3309-1-02 Definition of compensation.

(A) This rule amplifies and is in addition to the provisions of division (V) of section 3309.01 of the Revised Code.

(B) Except as otherwise provided by division (V) of section 3309.01 of the Revised Code, the following payments made by an employer are not "compensation."

(1) Payments made by the employer for accrued but unused compensatory time for overtime worked;

(2) One-time and/or lump-sum payments made by the employer to an employee where such payments are not made for additional services actually rendered or based upon the employee's standard rate of pay;

(3) Retroactive payments or pay increases made or granted by the employer in whole or in part in consideration of retirement or an agreement to retire; and

(4) Any terminal payments or other additional remuneration paid by the employer in consideration of retirement or an agreement to retire.

(C) The following payments made by an employer shall be "compensation'':

(1) Payments on behalf of the contributor to an eligible retirement plan as defined in section 402(c)(8) of the Internal Revenue Code of 1986, 26 U.S.C. 402(c)(8) .

(2) Back wages awarded pursuant to a final order or final settlement award that reinstates the contributor to the contributor's former position, or comparable position, without interruption or loss of time.

(3) Effective January 1, 2009, differential wage payments as defined in section 3401(h)(2) of the Internal Revenue Code, 26 U.S.C. 3401(h)(2) .

(D)

(1) Prior to remitting contributions on salary, wages or other earnings where there is a question on whether such payments or earnings are "compensation," the employer shall request in writing a determination by the retirement board.

(2) The retirement board shall give the employer written notice of its determination.

(3) If the employer fails to request a prior determination and the retirement board determines that the salary, wages or other earnings are not "compensation," then any contributions received on such salary, wages and other earnings shall be deemed unauthorized and shall be refunded.

(4) If the employer fails to request a prior determination and the retirement board determines that the salary, wages, or other earnings are "compensation," then the retirement board may certify for collection pursuant to sections 3309.47 and 3309.51 of the Revised Code the amount of contributions not remitted.

Effective: 04/01/2013
R.C. 119.032 review dates: 02/01/2015
Promulgated Under: 111.15
Statutory Authority: 3309.04
Rule Amplifies: 3309.01 , 3309.47 , 3309.49
Prior Effective Dates: 12/24/76, 6/25/86 (Emer), 9/18/89, 2/6/98, 5/14/05, 4/2/10