Chapter 4101:9-1 Employment of the Worker with Disability

4101:9-1-01 Applicability of rules.

(A) In order to prevent curtailment of opportunities for employment, to avoid undue hardship, and to safeguard the minimum wage rates under Ohio minimum wage law, the director of the department of commerce is authorized to issue rules pursuant to section 4111.06 of the Revised Code permitting to the extent necessary, employment in any occupation at wages lower than the state minimum wage of individuals whose earning capacity is impaired by physical or mental impairment or injuries.

(B) A special license is required to employ individuals with a disability at less than the state minimum wage and until a state license is issued or a federal certificate is obtained a workshop or individual employer has no authority to pay its covered employees with a disability less than the minimum wage. The following types of licenses may be issued by the department:

(1) Work activity center program license;

(2) Sheltered workshop program license;

(3) Temporary individual license for on-the-job training;

(4) Individual license in regular business or industry;

(5) Individual license in a community rehabilitation program (if less than the licensed program rate).

(C) Subject to section 5123.022 of the Revised Code, the director pursuant to such rules as she or he shall prescribe may authorize a special license for payment of less than the minimum wage but at wages which are commensurate with those paid to employees who do not have disability workers in industry for essentially the same type, quality and quantity of work.

(D) The director may issue licenses authorizing payment of rates to individuals at less than the minimum wage for individuals with multiple disabilities and other individuals whose earning capacity is so severely impaired that they cannot earn the minimum wage.

(E) No exemption is provided from the maximum hour and overtime pay provisions of the law.

(F) If a license is desired application must be made to the "superintendent of the division of industrial compliance, Department of Commerce, 6606 Tussing Road, Reynoldsburg, Ohio 43068."

(G) No provision of any license issued under these rules shall excuse noncompliance with any federal or state law or municipal ordinance establishing higher standards.

(H) These rules shall apply to all employees with a disability within the state of Ohio. Any employer or his agent, or the officer or any agent of any corporation who violates any of the provisions of these rules or who interferes with the director or her or his duly authorized representative in the enforcement of these rules shall be subject to the penalties as set forth in section 4111.99 of the Revised Code.

Effective: 12/19/2014
Five Year Review (FYR) Dates: 09/30/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78; 4-15-79; 6-3-04

4101:9-1-02 Definitions.

(A) "Department" means the department of Commerce.

(B) "Employee or worker with a disability" means an individual whose earning capacity is impaired by physical or mental impairment or injuries for the work he or she is to perform.

(C) "Work activities center" means a workshop, or a physically separated department of a workshop, conducted not for profit, having an identifiable program, separate supervision and records, planned and designed exclusively to provide therapeutic activities for worker with a disability whose physical or mental impairment is so severe as to make their productive capacity inconsequential. Therapeutic activities shall include custodial activities where the focus is on teaching the basic skills of living and any purposeful activity so long as work or production is not the main purpose. No work activities center or separate department thereof shall qualify as a work activities center if the average productivity is more than fifty per cent of the minimum wage per year as measured by dividing the total annual earned income of the work program, less the cost of purchased materials used, by the average number of clients in the work program. (The average number of clients shall be determined by taking the average of the total number of clients in the work program on the last day of each quarter in the previous fiscal year, provided such average is representative of the average number of clients employed during the entire year.) No individual worker whose productivity substantially exceeds this average shall be employed at less than the statutory minimum wage under a work activities center certificate. A worker with a disability whose productivity substantially exceeds the average may be certified under rules for individual rates in rare and unusual cases where necessary to avoid extreme hardship, if the individual is unable to earn the statutory minimum because of his disability, and if his production and earnings are included in the average. Information to be considered will include the severity of the worker with a disability employed and other pertinent factors.

(D) "Sheltered workshop" means a public or private organization or institution conducted not for profit, but for the purpose of carrying out a recognized program of rehabilitation for workers with a disability or other occupational rehabilitation activity of an educational or therapeutic nature and/or providing such workers with remunerative employment at less than minimum wage but more than fifty per cent of the minimum wage per year as measured by dividing the total annual earned income of the work program, less the cost of purchased materials used, by the average number of clients in the work program.

(1) The average number of clients shall be determined by the average of the total number of clients in the work program on the last day of each quarter in the previous fiscal year, provided such average is representative of the average number of clients employed during the entire year.

(2) A worker with a disability whose productivity substantially falls below the average may be certified under rules for individual rates in rare and unusual cases where necessary to avoid extreme hardship, and if his production and earnings are included in the average.

Information to be considered will include the severity of the worker with a disability employed and other pertinent factors.

(E) "Trainee with a disability" means an individual whose earning capacity is impaired by physical or mental impairment or injuries and who is receiving training in industry under any recognized vocational program.

Effective: 12/19/2014
Five Year Review (FYR) Dates: 09/30/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78; 4-15-79; 6-3-04

4101:9-1-03 Application for individual license.

(A) An application for a license authorizing the employment of individuals with a disability at less than the minimum wage shall be made upon forms provided by the superintendent of the division.

(B) An application for an individual license must be submitted for each worker for whom an individual rate is required.

