As Introduced

126th General Assembly Regular Session 2005-2006

H. B. No. 690

Representative Seitz 

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A BILL

To amend sections 4111.01, 4111.02, and 4111.10, to

1

enact section 4111.14, and to repeal section

2

4111.08 of the Revised Code to implement Section

3

34a, Article II, of the Constitution of the State

4

of Ohio and to declare an emergency.

5

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 4111.01, 4111.02, and 4111.10 be	6
amended and section 4111.14 of the Revised Code be enacted to read	7
as follows:	8

Sec. 4111.01. (A) As used in sections 4111.01 to 4111.17 of	9
the Revised Codethis chapter:	10

(A)(1) "Wage" means compensation due to an employee by reason	11
of employment, payable in legal tender of the United States or	12
checks on banks convertible into cash on demand at full face	13
value, subject to the deductions, charges, or allowances permitted	14
by rules of the director of commerce under section 4111.05 of the	15
Revised Code. "Wage" includes an employee's commissions of which	16
the employee's employer keeps a record, but does not include	17
gratuities, except as provided by rules issued under section	18
4111.05 of the Revised Code.	19

"Wage" also includes the reasonable cost to the employer of	20
furnishing to an employee board, lodging, or other facilities, if	21
the board, lodging, or other facilities are customarily furnished	22
by the employer to the employer's employees. The cost of board,	23
lodging, or other facilities shall not be included as part of wage	24
to the extent excluded therefrom under the terms of a bona fide	25
collective bargaining agreement applicable to the employee.	26

(2) "Occupation" means any occupation, service, trade,	27
business, industry, or branch or group of industries or employment	28
or class of employment in which individuals are employed.	29

(B) As used in section 4111.03 of the Revised Code:

30

(1) "Employ" means to suffer or to permit to work.

31

(C)(2) "Employer" means the state of Ohio, its	32
instrumentalities, and its political subdivisions and their	33
instrumentalities, any individual, partnership, association,	34
corporation, business trust, or any person or group of persons,	35
acting in the interest of an employer in relation to an employee,	36
but does not include an employer whose annual gross volume of	37
sales made for business done is less than one hundred fifty	38
thousand dollars, exclusive of excise taxes at the retail level	39
which are separately stated.	40

(D)(3) "Employee" means any individual employed by an	41
employer but does not include:	42

(1)(a) Any individual employed by the United States;

43

(2)(b) Any individual employed as a baby-sitter in the	44
employer's home, or a live-in companion to a sick, convalescing,	45
or elderly person whose principal duties do not include	46
housekeeping;	47

(3)(c) Any individual engaged in the delivery of newspapers	48
to the consumer;	49

(4)(d) Any individual employed as an outside salesperson	50
compensated by commissions or in a bona fide executive,	51
administrative, or professional capacity as such terms are defined	52
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29	53
U.S.C.A. 201, as amended;	54

(5)(e) Any employee employed in agriculture if the employee	55
is employed by an employer who did not, during any calendar	56
quarter during the preceding calendar year, use more than five	57
hundred worker-days of agricultural labor, or if the employee is	58
the parent, spouse, child, or other member of the employer's	59
immediate family;	60

(6)(f) Any individual who works or provides personal services	61
of a charitable nature in a hospital or health institution for	62
which compensation is not sought or contemplated;	63

(7)(g) A member of a police or fire protection agency or	64
student employed on a part-time or seasonal basis by a political	65
subdivision of this state;	66

(8)(h) Any individual in the employ of a camp or recreational	67
area for children under eighteen years of age and owned and	68
operated by a nonprofit organization or group of organizations	69
described in Section 501 (c)(3) of the "Internal Revenue Code of	70
1954," and exempt from income tax under Section 501 (a) of that	71
code;	72

(9)(i) Any individual employed directly by the house of	73
representatives or directly by the senate.	74

(E) "Occupation" means any occupation, service, trade,	75
business, industry, or branch or group of industries or employment	76
or class of employment in which individuals are employed.	77

Sec. 4111.02. (A) Every employer and employers with less	78
than one hundred fifty thousand dollars gross annual sales, as	79
defined in Section 34a of Article II, Ohio Constitution, shall pay	80
each of the employer's employees at a wage rate of not less than	81
the wage rate specified in the "Fair Labor Standards Act," 29	82
U.S.C. 206, as now or hereafter amended, beginning on the	83
effective date of this amendment, except as otherwise provided in	84
this sectionSection 34a of Article II, Ohio Constitution.	85

