SB 47, Ohio’s New Overtime Rules Sanction Wage Theft Starting July 6, 2022
On April 6, 2022, Ohio Governor Mike DeWine signed Senate Bill 47 into law which changes the State’s overtime rules. The Ohio Legislature failed miserably in its attempt to incorporate the federal Portal-to-Portal Act and Section 216(b) of the Fair Labor Standards Act (“FLSA”) into the Ohio Revised Code. Ohio Legislators bowed to special interests by incorporating only the employer-friendly portions of the FLSA into O.R.C. §§ 4111.031 and 4111.10(C). They attempt to strip and muddle long-existing overtime protections granted to hourly workers by the United States Congress.
How Does This Affect Employees and Employers?
While the new overtime rules will hurt hourly employees, it will be a potential minefield for employers who comply with the law. The Portal-to-Portal Act, 29 U.S.C. § 254 of the FLSA, provides that employers are not required to pay for the time employees spend on activities occurring before or after they perform the principal activities for which they are employed. The new Ohio overtime law at Sec. 4111.031(A)(1) (a) and (b) incorporated Sec. 254(a)(1) and (2):
Sec. 4111.031(A)(1) … an employer is not required to pay the overtime wage rate under section 4111.03 of the Revised Code to an employee for any time that the employee spends performing any of the following activities: (a) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities that the employee is employed to perform; (b) Activities that are preliminary to or postliminary to the principal activity or activities.
Sec. 4111.031(A)(1)(a) and (b) mirror the Portal-to-Portal Act. However, the Ohio Legislature went one step further by adding Sec. 4111.031(A)(1)(c), which states that employers do not have to pay overtime for activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled working hours. 4111.031(A)(1)(c) is not in the Portal-to-Portal Act because subsection (c) alters the definition of compensable work for an activity not when the activity was performed. Thus, if the activity meets the definition of work, meaning that the activity is necessary and indispensable to an employee’s principal activity, it is not eligible for overtime pay if it lasts for undefined time limits described as “insubstantial or insignificant periods of time.” Who gets to determine how much of an hourly worker’s time at home is “insubstantial or insignificant” such that her work should not be part of the overtime calculation?
The new Ohio overtime law muddles what employers are to do with such time spent by their employees. The Portal-to-Portal Act renders any activity within the meaning of Sec. 254(a)(1) and (2) not compensable. This means that the employer does not have to pay any wages for this time. The new Sec. 4111.031(A)(1) states that the employer is “not required to pay the overtime wage rate” for any activity within the meaning of Sec. 4111.031(A)(1)(a)-(c). This sentence can be read two ways; (1) that the Ohio Legislature granted Ohio’s hourly workers at least Ohio minimum wages for all activity that would otherwise be non-compensable under the federal Portal-to-Portal Act; or (2) that to the extent that activity within the meaning of Sec. 4111.031(A)(1)(a)-(c) is compensable under the FLSA, Ohio hourly workers only get at least the Ohio minimum wage. The former is a granting of wage protections in addition to the FLSA which is permitted under Article 10 of the U.S. Constitution. The latter would restrict wage protections granted by the FLSA and violates the federal supremacy laws, rendering it unconstitutional.
Why Does This Matter?
Why does it matter? Because the real question when the courts decide if the activity a worker performs is compensable is, was the activity “necessary or indispensable” to their principal activity? If the activity fits that definition, then where it occurs and whether the employer thinks an employee spent an acceptable amount of their own time doing it, does not matter. The Portal-to-Portal Act was enacted to prevent employers from having to pay for regular commute time or tasks after work that has no bearing on the employees’ job duties. SB47 was enacted to help employers not pay for otherwise compensable work activities that employees do on their personal time. That is wage theft.
Sec. 4111.10(C) now requires that employees who are interested in joining a wage lawsuit against their employer must file their Notice of Consent to join the case. This is a significant shift in Ohio employee wage protections. Prior to the effective date of SB47, Ohio permitted workers to bring overtime and minimum wage claims as a class action under Rule 23. These are called “opt-out” class actions because one worker can file a claim on behalf of all current and former workers and toll their statutes of limitations (the time the wage statutes give workers to make a claim). The prior Ohio overtime protections only provided two years of recovery and no liquidated damages. However, the tradeoff was that once one victim of wage theft filed a claim, they could toll the statute of limitations for all current and former employees. This means that you did not have to file your own claim or even know that you were a victim of wage theft, and your rights were protected.
SB47 removes the “opt-out” class actionability for Ohio overtime claims and requires every employee to file their own case or a Notice of Consent in a filed case to toll their statute of limitations. This type of action is called an “opt-in” collective action. This means that until a worker who was a victim of wage theft learns of the violations and how to file a claim, their time to make such a claim continues to erode.
Proponents of SB47 claim that Sec. 4111.10(C) “mirrors” the federal “opt-in” process found at 29 U.S.C. § 216(b). This is incorrect. While Sec. 216(b) requires a wage theft victim to “opt-in” to an existing case or file their own case to toll the statute of limitations; it grants wage theft victims the ability to recover three years of damages and liquidated damages if the wage theft was willful. Sec. 4111.10(C) did not grant Ohio wage theft victims the ability to recover three years of damages and liquidated damages if the wage theft was willful. The Ohio Legislature left those worker-friendly protections out of Sec. 4111.10(C). In doing so, Ohio now grants Ohio hourly workers less protection for the theft of overtime wages than does the FLSA. This renders Sec. 4111.10(C) unconstitutional.
