Overview - Fair Labor Standards Act: Wage & Hour

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Overview - Fair Labor Standards Act: Wage & Hour Issues

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I. Recent Developments in State and Federal Wage and Hour Law

On May 25, 2007, the Fair Labor Standards Act (FLSA) was amended to increase the federal minimum wage in three steps: to $5.85 per hour effective July 24, 2007; to $6.55 per hour effective July 24, 2008; and to $7.25 per hour effective July 24, 2009.

II. Fair Labor Standards Act of 1938 (FLSA), as amended
(29 USC §201 et seq.; 29 CFR Parts 510 to 794)
Prescribes standards for the basic minimum wage and overtime pay, affects most private and public employment.
Requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay.

Restricts the hours that children under age 16 can work in non-agricultural jobs and forbids the employment of children under age 18 in certain jobs deemed too dangerous.

For agricultural operations, it prohibits the employment of children under age 16 during school hours and in certain jobs deemed too dangerous.

The Act is administered by the Employment Standards Administration's Wage and Hour Division within the U.S. Department of Labor.

The Act applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies (i.e., the Act does not cover enterprises with less than this amount of business).

cover the following regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally, or physically disabled or gifted; preschools, elementary, and secondary schools and institutions of higher education; and federal, state, and local government agencies.

Employees of firms that do not meet the $500,000 annual dollar volume test may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods.

The Act covers domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full%u2011time babysitters, if they receive at least $1,300 (2001) in cash wages from one employer in a calendar year, or if they work a total of more than eight hours a week for one or more employers.

An enterprise that was covered by the Act on March 31, 1990, and that ceased to be covered because of the increase in the annual dollar volume test to $500,000, as required under the 1989 amendments to the Act, continues to be subject to the overtime pay, child labor, and recordkeeping requirements of the Act.

The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions alone.
A. EXEMPTIONS
1. The following are examples of employees EXEMPT from both the MINIMUM WAGE and OVERTIME PAY requirements:

a. Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor's regulations); ¹

b. Employees of certain seasonal amusement or recreational establishments;

c. Employees of certain small newspapers and switchboard operators of small telephone companies;

d. Seamen employed on foreign vessels;

e. Employees engaged in fishing operations;

f. Employees engaged in newspaper delivery;

g. Farm workers employed on small farms (i.e., those that used less than 500 "man%u2011days" of farm labor in any calendar quarter of the preceding calendar year); and

h. Casual babysitters and persons employed as companions to the elderly or infirm.

2. The following are examples of employees EXEMPT from the OVERTIME PAY requirements only:

a. Certain commissioned employees of retail or service establishments;

b. Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non%u2011manufacturing establishments primarily engaged in selling these items to ultimate purchasers;

c. Auto, truck, or farm implement parts%u2011clerks and mechanics employed by non%u2011manufacturing establishments primarily engaged in selling these items to ultimate purchasers;

d. Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans;

e. Announcers, news editors, and chief engineers of certain non%u2011metropolitan broadcasting stations;

f. Domestic service workers who reside in their employers' residences;
g. Employees of motion picture theaters; and

h. Farmworkers.

3. Certain employees may be partially exempt from the OVERTIME PAY requirements. These include:

a. Employees engaged in certain operations on agricultural commodities and employees of certain bulk petroleum distributors;

b. Employees of hospitals and residential care establishments that have agreements with the employees that they will work 14%u2011day periods in lieu of 7%u2011day workweeks (if the employees are paid overtime premium pay within the requirements of the Act for all hours worked over eight in a day or 80 in the 14%u2011day work period, whichever is the greater number of overtime hours); and

c. Employees who lack a high school diploma, or who have not completed the eighth grade, who spend part of their workweeks in remedial reading or training in other basic skills that are not job%u2011specific. Employers may require such employees to engage in these activities up to 10 hours in a workweek. Employers must pay normal wages for the hours spent in such training but need not pay overtime premium pay for training hours.

B. Basic Provisions & Requirements of the FLSA

1. Hourly Pay Rate.

minimum wage of not less than $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and

$7.25 per hour effective July 24, 2009.

Youths under 20 years of age may be paid a minimum wage of not less than $4.25 an hour during the first 90 consecutive calendar days of employment with an employer.

Employers may not displace any employee to hire someone at the youth minimum wage.

