The main questions this week about Issue 2, Ohio's new minimum wage law center on the employer's duty to collect and provide employee wage information. Opponents of Issue 2 insisted that it would require employers to release confidential employee information to third parties. With Issue 2's passage, employers now want to know if they must really give one employee wage information to anyone who asks for it. The answer, I believe, will be "no."
New Ohio wage information and reporting requirements
The starting point is what Issue 2 has to say about the employer's new duty to provide employee wage information:
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. Such information shall be provided without charge to an employee or person acting on behalf of an employee upon request. An employee, person acting on behalf of one or more employees and/or any other interested party may file a complaint with the state for a violation of any provision of this section or any law or regulation implementing its provisions.
So, a plain reading of Issue 2's language says that an employer must collect the following information about each employee:
- Name
- Address:
- Occupation;
- Pay rate;
- Hours worked for each day worked and
- Amount paid, presumably for each pay period.
Having collected this information about "each employee," to whom and how much of it must an employer report to someone who asks for it? Issue 2 says that the employer must provide "such information" to the employee. It does not say the employer must give the information to a third party.
This leaves the queston of whether "such information" mean the total database of wage information kept on all employees, or just the wage information of the employee who requests it? Right now, the answer is not clear.
"Such information" should belong to the employee
Issue 2 allows Ohio's General Assembly to:
implement its provisions and create additional remedies, increase the minimum wage rate and extend the coverage of the section, but in no manner restrict any provision of (Issue 2).
Clarifying what "such information" means is within the scope of implementing legislation. Therefore, the General Assembly will almost certainly answer this question.
My guess is that the General Assembly will read "such information" as limited to an employee's own wage information. This would balance the interest of the employee asking for the information with his co-worker's interest in keeping her wage information confidential. If the General Assembly adopts this approach, however, an employee could challenge whether limiting access to just an employee's own wage information "restricts" Issue 2's terms. My guess, for what little it is worth, is that such a challenge would not succeed.
The problem for employers until the question is finally answered is how to respond to a request by an employee (or a union representing employees) for other employees' wage information. I think a prudent approach is to seek the consent of employees before releasing their information. If an employee does not consent, consult employment counsel on how to proceed without violating the rights of one employee over the other.
Update: Rep. Seitz introduced House Bill 690 on November 29, 2006, which is proposed implementing legislation. HB 690 allows employers to obtain written authorization from employees before handing records to persons acting on their behalf.
