Bill Text: OH HB61 | 2011-2012 | 129th General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: 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 and to narrow the class of full-time township employees for whom the employer must provide, on a uniform basis, health insurance coverage.

Spectrum: Partisan Bill (Republican 16-0)

Status: (Introduced - Dead) 2011-03-01 - Committee Report - S [HB61 Detail]

Download: Ohio-2011-HB61-Introduced.html

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As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 61

Representatives Thompson, Martin 

Cosponsors: Representatives Ruhl, Sears, Wachtmann, Baker, Blessing, Derickson, Adams, J., Brenner, Kozlowski, Blair, Snitchler, Stebelton, Slaby, Boose 

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A BILL

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 give private sector employers the

3

option to offer and employees the option to

4

accrue and use compensatory time off in lieu of

5

monetary overtime compensation.

6

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

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) AnExcept as otherwise provided in section	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 workweekwork week, in the manner and methods provided in and	14
subject to the exemptions of section 7 and section 13 of the	15
"Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A.	16
207, 213, as 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 off may be granted by the employee's administrative superior,	22
on a time and one-half basis, at a time mutually convenient to	23
the employee and the administrative superior within one hundred	24
eighty 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) "Compensatory time off" means hours during which an	39
employee is not working that are not counted as hours worked	40
during the applicable work week or other work period for purposes	41
of overtime compensation and for which the employer compensates	42
the employee at the employee's regular rate of pay.	43

(2) "Collective bargaining agreement" means an agreement	44
entered into between the representative of an employer and the	45
exclusive representative of employees in an appropriate unit	46
regarding the conditions of employment affecting the employees.	47

(3) "Employ" means to suffer or to permit to work.

48

(2)(4) "Employer" means the state of Ohio, its	49
instrumentalities, and its political subdivisions and their	50
instrumentalities, any individual, partnership, association,	51
corporation, business trust, or any person or group of persons,	52
acting in the interest of an employer in relation to an employee,	53
but does not include an employer whose annual gross volume of	54
sales made for business done is less than one hundred fifty	55
thousand dollars, exclusive of excise taxes at the retail level	56
which are separately stated.	57

(3)(5) "Employee" means any individual employed by an	58
employer but does not include:	59

(a) Any individual employed by the United States;

60

(b) Any individual employed as a baby-sitter in the	61
employer's home, or a live-in companion to a sick, convalescing,	62
or elderly person whose principal duties do not include	63
housekeeping;	64

(c) Any individual engaged in the delivery of newspapers to	65
the consumer;	66

(d) Any individual employed as an outside salesperson	67
compensated by commissions or employed in a bona fide executive,	68
administrative, or professional capacity as such terms are defined	69
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29	70
U.S.C.A. 201, as amended;	71

(e) Any individual who works or provides personal services of	72
a charitable nature in a hospital or health institution for which	73
compensation is not sought or contemplated;	74

(f) A member of a police or fire protection agency or student	75
employed on a part-time or seasonal basis by a political	76
subdivision of this state;	77

(g) Any individual in the employ of a camp or recreational	78
area for children under eighteen years of age and owned and	79
operated by a nonprofit organization or group of organizations	80
described in Section 501 (c)(3) of the "Internal Revenue Code of	81
1954," and exempt from income tax under Section 501 (a) of that	82
code;	83

(h) Any individual employed directly by the house of	84
representatives or directly by the senate.	85

(6) "Exclusive representative" means any labor or employee	86
organization that is certified as the exclusive representative of	87
employees under the "National Labor Relations Act," 49 Stat. 449	88
(1935), 29 U.S.C. 151, as amended, or Chapter 4117. of the Revised	89
Code, or that is recognized by an employer, immediately before the	90
effective date of this amendment and for any time that recognition	91
continues thereafter, as the exclusive representative of	92
employees in an appropriate unit.	93

(7) "Regular rate" includes all remuneration for employment	94
paid to, or on behalf of, an employee except:	95

(a) Sums paid as gifts, or payments in the nature of gifts	96
made on the occasion of a holiday or other special occasion as a	97
reward for service, the amounts of which are not measured by or	98
dependent on hours worked, production, or efficiency;	99

(b) Payments made for occasional periods when no work is	100
performed due to vacation, holiday, illness, failure of the	101
employer to provide sufficient work, or other similar cause,	102
reasonable payment for traveling expenses or other expenses	103
incurred by an employee in the furtherance of the employer's	104
interests and properly reimbursable by the employer, and other	105
similar payments to an employee that are not made as compensation	106
for hours of employment;	107