2. Piece-rate.

Employers may pay employees on a piece%u2011rate basis, as long as they receive at least the equivalent of the required minimum hourly wage rate.
Employers of tipped employees (i.e., those who customarily and regularly receive more than $30 a month in tips) may consider such tips as part of their wages, but employers must pay a direct wage of at least $2.13 per hour if they claim a tip credit. They must also meet certain other conditions.

3. Other Exemptions.

The Act also permits the employment of certain individuals at wage rates below the statutory minimum wage under certificates issued by the Department of Labor:

Student learners (vocational education students);

Full%u2011time students in retail or service establishments, agriculture, or institutions of higher education; and

Individuals whose earning or productive capacities for the work to be performed are impaired by physical or mental disabilities, including those related to age or injury.

4. Shifts.

Does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work, as long as the employee is at least 16 years old.

Does not limit the number of hours of overtime that may be scheduled.

REQUIRES employers to pay covered employees not less than one and one%u2011half times their regular rates of pay for all hours worked in excess of 40 in a workweek, unless the employees are otherwise exempt.

5. Record Keeping.
Employers must keep records on wages, hours, and other information as set forth in the Department of Labor's regulations.

6. Prohibited Work Activities.
The Act prohibits performance of certain types of work in an employee's home unless the employer has obtained prior certification from the Department of Labor.

manufacture of knitted outerwear, gloves and mittens, buttons and buckles, handkerchiefs, embroideries, and jewelry (where safety and health hazards are not involved). Employers wishing to employ homeworkers in these industries are required to provide written assurances to the Department of Labor that they will comply with the Act's wage and other requirements, among other things.

manufacture of women's apparel (and jewelry under hazardous conditions) in the home except under special certificates that may be issued when the employee cannot adjust to factory work because of age or disability (physical or mental), or must care for a disabled individual in the home.

7. Special provisions for state and local government employment.
Relation to State, Local, and Other Federal Laws
State laws also apply to employment subject to this Act. When both this Act and a state law apply, the law setting the higher standards must be observed.

4111.03 Overtime.
(A) 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, 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.

4111.17 Prohibiting discrimination in payment of wages.
(A) No employer, including the state and political subdivisions thereof, shall discriminate in the payment of wages on the basis of race, color, religion, sex, age, national origin, or ancestry by paying wages to any employee at a rate less than the rate at which the employer pays wages to another employee for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar conditions.
(B) Nothing in this section prohibits an employer from paying wages to one employee at a rate different from that at which the employer pays another employee for the performance of equal work under similar conditions on jobs requiring equal skill, effort, and responsibility, when the payment is made pursuant to any of the following:
(1) A seniority system;
(2) A merit system;
(3) A system which measures earnings by the quantity or quality of production;
(4) A wage rate differential determined by any factor other than race, color, religion, sex, age, national origin, or ancestry.
(C) No employer shall reduce the wage rate of any employee in order to comply with this section.
(D) The director of commerce shall carry out, administer, and enforce this section. Any employee discriminated against in violation of this section may sue in any court of competent jurisdiction to recover two times the amount of the difference between the wages actually received and the wages received by a person performing equal work for the employer, from the date of the commencement of the violation, and for costs, including attorney fees. The director may take an assignment of any such wage claim in trust for such employee and sue in the employee's behalf. In any civil action under this section, two or more employees of the same employer may join as co-plaintiffs in one action. The director may sue in one action for claims assigned to the director by two or more employees of the same employer. No agreement to work for a discriminatory wage constitutes a defense for any civil or criminal action to enforce this section. No employer shall discriminate against any employee because such employee makes a complaint or institutes, or testifies in, any proceeding under this section.
(E) Any action arising under this section shall be initiated within one year after the date of violation.
Effective Date: 07-01-2000

4111.14 Implementing constitutional minimum wage authority.
See appendix

There is no Ohio statute which provides an employee a specific civil remedy for wrongful termination based on a wage and hour complaint. Look to the FLSA for a civil remedy.
DeMell v. Cleveland Clinic Found., 2007-Ohio-2924

•8.     Employee Rights

Employees may find out how to file a complaint from local Wage and Hour Division offices, or from the Department of Labor's toll-free help line at 1-866-4USWAGE.

In addition, an employee may file a private suit, generally for the previous two years of back pay (three years in the case of a willful violation) and an equal amount as liquidated damages, plus attorney's fees and court costs.

•9.     Compliance Assistance Available

Brochures, regulatory and interpretative materials, are available on the Wage and Hour Division's Web site, or by contacting the local Wage and Hour Division offices.

Elaws- Department of Labor website.

