Ohio § 4111.14

§ 4111.14.

(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. (3) “Employer” does not include a franchisor with respect to the franchisor's relationship

with a franchisee or an employee of a franchisee, unless the franchisor agrees to

assume that role in writing or a court of competent jurisdiction determines that the

franchisor exercises a type or degree of control over the franchisee or the franchisee's

employees that is not customarily exercised by a franchisor for the purpose of protecting

the franchisor's trademark, brand, or both.  For purposes of this division, “franchisor” and “franchisee” have the same meanings

as in 16 C.F.R. 436.1 . (4) Subject to division (B)(5) of this section, “employee” does not include an individual

who operates a vehicle or vessel in the performance of services for or on behalf of

a motor carrier transporting property and to whom all of the following factors apply: (a) The individual owns the vehicle or vessel that is used in performing the services

for or on behalf of the carrier, or the individual leases the vehicle or vessel under

a bona fide lease agreement that is not a temporary replacement lease agreement.  For purposes of this division, a bona fide lease agreement does not include an agreement

between the individual and the motor carrier transporting property for which, or on

whose behalf, the individual provides services. (b) The individual is responsible for supplying the necessary personal services to operate

the vehicle or vessel used to provide the service. (c) The compensation paid to the individual is based on factors related to work performed,

including on a mileage-based rate or a percentage of any schedule of rates, and not

solely on the basis of the hours or time expended. (d) The individual substantially controls the means and manner of performing the services,

in conformance with regulatory requirements and specifications of the shipper. (e) The individual enters into a written contract with the carrier for whom the individual

is performing the services that describes the relationship between the individual

and the carrier to be that of an independent contractor and not that of an employee. (f) The individual is responsible for substantially all of the principal operating costs

of the vehicle or vessel and equipment used to provide the services, including maintenance,

fuel, repairs, supplies, vehicle or vessel insurance, and personal expenses, except

that the individual may be paid by the carrier the carrier's fuel surcharge and incidental

costs, including tolls, permits, and lumper fees. (g) The individual is responsible for any economic loss or economic gain from the arrangement

with the carrier. (5) A motor carrier may elect to consider an individual described in division (B)(4)

of this section as an employee for purposes of this section. (6) “Motor carrier” has the same meaning as in section 4923.01 of the Revised Code . (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.