What is Wage Theft?

What is Wage Theft?

Wage Theft is when an employer neglects to pay their employees for all of their time at a fair price. One of the most common instances of wage theft is when an employer pays an employee less than the minimum wage required in that specific area. Additionally, other common forms of wage theft include employees who have their tips stolen, receive pay “under the table” or off the books, employees not paid fair overtime pay, and employees who are forced to work off the clock for any amount of time. These are just a few of the most common examples of wage theft committed in the United States, but any form of shorting an employee’s pay is considered wage theft and is therefore illegal.

If you suspect that your employer is stealing your wages, then you are entitled to compensation, and the unpaid wage attorneys at Barkan Meizlish are here to help you get it. Contact us today for your free consultation and be on your way to recovering your stolen wages.

Wage Theft Statistics

Wage theft is a major problem in the United States and especially in the state of Ohio. It is so common that it has likely happened to you at some point in your life and is nearly guaranteed to have happened to at least one person you know. Approximately $50 billion 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, less than 2 percent of what was taken from hard-working employees. These statistics show just how damaging wage theft is to the average American household’s quality of life, the economy of Ohio, and the national economy as a whole.

Thankfully, people are fighting the war against wage theft. While we are still a long way from completely eradicating the problem, some states have taken significant action to address the issue and recover those wages that have been stolen from their residents. New York has the strongest anti-wage theft laws in the country and has even passed a Wage Theft Prevention Act to closely monitor employees’ pay through mandatory reporting on behalf of the employer.

State attorney generals in 45 states have recovered $14 million in stolen wages. In addition, private attorneys like those at Barkan Meizlish have recovered $467 million in class-action lawsuits, while the U.S. Department of Labor has recovered $280 million. Unfortunately, this hasn’t even put a dent in the estimated $50 billion stolen from hard-working employees annually, which is why we here at Barkan Meizlish are still fighting hard to prevent wage theft across the state of Ohio.

Ohio Wage Theft

The state of Ohio has ranked second in the nation when it comes to workers reporting wages lower than the minimum wage. Wage theft is a huge problem in Ohio and has detrimental effects on the lives of our friends and neighbors. Not only does wage theft reduce the quality of life of those affected, but it has detrimental effects on our state’s economy. When an employer steals from their employees, they steal from everyone in the state because millions of dollars are unaccounted for, meaning there is less money to allocate for infrastructure, education, and governmental assistance. If you or somebody you know has experienced wage theft in Ohio, you need to contact an experienced wage theft lawyer like those found at Barkan Meizlish.

Columbus Wage Theft Lawyer

Wage theft hurts the national economy as well as the economy of the state of Ohio. Our home was founded by hard-working pioneers, and so we find it truly ironic that so many of the employers in the state are stealing from their employees regularly. You have a duty as a resident of Ohio to report unfair theft of wages in order to uphold a higher standard of living for yourself and your fellow Americans. Here at Barkan Meizlish, we work with employees to help them recover the wages that they have worked for. Contact us today for your free consultation with a professional wage theft lawyer in Ohio and be on your way to recovering what is rightfully yours.

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

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.
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Pizza Chain Owes

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 our unpaid wages lawyer 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?

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.”

If you feel that you are not being properly paid wages, you should call our unpaid wages lawyer for a free consultation.

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.

Wage and Hour Violations in the Oil and Gas Industry

The Fair Labor Standards Act (“FLSA”) was designed to protect workers from employers who may otherwise take advantage of their employees. Generally, the FLSA requires employers to pay an overtime premium to non-exempt employees of one and a half times the employee’s regular rate of pay for all hours worked in excess of 40 within a workweek and to also pay at least the minimum wage for all hours worked.  In the rapidly growing oil and gas industry, however, wage and hour violations have become more common as companies seek ways to lower their labor costs. For example:

1. Day Rate Pay Without Overtime

One common type of violation occurs when an employee receives a “day rate” payment without overtime. A “day rate” method of payment is a flat sum for a day’s work without regard to the number of hours worked in the day. Simply paying employees a day rate does not, however, negate the FLSA’s requirement that non-exempt employees receive overtime at a rate of 1.5 times the regular rate for all hours worked over 40. To comply with the FLSA, employers who use this method of compensation must therefore pay non-exempt employees a premium overtime rate. There is often plenty of room for error in calculating an employee’s overtime on a day rate of pay, as this rate can fluctuate depending on the amount of hours worked.

