By: Daniel Burke and Daniel O'Connor*
Ohio Senate Bill 47 (SB 47) took effect on July 6, 2022. This law does not break any new ground, but rather aligns Ohio’s overtime pay requirements with similar provisions of the Fair Labor Standards Act (FLSA) that have been in effect for decades. Most notably, SB 47 created new Ohio Revised Code § 4111.031, which limits an Ohio employer’s obligation to pay overtime for a variety of employee activities occurring outside of the normal workday and establishes an “opt-in” requirement for employees seeking to participate in state class-action claims for failure to pay overtime wages.
Activities Excluded
New Ohio Revised Code § 4111.031 provides that Ohio employers are not required to pay overtime wages for any time that employees spend:
- Walking, riding, or travelling to and from the actual place of performance of the principal activity or activities the employee is employed to perform (eg. the employee’s morning and evening commute).
- Activities that are preliminary or postliminary to the principal activity or activities.
- Activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled work hours (eg. quickly checking voicemail or email after regular work hours).
The above exclusions do not apply, however, if an employee engaged in any of these activities:
- during the regular work day or prescribed work hours; or
- at the specific direction of the employer.
Additionally, these exclusions do not apply if the employee performs the activity pursuant to a contract provision between the employee (or the employee’s collective bargaining representative) and employer, or if the employee performs the task pursuant to an applicable custom or practice that is not inconsistent with such a contract.
The Opt-In Requirement
Employers should especially take note of the new Revised Code section’s adoption of the FLSA’s “opt-in” requirement. This new provision requires potential party plaintiffs in an action to recover allegedly unpaid overtime wages to affirmatively join the lawsuit by filing a written consent with the court in which the action is brought. Prior to SB 47, Ohio law required class-members for unpaid overtime class action suits to “opt-out” of the litigation if they did not wish to participate.
Takeaways
Although this new law does not make any material changes to Ohio’s wage/hour laws, it does provide an excellent opportunity for employers to:
- revisit their policies and practices for tracking and recording time worked for non-exempt employees; and
- assure that they are properly calculating and timely paying overtime worked by non-exempt employees.
Graydon’s labor & employment lawyers stand ready to assist with any questions or concerns you have regarding compliance with state and federal wage/hour and other employment laws.
