130th Ohio General Assembly
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Sub. H. B. No. 61  As Reported by the House Economic and Small Business Development Committee
As Reported by the House Economic and Small Business Development Committee

129th General Assembly
Regular Session
2011-2012
Sub. H. B. No. 61


Representatives Thompson, Martin 

Cosponsors: Representatives Ruhl, Sears, Wachtmann, Baker, Blessing, Derickson, Adams, J., Brenner, Kozlowski, Blair, Snitchler, Stebelton, Slaby, Boose 



A BILL
To amend sections 505.60, 4111.03, 4111.05, 4111.10, 4111.13, 4111.99, and 4113.11 and to enact section 4111.031 of the Revised Code to give private sector employers the option to offer and employees the option to accrue and use compensatory time off in lieu of monetary overtime compensation and to narrow the class of full-time township employees for whom the employer must provide, on a uniform basis, health insurance coverage.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1.  That sections 505.60, 4111.03, 4111.05, 4111.10, 4111.13, 4111.99, and 4113.11 be amended and section 4111.031 of the Revised Code be enacted to read as follows:
Sec. 505.60.  (A) As provided in this section and section 505.601 of the Revised Code, the board of township trustees of any township may procure and pay all or any part of the cost of insurance policies that may provide benefits for hospitalization, surgical care, major medical care, disability, dental care, eye care, medical care, hearing aids, prescription drugs, or sickness and accident insurance, or a combination of any of the foregoing types of insurance for township officers and employees. The board of township trustees of any township may negotiate and contract for the purchase of a policy of long-term care insurance for township officers and employees pursuant to section 124.841 of the Revised Code.
If the board procures any insurance policies under this section, the board shall provide uniform coverage under these policies for township officers and full-time township employees and their immediate dependents, and may provide coverage under these policies for part-time township employees and their immediate dependents, from the funds or budgets from which the officers or employees are compensated for services, such policies to be issued by an insurance company duly authorized to do business in this state.
(B) The board may also provide coverage for any or all of the benefits described in division (A) of this section by entering into a contract for group health care services with health insuring corporations holding certificates of authority under Chapter 1751. of the Revised Code for township officers and employees and their immediate dependents. If the board so contracts, it shall provide uniform coverage under any such contracts for township officers and full-time township employees and their immediate dependents, from the funds or budgets from which the officers or employees are compensated for services, and may provide coverage under such contracts for part-time township employees and their immediate dependents, from the funds or budgets from which the officers or employees are compensated for services, provided that each officer and employee so covered is permitted to:
(1) Choose between a plan offered by an insurance company and a plan offered by a health insuring corporation, and provided further that the officer or employee pays any amount by which the cost of the plan chosen exceeds the cost of the plan offered by the board under this section;
(2) Change the choice made under this division at a time each year as determined in advance by the board.
An addition of a class or change of definition of coverage to the plan offered under this division by the board may be made at any time that it is determined by the board to be in the best interest of the township. If the total cost to the township of the revised plan for any trustee's coverage does not exceed that cost under the plan in effect during the prior policy year, the revision of the plan does not cause an increase in that trustee's compensation.
(C) Any township officer or employee may refuse to accept any coverage authorized by this section without affecting the availability of such coverage to other township officers and employees.
(D) If any township officer or employee is denied coverage under a health care plan procured under this section or if any township officer or employee elects not to participate in the township's health care plan, the township may reimburse the officer or employee for each out-of-pocket premium attributable to the coverage provided for the officer or employee for insurance benefits described in division (A) of this section that the officer or employee otherwise obtains, but not to exceed an amount equal to the average premium paid by the township for its officers and employees under any health care plan it procures under this section.
(E) The board may provide the benefits authorized under this section, without competitive bidding, by contributing to a health and welfare trust fund administered through or in conjunction with a collective bargaining representative of the township employees.
The board may also provide the benefits described in this section through an individual self-insurance program or a joint self-insurance program as provided in section 9.833 of the Revised Code.
(F) If a board of township trustees fails to pay one or more premiums for a policy, contract, or plan of insurance or health care services authorized under this section and the failure causes a lapse, cancellation, or other termination of coverage under the policy, contract, or plan, it may reimburse a township officer or employee for, or pay on behalf of the officer or employee, any expenses incurred that would have been covered under the policy, contract, or plan.
(G) As used in this section and section 505.601 of the Revised Code:
(1) "Part-time township employee" means a township employee who is hired with the expectation that the employee will work not more than one thousand five eight hundred hours in any year.
