Category: Wage & Hour/Overtime Violations

Ohio Prevailing Wage Rights Law

Posted on 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

The DOL’s Payroll Audit Independent Determination program

Posted on by Molly Tefend

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).

Wage and hour violations in the call center industry

Posted on by Molly Tefend

In today’s age of technology and convenience, customer service is often only a phone call or instant message away. And 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.

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.

Unfortunately for Customer Service Representatives (“CSRs”), call centers are one of the most common places for companies to commit wage violations—either accidentally or intentionally. 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.

The problem is that employers may require their CSRs to perform unpaid “off-the-clock” work in violation of the FLSA. In reality, however, call center employees are entitled to be paid for time spent performing everyday duties such as:

• turning on/off computers and 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 feel that you are not being properly paid wages you have earned, Find lawyers 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.

New Year Marks Ohio’s Minimum Wage Increase

Posted on by Molly Tefend

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?

Posted on by Molly Tefend

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. Read the full report here.

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

Posted on by Barkan Meizlish

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

Attorneys: Bob DeRose, , Trent Taylor

Practice Area: Wage and Hour/Overtime Violations

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

Posted on by Molly Tefend

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 attorney’s fees and costs.

Pizza Chain Owes

Posted on by Molly Tefend

A pizza restaurant chain in Manchester, Connecticut was held liable for violating the Fair Labor Standards Act (FLSA). An investigation conducted by the U.S. Department of Labor’s Wage and Hour Division found that the pizza restaurant chain had violated the FLSA’s minimum wage, overtime, and record-keeping requirements between February 2013 and November 2015. The restaurant did not pay one-and-one-half their regular rates of pay to three employees who worked overtime hours up to seventy-five hours per week. Additionally, the restaurant took payroll deductions for cash register shortages that resulted in one employee receiving less than minimum wage. The investigation also found that the restaurant maintained and supplied false time and payroll records and statements to investigators during the current investigation and a prior investigation in 2015.

Additionally, the investigation found that between December 2015 and April 2016, the owner of the restaurant continually pressured one employee to make false statements to investigators, leading the employee to believe he had no choice but to resign. The Department of Labor charged that the owner’s behavior resulted in the worker’s constructive discharge, in violation of the FLSA’s anti-retaliation provisions.

Therefore, on November 16, 2017, a United States District Court in Connecticut issued a judgment against Chemro LLC d/b/a People’s Choice, and Defendant Robert Y. Mercier II for back pay in the amount of $67,151.14, which includes minimum wage and overtime payments due, as well as liquidated damages, compensatory damages, punitive damages, civil money penalties, and interest. The Court also ordered that the company and its owner comply with the FLSA and “refrain from discharging or discriminating against employees who initiate or cooperate with an FLSA investigation.”

The FLSA requires that most employees receive one-and-one-half times their regular rate of pay when they work more than 40 hours in a work week and that employers maintain adequate and accurate records of employees’ wages and work hours. If you feel that you are not being properly paid wages you have earned, you should call us for a free consultation. You may have a viable claim and we can help you determine the best course of action after thorough consideration of your situation. We can be reached at 800-274-5927.

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

Baklava Not Creative?

Posted on by Molly Tefend

A Brooklyn federal judge has ruled that baklava chefs’ jobs were not “creative” to meet the Fair Labor Standards Act’s creative professional exemption from overtime pay. The judge held that this exemption requires “innovation and imagination,” not the “consistency and precision” displayed by the Turkish baklava and baked goods chefs when making their tasty treats.

In a decision denying summary judgment to the defendants, the court held that the exemption defense failed because “although defendants adequately demonstrate that plaintiffs were experienced and talented [chefs], defendants [did] not demonstrate how plaintiffs’ experience and talent were applied to an innovative and imaginative task.”
The defendants, Gulluoglu, an entity that sells Turkish food at multiple locations, and its manager, failed to shoulder their burden of proving that its employees fell within the exemption. According to the court, “[d]efendants did not sell their baklava and other baked goods in five-star or gourmet establishments, and plaintiffs, tasked with preparing baklava and other enumerated Turkish baked goods to be sold by third parties, did not have the autonomy to design unique dishes and menu items.”

