Chapter 4101:9-4 Prevailing Wage Regulations

4101:9-4-01 Public hearings on adoption, amendment, or rescission of rules; methods of public notice.

(A) Except in the case of an emergency rule authorized under division (F) of section 119.03 of the Revised Code, the director shall adopt, amend, or rescind no rule unless a public hearing in accordance with division (C) of that section is held no earlier than thirty nor later than fifty days after the proposed rule, amendment, or rescission is filed under division (B) of that section.

(B) The director shall provide public notice of the hearing referred to in paragraph (A) of this rule by publishing such notice in the register of Ohio.

(C) The public notice referred to in paragraph (B) of this rule shall contain the following:

(1) A statement of the director's intention to consider adopting, amending, or rescinding a rule;

(2) A synopsis of the proposed rule, amendment, or rule to be rescinded or a general statement of the subject matter to which the proposed rule, amendment, or rescission relates;

(3) A statement of the reason or purpose for adopting, amending, or rescinding the rule; and

(4) The date, time, and place of the hearing referred to in paragraph (A) of this rule.

(D) Any person who requests it and pays a reasonable fee shall receive a copy of the notice referred to in paragraph (B) of this rule. The director shall set such fee at an amount no greater than needed to cover costs of copying and mailing the notice to persons so requesting a copy of the notice.

(E) Any notice beyond that required by paragraphs (B), (C), and (D) of this rule and by Chapter 119. of the Revised Code may be provided as the director considers appropriate or necessary under the circumstances.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.12
Prior Effective Dates: 11-17-89; 6-23-97; 6-3-04

4101:9-4-02 Definitions.

The following definitions are provided for the purposes of clarifying the meaning of certain terms as they appear in sections 4115.03 to 4115.16 of the Revised Code and division-level 4101:9 rules of the Administrative Code.

(A) "Apprentice" means any employee who is enrolled or indentured per trade occupation as a member of a bona fide apprenticeship program, or a person in the first ninety days of probationary employment as an apprentice in such an apprenticeship program who has been certified by the Ohio apprenticeship council or registered with the Ohio apprenticeship council through those states with which Ohio holds reciprocal apprenticeship agreements to be eligible for probationary employment as an apprentice.

(B) "Basic hourly rate of pay" means that portion of the prevailing wage, excluding fringe benefits, paid directly to the employee before deductions.

(C) "Bona fide apprenticeship program" means a comprehensive training program registered with the Ohio apprenticeship council or certified by those with which Ohio holds reciprocal apprenticeship agreements.

(D) "Business association" means a business in any form including, but not limited to, a sole proprietorship, partnership, limited liability company, or corporation.

(E) "Classification" means the level of experience within an occupation, trade or craft.

(F) "Common labor" means the classification for unskilled employees.

(G) "Construction" means:

(1) Any new construction of any public improvement which meets the definition and thresholds set forth in either division (B)(1) or (B)(3) of section 4115.03 of the Revised Code.

(2) Any reconstruction, enlargement, alteration, repair, remodeling, renovation, or painting of any public improvement which meets the definition and thresholds set forth in either division (B)(2) or (B)(4) of section 4115.03 of the Revised Code.

(3) "Construction" includes, but is not limited to, dredging, shoring, demolition, drilling, blasting, excavating, scaffolding, installation and any other change to the physical structure of a public improvement.

(H) "Contractor" means any business association that is involved in the actual construction of a public improvement. Contractor may include an owner, developer, recipients of publicly issued funds, and any person to the extent he actively participates in whole or in part in the actual construction of a public improvement by himself, through the use of employees, or by awarding and managing subcontracts to subcontractors as defined in paragraph (HH) of this rule. Contractor may also include any business association that administers, manages, conducts, and oversees actual construction of a public improvement by directing contractors and subcontractors on a specific project.

(I) "Commerce" means the Ohio department of commerce.

(J) "Director" means the director of the Ohio department of commerce , or the director's designee.

(K) "Employee" means any person in the employment of an employer who performs labor or work of the type performed by a laborer, workman, or mechanic in the construction, prosecution, completion or repair of a public improvement and includes owners, partners, supervisors, and working foremen who devote more than twenty per cent of their time during a work week to such labor or work for the time so spent. Employee does not include an individual who is a sole proprietor. Employee also does not include full-time employees of a public authority who have completed their probationary periods in the classified civil service of the public authority, except such persons are employees if performing work outside the classification specifications of the civil service position for which the probationary period has been served. Employee does not include any person in a program administered by a public authority approved at the discretion of the director in writing prior to work on any project or program, including, but not limited to, local workfare or community action programs.

(L) "Employer" means any public authority, contractor, or subcontractor.

(M) "Enforceable commitment" means a legally binding obligation of an employer.

(N) "Fringe benefits" means:

(1) Medical or hospital care or insurance to provide such;

(2) Pensions on retirement or death or insurance to provide such;

(3) Compensation for injuries or illnesses resulting from occupational activities if it is in addition to that coverage required by Chapter 4121. and 4123. of the Revised Code;

(4) Supplemental unemployment benefits that are in addition to those required by Chapter 4141. of the Revised Code;

(5) Life insurance;

(6) Disability and sickness insurance;

(7) Accident insurance;

(8) Vacation and holiday pay;

(9) Defraying of costs for apprenticeship or other similar training programs which are beneficial only to the employees affected;

(10) Other bona fide fringe benefits.

None of the benefits enumerated in this rule may be considered in the determination of prevailing wages if federal, state, or local law requires contractors or subcontractors to provide any such benefits.

(O) "Fringe benefits credit" means payment made by an employer on behalf of an employee for fringe benefits. The amount of a contribution made by the employee to a fringe benefit, as described in rule 4101:9-4-07 of the Administrative Code, shall not constitute a fringe benefits credit.

(P) "Good faith" in the context of section 4115.10 of the Revised Code means:

(1) An honest intention to abstain from taking any unconscientious advantage of another, together with the absence of all information, notice, benefit or knowledge of facts and circumstances that render a transaction unconscientious; or

(2) An action that is honest in fact when viewed in light of the totality of the relevant and material circumstances.

(Q) "Institution" means any society or corporation of a for-profit, not-for-profit, public or private character established or organized for any charitable, educational or other beneficial purpose.