(2) "Premium" does not include any deductible or health care costs paid directly by a township officer or employee.
Sec. 4111.03.  (A) An Except as otherwise provided in section 4111.031 of the Revised Code, an employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's wage rate for hours worked in excess of forty hours in one workweek work week, in the manner and methods provided in and subject to the exemptions of section 7 and section 13 of the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 207, 213, as amended.
Any employee employed in agriculture shall not be covered by the overtime provision of this section.
(B) If a county employee elects to take compensatory time off in lieu of overtime pay, for any overtime worked, compensatory time off may be granted by the employee's administrative superior, on a time and one-half basis, at a time mutually convenient to the employee and the administrative superior within one hundred eighty days after the overtime is worked.
(C) A county appointing authority with the exception of the county department of job and family services may, by rule or resolution as is appropriate, indicate the authority's intention not to be bound by division (B) of this section, and to adopt a different policy for the calculation and payment of overtime than that established by that division. Upon adoption, the alternative overtime policy prevails. Prior to the adoption of an alternative overtime policy, a county appointing authority with the exception of the county department of job and family services shall give a written notice of the alternative policy to each employee at least ten days prior to its effective date.
(D) As used in this section and section 4111.031 of the Revised Code:
(1) "Compensatory time off" means hours during which an employee is not working that are not counted as hours worked during the applicable work week or other work period for purposes of overtime compensation and for which the employer compensates the employee at the employee's regular rate of pay.
(2) "Collective bargaining agreement" means an agreement entered into between the representative of an employer and the exclusive representative of employees in an appropriate unit regarding the conditions of employment affecting the employees.
(3) "Employ" means to suffer or to permit to work.
(2)(4) "Employer" means the state of Ohio, its instrumentalities, and its political subdivisions and their instrumentalities, any individual, partnership, association, corporation, business trust, or any person or group of persons, acting in the interest of an employer in relation to an employee, but does not include an employer whose annual gross volume of sales made for business done is less than one hundred fifty thousand dollars, exclusive of excise taxes at the retail level which are separately stated.
(3)(5) "Employee" means any individual employed by an employer but does not include:
(a) Any individual employed by the United States;
(b) Any individual employed as a baby-sitter in the employer's home, or a live-in companion to a sick, convalescing, or elderly person whose principal duties do not include housekeeping;
(c) Any individual engaged in the delivery of newspapers to the consumer;
(d) Any individual employed as an outside salesperson compensated by commissions or employed in a bona fide executive, administrative, or professional capacity as such terms are defined by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 201, as amended;
(e) Any individual who works or provides personal services of a charitable nature in a hospital or health institution for which compensation is not sought or contemplated;
(f) A member of a police or fire protection agency or student employed on a part-time or seasonal basis by a political subdivision of this state;
(g) Any individual in the employ of a camp or recreational area for children under eighteen years of age and owned and operated by a nonprofit organization or group of organizations described in Section 501 (c)(3) of the "Internal Revenue Code of 1954," and exempt from income tax under Section 501 (a) of that code;
(h) Any individual employed directly by the house of representatives or directly by the senate.
(6) "Exclusive representative" means any labor or employee organization that is certified as the exclusive representative of employees under the "National Labor Relations Act," 49 Stat. 449 (1935), 29 U.S.C. 151, as amended, or Chapter 4117. of the Revised Code, or that is recognized by an employer, immediately before the effective date of this amendment and for any time that recognition continues thereafter, as the exclusive representative of employees in an appropriate unit.
(7) "Regular rate" includes all remuneration for employment paid to, or on behalf of, an employee except:
(a) Sums paid as gifts, or payments in the nature of gifts made on the occasion of a holiday or other special occasion as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency;
(b) Payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause, reasonable payment for traveling expenses or other expenses incurred by an employee in the furtherance of the employer's interests and properly reimbursable by the employer, and other similar payments to an employee that are not made as compensation for hours of employment;
(c) Sums paid in recognition of services performed during a given period if any of the following applies:
(i) The decision to make payment and the amount of the payment is determined at the sole discretion of the employer at or near the end of the period, and not pursuant to any prior contract, agreement, or promise causing the employee to expect the payments regularly.
(ii) The payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan.
(iii) The payments are talent fees paid to performers, including announcers, on radio and television programs.
