payroll requirements
  1.    For profit organization {ORC §4141.01(A)(1)(a) and (b)}
     
    1.    $1500 in wages in any calendar quarter in current or preceding calendar year; OR
       
    2.    at least one (1) employee (need not be the same person each day) working in twenty (20) weeks during calendar year.
       
  2.       Non-profit organization {ORC §4141.01(A)(1)(a) and (b)}
     
    1.    at least four (4) employees (need not be the same person each day) working in twenty (20) weeks during calendar year.
       
    2.    no earnings requirement.
       
  3.       Political subdivisions and Indian Tribes {ORC §4141.01(A)(1)(f)}
     
    1.    at least one (1) individual in employment.
       
    2.    no earnings requirement.
       
  4.       Domestic service {ORC §4141.01(A)(1)(c)}
     
    1.    includes employment in domestic service or in a local college club.
       
    2.    earnings requirement is $1000 in any quarter in the current or preceding calendar year.
       
    3.    domestic service wages cannot be used to determine if an individual is an employer for any other services.
       
  5.       Farm operator or crew leader {ORC §4141.01(A)(1)(d)}
     
    1.    $20,000 in wages in any calendar quarter in current or preceding calendar year; OR
       
    2.    at least ten (10) employees (need not be the same person each day) working in twenty (20) weeks during calendar year.
   3.  Employer may    elect coverage {ORC §4141.01(A)(4) and (5)}
  1.    Employer must file form.
     
  2.    Director must approve in writing.
     
  3.    In effect for two years.

   B. Employment defined

   1.  Service performed for wages under any contract of hire: {ORC §4141.01(B)(1)}
 
  1.    Contract may be written or oral.
     
  2.    Contract may be express or implied.
     
  3.    Can include service performed by an officer of a corporation (see OAC 4141-1-05).

   2.  Employment does not include an    independent contractor.
 
  1.    An individual is an independent contractor if the individual has been and will continue to be free from direction or control over the performance of such service.
     
  2.    Factors demonstrating that an individual is under the direction or control of an employer are fully set forth in Ohio Administrative Code 4141-3-05(B).Typical evidence demonstrating that an individual is an independent contractor includes:
     
    1.    existence of a contract for a certain piece of work at a fixed price.
       
    2.    right to employ assistants.
       
    3.    obligation to supply necessary tools, supplies and materials.
       
    4.    right to control progress of work, except as to final result.
       
    5.    no requirement to work set hours during which services are performed.
       
    6.    not paid on a regular basis, such as hourly, daily, or weekly.
       
    7.    not reimbursed for expenses.
       
  3.       Whether type B daycare home providers are independent contractors or employees will be determined under Ohio Revised Code 4141. {ORC §5104.11(A)(5)} See Eisenhour v. Board of Review, 1997 Ohio App. LEXIS 3631 (applying direction or control analysis to a provider of such in-home services). Prior to this enactment, case law and an Ohio Attorney General opinion held that these providers were independent contractors as a matter of law.
     
  4.       Whether deputy registrars and their employees are independent contractors or employees will be determined under Ohio Revised Code Chapter 4141. {ORC §4503.03(C)(2)} Prior to November 1, 2001, deputy registrars and their employees were statutorily defined as independent contractors.
     
  5.    Ohio Revised Code Section 4141.01(B)(2)(k) establishes special criteria for determining whether direction or control are present for construction industry workers. There is a presumption that the employer has the right to direct and control if at least ten of the following apply:
     
    1.    directs manner or method by which instructions are given.
       
    2.    requires particular training.
       
    3.    services performed are integrated into regular functioning of employer.
       
    4.    employer requires that services be performed by a particular individual.
       
    5.    employer hires, supervises, or pays the wages of individual performing services.
       
    6.    a continuing relationship exists which contemplates continuing or recurring work, even if not full-time work.
       
    7.    employer requires individual to perform services during established hours.
       
    8.    individual must be devoted to employer's business on a full-time basis.
       
    9.    required to perform services on the employer's premises.
       
    10.    individual must follow the order of work established by the employer.
       
    11.    individual required to make oral or written reports of progress.
       
    12.    individual paid on a regular basis, such as hourly, weekly or monthly.
       
    13.    employer pays expenses.
       
    14.    employer furnishes tools and materials.
       
    15.    individual has not invested in the facilities used to perform services.
       
    16.    individual does not realize a profit or loss as a result of performance.
       
