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To amend sections 4111.03, 4111.05, 4111.10, 4111.13, | 1 |
and 4111.99 and to enact section 4111.031 of the | 2 |
Revised Code to afford to private sector | 3 |
employers the option to offer and to employees | 4 |
the option to accrue and use compensatory time | 5 |
off. | 6 |
Section 1. That sections 4111.03, 4111.05, 4111.10, 4111.13, | 7 |
and 4111.99 be amended and section 4111.031 of the Revised Code be | 8 |
enacted to read as follows: | 9 |
Sec. 4111.03. (A) | 10 |
4111.031 of the Revised Code, an employer shall pay an employee | 11 |
for overtime at a wage rate of one and one-half times the | 12 |
employee's wage rate for hours worked in excess of forty hours in | 13 |
one workweek, in the manner and methods provided in and subject to | 14 |
the exemptions of section 7 and section 13 of the "Fair Labor | 15 |
Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 207, 213, as | 16 |
amended. | 17 |
Any employee employed in agriculture shall not be covered by | 18 |
the overtime provision of this section. | 19 |
(B) If a county employee elects to take compensatory time off | 20 |
in lieu of overtime pay, for any overtime worked, compensatory | 21 |
time may be granted by the employee's administrative superior, on | 22 |
a time and one-half basis, at a time mutually convenient to the | 23 |
employee and the administrative superior within one hundred eighty | 24 |
days after the overtime is worked. | 25 |
(C) A county appointing authority with the exception of the | 26 |
county department of job and family services may, by rule or | 27 |
resolution as is appropriate, indicate the authority's intention | 28 |
not to be bound by division (B) of this section, and to adopt a | 29 |
different policy for the calculation and payment of overtime than | 30 |
that established by that division. Upon adoption, the alternative | 31 |
overtime policy prevails. Prior to the adoption of an alternative | 32 |
overtime policy, a county appointing authority with the exception | 33 |
of the county department of job and family services shall give a | 34 |
written notice of the alternative policy to each employee at least | 35 |
ten days prior to its effective date. | 36 |
(D) As used in this section and section 4111.031 of the | 37 |
Revised Code: | 38 |
(1) "Employ" means to suffer or to permit to work. | 39 |
(2) "Employer" means the state of Ohio, its | 40 |
instrumentalities, and its political subdivisions and their | 41 |
instrumentalities, any individual, partnership, association, | 42 |
corporation, business trust, or any person or group of persons, | 43 |
acting in the interest of an employer in relation to an employee, | 44 |
but does not include an employer whose annual gross volume of | 45 |
sales made for business done is less than one hundred fifty | 46 |
thousand dollars, exclusive of excise taxes at the retail level | 47 |
which are separately stated. | 48 |
(3) "Employee" means any individual employed by an employer | 49 |
but does not include: | 50 |
(a) Any individual employed by the United States; | 51 |
(b) Any individual employed as a baby-sitter in the | 52 |
employer's home, or a live-in companion to a sick, convalescing, | 53 |
or elderly person whose principal duties do not include | 54 |
housekeeping; | 55 |
(c) Any individual engaged in the delivery of newspapers to | 56 |
the consumer; | 57 |
(d) Any individual employed as an outside salesperson | 58 |
compensated by commissions or employed in a bona fide executive, | 59 |
administrative, or professional capacity as such terms are defined | 60 |
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 | 61 |
U.S.C.A. 201, as amended; | 62 |
(e) Any individual who works or provides personal services of | 63 |
a charitable nature in a hospital or health institution for which | 64 |
compensation is not sought or contemplated; | 65 |
(f) A member of a police or fire protection agency or student | 66 |
employed on a part-time or seasonal basis by a political | 67 |
subdivision of this state; | 68 |
(g) Any individual in the employ of a camp or recreational | 69 |
area for children under eighteen years of age and owned and | 70 |
operated by a nonprofit organization or group of organizations | 71 |
described in Section 501 (c)(3) of the "Internal Revenue Code of | 72 |
1954," and exempt from income tax under Section 501 (a) of that | 73 |
code; | 74 |
(h) Any individual employed directly by the house of | 75 |
representatives or directly by the senate. | 76 |
(4) "Monetary overtime compensation" means pay for overtime | 77 |
as required by division (A) of this section. | 78 |
(5) "Compensatory time off" means hours during which an | 79 |
employee is not working that are not counted as hours worked | 80 |
