Ohio's Third District Court of Appeals recently issued two nearly identical decisions that discuss the role of the Unemployment Compensation Review Commission in determining whether an individual is an independent contractor and not covered by unemployment, or an employee and covered by unemployment. These cases were Cline v. Defiance Therapeutic Massage & Wellness Ctr., 2018-Ohio-1891 (3d Dist) and Knapp v. Defiance Therapeutic Massage & Wellness Ctr., 2018-Ohio-1890 (3d Dist.). To summarize:

The employer carries the burden of providing that the independent contractor exemption applies. Revised Code § 4141.01(B)(1) defines "employment: to mean, "[S]ervice performed by an individual for remuneration under any contract of hire, written or oral, express or implied . . . , unless it is shown to the satisfaction of the director that such individual has been and will continue to be free from direction or control over the performance of such service, both under a contract of service and in fact."

An employer-employee relationship exists when, “(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.” OAC 4141-3-05. Ohio Revised Code Section 4141.01(B)(2)(k) establishes special criteria for determining whether direction or control are present for construction industry workers.

Ohio Adm.Code 4141-3-05(B) provides twenty factors to be used as an aid in making the employment determination. The factors are “are designed only as guides” and “must be considered in totality.” No single factor controls. They include:

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;
The person for whom services are being performed requires particular training for the worker performing services;
The services provided are part of the regular business of the person for whom services are being performed;
The person for whom services are being performed requires that services be provided by a particular worker;
The person for whom services are being performed hires, supervises or pays the wages of the worker performing services;
A continuing relationship exists between the person for whom services are being performed and the worker performing services [**12] that contemplates continuing or recurring work, even if not full time;
The person for whom services are being performed requires set hours during which services are to be performed;
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;
The person for whom services are being performed requires that work be performed on its premises;
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;
The person for whom services are being performed requires the worker to make oral or written progress reports;
The person for whom services are being performed pays the worker on a regular basis such as hourly, weekly or monthly;
The person for whom services are being performed pays expenses for the worker performing services;
The person for whom services are being performed furnishes tools, instrumentalities, and other materials for use by the worker in performing services;
There is a lack of investment by the worker in the facilities used to perform services;
There is a lack of profit or loss to the worker performing services as a result of the performance of such services;
The worker performing services is not performing services for a number of persons at the same time;
The worker performing services does not make such services available to the general public;
The person for whom services are being performed has a right to discharge the worker performing services;
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.