Ohio’s New Overtime Rules Sanction Wage Theft

SB 47, Ohio’s New Overtime Rules Sanction Wage Theft Starting July 6, 2022

On April 6, 2022, Ohio Governor Mike DeWine signed Senate Bill 47 into law which changes the State’s overtime rules. The Ohio Legislature failed miserably in its attempt to incorporate the federal Portal-to-Portal Act and Section 216(b) of the Fair Labor Standards Act (“FLSA”) into the Ohio Revised Code.   Ohio Legislators bowed to special interests by incorporating only the employer-friendly portions of the FLSA into O.R.C. §§ 4111.031 and 4111.10(C). They attempt to strip and muddle long-existing overtime protections granted to hourly workers by the United States Congress.   

How Does This Affect Employees and Employers?

While the new overtime rules will hurt hourly employees, it will be a potential minefield for employers who comply with the law. The Portal-to-Portal Act, 29 U.S.C. § 254 of the FLSA, provides that employers are not required to pay for the time employees spend on activities occurring before or after they perform the principal activities for which they are employed. The new Ohio overtime law at Sec. 4111.031(A)(1) (a) and (b) incorporated Sec. 254(a)(1) and (2): 

Sec. 4111.031(A)(1) … an employer is not required to pay the overtime wage rate under section 4111.03 of the Revised Code to an employee for any time that the employee spends performing any of the following activities: (a) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities that the employee is employed to perform; (b) Activities that are preliminary to or postliminary to the principal activity or activities.  

Sec. 4111.031(A)(1)(a) and (b) mirror the Portal-to-Portal Act. However, the Ohio Legislature went one step further by adding Sec. 4111.031(A)(1)(c), which states that employers do not have to pay overtime for activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled working hours. 4111.031(A)(1)(c) is not in the Portal-to-Portal Act because subsection (c) alters the definition of compensable work for an activity not when the activity was performed. Thus, if the activity meets the definition of work, meaning that the activity is necessary and indispensable to an employee’s principal activity, it is not eligible for overtime pay if it lasts for undefined time limits described as “insubstantial or insignificant periods of time.” Who gets to determine how much of an hourly worker’s time at home is “insubstantial or insignificant” such that her work should not be part of the overtime calculation?  

The new Ohio overtime law muddles what employers are to do with such time spent by their employees. The Portal-to-Portal Act renders any activity within the meaning of Sec. 254(a)(1) and (2) not compensable.  This means that the employer does not have to pay any wages for this time. The new Sec. 4111.031(A)(1) states that the employer is “not required to pay the overtime wage rate” for any activity within the meaning of Sec. 4111.031(A)(1)(a)-(c).  This sentence can be read two ways; (1) that the Ohio Legislature granted Ohio’s hourly workers at least Ohio minimum wages for all activity that would otherwise be non-compensable under the federal Portal-to-Portal Act; or (2) that to the extent that activity within the meaning of Sec. 4111.031(A)(1)(a)-(c) is compensable under the FLSA, Ohio hourly workers only get at least the Ohio minimum wage. The former is a granting of wage protections in addition to the FLSA which is permitted under Article 10 of the U.S. Constitution.  The latter would restrict wage protections granted by the FLSA and violates the federal supremacy laws, rendering it unconstitutional.     

Why Does This Matter?

Why does it matter? Because the real question when the courts decide if the activity a worker performs is compensable is, was the activity “necessary or indispensable” to their principal activity?  If the activity fits that definition, then where it occurs and whether the employer thinks an employee spent an acceptable amount of their own time doing it, does not matter.  The Portal-to-Portal Act was enacted to prevent employers from having to pay for regular commute time or tasks after work that has no bearing on the employees’ job duties.  SB47 was enacted to help employers not pay for otherwise compensable work activities that employees do on their personal time.  That is wage theft. 

Sec. 4111.10(C) now requires that employees who are interested in joining a wage lawsuit against their employer must file their Notice of Consent to join the case. This is a significant shift in Ohio employee wage protections. Prior to the effective date of SB47, Ohio permitted workers to bring overtime and minimum wage claims as a class action under Rule 23.  These are called “opt-out” class actions because one worker can file a claim on behalf of all current and former workers and toll their statutes of limitations (the time the wage statutes give workers to make a claim). The prior Ohio overtime protections only provided two years of recovery and no liquidated damages. However, the tradeoff was that once one victim of wage theft filed a claim, they could toll the statute of limitations for all current and former employees.   This means that you did not have to file your own claim or even know that you were a victim of wage theft, and your rights were protected.  

SB47 removes the “opt-out” class actionability for Ohio overtime claims and requires every employee to file their own case or a Notice of Consent in a filed case to toll their statute of limitations. This type of action is called an “opt-in” collective action. This means that until a worker who was a victim of wage theft learns of the violations and how to file a claim, their time to make such a claim continues to erode.   

