Ohio Adopts Provisions of the FLSA to Eliminate Hybrid Actions and Clarify Compensable Time

Ohio Governor Mike DeWine signed Senate Bill 47 (SB 47) into law on April 6. SB 47 goes into effect on July 6 and includes new Ohio Revised Code § 4111.031, which limits an employer's obligation to pay overtime for certain work-related tasks that occur outside of the workday. Section 4111.031 largely mirrors Sections 2 and 4 of the Portal to Portal Act of 1947, an amendment to the Fair Labor Standards Act (FLSA), and incorporates the FLSA's "opt-in" requirement for individuals who seek to join a collective action involving state-law claims for failure to pay overtime wages, making both state-law claims for failure to pay overtime or minimum wage "opt-in" under the Ohio law.

Exceptions to Overtime Wages—and Some Caveats

The new O.R.C. § 4111.031 states that employers are not required to pay overtime wages for any time that employees spend on:

• Walking, riding or traveling to and from the actual place of performance of the principal activity or activities that the employee is employed to perform (e.g., commuting to and from work).
• Activities that are preliminary to or postliminary to the principal activity or activities (e.g., showering after a shift, but before going home).
• Activities requiring insubstantial or insignificant periods of time beyond the employee's scheduled work hours (e.g., quickly checking e-mail after hours).

However, the foregoing exclusion for "preliminary and postliminary" activities does not apply if the employee performs the tasks: (1) during the regular workday or prescribed work hours; or (2) at the specific direction of the employer. Also, none of the foregoing exclusions apply if the employee performs the activity "pursuant to an express provision of a written or unwritten contract in effect, at the time of performance, between the employee or the employee's agent or collective bargaining representative and the employee's employer" or if the employee performs the activity pursuant to a custom or practice applicable to the activity which is not inconsistent with such a contract. Ohio employers should seek legal guidance to familiarize themselves with these exceptions.

Adoption of the FLSA's Opt-In Requirement

For employees interested in joining a civil action to recover allegedly unpaid overtime wages under Ohio law, SB 47 contains another new provision codified at O.R.C. § 4111.10(C), which requires potential party plaintiffs to affirmatively join the lawsuit by filing a written consent to become a party plaintiff with the court in which the action is brought. This provision mirrors the "opt-in" provision found in FLSA § 216(b). Presently, Ohio law requires only that plaintiffs pursuing minimum wage claims "opt in" to the litigation, whereas claims for unpaid overtime compensation may proceed as a Rule 23 class action, whereby class members must affirmatively "opt out" of the litigation if they do not wish to participate. Ohio's adoption of the FLSA's opt-in provision will prevent future hybrid class and collective actions in favor of permitting workers to pursue opt-in collective actions only for alleged unpaid overtime wages.

Conclusion

SB 47 incorporates federal law to further limit the differences between Ohio and federal overtime laws. By adopting the "opt-in" provision in FLSA § 216(b), SB 47 also streamlines lawsuits seeking alleged unpaid overtime wages so that Ohio employers will not face hybrid class/collective actions under Ohio and federal law. SB 47 provides employers with a better understanding of their relationship with their employees and clarifies how employers should compensate hourly workers who engage in work-related tasks outside of their normal workday.

Edward H. Chyun, Shannon K. Patton, Alex R. Frondorf and Trevor J. Hardy are attorneys with Littler in Cleveland. © 2022 Littler. All rights reserved. Reposted with permission.