during the applicable work week or other work period for purposes | 81 |
of overtime compensation and for which the employer compensates | 82 |
the employee at the employee's regular rate of pay. | 83 |
(6) "To bargain collectively" means the performance of the | 84 |
mutual obligation of the representative of an employer and the | 85 |
exclusive representative of employees in an appropriate unit to | 86 |
meet at reasonable times and to consult and bargain in a good | 87 |
faith effort to reach agreement with respect to the conditions of | 88 |
employment affecting the employees and to execute, if requested by | 89 |
either party, a written document incorporating any collective | 90 |
bargaining agreement reached, but the obligation does not compel | 91 |
either party to agree to a proposal or to make a concession. | 92 |
(7) "Collective bargaining agreement" means an agreement | 93 |
entered into as a result of employees bargaining collectively with | 94 |
an employer. | 95 |
(8) "Exclusive representative" means any labor or employee | 96 |
organization that is certified as the exclusive representative of | 97 |
employees by means of any one of the following processes: | 98 |
(a) Pursuant to the "National Labor Relations Act," 49 Stat. | 99 |
449 (1935), 29 U.S.C. 151, as amended; | 100 |
(b) Pursuant to Chapter 4117. of the Revised Code; | 101 |
(c) Recognition by an employer, immediately before the | 102 |
effective date of this amendment, as the exclusive representative | 103 |
of employees in an appropriate unit, on the basis of an election | 104 |
or on any other basis, and that continues to be so recognized. | 105 |
(9) "Regular rate" includes all remuneration for employment | 106 |
paid to, or on behalf of, an employee except: | 107 |
(a) Sums paid as gifts, or payments in the nature of gifts | 108 |
made on the occasion of a holiday or other special occasion as a | 109 |
reward for service, the amounts of which are not measured by or | 110 |
dependent on hours worked, production, or efficiency; | 111 |
(b) Payments made for occasional periods when no work is | 112 |
performed due to vacation, holiday, illness, failure of the | 113 |
employer to provide sufficient work, or other similar cause, | 114 |
reasonable payment for traveling expenses or other expenses | 115 |
incurred by an employee in the furtherance of the employer's | 116 |
interests and properly reimbursable by the employer, and other | 117 |
similar payments to an employee that are not made as compensation | 118 |
for hours of employment; | 119 |
(c) Sums paid in recognition of services performed during a | 120 |
given period if any of the following applies: | 121 |
(i) The decision to make payment and determine the amount of | 122 |
the payment is determined at the sole discretion of the employer | 123 |
at or near the end of the period, and not pursuant to any prior | 124 |
contract, agreement, or promise causing the employee to expect the | 125 |
payments regularly. | 126 |
(ii) The payments are made pursuant to a bona fide | 127 |
profit-sharing plan or trust or bona fide thrift or savings plan. | 128 |
(iii) The payments are talent fees paid to performers, | 129 |
including announcers, on radio and television programs. | 130 |
(d) Contributions irrevocably made by an employer to a | 131 |
trustee or third person pursuant to a bona fide plan for providing | 132 |
old-age, retirement, life, accident, or health insurance or | 133 |
similar benefits for employees; | 134 |
(e) Extra compensation provided by a premium rate paid for | 135 |
certain hours worked by the employee in a day or work week because | 136 |
the hours are worked in excess of eight in a day or in excess of | 137 |
the maximum work week applicable to the employee under division | 138 |
(A) of this section or in excess of the employee's normal working | 139 |
hours or regular working hours, as the case may be; | 140 |
(f) Extra compensation provided by a premium rate paid for | 141 |
work by the employee on Saturdays, Sundays, holidays, or regular | 142 |
days of rest, or on the sixth or seventh day of the work week | 143 |
where the premium rate is not less than one and one-half times the | 144 |
rate established in good faith for like work performed during | 145 |
nonovertime hours on other days; | 146 |
(g) Extra compensation provided by a premium rate paid to an | 147 |
employee pursuant to an applicable employment contract or | 148 |
collective bargaining agreement, for work outside of the hours | 149 |
established in good faith by the contract or agreement and outside | 150 |
of the basic, normal, or regular workday that does not exceed | 151 |
eight hours, or of the work week that does not exceed the maximum | 152 |
