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S. B. No. 17 As Reported by the Senate Insurance, Commerce and Labor Committee
As Reported by the Senate Insurance, Commerce and Labor Committee
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Senators Buehrer, Cates, Gibbs, Schaffer, Schuler, Seitz, Wagoner
A BILL
To amend sections 4111.03, 4111.05, 4111.10,
4111.13,
and 4111.99 and to enact section
4111.031 of
the
Revised Code to
afford
to private sector
employers the
option to
offer
and
to employees
the option to accrue
and
use
compensatory time
off.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4111.03, 4111.05, 4111.10,
4111.13,
and
4111.99 be amended and section 4111.031 of the Revised Code be
enacted to read as
follows:
Sec. 4111.03. (A) An Except as otherwise provided in section
4111.031 of the Revised Code, an employer shall pay an employee
for
overtime at a wage rate of one and one-half times the
employee's
wage rate for hours worked in excess of forty hours in
one
workweek, in the
manner and methods provided in and subject
to
the
exemptions of section 7 and section 13 of the
"Fair
Labor
Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 207, 213, as
amended.
Any employee employed in agriculture shall not be covered
by
the overtime provision of this section.
(B) If a county employee elects to take compensatory time
off
in lieu of overtime pay, for any overtime worked,
compensatory
time may be granted by the employee's
administrative
superior,
on
a time and one-half basis, at a time mutually
convenient to
the
employee and the administrative superior within
one hundred
eighty
days after the overtime is worked.
(C) A county appointing authority with the exception of
the
county department of job and family services may, by
rule or
resolution as is appropriate, indicate the authority's intention
not to be bound by division (B) of this section, and to
adopt a
different policy for the calculation and payment of
overtime than
that established by that division. Upon adoption, the
alternative
overtime policy prevails. Prior to the adoption of an
alternative
overtime policy, a county appointing authority with
the exception
of the county department of job and family
services
shall
give a
written notice of the alternative policy to each
employee
at least
ten days prior to its effective date.
(D) As used in this section and section 4111.031 of the
Revised Code:
(1)
"Employ" means to suffer or to permit to work.
(2)
"Employer" means the state of Ohio, its
instrumentalities, and its political subdivisions and their
instrumentalities, any individual, partnership, association,
corporation, business trust, or any person or group of persons,
acting in the interest of an employer in relation to an employee,
but does not include an employer whose annual gross volume of
sales made for business done is less than one hundred fifty
thousand dollars, exclusive of excise taxes at the retail level
which are separately stated.
(3)
"Employee" means any individual employed by an
employer
but does not include:
(a) Any individual employed by the United States;
(b) Any individual employed as a baby-sitter in the
employer's home, or a live-in companion to a sick, convalescing,
or elderly person whose principal duties do not include
housekeeping;
(c) Any individual engaged in the delivery of newspapers
to
the consumer;
(d) Any individual employed as an outside salesperson
compensated by commissions or employed in a bona fide executive,
administrative, or professional capacity as such terms are
defined
by the
"Fair Labor Standards Act of 1938," 52 Stat. 1060,
29
U.S.C.A. 201, as amended;
(e) Any individual who works or provides personal services
of
a charitable nature in a hospital or health institution for
which
compensation is not sought or contemplated;
(f) A member of a police or fire protection agency or
student
employed on a part-time or seasonal basis by a political
subdivision of this state;
(g) Any individual in the employ of a camp or recreational
area for children under eighteen years of age and owned and
operated by a nonprofit organization or group of organizations
described in Section 501 (c)(3) of the
"Internal Revenue Code of
1954," and exempt from income tax under Section 501 (a) of that
code;
(h) Any individual employed directly by the house of
representatives or
directly by the senate.
(4)
"Monetary overtime compensation"
means pay for overtime
as required by division
(A) of this section.
(5) "Compensatory time
off" means hours during which an
employee is not working that
are not counted as hours worked
during the applicable work week
or other work period for purposes
of overtime compensation and
for which the employer compensates
the employee at the
employee's regular rate of pay.
(6)
"To bargain collectively" means the performance of the
mutual obligation of the representative of an employer and the
exclusive representative of employees in an appropriate unit to
meet at reasonable times and to consult and bargain in a good
faith effort to reach agreement with respect to the conditions
of
employment affecting the employees and to execute, if
requested by
either party, a written document incorporating any
collective
bargaining agreement reached, but the obligation does
not compel
either party to agree to a proposal or to make a
concession.
(7) "Collective
bargaining agreement" means an agreement
entered into as a result
of employees bargaining collectively with
an employer.
