Wage & Hour/Overtime Violations Archives

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

Official Press Release: Class Action Lawsuit against The Ohio Gorematory, LLC

Posted on July 6, 2020 by Barkan Meizlish

For Immediate Release:

COMPLAINT FILED AGAINST THE OHIO GOREMATORY, LLC

LORAIN COUNTY OHIO, May 18^th, 2020- Attorneys with Barkan Meizlish DeRose Wentz McInerney Peifer, LLP have filed a Collective Action lawsuit against the Ohio Gorematory, LLC in Loraine County Common Pleas court. The Ohio Gorematory, based in Lorain County, Ohio, is a seasonal haunted house. The complaint’s defined plaintiff class includes employees who worked for the Ohio Gorematory, LLC between May 12, 2017 until present, and names the company Ohio Gorematory, LLC and each of the owners as Defendants. An amended complaint was filed on May 22nd

The Complaint brings claims of wage theft and minor labor law violations against the owners, citing the Ohio Minimum Fair Wage Standards Act, O.R.C. 4111 et seq., (“the Ohio Wage Act”), the Ohio Prompt Pay Act (“OPPA”), O.R.C. § 4113.15 (referred to collectively as “the Ohio Acts”), Ohio minor labor laws, O.R.C §§ 4109 et seq. These violations include employees, called “scare actors,” not being paid for their work either entirely or in part, not paying the Ohio state minimum wage, and working long days with improper breaks for minors. Individuals who believe themselves affected by this action can contact Barkan Meizlish DeRose Wentz McInernery Peifer, LLP via email at consents@barkanmeizlish.com or at 800-274-5297.

Plaintiffs’ Attorney, Jessica Doogan, official statement: “Wage theft is a pervasive issue that should not, and cannot, be tolerated in any form. This case is especially egregious, as the employer here took advantage of high school age minors that were looking for a fun way to make extra money during the Halloween season. We intend to fight for our clients to receive the unpaid wages they are owed and will work with our clients and local authorities to pursue criminal prosecution of this employer for the child labor law violations it committed.”

You can read a copy of the complaint here.

For more information on the lawsuit and the opt-in process, you can refer to our Wage and Hour department website here.

Press Release: Barkan Meizlish, LLP Files Class Action against Nationwide Children’s Hospital

Posted on June 25, 2020February 2, 2021 by Barkan Meizlish

Updates as of 2/2/2021

The United States District Court for the Southern District of Ohio, Judge Susan D. Morrison, granted Plaintiffs’ FLSA 216(b) motion for conditional certification. The Plaintiffs, three Nationwide Children’s’ Hospital psychometricians who brought federal and Ohio wage claims against the Defendant for failing to pay them and their similarly situated co-workers for work performed before and after their scheduled shift and failing to pay all hour over 40 in a workweek at 150% of their regular rate. All psychometricians who are or have been employed by Nationwide Children’s Hospital over the last three years are now eligible to receive communications regarding joining the suit. Morris, et al., v. Nationwide Children’s Hospital 2021 WL 320740 (S.D. OH February 1, 2021).

The decision can be found by clicking this link: MORRIS et al v NATIONWIDE CHILDRENS_2021WL320740

Original Post Below:

For Immediate Release:

COMPLAINT FILED AGAINST NATIONWIDE CHILDREN’S HOSPITAL

On June 24, 2020 Attorneys with Barkan Meizlish DeRose Wentz McInerney Peifer, LLP filed a federal collective and Ohio class action Complaint against Nationwide Children’s Hospital.

According to the Complaint, Nationwide Children’s Hospital (“NCH”) participated in acts of wage theft against employees in the Psychometric position. These violations include failure to compensate employees for all hours worked and failure to pay overtime, in violation of the Federal Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§201, et seq., the Ohio Minimum Fair Wage Standards Act [“the Ohio Wage Act”], O.R.C. §§4111.01., 4111.03 and 4111.10, and the Ohio Prompt Pay Act [“the OPPA”].

