Labor & Employment Archives

Seasonal Businesses and the FLSA

Posted on October 14, 2020October 14, 2020 by Barkan Meizlish

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

FMLA Form Updates 2020: Employee Need to Know

Posted on September 15, 2020September 15, 2020 by Barkan Meizlish

2020 FMLA Form Updates

The U.S. Department of Labor (“DOL”) recently issued several updated forms for implementing the Family and Medical Leave Act. These forms were issued with the stated purpose of assisting employees, employers and other stakeholders with completing implementation of the FMLA in the workplace. The FMLA entitles eligible employees up to twelve (12) weeks of unpaid leave for various specified health or care of family reasons. The ultimate goal of this update is to enhance user and employer ease, comprehension, and completion of the forms.

What Are The Forms?

The updated forms provide additional questions for the user to answer and provide additional information, while retaining the substance of the forms. An overview of the updates to the forms follows:

Incorporation of the Notice of Eligibility and the Notice of Employees Rights and Responsibilities under the FMLA into one form, aiding employees’ knowledge of their eligibility status and privileges and duties during FMLA leave.
The FMLA Designation Notice, an important form that allows employees to know whether their leave will fall under the reach of an FMLA designated leave.
Changes to the Certification of Health Care Provider for Family Member’s Serious Health Condition form. This form now requires a more detailed description from the health care provider regarding the employee’s limits as a result of a sick family member, making it less likely employees will have to provide supplements to the information provided. Changes to the Certification of Health Care Provider for Employee’s Serious Health Condition form. This form requires a more detailed description from the health care provider regarding the employee’s work-limitations. This makes it easier for employers to understand the limitations of the employee where there are limitations, and less likely employees will have to provide supplemental information.

The Department of Labor has deemed these forms to be compliant with the FMLA. However, employees should be aware that the use of these model forms is optional, and employers are free to use their own forms, so long as they too are in compliance with the FMLA. These forms are located on Department of Labor’s website.

Have questions about whether your employer is properly implementing the FMLA? Give us a call for a free consultation.

– Jacob Mikalov

Dancer Unions, COVID-19, and Employee Misclassification

Posted on September 8, 2020 by Mara Siegel

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.

Severance Agreements and COVID-19

Posted on August 3, 2020August 3, 2020 by Barkan Meizlish

Severance Agreements Changes to Combat COVID-19 Related Economic Loss

In the era of COVID-19, many employers are attempting to lower their bottom line. Many employers turn to measures affecting workers, such as buying out employees close to retirement, mass lay-offs, and the issuance of severance agreements among all levels of companies.

What You Need To Know about Severance Agreement

Although workers often feel powerless during the discussions of a severance agreement with an employer, it is important to realize that often the employer is asking for something from the worker in return for the agreement. This makes it reasonable for the employee to attempt negotiation. Employers often want to ensure that they limit their future liability for lawsuits and other claims. This necessitates that most severance agreement to contain a waiver of such claims by the employee. While certainly the employer has the ultimate power- as a severance agreement is not legally required to terminate employment in an at-will employment setting- employees can also exert some power to negotiate based on their willingness to release potential current and future claims against the employer.

Another factor to consider is whether you will be subject to a Non-Compete Agreement upon the end of your employment. Non-Compete Agreements are typically upheld in Ohio and can be difficult to navigate when searching for your next position. This can often be a sticking point in negotiations of a severance package and can have broad implications for your future job search.

How We Can Help

The employers have attorneys on their side and you should too. Assistance in reviewing and negotiation your severance agreement can be incredibly helpful in protecting your future. Clarity on your responsibilities and on any potential non-compete issues is crucial. An attorney’s review can lead to additional items or an increase of the payment or other terms. Speaking with an attorney gives you the opportunity to discuss what is most important in the negotiation, and to make those goals a priority. Our office offers flat-fee severance review and advice to anyone facing a severance package. Contact us at 614-221-4221 for more information.

– Jessica Doogan

The ADA, COVID-19, and Employee Fears

Posted on July 20, 2020July 27, 2020 by Mara Siegel

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.

