Updates on Temperature Checks and the FLSA

Updates on Temperature Checks and the FLSA

In mid-2020, the team at Barkan Meizlish DeRose Cox, LLP reported on the new workplace normal. Namely, we analyzed how mandated temperature checks could lead employers into hot water. Between workplace ethics and potential FLSA violations, the institution of regular temperature checks and other COVID-19 conscious practices led to these concerns. Now, in early 2021, employees across the United States are finding themselves the victims of such FLSA violations.

In a recent California federal court filing, a tennis company came under fire when employees reported underpayment of wages. This underpayment seems to be a direct result of newly instituted COVID-19 safety measures, such as temperature checks. The company expected employees to undergo such measures prior to clocking in. The FLSA protects workers from their employers expecting work be done off the clock, including meetings, pre-shift duties, and post-shift duties. Temperature checks fall under this umbrella, as both statewide mandates and employer-instituted regulations require can require employees undergo this action.

This is not the first collective and class action suit to be filed in relation to unpaid wages and COVID-19 precautions. Apple, Walmart, and Converse have all been hit with similar filings. With large companies being hit left and right with actions regarding FLSA violations and COVID-19 safety checks, small company should take note.

Some Information on the FSLA:

Employees are protected by the Fair Labor Standards Act, also known as the FLSA. The FLSA ensures that employers are held accountable under federal law for proper payment of employees. In the case of mandated temperature checks, employees should anticipate payment for undergoing such an event before the technical start of their shift. As a required workplace action, employees should be compensated for their time.


If you are concerned that your workplace has not been properly paying you, an attorney may be able to help. Contact attorneys with Barkan Meizlish DeRose Cox, LLP today to set up a free consultation.

Work History and Your Social Security Disability Claim

Work History and Your Social Security Disability Claim:

The circumstances that lead someone to apply for Social Security Disability Insurance (SSDI) vary. The strenuous application process includes a series of difficult questions. These questions include a request for a detailed work history. This may seem counter-intuitive, as individual’s applying for SSDI can no longer work. However, understanding the application process and questions can help you complete your application as effectively as possible.

Need to Knows:

SSDI applications require your work history for several reasons. Namely, work history helps the Social Security Administration (SSA) determine:

  1. Eligibility for SSDI based on your past income taxes and
  2. That you can no longer perform the tasks required at your previous jobs or other “substantial gainful activity.”

These two factors are key to determining whether you will receive SSDI benefits. SSDI is a tax-funded program. Evaluating an individual’s past capacity to pay into the system, or that a family member has paid into the system, is part of the application process. Work history helps verify payment into the SSDI system, as this tax is taken out of paychecks. Your actual ability to work or participate in “substantial gainful activity” is equally important to the SSA.

When the SSA evaluates your work history and your application, they are looking to see if your disability or injury affects your ability to earn income. For instance, if you worked in one field for your entire career before your disability began impairing your work, it may be difficult to switch industries. The Administration may ask for more specific information on your previous work experience, including information on daily tasks and expectations.

Now What?

The SSDI/SSI application process is difficult. We want to help. Our SSDI attorney may be able to help with the application process, as well as with the appeals process. Contact our office today for your free consultation or send us an email at info@barkanmeizlish.com.

Dancer Unions, COVID-19, and Employee Misclassification

The State of Stripping: Employee Misclassification at the Club

Employee misclassification is one of the most commonplace ways employers participate in wage theft. In many industries, this means classifying workers as independent contractors despite holding them to employee-specific standards. The strip club industry is rampant with this type of misclassification, with a recent statistic showing that at least one dancer files against their employer for misclassification every four days. Dancers have been fighting and organizing for better working conditions for decades. The COVID-19 pandemic has introduced another layer of hazard to the field. With the misclassification of many dancers as independent contractors came the inability to receive unemployment at the beginning of the pandemic. Many IC’s were left without income before the CARES Act. The Act gave each state the ability to expand benefits to independent contractors.  However, the Act does not undo the decades of work and struggle many in the industry have endured.

