Chapter 4141-3 Employment

4141-3-05 Definition of employment.

(A) Except as specifically provided in division (B)(2)(k) of section 4141.01 and section 4141.39 of the Revised Code, a worker is in employment when an "employer-employee" relationship exists between the worker and the person for whom the individual performs services and the director determines that:

(1) The person for whom services are performed has the right to direct or control the performance of such services; and

(2) Remuneration is received by the worker for services performed.

(B) As an aid to determining whether there is sufficient direction or control present, the common law rules identify twenty factors or elements. When present, each of these factors serves to indicate some degree of direction or control. The degree of importance of each factor varies depending on the occupation and the factual context in which the services are performed. The twenty factors set forth belowin paragraphs (B)(1) to (B)(20) of this rule are designed only as guides for determining whether sufficient direction or control exists and must be considered in totality:

(1) The worker is required to comply with the instructions of the person for whom services are being performed, regarding when, where, and how the worker is to perform the services;

(2) The person for whom services are being performed requires particular training for the worker performing services;

(3) The services provided are part of the regular business of the person for whom services are being performed;

(4) The person for whom services are being performed requires that services be provided by a particular worker;

(5) The person for whom services are being performed hires, supervises or pays the wages of the worker performing services;

(6) A continuing relationship exists between the person for whom services are being performed and the worker performing services that contemplates continuing or recurring work, even if not full time;

(7) The person for whom services are being performed requires set hours during which services are to be performed;

(8) The person for whom services are being performed requires the worker to devote himself or herself full time to the business of the person for whom services are being performed;

(9) The person for whom services are being performed requires that work be performed on its premises;

(10) The person for whom services are being performed requires that the worker follow the order of work set by the person for whom services are being performed;

(11) The person for whom services are being performed requires the worker to make oral or written progress reports;

(12) The person for whom services are being performed pays the worker on a regular basis such as hourly, weekly or monthly;

(13) The person for whom services are being performed pays expenses for the worker performing services;

(14) The person for whom services are being performed furnishes tools, instrumentalities, and other materials for use by the worker in performing services;

(15) There is a lack of investment by the worker in the facilities used to perform services;

(16) There is a lack of profit or loss to the worker performing services as a result of the performance of such services;

(17) The worker performing services is not performing services for a number of persons at the same time;

(18) The worker performing services does not make such services available to the general public;

(19) The person for whom services are being performed has a right to discharge the worker performing services;

(20) The worker performing services has the right to end the relationship with the person for whom services are being performed without incurring liability pursuant to an employment contract or agreement. The director shall make a determination, based on the factors listed in this rule, as to whether or not an employment relationship exists for purposes of Chapter 4141. of the Revised Code.

R.C. 119.032 review dates: 05/20/2013 and 05/01/2018
Promulgated Under: 4141.14
Statutory Authority: 4141.13
Rule Amplifies: 4141.01(B)
Prior Effective Dates: 12/30/91, 1/15/01

4141-3-06 Temporary services agencies.

(A) For the purposes of Chapter 4141. of the Revised Code, "temporary services agency" means any entity that, as part of its trade or business, provides individuals to unrelated third party clients to perform services on a temporary basis and derives revenue or otherwise benefits from providing such individuals.

(B) "Unrelated third party clients" are entities unrelated to, or not sharing common ownership, management or control with, the temporary services agency, and which are provided individuals by the temporary services agency to perform services on a temporary basis.

(C) Individuals provided by temporary service agencies to unrelated third parties to perform services under agreement between such unrelated third parties and temporary services agencies are in employment with the temporary service agencies until separated from employment with such temporary service agencies.

Effective: 07/22/2013
R.C. 119.032 review dates: 05/07/2013 and 07/01/2018
Promulgated Under: 4141.14
Statutory Authority: 4141.13(A)
Rule Amplifies: 4141.01 , 4141.28 , 4141.29
Prior Effective Dates: 12/30/91

4141-3-07 Professional employer organizations.

(A) This rule shall be effective beginning January 1, 2014.

(B) For the purposes of division (K) of section 4141.24 of the Revised Code and for purposes of this rule, the following definitions shall apply:

(1) "Client employer" means any employer as defined by section 4141.01 of the Revised Code that enters into a professional employer organization agreement and is assigned shared employees by the professional employer organization.

(2) "Coemploy" means the sharing of the responsibilities and liabilities of being an employer, including liabilities incurred under Chapter 4141. of the Revised Code.

(3) "Professional employer organization" means a sole proprietor, partnership, association, limited liability company, or corporation that enters into an agreement with one or more client employers for the purpose of coemploying all or part of the client employer's workforce at the client employer's work site. This definition shall also include any entity that is otherwise known as an employee leasing company.

(4) "Professional employer organization agreement" means a written contract to coemploy employees between a professional employer organization and a client employer.

(5) "Professional employer organization reporting entity" means two or more professional employer organizations that are majority owned or commonly controlled by the same entity, parent, or controlling person and that satisfy reporting entity control rules as defined by the financial accounting standards board and generally accepted accounting principles.

(6) "Shared employee" means an individual intended to be assigned to a client employer on a permanent basis, not as a temporary supplement to the client employer's workforce, who is coemployed by a professional employer organization or professional employer organization reporting entity and a client employer pursuant to a professional employer organization agreement.

(7) "Subaccount" means the client employer account as that term is applied in division (A)(1) of section 4141.24 of the Revised Code.

(C) For the purposes of section 4141.01 and division (K) of section 4141.24 of the Revised Code, shared employees of the client employer are considered employees of the professional employer organization or the professional employer organization reporting entity pursuant to a professional employer organization agreement.

(D) The contribution rate previously established for the client employer shall continue to apply for the calendar year in which the agreement is effective and shall be determined annually based solely on the experience of the individual client employer's account.

(E) All employee wage data and quarterly contributions required by sections 4141.20 and 4141.23 of the Revised Code shall be reported and paid using the unemployment compensation employer account number and contribution rate established for the client employer, also known as the subaccount.

(1) A professional employer organization or professional employer organization reporting entity may transmit quarterly employer wage data and payments required under sections 4141.20 and 4141.23 of the Revised Code in a single electronic file.

(2) Pursuant to division (A) of section 4125.03 and division (K)(1) of section 4141.24 of the Revised Code, a professional employer organization or professional employer organization reporting entity shall ensure that quarterly employee wage data and contributions or payments in lieu of contributions are filed and paid as required by Chapter 4141. of the Revised Code.

(F) For the purposes of Chapter 4141. of the Revised Code, an individual whose services performed for the client employer are excluded from employment pursuant to division (B)(3) or (B)(4) of section 4141.01 of the Revised Code cannot be considered a shared employee.

(G) Upon termination of the professional employer organization agreement, the professional employer organization or the professional employer organization reporting entity shall inform the department of the end of the agreement.

Effective: 01/01/2014
R.C. 119.032 review dates: 01/01/2019
Promulgated Under: 4141.14
Statutory Authority: 4141.13 , 4141.14 , 4141.24(K)
Rule Amplifies: 4141.24(K)