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April 2022: Ohio Enacts Changes to Overtime Exemption Laws and Class/Collective Action Procedures

Update Applicable to:
All employers in the state of Ohio

What happened?
On April 6, 2022, Governor DeWine signed Senate Bill 47 (SB 47), thereby formally adopting Sections 2 and 4 of the Portal-to-Portal Act (PPA) amendments to the federal Fair Labor Standards Act (FLSA).

What are the details?
Effective July 6, 2022, SB 47 will formally codify the PPA’s exclusion of certain activities from the definition of compensable “work” under the FLSA. Under the new law, employers will not be 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 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.

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.

Under SB 47, an employee shall not join a lawsuit alleging a violation of Ohio’s overtime law unless the employee gives written consent to become a plaintiff and file that consent with the court in which the lawsuit is brought. This requires that an employee “opt-in” to the lawsuit is consistent with the FLSA’s “opt-in” provisions for collective actions.

Notably, SB 47 eliminates the so-called “hybrid” collective/class wage lawsuits that combine both “opt-in” plaintiffs under the FLSA and “opt-out” plaintiffs under parallel Ohio state law claims. Under the “opt-out” process, employees are automatically included in the class unless they affirmatively state in writing that they do not want to participate in the lawsuit, which can significantly increase the size of a class.

For more information, please see the links below:

Senate Bill 47 (SB 47)

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and should review their overtime policies regarding preliminary and postliminary work activities to ensure they are in compliance with the law.

March 2022: City of Columbus Lifts Mask Mandate

Update Applicable to:
All employers in the city of Columbus, Ohio

What happened?
On March 7, 2022, Mayor Ginther lifted Ordinance 2388-2021, the indoor mask mandate for Columbus, Ohio.

What are the details?
Effective as of March 7, 2022, all individuals are no longer required to wear a face covering in indoor spaces and public or private transportation.

While Columbus is no longer under a mask mandate, the Columbus City Health Department still recommends face coverings for those who are unvaccinated, have an underlying condition or live with someone who does, recently tested positive for COVID-19, or are in a healthcare facility or other business that requires them.

Despite the rescission of Ordinance 2388-2021, masks are still required under federal order by the Transportation Security Administration (TSA) across all transportation networks throughout the United States, including at airports, onboard commercial aircraft, on over-the-road buses, and on commuter buses and rail systems through at least April 18, 2022.

For more information, please see the links below:

Ordinance 2388-2021

Ohio Department of Health Statewide Universal Recommended Best Practices

Article

City of Columbus Article

What do employers need to do?
Employers should review the links provided above, continue to monitor their local masking requirements, and reach out to their local health department in case of any specific rules.

October 2020 Ohio HR Legal Updates

Ohio Enacts Law Limiting Liability for COVID-19 Related Claims

What happened?
On September 14, 2020, Governor DeWine signed HB 606, which provides a liability shield for employers from state-level civil actions brought by customers, employees, or others “for damages for injury, death, or loss.”

What are the details?
HB 606, like other COVID-19 liability shield laws, does not provide absolute protection. If the plaintiff can establish that the exposure, transmission, or contraction was by reckless conduct, intentional misconduct, or willful or wanton misconduct on the part of the person against whom the action is brought against, they can proceed with the civil action.

The law provides that any new local and state laws will not provide any changes to tort laws related to COVID-19. Additionally, the law will protect healthcare providers as well from liability in tort actions.

An article going over the bill in more depth can be found here.

HB 606 can be found here.

What do employers need to do?
Ohio employers should review this law and their workplace policies with their employment attorney to determine what policies they may have to change to take full advantage of this laws protections.

June 2020 Ohio HR Legal Updates

Summary of State Laws (Q1 & Q2 2020)

Toledo Hair Discrimination
Effective January 10, 2020, Toledo prohibits discrimination based on “natural hair types and hairstyles or head wraps commonly associated with race, culture or religion,” including afros, braids, twists, cornrows, and locs.

Toledo Salary History
Effective June 25, 2020, employers with at least 15 employees are prohibited from any of the following:

  • Asking job applicants about salary history.
  • Screening applicants based on their current or prior wages, benefits, other compensation or salary histories.
  • Relying on an applicant’s salary history in deciding whether to offer employment to the applicant or in determining the applicant’s salary, benefits or other compensation, including the terms of an employment contract.
  • Refusing to hire or otherwise retaliate against an applicant who fails to disclose his or her salary history to a prospective employer.

However, employers may discuss salary and benefit expectations with applicants.

Upon reasonable request, an employer must provide the applicable pay scale to applicants who have received a conditional job offer.

May 2020 Ohio Legal HR Updates

Wage History Banned

What happened?
Effective July 4, 2020, it will be illegal for employers to request wage history as a part of the job application process in Toledo, Ohio.

What are the details?
Employers with at least 15 employees in the City of Toledo are prohibited from inquiring about, screening, or relying upon salary history of a job applicant when making an employment offer. More specifically: 

  • Employers may not ask for salary history;
  • Screening job applicants based on salary history;
  • The employer may engage in general discussions about salary expectations; and
  • This does not apply to current employees or employees who worked for the employer in the previous five years.

 No violation occurs if applicant voluntarily supplies this information.

What do employers need to do?
Review applications and protocols for hiring staff to ensure no violations occur.

Resources
https://www.littler.com/publication-press/publication/toledo-becomes-second-ohio-city-pass-salary- history-ban

April 2020: Cincinnati, Ohio Bans Salary History Inquiries

What happened?
On March 12, 2019, Cincinnati, Ohio passed an ordinance prohibiting employers from asking applicants about their salary history or current earnings.

What are the details?
The new “Prohibited Salary History Inquiry and Use” provision of the city code makes it an illegal discriminatory practice for a company within the city to ask applicants about their past or current salary, screen applicants based on wages or benefits, rely on salary history in hiring decisions or in determining compensation, or to refuse to hire or otherwise retaliate against an applicant who refuses to provide his or her salary history.

The salary history measure excludes several situations where employers are allowed to consider an applicant’s past wages, such as internal transfers or promotions, situations where employees are rehired within five years of leaving a company, or in situations where federal law allows employers to consider salary.

Companies are also allowed to look at salary information if it comes up in the process of a background check while verifying non-salary-related disclosures from an employee, as long as this information is not used as a basis for determining compensation during hiring. In addition, the provision does not apply to any “voluntary and unprompted” disclosures related to an applicant’s pay history.

There is no specific penalty or fine outlined, but applicants who are harmed by an employer that violates the provision may bring suit within two years of the violation and can recover compensatory damages, attorney’s fees, and costs.

The salary history ban will take effect one year from the date of the ordinance.

What do employers need to do?
Employers in Cincinnati should review their hiring practices and interviewing techniques to make certain they will not violate this new salary history ban.

Article: https://www.littler.com/publication-press/publication/cincinnati-bans-salary-history-inquiries

Bill: https://www.esrcheck.com/file/Cincinnati-OH-Ordinance-No-83-2019.pdf

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