Natalie Morris, a psychometrician, brought this lawsuit on behalf of herself and all other similarly situated current and former NCH psychometricians who worked for NCH since June 24, 2017. Originally, an unnamed NCH psychometrician filed a wage theft complaint against NCH with the United States Department of Labor (“DOL”). In response to that complaint the DOL investigated. While the substance of that investigation is not public, the DOL and NCH are attempting to resolve all the psychometrician’s wage claims by offering a lump-sum payment to affected employees. This lawsuit was brought by Ms. Morris to secure complete payment of all the hours she is owed. She also brought this lawsuit to obtain payment for all the hours owed on behalf of all current and former NCH psychometricians who worked for NCH since June 24, 2017.

Plaintiffs’ Attorney, Robert E. DeRose official statement:

“Although the DOL investigated this case, it is apparent from the facts that Nationwide Children’s Hospital did not have a good faith basis for paying its psychometricians the way it did and that is wage theft. Wage theft in any form cannot be tolerated. The hospital willfully paid these employees in violation of the wage laws and they should be paid for three years of time and liquidated damages. The amount the hospital is trying to pay to get out of trouble is far below what the employees are due. That is why the court will decide this case.”

A copy of the complaint can be found here

About Barkan Meizlish, LLP: The law firm of Barkan Meizlish, LLP is over sixty years old, with a national practice, focused on union side labor law, wage and hour/overtime litigation, worker’s compensation, Social Security disability, personal injury, and medical malpractice.

Temperature Checks and the FLSA

Posted on June 23, 2020 by Barkan Meizlish

Changing Workplace Culture during COVID-19

As with most aspects of life, COVID-19 has changed the daily routine of many workers. Today, the average worker is usually asked to have their temperature checked before beginning their workday. While the effectiveness of the practice in preventing the spread of the virus is debatable, the practice is currently required by many employers. Currently, the Equal Employment Opportunity Commission, a federal agency that enforces civil rights in the workplace, has stated that while conducting temperature checks does not violate the Americans With Disabilities Act, it may violate the Fair Labor Standards Act (FLSA) and some state employment compensation laws.

These temperature checks may be a violation of the FLSA because employees who have to spend several minutes waiting their turn for the check may be uncompensated for this time. The FLSA states that activities that are an “integral and indispensable part of the principal activities” of an employee are compensable. While activities that are preliminary and postliminary to principle activities are not compensable under the FLSA. When an employee cannot perform his “regular” job without first engaging in the preliminary activity, then the preliminary activity becomes ‘integral and indispensable’ and therefore compensable.

Temperature Checks and Compensation

These temperature checks could be argued to be ‘principle’ or ‘preliminary’ depending on your perspective. Time spent by employees putting on and taking off protective gear and walking between their work station and the protective gear changing areas were both deemed compensable activities. So, if we could liken the temperature check to being a protective measure against infecting their fellow employees like putting on protective gear would likely be a principle and compensable activity. However, the Supreme Court has ruled that time spent waiting to put on protective gear is not a compensable activity. Since waiting in line for the temperature check will likely be the most time-consuming activity, this activity may be considered preliminary and non- compensable.

Depending on how the federal or state courts rule on this issue, employers could face potential wage and hour claims related to this activity. It may be most advisable to employers to compensate the temperature checks before this becomes a litigated issue.

– Audrey Bidwell

What Kind of Results Can I Expect if I File a Lawsuit for Unpaid Overtime in Ohio?

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

No Ohio employee rights attorney can guarantee the outcome of an unpaid overtime lawsuit.

Winning is not a sure thing, and the amount of money that can be claimed in the event of succeeding at trial or negotiating a settlement depends on too many factors to calculate accurately. So, we will never be able to tell anyone precisely how things will end.

However, we understand that clients in unpaid wage cases want to know what they should expect to go through when they sue their current or former employee. That is a question we are prepared and happy to answer.

Still, we cannot include every detail here, and your situation may present some unique challenges we have not anticipated. Please contact us online or call Barkan Meizlish, LLP at (614) 221-4221 to schedule a free confidential consultation if you need more information or wish to pursue an unpaid overtime lawsuit.

First, Know Whether You Have Grounds to File an Unpaid Overtime Lawsuit

Under a federal law called the Fair Labor Standards Act (“FLSA”), hourly workers who do not manage other employees and who earn less than $455/week ($35,568/year) are eligible to earn overtime pay. The legally mandated overtime pay rate is 1.5 times the eligible employee’s hourly wage, and overtime starts after an employee has worked 40 hours during a 7-day workweek.