Return to Work, Risk, and Reward

When reopening began, strip clubs were on standby until they were able to introduce additional safety protocols for patrons and dancers. Clubs began to impose new rules regarding contact with customers, socially distanced dances, and masks. These rules, while intended to protect both customers and dancers, brought additional hardship into the workplace. Many dancers already struggle with mistreatment from management and patrons alike prior to the pandemic. Multiple lawsuits have been brought against clubs regarding treatment of African-American dancers and sexual abuse, while a plethora of stripper-run blogs report on individual dancer mistreatment. Many dancers have reported that clubs are reporting higher turnout rates than usual. This increase in contact (even with social-distancing measures) increases potential exposure to the virus, on top of other workplace risks dancers are already exposed to.

At the beginning of the pandemic, a video went viral of dancer Genea Sky falling from a pole while working at XTC Cabaret. Genea did not have any accident insurance provided to her as an independent contractor at the club. She did not have insurance or other legal protections. Crowd-sourcing her medical expenses helped Genea during crisis, as has been many American’s experiences during the COVID-19 pandemic. Her status as an independent contractor, rather than an employee, at the time of her fall prevented her from receiving benefits and protections from the club.

The additional risk of contracting COVID-19 into the club setting without a promise of medical care, FMLA, or other resources many employees have access to shows a dangerous bind that many dancers face. The historic lack of protections for gig workers and independent contractors have sparked unionization efforts for decades, and the strip club industry has remained at the forefront. The ongoing effort to unionize strip clubs throughout America has grown increasingly vital during the pandemic, and the forward momentum for the movement does not seem to be slowing down.


Dancer Unionization Efforts: Then and Now

In early August of 2020, a ruling from the National Labor Relations Board determined that a Columbus, Ohio dancer was, in fact, a statutory employee under Ohio  Law.  The dancer, Brandi Campbell, was involved in many lawful union organizing efforts at a variety of strip clubs throughout years. Her termination shortly after her hiring at Centerfold was for an apparent no-touching violation. This ruling came in a crucial moment in the strip club labor organizing movement. As previously mentioned, when states like Ohio began rolling out phase-based reopening plans, many dancers found themselves in an increasingly difficult position: return to work with few protections, or stay home and lose their Pandemic Unemployment Assistance (PUA) benefits? Along with many other service industry workers, many dancers made the difficult decision to put their well-being on the line and return to work. These factors, combined with the years of hard work and labor organizing done by strippers across the nation, have brought opportunity for change and protection in the industry.

The efforts put for to organize exotic dancers and adult entertainers are pivotal in combating employee misclassification. All workers deserve fair pay and protection, and dancers are no exception. In times like these, worker solidarity is crucial to protecting the American people across industries.


The ADA, COVID-19, and Employee Fears

 ADA Accommodations During COVID-19

For many Americans,returning to work amidst the COVID-19 crisis causes concern for the health and safety of themselves their families. Since the declaration of a global pandemic, America’s most vulnerable citizens have been at the forefront of conversation about preventing the spread. Many “healthy” citizens are not considered at-risk for COVID-19, while those with pre-existing conditions are especially susceptible. Nevertheless, America is re-opening its economy. This leaves individuals with disabilities and pre-existing health conditions in an unwinnable battle. Should they attempt to return to work despite their condition or continue to stay home and risk income? Will the Americans with Disabilities Act (ADA) help them?

Limitations of the ADA

We recommend that if you have health and safety concerns, you express those concerns in writing to your employer. If you have an underlying medical condition or care for someone who does,  contact your doctor to ask about accommodations under the ADA.

The ADA prevents employers from denying employment based on an individual’s status as disabled. The ADA also calls for employers to provide sufficient accommodations for those individuals. New difficulties will continue to rise for disabled individuals during the COVID-19 pandemic and foreseeable future. Employment laws in America are about to undergo an unprecedented wave of new applications, potential violations, and changes. How can employees trust their employer will respect and comply with laws, when the laws themselves are not necessarily equipped to protect them in these uncertain times?

What’s Next?

It is hard to give an affirming answer to employees during uncertain times. However, workers can contact the Occupational Safety and Health Administration to file a complaint if their employer is not adhering to safe practices and may explore the possibility of a workers’ compensation claim if the worker contracts the COVID-19 as a result of returning to work at the employer’s insistence.