(R) "Interested party," with respect to a particular contract for construction or renovation of a public improvement, means:

(1) Pursuant to division (F)(1) of section 4115.03 of the Revised Code, 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 section 4115.03 of the Revised Code;

(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 (F)(2) of section 4115.03 of the Revised Code 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. For the purpose of this section, "bona fide" means an organization of labor, the charter, constitution, bylaws or other formative document of which is active and in good standing and requires the organization to act in the interests of its members.

(4) Any association having as members any of the persons mentioned in division (F)(1) or (F)(2) of section 4115.03 of the Revised Code.

(S) "Laborer, workman, or mechanic" means a person who performs manual labor, or labor of a particular occupation, trade or craft, or who uses tools of a particular occupation, trade or craft, or who otherwise performs physical work in such occupation, trade or craft which has been approved in writing by the director through issuance of prevailing wage rate schedules for such occupations, trades or crafts. Laborer, workman, or mechanic, does not include a person that performs activities that do not involve actual construction on the project, such as:

(1) Consultants that perform land use planning, construction planning, zoning representation, survey work, architectural work, interior design work, professional engineering work, and landscape architectural costs for a project; or

(2) Persons whose primary function is to take measurements, accumulate data, and make recommendations on how to rectify imperfections or imbalances in installed equipment or systems.

(T) "Legal day's work" means that portion of any twenty-four-hour time period during which an employee may work consistent with all applicable state or federal laws.

(U) "Locality" means the county in Ohio wherein the physical work upon any public improvement is being performed.

(V) "Materialman" means any supplier or furnisher of materials to be used in the construction of any public improvement.

(W) "Nonpublic user beneficiary" means any nongovernmental person who is the recipient of funds generated by the issuance of public obligations for such person's construction, use, occupancy, or enjoyment of a public improvement.

(X) "Occupation," "trade" or "craft" means the functional nature of work performed by an individual. The director may use the U.S. department of labor's "Dictionary of Occupational Titles" as a guide in determining an occupation, trade or craft.

(Y) "Person" means any individual, institution, business association, or governmental agency.

(Z) "Prevailing wage" means the sum of the following:

(1) The basic hourly rate of pay;

(2) The rate of contribution irrevocably made by an employer to a trustee or to a third person pursuant to a fund, plan, or program which is communicated in writing to the employees affected prior to completion of any project to which sections 4115.03 to 4115.16 of the Revised Code apply;

(3) The rate of costs to the employer which may be reasonably anticipated in providing fringe benefits to employees pursuant to an enforceable commitment to carry out a financially responsible plan or program which is communicated in writing to the employees affected prior to completion of any project to which sections 4115.03 to 4115.16 of the Revised Code apply.

(AA) "Prevailing wage rate schedule" means the determination of the department of the prevailing rates of wages to be paid to employees in applicable occupations and the ratios of helpers, apprentices, trainees, serving laborers, and assistants to skilled workers; it includes any subsequent modifications, corrections, escalations or reductions to any wage rates or ratios.

(BB) "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. Sections 4115.03 to 4115.16 of the Revised Code and division level 4101:9 rules of the Administrative Code apply to expenditures of such institutions made in whole or in part from public funds.

(CC) "Public improvement," subject to the exceptions set forth in division (B) of section 4115.04 of the Revised Code, means:

(1) All buildings, roads, streets, alleys, sewers, ditches, sewage disposal plants, water works, and all other structures or works which are:

(a) Constructed by a public authority of the state or any political subdivision, including, but not limited to, a municipality thereof;

(b) Constructed by any person for a public authority of the state or a political subdivision, including, but not limited to, a municipality thereof, pursuant to a contract with such public authority;

(c) Constructed pursuant to any statute of the Revised Code requiring payment of prevailing wage; or

(d) Constructed in whole or in part from public funds by an institution supported in whole or in part by public funds ; or

(e) Constructed by a public authority using public funds dedicated for the construction of a public improvement and in which the public authority maintains a possessory or property interest in the completed project.

(2) All work performed on a newly constructed structure or work to suit it for occupancy by a public authority when a public authority rents or leases such a structure or work within six months after completion of such construction.

(3) Any construction where the federal government or any of its agencies furnishes all or any part of the funds used in constructing such improvement except where the federal government or any of its agencies provides the funds by loan or grant and prescribes predetermined minimum wages to be paid to employees in the construction of such projects or where federal statute or regulation explicitly preempts the application of state prevailing wage law. Loan or grant does not include federal government insurance of state financing on the project nor a loan guarantee of private funds. To be predetermined the rates must be set according to the procedures of the U.S. department of labor, prior to the beginning of construction, and specifications of the project must reference the application of federal wage requirements.

(DD) "Rate of contribution" means the hourly credit of the amount irrevocably made by an employer to a fund, plan or program pursuant to division (E)(2) of section 4115.03 of the Revised Code.

(EE) "Rate of costs" means the hourly credit of the amount reasonably anticipated to be paid by an employer in providing fringe benefits to employees pursuant to an enforceable commitment to carry out a financially responsible plan or program pursuant to division (E)(3) of section 4115.03 of the Revised Code.

(FF) "State" means the state of Ohio or any of its instrumentalities or political subdivisions, and, unless exempted or excepted by the Revised Code, the departments, agencies, boards, or commissions thereof.

(GG) "Structures and works" means, to the extent not specifically stated in the definition of public improvement, all construction activity, including, but not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, streetscapes, subways, tunnels, mains, power lines, pumping stations, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals.

(HH) "Subcontractor" means any business association hired by a contractor to perform construction on a public improvement or any business association hired by such subcontractor, or any subcontractor whose subcontract derives from the chain of contracts from the original subcontractor.

(II) "Supported in whole or in part by public funds" means any payment or partial payment directly or indirectly from funds provided by loans, grants, taxes, or any other type of payment from public funds of the federal government or of the state as defined in division 4101:9 of the Administrative Code.

(JJ) "Sufficient evidence" shall, for the purpose of section 4115.16 of the Revised Code, mean that each element of the complaint shall be supported by prima facie evidence.

(KK) "Third person" means a person responsible for safeguarding contributions to a fund, plan, or program pursuant to division (E)(2) of section 4115.03 of the Revised Code or fringe benefits provided pursuant to division (E)(3) of section 4115.03 of the Revised Code, or both. A third person must act in a fiduciary capacity and must assume the usual fiduciary responsibilities imposed upon trustees by applicable state or federal law.