The plaintiffs, both former baked goods chefs for Gulluoglu, frequently worked 60 hour weeks, but were only paid a fixed weekly salary of $700. Although the plaintiffs’ skills and training were brought up in court, such as a plaintiff serving as an apprentice to a baklava maker in Turkey for seven years, deposition testimony showed that the baklava chef never prepared baklava from scratch. Rather, plaintiff would heat and apply a “sweet syrup” to frozen baklava imported from Turkey. Starting in 2010, however, the baklava was imported pre-cooked, with the syrup glaze already applied. Additionally, the pastry chef’s cakes were not made from scratch, but imported and defrosted.

Defendants argued that “plaintiffs’ talent alone should trigger the exemption.” Yet, the court held that “[t]he regulatory language makes clear that an employee talented at an unimaginative and unoriginal task does not fall within the exemption.”

The lawsuit was filed in the U.S. District Court for the Eastern District of New York, and is titled Eren v. Gulluoglu LLC, Case No. 15-CV-4083.

Virtual Workers and Economic Reality: Independent business owners file FLSA collective action for unpaid wages

Posted on by Molly Tefend

Call center service provider Great VirtualWorks is facing a collective action complaint for violations of the FLSA (Fair Labor Standards Act) and minimum wage/overtime laws of Kentucky and Pennsylvania. The case alleges that Great VirtualWorks misclassified its “independent business owners” as independent contractors, rather than employees.

Great VirtualWorks is a corporation headquartered in Fort Lauderdale, Florida that provides telephone-based customer service, sales service and technical support to customers of client companies such as Great Healthworks, makers of the dietary supplement Omega XL. The collective claims brought under the FLSA here allegedly apply to similarly situated individuals in other states in a00ddition to Kentucky and Pennsylvania.

The two plaintiffs claim that Great VirtualWorks misclassified them in an attempt to avoid paying employees all the hours they spent actually working for the company.  According to the plaintiffs, Great VirtualWorks’ so-called “business owners” are actually individual employees working from their homes, performing hourly-paid work duties such as telephone-based customer service, sales service, and technical support for Great VirtualWorks’ client companies.

The plaintiffs argue that they and other similarly situated individuals were not business owners or independent contractors as labeled by Great VirtualWorks because they did not make significant investments in equipment or materials, exercise any specific skills, or make a significant profit or loss from their work. The plaintiffs state that Great VirtualWorks has at all times of plaintiffs’ employment been in control of their work schedules and activities, relying on them and similarly situated employees to perform an integral part of its business of providing telephone-based customer service, sales service and technical support to other companies.

Specifically, the plaintiffs allege Great VirtualWorks failed to pay them for work performed before, during, and after their shifts, including:

  • connecting to the company from their own homes or places of work, opening computer applications for the company’s telephone-based customer service, sales service and technical support (5-20 minutes);
  • having brief rest breaks (the FLSA says 5-minute to 20-minute breaks must be counted as hours worked);
  • troubleshooting activities when disconnected from the company’s network;
  • shutting down computers and applications at the end of a shift;
  • reviewing emails and completing notes when not engaged in calls but clocked in;
  • completing required online training; and
  • attending mandatory meetings or coaching sessions.

As a result of this unpaid work, the compensation plaintiffs actually received averaged less than the federal minimum wage, as well as the Kentucky and Pennsylvania minimum wage.  Additionally, plaintiffs allege that they did not receive proper overtime compensation at a rate of time-and-a-half of their regular rates of pay. The plaintiffs are now seeking unpaid minimum, overtime, and contractually-owed wages, liquidated damages, attorneys’ fees and costs, and other remedies they may be entitled to under federal or state law.

The lawsuit is currently stayed pending an an upcoming ruling by the United States Supreme Court on a legal issue relevant to the employees’ claims, which is whether Great VirtualWorks can require employees to submit their claims to individual arbitration. The amended collective class action complaint is recorded in Kentucky as Case No. 0:17-cv-00063-HRW. The plaintiffs are represented by the law firms of Barkan Meizlish Handelman Goodin DeRose Wentz, LLP and JTB Law Group, LLC.

If you have questions or information to provide, you may contact the following attorneys:

Trent Taylor; ttaylor@barkanmeizlish.com; (800) 274-5297

Robi Baishnab; rbaishnab@barkanmeizlish.com; (800) 274-5297

Nicholas Conlon; nicholasconlon@jtblawgroup.com; (877) 561-0000

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