(d) Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits for employees;
(e) Extra compensation provided by a premium rate paid for certain hours worked by the employee in a day or work week because the hours are worked in excess of eight in a day or in excess of the maximum work week applicable to the employee under division (A) of this section or, if the extra compensation and premium rate is not paid under an employment contract or collective bargaining agreement as provided under division (D)(7)(g) of this section, in excess of the employee's normal or regular working hours;
(f) Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the work week where the premium rate is not less than one and one-half times the rate established in good faith for like work performed during nonovertime hours on other days;
(g) Extra compensation provided by a premium rate paid to an employee under an applicable employment contract or collective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement and outside of the basic, normal, or regular workday that does not exceed eight hours, or of the work week that does not exceed the maximum work week applicable to the employee under division (A) of this section, where the premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during the workday or work week.
Sec. 4111.031. (A) An employee other than an employee described in division (J) of this section may receive, in accordance with this section and in lieu of monetary overtime compensation, compensatory time off at a rate of not less than one hour for each hour of employment for which monetary overtime compensation otherwise is required under division (A) of section 4111.03 of the Revised Code.
(B) An employer may provide compensatory time off to an employee under this section only in accordance with the following provisions and conditions:
(1) The applicable provisions of a collective bargaining agreement between the employer and the employees' exclusive representative that is designated or selected under section 9(a) of the "National Labor Relations Act," 49 Stat. 449 (1935), 29 U.S.C. 159(a), as amended;
(2) In the case of employees who are not represented by a labor organization as provided in section 9(a) of the "National Labor Relations Act," 49 Stat. 449 (1935), 29 U.S.C. 159(a), as amended, an agreement or understanding arrived at between the employer and employee before the performance of the work involved, if the agreement or understanding is entered into knowingly and voluntarily by and at the initiation and request of the employee, and is not a condition of employment;
(3) The employee has affirmed in a written or otherwise verifiable statement that the employee has initiated a request to receive compensatory time off in lieu of monetary overtime compensation and the employer keeps a record of that statement with the employee's employment records that the employer is required to make and keep under section 4111.08 of the Revised Code;
(4) The employee has not already accrued two hundred forty hours of compensatory time off.
(C)(1) Not later than the thirty-first day of January of each calendar year, an employer shall provide monetary overtime compensation at the rate prescribed by division (G) of this section for any unused compensatory time off that the employee accrued during the preceding calendar year. An employer may designate and communicate to its employees an alternative twelve-month period other than the calendar year, in which case the monetary overtime compensation payment required by this division shall be paid not later than thirty-one days after the end of the alternative twelve-month period.
(2) At any time during the calendar year or alternative twelve-month period, an employer may provide monetary overtime compensation at the rate required by division (G) of this section for an employee's unused compensatory time off in excess of eighty hours. The employer shall give the employee written notice of the employer's intent to provide that compensation at least thirty days before doing so.
(D) An employer that provides compensatory time off to an employee under this section may cease doing so upon giving the employee written notice of the employer's intent at least thirty days before discontinuing the practice.
(E) An employee may withdraw an agreement or understanding described in division (B)(2) of this section at any time and may request in writing that monetary overtime compensation be provided for all of the employee's unused compensatory time off. Within thirty days after receipt of the written request, the employer shall pay to the employee the monetary overtime compensation due in accordance with division (G) of this section.
(F) An employer shall pay monetary overtime compensation, in accordance with division (G) of this section, to an employee for any unused compensatory time off that the employee has accrued under this section, upon the voluntary or involuntary termination of employment.
(G) If an employer pays monetary overtime compensation to an employee for unused compensatory time off, the employer shall make payment based on the regular rate of pay received by the employee when the compensatory time off was earned. For purposes of this division, compensatory time off shall be deemed used in the same order it is earned.
(H) Any payment owed to an employee under this section for unused compensatory time off shall be considered unpaid monetary overtime compensation.
(I) An employer shall permit an employee who has accrued compensatory time off authorized under this section the use of that time within a reasonable period after the employee makes a request for such use, if the requested use does not unduly disrupt the operations of the employer.
(J) This section does not apply to any of the following employees:
(1) An employee of the state, its instrumentalities, or its political subdivisions or their instrumentalities;
(2) An individual employed by a contractor or subcontractor to perform labor or provide services to construct, alter, erect, improve, repair, demolish, remove, dig, or drill any part of a structure or improvement.
(K) As used in this section:
(1) "Contractor" has the same meaning as in section 4113.61 of the Revised Code.
(2) "Monetary overtime compensation" means pay for overtime as required under division (A) of section 4111.03 of the Revised Code.
(3) "Subcontractor" has the same meaning as in section 1311.01 of the Revised Code.