(B) Every employer shall pay each employee in agriculture at	86
a wage rate not less than the wage rate described in division (A)	87
of this section. This provision does not apply to any employee	88
employed in agriculture if the employee: (1)(a) is employed as a	89
hand harvest laborer and is paid on a piece rate basis in an	90
operation which has been, and is customarily and generally	91
recognized as having been, paid on a piece rate basis in the	92
region of employment, (b) commutes daily from the employee's	93
permanent residence to the farm on which the employee is so	94
employed, and (c) has been employed in agriculture less than	95
thirteen weeks during the preceding calendar year, or (2)(a) is	96
sixteen years of age or under, is employed as a hand harvest	97
laborer, and is paid on a piece rate basis in an operation which	98
has been, and is customarily and generally recognized as having	99
been paid on a piece rate basis in the region of employment, (b)	100
is employed on the same farm as the employee's parent or person	101
standing in the place of the employee's parent, and (c) is paid at	102
the same piece rate as employees over age sixteen are paid on the	103
same farm. Such employees shall be paid no less than two dollars	104
and eighty cents per hour.	105

(C) For any employee engaged in an occupation in which the	106
employee customarily and regularly receives tips from patrons or	107
others, the employer shall payThe director of commerce annually	108
shall adjust the wage rate as specified for tipped employees in	109
the "Fair Labor Standards Act," 29 U.S.C. 203, as now or hereafter	110
amendedin Section 34a of Article II, Ohio Constitution.	111

Sec. 4111.10.  (A) Any employer who pays any employee less	112
than wages to which the employee is entitled under sections	113
4111.01 to 4111.17section 4111.03 of the Revised Code, is liable	114
to the employee affected for the full amount of the overtime wage	115
rate, less any amount actually paid to the employee by the	116
employer, and for costs and reasonable attorney's fees as may be	117
allowed by the court. Any agreement between the employee and the	118
employer to work for less than the overtime wage rate is no	119
defense to an action.	120

(B) At the written request of any employee paid less than the	121
wages to which the employee is entitled under sections 4111.01 to	122
4111.17section 4111.03 of the Revised Code, the director of	123
commerce may take an assignment of a wage claim in trust for the	124
assigning employee and may bring any legal action necessary to	125
collect the claim. The employer shall pay the costs and reasonable	126
attorney's fees allowed by the court.	127

Sec. 4111.14. (A) Pursuant to the general assembly's	128
authority to establish a minimum wage under Section 34 of Article	129
II, Ohio Constitution, this section is in implementation of	130
Section 34a of Article II, Ohio Constitution. In implementing	131
Section 34a of Article II, Ohio Constitution, the general assembly	132
hereby finds that the purpose of Section 34a of Article II, Ohio	133
Constitution is to:	134

(1) Ensure that Ohio employees, as defined in division (B)(1)	135
of this section, are paid the wage rate required by Section 34a of	136
Article II, Ohio Constitution;	137

(2) Ensure that covered Ohio employers maintain certain	138
records that are directly related to the enforcement of the wage	139
rate requirements in Section 34a of Article II, Ohio Constitution;	140

(3) Ensure that Ohio employees who are paid the wage rate	141
required by Section 34a of Article II, Ohio Constitution may	142
enforce their right to receive that wage rate in the manner set	143
forth in Section 34a of Article II, Ohio Constitution; and	144

(4) Protect the privacy of Ohio employees' pay and personal	145
information specified in Section 34a of Article II, Ohio	146
Constitution by restricting an employee's access, and access by a	147
person acting on behalf of that employee, to the employee's own	148
pay and personal information.	149

(B) In accordance with Section 34a of Article II, Ohio	150
Constitution, the terms "employer," "employee," "employ,"	151
"person," and "independent contractor" have the same meanings as	152
in the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29	153
U.S.C. 203, as amended. In construing the meaning of these terms,	154
due consideration and great weight shall be given to the United	155
States department of labor's and federal courts' interpretations	156
of those terms under the Fair Labor Standards Act and its	157
regulations. As used in division (B) of this section:	158

(1) "Employee" includes the exclusions contained in Title 42	159
United States Code section 203(e) and means individuals employed	160
in Ohio. The term "employee" incorporates any applicable	161
exemptions from the minimum wage requirements in the Fair Labor	162
Standards Act and from the definition of "employee" in this	163
chapter.	164

(2) "Employ" and "employee" do not include any person acting	165
as a volunteer. In construing who is a volunteer, "volunteer"	166
shall have the same meaning as in sections 553.101 to 553.106 of	167
Title 29 of the Code of Federal Regulations, as amended, and due	168
consideration and great weight shall be given to the United States	169
department of labor's and federal courts' interpretations of the	170
term "volunteer" under the Fair Labor Standards Act and its	171
regulations.	172

