Barkan Meizlish , May 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.
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 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!
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