work week applicable to the employee under division (A) of this | 153 |
section, where the premium rate is not less than one and one-half | 154 |
times the rate established in good faith by the contract or | 155 |
agreement for like work performed during the workday or work week. | 156 |
Sec. 4111.031. (A) An employee other than an employee | 157 |
described in division (J) of this section may receive, in | 158 |
accordance with this section and in lieu of monetary overtime | 159 |
compensation, compensatory time off at a rate of not less than one | 160 |
and one-half hours for each hour of employment for which monetary | 161 |
overtime compensation otherwise is required by division (A) of | 162 |
section 4111.03 of the Revised Code. | 163 |
(B) An employer may provide compensatory time off to | 164 |
employees pursuant to this section only in accordance with the | 165 |
following provisions and conditions: | 166 |
(1) The applicable provisions of a collective bargaining | 167 |
agreement between the employer and the exclusive representative of | 168 |
the employees recognized as provided in section 9(a) of the | 169 |
"National Labor Relations Act," 49 Stat. 449 (1935), 29 U.S.C. | 170 |
159(a), as amended; | 171 |
(2) In the case of employees who are not represented by a | 172 |
labor organization as provided in section 9(a) of the "National | 173 |
Labor Relations Act," 49 Stat. 449 (1935), 29 U.S.C. 159(a), as | 174 |
amended, an agreement or understanding arrived at between the | 175 |
employer and employee before the performance of the work involved, | 176 |
if the agreement or understanding is entered into knowingly and | 177 |
voluntarily by and at the initiation and request of the employee, | 178 |
and is not a condition of employment; | 179 |
(3) If the employee has affirmed in a written or otherwise | 180 |
verifiable statement that is made, kept, and preserved in | 181 |
accordance with section 4111.08 and rules adopted under section | 182 |
4111.05 of the Revised Code that the employee has initiated a | 183 |
request to receive compensatory time off in lieu of monetary | 184 |
overtime compensation; | 185 |
(4) If the employee has not accrued compensatory time off in | 186 |
excess of the limit applicable to the employee as prescribed in | 187 |
division (C) of this section. | 188 |
(C) An employee may accrue not more than two hundred forty | 189 |
hours of compensatory time off. | 190 |
(D) Not later than the thirty-first day of January of each | 191 |
calendar year, an employer shall provide monetary overtime | 192 |
compensation at the rate prescribed by division (H) of this | 193 |
section for any unused compensatory time off accrued during the | 194 |
preceding calendar year that was not used prior to the | 195 |
thirty-first day of December of the preceding calendar year. An | 196 |
employer may designate and communicate to its employees an | 197 |
alternative twelve-month period other than the calendar year, in | 198 |
which case the monetary overtime compensation payment required by | 199 |
this division shall be paid not later than thirty-one days after | 200 |
the end of the alternative twelve-month period. An employer may | 201 |
provide monetary overtime compensation at the rate required by | 202 |
division (H) of this section for an employee's unused compensatory | 203 |
time off in excess of eighty hours at any time after giving the | 204 |
employee written notice of that intent at least thirty days before | 205 |
providing that compensation. | 206 |
(E) An employer that has adopted a policy offering | 207 |
compensatory time off to employees may discontinue that policy | 208 |
upon giving the employees written notice of that intent at least | 209 |
thirty days before the discontinuation. | 210 |
(F) An employee may withdraw an agreement or understanding | 211 |
described in division (B)(2) of this section at any time and may | 212 |
request in writing that monetary overtime compensation be | 213 |
provided, at any time, for all compensatory time off accrued that | 214 |
has not yet been used at the time the employee makes the request. | 215 |
Within thirty days after receipt of the written request, the | 216 |
employer shall pay to the employee the monetary overtime | 217 |
compensation due in accordance with division (H) of this section. | 218 |
(G) Any payment owed to an employee under this section for | 219 |
unused compensatory time off shall be considered unpaid monetary | 220 |
overtime compensation. An employer shall pay monetary overtime | 221 |
compensation, in accordance with division (H) of this section, to | 222 |
an employee who has accrued unused compensatory time off pursuant | 223 |
to this section, upon the voluntary or involuntary termination of | 224 |