Economic Impact Payments Eligibility for Non-Filers

Economic Impact Payments: Non-Filer Need to Knows 

The United States Federal Government has officially started rolling out Economic Impact Payments to eligible citizens. If you filed 2018 and 2019 taxes, and opted for direct refund deposits, your check should be direct deposited. If you opted to have your refund mailed, your stimulus check will be mailed to you.  However, if you did not file taxes in 2018 or 2019, you may be confused about what steps you need to take.

Most recipients of Social Security Disability Insurance, Social Security Retirement, or survivor benefits will receive benefits automatically. On the other hand, some recipients of Federal aid programs are not eligible for the same automatic relief. Groups that do not qualify for automatic relief include:

  • Individuals who receive veteran’s disability compensation,
  • A pension, or
  • Survivor benefits from the Department of Veterans Affairs, or
  • Individual’s whose income level was lower than federal tax filing requirements

If you fall into any of the above categories, you must take additional steps to receive your economic impact payment. Here is what you need to do!

First, please visit THIS page. You will be able to fill out the required “mini” tax return form. This form is used instead of a traditional tax return form. After you create your account and submit your application, watch your emails.  Once completed, you will receive a confirmation email. Once you have completed these steps, the process for receiving your economic impact payment check will be in motion.

If you still have questions about how you may be impacted by these rules, a social security attorney can help.

Social Media As Evidence and the SSA

Can An Administrative Law Judge Use Social Media as Evidence?

Social media constantly evolves. Keeping up with social media developments can be a huge task. Lawmakers and attorneys have a responsibility, within reason, to keep up with these changes. They may impact existing laws and regulations. Some changes can even lead to the creation of new laws. We previously reported that Facebook posts could be used in an ALJ’s decision on your Social Security Disability claim. However, the law continues to evolve. Now, there are some limitations on an ALJ’s ability to use your social media as evidence.

Updated Laws and Guidelines

Recent guideline changes impact how ALJ’s use social media in their rulings. The Social Security Administration guidelines state that, “adjudicators and hearing office staff must not use Internet sites and social media networks to obtain information about claimants to adjudicate cases.” This means that an Administrative Law Judge cannot use your social media as evidence against you. There are exceptions to the rule. These exceptions involve the Cooperative Disability Investigation Unit (CDIU). If a CDIU investigation finds social media content as appropriate evidence, it can be used by an ALJ in their decision-making. Your ALJ should not use your social media to directly rule against your SSDI claim unless approved to do so.

Responsible Social Media Usage

At the end of the day, however, social media posts can be more public than intended. You never know who is looking at your content, or when a post will come into question in a court of law. Take it from our Social Security Disability Attorney, Mindy Yocum:  “Never post anything on social media that you would not want read aloud in court!”

If you are filing a Social Security Disability Insurance claim, and need guidance through the process, give us a call today.

Important Updates Regarding Workers’ Compensation for First Responders Diagnosed with PTSD:

For some years now in Ohio, lawmakers have been working on a bill that would allow first responders to apply for workers’ compensation if they receive a PTSD diagnosis. The current legislature in Ohio states that in order to receive compensation for PTSD, a physical injury must also be present. This has historically prevented individuals, like first responders, who witness a traumatic event from receiving benefits despite having their lives impact and work inhibited. Several factors have caused push back on the bill for the last nine years. The anticipated increase in workers’ compensation costs by expanding the eligibility criteria has drawn skepticism, as well as fear of a snowball effect following the expanded guideline.

That all being said, this expansion would allow for many workers affected by PTSD to apply for potentially life-saving benefits. The bill passed in the House on February 12th, 2020 and is scheduled for consideration in the Senate.

How Doxing and Revenge Porn Laws are Evolving in Ohio

The World and Your Private Images are at Your Fingertips…and Everyone Else’s

In today’s technology focused society, almost everyone carries a weapon in their pocket —their smart phones. The exchange of a phone number, formally the key to communication, is virtually and literally no longer necessary. Social media apps like Snapchat, Instagram, and Facebook, connect individuals across the globe without any formal information exchange. This makes sharing, posting, and interacting as simple as one touch on a screen. While there are certainly many ways that social media benefits people globally- bringing them together, making activism easier, and bridging oceans and languages- comes an equal number of potential harmful behaviors.

What is Doxing?

With the simple tap of a screen, a smartphone can go from a communication device into a weapon. The dissemination of personal information- social security numbers, addresses, phone numbers, passwords, employer, work location- without an individual’s consent is called ‘doxing‘.