(LL) "Trainee" is one who is employed pursuant to and individually registered in a program which has received prior approval by the employment and training administration (ETA), U.S. department of labor. Each occupation in which trainees are to be trained must be one commonly recognized throughout the construction industry.

(MM) "Trustee" means a person responsible for safeguarding contributions to a fund, plan, or program pursuant to division (E)(2) of section 4115.03 of the Revised Code or fringe benefits provided pursuant to division (E)(3) of section 4115.03 of the Revised Code, or both. A trustee must act in a fiduciary capacity and must assume the usual fiduciary responsibilities imposed upon trustees by applicable state or federal law.

The terms used in these rules are to be construed according to the purposes of the prevailing wage law, general principles of Ohio law, custom and usage in the construction industry, the context of their usage, and the use of similar words therein.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 04/16/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-03 Discharge of prevailing wage obligation.

(A) An employer shall pay not less than the prevailing wage rate as determined by the director in the following manner:

(1) Payment of the basic hourly rate of pay directly to the employee plus payment of the rate of contribution and rate of costs permitted under division-level 4101:9 rules of the Administrative Code; or

(2) Where there is no rate of contribution or rate of costs as permitted under these rules, the basic hourly rate of pay shall be at least equal to the prevailing wage rate and shall be paid in full directly to the employee.

(B) No fringe benefits may be considered in the determination of prevailing wages if federal, state, or local law requires employers to provide any of such benefits.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.06 , 4115.031
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-04 Allowance of contributions to a fund, plan, or program.

(A) Pursuant to division (E)(2) of section 4115.03 of the Revised Code, commerce will allow credit for the "rate of contribution" irrevocably made by an employer to a trustee or to a third person pursuant to a fund, plan, or program. No credit will be allowed to the extent the employer will be able to recapture this rate of contribution or in any way divert said funds to his own use or benefit, except where the employer can demonstrate that he has erroneously contributed an excessive amount, he may recapture said amount without affecting the credit previously given, provided that he received no credit for the amount he seeks to recapture. In order for an employer to receive the credit, a trustee or third person must act in a fiduciary capacity and must assume the usual fiduciary responsibilities imposed upon trustees by applicable state or federal law. The terms fund, plan, or program are intended to recognize the various types of arrangements commonly used to provide the funded benefits contemplated by division (E)(2) of section 4115.03 of the Revised Code.

(B) Fringe benefits credits shall be presumed to be paid at a rate not to exceed the amount of contributions for fringe benefits set forth in the applicable prevailing wage rate schedule for the locality. In the event that an employer seeks fringe benefit credit which exceeds the amount set forth in the applicable prevailing wage rate schedule, the employer shall provide the department with documentation which supports such excess credit.

(C) Funds, plans, or programs which violate applicable state or federal law will not be recognized for the purposes of determining the allowable credit.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.06 , 4115.031
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-05 Allowance of fringe benefits.

(A) Pursuant to division (E)(3) of section 4115.03 of the Revised Code, commerce will allow credit for the rate of costs which may be reasonably anticipated in providing fringe benefits to employees pursuant to an enforceable commitment to carry out a financially responsible plan or program of fringe benefits which was communicated in writing to the employees. The plan or program must be set up in such a way that an "enforceable commitment" as defined in these rules exists for the provision of the fringe benefits contemplated thereby. The terms "plan or program" include the various types of arrangements commonly used to provide the benefits contemplated by division (E)(3) of section 4115.03 of the Revised Code. The words "reasonably anticipated" require a plan or program to be able to withstand a test of actuarial soundness. The words "financially responsible" require a plan or program to be bona fide.

(B) Fringe benefits credits shall be presumed to be paid at a rate not to exceed the amount of contributions for fringe benefits set forth in the applicable prevailing wage rate schedule for the locality. In the event that an employer seeks fringe benefit credit which exceeds the amount set forth in the applicable prevailing wage rate schedule, the employer shall provide the department with documentation which supports such excess credit.

(C) Funds, plans, or programs which violate applicable state or federal law will not be recognized for the purposes of determining the allowable credit.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03 , 4115.031
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-06 Calculation of credits.

(A) It is the duty of each employer to calculate the amount of credit it seeks for fringe benefits in accordance with Chapter 4101:9-4 of the Administrative Code.

(B) Each employer shall submit a certified payroll report to the prevailing wage coordinator. This report shall include at a minimum the basic hourly rate, calculated hourly rate of fringe benefits credited, all permissible payroll deductions.

(C) The employer shall submit detailed calculations showing the calculations used in determining any of the information contained on the certified payroll report upon request by commerce.

(D) Where the employer provides commerce with substantiating documentation concerning the amount contributed to the fringe benefit and the total number of hours worked by the employee on all projects deemed relevant by the director for the purposes of this calculation, hourly fringe benefit credit shall be calculated by dividing the total contribution of the employer applicable to the employee by the total number of hours worked by the employee.

(E) Where the employer provides commerce with substantiating documentation concerning only the amount contributed to the fringe benefit, hourly fringe benefit credit shall be calculated by dividing the total yearly contribution by 2080.

(F) Commerce may reject any credits sought by an employer which are not substantiated by adequate records.

(G) Falsification of any information provided to commerce pursuant to this rule is a violation of section 2921.13 of the Revised Code.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03 , 4115.031 , 4115.07
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-07 Permissible payroll deductions.

(A) The following deductions from wages may be made without application to and approval of commerce:

(1) Any deduction from wages required by federal, state, or local law;

(2) Any deduction of amounts required by court order, process, or judgment to be paid to another unless collusion or collaboration exists between the employer and the employee for whose benefit the deduction is made;

(3) Any deduction which constitutes a contribution by the employee to funds, plans, or programs established by the employer or representatives of employees, or both, for the purpose of providing either from principal or income, or both, medical or hospital care, pensions or annuities on retirement, death benefits, compensation for injuries in addition to that required by Chapters 4121. and 4123. of the Revised Code, compensation for illness, accidents, sickness, or disability, or for insurance to provide any of the foregoing, or unemployment benefits in addition to those required by Chapter 4141. of the Revised Code or vacation pay.

