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S. B. No. 62 As Introduced
As Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Senators Cates, Jones, Faber, Widener, Seitz
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 give private sector employers the
option to offer and employees the option to
accrue and use compensatory time off in lieu of
monetary overtime compensation.
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 work week, 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 off 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)
"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.
(2) "Collective bargaining agreement" means an agreement
entered into between the representative of an employer and the
exclusive representative of employees in an appropriate unit
regarding the conditions of employment affecting the employees.
(3) "Employ" means to suffer or to permit to work.
(2)(4) "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)(5) "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.
(6) "Exclusive representative" means any labor or employee
organization that is certified as the exclusive representative of
employees under the "National Labor Relations Act," 49 Stat. 449
(1935), 29 U.S.C. 151, as amended, or Chapter 4117. of the Revised
Code, or that is recognized by an employer, immediately before the
effective date of this amendment and for any time that recognition
continues thereafter, as the exclusive representative of
employees in an appropriate unit.
(7) "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 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, if the extra compensation and premium rate
is not paid under an employment contract or collective bargaining
agreement as provided under division (D)(7)(g) of this section, in
excess of the employee's normal or regular working hours;
(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 under 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 under division (A) of
section 4111.03 of the Revised Code.
(B) An employer may provide compensatory time off to an
employee under 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 employees' exclusive
representative that is designated or selected under 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) The employee has affirmed in a written or otherwise
verifiable statement that the employee has initiated a request to
receive compensatory time off in lieu of monetary overtime
compensation and the employer keeps a record of that statement
with the employee's employment records that the employer is
required to make and keep under section 4111.08 of the Revised
Code;
(4) The employee has not already accrued two hundred forty
hours of compensatory time off.
(C)(1) 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 (G) of this
section for any unused compensatory time off that the employee
accrued during 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.
(2) At any time during the calendar year or alternative
twelve-month period, an employer may provide monetary overtime
compensation at the rate required by division (G) of this section
for an employee's unused compensatory time off in excess of
eighty hours. The employer shall give the employee written notice
of the employer's intent to provide that compensation at least
thirty days before doing so.
(D) An employer that provides compensatory time off to an
employee under this section may cease doing so upon giving the
employee written notice of the employer's intent at least thirty
days before discontinuing the practice.
(E) 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
for all of the employee's unused compensatory time off. 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 (G) of this section.
(F) An employer shall pay monetary overtime compensation, in
accordance with division (G) of this section, to an employee for
any unused compensatory time off that the employee has accrued
under this section, upon the voluntary or involuntary termination
of employment.
(G) If an employer pays monetary overtime compensation to an
employee for unused compensatory time off, the employer shall make
payment based on the regular rate of pay received by the employee
when the compensatory time off was earned. For purposes of this
division, compensatory time off shall be deemed used in the same
order it is earned.
(H) Any payment owed to an employee under this section for
unused compensatory time off shall be considered unpaid monetary
overtime compensation.
(I) An employer shall permit an employee who has accrued
compensatory time off authorized under this section the use of
that time within a reasonable period after the employee makes a
request for such use, if the requested use 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 this section:
(1) "Contractor" has the same meaning as in section 4113.61
of the Revised Code.
(2) "Monetary overtime compensation" means pay for overtime
as required under division (A) of section 4111.03 of the Revised
Code.
(3) "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 under 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)(1) 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 the sum of the following:
(a) The number of unused compensatory time off hours involved
in the violation, multiplied by the regular rate of pay received
by the employee when that compensatory time off was earned;
(b) As liquidated damages, the total number of the employee's
compensatory time off hours involved in the violation, multiplied
by the regular rate of pay received by the employee when that
compensatory time off was earned;
(c) Costs and reasonable attorney's fees as may be allowed by
the court.
(2) For purposes of this division, compensatory time off
shall be deemed used in the same order it is earned.
(3) The liability imposed under this division is in addition
to any other civil or criminal liability imposed under sections
4111.01 to 4111.17 of the Revised Code.
(4) As used in this division, "compensatory time off" has the
same meaning as in section 4111.03 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.
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)(1) No employer that provides compensatory time off to an
employee 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, that employee for the
purposes of:
(a) Interfering with the employee's rights to request or not
request compensatory time off in lieu of monetary overtime
compensation;
(b) Requiring the employee to use compensatory time off.
(2) As used in this division:
(a) "Compensatory time off" has the same meaning as in
section 4111.03 of the Revised Code.
(b) "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.
(c) "Monetary overtime compensation" has the same meaning as
in section 4111.031 of the Revised Code.
(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.
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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