    17.    individual not performing services for more than two employers at the same time.
       
    18.    individual does not make services available to the general public.
       
    19.    employer has the right to discharge the individual.
       
    20.    individual has the right to end the relationship without incurring liability pursuant to an employment contract or agreement.

   C. Employment includes:

  1.    Agent or commission driver distributing: {ORC §4141.01(B)(2)(e)(i)}
     
    1.    meat, vegetables, fruit, bakery products;
       
    2.    beverages other than milk; OR
       
    3.    laundry or dry-cleaning services.
       
  2.    Traveling or city    salesperson who: {ORC §4141.01(B)(2)(e)(ii)}
     
    1.    serves on a full-time basis;
       
    2.    solicits orders from:
       
      1.    wholesalers;
         
      2.    retailers;
         
      3.    contractors;
         
      4.    hotels and restaurants;
         
      5.    similar establishments;
         
    3.    is not working on a one-time transaction; AND
       
    4.    does not have a substantial investment in facilities used, other than transportation.
       
  3.       Out of state employment {ORC §4141.01(B)(2)(f)}
     
    1.    If service is localized in Ohio, service is covered.
       
    2.    If service is not localized, service is covered if some service is performed in Ohio AND EITHER:
       
      1.    the base of operations or control is in Ohio, OR
         
      2.    the base of operation or control is not located in any state where service is performed, but the individual's residence is in Ohio.
         
    3.    If service is performed entirely outside of Ohio, and no contributions for unemployment are required to be paid, service is covered if:
       
      1.    the individual is a resident of Ohio AND the Director approves the election of the employer (see OAC 4141-7-03(A)); OR
         
      2.    the individual is not a resident AND the place of direction or control is in Ohio.

  4.    Service performed by a U.S. citizen, working for an American employer, outside of the United States (except in Canada and Virgin Islands) is covered if: {ORC §4141.01(B)(2)(h)}
     
    1.    the employer has elected coverage in Ohio; OR
       
    2.    the employer's principal place of business is in Ohio; OR
       
    3.    the employer has no place of business in the U.S., AND:
       
      1.    the employer is an individual who is a resident of Ohio;
         
      2.    the employer is a corporation organized under the Laws of Ohio; OR
         
      3.    the employer is a partnership or trust and majority of partners or trustees reside in Ohio.
         
  5.    Service performed by an individual in the employ of an Indian tribe, including any subdivision, subsidiary, or business enterprise wholly owned by an Indian tribe provided: {ORC §4141.01(B)(2)(l)}
     
    1.    the service is excluded from employment under the Federal Unemployment Tax Act ("FUTA"); and
       
    2.    the service is not excluded under Ohio Revised Code Section 4141.01(B)(3). This code section is discussed in Abstract Section I.D.33.
       

   D. Employment does not include:

  1.       Agricultural labor, as defined in Ohio Revised Code Section 4141.01(V), where the employer does not meet the requirements of Ohio Revised Code Section 4141.01(A)(1)(d). These requirements are discussed above in Abstract Section l.A.2.e. {ORC §4141.01(B)(3)(a)}
     
  2.       Domestic service that does not meet the requirements of Ohio Revised Code Section 4141.01(A)(1)(c). These requirements are discussed above in Abstract Section l.A.2.d. {ORC §4141.01(B)(3)(b)}
     
  3.    Service as a publicly    elected official. {ORC §4141.01(B)(3)(c)(i)}
     
  4.    Service as a member of a legislative body or the judiciary. {ORC §4141.01(B)(3)(c)(ii)}
     
  5.    Service as a military member of the Ohio national guard. {ORC §4141.01(B)(3)(c)(iii)}
     
  6.    A temporary, unclassified state employee, serving in case of fire, storm, snow, earthquake, flood or similar emergency. {ORC §4141.01(B)(3)(c)(iv)}    Volunteer firefighters serve in covered employment UNLESS:
     
    1.    the village is not required to report the firefighters for FUTA; AND
       
    2.    the firefighters are not classified employees; AND
       
    3.    the firefighters are not involved in an on-going type of part-time work.

  7.    An unclassified state employee serving in a position designated as "a major nontenured policymaking or advisory position." {ORC §4141.01(B)(3)(c)(v)}
     
    1.    Under Ohio Administrative Code 4141-5-06, an individual serves in "a major nontenured policymaking or advisory position" only if the individual is an unclassified state employee AND:
       
      1.    the individual was appointed as a member of a board or commission by the governor, subject to the advice and consent of the senate; OR
         
      2.    the individual serves in a position designated under Ohio Revised Code Section 121.03 or 121.05.
         