(8)
"Exclusive
representative" means any labor or employee
organization that is
certified as the exclusive representative of
employees by means
of any one of the following processes:
(a)
Pursuant to the
"National
Labor Relations Act," 49 Stat.
449 (1935),
29 U.S.C. 151, as amended;
(b)
Pursuant to Chapter 4117. of the
Revised Code;
(c)
Recognition by an employer, immediately before
the
effective date of this amendment, as the exclusive
representative
of employees in an appropriate unit, on the basis
of an election
or on any other basis, and that continues to be
so
recognized.
(9)
"Regular rate"
includes all remuneration for employment
paid to, or on behalf
of, an employee except:
(a)
Sums paid as gifts, or payments in the nature of gifts
made on the occasion of a holiday or other special occasion as a
reward for service, the amounts of which are not measured by or
dependent on hours worked, production, or efficiency;
(b)
Payments made for occasional periods when no work is
performed due to vacation, holiday, illness, failure of the
employer to provide sufficient work, or other similar cause,
reasonable payment for traveling expenses or other expenses
incurred by an employee in the furtherance of the employer's
interests and properly reimbursable by the employer, and other
similar payments to an employee that are not made as
compensation
for hours of employment;
(c)
Sums paid in recognition of services performed during
a
given period if any of the following applies:
(i)
The decision to make payment and determine the
amount of
the payment is determined at the sole
discretion of the employer
at or near the end of the period, and
not pursuant to any prior
contract, agreement, or promise
causing the employee to expect the
payments regularly.
(ii)
The payments are made pursuant to a
bona fide
profit-sharing plan or trust or bona fide thrift or
savings plan.
(iii)
The payments are talent fees paid to
performers,
including announcers, on radio and television
programs.
(d)
Contributions irrevocably made by an employer to a
trustee or third person pursuant to a bona fide plan for
providing
old-age, retirement, life, accident, or health
insurance or
similar benefits for employees;
(e)
Extra compensation provided by a premium rate paid
for
certain hours worked by the employee in a day or work week
because
the hours are worked in excess of eight in a day or in
excess of
the maximum work week applicable to the employee under
division
(A) of this section or in excess of the
employee's normal working
hours or regular working hours, as the
case may be;
(f)
Extra compensation provided by a premium rate paid
for
work by the employee on
Saturdays, Sundays, holidays, or regular
days of rest,
or on the sixth or seventh day of the work week
where the
premium rate is not less than one and one-half times the
rate
established in good faith for like work performed during
nonovertime hours on other days;
(g)
Extra compensation provided by a premium rate paid
to an
employee pursuant to an applicable employment contract or
collective bargaining agreement, for work outside of the hours
established in good faith by the contract or agreement and outside
of the
basic, normal, or regular workday that does not exceed
eight hours, or
of the work week that does not exceed the maximum
work week applicable to
the employee under division (A)
of this
section, where the premium rate is
not less
than one and one-half
times the rate established in
good faith by
the contract or
agreement for like work performed
during the
workday or work week.
Sec. 4111.031. (A)
An employee
other than an employee
described in division (J) of this section may
receive, in
accordance with this section
and in lieu of
monetary overtime
compensation, compensatory time
off at a rate
of not less than one
and one-half hours for each
hour of
employment for which monetary
overtime compensation
otherwise is required
by division (A) of
section 4111.03 of the Revised Code.
(B)
An employer may provide compensatory time off to
employees pursuant to this section only in accordance with
the
following
provisions and conditions:
(1)
The applicable provisions of a collective
bargaining
agreement between the employer and the exclusive representative
of
the
employees recognized as provided in section
9(a)
of the
"National
Labor Relations Act," 49
Stat. 449 (1935), 29
U.S.C.
159(a),
as
amended;
(2)
In the case of employees who are not
represented by a
labor organization as provided in section 9(a)
of the
"National
Labor
Relations
Act," 49
Stat. 449 (1935), 29
U.S.C.
159(a),
as
amended, an agreement or understanding
arrived at between the
employer and employee before the
performance of the work involved,
if the agreement or
understanding is entered into knowingly and
voluntarily by and at the
initiation and request of the
employee,
and is not a condition of employment;
(3)
If the employee has affirmed in a written
or otherwise
verifiable statement that is made, kept, and
preserved in
accordance with section 4111.08 and rules adopted under section
4111.05 of the Revised
Code that the employee has
initiated a
request to receive compensatory time off in lieu of monetary
overtime compensation;
(4)
If the employee has not accrued
compensatory time off in
excess of the limit applicable to the
employee as prescribed in
division (C) of
this section.
