In April of 2022, Governor Mike DeWine signed Senate Bill (SB) 47. That legislation formally adopts, as Ohio law, certain Portal-to-Portal Act (“Portal Act”) amendments to the federal Fair Labor Standards Act (“FLSA”) which exempt employers from paying overtime under certain circumstances.
Although, historically, federal courts have applied the Portal Act to Ohio state law claims for overtime pay, SB 47 now formally codifies the Portal Act’s exclusion of certain activities from the definition of compensable “work” under the FLSA. Under the new law, 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 (i.e., normal commuting time);
- Performing activities that are preliminary 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 (i.e., de minimis time).
The exclusion applies to any of the above activities when they occur before the time on any workday that the employee commences the employee’s principal work activity, or after the time on any workday that the employee stops performing the employee’s principal work activity. However, the exclusion does not apply if the employee performs the activity:
- During the employee’s regular workday or during prescribed hours;
- At the employer’s specific direction;
- Pursuant to an express provision of a contract in effect at the time the employee performed the activity; or
- Pursuant to a custom or practice applicable to the activity, in effect at the time of performance, and the custom or practice is not inconsistent with a contract in effect at the time the employee performed the activity.
SB 47 also eliminates so-called “hybrid” collective/class actions for Ohio plaintiffs by adopting the FLSA’s “opt-in” requirement for individuals seeking to join a wage and hour lawsuit on Ohio state law claims for failure to pay overtime. Currently, claims for overtime compensation under Ohio law may be brought as class actions in which employees are deemed part of the class unless they affirmatively opt-out. Under the SB 47, an employee may not be joined as a party plaintiff in a lawsuit alleging a violation of Ohio’s overtime requirement unless that employee first gives written consent to become a party plaintiff and the consent is filed with the court in which the lawsuit was filed.
SB 47 becomes effective July 6, 2022.