What Can I Do If My Employer Does Not Want to Pay Wages and Overtime in Ohio?

During the 2019 fiscal year, the federal agency that enforces overtime rules recorded just over 11,000 violations and collected more than $186 million in unpaid wages for nearly 215,300 workers. Ohio employers were as likely as companies and agencies everywhere else to deny overtime to employees who had earned it.

Employee rights attorneys with Barkan Meizlish, LLP, welcome opportunities to help fellow Ohio residents hold every employer that refuses to pay overtime accountable. Here are four steps workers can take on their own to make that happen.

Determine Your Eligibility to Earn Overtime

Rules set by the U.S. government under a law called the Fair Labor Standards Act, or FLSA, say who must be paid overtime. Discussing all those rules in detail would create more confusion than clarity. At a practical level, you need to answer the following questions to know if you should be receiving overtime pay.

  • Did you work more than 40 hours during a 7-day workweek? This is the minimum requirement for overtime eligibility.
  • Do you earn less than $455 per week? Earning more than that allows your employer to automatically exempt you from earning overtime. This salary threshold rises to $684 per week in 2020.
  • Do you supervise coworkers? Employers can exempt managers from overtime eligibility regardless of what a manager earns each week.
  • Do you hold a job with a position title or job description that includes the word “executive,” “administrative,” “professional,” “computer,” or “outside sales”? Complicated duties tests exist for workers in several types of jobs. Your employer is allowed to make you exempt from overtime depending on your duties.

Keep a Record of the Hours You Work Each Week

The FLSA requires your employer to keep accurate records of the time you spend working and how much you get paid. Companies and agencies that refuse to pay overtime often fail to do that. Sometimes, the problem is just sloppiness, but many employers actually falsify wage and hour records.

If you believe you are being denied overtime pay, you can build your case by keeping your own records. Federal and state investigators, as well as a lawyer you hire to pursue an unpaid overtime claim, can force your employer to hand over its records. Comparing your notes with what the employer reported can reveal FLSA violations.

Ask Coworkers if They Are Being Paid for All the Hours They Work

Employers that refuse to pay overtime to you may be cheating other workers. You have the right to discuss this with your coworkers, and gathering evidence of a pattern of FLSA violations can strengthen your claim for unpaid overtime. A judge may also allow you and your coworkers to sue as a group, which ensures justice for as many people as possible.

Consult With an Employment Lawyer Who Handles Overtime Cases

You can and should bring your concerns about unpaid overtime directly to managers and supervisors. Meeting with an experienced employee rights attorney before doing so will ensure that you have solid evidence and also help protect you from retaliation. Laws exist to make firing or harassing an employee for complaining about illegal pay practices, but employers break those laws all the time. At Barkan Meizlish, LLP, we only advise and represent workers. The Paycheck Warriors at Barkan Meizlish, LLP, will work with you throughout your case and help assure the best possible outcome. Let us know how we can assist you with securing unpaid overtime by calling our Columbus offices at (614) 221-4221 to schedule a free and confidential consultation. We take cases all across Ohio, and we book appointments online.

How to Recognize and Report Workplace Harassment in Ohio

Harassment in the workplace takes many forms. Although sexual harassment has stayed in the headlines recently, thanks to the #MeToo movement, bullying and assaults against workers based on their race, religion, age, disability and other characteristics are equally  serious and illegal.

Ohio workplace harassment laws match the federal laws to protect employees’ rights. These laws, under both state and federal,  give harassed and/or bullied workers powerful tools to hold employers accountable for failing to protect them.

The first step toward invoking protection under a law like the Civil Rights Act of 1964 or the Americans With Disability Act (“ADA”) is to recognize what constitute legally actionable harassment. So, to quote the Equal Employment Opportunity Commission (“EEOC”), “Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

Workplace harassment becomes unlawful where:

  • Enduring the offensive conduct becomes a condition of continued employment, or
  • The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

To take this definition apart a little bit and put it into practical terms, an employee cannot claim to be suffering from harassment when they invite or willingly participate in potentially uncomfortable conduct. The actions must be uninvited and unappreciated to provide the basis for a harassment complaint and lawsuit.