New Ruling for DACA Recipients

Posted on July 13, 2020July 13, 2020 by Barkan Meizlish

Updates for DACA Recipients in 2020

On June 18, 2020, another long-awaited Supreme Court ruling regarding the status of those participating in the Deferred Action for Childhood Arrivals (DACA) program was decided. The decision was made up of a variety of different elements including holding that the Trump administration did not properly terminate the existing DACA program, that DACA program as of the decision will be completely restored as it existed prior to the rescission in 2017, and, most importantly, that current DACA recipients will continue to be protected from deportation and have their employment authorized. Also, new DACA applicants will be able to apply for deportation protection and employment authorization as soon as the DHS implements the Supreme Court decision.

The much-deliberated DACA recipients are undocumented individuals that were brought into the United States as children under 16. Individuals that qualify for the program receive a renewable two-year period of deferred action from deportation and will become eligible for a work permit. To qualify for the program, recipients cannot have felonies or serious misdemeanors on their criminal records as well as must have completed certain educational requirements. It should be noted that individuals in the program don’t necessarily receive citizenship status through participation in DACA, just the deferral of deportation actions.

The program was started in 2012 under President Obama amidst an elevated amount of undocumented high school graduates in the US. Presently, approximately 700,000 people nationwide are participants in the DACA program and 3,880 of them live in Ohio alone. The Supreme Court decision regarding the program arose from President Trump attempting to completely rescind the program through an Executive Order in September of 2017.

The 5-4 decision comes as good news for some employers as they can continue to legally employ DACA recipients. However, DACA participants should note that they need to file timely applications to renew their protections. The decision still raises some questions. The Supreme Court did not discuss or decide on the general legality of DACA. Because of this, the decision essentially reads as saying that DACA participants are safe in the United States “for now” and leaves open the possibly for another decision to change the status of the DACA program and its participants in the future.

– Audrey Bidwell

Can My Employer Discriminate Against Me? SCOTUS and LGBT Workers

Posted on June 29, 2020June 29, 2020 by Barkan Meizlish

Recent Law Changes and LGBT Worker Protections

Using the Civil Rights Act of 1964, the Supreme Court ruled that it unlawful to discriminate against an employee on the basis of their sexuality and gender identity. Now LGBTQ+ workers have a legal recourse to pursue workplace discrimination claims, even in states that do not already have protections in place. The 6-3 decision was a consolidation of three cases: Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC. The majority ruled this way as they reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

To prove an employment discrimination claim, an employee must prove either disparate treatment or discriminatory harassment. Generally, this means an employee must prove they are a member of a protected class, that their employer or workplace harasser knew that they were a member of a protected class, that they were harmed by the actions of their employer or harasser, and finally, that others of that class were similarly treated or that the harassment was because of their status as a member of a protected class. The Supreme Court also held that although there can be multiple “but for” causes of employee discrimination, termination, or harassment, if any of them are because of a protected classification then there has been a violation of federal law.

This landmark case will be a drastic change for the 27 states that prior to this decision did not prohibit discrimination on the basis of sexual orientation or transgender status. These states include: Arizona, Michigan, Florida, Georgia, Ohio, Pennsylvania, and Texas. This may mean employers in these states will need to offer new anti-discrimination training and update their employee handbooks regarding gender and sexuality issues in the workplace.

However, this decision does not provide all the answers that employees will need regarding gender and sexuality-minorities in the workplace. The Supreme Court themselves noted there will likely be more cases in the future that further addressing the extent and influence of this opinion. For example, the disputes over restrooms and other gender-specific facilities being available for transgender employees may still be an issue as well as mandating certain healthcare benefits for transgender employees and potential religious liberty claims.

-Audrey Bidwell

COVID-19 FAQ

Posted on March 31, 2020May 6, 2020 by Barkan Meizlish

LAYOFFS AND FURLOUGHS DUE TO COVID-19 IN OHIO: WHAT ALL EMPLOYEES NEED TO KNOW.

Employers across Ohio are closing their operations due to Gov. DeWine’s declaration of a state of emergency and the “Shelter in Place” Order. While the emergency declaration and the “Shelter in Place” Order are necessary to #flattenthecurve, many Ohio businesses are reducing their workforce due to the coronavirus pandemic through layoffs, furloughs, reductions in hours, and pay cuts. The business decisions an employer makes have different impacts on its employees.