Nearly all employees who traditionally receive tips, such as wait staff and bartenders, are eligible to earn overtime, but are also often eligible to be paid a lower hourly rate. On the other hand, some skilled professionals and salespeople who get paid hourly are not eligible. The rules regarding exemptions from overtime eligibility become pretty complicated pretty quickly. Feel free to ask an unpaid wage attorney if you are unsure whether you meet the criteria for earning overtime.

Consider Talking to Your Coworkers or Former Colleagues

Employers use a variety of tactics to deny overtime pay. A few of the most common are

Misclassifying employees as managers or nonemployee independent contractors,
Telling employees they must work unpaid overtime in order to keep their jobs,
Inappropriately counting tips as a component of hourly pay, and
Playing games with comp time in lieu of paying overtime.

Checking with coworkers or the people they used to work with to learn if such problems are occurring will give a worker a sense of whether they have grounds to file an unpaid overtime lawsuit. Also, groups of people who worked for the same employer can join together to take collective legal action against a company that underpaid them. Collective actions can have a great chance of succeeding in court than lawsuits filed by individuals.

Understand That There Will Be a Lot of Paperwork

Proving that an employer violated overtime rules requires collecting and analyzing pay stubs, timesheets, corporate records and internal communications between supervisors and managers. An attorney who has experience in handling unpaid wage cases will know how to compel an employer to share all the necessary information. It will also be helpful for you to gather any documents that have your pay or time information on them and provide them to your attorney as soon as possible.

Do Not Be Surprised if Your Employer Pushes Back

Federal employment regulations call demanding fair pay for all the hours that one works “engaging protected activity.” It is illegal for an employer to retaliate against an employee who engages in protected activity, but it is not uncommon.

Data released by the U.S. Equal Employment Opportunity Commission in February 2020 show that retaliation was the number-one complaint the agency received during the previous fiscal year, accounting for nearly 54 percent of the cases. When supervisors and managers harass, insult, demote, or fire an employee who files an unpaid overtime lawsuit, that employee also has the right to file a workplace retaliation lawsuit.

Recognize That the Hassle Can Be Worth It

A worker who wins their unpaid overtime lawsuit receives the payments they were originally denied, interest on the back pay, and other monetary damages. The court may also issue orders for the company to improve its pay practices or face further fines.

I’m Salaried, So I Shouldn’t Get Overtime, Right? Not Necessarily.

Posted on April 9, 2020April 10, 2020 by Barkan Meizlish

Salaried Employees Can Be Either Exempt or Not Exempt

There is a common misconception that “salaried” means “exempt” under the Fair Labor Standards Act (“FLSA”) or Ohio wage laws. ^[1]While many exempt employees are salaried,^[2] not all salaried employees are exempt. This results in underpayment for employees who are entitled to at least minimum wages for all hours worked, and overtime pay for hours worked in excess of 40 in a workweek.

Overtime for Non-Exempt Employees

Overtime pay is calculated at a rate of one and a half an employee’s “regular rate”. If a non-exempt employee is hourly, then the regular rate is usually their hourly rate. If the non-exempt employee is salaried, the regular rate is their hours worked in a workweek divided by the amount of salary attributed to that workweek. The regular rate should also be used for purposes of calculating such things as non-discretionary bonuses or safety incentive payments.

While a thorough consideration of all the facts may lead to the ultimate conclusion that your are indeed exempt, you should not automatically accept an “exempt” status simply because you are a salaried employee and/or because your employer says so.

Salaried employees whose hourly pay per week ends up being less than the required $7.25/$8.70 should call us at 800-274-5297.^[3] Additionally, employees who work more than 40 hours in a workweek but do not receive an overtime can also reach out. Remember, it is unlawful for an employer to retaliate against you for asking questions about your hours worked and wages paid, exercising your rights under the FLSA and/or Ohio wage and hour laws.

[1] Note that this is not the same “exemption” as used concerning your taxes. See for example Withholding Exemptions – Personal Exemptions – Form W-4

[2] See for example DOL Fact Sheets 17a and 17g.