Wage and Hour Division help line at 1-866-4USWAGE.

•10.                        Penalties/Sanctions

Modification to employment practices

payment of any back wages due to employees.

Willful violators may be prosecuted criminally and fined up to $10,000.

A second conviction may result in imprisonment.

Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to civil money penalties of up to $1,000 per violation.

Employers can the file an exception to the determination within 15 days of receipt of the notice. If an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. If an exception is not filed, the penalty becomes final.

The Department of Labor may also bring suit for back pay and an equal amount in liquidated damages, and it may obtain injunctions to restrain persons from violating the Act.

It is a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act. The Act also prohibits the shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.

1 - These regulations were revised effective August 23, 2004.

C. Overtime Compensation

For covered, nonexempt employees, the Fair Labor Standards Act (FLSA) requires overtime pay at a rate of not less than one and one-half times an employee's regular rate of pay after 40 hours of work in a workweek. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and firefighters employed by public agencies and to employees of hospitals and nursing homes.
Employees covered by the FLSA must receive overtime pay for hours worked in excess of 40 in a workweek of at least one and one-half times their regular rates of pay.
The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest.
Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee's representative)
Under the new FairPay rules, which took effect August 23, 2004, workers earning less than $23,660 per year - or $455 per week - are guaranteed overtime protection.
The Fair Labor Standards Act (FLSA) has no requirement for double time pay. This is a matter of agreement between an employer and employee (or the employee's representative).
Some states also have enacted overtime laws. Where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).
1. Exempt vs. Non-Exempt Status
Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the Department's regulations.

a. Executive Exemption
b. Administrative Exemption
c. Professional Exemption
d. Outside Sales Exemption
e. Computer Employees

2. Flexible Hours and Irregular Schedules

III. The Ins and Outs of Independent Contractors

A. IRS Definitions
1. Topic 762 - Independent Contractor vs. Employee
To determine whether a worker is an independent contractor or an employee under common law, you must examine the relationship between the worker and the business. All evidence of control and independence in this relationship should be considered. The facts that provide this evidence fall into three categories - Behavioral Control, Financial Control, and the Type of Relationship itself.
Behavioral Control covers facts that show whether the business has a right to direct or control how the work is done through instructions, training, or other means.
Financial Control covers facts that show whether the business has a right to direct or control the financial and business aspects of the worker's job. This includes:
The extent to which the worker has unreimbursed business expenses,
The extent of the worker's investment in the facilities used in performing services,
The extent to which the worker makes his or her services available to the relevant market,
How the business pays the worker, and
The extent to which the worker can realize a profit or incur a loss.
Type of Relationship covers facts that show how the parties perceive their relationship. This includes:
Written contracts describing the relationship the parties intended to create,
The extent to which the worker is available to perform services for other, similar businesses,
Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay,
The permanency of the relationship, and
The extent to which services performed by the worker are a key aspect of the regular business of the company.
For more information, refer to Publication 15-A (PDF), Employer's Supplemental Tax Guide or Publication 1779 (PDF), Independent Contractor or Employee. If you want the IRS to determine whether a specific individual is an independent contractor or an employee, file Form SS-8 (PDF), Determination of Worker Status for Purposes of Federal Employment Taxes and In come Tax Withholding.
B. Fair Labor Standards Act Definition
This fact sheet provides general information concerning the meaning of "employment relationship" and the significance of that determination in applying provisions of the FLSA.
Characteristics
An employment relationship under the FLSA must be distinguished from a strictly contractual one. Such a relationship must exist for any provision of the FLSA to apply to any person engaged in work which may otherwise be subject to the Act. In the application of the FLSA an employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves. The employer-employee relationship under the FLSA is tested by "economic reality" rather than "technical concepts." It is not determined by the common law standards relating to master and servant.
The U.S. Supreme Court has on a number of occasions indicated that there is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA. The Court has held that it is the total activity or situation which controls. Among the factors which the Court has considered significant are:
a. The extent to which the services rendered are an integral part of the principal's business.
b. The permanency of the relationship.
c. The amount of the alleged contractor's investment in facilities and equipment.
d. The nature and degree of control by the principal.
e. The alleged contractor's opportunities for profit and loss.
f. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
g. The degree of independent business organization and operation.
There are certain factors which are immaterial in determining whether there is an employment relationship. Such facts as the place where work is performed, the absence of a formal employment agreement, or whether an alleged independent contractor is licensed by State/local government are not considered to have a bearing on determinations as to whether there is an employment relationship. Additionally, the Supreme Court has held that the time or mode of pay does not control the determination of employee status.
                           Typical Problemsa. One of the most common problems is in the construction industry where contractors hire so-called independent contractors, who in reality should be considered employees because they do not meet the tests for independence, as stated above. b. Franchise arrangements can pose problems in this area as well. Depending on the level of control the franchisor has over the franchisee, employees of the latter may be considered to be employed by the franchisor. c. A situation involving a person volunteering his or her services for another may also result in an employment relationship. For example, a person who is an employee cannot "volunteer" his/her services to the employer to perform the same type service performed as an employee. Of course, individuals may volunteer or donate their services to religious, public service, and non-profit organizations, without contemplation of pay, and not be considered employees of such organization. d. Trainees or students may also be employees, depending on the circumstances of their activities for the employer. e. People who perform work at their own home are often improperly considered as independent contractors. The Act covers such homeworkers as employees and they are entitled to all benefits of the law.