employment. | 225 |
(H) If an employer pays monetary overtime compensation to an | 226 |
employee for accrued compensatory time off, the employer shall | 227 |
make payment based on a rate of compensation that is the higher | 228 |
of: | 229 |
(1) The regular rate of pay received by the employee when the | 230 |
compensatory time off was earned; | 231 |
(2) The final regular rate of pay received by the employee. | 232 |
(I) An employer shall permit an employee who has accrued | 233 |
compensatory time off authorized under this section and who has | 234 |
requested the use of the compensatory time off, the use of that | 235 |
time within a reasonable period after the employee makes the | 236 |
request, if the use of the compensatory time off does not unduly | 237 |
disrupt the operations of the employer. | 238 |
(J) This section does not apply to any of the following | 239 |
employees: | 240 |
(1) An employee of the state, its instrumentalities, or its | 241 |
political subdivisions or their instrumentalities; | 242 |
(2) An individual employed by a contractor or subcontractor | 243 |
to perform labor or provide services to construct, alter, erect, | 244 |
improve, repair, demolish, remove, dig, or drill any part of a | 245 |
structure or improvement. | 246 |
(K) As used in division (J)(2) of this section, "contractor" | 247 |
has the same meaning as in section 4113.61 of the Revised Code and | 248 |
"subcontractor" has the same meaning as in section 1311.01 of the | 249 |
Revised Code. | 250 |
Sec. 4111.05. The director of commerce shall adopt rules in | 251 |
accordance with Chapter 119. of the Revised Code as the director | 252 |
considers appropriate to carry out the purposes of sections | 253 |
4111.01 to 4111.17 of the Revised Code. The rules may be amended | 254 |
from time to time and may include, but are not limited to, rules | 255 |
defining and governing apprentices, their number, proportion, and | 256 |
length of service; bonuses and special pay for special or extra | 257 |
work; permitted deductions or charges to employees for board, | 258 |
lodging, apparel, or other facilities or services customarily | 259 |
furnished by employers to employees; inclusion of ascertainable | 260 |
gratuities in wages paid; allowances for unascertainable | 261 |
gratuities or for other special conditions or circumstances which | 262 |
may be usual in particular employer-employee relationships; | 263 |
compensatory time off for employees pursuant to section 4111.031 | 264 |
of the Revised Code; and the method of computation or the period | 265 |
of time over which wages may be averaged to determine whether the | 266 |
minimum wage or overtime rate has been paid. | 267 |
Sec. 4111.10. (A) Any employer who pays any employee less | 268 |
than wages to which the employee is entitled under section 4111.03 | 269 |
of the Revised Code, is liable to the employee affected for the | 270 |
full amount of the overtime wage rate, less any amount actually | 271 |
paid to the employee by the employer, and for costs and reasonable | 272 |
attorney's fees as may be allowed by the court. Any agreement | 273 |
between the employee and the employer to work for less than the | 274 |
overtime wage rate is no defense to an action. | 275 |
(B) Any employer who violates division (D) of section 4111.13 | 276 |
of the Revised Code is liable to the employee affected in a dollar | 277 |
amount equal to: | 278 |
(1) The product of: | 279 |
(a) The rate of compensation determined in accordance with | 280 |
division (H) of section 4111.031 of the Revised Code; and | 281 |
(b) The number of hours of compensatory time off involved in | 282 |
the violation that was initially accrued by the employee minus the | 283 |
number of compensatory time off hours used by the employee; and | 284 |
(2) As liquidated damages, the product of: | 285 |
(a) The rate of compensation determined in accordance with | 286 |
division (H) of section 4111.031 of the Revised Code; and | 287 |
(b) The number of hours of compensatory time off involved in | 288 |
the violation that was initially accrued by the employee; and | 289 |
(3) Costs and reasonable attorney's fees as may be allowed by | 290 |
the court. | 291 |
The liability imposed under this division is in addition to | 292 |
any other civil or criminal liability imposed pursuant to sections | 293 |
4111.01 to 4111.17 of the Revised Code. | 294 |
(C) At the written request of any employee paid less than the | 295 |
wages to which the employee is entitled under section 4111.03 of | 296 |
the Revised Code, the director of commerce may take an assignment | 297 |
of a wage claim in trust for the assigning employee and may bring | 298 |
any legal action necessary to collect the claim. The employer | 299 |
