Okla. Admin. Code § 380:30-1-2

Current through Vol. 39, No. 22, August 1, 2022
Section 380:30-1-2 - Definitions

The following words and terms, when used in this Chapter, shall have the following meaning, unless the context clearly indicates otherwise:

"Commissioner" , as used in these Rules, means the Commissioner of Labor or the Commissioner's designee.

"Bona fide disagreement" means, as used in 40 O.S. 165.4, a dispute in which the employer holds an honest and sincere belief that the wages claimed are not owed so long as that belief is supported objectively by the facts and circumstances and the employer took reasonable steps to ascertain the facts and circumstances.

"Claimant" means the same as "employee" or someone claiming wages due on behalf of a deceased employee.

"Department" and "Agency" mean the Department of Labor and/or the Wage & Hour Division of the Department of Labor.

"Earned and due" means that wages derived from labor or professional services are presently and immediately matured and enforceable and the time for payment has arrived. The term "earned and due" necessitates that all conditions precedent to payment have happened, have been met or have been performed. If the employment agreement is based either in whole or in part on payment of commissions, the terms of the agreement will control the time when commissions are earned and due. The Department of Labor has jurisdiction over only those claims for wages that are earned and due at the time the wage claim is filed. Any claims for "future wages" will be summarily rejected by the compliance officer or dismissed by the administrative hearing officer.

"Electronic means" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape so as to order, instruct or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, direct deposits or withdrawals of funds, electronic debit cards, and transfers initiated by telephone.

"Employee" means any person permitted to work by an employer. Employee shall not include: Business owners, independent contractors, volunteers, co-partners, or joint venturers. For purposes of these rules, those persons who are permissibly exempt from the Workers' Compensation statute, as defined in 85 O.S. § 311, shall be considered "business owners" and not employees. A person who, pursuant to the terms of an employment agreement, has as their only form of compensation a potential interest in the proceeds or profits of a business (commonly called "working for sweat equity"), shall be considered a business owner and not an employee.

"Employer" means every individual, partnership, firm association, corporation, the legal representative of a deceased individual, or the receiver, trustee or successor of an individual, firm, partnership, association or corporation, employing any person in this state. "Employer" shall also include county, city, and municipal corporations, and all other local government entities. "Employer" shall not include the State of Oklahoma or any entity or branch of the United States government operating in this State.

"Established policy" means a statement, written or oral, or a course of conduct from or by the employer, of general applicability to all similarly situated employees regarding the business affairs of the employer. An "established policy" includes a written employment contract, a written employee manual or employment policy, or a written promise by the employer. An

"Established policy" also includes a verbal or implied promise by the employer that is supported by evidence of a past course of conduct consistent with the promise.

"Independent contractor" means one who renders service in the course of independent employment or occupation according to his own methods and is subject to his employer's control only as to the end product or final result of his work and not as to the means whereby it is to be accomplished. The following factors are considered significant in determining the employment relationship and whether a person is an employee or an independent contractor:

(A) the nature of the contract between the parties, whether written or oral;

(B) the degree of control which, by the agreement, the employer may exercise on the details of the work or the independence enjoyed by the contractor or agent;

(C) whether or not the one employed is engaged in a distinct occupation or business for others;

(D) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(E) the skill required in the particular occupation;

(F) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;

(G) the length of time for which the person is employed;

(H) the method of payment, whether by the time or by the job;

(I) whether or not the work is a part of the regular business of the employer;

(J) whether or not the parties believe they are creating the relationship of master and servant; and

(K) the right of either to terminate the relationship without liability. No one factor is controlling, and the relationship must be based on the set of facts peculiar to the case.

"Offsets" means deductions (as defined in this Subchapter); the value of any of the employer's money or property retained by the employee after termination; the amount of any prior overpayment of wages to the employee; and the amount of any prior valid final judgment obtained in a court of record or through an administrative agency, by the employer against the employee.

"Respondent" means the same as "Employer."

Okla. Admin. Code § 380:30-1-2

Amended at 13 Ok Reg 3413, eff 8-12-96; Amended at 14 Ok Reg 2968, eff 7-13-97; Amended at 15 Ok Reg 2711, eff 6-25-98; Amended at 18 Ok Reg 3514, eff 9-14-01; Amended at 21 Ok Reg 2810, eff 7-11-04; Amended at 24 Ok Reg 2229, eff 6-25-07; Amended at 29 Ok Reg 1296, eff 7-1-12