[3] This post was first published in 2017. The Ohio minimum wage was $8.10 at the time. Updates reflect the 2020 minimum wage in Ohio.

(This Notice is for informational purposes. It is not legal advice).

Originally published on June 14th, 2017

Call Center Industry and Wage and Hour Violations

Posted on April 7, 2020April 7, 2020 by Barkan Meizlish

Call Center Employees Affected by Wage Theft

In today’s age of technology and convenience, customer service is often only a phone call or instant message away. With an increasing consumer demand for faster support and quicker turnaround times, it seems that more industries than ever have turned to call centers as a means to provide streamlined service to their customers. Call center employees are essential service providers for customers in need of guidance. Sadly, mistreatment is common.

Unfortunately for Customer Service Representatives (“CSRs”), call centers are one of the most common places for companies to commit wage violations, These violations can be accidental or intentional, depending on the centers management. Under the Fair Labor Standards Act (“FLSA”), covered nonexempt employees are entitled to receive minimum wage for all hours worked, and overtime compensation at one and one-half times their regular rate of pay for all hours worked in excess of 40 in a workweek.

Today, numerous call centers across a variety of business channels call central Ohio home, including Teleperformance, Call Management Resources, ContactUS Communications, and Total Quality Logistics all operate facilities in the Columbus area. Nationwide, Verizon, DISH, JPMorgan Chase, and Randstad also operate centers in the surrounding vicinity.

FLSA Violations and Call Centers

When centers expect their employees to perform unpaid “off-the-clock” work, problems arise. This type of work is a direct violation of the FLSA. Call center employees must receive paid for time spent performing everyday duties. These duties include:

turning on/off computers
logging in to programs
making pre- or post-call notes
attending work-related meetings
working through lunch
participating in work-related training

If you work in a call center and are not being properly paid wages you have earned, an attorney can help. You can call for a free consultation at 800-274-5927. You may have a viable claim and we can help you determine the best course of action. The team at Barkan Meizlish, LLP is here to help.

originally published on March 13th, 2018

How Can I File a Wage and Hour Lawsuit in Ohio?

Posted on March 16, 2020April 9, 2020 by Barkan Meizlish

“A fair day’s pay for an honest day’s work,” is such an ancient principle that versions of it appear in the Bible and even earlier writings. The concept was enshrined in U.S law during the 1930s with adoption of the Fair Labor Standards Act, or FLSA, which mandates the payment of a minimum wage and eligibility for overtime pay. The general rule for most people is that they earn overtime after they work more 40 hours over the course of a single week.

For nearly 90 years, employers have violated the FLSA. They commit wage theft and refuse to pay overtime in many ways, including

Misclassifying employees as independent contractors,
Miscategorizing hourly workers as managers,
Forcing people to work off the clock,
Docking pay excessively for supplies and policy violations,
Promising but never authorizing comp time leave instead of paying overtime,
Stealing tips,
Miscalculating tips as part of the hourly wage, and
Telling tipped employees they are not eligible for overtime.

The good news is that the FLSA gives workers the right to report wage theft and unpaid overtime. The process of compelling an employer to hand over back pay and compensatory damages often seems daunting, which is why we make our services available as wage and hour attorneys in Ohio.

Know the Rules

During 2020, Ohio set the minimum wage for the majority of workers at $8.70 per hour. Tipped employees could legally be paid $4.35 per hour as long as their tips ensured they averaged a pay rate of at least $8.70 per hour. If the tips come in short, the employer must make up the difference.

Individuals who work for U.S. government agencies in Ohio are guaranteed only the federal minimum wage of $7.25. At all types of employers, people who get paid by the hour and earn less than $455 per week can earn overtime at a rate that starts at 1.5 times their usual hourly pay.

Exemptions apply to eligibility for the Ohio and federal wage and overtime rules, however. For instance, managers and independent contractors do not have rights to demand the minimum wage or overtime. Speaking with an employee rights attorney when an employer says you are not covered by the FLSA can help clarify your situation.

Keep Track and Ask Coworkers

Rules put in place for enforcing the FLSA allow workers to ask their managers and supervisors about hours, wages, and overtime. It is also legal for coworkers to talk to each other about what they are being paid and to compare pay stubs. Such discussions among coworkers can identify patterns of wage theft and unpaid overtime that provide grounds for a collective or class action lawsuit.