If you have been laid off, furloughed or had a reduction in hours, you have important rights.

OHIO UNEMPLOYMENT BENEFITS

The emergency declaration expands unemployment coverage in Ohio until the emergency declaration is lifted.

If you are quarantined due to COVID-19 you are eligible for unemployment benefits.
The one week waiting period to file for unemployment benefits has been waived so an unemployed worker can file for benefits immediately upon being separated.

The online form to apply is found at: http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/. Applying online will help expedite your application.

If you are working, but have a reduction in hours, you may still be eligible to apply; however, your earnings will be deducted from your maximum benefit amount. This means if what you earn in a week with reduced hours is more than your state maximum benefit, you will not receive unemployment. Maximum Weekly Benefits are:

Number of Dependents	If your Average Weekly Wage was:	Maximum Weekly Benefit
0	$960 or higher	$480
1 or 2	$1,164 or higher	$582
3 or more	$1,294 or higher	$647

The emergency declaration has waived the requirement that a person receiving unemployment benefits is “actively seeking work.”

THE CORONAVIRUS AID, RELIEF, AND EMERGENCY SECURITY ACT

The federal Coronavirus Aid, Relief, and Emergency Security Act or the “CARES Act” that passed on March 27, 2020 impacts your unemployment benefit entitlement and Maximum Weekly Benefits. Under this federal stimulus law, if you have an unemployment claim in Ohio, you are entitled to an additional weekly $600 Federal Pandemic Unemployment Compensation payment on top of existing state unemployment benefits for a maximum of thirty-nine weeks, subject to further extension rules. Further, sick employees who have the coronavirus can also collect unemployment if they are not receiving paid leave benefits.

The CARES Act mandates extension of unemployment coverage to an individual who is otherwise able to work and:

who is not eligible for regular compensation or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
who has exhausted all rights to regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
who is unemployed, partially unemployed, or unable or unavailable to work because the individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
who is caring for a household family member who has been diagnosed with COVID–19;
who is primary caregiver for a child or other person in the household who is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and this prevents work;
who is an employee or new hire that is unable to reach the place of employment because of a COVID-19 quarantine or health provider self-quarantine;
who has become the breadwinner or source of major support for a household because the head of the household has died from COVID–19;
who has to quit his or her job as a direct result of COVID–19 due to closure of the place of employment; or
who is self-employed, is seeking part-time employment, does not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation.

WAGE AND HOUR CONSIDERATIONS

No pay means no work.

If you have had your normal work hours reduced, your employer cannot require you to do any work outside of those reduced hours without you getting paid for it. In other words, if an employer asks an employee to do any work during the reduced hours, then the employee must be compensated for that time. Things like answering emails, taking phone calls, picking up mail, etc. are all work activities for which employees must be compensated.

Wages

An employer cannot reduce an hourly employee’s pay below the Ohio minimum wage which is currently $8.70 per hour. Employers cannot reduce a salaried employee’s weekly wage below $684 per week. Both of these are still violations of the Fair Labor Standards Act and the Ohio Wage Act.

Payment

The Ohio Prompt Pay Act remains in effect. Employers must still pay employees at least on a bi-weekly basis and cannot make an employee wait more than 30-days for their paycheck.

NEW FAMILY MEDICAL LEAVE RIGHTS AND PAID SICK TIME

On March 18, 2020, the federal Families First Coronavirus Response Act (FFRCA) became law. The law includes two new important provisions for Ohio workers: 1) an emergency expansion to the Family Medical Leave Act (FMLA) and 2) a new Emergency Paid Sick Leave Act that requires paid leave for employees forced to miss work because of the COVID-19 outbreak in certain circumstances:

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Applies to private employers with fewer than 500 employees and to all public employers that are covered by the FMLA regardless of size.
An employee is eligible after he or she has been employed for at least 30 calendar days before the first day of the leave.
Employees are entitled to 12 weeks of protected leave if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. A public health emergency means an emergency with respect to COVID-19 declared by a federal, state, or local authority.
The first 2 weeks of leave are unpaid, but an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
After the first 2 weeks, leave is paid at two-thirds of the employee’s usual pay, with a cap of $200 per day. For employees with schedules that vary from week to week, a six-month average is to be used to calculate the number of hours to be paid. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work.
The Secretary of Labor is empowered to issue regulations to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave, and to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.