(C) The application shall set forth the nature of the disability, a description of the occupation at which the individual with a disability is to be employed, and the wage the employer proposes to pay the individual with a disability.

(D) There can be no substitution for payment of a remuneration on account of a service provided; nor may services provided be used to off-set payment of the authorized wage.

(E) Subject to section 5123.022 of the Revised Code, the superintendent may require the submission of additional information to that shown on the application and may require the individual with a disability to take a medical or psychological examination in order to determine whether the issuance of a license is justified.

(F) Learning period of employment. During a learning period of employment not to exceed ninety working days from the date of employment, a commensurate wage or a rate of not less than fifty per cent of the minimum wage, whichever is less, shall be paid.

(1) Eighty hours of this learning period shall be used to determine the individual's productive capacity by utilization of a performance and merit rating form. At the end of the first eighty hours of the learning period of employment, application for the individual license and the performance and merit rating form shall be sent, in duplicate, to the department requesting a wage rate which shall be commensurate with the individual's demonstrated productive capacity.

(2) For an employer who does not have a sheltered workshop or work activities center license, an application to the superintendent is required during the ninety-working-day learning period of employment, for issuance of a temporary license for payment at the commensurate wage or at not less than fifty per cent of the minimum wage, whichever is less.

(3) Under these rules the superintendent may issue a ninety-working-day temporary license for the on-the-job trainees during the learning period permitting the payment of a commensurate wage or a rate of not less than fifty per cent of the minimum wage, whichever is less. Such temporary license may be issued only for the ninety-working-day learning period of employment.

(G) In instances where workers who do not have a disability are employed at piece rates, workers with a disability in the same occupation shall be paid at the full piece rate.

(H) The terms of any license, including the wage rate specified therein may be amended by the superintendent or his or her authorized representative upon written notice to the parties concerned if the facts justify such amendment.

Effective: 12/19/2014
Five Year Review (FYR) Dates: 09/30/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78, 6-3-04

4101:9-1-04 Application for a sheltered workshop license and/or work activities center license.

(A) Application for a sheltered workshop and/or a work activities center license shall be filed with the director of the department of commerce.

(B) The application for a sheltered workshop license and/or a work activities center license shall be submitted on forms provided by the department. A separate application may be required for each branch operated at a separate location or for each separate department requesting authority to pay wages lower than the minimum wage. The application shall be signed by the president of the board of directors (or corresponding official) and a duly authorized officer of the sheltered workshop or work activities center.

(C) The application shall contain a description of the nature of the disabilities of the persons served by the sheltered workshop or the work activities center, a description of the types of employment and the programs provided by the sheltered workshop or work activities center, and the earnings of each individual with a disability. A sheltered workshop or work activities center newly applying for a license which does not have individual earnings records on which to establish an appropriate license rate may be issued a temporary license under the terms and conditions applicable to sheltered workshops and work activities centers provided the sheltered workshop and work activity center presents satisfactory evidence that all of its clients will be compensated at wages at least commensurate with the industry.

(D) The director may issue a license for the employment of workers with a disability at wages lower than the minimum wage but at wages which are equitably related to the worker's demonstrated productive capacity in either a sheltered workshop or a work activities center.

(E) Workers must be paid more than the licensed wage rate if such worker earns more since the law requires workers with a disability to be paid wages commensurate with those paid workers without a disability in the area taking into consideration the type, quality and quantity of work produced.

(F) Sheltered workshops or work activities centers possessing an approved federal certificate need not apply for a state license but shall submit a copy of the federal approval letter. Some departments in a sheltered workshop or work activities center not subject to federal certification may be subject to state license and would therefore be required to apply for a state license.

Effective: 12/19/2014
Five Year Review (FYR) Dates: 09/30/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78, 6-3-04

4101:9-1-05 Investigations and additional information.

(A) To determine whether the facts justify issuance of a license the director or her authorized representative may conduct investigations with respect to applications for licenses, and reports of such investigations shall be filed with the department of commerce.

(B) The department may require additional information and may require the worker to take a medical or psychological examination when deemed necessary to determine whether issuance of a license is justified.

Five Year Review (FYR) Dates: 09/29/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78; 6-3-04

4101:9-1-06 Issuance of an individual license.

If the application and other available information indicates that the requirements of these rules are satisfied the director shall issue a license. If issued, copies of the license shall be mailed to the employer and the worker with a disability. If denied, the employer and the worker with a disability and/or his authorized representative shall be given written notice of the denial.

Five Year Review (FYR) Dates: 09/29/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78; 6-3-04

4101:9-1-07 Terms of the individual license.

(A) An individual license shall specify the name of the worker with a disability, the name of the employer, the occupation in which the individual with a disability is to be employed, the authorized sub-minimum wage rate and the period of time during which such wage rate may be paid.

(B) A license shall be effective for a period to be designated by the director. An individual with a disability employed under such a license may be paid less than the minimum wage only during the effective period of the license.

(C) The wage rate fixed in the license shall be set at a figure designated to reflect the individual with a disability's demonstrated earning capacity when, after investigation, less than the minimum wage rate appears to be clearly justified.