(C) In accordance with Section 34a of Article II, Ohio	173
Constitution, the state may issue licenses to employers who are	174
not subject to the Fair Labor Standards Act authorizing payment of	175
a wage below that required by Section 34a of Article II, Ohio	176
Constitution to individuals with mental or physical disabilities	177
that may otherwise adversely affect their opportunity for	178
employment. In issuing such licenses, the state shall abide by the	179
rules adopted pursuant to section 4111.06 of the Revised Code.	180

(D) In accordance with Section 34a of Article II, Ohio	181
Constitution, individuals employed in or about the property of an	182
employer or an individual's residence on a casual basis are not	183
included within the coverage of Section 34a of Article II, Ohio	184
Constitution. As used in division (D) of this section:	185

(1) "Casual basis" means employment that is irregular or	186
intermittent and that is not performed by an individual whose	187
vocation is to be employed in or about the property of the	188
employer or individual's residence. In construing who is employed	189
on a "casual basis," due consideration and great weight shall be	190
given to the United States department of labor's and federal	191
courts' interpretations of the term "casual basis" under the Fair	192
Labor Standards Act and its regulations.	193

(2) "An individual employed in or about the property of an	194
employer or individual's residence" means an individual employed	195
on a casual basis or an individual employed in or about a	196
residence on a casual basis, respectively.	197

(E) In accordance with Section 34a of Article II, Ohio	198
Constitution, an employer shall at the time of hire provide an	199
employee with the employer's name, address, telephone number, and	200
other contact information and update such information when it	201
changes. As used in division (E) of this section:	202

(1) "Other contact information" may include, where	203
applicable, the address of the employer's internet site on the	204
world wide web, the employer's electronic mail address, fax	205
number, or the name, address, and telephone number of the	206
employer's statutory agent. "Other contact information" does not	207
include the name, address, telephone number, fax number, internet	208
site address, or electronic mail address of any employee,	209
shareholder, officer, director, supervisor, manager, or other	210
individual employed by or associated with an employer.	211

(2) "When it changes" means that the employer shall provide	212
its employees with the change in its name, address, telephone	213
number, or other contact information within sixty business days	214
after the change occurs. The employer shall provide the changed	215
information by using any of its usual methods of communicating	216
with its employees, including, but not limited to, listing the	217
change on the employer's internet site on the world wide web,	218
internal computer network, or a bulletin board where it commonly	219
posts employee communications or by insertion or inclusion with	220
employees' paychecks or pay stubs.	221

(F) In accordance with Section 34a of Article II, Ohio	222
Constitution, an employer shall maintain a record of the name,	223
address, occupation, pay rate, hours worked for each day worked,	224
and each amount paid an employee for a period of not less than	225
three years following the last date the employee was employed by	226
that employer. As used in division (F) of this section:	227

(1) "Address" means an employee's home address as maintained	228
in the employer's personnel file or personnel database for that	229
employee.	230

(2)(a) With respect to employees who are not exempt from the	231
overtime pay requirements of the Fair Labor Standards Act or this	232
chapter, "pay rate" means an employee's base rate of pay.	233

(b) With respect to employees who are exempt from the	234
overtime pay requirements of the Fair Labor Standards Act or this	235
chapter, "pay rate" means an employee's annual base salary, but	236
does not include bonuses, stock options, incentives, deferred	237
compensation, or any other similar form of compensation.	238

(3) "Record" means the name, address, occupation, pay rate,	239
hours worked for each day worked, and each amount paid an employee	240
in one or more documents, databases, or other paper or electronic	241
forms of record-keeping maintained by an employer. No one	242
particular method or form of maintaining such a record or records	243
is required under this division. An employer is not required to	244
create or maintain a single record containing only the employee's	245
name, address, occupation, pay rate, hours worked for each day	246
worked, and each amount paid an employee. An employer shall	247
maintain a record or records from which the employee or person	248
acting on behalf of that employee could reasonably review the	249
information requested by the employee or person.	250

An employer is not required to maintain the records specified	251
in division (F)(3) of this section for any period before January	252
1, 2007. On and after January 1, 2007, the employer shall maintain	253
the records required by division (F)(3) of this section for three	254
years from the date the hours were worked by the employee.	255

(4)(a) With respect to employees who are not exempt from the	256
overtime pay requirements of the Fair Labor Standards Act or this	257
chapter, "hours worked for each day worked" means the total amount	258
of time worked by an employee in whatever increments the employer	259
uses for its payroll purposes during a day worked by the employee.	260
An employer is not required to keep a record of the time of day an	261
employee begins and ends work on any given day. As used in	262
division (F)(4) of this section, "day" means a fixed period of	263
twenty-four consecutive hours during which an employee performs	264
work for an employer.	265