As employee rights attorneys, we understand that workers may hesitate to exercise these rights to ask about and advocate for fair pay. Retaliation from managers happens far too frequently. The thing to remember is that penalizing, bullying, or firing a worker for raising issues related to wages is also illegal and can serve as the basis for a lawsuit.

Act Fast and Know Where to Report Wage and Hour Violations

The statute of limitations on filing claims for wage theft and unpaid overtime is two years. The clock starts ticking on the day of the last violation. When a claim is filed, all past instances of unfair pay can be part of the complaint.

Individuals who work under the laws of Ohio must contact the Department of Commerce’s Division of Labor and Worker Safety. Federal employees file their complaints with the U.S. Department of Labor’s Division of Wages and Hours.

Working with an Ohio wage and hour attorney can make going through the process and holding an employer accountable easier. The lawyer will know how to prepare and submit paperwork, and also how to obtain the corporate records that are needed as evidence. Gaining access to those records will be particularly important for determining whether it makes sense to pursue a collective or class action lawsuit.

You can schedule an appointment with a Columbus employment attorney at Barkan Meizlish, LLP, by calling (614) 221-4221 or by connecting with us online. The initial consultation is free, and all communications with potential clients are kept strictly confidential.

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.

Ohio Prevailing Wage Rights Law

Posted on May 10, 2019December 26, 2019 by Barkan Meizlish

What is the Prevailing Wage in Ohio

When completing contracted work with the government, most workers, laborers, and skilled tradespeople are entitled to the prevailing wage.

Prevailing wages are established by governmental regulatory industries and are determined by the type of trade and occupation for the public works project. If you are working on a public construction project in the state, then you need to understand Ohio prevailing wage rights.

An Ohio prevailing wage attorney, like those at Barkan Meizlish LLP, can assist you in fully understanding the prevailing wage standards that are in place. If you are involved in a public works project in any capacity and have questions regarding the prevailing wage standards, do not hesitate to contact the prevailing wage attorneys at Barkan Meizlish, LLP.

Prevailing Wage Basics

Chapter 4115 of the Ohio Revised Code defines the prevailing wage and when it should be applied.

If a state or local government agency hires private contractors to complete a construction project, they must pay the prevailing wage.

The prevailing wage must reflect the total hourly dollar value of:

Pension
Apprenticeship programs
Other contractually obligated fringe benefits
Hourly pay
Vacation and paid holidays
Health insurance
Life insurance

Contractors can only claim an exemption from paying the prevailing wage if the project costs less than $250,000 to complete.

Complying with Ohio Prevailing Wage

Prevailing wages change every two years based on collective bargaining agreements between various unions and a governmental organization. As a result, the prevailing wage differs for each type of skilled trades person and in different localities. This means that a mason on a public works project in Summit County will receive a different prevailing wage than a mason in Franklin County. The two tradesmen can also have different wages if they are part of different unions.

Here are some of the unionized tradespeople covered under prevailing wage law:

Boilermakers
Bricklayers
Cement Masons
Drywall finishers
Electricians
Elevator installers and inspectors
Glaziers
Insulators
Ironworkers
Laborers
Painters
Plasterers
Plumbers
Roofers
Sheet metal workers
Sprinkler fitter

Overtime Pay under Prevailing Wage Legislation

All workers, even those not subject to prevailing wage legislation, are subject to overtime pay at a rate of 1.5 times their prevailing wage. This applies to all non-exempt employees who exceed 40 hours in a given work week. Though their base pay rate is typically higher than non-unionized employees, tradespeople covered by prevailing wage legislation are also entitled to overtime pay.

Contact Us

If you are part of a public works construction project in any facet, you should understand your rights under Ohio prevailing wage law. Our dedicated, professional legal staff can help answer any questions about prevailing wages or other labor-related matters. The Columbus prevailing wage attorneys with Barkan Meizlish, LLP are skilled and experienced in helping clients navigate wage laws to build a case against 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 Ohio to review your case and give you a free consultation.

Tags: Ohio Prevailing Wage Rights, Prevailing Wage Ohio 2018

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