Proponents of SB47 claim that Sec. 4111.10(C) “mirrors” the federal “opt-in” process found at 29 U.S.C. § 216(b). This is incorrect. While Sec. 216(b) requires a wage theft victim to “opt-in” to an existing case or file their own case to toll the statute of limitations; it grants wage theft victims the ability to recover three years of damages and liquidated damages if the wage theft was willful.  Sec. 4111.10(C) did not grant Ohio wage theft victims the ability to recover three years of damages and liquidated damages if the wage theft was willful. The Ohio Legislature left those worker-friendly protections out of Sec. 4111.10(C). In doing so, Ohio now grants Ohio hourly workers less protection for the theft of overtime wages than does the FLSA.   This renders Sec. 4111.10(C) unconstitutional.   

Why does it matter?  This matters because many workers do not opt in. There are a variety of reasons for this. Some workers fear retaliation, even though it is illegal. Some think the collective action notice is part of a scam. Many notices never make it to workers in the first place because they moved. The original version of the law took care of all of these concerns at once.

SB47 is a sloppy, ill-considered piece of legislation that was designed to strip hourly Ohio employees’ wage protection from theft of their overtime wages. While SB47—or Sec. 4111.031 and Sec. 4111.10(C) after enactment—will not survive a court challenge, many Ohio workers and businesses will be harmed in the process. The bill’s passage was unnecessary. Many people who opposed SB47, me included, offered considerable alternatives that would mirror the federal protections. This would have ensured Ohio’s hourly workers were protected from wage theft and leveled the playing field for those employers who follow the law.  

If you feel you have been a victim of wage theft or improper pay practices, please contact our office for a free consultation with an Ohio Wage and Hour lawyer today.  If you are an employer who needs help navigating the tempest caused by Sen. Bill Seitz and Sen. Andrew Brenner; call me and I will help you find a lawyer.   

 

The Paycheck Warriors is a bi-weekly column written by The Paycheck Warrior himself, Managing Partner Bob DeRose. Every other week, just like your paycheck, Bob will take the time to address commonly asked questions about wage and hour law. He will also take on wage and hour topics popping up in the news. Have a question? Leave a comment and see what The Paycheck Warrior has to say!

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

Can an Employer Be Sued for Emotional Distress in Ohio?

Work is stressful enough as it is without your superiors intentionally causing you emotional distress through targeted actions. If your employer or managers have taken deliberate action that resulted in you experiencing emotional distress, then you can file an emotional distress lawsuit. However, it is important to note that in the state of Ohio, the classification of a case like this is extremely specific and, as a result, difficult to win. 

If you have sufficient proof that some action by the company’s managers triggered profound shame, fear, embarrassment, depression, or post-traumatic stress, then you may very well be entitled to compensation. Contact the Columbus employee rights attorneys at Barkan Meizlish today to find out if you have a case for an emotional distress lawsuit. The initial consultation is free, so you have nothing to lose.

 

Grounds for Bringing an Emotional Distress Lawsuit Against an Employer

It is important to note that 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 unless the emotional distress is caused by another clearly violated law.

Most claims 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 an injury or illness, but the program will not approve a claim for emotional distress specifically. If you have reason to believe you were targeted by an employer or manager and it led to you experiencing emotional distress, then you need to hire an Ohio emotional distress attorney to take your case.

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.

Stress itself cannot support either a workers’ comp claim or a lawsuit against an employer. Lawmakers and courts expect all jobs to be stressful and therefore rule out emotional distress claims in and of themselves without an underlying cause that is in violation of another law. 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.

 

Can I Sue for Emotional Distress?

To succeed in convincing a judge and jury that you suffered emotional distress because of something your 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.

Proving intent in an emotional distress case can be challenging, but documenting complaints about distressing treatment such as harassment or discrimination will significantly help your case when you decide to take action. Partnering with an experienced and understanding employee rights attorney like those at Barkan Meizlish will help you cite which laws were violated and make a case for actions well 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. In addition, this information can also be used in determining the severity of the emotional distress caused by your employer.

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 essential forms of proof in this regard and should always be documented for use in your emotional distress lawsuit.

 

Columbus Emotional Distress Attorney

Here at Barkan Meizlish DeRose Cox, LLP, our attorneys specialize in employee rights laws which means we are always on your side. We provide the assistance you deserve and can determine whether or not you have a valid emotional distress case upon your initial consultation, which is always free of charge. Contact the Columbus employee rights attorneys at Barkan Meizlish today to determine if you have a case and to get the compensation you deserve.

Seasonal Businesses and the FLSA

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 DeRose Cox, LLP

FMLA Form Updates 2020: Employee Need to Know

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

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

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

 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

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

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

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:

  1. who is not eligible for regular compensation or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
  2. who has exhausted all rights to regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
  3. 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;
  4. who is caring for a household family member who has been diagnosed with COVID–19;
  5. 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;
  6. 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;
  7. who has become the breadwinner or source of major support for a household because the head of the household has died from COVID–19;
  8. who has to quit his or her job as a direct result of COVID–19 due to closure of the place of employment; or
  9. 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:

  1. Is subject to a federal, state or local quarantine or isolation order.
  2. Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  3. Is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. 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.
  5. 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.
  6. 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.

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