shall pay the costs and reasonable attorney's fees allowed by the | 300 |
court. | 301 |
(D) As used in this section, "compensatory time off" has the | 302 |
same meaning as in section 4111.03 of the Revised Code. | 303 |
Sec. 4111.13. (A) No employer shall hinder or delay the | 304 |
director of commerce in the performance of the director's duties | 305 |
in the enforcement of sections 4111.01 to 4111.17 of the Revised | 306 |
Code, or refuse to admit the director to any place of employment, | 307 |
or fail to make, keep, and preserve any records as required under | 308 |
those sections, or falsify any of those records, or refuse to make | 309 |
them accessible to the director upon demand, or refuse to furnish | 310 |
them or any other information required for the proper enforcement | 311 |
of those sections to the director upon demand, or fail to post a | 312 |
summary of those sections or a copy of any applicable rules as | 313 |
required by section 4111.09 of the Revised Code. Each day of | 314 |
violation constitutes a separate offense. | 315 |
(B) No employer shall discharge or in any other manner | 316 |
discriminate against any employee because the employee has made | 317 |
any complaint to the employee's employer, or to the director, that | 318 |
the employee has not been paid wages in accordance with sections | 319 |
4111.01 to 4111.17 of the Revised Code, or because the employee | 320 |
has made any complaint or is about to cause to be instituted any | 321 |
proceeding under or related to those sections, or because the | 322 |
employee has testified or is about to testify in any proceeding. | 323 |
(C) No employer shall pay or agree to pay wages at a rate | 324 |
less than the rate applicable under sections 4111.01 to 4111.17 of | 325 |
the Revised Code. Each week or portion thereof for which the | 326 |
employer pays any employee less than the rate applicable under | 327 |
those sections constitutes a separate offense as to each employer. | 328 |
(D) No employer that provides compensatory time off under | 329 |
section 4111.031 of the Revised Code shall, directly or | 330 |
indirectly, intimidate, threaten, or coerce, or attempt to | 331 |
intimidate, threaten, or coerce, or terminate or attempt to | 332 |
terminate the employment of, any employee for the purposes of: | 333 |
(1) Interfering with the rights of the employee to request or | 334 |
not request compensatory time off in lieu of payment of monetary | 335 |
overtime compensation for overtime hours; | 336 |
(2) Requiring an employee to use compensatory time off. | 337 |
(E) No employer shall otherwise violate sections 4111.01 to | 338 |
4111.17 of the Revised Code, or any rule adopted thereunder. Each | 339 |
day of violation constitutes a separate offense. | 340 |
(F) As used in this section: | 341 |
(1) "Intimidate, threaten, or coerce" includes promising to | 342 |
confer or conferring any benefit including appointment, | 343 |
promotion, or compensation, or effecting or threatening to effect | 344 |
any reprisal, including deprivation of appointment, promotion, or | 345 |
compensation; | 346 |
(2) "Compensatory time off" has the same meaning as in | 347 |
section 4111.03 of the Revised Code. | 348 |
Sec. 4111.99. (A) Whoever violates division (A) or
| 349 |
section 4111.13 of the Revised Code is guilty of a misdemeanor of | 350 |
the fourth degree. | 351 |
(B) Whoever violates division (B)
| 352 |
4111.13 of the Revised Code is guilty of a misdemeanor of the | 353 |
third degree. | 354 |
(C) Whoever violates section 4111.17 of the Revised Code is | 355 |
guilty of a minor misdemeanor. | 356 |
Section 2. That existing sections 4111.03, 4111.05, 4111.10, | 357 |
4111.13, and 4111.99 of the Revised Code are hereby repealed. | 358 |
Section 3. Not later than thirty days after the effective | 359 |
date of this section, the Director of Commerce shall revise the | 360 |
printed materials that the Director makes available to employers | 361 |
and employees for the purpose of explaining the requirements of | 362 |
sections 4111.01 to 4111.17 of the Revised Code to reflect the | 363 |
amendments made to those sections by this act. | 364 |
Section 4. Section 4111.03 of the Revised Code is presented | 365 |
in this act as a composite of the section as amended by both Sub. | 366 |
H.B. 187 and Am. Sub. H.B. 690 of the 126th General Assembly. The | 367 |
General Assembly, applying the principle stated in division (B) | 368 |
of section 1.52 of the Revised Code that amendments are to be | 369 |
harmonized if reasonably capable of simultaneous operation, finds | 370 |
that the composite is the resulting version of the section in | 371 |
effect prior to the effective date of the section as presented in | 372 |
this act. | 373 |