Bill curbs OT of those who answer work emails after hours

Ohioans who answer work emails from their beds or the sidelines at their kids’ soccer games could be blocked from claiming those minutes as overtime if a bill introduced in the state Senate becomes law.

Supporters say Senate Bill 47 would give employers clarity and protection from lawsuits in this new COVID-19 world where thousands of people work unsupervised from home. Opponents say federal labor laws provide adequate protection, and these new rules could create a system that harms hourly employees.

“The idea behind this is to get everybody on the same page so they know when the employee is actually working,” Sen. Andrew Brenner, R-Powell, said.

If passed, the bill would exempt Ohio employers from paying overtime when employees travel to and from work and for “activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled working hours.”

A quick glance through your phone while waiting in the car for groceries isn’t billable hours, Brenner said. “The idea behind this is to say look, if you are doing that on your own time and you don’t have this spelled out in your contract, you’re on your own.”

That’s fine, Sen. Nickie Antonio, D-Lakewood, said. An occasional, clarifying text to a boss after hours doesn’t have to count as overtime work. What bothers her is how all those little moments add up over the course of a year and how an employer might exploit Brenner’s bright line to his or her advantage.

“We wouldn’t have these rules about overtime if employers hadn’t blatantly disregarded common practice,” Antonio said. “I just think this bill is unnecessary.”

What counts as work?

The federal Fair Labor Standards Act says an employer who “suffers or permits” work outside scheduled hours can be forced to count those hours even if he or she did not directly order it.

However, the U.S. Supreme Court ruled in Anderson v. Mt. Clemons

Pottery Co. that “when the matter in issue concerns only seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.”

The 1946 ruling called that amount of work “de minimis,” meaning too trivial or minor to matter. The challenge since then has been to define what crosses the de minimis line in a world where smartphones can tether employees to their jobs from anywhere on the planet.

A Center for Creative Leadership survey back in 2012 found 60% of people who used smartphones for work were already keeping in touch with their office 13.5 hours per day and another five hours each weekend.

Another survey by the

American Psychological Association found 44% checked worked email daily while on vacation and 10% checked in hourly.

Ten minutes of extra work a day adds up to more than 41 hours in an average work year.

France enacted a law in 2017 to stop the “explosion of undeclared labor” that forced companies with more than 50 employees to negotiate and define out-of-office email rules. Some firms, according to CNN, went so far as to shut down their email servers overnight.

“Work should be defined based on the task being done not on an arbitrary amount of time,” said Bob DeRose, a labor attorney and former President of the Ohio Association for Justice

(a nonprofit focused on trial rights).

He’s neutral on the bill, but DeRose did oppose the previous version Brenner tried and failed to pass during the last General Assembly. He said he appreciated all the work both Brenner and co-sponsor Sen. Bob Peterson, R-Washington Courthouse, had put into improving its language. But he still harbored some reservations about how companies would interpret “insubstantial or insignificant periods of time.”

“If what they are doing isn’t related to their work, then they could do it for hours and not be paid,” DeRose said. “But if a person is doing something related to their job, then they should be paid — even if it’s four minutes.”