It is also important to note that neither a single request for a date nor a playful remark constitute harassment. The problem must come up repeatedly, be serious enough to warrant a call to the police, or cause the victim to quit or seriously consider quitting.

Report Harassment to HR or a Trusted Supervisor First

Under Ohio workplace harassment laws, a victim of harassment can consult with an employee rights attorney at any time. Doing this before filing a formal complaint can be helpful for understanding the process for pursuing a complaint and considering the possible results of taking action. A lawyer who has helped other harassment victims will also have advice on how to write a complaint and which types of evidence will support a claim.

Whether a lawyer is consulted or not, the first place to go with a harassment complaint is human resources or a supervisor. Employers are required to have processes for receiving and investigating complaints. Agencies like the EEOC and courts that handle workplace handle workplace harassment cases want to see that those processes were followed.

When a complaint filed with the employer fails to resolve the problem, a workplace harassment victim can then file a complaint with the agency that administers the applicable employee rights law. This is usually the EEOC, but a lawyer who represents harassment victims will know which agency to contact.

The agency will investigate the complaint and take one of three actions:

  • Ask the employer to find a solution that protects the harassment victim,
  • Issue a letter authorizing the victim to file a lawsuit against the employer, or
  • File a lawsuit against the employer on behalf of the victim.

An Employer Cannot Retaliate Against an Employee Who Reports Harassment

No matter what else happens, an employee who files a complaint about workplace harassment cannot legally be fired, demoted or harassed for doing so. To quote the EEOC one more time: “Antidiscrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.”

Contact our Workplace Harassment Attorney

Still, too many employers retaliate against workers despite knowing they can face legal consequences. It is not uncommon for a harassment victim to file a lawsuit that lists separate claims for harassment and retaliation. An Ohio employee rights attorney with Barkan Meizlish, LLP, can provide advice on all types of potential workplace harassment and retaliation cases. To schedule a free and confidential consultation, call us at (614) 221-4221 or complete this contact form.

Can You Sue For Emotional Distress Lawsuit Against Employer in Ohio?

Can an Employer Be Sued for Emotional Distress in Ohio?

You can file an emotional distress lawsuit against your employer if you have proof that some action by the company’s managers triggered serious shame, fear, embarrassment, depression or post-traumatic stress. You will encounter high barriers to succeeding with such a lawsuit, however.

Grounds for Bringing an Emotional Distress Lawsuit Against an Employer

First, state laws in Ohio make it nearly impossible for employees to sue their employers after work-related accidents induce emotional distress. That is to say, personal injury lawsuits, which often include emotional distress claims, almost never move forward against employers when the plaintiff is an employee.

Pretty much every claim related to an on-the-job injury or illness must be handled through the workers’ compensation program. A workers’ comp claim can include requests for the coverage of treatment for mental and emotional problems that develop as a result of the injury or illness, but the program will not approve a claim for just emotional distress.

The types of lawsuits against employers that can include claims for emotional distress usually relate to violations of employment laws that prohibit discrimination, harassment and illegal forms of retaliation. For instance, a worker who brings a wrongful termination lawsuit can include a claim for the emotional distress they suffered while unemployed and struggling financially.

Importantly, stress itself cannot support either a workers’ comp claim or a lawsuit against an employer. Lawmakers and courts expect all jobs to be stressful. An employer can only be sued when its managers deliberately make a position more stressful than it needs to be in order to harm an employee or to compel the employee to quit.

Standards of Proof in an Ohio Emotional Distress Lawsuit

To succeed in convincing a judge and jury that you suffered emotional distress because of something you employer did, you must present convincing evidence of all the following facts:

  • Your employer acted recklessly or with intent,
  • The action was illegal or extreme and outrageous,
  • The action directly caused your emotional distress, and
  • Your emotional distress was severe.

You can prove intent by documenting complaints about distressing treatment such as harassment or discrimination. Partnering with an experienced and understanding employee rights attorney will help you cite which laws were violated and to make a case for actions being beyond ordinary teasing or everyday stressors.

You can use medical records, insurance claims, pharmacy bills, and therapists’ notes to demonstrate the connection between the action and your emotional distress. That health information can also establish the severity of the distress.

