On Tuesday, January 2, 2007, Governor Bob Taft signed House Bill 690 ("H.B. 690"), which will implement the Ohio Minimum Wage Constitutional Amendment adopted by the general electorate on November 7, 2006. H.B. 690 will go into effect on April 2, 2007 (90 days after Governor Taft signed the Bill). It attempts to clarify what some claimed were potential ambiguities that existed in the text of the Minimum Wage Amendment, which raised the minimum wage to $6.85. Since the Minimum Wage Amendment passed, many employers have been concerned about its application to those employees normally deemed exempt from minimum wage and overtime rules, recordkeeping provisions, and provisions specifically requiring employers to provide employee information to employees or those "acting on behalf of employees" upon request. H.B. 690 addresses each of these issues and more. What follows is a synopsis of H.B. 690's important provisions.
- Because the Minimum Wage Amendment and H.B. 690 only require employers to compensate "employees" at minimum wage, the definition of "employee" is crucial for purposes of enforcing the Minimum Wage Amendment. H.B. 690 broadly defines the term "employee" to include "any individual employed by an employer." However, it explicitly excludes from that definition the following: (1) those individuals employed as outside salespersons earning commissions; (2) those employed "in a bona fide executive, administrative, or professional capacity" (i.e., white-collar employees); and (3) all other employees exempted from the FLSA at 29 U.S.C. § 213.
- With respect to recordkeeping, the Minimum Wage Amendment requires that an employer maintain the name, address, occupation, pay rate, hours worked for each day worked, and each amount paid an employee for no less than three (3) years from the date the hours were worked and three (3) years after the employee's employment ends with the employer. However, H.B. 690 specifically exempts employers from maintaining the records of hours worked for each day worked, if an employer is not required to keep such records for individual employees under the FLSA or the employee is not subject to the overtime pay requirements (e.g., the employee is an exempt executive, administrative, or professional employee).
- In accordance with the Minimum Wage Amendment, H.B. 690 further requires that employers make the above-noted records available to employees. However, H.B. 690 specifically states that an individual employee can only request her individual employment records, not those of other employees. The only way any employer can be required to provide one employee with another employee's employment information is if the requesting employee is "acting on behalf of the other employee."
- H.B. 690 states what "acting on behalf of an employee" means, as well. An individual "acting on behalf of an employee" must be one of the following: "(1) the certified or legally recognized collective bargaining representative for that employee; (2) the employee's attorney; or (3) the employee's parent, guardian, or legal custodian." Accordingly, an employer can only provide an employee's employment information to the specific employee or an individual "acting on her behalf" who qualifies under the above definition of "acting on behalf of an employee."
- H.B. 690 creates a thirty (30) business day timeframe in which an employer must provide these records upon request, unless (1) the employer and employee agree otherwise, or (2) the thirty-day period would cause hardship on the employer.
- Finally, H.B. 690 provides employers with civil liability immunity for injury, death, or loss to person or property of any employee resulting from the employer providing information to an employee or one "acting on her behalf."
Generally, H.B. 690 provides for implementation of the new Minimum Wage Amendment in conformity with the FLSA.