Why does it matter? This matters because many workers do not opt in. There are a variety of reasons for this. Some workers fear retaliation, even though it is illegal. Some think the collective action notice is part of a scam. Many notices never make it to workers in the first place because they moved. The original version of the law took care of all of these concerns at once.
SB47 is a sloppy, ill-considered piece of legislation that was designed to strip hourly Ohio employees’ wage protection from theft of their overtime wages. While SB47—or Sec. 4111.031 and Sec. 4111.10(C) after enactment—will not survive a court challenge, many Ohio workers and businesses will be harmed in the process. The bill’s passage was unnecessary. Many people who opposed SB47, me included, offered considerable alternatives that would mirror the federal protections. This would have ensured Ohio’s hourly workers were protected from wage theft and leveled the playing field for those employers who follow the law.
If you feel you have been a victim of wage theft or improper pay practices, please contact our office for a free consultation with an Ohio Wage and Hour lawyer today. If you are an employer who needs help navigating the tempest caused by Sen. Bill Seitz and Sen. Andrew Brenner; call me and I will help you find a lawyer.
The Paycheck Warriors is a bi-weekly column written by The Paycheck Warrior himself, Managing Partner Bob DeRose. Every other week, just like your paycheck, Bob will take the time to address commonly asked questions about wage and hour law. He will also take on wage and hour topics popping up in the news. Have a question? Leave a comment and see what The Paycheck Warrior has to say!
What Are Illegal Wage Deductions?
The Fair Labor Standards Act imposes strict standards on how your employer is allowed (and not allowed) to make deductions from your paycheck, or what they are allowed to consider as part of your pay.
Employers frequently try to skirt these rules and assume that their workers don’t know their rights well enough to notice or fight back against wage theft, but a wage and hour attorney in Columbus will notice right away.
Because our wage lawyers in Columbus know what to look for when it comes to illegal wage deductions leading to unpaid wages, we want to empower you to know what to look for as well. If you’ve seen evidence of any of these illegal wage deductions, you should talk to our lost wages lawyers in Columbus about recouping the wages that you are legally entitled to.
Illegal Wage Deductions for Uniforms
While it is permissible for an employer to require a uniform for work, a provided uniform does not count as wages. An employer cannot provide a uniform in lieu of their obligations to pay minimum wage or overtime obligations.
That means that an employer cannot deduct the cost of a uniform from your pay if it causes your pay rate to fall below the minimum wage or decreases the overtime rate that you are entitled to. That is an illegal deduction. You are legally entitled to that pay, and an unpaid wage and hour lawyer in Columbus can help you recover this.
Take, for example, if a restaurant pays minimum wage to a host, but deducts money from their paycheck for the host uniform. If a worker is making minimum wage, the employer cannot deduct money from their paycheck for a uniform, or most other reasons – even losses resulting from the employee’s negligence.
If a worker is making more than minimum wage, employers are only allowed to deduct for specific purposes up to the amount of minimum wage. This means that at the end of the workweek, your paycheck, after the uniform deductions, cannot result in you making less than the minimum wage per hour on average. In Ohio, the minimum wage will be $10.10 as of January 2023.
If an employer is paying $11.10, or one dollar per hour over the minimum wage, then for an employer working 20 hours a week, they would only be able to deduct a maximum of $20 each week. If the employer deducts more than $20 in this example, the employee would actually make less the minimum wage per hour. It sounds complicated, that is why an unpaid wages lawyer in Ohio should get involved to help fight back against these illegal deductions – preferably one with a long history of successful results.
Illegal Wage Deductions Cover More Than Uniforms
While the FLSA mentions uniforms specifically when referring to illegal deductions that a wage and hour attorney in Columbus can fight back against, the Act covers more than uniforms.
The Act states that “items which are considered to be primarily for the benefit or convenience of the employer” cannot be included in wages. This means uniforms, but also some things one might not expect.
Other categories considered to be “for the convenience of the employer” include tools required for work, damages caused by employees or customers, unpaid bills by customers, and theft of company property. None of these can be deducted from an employee’s weekly pay beyond minimum wage or overtime obligations, even if the employee is at fault.
What an Employer Can and Cannot Do
In a number of states, there are laws that protect employees from any paycheck deductions resulting from issues like damaged equipment or a cash drawer that comes up short. Ohio is not one of those states, but wage and hour attorneys in Ohio can still make sure an employer does not deduct wages beyond the Ohio minimum wage threshold in accordance with federal and Ohio law.
That means that a minimum wage worker cannot have their paycheck deducted even if there is money missing from their register if the amount deducted will result in the worker making less than the minimum wage.
Of course, that doesn’t mean your employer can’t take other actions – they are within their rights to terminate your employment or even pursue legal action if they believe money or equipment was intentionally stolen. Our employment attorneys in Columbus can help you fight back in any of these cases, especially if your check is being deducted unjustly or beyond the allowable maximum.
If you feel you’ve had your wages cut unfairly, or more than is legally allowed, contact the wage and hour attorneys at Barkan Meizlish DeRose Cox, LLP and reclaim the wages you worked for and are legally entitled to.