Finally, to secure a jury award, you must be able to show that your employer knew about the issue that was causing emotional distress and either caused the issue or did nothing to resolve it. Internal records of meetings and emails can be important forms of proof in this regard. At Barkan Meizlish, LLP, our attorneys only advise and represent employees. If you think you have grounds for filing an emotional distress lawsuit against your current or former employer, give us a call at (614) 221-4221 to let us know how we may be of assistance, You can also schedule a consultation online. The initial discussion will cost you nothing.

What You Need to Know About Workplace Discrimination Laws in Ohio

During 2018, the Equal Employment Opportunity Commission filed 2,274 charges for employment discrimination in Ohio. Far more workers and job applicants suffered from discrimination, however. The EEOC handles most such cases, but it is not the only federal or state agency that does so. Additionally, 75 percent or more of the discriminatory actions taken by employers go unreported.

One reason so many victims of workplace discrimination do not file complaints is that discriminatory motives for what Columbus employee rights lawyers call adverse employment actions go unspoken or get expressed in coded language. For instance, a subtle method many employers use to engage in discrimination against older workers involves writing job ads that include phrases like “cutting edge” or “energetic.” Such terms suggest that younger applicants are sought.

Workplace Discrimination may also lead an employer to

  • Decide not to hire or promote a qualified individual,
  • Set unrealistic performance goals,
  • Target certain individuals for harsh discipline while allowing other people to break the same rules without experiencing consequences,
  • Subject people to harassment,
  • Layoff or fire someone without having a solid reason for doing so, or
  • Refusing to recall a laid-off worker while welcoming back other employees.

Who Has Legal Protections Against Workplace Discrimination?

A number of federal and state laws define so-called “protected classes” of employees and jobseekers. U.S. laws such as Title VII of the Civil Rights Act of 1964, the Americans With Disability Act, and the Age Discrimination in Employment Act protect people from discrimination based on their

  • Race,
  • Skin color,
  • National origin,
  • Religion,
  • Sex,
  • Pregnancy and recent childbirth.
  • Disability,
  • Age when older than 40,
  • Citizenship status, and
  • Genetic information.

Ohio statutes follow the U.S. Code very closely, but it is worth noting that state-based claims of workplace discrimination can be filed in relation to

  • Race,
  • Skin color,
  • National origin,
  • Ancestry,
  • Religion,
  • Sex,
  • Pregnancy and recent childbirth,
  • Disability,
  • Age when older than 40,
  • Military status, and
  • Caring for a parent, child, sibling, or spouse who was injured while serving in the military.

The cities of Columbus, Cincinnati, Cleveland, Dayton and Toledo also have local ordinances that prohibit workplace discrimination based on an individual’s sexual orientation or gender identity.

Note, too, that for the purposes of federal and Ohio workplace discrimination laws, classes such as race and religion include people of all races and religions. The legal protections are not reserved for people from specific racial groups or faith traditions.

What Is the Process for Filing a Claim for Workplace Discrimination in Ohio?

The EEOC process—which is the one most people follow and which serves as a model for the process used by the Ohio Civil rights Commission—starts with the victim of workplace discrimination making a formal complaint to their employer. The report can go to a human resources representative or a trusted manager or supervisor. Receiving the complaint legally obligates the employer to conduct a good-faith investigation into the problem.

The next step involves the employer working with the parties involved in the complaint to resolve the problem. The victim of discrimination can then take their complaint to the EEOC if any of the following situations develop:

  • The employer does not conduct an investigation,
  • The investigation is conducted sloppily or unfairly,
  • No action is taken to resolve the problem, or
  • The action taken fails to prevent the problem from recurring.

The EEOC will then conduct its own investigation. Depending on what the commission finds, it can dismiss the complaint, ask the employer to implement another solution, issue a letter authorizing the victim to sue their employer, or sue the employer on the victim’s behalf.

Winning an Ohio workplace discrimination lawsuit allows the victim to receive monetary damages, past and future wages (sometimes with interest), attorney fees, and, when appropriate and requested, reinstatement to their previous position. A ruling against an employer may also include court orders to change and document its policies and practices to ensure other workers do not suffer discrimination.