C. Office of Unemployment Compensation

What is the difference between an "Employee" and an "Independent Contractor" for purposes of U.C. Tax reporting?

An employer-employee relationship exists when a person who hires an individual to perform services has the right to exercise control over the manner and means by which the individual performs his or her services. The right of control, whether or not exercised, is the most important factor in determining the relationship. The right to discharge a worker at will and without cause is strong evidence of the right to exercise direction and control.
The services of an individual that is determined to be an independent contractor (under contract to perform a special service for an employer) are excluded from covered employment. To be excluded employment, it must be established by the employer that the contractor is free from direction or control over the service being performed.
There are 20 questions used to help identify whether or not an employer-employee relationship exists.
1. Who directs or controls the manner or method by which instructions are given to any individual(s) performing services?
2. What training is required for individual(s) performing services?
3. How are the services provided integrated into the regular functions of the employer?
4. By whom does the business require that services be provided?
5. Who hires, supervises and/or pays the individual(s) performing services?
6. What type of relationship exists between the business and the individual(s) performing services which contemplates continuing or recurring work, even if not full time?
7. Who sets the time (hours) during which the individual(s) services are to be performed?
8. How much time does the business require the individual(s) performing services to devote to the business?
9. Where does the business require that work be performed?
10. Who sets the order of work the individual(s) follow while performing services for the business?
11. What type of reports, oral or written, does the business require the individual(s) performing services to submit?
12. How are the individual(s) performing services paid?
13. Who pays expenses for the individual(s) performing services?
14. Who furnishes the tools and materials used by the individual(s) performing services?
15. What investment do the individual(s) performing services have in the facilities used to perform the services?
16. What is the profit or loss to the individual(s) performing services as a result of the performance of such services?
17. Do the individual(s) performing services also perform similar services for other businesses? If yes, for whom?
18. How do the individual(s) performing services make their services available to the general public?
19. Does the business have the right to discharge the individual(s) performing services? If, yes, in what manner?
20. Do the individual(s) performing services each have the right to end the relationship with the business, without incurring liability pursuant to an employment contract or agreement? If yes, how?
A written contract that claims to create a relationship of principal and independent contractor is not controlling if the practice of the parties shows that the principal retains the right to exercise direction or control under the common law test.

D. Ohio Bureau of Workers' Compensation
Independent Contractor Checklist
According to ORC 4123.01 (A)(1)(c), if ten or more items on Employee Questionnaire  apply, a person is considered an employee and not an independent contractor. These same questions can be used to help determine if someone is an independent contractor. If the answer to eleven or more of these questions is "no," then the person injured is probably an independent contractor.

Independent Contractor/Employee Questionnaire

Injured worker name: _________________________________ Claim number: ____________________________

Question                                                                                                              Yes                               No

Is the person required to comply with instructions from the other contracting party regarding the manner or method of performing services?

Is the person required by the other contracting party to have particular training?

Are the person's services integrated into the regular functioning of the other contracting party?

Is the person required to perform the work personally?

Was the person hired, supervised, or paid by the other contracting party?

Does a continuing relationship exist between the person and the other contracting party that contemplates continuing or recurring work even if the work is not full time?

Are the person's hours of work established by the other contracting party?

Is the person required to devote full time to the business of the other contracting party?

Is the person required to perform the work on the premises of the other contracting party?

Is the person required to follow the order of work set by the other contracting party?

Is the person required to make oral or written reports of progress to the other contracting party?