(B) The following deductions from wages may be made only if, prior to commencement of work by the employee on any project, employers procure and maintain, in writing, proof of voluntary deductions signed by the employee:

(1) Savings accounts or similar savings plans for the benefit of employees, their families and dependents;

(2) Any deduction constituting a contribution toward the purchase of United States defense stamps or savings bonds;

(3) Any deduction enabling the employee to repay loans to or purchase shares in credit unions organized and operated in accordance with federal and state credit union statutes;

(4) Any deduction for the making of contributions to governmental or quasi-governmental agencies;

(5) Any deduction for the making of contributions to legitimate charitable institutions;

(6) Any deductions to pay regular union initiation fees and membership dues, not including fines or special assessments, provided that a collective bargaining agreement between the employer and representatives of its employees permits such deductions and such deductions are not otherwise prohibited by law.

(7) Any deduction for the making of contributions to a state or federal political action committee.

(C) Any deduction from wages not specifically permitted in paragraphs (A) and (B) of this rule shall be permitted only upon approval of the public authority and the director and must meet the following criteria:

(1) The deduction is not otherwise prohibited by law;

(2) The employer does not make a profit or benefit directly or indirectly from the deduction in any form, including, but not limited to, commissions or dividends;

(3) The deduction is either voluntarily consented to by the employee in writing, prior to the period in which the work is to be done, where such prior consent is not a condition for obtaining or continuing employment, or is provided for in a bona fide collective bargaining agreement between the employer and representatives of its employees; and

(4) The deduction serves the convenience and interest of the employee, his family or beneficiaries.

(D) Failure to provide evidence of voluntary deductions pursuant to paragraphs (B) and (C) of this rule constitutes a violation of section 4115.07 of the Revised Code.

(E) Failure to obtain the approval of the public authority and director for any deduction taken pursuant to paragraph (C) of this rule constitutes a violation of section 4115.07 of the Revised Code.

(F) An employer withholding a permissible payroll deduction pursuant to paragraph (A),

(B) or (C) of this rule shall maintain complete records of the wages withheld, including any and all receipts for donations, contributions, fees, and dues paid on behalf of the employee, from the deductions withheld by the employer.

(G) Failure to comply with paragraph (F) of this rule constitutes a violation of section 4115.07 of the Revised Code.

(H) Any records required to be maintained by this rule shall be made available to the public authority and commerce upon request.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 03/15/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03 , 4115.031 , 4115.07 , 4115.071
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-08 Computation of overtime compensation.

(A) Overtime compensation shall be computed in the manner prescribed by this rule. This rule incorporates the provisions of division (A) of section 4111.03 of the Revised Code and sections 207 and 213 of the federal Fair Labor Standards Act, 29 U.S.C. 207 and 29 U.S.C. 213 .

(B) Subject to the provision noted in paragraph (A) of this rule, an employee shall be paid the prevailing wage for every hour actually worked on any project which requires payment of the prevailing wage. In addition to that amount, for every hour an employee works for an employer on any project which requires payment of the prevailing wage which takes place after the first forty hours worked by the employee for the employer on all projects, he shall be paid the basic hourly rate, as determined by this rule, times one-half.

(C) For the purposes of the calculations required by this rule, the basic hourly rate shall be the basic hourly rate as listed in the applicable prevailing wage rate schedule.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03 , 4115.031
Prior Effective Dates: 2/15/90, 6/23/97

4101:9-4-09 Determination of wage rate schedule.

(A) The director shall determine the prevailing rate of wages to be paid for a legal day's work to employees upon public works as not less than the collective bargaining rates in the applicable locality under collective bargaining agreements or understandings between employers and bona fide organizations of labor in force at the date the contract for the public work, relating to the trade or occupation, was made and collective bargaining agreements or understandings successor thereto. For certain bond projects where a statute so provides, a nonpublic user beneficiary may pay regular bargaining unit employees covered under a collective bargaining agreement the rate under a collective bargaining agreement in existence prior to the date of the commitment instrument undertaking to issue bonds. The wage rate schedule, including all modifications, corrections, escalations, or reductions, shall be the "fixed rate of wages" as used in sections 4115.03 to 4115.16 of the Revised Code.

(B) To determine the prevailing rate of wages, the director shall consider the following information:

(1) Signed collective bargaining agreements or understandings between employers and bona fide organizations of labor, in force at the date of the contract for the public improvement;

(2) Signed collective bargaining agreements or understandings which are successor to those mentioned in paragraph (B)(1) of this rule. For purposes of this rule, successor collective bargaining agreements or understandings include collective bargaining agreements or understandings previously in existence but subsequently brought to the attention of the department, and collective bargaining agreements or understandings which come into existence subsequent to an initial request by a public authority for a fixing of the prevailing wage schedule.

(3) The director will not recognize any collective bargaining agreement, contract, or understanding, or successors thereto, between employers and bona fide labor organizations unless submitted by a labor organization which is a party thereto and which is accompanied by an affidavit signed by said organization's authorized representative certifying that such materials are complete, current, and accurate copies of the relevant portions of original documents, including signature pages and all exhibits and appendices included, as required by section 4115.05 of the Revised Code.

(C) The director shall make a wage rate schedule in accordance with the criteria set forth in division (E) of section 4115.03 and sections 4115.04 and 4115.05 of the Revised Code and division 4101:9 of the Administrative Code.

(D) Ratios of apprentices, helpers, serving laborers, trainees and assistants shall be issued by the director as part of the prevailing wage rate schedule where such classifications exist in the collective bargaining agreement or understanding in force at the date and in the locality of the public improvement. Such ratio shall not be greater than the ratio allowed the contractor or subcontractor in said collective bargaining agreement or understanding.

(E) The wage rate schedules shall be disseminated to the public authorities. Each public authority shall disseminate any changes in the wage rate schedules in their entirety to employers under its jurisdiction within seven working days from receipt and require such employers to make the necessary adjustments in the prevailing wage rates.

(F) No employer shall classify or pay any employee as an apprentice, helper, serving laborer, trainee or assistant unless the director, as part of the prevailing wage rate schedule, designates such classifications as being applicable to the locality.

(G) No employer shall classify or pay any employee as an apprentice, helper, serving laborer, trainee or assistant in excess of the ratio of apprentices, helpers, serving laborers, trainees or assistants to journeymen or skilled workers at the jobsite of the public improvement as indicated in the prevailing wage rate schedule issued by the director for the locality.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 03/15/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03 , 4115.04 , 4115.05 , 4115.08
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-10 Procedure for requesting wage rate schedules.