(c) Sums paid in recognition of services performed during a	108
given period if any of the following applies:	109

(i) The decision to make payment and the amount of the	110
payment is determined at the sole discretion of the employer at or	111
near the end of the period, and not pursuant to any prior	112
contract, agreement, or promise causing the employee to expect the	113
payments regularly.	114

(ii) The payments are made pursuant to a bona fide	115
profit-sharing plan or trust or bona fide thrift or savings plan.	116

(iii) The payments are talent fees paid to performers,	117
including announcers, on radio and television programs.	118

(d) Contributions irrevocably made by an employer to a	119
trustee or third person pursuant to a bona fide plan for providing	120
old-age, retirement, life, accident, or health insurance or	121
similar benefits for employees;	122

(e) Extra compensation provided by a premium rate paid for	123
certain hours worked by the employee in a day or work week because	124
the hours are worked in excess of eight in a day or in excess of	125
the maximum work week applicable to the employee under division	126
(A) of this section or, if the extra compensation and premium rate	127
is not paid under an employment contract or collective bargaining	128
agreement as provided under division (D)(7)(g) of this section, in	129
excess of the employee's normal or regular working hours;	130

(f) Extra compensation provided by a premium rate paid for	131
work by the employee on Saturdays, Sundays, holidays, or regular	132
days of rest, or on the sixth or seventh day of the work week	133
where the premium rate is not less than one and one-half times the	134
rate established in good faith for like work performed during	135
nonovertime hours on other days;	136

(g) Extra compensation provided by a premium rate paid to an	137
employee under an applicable employment contract or collective	138
bargaining agreement, for work outside of the hours established in	139
good faith by the contract or agreement and outside of the basic,	140
normal, or regular workday that does not exceed eight hours, or of	141
the work week that does not exceed the maximum work week	142
applicable to the employee under division (A) of this section,	143
where the premium rate is not less than one and one-half times	144
the rate established in good faith by the contract or agreement	145
for like work performed during the workday or work week.	146

Sec. 4111.031. (A) An employee other than an employee	147
described in division (J) of this section may receive, in	148
accordance with this section and in lieu of monetary overtime	149
compensation, compensatory time off at a rate of not less than one	150
and one-half hours for each hour of employment for which monetary	151
overtime compensation otherwise is required under division (A) of	152
section 4111.03 of the Revised Code.	153

(B) An employer may provide compensatory time off to an	154
employee under this section only in accordance with the following	155
provisions and conditions:	156

(1) The applicable provisions of a collective bargaining	157
agreement between the employer and the employees' exclusive	158
representative that is designated or selected under section 9(a)	159
of the "National Labor Relations Act," 49 Stat. 449 (1935), 29	160
U.S.C. 159(a), as amended;	161

(2) In the case of employees who are not represented by a	162
labor organization as provided in section 9(a) of the "National	163
Labor Relations Act," 49 Stat. 449 (1935), 29 U.S.C. 159(a), as	164
amended, an agreement or understanding arrived at between the	165
employer and employee before the performance of the work involved,	166
if the agreement or understanding is entered into knowingly and	167
voluntarily by and at the initiation and request of the employee,	168
and is not a condition of employment;	169

(3) The employee has affirmed in a written or otherwise	170
verifiable statement that the employee has initiated a request to	171
receive compensatory time off in lieu of monetary overtime	172
compensation and the employer keeps a record of that statement	173
with the employee's employment records that the employer is	174
required to make and keep under section 4111.08 of the Revised	175
Code;	176

(4) The employee has not already accrued two hundred forty	177
hours of compensatory time off.	178

(C)(1) Not later than the thirty-first day of January of each	180
calendar year, an employer shall provide monetary overtime	181
compensation at the rate prescribed by division (G) of this	182
section for any unused compensatory time off that the employee	183
accrued during the preceding calendar year. An employer may	184
designate and communicate to its employees an alternative	185
twelve-month period other than the calendar year, in which case	186
the monetary overtime compensation payment required by this	187
division shall be paid not later than thirty-one days after the	188
end of the alternative twelve-month period.	189

(2) At any time during the calendar year or alternative	190
twelve-month period, an employer may provide monetary overtime	191
compensation at the rate required by division (G) of this section	192
for an employee's unused compensatory time off in excess of	193
eighty hours. The employer shall give the employee written notice	194
of the employer's intent to provide that compensation at least	195
thirty days before doing so.	196