Is the person paid for services on a regular basis such as hourly, weekly, or monthly?

Are the person's expenses paid for by the other contracting party?

Are the person's tools and materials furnished by the other contracting party?

Is the person provided with the facilities used to perform services?

Does the person realize a profit or suffer a loss as a result of the services provided?

Is the person performing services for a number of employers at the same time?

Does the person make the same services available to the general public?

Does the other contracting party have a right to discharge this person?

Does the person have the right to end the relationship with other contracting party without incurring liability pursuant to an employment contract or agreement?

Signature of person completing the questionnaire: __________________________ Date _____________
§ 4111.14

Statutes & Session Law
TITLE [41] XLI LABOR AND INDUSTRY
CHAPTER 4111: MINIMUM FAIR WAGE STANDARDS
4111.14 Implementing constitutional minimum wage authority.
4111.14 Implementing constitutional minimum wage authority.
(A) Pursuant to the general assembly's authority to establish a minimum wage under Section 34 of Article II, Ohio Constitution, this section is in implementation of Section 34a of Article II, Ohio Constitution. In implementing Section 34a of Article II, Ohio Constitution, the general assembly hereby finds that the purpose of Section 34a of Article II, Ohio Constitution is to:
(1) Ensure that Ohio employees, as defined in division (B)(1) of this section, are paid the wage rate required by Section 34a of Article II, Ohio Constitution;
(2) Ensure that covered Ohio employers maintain certain records that are directly related to the enforcement of the wage rate requirements in Section 34a of Article II, Ohio Constitution;
(3) Ensure that Ohio employees who are paid the wage rate required by Section 34a of Article II, Ohio Constitution may enforce their right to receive that wage rate in the manner set forth in Section 34a of Article II, Ohio Constitution; and
(4) Protect the privacy of Ohio employees' pay and personal information specified in Section 34a of Article II, Ohio Constitution by restricting an employee's access, and access by a person acting on behalf of that employee, to the employee's own pay and personal information.
(B) In accordance with Section 34a of Article II, Ohio Constitution, the terms "employer," "employee," "employ," "person," and "independent contractor" have the same meanings as in the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C. 203, as amended. In construing the meaning of these terms, due consideration and great weight shall be given to the United States department of labor's and federal courts' interpretations of those terms under the Fair Labor Standards Act and its regulations. As used in division (B) of this section:
(1) "Employee" means individuals employed in Ohio, but does not mean individuals who are excluded from the definition of "employee" under 29 U.S.C. 203(e) or individuals who are exempted from the minimum wage requirements in 29 U.S.C. 213 and from the definition of "employee" in this chapter.
(2) "Employ" and "employee" do not include any person acting as a volunteer. In construing who is a volunteer, "volunteer" shall have the same meaning as in sections 553.101 to 553.106 of Title 29 of the Code of Federal Regulations, as amended, and due consideration and great weight shall be given to the United States department of labor's and federal courts' interpretations of the term "volunteer" under the Fair Labor Standards Act and its regulations.
(C) In accordance with Section 34a of Article II, Ohio Constitution, the state may issue licenses to employers authorizing payment of a wage below that required by Section 34a of Article II, Ohio Constitution to individuals with mental or physical disabilities that may otherwise adversely affect their opportunity for employment. In issuing such licenses, the state shall abide by the rules adopted pursuant to section 4111.06 of the Revised Code.
(D)(1) In accordance with Section 34a of Article II, Ohio Constitution, individuals employed in or about the property of an employer or an individual's residence on a casual basis are not included within the coverage of Section 34a of Article II, Ohio Constitution. As used in division (D) of this section:
(a) "Casual basis" means employment that is irregular or intermittent and that is not performed by an individual whose vocation is to be employed in or about the property of the employer or individual's residence. In construing who is employed on a "casual basis," due consideration and great weight shall be given to the United States department of labor's and federal courts' interpretations of the term "casual basis" under the Fair Labor Standards Act and its regulations.
(b) "An individual employed in or about the property of an employer or individual's residence" means an individual employed on a casual basis or an individual employed in or about a residence on a casual basis, respectively.
(2) In accordance with Section 34a of Article II, Ohio Constitution, employees of a solely family-owned and operated business who are family members of an owner are not included within the coverage of Section 34a of Article II, Ohio Constitution. As used in division (D)(2) of this section, "family member" means a parent, spouse, child, stepchild, sibling, grandparent, grandchild, or other member of an owner's immediate family.
(E) In accordance with Section 34a of Article II, Ohio Constitution, an employer shall at the time of hire provide an employee with the employer's name, address, telephone number, and other contact information and update such information when it changes. As used in division (E) of this section:
(1) "Other contact information" may include, where applicable, the address of the employer's internet site on the world wide web, the employer's electronic mail address, fax number, or the name, address, and telephone number of the employer's statutory agent. "Other contact information" does not include the name, address, telephone number, fax number, internet site address, or electronic mail address of any employee, shareholder, officer, director, supervisor, manager, or other individual employed by or associated with an employer.