EMERGENCY PAID SICK LEAVE ACT

Requires private employers with fewer than 500 employees and public employers regardless of size to provide up to 80 hours of paid sick leave to employees on top of what the employer now provides (if any). This new paid sick time applies to employees who are unable to work, or telework, because the employee:

Is subject to a federal, state or local quarantine or isolation order.
Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
Is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
Is caring for an individual who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine as described above.
Is caring for his or her child whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 precautions.
Is experiencing any other substantially similar condition specified by the Secretary of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Steps to Take After Wrongful Termination in Ohio

Posted on March 5, 2020March 5, 2020 by Barkan Meizlish

Wrongfully Terminated in Ohio? Here Are the Steps to Take

Getting fired hurts. Losing your job creates financial problems and makes you doubt yourself. The pain is even worse if you believe you suffered a wrongful termination.

In Ohio, employers have broad discretion to fire workers for any reason or no reason at all, so long as the reason is not discriminatory. Valid reasons to let an employee go range from poor performance, policy and safety violations, economic considerations, to shifts in priorities that require different skills.

What employers cannot do, however, is fire you in retaliation for exercising your rights to receive fair pay or to work free from discrimination and abuse, or for specifically discriminatory reasons. When that happens, you may have grounds for filing a wrongful termination lawsuit and receiving monetary damages in Ohio. Although, it is important to note, you must have significant proof of the retaliation or discrimination.

Succeeding with a wrongful termination claim is not easy but taking the correct steps when you lose your job will set you on the proper path. Here are five things to do if you suspect your employer fired you illegally.

Do Not Lose Your Cool

No matter how good it feels at the moment, cursing out your boss and threatening to sue will not serve you well in the long run. We understand that remaining calm may be a struggle, especially if you have suffered harassment and other forms of unfair treatment leading up to the final notice of your firing. But you will want to resist any urge to create a scene.

If you file a wrongful termination lawsuit in Ohio, your former employer can cite threatening behavior or damage to equipment as valid reasons for ending your time with the company. Do not give them an excuse that a court could accept.

Ask for an Official Termination Notice

You have the right to know why you are being fired. Also, a company facing a wrongful termination claim must explain why it took what the court will call the adverse employment action.

Getting the stated reason for your termination in writing allows you and your Ohio employment law attorney to build a case for why that reason does not make sense. It may also turn out that the company gives a different reason during the trial then it did when it wrote your termination letter. Calling attention to the shifting explanation can work in your favor.

Save Emails and Texts Related to Your Firing

If you see your wrongful termination coming, forward harassing emails and texts to your personal accounts, keep notes of when and how conversations that you feel are inappropriate occur. Make sure to save performance reviews And other information that reflects well on you as an employee.

Additionally, take notes on threatening or abusive conversations, and keep track of demotions or reassignments that strike you as unfair or done to convince you to quit. All this information can be used to support your wrongful termination claim.

Learn What Justifies a Wrongful Termination Lawsuit in Ohio

Employers cannot fire an employee if the principal reason for doing so is one or more the following:

Discrimination based on the employee’s race, national origin, sex, religion, genetic profile, or age if older than 40
Discrimination based on the employee’s known or suspected disability
Requests from the employee for the accommodation of a disability
Use of available Family and Medical Leave Act leave by the employee
Military service by the employee
Pregnancy or childbirth for the employee
Retaliation against the employee for reporting or participating in the investigation of discrimination or retaliation
Reporting safety problems
Reporting violations of laws and regulations
Engaging in union or labor organizing activities

Speak With an Ohio Wrongful Termination Lawyer

If you recognize your situation in the list above, it is time to meet with a Columbus wrongful termination attorney and discuss your legal options. Do not wait long. Several different employee rights laws can be cited in wrongful termination lawsuits, and each has a short statute of limitations.

At Barkan Meizlish, LLP, we offer free, confidential, no-pressure consultations to victims of wrongful termination throughout Ohio. Call us at (614) 221-4221 to learn if we can help you. You can also schedule an appointment online.

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

Posted on February 18, 2020February 18, 2020 by Mara Siegel

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, 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.

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Category: Labor & Employment