(b) An employer is not required to keep records of "hours	266
worked for each day worked" for employees who are exempt from the	267
overtime pay requirements of the Fair Labor Standards Act or this	268
chapter.	269

(5) "Each amount paid an employee" means the total gross	270
wages paid to an employee for each pay period. As used in division	271
(F)(5) of this section, "pay period" means the period of time	272
designated by an employer to pay an employee the employee's gross	273
wages in accordance with the employer's payroll practices.	274

(G) In accordance with Section 34a of Article II, Ohio	275
Constitution, an employer must provide such information without	276
charge to an employee or person acting on behalf of an employee	277
upon request. As used in division (G) of this section:	278

(1) "Such information" means the name, address, occupation,	279
pay rate, hours worked for each day worked, and each amount paid	280
for the specific employee who has requested that specific	281
employee's own information and does not include the name, address,	282
occupation, pay rate, hours worked for each day worked, or each	283
amount paid of any other employee of the employer.	284

(2) "Acting on behalf of an employee" means a person acting	285
on behalf of an employee as any of the following:	286

(a) The certified or legally recognized collective bargaining	287
representative for that employee under the applicable federal law	288
or Chapter 4117. of the Revised Code;	289

(b) The employee's attorney;

290

(c) The employee's parent, guardian, or legal custodian.

291

A person "acting on behalf of an employee" must be	292
specifically authorized by an employee in order to make a request	293
for that employee's own name, address, occupation, pay rate, hours	294
worked for each day worked, and each amount paid to that employee.	295

(3) "Provide" means that an employer shall provide the	296
requested information within sixty business days after the date	297
the employer receives the request, unless either of the following	298
occurs:	299

(a) The employer and the employee or person acting on behalf	300
of the employee agree to some alternative time period for	301
providing the information.	302

(b) The sixty-day period would cause a hardship on the	303
employer under the circumstances, in which case the employer must	304
provide the requested information as soon as practicable.	305

(4) A "request" made by an employee or a person acting on	306
behalf of an employee means a request by an employee or a person	307
acting on behalf of an employee for the employee's own	308
information. The employer may require that the employee provide	309
the employer with a written request that has been signed by the	310
employee and that specifically identifies the particular	311
information being requested. The employer may require that the	312
person acting on behalf of an employee provide the employer with a	313
written request that has been signed by the employee whose	314
information is being requested and notarized and that specifically	315
identifies the particular information being requested.	316

(H) In accordance with Section 34a of Article II, Ohio	317
Constitution, an employee, person acting on behalf of one or more	318
employees, and any other interested party may file a complaint	319
with the state for a violation of any provision of Section 34a of	320
Article II, Ohio Constitution or any law or regulation	321
implementing its provisions. Such complaint shall be promptly	322
investigated and resolved by the state. The employee's name shall	323
be kept confidential unless disclosure is necessary to resolution	324
of a complaint and the employee consents to disclosure. As used in	325
division (H) of this section:	326

(1) "Complaint" means a complaint of an alleged violation	327
pertaining to harm suffered by the employee filing the complaint,	328
by a person acting on behalf of one or more employees, or by an	329
interested party.	330

(2) "Acting on behalf of one or more employees" has the same	331
meaning as "acting on behalf of an employee" in division (G)(2) of	332
this section. Each employee must provide a separate written and	333
notarized authorization before the person acting on that	334
employee's or those employees' behalf may request the name,	335
address, occupation, pay rate, hours worked for each day worked,	336
and each amount paid for the particular employee.	337

(3) "Interested party" means a party who alleges to be	338
injured by the alleged violation and who has standing to file a	339
complaint under common law principles of standing.	340

(4) "Resolved by the state" means that the complaint has been	341
resolved to the satisfaction of the state.	342

(5) "Shall be kept confidential" means that the state shall	343
keep the name of the employee confidential as required by division	344
(H) of this section.	345

(I) In accordance with Section 34a of Article II, Ohio	346
Constitution, the state may on its own initiative investigate an	347
employer's compliance with Section 34a of Article II, Ohio	348
Constitution and any law or regulation implementing Section 34a of	349
Article II, Ohio Constitution. The employer shall make available	350
to the state any records related to such investigation and other	351
information required for enforcement of Section 34a of Article II,	352
Ohio Constitution or any law or regulation implementing Section	353
34a of Article II, Ohio Constitution. As used in division (I) of	354
this section:	355