(A) Every public authority authorized to contract for or construct with its own forces a public improvement, before advertising for bids or undertaking such construction with its own forces, shall have commerce determine the prevailing rate of wages to be paid to laborers, workmen, and mechanics for the class or classes of work called for in the construction of the public improvement. The public authority shall initially request a wage rate schedule under sections 4115.03 to 4115.16 of the Revised Code by submitting the standard forms, supplied by the director, to the following address: "Ohio Department of Commerce, Division of Industrial Compliance, Bureau of Wage and Hour Administration, 6606 Tussing Rd., P.O. Box 4009, Reynoldsburg, OH 43068-9009."

(B) The public authority shall supply the following information to the division on the applicable forms:

(1) A sufficiently detailed description of the work to indicate the type of construction involved, prepared by the designing architect and/or engineer, unless there is no designing architect or engineer in which case the identity of the person providing the description shall be provided.

(2) A sufficiently detailed, itemized breakdown of all expected costs, prepared by the designing architect and/or engineer, unless there is no designing architect or engineer in which case the identity of the person providing the description shall be provided.

(3) The county in which the project is to be constructed.

(4) The estimated time of completion of the project.

(5) The estimated total cost of the project.

(6) The type of funding involved.

(C) The time required to process requests for a wage rate schedule is dependent upon the facts and circumstances of each project. Commerce shall process each request within thirty days.

(D) The schedule of wage rates, as formulated by commerce, shall be attached to and made a part of the specifications for all work to be performed on every public improvement project subject to sections 4115.03 to 4115.16 of the Revised Code.

(E) Where any work is to be performed pursuant to a contract, the schedule of wage rates shall also be printed on the bidding blanks.

(F) True and accurate copies of the bidding blanks shall be filed with commerce by the public authority prior to the award of the general contract.

(G) Any person may be placed on a county-by-county mailing list for changes in the wage rate schedules by either accessing the wage rate schedules via electronic means through the department of commerce, division of labor and worker safety website, or paying an annual fee of fifteen dollars per county and providing a sufficient supply of self-addressed envelopes. Each wage rate schedule will be charged at twenty-five cents a page.

(H) In the event that it is unclear which occupation, class or trade to categorize an employee because the work to be performed on a public improvement by said employee fits the description of more than one occupation, class or trade, the proper category shall be determined by commerce looking to a number of factors including but not limited to, past industry practices in the locality concerning which occupation, class or trade has traditionally done said work.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 03/15/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03 , 4115.04 , 4115.05 , 4115.08
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-12 Duty of public authority to appoint prevailing wage coordinator.

(A) In addition to the duties delineated in section 4115.071 of the Revised Code, duties of the prevailing coordinator shall include:

(1) Reporting any delinquency in the filing of the certified copy of the payroll or related documentation or affidavits to the chief officer of the contracting public authority and the administrator within two weeks of the date such reporting was required; and

(2) Receiving and maintaining from each contractor or subcontractor all forms and/or evidence required pursuant to division 4101:9 of the Administrative Code.

(B) Pursuant to section 4115.07 of the Revised Code no public authority shall make final payment to any contractor or subcontractor unless an affidavit has been filed with the director by the respective contractor or subcontractor. The affidavits shall be sworn to and notarized.

(C) On bond or other similarly financed projects, the issuer of bonds or provider of other similar financing shall arrange for the appointment of a prevailing wage coordinator, except where the identity of said coordinator is provided by law.

(D) In the event that the public authority does not appoint a prevailing wage coordinator, commerce may appoint a coordinator. The public authority shall reimburse commerce for the cost of such prevailing wage coordinator appointed. Contractors and subcontractors are not relieved of any obligation to prepare the certified payrolls, or otherwise comply with these rules by the failure of the appropriate public authority to appoint a prevailing wage coordinator. In the event a prevailing wage coordinator is subsequently appointed, the contractor or subcontractor must submit the information required by Chapter 4101:9-4 of the Administrative Code at that time.

(E) On bond or other similarly financed projects subject to the prevailing wage law where financing is provided before, during or at the expiration of the project, the public authority must ensure that compliance with sections 4115.03 to 4115.16 of the Revised Code and these rules has been achieved before the issuance of bonds or commencement of other similar financing. The public authority shall require submission of the certified payrolls, affidavits and other records, and compliance with the requirements of this rule for that purpose.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 03/15/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.07 , 4115.071
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-13 Duties of contractors.

(A) Every contractor and subcontractor on a public improvement project shall:

(1) Under its contract with any public authority or contractor of a public authority, supply the prevailing wage coordinator with all documentation required pursuant to sections 4115.03 to 4115.16 of the Revised Code and division-level 4101:9 rules of the Administrative Code. Said contractor shall obtain from either commerce or the public authority sufficient copies of all forms required to assure accurate and timely submission of all reports required by sections 4115.03 to 4115.16 of the Revised Code and division-level 4101:9 rules of the Administrative Code.

(2) As soon as it begins performance under its contract with any contracting public authority, supply the prevailing wage coordinator of the contracting public authority with a schedule of the dates during the life of its contract with the public authority on which it is required to pay wages to employees. The schedule of pay dates must not be greater than the time periods required for reporting of payrolls as set forth paragraph (B) of this rule.

(3) Post in a prominent and accessible place on the site of the work a legible statement of the schedule of wage rates specified in the contract for the various occupations of laborers, workmen, and mechanics employed. The notice must remain posted during the life of the contract and must be supplemented in its entirety whenever new wage rate schedules are issued by the department. The schedule must also state the name, address, and phone number of the prevailing wage coordinator.

(4) On the occasion of the first pay date under a contract, issue to each employee not covered by a collective bargaining agreement or understanding between employees and bona fide organizations of labor an individual written notification stating the identity of the prevailing wage coordinator and when the prevailing wage coordinator is appointed. In the event that the contractor is unable to identify the prevailing wage coordinator he shall contact the Ohio department of commerce.

(5) Failure to provide any information, reports, documents or other evidence required by this rule or rules 4101:9-4-06 and 4101:9-4-07 of the Administrative Code is a violation of sections 4115.05 and 4115.071 of the Revised Code.

(B) For the purposes of paragraph (A)(2) of this rule, the initial and all supplemental payroll reports shall contain the information required in section 4115.071 of the Revised Code and an accurate description of the nature of the deductions withheld from each employee's wages.