How to Get Help From an Attorney With Your Ohio Workplace Discrimination Lawsuit

Any person who thinks they have suffered workplace discrimination in Ohio has an undeniable right to seek advice and representation from an employment discrimination lawyer. It can help to speak with an attorney before filing an official complaint with an employer because the lawyer will be able to offer an opinion on whether a problem could potentially merit filing a lawsuit. The attorney can also help with gathering evidence and drafting a letter that states the complaint. At Barkan Meizlish, LLP, we partner with workers all across Ohio to combat workplace discrimination and to hold employers accountable for illegal employment practices. You can schedule a free and confidential consultation online or call us at (614) 221-4221.

What Is the Minimum Wage in Ohio in 2019?

On Jan. 1. 2019, the minimum wage for most workers in Ohio rose to $8.55/hour, which totals $342 for 40 hours before taxes. Employees who do not receive at least that much have the legal right to sue their employer for violating a law called the Fair Labor Standards Act, or FLSA. This is true even for the majority of people who work on commission or who take temp positions that require reporting for work.

The FLSA does allow restaurants, bars, and similar businesses to pay tipped employees a lower minimum wage. At the time this posted, the minimum wage for tipped employees in Ohio was $4.30/hour.

Provisions of the FLSA and a similar Ohio state law do, however, require employers to make sure their tipped employees earn at least the standard minimum wage. Complying with those rules requires businesses to document that the hourly wage they pay plus the tips employees receive total at least $8.55/hour for each hour worked up to 40 hours.

Every business is required to inform employees of their right to receive the minimum wage and what that wage is. State regulators actually distribute wage posters that employers are encouraged to post in places where workers can easily see the information.

What Happens When Employers Do Not Pay the Minimum Wage in Ohio?

The five FLSA wage attorneys who work out of the Columbus, Ohio, offices of Barkan Meizlish DeRose Wentz Mclnerney Peifer, LLP, often find themselves representing hourly and tipped employees whose employers engage in wage theft. This illegal pay practice can take many forms, with two of the most-common being denying overtime and miscalculating tip credits.

The FLSA requires employers to pay nearly every minimum-wage employee time-and-half for each hour worked in excess of 40 hours during a 7-day period. In Ohio during 2019, the minimum overtime rate is $12.83. Tipped employees who go into overtime must also earn that time-and-half rate when their tips are properly accounted.

Restaurants, bars, and the like play many games when it comes to tips. Some tell workers that they are only legally entitled to earn up to the standard minimum wage. Others require workers to pool all tips and to accept whatever their manager determine their share is. Still others simply take away tips without returning any of the money.

Workers who notice that they are being paid less than the minimum wage should raise the issue with their managers. Honest mistakes do get made, and good employers quickly correct errors to make workers whole. When illegal pay practices persist, notifying the state attorney general’s office and contacting an FLSA wage and overtime attorney makes sense.

We have offices in Columbus, Cleveland and Marietta to serve workers all across Ohio. We offer free consultations and work hard to put together class action and collective lawsuits to ensure that each employee who was denied the minimum wage or failed to receive earned overtime receives the money the law requires an employer to pay. To speak with an experienced employment law attorney, call (614) 221-4221 or connect with us online.

What is the Minimum Wage in Ohio?

Minimum wage is federally mandated financial figure that each worker throughout the country must be paid per hour. However, the federal government grants states’ the right to set a wage above the one set by the Department of Labor.

Under the Fair Labor Standards Act, the federal minimum wage due to all employees is $7.25 per hour. This rate has not changed since it was instituted in 2009. In Ohio, because of the state’s Minimum Fair Wage Standards law, the minimum wage is set at $8.55 per hour for non-tipped employees and $4.15 per hour for tipped employees.

If you have not been receiving at least $8.55 per hour as a non-tipped employee or $4.15 per hour as a tipped employee in Ohio, you need to contact a Columbus minimum wage attorney. Our Ohio minimum wage attorneys at Barkan Meizlish, LLP have decades worth of experience in fighting unfair labor practices. The legal professionals at Barkan Meizlish, LLP will pair you with one our practiced minimum wage lawyers in Columbus, Ohio. We will fight for your right to earn the state legislated minimum wage.