    2.    The above determination must be made on a case-by-case basis. See Morrey v. Columbus Developmental Center (Jan. 26, 1994), Franklin CP No. 93CVF12-9791, unreported.

  8.    Service in a policymaking or advisory position which ordinarily does not require more than 8 hours per week. {ORC §4141.01(B)(3)(c)(v)}
     
  9.    Service in the employ of any government unit or instrumentality of the United States. {ORC §4141.01(B)(3)(d)} In many cases, the U.S. government allows coverage under UCFE.
     
  10.    Service in the employ of an    educational institution or an institution of higher education if performed by a    student who is enrolled and regularly attending classes at the institution. {ORC §4141.01(B)(3)(e)(i)} It must be shown that the student actually attended classes on a regular basis. See United Theological Seminary v. Administrator 1987 Ohio App. LEXIS 9913
     
  11.    Service as part of a    work-study program: {ORC §4141.01(B)(3)(e)(ii)}
     
    1.    if the student is enrolled in a non-profit or public educational institution that normally maintains a regular faculty and curriculum AND has a regularly organized body of students; AND
       
    2.    the student is in a full-time program taken for credit, which combines academic instruction with work experience IF:
       
      1.    the service is an integral part of the program; AND
         
      2.    the program is not established for or on behalf of an employer.

  12.    Service involving    relatives: {ORC §4141.01(B)(3)(f)}
     
    1.    Service is not covered employment if the individual is in the employ of the individual's:
       
      1.    son;
         
      2.    daughter; OR
         
      3.    spouse.
         
    2.    Service by a child under the age of eighteen (18) is not covered employment if the child is in the employ of the child's father or mother.
       
    3.    Employees of Relatives in Partnership. Service provided by an individual for a partnership, general and/or limited, is    covered employment UNLESS the relationship between the individual and EVERY partner meets Ohio Revised Code Section 4141.01(B)(3)(f). {OAC 4141-5-03(A)} Thus, a claimant employed by a partnership consisting of her husband and brother-in-law would be in covered employment because the relationship with the brother-in-law does not satisfy Section 4141.01(B)(3)(f).
       
    4.    Employees of Relatives in a Corporation. Service provided by an individual for a corporation cannot be excluded under Ohio Revised Code Section 4141.01(B)(3)(f). {OAC 4141-5-03(B)}
       
    5.    In Dixon v. Dixon (1983), 4 Ohio St.3d 160, the Ohio Supreme Court held that a mother's employment for her son was covered because the son paid the required contributions for the years that the claimant was employed, the claimant worked long hours, and to hold otherwise would result in the state being unjustly enriched. This decision appears to ignore the statute.

  13.    Service by an    insurance agent paid solely by commission. {ORC § 4141.01(B)(3)(g)(i)}
     
  14.    Service as a    home worker IF: {ORC §4141.01(B)(3)(g)(ii)}
     
    1.    The individual performs work according to the employer's specifications; AND
       
    2.    The materials or goods are furnished by the employer and are required to be returned to the employer.

  15.    Service in the employ of a    church, or an organization operated, supervised, controlled or principally supported by a church: {ORC §4141.01(B)(3)(h)(i) and (ii)}
     
    1.    The organization must be operated primarily for religious purposes. Employees of organizations operated for non-religious purposes, such as a church-run restaurant, would serve in covered employment.
       
      1.    Schools operated by a church can be primarily for religious purposes. See, for example, Miller v. Saints Peter and Paul School (Mar. 23, 1998), Trumbull App. No. 97-T- 0 023, unreported (holding that the hours spent on religious instruction is not relevant because the reason for creating and operating a school affiliated with a religious denomination is to offer a learning experience dominated by a religious environment, a situation distinctly different than that offered in public schools).
         
      2.    However, some schools have voluntarily elected coverage under Ohio Revised Code Section 4141.01(A)(4) and (5).
         
    2.    Includes employment by a minister or member of a religious order.
       
    3.    A recent amendment to the statute, effective September 21, 2000, excludes service performed for an elementary or secondary school that is operated primarily for religious purposes that is exempt from federal income taxes. {ORC § 4141.01(B)(3)(x)}

  16.    Service by an individual receiving rehabilitation in a facility conducted for the purpose of rehabilitating individuals whose earning capacity is impaired EITHER: {ORC §4141.01(B)(3)(h)(iii)}
     
    1.    by age; OR
       
    2.    by physical or mental deficiency or injury.
       