(C) Falsification of any information addressed within this rule is a violation of section 4115.071 of the Revised Code and a criminal violation pursuant to section 2921.13 of the Revised Code.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.05 , 4115.07 , 4115.071
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-14 Obligation of contracts.

(A) No contractor or subcontractor under a contract for a public improvement or public work shall sublet any of the work covered by such contract unless specifically authorized to do so by the contract. If a contractor or subcontractor sublets a contract, it shall notify the public authority at the time the contract is sublet. If a contractor or subcontractor sublets a contract, it shall require the contracting party to pay not less than the prevailing rate of wages, to comply with the reporting and recordkeeping requirements of sections 4115.03 to 4115.16 of the Revised Code and division-level 4101:9 rules of the Administrative Code and to submit the affidavits required by section 4115.07 of the Revised Code. Such contracting party shall not further sublet the contract without requiring its subcontractors to meet the same requirements. Each contract for a public improvement or public work shall contain a provision that all employees shall be paid not less than the applicable prevailing wage.

(B) Every contract for a public improvement project shall contain provisions requiring the successful bidder to be responsible for the payment of the prevailing wages to each individual who worked on the project.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.05 , 4115.06 , 4115.071
Prior Effective Dates: 2/15/90, 6/23/97

4101:9-4-15 Employees with multiple job functions.

(A) As used in sections 4115.03 to 4115.16 of the Revised Code and division-level 4101:9 rules of the Administrative Code, the occupation called for by the contract is the functional job to be performed, such as "carpenter," "laborer," or "electrician."

(B) Laborers, workmen, or mechanics performing work in more than one occupation shall be compensated at least at the rate specified for each occupation for the time actually worked therein.

(C) Commerce may use the U.S. department of labor's "Dictionary of Occupational Titles" as a guide in determining occupations.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.04 , 4115.05 , 4115.07 , 4115.08
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-16 Apprentices, serving laborers, assistants, helpers, and trainees.

(A) Apprentices, serving laborers, assistants, helpers, and trainees, shall not be categorized as common labor.

(B) Apprentices may be categorized in their particular trades, and paid less than the prevailing rates of wages for qualified laborers, workmen, or mechanics in such particular trades, only if there is in force at the time work is being performed under a contract for the public improvement project, in the locality of such project, a collective bargaining agreement or understanding between employers and bona fide organizations of labor which authorizes the employment of apprentices.

(C) Where the foregoing condition is not fulfilled, except as provided in paragraph (K) of this rule and in accordance with section 4115.05 of the Revised Code, with respect to any individual apprentice or group of apprentices, such apprentice or group of apprentices shall be categorized according to the type of work performed and shall be paid the full prevailing rates of wages applicable to qualified laborers, workmen, or mechanics who performed that type of work.

(D) Serving laborers, assistants, and helpers may be categorized as such in their particular trades, and paid less than the prevailing rates of wages for qualified laborers, workmen, or mechanics in such particular trades, only if there is in force at the time work is being performed under a contract for the public improvement project, in the locality of such project, a collective bargaining agreement or understanding between employers and bona fide organizations of labor which authorizes the employment of serving laborers, assistants, and helpers.

(E) Except as provided in paragraph (K) of this rule and in accordance with section 4115.05 of the Revised Code, where the forgoing condition applicable to serving laborers, assistants, and helpers is not fulfilled, with respect to individual serving laborers, assistants, and helpers, or groups of serving laborers, assistants, and helpers, such individuals or groups shall be classified according to the work performed, and shall be paid the full prevailing rate of wages as stated in the wage rate schedule issued by commerce, applicable to qualified laborers, workmen, or mechanics who perform that type of work.

(F) Trainees may be categorized in their particular trades, and paid less than the prevailing rate of wages for qualified laborers, workmen, or mechanics in such particular trade, only if there is in force at the time work is being performed under a contract for the public improvement project, in the locality of such project, a collective bargaining agreement or understanding between employees and bona fide organizations of labor which authorizes the employment of trainees.

(G) Except as provided in paragraph (K) of this rule and in accordance with section 4115.05 of the Revised Code, where the foregoing condition is not fulfilled with respect to an individual trainee or group of trainees, such trainee or group of trainees shall be categorized according to the type of work performed and shall be paid the full prevailing rate of wages applicable to qualified laborers, workmen, or mechanics who perform that type of work.

(H) Except as provided in paragraph (K) of this rule and in accordance with section 4115.05 of the Revised Code, ratios of apprentices to skilled workers for the jobsite of the public improvement may not exceed the allowable ratio contained in the applicable prevailing wage schedule. The allowable ratio of apprentices to skilled workers set forth in the prevailing wage schedule shall be the ratio of apprentices to skilled workers in the collective bargaining agreement applicable to the locality of the project. If a contractor or subcontractor has employed apprentices in excess of the allowable ratio contained in the prevailing wage schedule, all such apprentices are considered to have been improperly classified and will be entitled to an equitable share of the total of the wages which would have been paid had such employees been properly classified. For purposes of ratios, a working foreman, supervisor, or owner may be counted as a laborer, workman, or mechanic; however, if an employer has miscategorized any employee, including a working foreman, supervisor or owner, or utilized an excessive number of apprentices, such employees cannot be counted as laborers, workmen, or mechanics for ratio purposes.

(I) Except as provided in paragraph (K) of this rule and in accordance with section 4115.05 of the Revised Code, ratios of serving laborers, assistants, and helpers to skilled workers at the jobsite of the public improvement may not exceed the allowable ratio contained in the prevailing wage schedule. The allowable ratio of serving laborers, assistants, and helpers to skilled workers set forth in the prevailing wage schedule shall be the ratio of serving laborers, assistants, and helpers to skilled workers in the collective bargaining agreement applicable to the locality of the project. If a contractor or subcontractor has employed serving laborers, assistants, or helpers in excess of the allowable ratio contained in the prevailing wage schedule, all such serving laborers, assistants, and helpers are considered to have been improperly classified and will be entitled to an equitable share of the total of wages due if such employees had been properly classified. For purposes of ratios, a working foreman, supervisor, or owner may be counted as a laborer, workman, or mechanic; however, if an employer has miscategorized any employee, including a working foreman, supervisor or owner, or utilized an excessive number of serving laborers, assistants, or helpers, such employees cannot be counted as laborers, workmen, or mechanics for ratio purposes.

