When does an employee’s “workday” start? The calculation of “hours worked” is extremely important when employers have non-exempt employees. A non-exempt employee is entitled to 150% of their regular rate of pay for each hour worked over 40 hours in a workweek, in addition to being entitled to at least minimum wage for any time spent working. An employee’s workday beginning earlier and/or ending later than the employee’s working time can have an impact on these calculations. Therefore, using the correct start and end times to calculate a non-exempt employee’s workday is critical to properly compensating those employees and complying with applicable laws.
Effective July 6, 2022, Ohio law will expressly exclude from the compensable workday, when performed outside the normal working hours:
- an employee’s commute to the worksite (the “actual place of performance of the principal activity or activities that the employee is employed to perform”);
- activities that are preliminary or postliminary to the principal activity or activities [of their job]; and
- activities requiring insubstantial or insignificant periods beyond the employee’s scheduled working hours.
There are several caveats to these exclusions as well. For example, work performed outside of regular working hours and under the specific direction of the employer will need to be compensated, no matter how short the time period during which such work is performed. This new legislation makes Ohio law comparable with the federal wage and hour laws that have existed for years. In addition to the changes applicable to calculating time worked, the legislation also changes wage and hour class action procedures to align with current federal law.
So, what effect does this change have on Ohio employers?
In truth, most employers in Ohio (and/or their employees) are already covered by the exclusions under the federal Fair Labor Standards Act (FLSA). However, the procedural change is exceptionally beneficial for employers involved in a state wage and hour class action lawsuit. It now requires employees to actively “opt in” to the class, instead of requiring them to actively “opt out.”
In practice, the time is always right to reevaluate how non-exempt employees are tracking their compensable time and analyzing employees’ “after hours” work to make certain it is trivial in nature and not at the employer’s direction. Having clear policies that comply with applicable law and sticking to them will always be an employer’s best defense against a wage and hour claim.
Have more questions? Give one of our employment law attorneys a call.