Sec. 4111.05.  The director of commerce shall adopt rules in accordance with Chapter 119. of the Revised Code as the director considers appropriate to carry out the purposes of sections 4111.01 to 4111.17 of the Revised Code. The rules may be amended from time to time and may include, but are not limited to, rules defining and governing apprentices, their number, proportion, and length of service; bonuses and special pay for special or extra work; permitted deductions or charges to employees for board, lodging, apparel, or other facilities or services customarily furnished by employers to employees; inclusion of ascertainable gratuities in wages paid; allowances for unascertainable gratuities or for other special conditions or circumstances which may be usual in particular employer-employee relationships; compensatory time off for employees under section 4111.031 of the Revised Code; and the method of computation or the period of time over which wages may be averaged to determine whether the minimum wage or overtime rate has been paid.
Sec. 4111.10.  (A) Any employer who pays any employee less than wages to which the employee is entitled under section 4111.03 of the Revised Code, is liable to the employee affected for the full amount of the overtime wage rate, less any amount actually paid to the employee by the employer, and for costs and reasonable attorney's fees as may be allowed by the court. Any agreement between the employee and the employer to work for less than the overtime wage rate is no defense to an action.
(B)(1) Any employer who violates division (D) of section 4111.13 of the Revised Code is liable to the employee affected in a dollar amount equal to the sum of the following:
(a) The number of unused compensatory time off hours involved in the violation, multiplied by the regular rate of pay received by the employee when that compensatory time off was earned;
(b) As liquidated damages, the total number of the employee's compensatory time off hours involved in the violation, multiplied by the regular rate of pay received by the employee when that compensatory time off was earned;
(c) Costs and reasonable attorney's fees as may be allowed by the court.
(2) For purposes of this division, compensatory time off shall be deemed used in the same order it is earned.
(3) The liability imposed under this division is in addition to any other civil or criminal liability imposed under sections 4111.01 to 4111.17 of the Revised Code.
(4) As used in this division, "compensatory time off" has the same meaning as in section 4111.03 of the Revised Code.
(C) At the written request of any employee paid less than the wages to which the employee is entitled under section 4111.03 of the Revised Code, the director of commerce may take an assignment of a wage claim in trust for the assigning employee and may bring any legal action necessary to collect the claim. The employer shall pay the costs and reasonable attorney's fees allowed by the court.
Sec. 4111.13.  (A) No employer shall hinder or delay the director of commerce in the performance of the director's duties in the enforcement of sections 4111.01 to 4111.17 of the Revised Code, or refuse to admit the director to any place of employment, or fail to make, keep, and preserve any records as required under those sections, or falsify any of those records, or refuse to make them accessible to the director upon demand, or refuse to furnish them or any other information required for the proper enforcement of those sections to the director upon demand, or fail to post a summary of those sections or a copy of any applicable rules as required by section 4111.09 of the Revised Code. Each day of violation constitutes a separate offense.
(B) No employer shall discharge or in any other manner discriminate against any employee because the employee has made any complaint to the employee's employer, or to the director, that the employee has not been paid wages in accordance with sections 4111.01 to 4111.17 of the Revised Code, or because the employee has made any complaint or is about to cause to be instituted any proceeding under or related to those sections, or because the employee has testified or is about to testify in any proceeding.
(C) No employer shall pay or agree to pay wages at a rate less than the rate applicable under sections 4111.01 to 4111.17 of the Revised Code. Each week or portion thereof for which the employer pays any employee less than the rate applicable under those sections constitutes a separate offense as to each employer.
(D)(1) No employer that provides compensatory time off to an employee under section 4111.031 of the Revised Code shall, directly or indirectly, intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce, or terminate or attempt to terminate the employment of, that employee for the purposes of:
(a) Interfering with the employee's rights to request or not request compensatory time off in lieu of monetary overtime compensation;
(b) Requiring the employee to use compensatory time off.
(2) As used in this division:
(a) "Compensatory time off" has the same meaning as in section 4111.03 of the Revised Code.
(b) "Intimidate, threaten, or coerce" includes promising to confer or conferring any benefit including appointment, promotion, or compensation, or effecting or threatening to effect any reprisal, including deprivation of appointment, promotion, or compensation.
(c) "Monetary overtime compensation" has the same meaning as in section 4111.031 of the Revised Code.
(E) No employer shall otherwise violate sections 4111.01 to 4111.17 of the Revised Code, or any rule adopted thereunder. Each day of violation constitutes a separate offense.
Sec. 4111.99.  (A) Whoever violates division (A) or (D)(E) of section 4111.13 of the Revised Code is guilty of a misdemeanor of the fourth degree.
(B) Whoever violates division (B) or, (C), or (D) of section 4111.13 of the Revised Code is guilty of a misdemeanor of the third degree.
