Effective July 6, 2022, Ohio’s wage and hour law will more closely align with the federal Fair Labor Standards Act (FLSA). Ohio Governor Mike DeWine signed the changes into law on April 6, 2022 as Senate Bill 47. The changes will be codified in a new Section 4111.031 of the Ohio Revised Code.
The first set of changes concern what activities are considered compensable “hours worked” for purposes of calculating overtime pay owed to non-exempt employees. Under the new Ohio law, time spent in the following activities will not count as “hours worked” for state law purposes, subject to certain exceptions set forth in the law:
(1) walking, riding or traveling to and from the workplace;
(2) “preliminary” activities (performed before an employee starts their principal work activity) and “postliminary” activities (performed after an employee ends their principal work activity); and
(3) “de minimis” activities, i.e., those requiring insubstantial or insignificant periods of time beyond an employee’s scheduled work hours.
Notably, the language in the new Ohio law does not track the FLSA precisely. For example, unlike the FLSA, the new law says that “preliminary” and “postliminary” activities do count towards overtime hours if an employee performs them either during their regular work day, during prescribed work hours or at the specific direction of the employer. Also, whereas the Ohio law defines “de minimis” time as “insubstantial or insignificant” periods of time, the U.S. Department of Labor describes “de minimis” time for FLSA purposes as “infrequent and insignificant” periods of time that cannot as a practical matter be precisely recorded for payroll purposes. Thus, although the new Ohio law appears to simplify compliance for employers familiar with the FLSA, as they say, the “devil is in the details.”
The second change to Ohio overtime law concerns the procedural mechanism to bring a class action for alleged overtime pay violations. The new law prohibits “opt out” class actions for claims brought under Ohio’s overtime law. Aligning with the FLSA, Ohio law will permit only “opt in” collective actions. So-called “hybrid” class/collective actions will be a thing of the past for Ohio employees seeking to recover alleged unpaid overtime. Practically speaking, this change in procedure shifts the leverage substantially in employers’ favor.
In light of the upcoming changes to Ohio law, employers with non-exempt employees in Ohio may want to take a fresh look at their policies and on-the-ground practices. Among the wage & hour issues to look out for are: how employees track their time; when employees start and end their work day; how overtime pay is calculated; and whether supervisors have a keen view of employees’ actual work activities.