How a Columbus Minimum Wage Attorney Can Help

We have encountered many cases in which employers have unfairly paid employees below the minimum wage. Whether it be incorrectly categorizing an employee as tipped or simply refusing to pay the wage that is state mandated, some employers look to cheat the system. For an employer to pay their employees $4.15 an hour, the employees must make at least $30 per month in tips. It does not matter how many hours they worked that month. Employees must also make minimum wage with their base rate of pay and tips combined. If they do not make minimum wage between their base pay and received tips, then employers must compensate with minimum wage pay.

Our minimum wage attorneys can help you determine if you are eligible for tipped workers pay or if you should be receiving the minimum wage in compensation. We can comb through your pay stubs and claimed tips to see if your employer has been incorrectly paying you below minimum wage.

It up to the employer to keep proper records of employee information and rate of pay for at least three years. This information is subject to investigation by the state department. Employers must correctly record the rate of pay, hours worked, and amount earned each pay period of every employee on their payroll.

Contact Us

If you are being paid Ohio’s minimum wage, it is imperative to contact Barkan Meizlish, LLP to speak with one of our experienced minimum wage attorneys. We can determine if you have a failure to pay minimum wage case against your employer. Employers may illegally deduct from your paycheck or hours without your knowledge, causing you to lose wages that you are entitled to.

Employees are frequently taken advantage of by their employers and lose out on earned wages. Different industries and jobs are subject to subtle nuances in Ohio’s minimum wage laws, so it’s crucial that you contact a lawyer if you believe that you are not being paid correctly under FLSA or Ohio’s Minimum Fair Wage Standards law.

The Columbus minimum wage attorneys with Barkan Meizlish, LLP are skilled and experienced in helping clients navigate minimum wage laws and build a case to bring forward to an employer not paying them the lawful wage. Gathering documentation through paystubs, bank statements and timecards can be a difficult task to complete alone, so don’t hesitate to contact our wage attorneys in Columbus Ohio to review your case and give you a free consultation.

Menards – Overtime Lawsuit

Griffith, et al. v. Menard, Inc., Case No. 2:18-CV-81 (S.D. OH)

Attorneys: Bob DeRose

Practice Area: Wage and Hour/Overtime Violations

On January 31, 2018, the law firms of Barkan Meizlish, LLP and Anderson2X, PLLC filed a nationwide class and collective action lawsuit against Menard, Inc., the Wisconsin-based operator of the roughly 300 Menards retail stores across 14 Midwestern states.

The Allegations

The lawsuit contends that Menards maintained several unlawful company-wide policies in violation of the federal Fair Labor Standards Act (FLSA) and numerous state wage laws. Specifically, the lawsuit alleges that Menards maintained a company-wide policy of requiring employees to clock out for restroom breaks and certain store meetings during their shifts. It also alleges that Menards required employees to complete job-related training exercises at home, but failed to compensate them for performing the work.

The Case

Unpaid work hours and unpaid overtime compensation resulted from these alleged violations. The Named Plaintiffs in this lawsuit are 160 current and former hourly Menards employees from 13 different states. The Named Plaintiffs seek to recover all unpaid compensation, overtime, and other damages owed to them under the FLSA and respective state wage laws. They also seek the Court’s permission to send notice of the nationwide collective action lawsuit to all similarly situated individuals to apprise them of their rights and provide them an opportunity to opt-in to the lawsuit.

To inquire further about this case, please call (614) 221-4221 ext. 1129 or email srasoletti@barkanmeizlish.com. To read the Complaint, please click the link below.

Media Links

Ohio Attorneys File Class Action Suit Against Menards

No Closed Lid on this Class Action

Lids, a store selling jerseys, hats, and t-shirts, is facing a class-action lawsuit for failing to pay overtime to store managers.  Lids’ managers were paid under a fluctuating work week (“FWW”) method of payment. Under this method of payment, employees are paid a fixed salary amount whether or not they work more or less than 40 hours a week. The FWW method further permits hours worked in excess of 40 hours a week to be compensated at a minimum of one-half time the worker’s regular rate. However, the lawsuit alleges that Lids store managers were not fully compensated for all of the overtime hours they worked and were instead paid a bonus based on meeting sales quotas.