(D) An employer that provides compensatory time off to an	197
employee under this section may cease doing so upon giving the	198
employee written notice of the employer's intent at least thirty	199
days before discontinuing the practice.	200

(E) An employee may withdraw an agreement or understanding	201
described in division (B)(2) of this section at any time and may	202
request in writing that monetary overtime compensation be provided	203
for all of the employee's unused compensatory time off. Within	204
thirty days after receipt of the written request, the employer	205
shall pay to the employee the monetary overtime compensation due	206
in accordance with division (G) of this section.	207

(F) An employer shall pay monetary overtime compensation, in	208
accordance with division (G) of this section, to an employee for	209
any unused compensatory time off that the employee has accrued	210
under this section, upon the voluntary or involuntary termination	211
of employment.	212

(G) If an employer pays monetary overtime compensation to an	213
employee for unused compensatory time off, the employer shall make	214
payment based on the regular rate of pay received by the employee	215
when the compensatory time off was earned. For purposes of this	216
division, compensatory time off shall be deemed used in the same	217
order it is earned.	218

(H) Any payment owed to an employee under this section for	219
unused compensatory time off shall be considered unpaid monetary	220
overtime compensation.	221

(I) An employer shall permit an employee who has accrued	222
compensatory time off authorized under this section the use of	223
that time within a reasonable period after the employee makes a	224
request for such use, if the requested use does not unduly disrupt	225
the operations of the employer.	226

(J) This section does not apply to any of the following	227
employees:	228

(1) An employee of the state, its instrumentalities, or its	229
political subdivisions or their instrumentalities;	230

(2) An individual employed by a contractor or subcontractor	231
to perform labor or provide services to construct, alter, erect,	232
improve, repair, demolish, remove, dig, or drill any part of a	233
structure or improvement.	234

(K) As used in this section:

235

(1) "Contractor" has the same meaning as in section 4113.61	236
of the Revised Code.	237

(2) "Monetary overtime compensation" means pay for overtime	238
as required under division (A) of section 4111.03 of the Revised	239
Code.	240

(3) "Subcontractor" has the same meaning as in section	241
1311.01 of the Revised Code.	242

Sec. 4111.05.  The director of commerce shall adopt rules in	243
accordance with Chapter 119. of the Revised Code as the director	244
considers appropriate to carry out the purposes of sections	245
4111.01 to 4111.17 of the Revised Code. The rules may be amended	246
from time to time and may include, but are not limited to, rules	247
defining and governing apprentices, their number, proportion, and	248
length of service; bonuses and special pay for special or extra	249
work; permitted deductions or charges to employees for board,	250
lodging, apparel, or other facilities or services customarily	251
furnished by employers to employees; inclusion of ascertainable	252
gratuities in wages paid; allowances for unascertainable	253
gratuities or for other special conditions or circumstances which	254
may be usual in particular employer-employee relationships;	255
compensatory time off for employees under section 4111.031 of the	256
Revised Code; and the method of computation or the period of time	257
over which wages may be averaged to determine whether the minimum	258
wage or overtime rate has been paid.	259

Sec. 4111.10.  (A) Any employer who pays any employee less	260
than wages to which the employee is entitled under section 4111.03	261
of the Revised Code, is liable to the employee affected for the	262
full amount of the overtime wage rate, less any amount actually	263
paid to the employee by the employer, and for costs and reasonable	264
attorney's fees as may be allowed by the court. Any agreement	265
between the employee and the employer to work for less than the	266
overtime wage rate is no defense to an action.	267

(B)(1) Any employer who violates division (D) of section	268
4111.13 of the Revised Code is liable to the employee affected in	269
a dollar amount equal to the sum of the following:	270

(a) The number of unused compensatory time off hours involved	271
in the violation, multiplied by the regular rate of pay received	272
by the employee when that compensatory time off was earned;	273

(b) As liquidated damages, the total number of the employee's	274
compensatory time off hours involved in the violation, multiplied	275
by the regular rate of pay received by the employee when that	276
compensatory time off was earned;	277

(c) Costs and reasonable attorney's fees as may be allowed by	278
the court.	279

(2) For purposes of this division, compensatory time off	280
shall be deemed used in the same order it is earned.	281

(3) The liability imposed under this division is in addition	282
to any other civil or criminal liability imposed under sections	283
4111.01 to 4111.17 of the Revised Code.	284

