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Senate Bill would nix overtime pay for emails from home, ‘insignificant’ clocked time

Senate Bill 57 would allow employers to use a stingier accounting method for when the bonus pay kicks in.
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An Ohio Senate committee is reviewing legislation that would shield employers from overtime pay requirements for hourly employees in certain situations.

The legislation, introduced by Republican Senators Andrew Brenner and Bob Peterson, would repeal overtime requirements for hours employees spend:

  • On their way to the “place of performance of the principal activity”
  • On activities that are “preliminary or postliminary” to the work itself
  • On activities requiring “insubstantial or insignificant periods of time” past scheduled working hours.

Current law requires employers to pay 1.5 times an employee’s wage for hours worked more than 40 per week. Senate Bill 57 would allow employers to use a stingier accounting method for when the bonus pay kicks in.

The bill also invokes a piece of the federal Portal to Portal Act, which protects employers from lawsuits for failing to pay overtime compensation for employees on the time they spend on activities listed above.

However, if an employer asks employees to complete a task or grants them permission to work overtime, the employer would need to pay overtime wages no matter the nature of the task.

Speaking to the Senate Ways and Means Committee last month, Brenner said the bill will alleviate confusion among Ohio employers as to what activities qualify as overtime. He said given the surge in employees working from home due to the pandemic, employers need clarity given the “likely” increase in litigation for unpaid overtime.

The Chamber of Commerce, which represents business interests, supports the proposal.

“Employers should not be subject to surprise litigation attempting to hold them responsible for failing to pay an overtime wage when an hourly employee, outside of normal work hours, on their own initiative, and without informing their employer, spends a small amount of unsupervised time checking work materials like emails or voicemails,” said Chamber of Commerce lobbyist Kevin Shimp to the committee Wednesday.

1946 Supreme Court ruling affirmed employers need not count all “trifles” and “split-second absurdities” when calculating wages, but employees who spend a significant amount of time preparing to work once on the job site are entitled to overtime pay.

However, differentiating trivial tasks and brief, work-related tasks that add up over the course of months poses a tricky balance.

“My concern is that all these little bits of time actually add up to a lot,” said Sen. Nickie Antonio, D-Lakewood in committee. “So how does this legislation account for that in a fair way to the employees?”

Shimp cited a Columbus Dispatch report noting that a trade association representing plaintiffs’ attorneys (which commonly opposes Chamber-supported bills) opposed an earlier version of the legislation. However, the group’s executive director said he’s neutral on the newer version.

Last year, a similar version of the proposal passed the Senate nearly along party lines (one Republican joined all Democrats in opposition). It stalled in the Senate.

The committee did not vote on the bill Wednesday.

Read more from the Ohio Capital Journal