(J) Except as provided in paragraph (K) of this rule and in accordance with section 4115.05 of the Revised Code, ratios of trainees to skilled workers at the jobsite of the public improvement may not exceed the allowable ratio contained in the prevailing wage schedule. The allowable ratio of trainees to skilled workers set forth in the prevailing wage schedule shall be the ratio of trainees to skilled workers in the collective bargaining agreement applicable to the locality of the project. If a contractor or subcontractor has employed trainees in excess of the allowable ratio contained in the prevailing wage schedule, all such trainees are considered to have been improperly classified and will be entitled to an equitable share of the total of wages due if such employees had been properly classified. For purposes of ratios, a working foreman, supervisor, or owner may be counted as a laborer, workman, or mechanic; however, if an employer has miscategorized any employee, including a working foreman, supervisor or owner, or utilized an excessive number of trainees, such employees cannot be counted as laborers, workmen, or mechanics for ratio purposes.

(K) Ratios of apprentices to skilled workers may not exceed the permissible ratio at the jobsite of the public improvement project as contained in the applicable prevailing wage schedule within a valid collective bargaining agreement or understanding between employers and bona fide organizations of labor. However, it is not a violation of this rule or of section 4115.05 of the Revised Code when:

(1) The number of apprentices working on a public improvement project exceeds the permissible ratio by two or fewer apprentices; and

(2) This occurs for a period of two days or less in any thirty day period.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 03/15/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.05
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-17 Scope of project.

(A) The construction of a public improvement shall be "fairly estimated to be more than the threshold," based on the prevailing wage rates in the locality at the time the project is to be let out for bidding, whether done at one time or in phases.

(B) Whenever a contract for the construction of a public improvement project exceeding the threshold in value is awarded to a contractor by a public authority, and the contractor begins performance but is unable to complete the project, and it therefore becomes necessary for the public authority to contract with a new contractor to complete the project, any new contractor shall be required to pay the prevailing rates of wages regardless of whether the contract awarded to the succeeding contractor for completing the project is worth less than the threshold.

(C) A public authority may not subdivide a project into component parts or projects of less than the threshold unless such projects under the threshold are conceptually separate and unrelated to each other, or encompass independent and unrelated needs of the public authority. Phases may be considered as separate projects only where the public authority has proposed construction of the project in separate and distinct phases, the proposal to construct in phases is based upon lack of adequate funding necessary to award the contract as a whole, and a period of six months or longer of construction inactivity will occur between each phase. A single project which exceeds the applicable threshold as set forth in this rule shall constitute construction of a public improvement regardless of how many separate contracts are included within the project.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 03/15/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03 , 4115.10
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-18 Construction by public authority with its own employees.

A public authority that constructs a public improvement project with its own employees shall pay not less than the prevailing rate of wages unless:

(A) An employee is a full-time employee who has completed his probationary period in the classified service of the public authority and is performing work consistent with the classified nature of his employment.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.03
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-19 Rescinded.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.032
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-20 Payment.

(A) An employer shall not pay or permit any worker to accept wages less than the prevailing rate of wages as determined by the director and evidenced by the prevailing wage rate schedule.

(B) An employer shall provide evidence of proper payment of wages when requested by the director.

(C) An employer shall not, at any time during the project, pay less than the prevailing rate of wages for each day worked, regardless of the rate of pay being paid at any other time.

(D) An employer shall not pay less than the prevailing rate of wages by docking pay, docking time, or deducting pay for any purpose unless provided for in sections 4115.03 to 4115.16 of the Revised Code or division-level 4101:9 rules of the Administrative Code.

(E) A person shall not, either for himself or any other person, request, demand, or receive, either before or after an employee is engaged, that such employee pay back, return, donate, contribute, or give any part or all of said employee's wages, salary, or thing of value, to any person, upon the statement, representation, or understanding that failure to comply with such request or demand will prevent such employee from procuring or retaining employment. This paragraph does not apply to any agent or representative of a duly constituted labor organization acting in the collection of dues or assessments of such organization as permitted by section 4115.10 of the Revised Code and rule 4101:9-4-07 of the Administrative Code.

(F) No agreement by an employee to waive his right to prevailing wages is valid or will be recognized by the director.

(G) A person shall not keep any record or duplicate of a record with the intent to avoid payment of the prevailing rate of wages or with the intent to mislead any investigation by any governmental authority authorized to enforce sections 4115.03 to 4115.16 of the Revised Code.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.031 , 4115.05 , 4115.06 , 4115.10
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-21 Maintenance, preservation, and inspection of payroll records.

(A) Each contractor and subcontractor performing work on a public improvement shall keep, maintain for inspection, and preserve accurate payroll records in accordance with these rules. If an employer performs both prevailing wage work and non-prevailing wage work, the records must be capable of being segregated. The employer may segregate such records on an hourly, daily, weekly, work shift, or project basis.

(B) The payroll records required to be kept by this rule shall contain all of the information contained in division (C) of section 4115.071 of the Revised Code and a chronological listing of all hours worked on all projects by each employee employed on the public improvement throughout the term of the public improvement.

(C) Any records maintained by contractors and subcontractors concerning wages paid each employee or the number of hours worked by each employee on a public improvement shall be made available for inspection by any authorized representative of the contracting public authority, including the project prevailing wage coordinator and commerce, during normal working hours of business days.

(D) Such payroll records shall be preserved by the affected contractors and subcontractors for a period of at least one year following the completion of the public improvement for which the records were made.

(E) For the purpose of this rule, the word "preserved" means not destroyed and kept within the state of Ohio for one full year following the completion of the public improvement. The one-year time period is tolled upon any request by commerce to inspect such records or proceed with an investigation or litigation.

(F) The contractor or subcontractor shall, upon request, make available to the public authority, prevailing wage coordinator, commerce, or any other person with right of inspection, the address where the records are kept and the name and address of the person responsible for keeping and maintaining them. The contractor or subcontractor shall notify the above parties of any change and the records shall not be relocated without notification to the parties listed above.

(G) Any right of inspection of records required by this rule is in addition to any other rights commerce may have to inspect records.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 03/15/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.07 , 4115.071
Prior Effective Dates: 2/15/90; 6/23/97; 6/3/04

4101:9-4-23 Investigation.

