Bill Text: OH SB62 | 2011-2012 | 129th General Assembly | Introduced


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.

Spectrum: Partisan Bill (Republican 6-0)

Status: (Introduced - Dead) 2011-02-08 - To Insurance, Commerce, & Labor [SB62 Detail]

Download: Ohio-2011-SB62-Introduced.html
As Introduced

129th General Assembly
Regular Session
2011-2012
S. B. No. 62


Senator Beagle 

Cosponsors: Senators Cates, Jones, Faber, Widener, Seitz 



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

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