(2) "When it changes" means that the employer shall provide its employees with the change in its name, address, telephone number, or other contact information within sixty business days after the change occurs. The employer shall provide the changed information by using any of its usual methods of communicating with its employees, including, but not limited to, listing the change on the employer's internet site on the world wide web, internal computer network, or a bulletin board where it commonly posts employee communications or by insertion or inclusion with employees' paychecks or pay stubs.
(F) In accordance with Section 34a of Article II, Ohio Constitution, an employer shall maintain a record of the name, address, occupation, pay rate, hours worked for each day worked, and each amount paid an employee for a period of not less than three years following the last date the employee was employed by that employer. As used in division (F) of this section:
(1) "Address" means an employee's home address as maintained in the employer's personnel file or personnel database for that employee.
(2)(a) With respect to employees who are not exempt from the overtime pay requirements of the Fair Labor Standards Act or this chapter, "pay rate" means an employee's base rate of pay.
(b) With respect to employees who are exempt from the overtime pay requirements of the Fair Labor Standards Act or this chapter, "pay rate" means an employee's annual base salary or other rate of pay by which the particular employee qualifies for that exemption under the Fair Labor Standards Act or this chapter, but does not include bonuses, stock options, incentives, deferred compensation, or any other similar form of compensation.
(3) "Record" means the name, address, occupation, pay rate, hours worked for each day worked, and each amount paid an employee in one or more documents, databases, or other paper or electronic forms of record-keeping maintained by an employer. No one particular method or form of maintaining such a record or records is required under this division. An employer is not required to create or maintain a single record containing only the employee's name, address, occupation, pay rate, hours worked for each day worked, and each amount paid an employee. An employer shall maintain a record or records from which the employee or person acting on behalf of that employee could reasonably review the information requested by the employee or person.
An employer is not required to maintain the records specified in division (F)(3) of this section for any period before January 1, 2007. On and after January 1, 2007, the employer shall maintain the records required by division (F)(3) of this section for three years from the date the hours were worked by the employee and for three years after the date the employee's employment ends.
(4)(a) Except for individuals specified in division (F)(4)(b) of this section, "hours worked for each day worked" means the total amount of time worked by an employee in whatever increments the employer uses for its payroll purposes during a day worked by the employee. An employer is not required to keep a record of the time of day an employee begins and ends work on any given day. As used in division (F)(4) of this section, "day" means a fixed period of twenty-four consecutive hours during which an employee performs work for an employer.
(b) An employer is not required to keep records of "hours worked for each day worked" for individuals for whom the employer is not required to keep those records under the Fair Labor Standards Act and its regulations or individuals who are not subject to the overtime pay requirements specified in section 4111.03 of the Revised Code.
(5) "Each amount paid an employee" means the total gross wages paid to an employee for each pay period. As used in division (F)(5) of this section, "pay period" means the period of time designated by an employer to pay an employee the employee's gross wages in accordance with the employer's payroll practices under section 4113.15 of the Revised Code.
(G) In accordance with Section 34a of Article II, Ohio Constitution, an employer must provide such information without charge to an employee or person acting on behalf of an employee upon request. As used in division (G) of this section:
(1) "Such information" means the name, address, occupation, pay rate, hours worked for each day worked, and each amount paid for the specific employee who has requested that specific employee's own information and does not include the name, address, occupation, pay rate, hours worked for each day worked, or each amount paid of any other employee of the employer. "Such information" does not include hours worked for each day worked by individuals for whom an employer is not required to keep that information under the Fair Labor Standards Act and its regulations or individuals who are not subject to the overtime pay requirements specified in section 4111.03 of the Revised Code.
(2) "Acting on behalf of an employee" means a person acting on behalf of an employee as any of the following:
(a) The certified or legally recognized collective bargaining representative for that employee under the applicable federal law or Chapter 4117. of the Revised Code;
(b) The employee's attorney;
(c) The employee's parent, guardian, or legal custodian.
A person "acting on behalf of an employee" must be specifically authorized by an employee in order to make a request for that employee's own name, address, occupation, pay rate, hours worked for each day worked, and each amount paid to that employee.
(3) "Provide" means that an employer shall provide the requested information within thirty business days after the date the employer receives the request, unless either of the following occurs:
(a) The employer and the employee or person acting on behalf of the employee agree to some alternative time period for providing the information.
(b) The thirty-day period would cause a hardship on the employer under the circumstances, in which case the employer must provide the requested information as soon as practicable.
(4) A "request" made by an employee or a person acting on behalf of an employee means a request by an employee or a person acting on behalf of an employee for the employee's own information. The employer may require that the employee provide the employer with a written request that has been signed by the employee and notarized and that reasonably specifies the particular information being requested. The employer may require that the person acting on behalf of an employee provide the employer with a written request that has been signed by the employee whose information is being requested and notarized and that reasonably specifies the particular information being requested.