(C)
An employee may accrue not more than
two hundred
forty
hours of compensatory time off.
(D)
Not later than the thirty-first day of
January of each
calendar year, an employer
shall provide monetary overtime
compensation at the rate prescribed by division
(H) of this
section for any unused
compensatory time off accrued during the
preceding calendar year
that was not used prior to the
thirty-first day of
December of the preceding
calendar year. An
employer may designate and communicate to its employees an
alternative twelve-month period other than the calendar year, in
which case the monetary overtime compensation payment required by
this
division shall be paid
not later than
thirty-one days after
the end of the alternative twelve-month
period. An employer may
provide monetary overtime
compensation
at the rate required by
division
(H) of this section for an
employee's unused compensatory
time off in excess of eighty
hours
at any time after giving the
employee written notice of that intent at least thirty days before
providing that compensation.
(E)
An employer that has adopted a policy offering
compensatory time off to employees may discontinue that policy
upon giving the employees written notice of that intent at least
thirty days before the discontinuation.
(F)
An employee may withdraw an agreement or understanding
described in division
(B)(2)
of this section at
any time and
may
request in writing that monetary overtime
compensation be
provided, at any time, for all compensatory time
off accrued
that
has not yet been used at the time the employee
makes the
request.
Within thirty days after receipt of the
written
request, the
employer shall pay to the employee the
monetary
overtime
compensation due in accordance with division
(H) of this section.
(G)
Any payment owed to an employee under this section for
unused compensatory time off shall be considered unpaid monetary
overtime compensation. An employer shall pay monetary overtime
compensation, in
accordance with division
(H) of this section, to
an employee
who has accrued unused
compensatory time off pursuant
to this
section, upon the voluntary or
involuntary
termination of
employment.
(H)
If an employer pays monetary overtime compensation to
an
employee for accrued compensatory time off, the employer
shall
make payment based on a rate of compensation that is the higher
of:
(1)
The regular rate of pay received by the
employee when
the
compensatory time off was earned;
(2)
The final regular rate of pay received by the
employee.
(I)
An employer shall permit an employee who has accrued
compensatory time off authorized under this section and who has
requested the use of the compensatory time off, the use of that
time within a reasonable period after the employee makes the
request, if the use of the compensatory time off does not unduly
disrupt the operations of the employer.
(J) This section does not apply to any of the following
employees:
(1) An employee of the state, its instrumentalities,
or its
political subdivisions or their
instrumentalities;
(2) An individual employed by a contractor or subcontractor
to perform labor or provide services to construct, alter, erect,
improve, repair, demolish, remove, dig, or drill any part of a
structure or improvement.
(K) As used in division (J)(2) of this section, "contractor"
has the same meaning as in section 4113.61 of the Revised Code and
"subcontractor" has the same meaning as in section 1311.01 of the
Revised Code.
Sec. 4111.05. The director of commerce shall
adopt rules in
accordance with Chapter 119. of the Revised Code as
the director
considers appropriate to carry out the purposes of
sections
4111.01 to 4111.17 of the Revised Code. The rules may be amended
from time to time and may include, but are not limited to, rules
defining and governing apprentices, their number, proportion, and
length of service; bonuses and special pay for special or extra
work; permitted deductions or charges to employees for board,
lodging, apparel, or other facilities or services customarily
furnished by employers to employees; inclusion of ascertainable
gratuities in wages paid; allowances for unascertainable
gratuities or for other special conditions or circumstances which
may be usual in particular employer-employee relationships;
compensatory
time off for
employees pursuant to section 4111.031
of
the
Revised Code; and
the method of computation or the period
of
time
over which wages
may be averaged to determine whether the
minimum
wage or overtime
rate has been paid.
Sec. 4111.10. (A) Any employer who pays any employee less
than wages to
which the employee is entitled under section 4111.03
of the
Revised Code, is liable to the employee
affected for the
full amount of the overtime
wage rate, less any amount
actually
paid to the employee by the employer, and
for costs and
reasonable
attorney's fees as may be allowed by the court. Any
agreement
between the employee and the employer to work for less
than the
overtime wage
rate is no defense to an action.
(B)
Any employer who violates division
(D) of section
4111.13
of the
Revised Code is liable to the employee
affected in
a dollar
amount equal to:
(a)
The rate of compensation determined in
accordance with
division (H) of section 4111.031 of the
Revised Code; and
(b)
The number of hours of compensatory
time off involved in
the violation that was initially accrued by
the employee minus the
number of compensatory time off hours
used by the employee; and
(2)
As liquidated damages, the product of:
(a)
The rate of compensation determined in
accordance with
division (H) of section 4111.031 of the
Revised Code; and
(b)
The number of hours of compensatory
time off involved in
the violation that was initially accrued by
the employee; and
(3)
Costs and reasonable attorney's fees as may be allowed
by
the
court.