    3.    Claimants can be required to introduce specific evidence demonstrating the impairment of earning capacity. See, for example, Walker v. Board of Review (Dec. 18, 1980), Cuyahoga CP No. 015308, unreported (holding that specific evidence must be introduced to show that a blind person suffered an impairment of his earning abilities).

  17.    Service by an individual receiving remunerative work in a facility conducted for the purpose of providing remunerative work for individuals who cannot be readily absorbed in the competitive labor market because of impaired physical or mental capacity. {ORC §4141.01(B)(3)(h)(iii)}
     
  18.    Service which would entitle a person to unemployment compensation under Railroad Unemployment Insurance Act. {ORC §4141.01(B)(3)(i)}
     
  19.    Service in the employ of an organization exempt from income tax under section 501 of the Internal Revenue Code IF: {ORC §4141.01(B)(3)(j)}
     
    1.    pay does not exceed $50 in any calendar quarter; OR
       
    2.    service is for a fraternal beneficial society, AND
       
      1.    is in connection with the collection of dues or premiums and is performed away from home office; OR
         
      2.    is ritualistic service.

  20.    Service as    casual labor not in the course of employer's trade or business. {ORC §4141.01(B)(3)(k)}
     
  21.    Incidental services are not covered employment IF: {ORC §4141.01(B)(3)(k)}
     
    1.    Performed by:
       
      1.    Officer;
         
      2.    Appraiser; OR
         
      3.    Member of a finance committee.
         
    2.    For a:
       
      1.    Bank;
         
      2.    Building & loan association;
         
      3.    Savings & loan association; OR
         
      4.    Savings association.
         
    3.    When the remuneration, not counting director's fees, is less than $60 per calendar quarter.
       
  22.    Service for a voluntary employees' beneficial association IF: {ORC § 4141.01(B)(3)(l)}
     
    1.    admission to membership must be limited to employees of a municipal or public corporation, the state or the United States; AND
       
    2.    no part of net earnings may benefit any private shareholder or individual.
       
  23.    Service in the employ of a foreign government. {ORC §4141.01(B)(3)(m)}
     
  24.    Service as a    student nurse IF: {ORC §4141.01(B)(3)(p)}
     
    1.    The student nurse works for a hospital or nurse's training school; AND
       
    2.    The student nurse is enrolled and regularly attending classes.

  25.    Service as a medical    intern IF: {ORC §4141.01(B)(3)(p)}
     
    1.    The intern is employed by a hospital; AND
       
    2.    The intern has completed a four years course in medical school.

  26.    Service in delivery or distribution of newspapers or shopping news IF: {ORC §4141.01(B)(3)(q)}
     
    1.    by an individual under the age of eighteen (18); AND
       
    2.    NOT including delivery or distribution to any point for subsequent distribution.

  27.    Service by a member of a band or orchestra, so long as not the individual's principal occupation. {ORC §4141.01(B)(3)(s)}
     
  28.    Service as part of an unemployment work-relief or work-training program. {ORC §4141.01(B)(3)(aa) and OAC 4141-5-05}
     
  29.    Service at a day camp whose season does not exceed twelve (12) weeks per year. {ORC §4141.01(B)(3)(t)}
     
  30.    Service by a patient for a hospital. {ORC §4141.01(B)(3)(t)(i)}
     
  31.    Service by an inmate for a prison or custodial institution. {ORC § 4141.01(B)(3)(t)(ii) and (iii)} A recent amendment specifically excludes service performed by a person committed to a    penal institution. {ORC § 4141.01(B)(3)(y)}
     
  32.    Service as an election official or worker, where remuneration for the calendar quarter is less than $1,000. {ORC §4141.01(B)(3)(w)
     
  33.    Service performed for an Indian tribe when performed in any of the following manners: {ORC §4141.01(B)(3)(z)}
     
    1.    As a publicly elected official;
       
    2.    As a member of an Indian tribal council;
       
    3.    As a member of a legislative or judiciary body;
       
    4.    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;
       
    5.    As an employee serving on a temporary basis in the case of a fire, storm, snow, earthquake, flood, or similar emergency.


This page last updated on April 21, 2006