(H) In accordance with Section 34a of Article II, Ohio Constitution, an employee, person acting on behalf of one or more employees, and any other interested party may file a complaint with the state for a violation of any provision of Section 34a of Article II, Ohio Constitution or any law or regulation implementing its provisions. Such complaint shall be promptly investigated and resolved by the state. The employee's name shall be kept confidential unless disclosure is necessary to resolution of a complaint and the employee consents to disclosure. As used in division (H) of this section:
(1) "Complaint" means a complaint of an alleged violation pertaining to harm suffered by the employee filing the complaint, by a person acting on behalf of one or more employees, or by an interested party.
(2) "Acting on behalf of one or more employees" has the same meaning as "acting on behalf of an employee" in division (G)(2) of this section. Each employee must provide a separate written and notarized authorization before the person acting on that employee's or those employees' behalf may request the name, address, occupation, pay rate, hours worked for each day worked, and each amount paid for the particular employee.
(3) "Interested party" means a party who alleges to be injured by the alleged violation and who has standing to file a complaint under common law principles of standing.
(4) "Resolved by the state" means that the complaint has been resolved to the satisfaction of the state.
(5) "Shall be kept confidential" means that the state shall keep the name of the employee confidential as required by division (H) of this section.
(I) In accordance with Section 34a of Article II, Ohio Constitution, the state may on its own initiative investigate an employer's compliance with Section 34a of Article II, Ohio Constitution and any law or regulation implementing Section 34a of Article II, Ohio Constitution. The employer shall make available to the state any records related to such investigation and other information required for enforcement of Section 34a of Article II, Ohio Constitution or any law or regulation implementing Section 34a of Article II, Ohio Constitution. The state shall investigate an employer's compliance with this section in accordance with the procedures described in section 4111.04 of the Revised Code. All records and information related to investigations by the state are confidential and are not a public record subject to section 149.43 of the Revised Code. This division does not prevent the state from releasing to or exchanging with other state and federal wage and hour regulatory authorities information related to investigations.
(J) In accordance with Section 34a of Article II, Ohio Constitution, damages shall be calculated as an additional two times the amount of the back wages and in the case of a violation of an anti-retaliation provision an amount set by the state or court sufficient to compensate the employee and deter future violations, but not less than one hundred fifty dollars for each day that the violation continued. The "not less than one hundred fifty dollar" penalty specified in division (J) of this section shall be imposed only for violations of the anti-retaliation provision in Section 34a of Article II, Ohio Constitution.
(K) In accordance with Section 34a of Article II, Ohio Constitution, an action for equitable and monetary relief may be brought against an employer by the attorney general and/or an employee or person acting on behalf of an employee or all similarly situated employees in any court of competent jurisdiction, including the court of common pleas of an employee's county of residence, for any violation of Section 34a of Article II, Ohio Constitution or any law or regulation implementing its provisions within three years of the violation or of when the violation ceased if it was of a continuing nature, or within one year after notification to the employee of final disposition by the state of a complaint for the same violation, whichever is later.
(1) As used in division (K) of this section, "notification" means the date on which the notice was sent to the employee by the state.
(2) No employee shall join as a party plaintiff in any civil action that is brought under division (K) of this section by an employee, person acting on behalf of an employee, or person acting on behalf of all similarly situated employees unless that employee first gives written consent to become such a party plaintiff and that consent is filed with the court in which the action is brought.
(3) A civil action regarding an alleged violation of this section shall be maintained only under division (K) of this section. This division does not preclude the joinder in a single civil action of an action under this division and an action under section 4111.10 of the Revised Code.
(4) Any agreement between an employee and employer to work for less than the wage rate specified in Section 34a of Article II, Ohio Constitution, is no defense to an action under this section.
(L) In accordance with Section 34a of Article II, Ohio Constitution, there shall be no exhaustion requirement, no procedural, pleading, or burden of proof requirements beyond those that apply generally to civil suits in order to maintain such action and no liability for costs or attorney's fees on an employee except upon a finding that such action was frivolous in accordance with the same standards that apply generally in civil suits. Nothing in division (L) of this section affects the right of an employer and employee to agree to submit a dispute under this section to alternative dispute resolution, including, but not limited to, arbitration, in lieu of maintaining the civil suit specified in division (K) of this section. Nothing in this division limits the state's ability to investigate or enforce this section.
(M) An employer who provides such information specified in Section 34a of Article II, Ohio Constitution, shall be immune from any civil liability for injury, death, or loss to person or property that otherwise might be incurred or imposed as a result of providing that information to an employee or person acting on behalf of an employee in response to a request by the employee or person, and the employer shall not be subject to the provisions of Chapters 1347. and 1349. of the Revised Code to the extent that such provisions would otherwise apply. As used in division (M) of this section, "such information," "acting on behalf of an employee," and "request" have the same meanings as in division (G) of this section.
(N) As used in this section, "the state" means the director of commerce.
Effective Date: 04-04-2007