Doxing has become an increasingly common online victimization tactic. Doxing is commonly used against individuals with online presences, such as influencers or politicians, but is not limited to public figures. It has become increasingly commonplace to meet people who have been the victims of doxing either by vindictive exes or simply a person with an intent to harm or complicate someone’s life. Victims of doxing are, unfortunately, often the targets of an additionally hateful crime that ruins lives: revenge porn.

What is Revenge Porn?

While pornography itself is not a new concept, the mass distribution of pornography via digital platforms is constantly evolving. Camera phones have made taking sexually explicit images increasingly easy and common among all ages, genders, and backgrounds. Sending and receiving these images is as normalized for many young people who have grown up with access to this technology, much like the prior generations’ ability to pass a note in the hallway. Many of these exchanges are consensual when they begin. There is an often unspoken agreement that these images are only meant for the original recipient. Once the relationship sours, the potential for revenge porn increases.

Revenge Porn or Non-consensual Pornography is a broad categorization of criminal and non-consensual distribution of sexually explicit content. The term was popularized in the early part of the last decade, when activists such as activist Charlotte Laws and attorney Carrie Goldberg  began using their public platforms to educate the public on these types of crime.

As of today, 45 states, D.C., and one U.S. territory have revenge porn laws. The passing of such laws has been a concerted effort among activists. This an amazing first step for victims of revenge porn. However, it is only the start. Many of these statutes are intentionally vague due to fear of conflict with the First Amendment. Cases are often not actively pursued by law enforcement without direct advocacy. The fight to protect victims of revenge and non-consensual pornography is ongoing. It will continue to be fought until the proper protections are put in place for victims.

What Can I Do if I Am the Victim of Revenge Porn? Are There Protections for Me?

In Ohio, R.C. § 2917.211, Non-consensual dissemination of private images, makes it illegal for someone to distribute images of another person when:

  1. The person in the image is 18 or older;
  2. The person in the image can be identified, either from the image itself or the context in which the image was disseminated;
  3. The person is nude or engaged in a sexual act;
  4. The image is disseminated without the person’s consent;
  5. and with intent to harm.

Thus, R.C. § 2917.211 makes sending illicit, sexual imagery of a person over the age of 18 with harmful intent a misdemeanor, with varying penalties depending on whether the violator is a repeat offender.

Also, in Ohio R.C. § 2307.66 gives victims of  non-consensual dissemination of private images a civil cause of action, meaning the right to sue the individual for damages. The damages include any of the following:

  • An injunction or temporary restraining order prohibiting further dissemination of the image;
  • Compensatory and punitive damages;
  • That the offender pays the victim’s reasonable attorneys’ fees; and/or
  • That the offender covers the court costs incurred by the victim in bringing the civil action.

An important inclusion in this statute is  “the victim shall be presumed to have suffered harm as a result of the non-consensual dissemination.” This means the damage caused by any violation of R.C. § 2917.211 is automatically assumed if it is upheld as a violation in court. This allows victims the opportunity to seek damages without “proof” of the harm caused by the dissemination of the illicit images.

Who Can I Ask for Help?

Speaking with an attorney can help you determine what your rights are. It can also help you understand any exceptions that may disqualify you from pursuing any potential damages claim. Laws such as these help victims of doxing and revenge porn fight for justice. These types of crimes have become a worldwide phenomenon and creating protections to fight for victims is crucial.  To speak with an attorney about your situation, call Barkan Meizlish DeRose Cox, LLP at (800)-274-5297 or send us an email at info@barkanmeizlish.com.

How Victims Of Wage Theft Can Fight Back: Fee-Shifting Protections and the FLSA

My Employer Didn’t Pay Me Correctly but I Can’t Afford an Attorney, Now What?

Have you ever worked somewhere that didn’t pay you on time, or didn’t pay your wages properly? If yes, you probably talked about it with a friend or family member who suggested you pursue legal action. Your response may have been that you couldn’t afford a FLSA attorney, you didn’t have the time to pursue it, or that the time and cost it would take wouldn’t be worth it since it wasn’t THAT big of a deal. If you’ve ever been the victim of wage theft, you may have found yourself in this difficult position. The big question facing most victims of wage theft is- is pursuing this legally worth the money that I lost?