(4) As used in this division, "compensatory time off" has the	285
same meaning as in section 4111.03 of the Revised Code.	286

(C) At the written request of any employee paid less than the	287
wages to which the employee is entitled under section 4111.03 of	288
the Revised Code, the director of commerce may take an assignment	289
of a wage claim in trust for the assigning employee and may bring	290
any legal action necessary to collect the claim. The employer	291
shall pay the costs and reasonable attorney's fees allowed by the	292
court.	293

Sec. 4111.13.  (A) No employer shall hinder or delay the	294
director of commerce in the performance of the director's duties	295
in the enforcement of sections 4111.01 to 4111.17 of the Revised	296
Code, or refuse to admit the director to any place of employment,	297
or fail to make, keep, and preserve any records as required under	298
those sections, or falsify any of those records, or refuse to make	299
them accessible to the director upon demand, or refuse to furnish	300
them or any other information required for the proper enforcement	301
of those sections to the director upon demand, or fail to post a	302
summary of those sections or a copy of any applicable rules as	303
required by section 4111.09 of the Revised Code. Each day of	304
violation constitutes a separate offense.	305

(B) No employer shall discharge or in any other manner	306
discriminate against any employee because the employee has made	307
any complaint to the employee's employer, or to the director, that	308
the employee has not been paid wages in accordance with sections	309
4111.01 to 4111.17 of the Revised Code, or because the employee	310
has made any complaint or is about to cause to be instituted any	311
proceeding under or related to those sections, or because the	312
employee has testified or is about to testify in any proceeding.	313

(C) No employer shall pay or agree to pay wages at a rate	314
less than the rate applicable under sections 4111.01 to 4111.17 of	315
the Revised Code. Each week or portion thereof for which the	316
employer pays any employee less than the rate applicable under	317
those sections constitutes a separate offense as to each employer.	318

(D)(1) No employer that provides compensatory time off to an	319
employee under section 4111.031 of the Revised Code shall,	320
directly or indirectly, intimidate, threaten, or coerce, or	321
attempt to intimidate, threaten, or coerce, or terminate or	322
attempt to terminate the employment of, that employee for the	323
purposes of:	324

(a) Interfering with the employee's rights to request or not	325
request compensatory time off in lieu of monetary overtime	326
compensation;	327

(b) Requiring the employee to use compensatory time off.

328

(2) As used in this division:

329

(a) "Compensatory time off" has the same meaning as in	330
section 4111.03 of the Revised Code.	331

(b) "Intimidate, threaten, or coerce" includes promising to	332
confer or conferring any benefit including appointment,	333
promotion, or compensation, or effecting or threatening to effect	334
any reprisal, including deprivation of appointment, promotion, or	335
compensation.	336

(c) "Monetary overtime compensation" has the same meaning as	337
in section 4111.031 of the Revised Code.	338

(E) No employer shall otherwise violate sections 4111.01 to	339
4111.17 of the Revised Code, or any rule adopted thereunder. Each	340
day of violation constitutes a separate offense.	341

Sec. 4111.99.  (A) Whoever violates division (A) or (D)(E) of	342
section 4111.13 of the Revised Code is guilty of a misdemeanor of	343
the fourth degree.	344

(B) Whoever violates division (B) or, (C),or(D) of section	345
4111.13 of the Revised Code is guilty of a misdemeanor of the	346
third degree.	347

(C) Whoever violates section 4111.17 of the Revised Code is	348
guilty of a minor misdemeanor.	349

Section 2.  That existing sections 4111.03, 4111.05, 4111.10,	350
4111.13, and 4111.99 of the Revised Code are hereby repealed.	351

Section 3.  Not later than thirty days after the effective	352
date of this section, the Director of Commerce shall revise the	353
printed materials that the Director makes available to employers	354
and employees for the purpose of explaining the requirements of	355
sections 4111.01 to 4111.17 of the Revised Code to reflect the	356
amendments made to those sections by this act.	357

Section 4.  Section 4111.03 of the Revised Code is presented	358
in this act as a composite of the section as amended by both Sub.	359
H.B. 187 and Am. Sub. H.B. 690 of the 126th General Assembly. The	360
General Assembly, applying the principle stated in division (B)	361
of section 1.52 of the Revised Code that amendments are to be	362
harmonized if reasonably capable of simultaneous operation, finds	363
that the composite is the resulting version of the section in	364
effect prior to the effective date of the section as presented in	365
this act.	366