(1) "Records related to such investigation and other	356
information required" means the records and information pertaining	357
to the employee or employees who filed the complaint or on whose	358
behalf the complaint was filed with the state. All records and	359
information related to investigations by the state are	360
confidential and are not a public record subject to section 149.43	361
of the Revised Code.	362

(2) "Complaint" has the same meaning as in division (H)(1) of	363
this section.	364

(J) In accordance with Section 34a of Article II, Ohio	365
Constitution, damages shall be calculated as an additional two	366
times the amount of the back wages and in the case of a violation	367
of an anti-retaliation provision an amount set by the state or	368
court sufficient to compensate the employee and deter future	369
violations, but not less than one hundred fifty dollars for each	370
day that the violation continued. The "not less than one hundred	371
fifty dollar" penalty specified in division (J) of this section	372
shall be imposed only for violations of the anti-retaliation	373
provision in Section 34a of Article II, Ohio Constitution.	374

(K) In accordance with Section 34a of Article II, Ohio	375
Constitution, an action for equitable and monetary relief may be	376
brought against an employer by the attorney general and/or an	377
employee or person acting on behalf of an employee or all	378
similarly situated employees in any court of competent	379
jurisdiction, including the court of common pleas of an employee's	380
county of residence, for any violation of Section 34a of Article	381
II, Ohio Constitution or any law or regulation implementing its	382
provisions within three years of the violation or of when the	383
violation ceased if it was of a continuing nature, or within one	384
year after notification to the employee of final disposition by	385
the state of a complaint for the same violation, whichever is	386
later.	387

(1) As used in division (K) of this section, "notification"	388
means the date on which the notice was sent to the employee by the	389
state.	390

(2) No employee shall join as a party plaintiff in any civil	391
action that is brought under division (K) of this section by an	392
employee, person acting on behalf of an employee, or person acting	393
on behalf of all similarly situated employees unless that employee	394
first gives written consent to become such a party plaintiff and	395
that consent is filed with the court in which the action is	396
brought.	397

(3) A civil action regarding an alleged violation of this	398
section shall be maintained only under division (K) of this	399
section. The civil action specified in division (K) of this	400
section supersedes the civil action specified in section 4111.10	401
of the Revised Code with respect to any alleged violations of this	402
section.	403

(L) In accordance with Section 34a of Article II, Ohio	404
Constitution, there shall be no exhaustion requirement, no	405
procedural, pleading, or burden of proof requirements beyond those	406
that apply generally to civil suits in order to maintain such	407
action and no liability for costs or attorney's fees on an	408
employee except upon a finding that such action was frivolous in	409
accordance with the same standards that apply generally in civil	410
suits. Nothing in division (L) of this section affects the right	411
of an employer and employee to agree to submit a dispute under	412
this section to alternative dispute resolution, including, but not	413
limited to, arbitration, in lieu of maintaining the civil suit	414
specified in division (K) of this section.	415

(M) An employer who provides such information specified in	416
Section 34a of Article II, Ohio Constitution, shall be immune from	417
any civil liability for injury, death, or loss to person or	418
property that otherwise might be incurred or imposed as a result	419
of providing that information to an employee or person acting on	420
behalf of an employee in response to a request by the employee or	421
person, and the employer shall not be subject to the provisions of	422
Chapters 1347. and 1349. of the Revised Code to the extent that	423
such provisions would otherwise apply. As used in division (M) of	424
this section, "such information," "acting on behalf of an	425
employee," and "request" have the same meanings as in division (G)	426
of this section.	427

(N) As used in this section, "the state" means the director	428
of commerce.	429

Section 2.  That existing sections 4111.01, 4111.02, and	430
4111.10 and section 4111.08 of the Revised Code are hereby	431
repealed.	432

Section 3.  This act is hereby declared to be an emergency	433
measure necessary for the immediate preservation of the public	434
peace, health, and safety. The reason for the necessity is that	435
immediate action is necessary to ensure the timely and proper	436
implementation of Section 34a of Article II, Ohio Constitution,	437
described in Section 1 of this act. Therefore, this act shall go	438
into immediate effect.	439

Section 4.  If any item of law that constitutes the whole or	440
part of a codified or uncodified section of law contained in this	441
act, or if any application of any item of law that constitutes the	442
whole or part of a codified or uncodified section of law contained	443
in this act, is held invalid, the invalidity does not affect other	444
items of law or applications of items of law that can be given	445
effect without the invalid item of law or application. To this	446
end, the items of law of which the codified and uncodified	447
sections of law contained in this act are composed, and their	448
applications, are independent and severable.	449