You are not alone in this experience. Fortunately, this does not have to be your reality and there are attorneys that will help you with no cost out of pocket to you!

Under the federal law, 29 U.S.C.sec216(b), recovery of attorney’s fee is a required aspect of a Fair Labor Standards Act (FLSA) violation claim. In simpler terms, this means when a successful FLSA claim is filed, the Court can make it the employer’s responsibility to pay for the cost of your attorney’s services. This is incredibly important for victims of wage theft and other violations of the FLSA to be aware of, as it can be the deciding factor for many who are on the fence about pursuing legal action.

What Does This Mean for Me?

As the victim of wage theft, these rules and guidelines help ensure that even the most seemingly harmless cases (emphasis on ‘seemingly’) are taken seriously by the American legal system. Often, the monetary value of a wage theft complaint is less than the potential cost of legal assistance for resolving the issue. This shifting of the attorney fees from the employee to the employer in wage theft cases is meant to eliminate the issue that may deter employees from pursuing legal action. With the federal minimum wage set at $7.25, many hourly employees are not capable of retaining legal counsel, and the fee shifting structure of the law eliminates that concern. The FLSA allows employees an opportunity to fight against an employer who has done them wrong, no matter how small the amount of wages stolen. However, it is also important to note that the statute necessities that a plaintiff receive a judgement in their favor, rather than the employers favor, for the fee-shifting to be upheld by a court.

Okay, I Want to Take My Claim to Court

Hopefully, this information has given you some peace of mind and let you know the most important part of all of this: you deserve to be treated fairly by your employer. Your next step is to contact an attorney and discuss your case. The Paycheck Warriors at Barkan Meizlish DeRose Cox, LLP are here to help. Send us an email at info@barkanmeizlish.com or give us a call at (800)-274-5297 for more information.

Enhanced Employees, Enhanced Productivity? Not Necessarily. How Technological Advancements, Such As Micro-Chipping for Humans, Could Be Harmful to Employees.

Modified Mentalities:

If you were on YouTube in the early half of the last decade, you may remember Neil Harbisson’s incredible Ted Talk “I listen to color.” For those who do not recall, Harbisson discusses his cranial implant and its associated external antenna. The implant processes color and turns them into sound waves within his skull. Having lived his whole live colorblind, Harbisson went from seeing grey scale to processing color in a way only made possible by technology.

All of this is to say that there has been an active venture to technologically modify humans for some time. It should come as no surprise that employers have tried to utilize this fascinating trend to appeal to a hip and young pool of prospective employees, and potentially exert control over them in an unprecedented way in years to come.

Blurring Boundaries:

An article published on February 3rd, 2020 by marketwatch.com outlined the proposed legislature in the state of Indiana that would ban employers from requiring their employees to receive mandatory microchip implants. While it seems like actual cases of employers expecting their employees to receive these small, sub-dermal implants, it is an important discussion to be having in 2020. In the discussion surrounding the benefits of micro-chipping employees on a voluntary (for now) basis, there seems to be a reoccurring focus on productivity—simplify your employee’s life, improve their work ethic. It is impossible to overlook the statistics that show the contrary.

In a world where your employer is quite literally under your skin, how can employees take time for themselves or remove the potential stress of feeling on-the-clock 24/7? A recent op-ed featured in Bloomberg focused on the “always on” mentality many workers feel they cannot switch off, leading to burn out and lowered productivity. The answer to employee burnout and dissatisfaction, then, seems to be a focus on intentional away time from work rather than an increased presence in employee’s day-to-day life.

Expectations Vs. Reality:

The federal minimum wage has remained $7.25 since 2009, and yet employers continue expect more and more of their workers. In the current gig economy, many workers are left scraping together what they can from freelance or independent contracting work, desperately waiting for a full-time opportunity to take the burden of gig work off their shoulders. While many states have taken preventative action and outlawed mandatory microchip implants for employees, many people are still left questioning just how far an employer may be willing to go for their companies’ best interest. These sorts of changes will continue to challenge the current state of labor and employment law, and we must constantly be adapting to prepare ourselves for these upcoming challenges.


If you have any concerns about your employers’ treatment of their employees, give us a call today at 800-274-5297.

Mara Siegel is the Marketing Director at Barkan Meizlish DeRose Wentz McInerney Peifer, LLP.

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