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

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

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?

“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

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

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

The DOL’s Payroll Audit Independent Determination program

Too often, employers take advantage of their employees, with the employer typically leveraging its superior knowledge of the law. Employees forced to resort to legal action against their employers often face powerful and sometimes obstructive employers, but also benefit by representation from fierce attorney advocates who have the employee’s best interests in mind. Unfortunately, a recently announced U.S. Department of Labor’s (“DOL”) program may end up hindering employees’ ability to have their day in court with the aid of their chosen advocate.

On March 6, 2018, the DOL’s Wage and Hour Division announced a six-month pilot initiative referred to as the Payroll Audit Independent Determination (“PAID”) program. The PAID program will allow an employer to conduct self-audits of their payroll practices and voluntarily report underpayments to the DOL which, in turn, will supervise the back wage payments. Yet to be tested, the new program is touted as a way for employees to receive the wages they are owed faster without having to wait for litigation and as a means of correcting an employer’s underpayment of wages to employees.

However, the PAID program potentially harms employees more than it will help them. The settlements that the DOL supervises do not mandate liquidated damages. Liquidated damages are an amount paid in addition to unpaid wages. The purpose of liquidated damages is to discourage employers from unlawfully withholding wages, only to pay them if they get caught; in which case the employer essentially enjoys a consequence-immune interest-free loan. Under the apparently employer-friendly PAID program, employers may be able to do a low cost review, and have the DOL approve repayment of back wages without further liability, and without the fierce legal advocate acting on behalf of the employee. Further, employees who submit to this route for reimbursement of their owed wages will give up their right to bring a lawsuit against their employer for the payment of unpaid minimum wages or unpaid overtime compensation.

The National Employment Law Project, a worker advocacy group, said it opposed the program. Judy Conti, a federal advocacy coordinator for the National Employment Law Project, said the PAID program is an effort to “stack the deck in favor of employers” and acts as a “get out of jail free card” for them.

Note that the program cannot be invoked when the violation is already at issue in litigation, in arbitration, or already under investigation by the DOL/WHD. Also, remember that wage and hour claims under the FLSA are typically subject to a two year statute of limitations, which can only be extended to three years under certain circumstances.

If you feel that you are not being properly paid wages you have earned, call Barkan Meizlish, LLP 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.
(Advertising Material: This Notice is for informational purposes and should not be construed as legal advice).

New Year Marks Ohio’s Minimum Wage Increase

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

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

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

What is Wage Theft?

Wage Theft remains a serious problem in the United States. The majority of wage theft violations are due to businesses failing to pay minimum wage. Other examples of wage theft include employees who have their tips stolen, those who work “under the table” or off the books, and employees who are forced to clock out and continue working—and these are merely a few examples.

A $50 Billion Issue
Approximately $50 billion dollars in wages are stolen by U.S. employers nationwide every year. That number is enough to provide 1.2 million people with employment and pay them $20 per hour. In comparison, the combined robberies, motor vehicle thefts, larcenies, and burglaries added up to less than $14 billion in 2012.  States, along with the Federal Department of Labor, recovered approximately $933 million in stolen wages that same year, which was less than 2 percent of what was taken from hard-working employees.

More Grim Statistics
An estimated 83 percent of workers who win their wage theft cases do not see a single penny. According to the 2017 Wage Theft Report, the average weekly earnings of a U.S. employee is $339, of which $51 is stolen. This comes to a total of $2,634 out of $17,616 annual earnings. A study focusing on low-wage industry workers in New York, Chicago, and Los Angeles found at least two-thirds of these employees dealt with at least one pay violation.

Wage Theft Hurts Women, Immigrants, & Latin Americans the Most
Statistics show that immigrants, women, and Latin Americans get hit the hardest of those suffering from wage theft. Over 30 percent of women have their wages stolen compared to less than 20 percent of men, while Latin American citizens lose over 30 percent more than Asian and white people. More than 30 percent of foreign workers also report stolen wages, in comparison to less than 15 percent of U.S.-born workers.

Fighting Wage Theft
Thankfully, people are fighting the war against wage theft. New York has the strongest anti-wage theft laws in the country, while state attorney generals in 45 states have recovered $14 million in wages back for workers. Private attorneys won $467 million in wage theft class-action suits, and the U.S. Department of Labor recovered $280 million. State departments of labor in 44 states took back $172 million in stolen wages.

Wage and labor laws need to be stronger than ever to get rid of this problem permanently. Will adjudication be enough to slow down or prevent this unjustifiable practice in the future? It’s unlikely, but authorities are doing what they can to at least catch some of the violations.

U.S. Cargo & Courier Service, LLC – Independent Contractor Litigation

Hall et al. v. U.S. Cargo & Courier Service, LLC Case No. 2:16-cv-330 (S.D. OH)

On April 13, 2016, we filed a Complaint on behalf of a former delivery driver against U.S. Cargo and Courier Service. U.S. Cargo is a company that provides regional courier and small package delivery services to businesses and financial institutions throughout Ohio, Pennsylvania, and West Virginia.

The Complaint alleges that U.S. Cargo improperly misclassified many of its delivery drivers as “independent contractors,” rather than employees. Because of the alleged misclassification, the former driver claims that U.S. Cargo wrongfully deprived him of rights and protections guaranteed to employees under Ohio and federal law, including overtime, unemployment insurance benefits, and workers’ compensation coverage.

On November 1, 2017, we filed an Amended Complaint adding two additional former delivery drivers as plaintiffs to the lawsuit. In light of evidence that roughly 50 former drivers may have similar claims against U.S. Cargo, we filed a Motion for Conditional Certification requesting permission from the Court to notify other misclassified delivery drivers of their right to join this lawsuit.

On March 9, 2018, the Court granted Plaintiffs’ Motion for Conditional Certification. The Order will allow similarly situated independent contractor delivery drivers who worked for U.S. Cargo throughout Ohio to be notified of the opportunity to join the lawsuit and pursue their duly owed pay.

To inquire further about this case, please call 614-221-4221 ext. 1129 or email srasoletti@barkanmeizlish.com.

Department Manager Sues for Unpaid Overtime

A former Urban Outfitters department manager recently filed a lawsuit against the retail clothing company for violations of the federal Fair Labor Standards Act (FLSA).  The plaintiff seeks unpaid overtime wages resulting from the store misclassifying her as “exempt” from federal overtime laws. Under the FLSA, non-exempt employees are entitled to overtime pay, while exempt employees are not. The plaintiff alleges that she regularly worked over 40 hours a week throughout her employment, but did not receive overtime compensation from Urban Outfitters as required by federal law. The lawsuit claims that the plaintiff’s treatment was part of the store’s broad, company-wide policy to minimize labor costs by classifying all department managers as “exempt” from the FLSA’s overtime provisions.

Whether an employee qualifies as exempt depends upon a variety of factors, including the job duties he or she performs—not the employee’s job title. To be exempt from receiving overtime, a manager must exercise a significant degree of independent decision-making that affects the business, direct or supervise the work of other employees, and have the authority to hire and fire employees. According to the lawsuit, the department managers at Urban Outfitters were actually non-exempt because, despite the management job title, they primarily performed manual labor and did not do any hiring, firing, disciplining, supervising, or engaging in any independent judgment and discretion.

Misclassifying employees as exempt is a common way employers can violate the FLSA. Keep in mind that a job title of “manager” or “supervisor” doesn’t necessarily mean you are exempt from receiving overtime. If you are regularly performing non-exempt work, you may be entitled to unpaid overtime wages for up to the past three years, an additional amount in liquidated damages equal to the unpaid overtime, and employment attorney’s fees and costs.

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