(D) Any monies received by an individual with a disability by reason of any state or federal pension or compensation program for persons with a disability shall not be considered as off-setting any part of the remuneration due the worker with a disability by the employer.

(E) The individual with a disability shall be paid at not less than one and one-half times the regular rate for hours worked in compliance with the overtime pay provisions of the law.

(F) The terms of any license, including the wage rate less than the minimum wage as specified therein, may be amended by the director of the department upon written notice to the parties concerned if the facts justify such amendment.

Five Year Review (FYR) Dates: 09/29/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78; 6-3-04

4101:9-1-08 Renewal of licenses.

Application for renewal of a license shall be filed sixty days before the expiration date of the original license or at any time that a material change occurs in the conditions of employment as stated in the original application. If such application has been filed prior to the expiration date of the license, the license shall remain in effect until the application for renewal has been granted or denied.

Five Year Review (FYR) Dates: 09/29/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78

4101:9-1-09 Review.

(A) An employer or an individual with a disability or his representative, at any time, may request cancellation or modification of a license, based upon facts stated in a petition evidencing material changes in the conditions of employment under which the license was issued. Any person so aggrieved shall file with the director a petition of review of the action complained of, setting forth grounds for seeking such review. If reasonable grounds exist, the director or her authorized representative may grant such review.

(B) Such review if granted shall be made either by the director or her authorized representative.

Effective: 12/19/2014
Five Year Review (FYR) Dates: 09/30/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78, 4-15-79, 6-3-04

4101:9-1-10 Cancellation of a license.

(A) The director or her authorized representative may cancel any license for cause. A license may be canceled (1) as of the date of issuance if it is found that fraud has been exercised in obtaining the license or in permitting a worker with a disability to work thereunder; or (2) as of the date of violation, if it is found that any of the terms of the license have been violated.

(B) If a petition for review is filed, the effective date of the cancellation shall be postponed until action is taken on the petition for review.

(C) If a cancellation of a license is ordered on review, the sheltered workshop or work activities center or employer in regular business or industry shall reimburse any person covered by the license in an amount equal to the difference between the applicable minimum wage and any lower wage paid such person subsequent to the effective date of the cancellation.

(D) Except in cases of willfulness, before any license is canceled, facts or conduct which may warrant such action shall be called to the attention of the sheltered workshop or work activities center or employer in regular business or industry in writing and they shall be afforded an opportunity to achieve compliance.

Five Year Review (FYR) Dates: 09/29/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78; 4-15-79; 6-3-04

4101:9-1-11 Amendment of rules.

(A) The director of the department of commerce is authorized by law to adopt, amend, or rescind rules by complying with the procedure prescribed in sections 119.01 to 119.13 of the Revised Code, for the adoption, amendment, or rescission of rules.

(B) The director may at any time upon his or her own motion or upon the written request of any interested person setting forth reasonable grounds for the changes desired, amend or revoke any of the rules herein subscribed pursuant to the provisions as set forth in Chapter 119. of the Revised Code.

Five Year Review (FYR) Dates: 09/29/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78; 6-3-04

4101:9-1-12 [Rescinded] Advisory board.

Effective: 12/19/2014
Five Year Review (FYR) Dates: 09/30/2014
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11/1/78

4101:9-1-13 Powers and duties of the director.

(A) Pursuant to sections 119.01 to 119.13 of the Revised Code, the director shall promulgate rules which shall be published.

(B) The director or his or her representative shall have authority to investigate and ascertain wages of persons employed in an occupation in the state; enter and inspect the place of business or employment of any employer of employees in any occupation in the state at any reasonable time, for the purpose of examining and inspecting any records of any such employer that in any way relates to wages, hours, or other conditions of employment of such employees; copy any or all of such records as he or she or his or her authorized representative may deem necessary or appropriate; require from such employer full and accurate statements in writing, at such times as the director may deem necessary, of the wages paid to all employees in his employment; and interrogate such persons for the purpose of ascertaining whether the provisions of the law and the regulations issued thereunder have been and are being complied with.

(C) If any worker with a disability is paid by his or her employer less than the wage and/or overtime compensation authorized by the director as evidenced by a state license authorizing the employment of workers with a disability at less than the minimum wage or by any rules issued thereunder, such worker may recover in a civil action the full amount thereof less any amount actually paid and attorney's fees as may be allowed by court. Any agreement between the employer and the worker to work for less than such authorized wage and/or overtime compensation shall be no defense to such action. At the request of the employee paid less than such wage and/or overtime compensation to which such employee is entitled under the law and rules issued thereunder, the director may take an assignment of such wage claim in trust for the assigning worker and may bring any legal action necessary to collect such claim. The employer shall be required to pay the cost of such reasonable attorney's fees as may be allowed by the court.

Five Year Review (FYR) Dates: 09/29/2014 and 09/28/2019
Promulgated Under: 119.03
Statutory Authority: 4111.05 , 4111.06
Rule Amplifies: 4111.06
Prior Effective Dates: 11-1-78; 4-15-79; 6-3-04