(C) Whoever violates section 4111.17 of the Revised Code is guilty of a minor misdemeanor.
Sec. 4113.11. (A) As specified in division (B) of this section and except as provided in divisions (C) and (F) of this section, all employers that employ ten or more employees shall adopt and maintain a cafeteria plan that allows the employer's employees to pay for health insurance coverage by a salary reduction arrangement as permitted under section 125 of the Internal Revenue Code.
(B) Employers shall comply with the requirements of division (A) of this section as follows:
(1) For employers that employ more than five hundred employees, by not later than January 1, 2011, or six months after the superintendent of insurance adopts rules as required by division (E) of this section, whichever is later;
(2) For employers that employ one hundred fifty to five hundred employees, by not later than July 1, 2011, or twelve months after the superintendent adopts rules as required by division (E) of this section, whichever is later;
(3) For employers that employ ten to one hundred forty-nine employees, by not later than January 1, 2012, or eighteen months after the superintendent adopts rules as required by division (E) of this section, whichever is later.
(C) This section shall not apply to employers that, through other means than provided under this section, offer health insurance coverage, reimburse for health insurance coverage, or provide employees with opportunities to pay for health insurance with pre-tax dollars through other salary reduction arrangements.
(D) The health care coverage and quality council created under section 3923.90 of the Revised Code shall make recommendations to the superintendent for both of the following:
(1) Development of strategies to educate, assist, and conduct outreach to employers to simplify administrative processes with respect to creating and maintaining cafeteria plans, including, but not limited to, providing employers with model cafeteria plan documents and technical assistance on creating and maintaining cafeteria plans that conform with state and federal law;
(2) Development of strategies to educate, assist, and conduct outreach to employees with respect to finding, selecting, and purchasing a health insurance plan to be paid for through their employer's cafeteria plan under this section.
(E)(1) The superintendent shall adopt rules in accordance with Chapter 119. of the Revised Code to implement and enforce this section, including the strategies recommended by the council pursuant to division (D) of this section.
(2) Prior to adopting rules under this division, the superintendent shall consult any federal agency that has oversight of cafeteria plans and employee welfare benefit plans, including the internal revenue service and the United States department of labor, and receive written confirmation that the rules adopted will permit employers to establish cafeteria plans in accordance with federal law. The written confirmation shall include a determination that individual policies purchased pursuant to this section do not need to comply with the group market rules established by the "Health Insurance Portability and Accountability Act of 1996."
(F) The requirement provided in division (A) of this section does not apply if the superintendent does not receive written confirmation pursuant to division (E)(2) of this section that individual policies purchased pursuant to this section do not need to comply with the group market rules established by the "Health Insurance Portability and Accountability Act of 1996."
(G) Nothing in this section shall be construed as requiring an employer to establish a cafeteria plan in a manner that would violate federal law, including the "Employee Retirement Income Security Act of 1974," the "Consolidated Omnibus Budget Reconciliation Act of 1985," or the "Health Insurance Portability and Accountability Act of 1996."
(H) As used in this section:
(1) "Cafeteria plan" has the same meaning as in section 125 of the Internal Revenue Code.
(2) "Employer" has the same meaning as in section 4113.51 of the Revised Code.
(3) "Employee" means an individual employed for consideration who works twenty-five or more hours per week or who renders any other standard of service generally accepted by custom or specified by contract as full-time employment, except for a public employee employed by a township or municipal corporation. In that the case of an employee employed by a municipal corporation, "employee" means an individual hired with the expectation that the employee will work more than one thousand five hundred hours in any year unless full-time employment is defined differently in an applicable collective bargaining agreement. In the case of an employee employed by a township, "employee" means an individual hired with the expectation that the employee will work more than one thousand eight hundred hours in any year unless full-time employment is defined differently in an applicable collective bargaining agreement.
Section 2.  That existing sections 505.60, 4111.03, 4111.05, 4111.10, 4111.13, 4111.99, and 4113.11 of the Revised Code are hereby repealed.
Section 3.  Not later than thirty days after the effective date of this section, the Director of Commerce shall revise the printed materials that the Director makes available to employers and employees for the purpose of explaining the requirements of sections 4111.01 to 4111.17 of the Revised Code to reflect the amendments made to those sections by this act.
Section 4.  Section 4111.03 of the Revised Code is presented in this act as a composite of the section as amended by both Sub. H.B. 187 and Am. Sub. H.B. 690 of the 126th General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composite is the resulting version of the section in effect prior to the effective date of the section as presented in this act.
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