The liability imposed under this division is in addition
to
any other civil or criminal liability imposed pursuant to
sections
4111.01 to 4111.17 of the
Revised Code.
(C) At the written request of any employee paid less than
the
wages to which
the employee is entitled under section 4111.03 of
the Revised Code, the director of commerce may
take
an assignment
of a wage claim in trust for the assigning employee
and may
bring
any legal action necessary to
collect the claim.
The employer
shall pay the costs and reasonable attorney's
fees
allowed by the
court.
(D) As used in this section, "compensatory time off" has the
same meaning as in section 4111.03 of the Revised Code.
Sec. 4111.13. (A) No employer shall hinder or delay the
director of commerce in
the performance of the
director's duties
in the
enforcement of sections 4111.01 to 4111.17 of the Revised
Code, or refuse to
admit the director to any place of employment,
or
fail to make,
keep, and preserve any records as required under
those sections, or falsify
any of those records, or refuse to make
them accessible to the
director upon demand, or refuse to furnish
them or
any other information
required for the proper
enforcement
of those sections to the director upon
demand, or fail to
post a
summary of those sections or a copy of any applicable rules as
required
by section 4111.09 of the Revised Code. Each day of
violation constitutes a
separate offense.
(B) No employer shall discharge or in any other manner
discriminate against
any employee because the employee has made
any complaint to the
employee's employer, or
to the director, that
the
employee has not been paid
wages in accordance with
sections
4111.01 to 4111.17 of the Revised Code, or because the employee
has
made any complaint or is about to cause to be instituted any
proceeding under
or related to those sections, or because the
employee has testified or is
about to testify in any proceeding.
(C) No employer shall pay or agree to pay wages at a rate
less than the rate
applicable under sections 4111.01 to 4111.17 of
the Revised Code. Each week
or portion thereof for which the
employer pays any employee less than the rate
applicable under
those sections constitutes a separate offense as to each
employer.
(D) No employer that provides
compensatory time off under
section 4111.031 of the
Revised Code shall, directly
or
indirectly, intimidate, threaten,
or coerce, or attempt to
intimidate, threaten, or coerce, or terminate or attempt to
terminate the employment of, any
employee for the purposes
of:
(1)
Interfering with the rights of the
employee to request
or
not request compensatory time off in lieu
of payment of
monetary
overtime compensation for overtime hours;
(2)
Requiring an employee to use compensatory
time off.
(E) No employer shall otherwise violate sections 4111.01
to
4111.17 of the Revised Code, or any rule adopted thereunder. Each
day of
violation constitutes a separate offense.
(F)
As used in this section:
(1) "Intimidate,
threaten,
or coerce" includes promising to
confer or conferring
any benefit
including appointment,
promotion, or compensation,
or
effecting or
threatening to effect
any reprisal, including
deprivation of
appointment, promotion, or
compensation;
(2) "Compensatory time off" has the same meaning as in
section 4111.03 of the Revised Code.
Sec. 4111.99. (A) Whoever violates division (A) or
(D)(E)
of
section 4111.13 of the Revised Code is guilty of a misdemeanor
of
the fourth
degree.
(B) Whoever violates division (B)
or, (C),
or
(D) of section
4111.13 of the Revised
Code is guilty of a misdemeanor of the
third degree.
(C) Whoever violates section 4111.17 of the Revised Code is
guilty of a minor
misdemeanor.
Section 2. That existing sections 4111.03, 4111.05,
4111.10,
4111.13,
and 4111.99 of the Revised Code are hereby
repealed.
Section 3. Not later than thirty days after the effective
date
of this section, the
Director of Commerce shall revise the
printed
materials that the Director makes available to employers
and
employees
for the purpose of explaining the requirements of
sections 4111.01 to 4111.17
of the Revised Code to reflect the
amendments made to those sections by this
act.
Section 4. Section 4111.03 of the Revised Code is
presented
in
this act as a composite of the section as amended by
both Sub.
H.B. 187 and Am. Sub. H.B. 690 of
the 126th General
Assembly. The
General Assembly, applying the
principle stated in
division (B)
of section 1.52 of the Revised
Code that amendments
are to be
harmonized if reasonably capable of
simultaneous
operation, finds
that the composite is the resulting
version of
the section in
effect prior to the effective date of
the section
as presented in
this act.
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