Seasonal Businesses and the FLSA
In response to the effect of COVID-19 on seasonal businesses, the U.S. Department of Labor will issue a temporary reprieve to these seasonal businesses against the Federal Fair Labor Standards Act (FLSA) minimum wage and overtime violations. Many of these businesses were forced to adapt their day-to-day operations because of the pandemic. Resultingly, many seasonal businesses were made ineligible for the seasonal exemption due to these necessary adaptations.
Changes due to the Pandemic
Businesses that have had to change their operations due to the pandemic are, according to a Law360 article, “those business that are only open for seven months a year or less or whose income fluctuates dramatically at different points in the year.” Such seasonal businesses include amusement parks, golf courses, stadiums, and camps, whose ability to remain open and offer services is highly dependent on the weather and/or (especially for camps) the summer term of the school year. Again, these businesses will benefit from non-enforcement of FLSA minimum wage and overtime violations that may even continue into 2021 should the pandemic, and its dampening economic effect, persist.
Companies that have had to adopt alternatives to their usual operations will be those benefited by the non-enforcement of such FLSA claims for the time being. However, with the benefit of this non-enforcement, a few factors must be met for it to apply to a seasonal business.
Factors to Consider
In order to enjoy the advantages the DOL is offering, businesses must have either been an exempt seasonal operation before 2020 or one that had already implemented plans to become an exempt seasonal operation before the start of that year. Additionally, the businesses must put in place a plan to resume regular business in 2021 while maintaining their pre-pandemic wages.
All of these changes have been implemented by the DOL in an effort to mitigate the harsh impact that the pandemic has had on businesses, mainly seasonal ones. With the implementation of the non-enforcement of such claims for the time being, the DOL hopes to ease the burden that such employers have had to face until the levels of such operations can adjust to their normal, pre-pandemic positions.
– Jacob Mikalov for Barkan Meizlish, LLP
From the Barkan Meizlish, LLP Archives: Letter to the Editor
Stop the medical errors, and you stop the lawsuits
With regard to the Feb. 20 article “Doctors go on the defensive with tests,” I offer the following comments that hopefully reflect the other side of the debate.
The article described a practice among some doctors who allege they order unnecessary tests as a hedge against potential medical-malpractice claims.
There is a crisis in medicine: medical errors, and errors ought to be the primary concern of the medical community, not the declining number of lawsuits against hospitals and doctors when those preventable errors occur.
Rather than asking how we can further reduce the number of lawsuits and limit accountability, which was done legislatively in the early 2000s (the number of lawsuits in Ohio has declined every year since), we should be considering how we can improve the quality of medical care in this state and reduce the staggeringly high rate of medical errors.
According to the Institute of Medicine, 98,000 people die annually because of medical errors. That’s the equivalent of two 737 airplanes crashing every day for a whole year.
Health Affairs magazine reported last year that one in three patients in a hospital is the victim of medical errors. Why aren’t we talking about these horrifying statistics and the ways to solve the problem?
Wouldn’t Ohioans be better served by working to find solutions to this rampant problem rather than trying to reduce overall accountability when those errors occur?
We also question the veracity of the self-reports where doctors claim to order unnecessary tests. The law does not require doctors to order any tests.
Instead, a doctor need only act reasonably in the care and treatment of the patient, and if it is reasonable to not order certain tests, the doctor cannot be held liable.
Second, many tests, particularly invasive tests, come with inherent risks. It is inconceivable that a caring doctor would intentionally subject a patient to such a test simply for selfish reasons.
Third, in Ohio, a doctor cannot be sued at all unless another physician in the same specialty has executed an affidavit under oath stating the treating doctor acted unreasonably. So, it is doctors who determine whether a treating doctor can be sued, not the patient or the patient’s lawyer.
Such a physician surely could determine whether a test was necessary or not. The law already has been changed many times to discourage patients from filing claims.
Additionally, if we can raise Ohio’s standard for the quality of care, the few remaining lawsuits due to medical malpractice will naturally fall. If, however, we simply reduce the ability of average citizens to seek justice through our courts, we are turning a blind eye to the real problem.
BOB DeROSE