On April 6, 2022, Governor Mike DeWine signed Senate Bill (S.B.) 47, thereby formally adopting Sections 2 and 4 of the Portal-to-Portal Act (PPA) amendments to the federal Fair Labor Standards Act (FLSA). In addition, S.B. 47 incorporates the FLSA’s “opt-in” requirement for individuals seeking to join a class (collective) action based on state law claims for failure to properly pay overtime wages. The law becomes effective on July 6, 2022.
Because Ohio law (O.R.C. § 4113.03) expressly incorporates by reference Section 7 of the FLSA “as amended,” and because the PPA is an amendment to Section 7, Ohio federal courts routinely have assumed that the PPA applies to Ohio state law claims. See, e.g. Baughman v. KTH Parts Industries, 2021 U.S. Dist. LEXIS 62059 (S.D. Ohio Mar. 31, 2021). S.B. 47 now expressly recognizes that longstanding assumption.
Under SB 47 (and the PPA), an employer is not required to pay overtime wages to an employee for time spent:
- “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., normal commuting time;
- “performing activities that are preliminary to or postliminary to the principal activity or activities; or
- “performing activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled working hours,” that is, de minimis
These provisions apply to activities “performed either prior to the time on any particular workday that the employee commences the employee’s principal work activity or after the time on any workday that the employee ceases performing the employee’s principal work activity.” In other words, the provisions do not apply to activities performed on a non-workday. With respect to the law’s provision declaring de minimis time as non-compensable, the law does not define what constitutes “insubstantial or insignificant” time but more importantly – and unlike its federal counterpart – does not state that the activity must be performed infrequently.
Consistent with the PPA, S.B. 47 clarifies that employers must still pay employees for preliminary or postliminary activity performed “during the employee’s regular workday or during prescribed hours” or “at the specific direction of the employer.” In addition, employers must pay for employee time performing activities “pursuant to an express provision of a contract in effect at the time the employee performed the activity” and activities “pursuant to a custom or practice, not inconsistent with a contract, in effect at the time the employee performed the activity.”
S.B. 47 provides that employees shall not join an Ohio overtime lawsuit as plaintiffs unless they first give written consent to become a plaintiff and file that consent with the court in which the action is brought. This requirement is consistent with the FLSA’s “opt-in” provisions for collective actions and eliminates the so-called “hybrid” collective/class wage lawsuits that combine both “opt-in” plaintiffs under the FLSA and “opt-out” plaintiffs under parallel state law claims.
S.B. 47 provides clarity to Ohio employers and establishes consistency between federal and state overtime laws. Moreover, as more employers embrace virtual or hybrid workplaces, the law should assist employers and employees in better understanding when brief activities (e.g., reading e-mails) outside of the regular workday constitute compensable time.