U.S. Department of Labor
Employment Standards Administration Wage and Hour Division
FairPay Fact Sheet by Exemption Under the Fair Labor Standards Act (FLSA)
Fact Sheet #17B: Exemption for Executive Employees Under the Fair Labor Standards Act (FLSA)
Executive Exemption
To qualify for the executive employee exemption, all of the following tests must be met:
The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
The employee's primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
The employee must have the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
Primary Duty
"Primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.
Management
Generally, "management" includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.
Department or Subdivision
The phrase "a customarily recognized department or subdivision" is intended to distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with permanent status and function.
Customarily and Regularly
The phrase "customarily and regularly" means greater than occasional but less than constant; it includes work normally done every workweek, but does not include isolated or one-time tasks.
Two or More
The phrase "two or more other employees" means two full-time employees or their equivalent. For example, one full-time and two half-time employees are equivalent to two full-time employees. The supervision can be distributed among two, three or more employees, but each such employee must customarily and regularly direct the work of two or more other full-time employees or the equivalent. For example, a department with five full-time nonexempt workers may have up to two exempt supervisors if each supervisor directs the work of two of those workers.
Particular Weight
Factors to be considered in determining whether an employee's recommendations as to hiring, firing, advancement, promotion or any other change of status are given "particular weight" include, but are not limited to, whether it is part of the employee's job duties to make such recommendations, and the frequency with which such recommendations are made, requested, and relied upon. Generally, an executive's recommendations must pertain to employees whom the executive customarily and regularly directs. It does not include occasional suggestions. An employee's recommendations may still be deemed to have "particular weight" even if a higher level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee's change in status.
Exemption of Business Owners
Under a special rule for business owners, an employee who owns at least a bona fide 20-percent equity interest in the enterprise in which employed, regardless of the type of business organization (e.g., corporation, partnership, or other), and who is actively engaged in its management, is considered a bona fide exempt executive.
Highly Compensated Employees
Highly compensated employees performing office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption.

U.S. Department of Labor
Employment Standards Administration Wage and Hour Division
FairPay Fact Sheet by Exemption
Fact Sheet #17C: Exemption for Administrative Employees Under the Fair Labor Standards Act (FLSA)
Administrative Exemption
To qualify for the administrative employee exemption, all of the following tests must be met:
The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
The employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Primary Duty
"Primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.
Directly Related to Management or General Business Operations
To meet the "directly related to management or general business operations" requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example from working on a manufacturing production line or selling a product in a retail or service establishment. Work "directly related to management or general business operations" includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities.
Employer's Customers
An employee may qualify for the administrative exemption if the employee's primary duty is the performance of work directly related to the management or general business operations of the employer's customers. Thus, employees acting as advisors or consultants to their employer's clients or customers - as tax experts or financial consultants, for example - may be exempt.
Discretion and Independent Judgment
In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The term must be applied in the light of all the facts involved in the employee's particular employment situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval, and other factors set forth in the regulation. The fact that an employee's decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards descr

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