(A) A complaint may be filed with the director by any employee upon a public improvement or by any interested party. The complaints shall be in writing on a form furnished by the director and delivered to the "Ohio Department of Commerce, Division of Industrial Compliance, Bureau of Wage and Hour Administration, 6606 Tussing Rd., P.O. Box 4009, Reynoldsburg, OH 43068-9009."

(B) The complaint of an employee shall include sufficient evidence to demonstrate that the employee was paid less than the prevailing wage in violation of Chapter 4115. of the Revised Code.

(C) The complaint of an interested party shall include all of the following:

(1) the names and business addresses of any contractors or employers against whom the complaint is made;

(2) specific allegations, along with evidence supporting each allegation, describing each specific act or failure by the named contractors or employers that is claimed to be a violation of Chapter 4115. of the Revised Code. If an allegation is made on the basis of information and belief, the complaint shall state with particularity all facts on which that belief is formed; and

(3) the names and contact information of persons having personal knowledge of the facts alleged.

The director will not accept any complaint that fails to allege a specific violation of Chapter 4115. of the Revised Code, or that is not supported by sufficient evidence.

(D) Upon receipt of a complaint or upon the director's own motion, the director shall initiate an investigation of alleged violations of sections 4115.03 to 4115.16 of the Revised Code. Such investigation may include an audit of the records of any employer on the affected project. Audits shall be done at reasonable times during business hours. Prior notice is not required though usually will be given. No employer shall refuse an authorized agent of commerce admission to its premises for purposes of inspection. Inspection may cover any duplicate books, cancelled checks, and any other records pertaining to the affected project to the extent necessary to determined whether prevailing rates of wages have been paid on public improvement projects. The final decision regarding any audit will be made by the central staff of commerce and not by field auditors.

Replaces: former 4101:9-4-23

Effective: 04/30/2012
R.C. 119.032 review dates: 04/02/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.10 , 4115.13 , 4115.16
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-24 Hearings.

(A) Except as provided in division (B) of section 4115.10 of the Revised Code commerce, at the sole discretion of the director, may hold hearings in connection with any investigation. Any hearings held pursuant to section 4115.131 of the Revised Code shall be conducted in the manner set forth in section 119.12 of the Revised Code.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.10 , 4115.13 , 4115.131 , 4115.132 , 4115.15 , 4115.16
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-25 Procedure for hearings.

In the event hearings are held:

(A) The hearing shall be held in the county in which the violation is alleged to have occurred or in Franklin county or in the county which is the situs of the project.

(B) Notice shall be given to the employer, the public authority, and all interested parties.

(C) The director or the director's designee shall conduct the hearing, and shall issue a decision.

(D) The director shall send a copy to each interested party.

(E) To the extent no procedure is provided and to the extent not inconsistent, the procedure of chapter 119. of the revised code shall be used.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.13
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-26 Subpoenas.

(A) In any investigation, the director or director's designee, may administer oaths, take and cause to be taken depositions of witnesses, issue subpoenas, and compel the attendance of witnesses and the production of documents and testimony. Subpoenas, including subpoenas duces tecum, may be issued for sworn statements, depositions and hearings. In addition, subpoenas may be issued in connection with a general investigatory request for production of documents. Subpoenas shall be issued according to the requirements of this rule.

(B) Subpoenas, including subpoenas duces tecum, which are issued for an administrative hearing shall be issued upon request of any party to said hearing or upon commerce's own initiative. Subpoenas, including subpoenas duces tecum, issued for such a hearing shall be issued by commerce in the manner required by section 119.09 of the Revised Code.

(C) Subpoenas, including subpoenas duces tecum, which are issued for a deposition sought in connection with an administrative hearing shall be issued upon request of any party to said hearing or upon the department's own initiative. Said subpoenas shall be issued by the department in that manner required by section 119.09 of the Revised Code.

(D) Subpoenas for a general investigatory request for production of documents may be issued by the director or the director's designee upon their own initiative. The director or the director's designee shall mail the subpoenas by certified mail, return receipt requested, not less than ten calendar days in advance of any date for compliance specified in such subpoena.

(E) Upon motion and for good cause shown, any subpoena issued pursuant to this rule may be quashed by the director. Motions to quash shall be in writing and shall be submitted prior to the sworn statement, deposition, hearing, or date of compliance specified in the general investigatory request for production of documents.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.132
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04

4101:9-4-27 Satisfaction of claim.

(A) To satisfy a claim, the employer shall submit payment to commerce. Payments to be made to commerce in satisfaction of any claim shall be made out to "the Ohio department of commerce in trust for" the named employee. The employer should withhold all applicable federal, state and local taxes and any other deductions required by law. Proof of such deduction shall be sent with each check. Installment payments shall not be made without the approval of the director and must be accompanied by sufficient guarantees for full payment. Each installment must provide separate checks in pro rata amounts for each employee owed.

(B) If an employer's underpayment to an employee is less than one thousand dollars as determined by the director, then such employer is not subject to any further proceedings under sections 4115.03 to 4115.16 of the Revised Code so long as such employer makes full restitution to the affected employee for all wages determined to be owed. Such restitution must take place within a reasonable period of time following publication of the determination made by the director.

Effective: 04/30/2012
R.C. 119.032 review dates: 12/29/2011 and 03/15/2017
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.10
Prior Effective Dates: 2/15/90, 6/23/97, 6/3/04

4101:9-4-28 Stop work orders.

Where an investigation by commerce discloses a failure to pay the prevailing rate of wages on an ongoing project, commerce may propose to issue an order halting work. Notice shall be given to the contractor or subcontractor and the sureties thereof. The notice may be issued by commerce stating therein the date for the hearing required by these rules and according to the procedure thereof. The notice may also be issued by the contracting public authority with a request to commerce to set such hearing. After the hearing as provided herein, commerce may order work halted under that part of the contract for which less than the prevailing wage has been paid. The order shall remain in force and effect until the defaulting contractor has filed a bond in the amount of such penal sum as commerce shall set conditioned upon payment of the prevailing rate of wages.

R.C. 119.032 review dates: 12/28/2011 and 12/28/2016
Promulgated Under: 119.03
Statutory Authority: 4115.12
Rule Amplifies: 4115.10 , 4115.13 , 4115.131 , 4115.15
Prior Effective Dates: 2-15-90; 6-23-97; 6-3-04