On January 2, 2018, the District Court for the Southern District of Indiana denied Lids’ motion to dismiss the case and granted the managers’ motion for conditional certification of an opt-in class of current and former store managers. The judge ruled that the lead plaintiff in the case “has made a modest factual showing that she and the potential opt-in plaintiffs were victims of a common policy that violated the FLSA.”

The judge ordered Lids to provide a spreadsheet listing the names and last known addresses of non-exempt store managers who were entitled to overtime pay since Feb. 2, 2014.

The lawsuit was filed in the U.S. District Court for the Southern District of Indiana and is titled Julia Shumate, on behalf of all others similarly situated v. Genesco, Inc., Hat World Inc., d/b/a Lids Sports Group, 1:17-cv-3574.

 

New Year Marks Ohio’s Minimum Wage Increase

On Monday, January 1, 2018, approximately 150,000 Ohio workers received a pay raise. The state’s minimum wage rate increased to $8.30 an hour, up 15 cents from last year.  The $8.30 is now $1.05 above the federal minimum wage rate of $7.25 an hour.

For tipped employees, such as waiters and bartenders, the minimum wage rate also increased from $4.08 to $4.15.

Ohio is one of 18 states that ushered in the New Year with minimum wage increases. The change is the result of a state constitutional amendment passed in 2006, which automatically adjusts Ohio’s minimum wage rate each year according to inflation rates.

DOJ Reverses its Position on Class Waiver.

The National Labor Relations Act (“NLRA”) was enacted in 1935 to “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices.”[1] The Federal Arbitration Act (“FAA”) was enacted in 1925 to encourage private dispute resolution through arbitration.[2] Whether two federal statutes can live in harmony or conflict is often a thing of heated legal debate.

Currently before the Supreme Court of the United States (“SCOTUS”) are three consolidated cases that may put to rest a circuit split, deciding whether arbitration agreements that prohibit employees from joining other employees to pursue worked-related claims, including claims for unpaid minimum wages or unpaid overtime, violate the NLRA.[3] In a rare position reversal, the U.S. Department of Justice filed an amicus brief in which it now supports class waiver by arbitration agreements.

While not among the consolidated cases before the SCOTUS, the Sixth Circuit recently supported workers’ rights, holding that the NLRA does not conflict with the FAA, and since the NLRA creates a substantive, nonwaivable right to engage in concerted activity, arbitration agreements that prohibit concerted activities in any forum are unenforceable.[4] It is important to note that the Sixth Circuit does not say that an arbitration agreement cannot require collective or class claims to be brought in arbitration. Rather, the Sixth Circuit says that an arbitration agreement cannot prohibit an employee from pursuing collective claims, class claims or any other concerted activity in all forums. It is an arbitration agreement’s prohibition against concerted activity that violates the NLRA, not the arbitration agreement’s requirement to arbitrate.

Of course, disagreement on this issue is what the SCOTUS will decide. While the DOL’s shift certainly does not bode well for workers, we are hopeful that the legal arguments presented by the Sixth, Seventh and Ninth Circuits prevail. The power balance between workers and historically more powerful employers is facilitated by workers’ rights to join their individually insignificant damages and resources into collectives.

If you feel that you are not being properly paid wages you’ve earned, and if you think you have no recourse because you signed an arbitration agreement; you should call us for a free consultation. You may have a viable claim in court or in arbitration, and we can help you determine the best course of action after thorough consideration of your situation.

We can be reached at 800-274-5927.

[1] https://www.nlrb.gov/resources/national-labor-relations-act

[2] http://www.legisworks.org/congress/68/publaw-401.pdf

[3] https://www.law360.com/employment/articles/935889/doj-reverses-obama-era-stance-in-class-waiver-suit?nl_pk=535043a8-09cf-4835-9108-d6d87bae778c&utm_source=newsletter&utm_medium=email&utm_campaign=employment

[4] See 6th Cir. Opinion at Nat’l Labor Relations Bd. v. Alternative Entm’t, Inc., No. 16-1385(6th Cir. May 26, 2017)

(Advertising Material:  This Notice is for informational purposes and should not be construed as legal advice).

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