2. Independent Contractor Misclassification

Additionally, some employers try to avoid their obligations under the FLSA by classifying workers as independent contractors, rather than employees. Independent contractors are not subject to the many of the FLSA’s protections, including overtime, so employers often “misclassify” workers to eliminate certain tax obligations or other costs otherwise owed to employees.

This technique is fairly common in the oil and gas industry, where much of the day-to-day work on oil rigs and gas wells is sub-contracted out to other companies. But it is the actual employment relationship—not the label—that controls whether an individual is an employee or an independent contractor for the purposes of the FLSA. For example, one of the various tests applied by courts in making this determination (“economic reality test”) takes into consideration 6 different factors: (1) the permanency of the relationship; (2) the degree of skill required; (3) whether the worker contributes services that are an integral part of the business; (4) the employer’s control over the worker; (5) the worker’s opportunity for profit or loss; and (6) the worker’s investment in materials and equipment.

Defining employee status can be complex and it all depends on the circumstances surrounding the employment relationship as a whole. Additionally, misclassification can expose employers to serious liability—including payment of back wages, liquidated damages, and attorney’ fees—when violations are found.

The Pitfalls of Employee Misclassification

The misclassification of employees is both against the law and damaging to the employee and employer. Employees lose significant wages when they are misclassified, while employers are confronted with large class action lawsuits and potentially hefty monetary judgments awarded against them. Generally, the Fair Labor Standards Act (“FLSA”) requires an employer to pay employees the federally mandated overtime premium rate of one and one-half times their regular rate of pay for every hour worked in excess of forty (40) hours per workweek. 29 U.S.C. § 207. However, there are exceptions that apply to workers in certain industries, which can require the worker to receive higher wages or be exempt from receiving overtime pay.

Two recent cases demonstrate the difficulty in classifying employees correctly. For example, a service specialist for Ecolab, Inc., a provider of pest elimination services to commercial and non-commercial customers, brought suit against Ecolab, Inc. claiming he and other service specialists were misclassified as exempt from overtime pay. As a result, the service specialists were not paid the overtime rate of not less than one and one-half times their regular rate of pay for all hours worked over 40 hours in a workweek. The employees asked for a class of over 1,000 service specialists to be able to proceed to trial.
Ecolab, Inc. objected, stating certain employees are exempt from overtime pay if they receive “bona fide” commission payments and are paid at least one and one-half times the minimum wage for all hours worked in a week involving overtime hours. Nonetheless, the court certified the class and allowed the jury to decide the following: 1) whether Ecolab correctly classified its employees as exempt; and 2) whether Ecolab’s compensation policy permitted employees to actually earn twice the minimum wage. This case outlines the improper classification of non-exempt employees as exempt employees. Generally, an employee is entitled to overtime when they are not employed in an executive, administrative, or professional capacity, and their true exempt status is determined primarily by their duties. Therefore, exempt employees usually have some type of managerial duties, like hiring, firing, and deciding on employee wages and salaries, as well as creating work policies and procedures. If these duties are not exercised by the worker, then it is likely he or she is non-exempt and should be afforded the protections of the law. Eventually a settlement agreement was reached, whereby Ecolab, Inc. agreed to settle the claims for $7,500,000.

Another example is the U.S. Department of Labor’s (“DOL”) investigation into DirecTV’s employment practices of how they paid their cable installers. DirecTV and their installation contractor, Advanced Information Systems, were accused of violating the minimum wage, overtime, and record-keeping laws. DirecTV’s payment practices caused the cable installers to be paid on a piece-rate basis, which caused their hourly rates to fall below the federal minimum wage. The installers were not paid overtime at a rate of one and one-half times for hours worked over 40 per week, nor were they paid for all hours worked. Further, the installers were not paid for unsuccessful installations, time in the office, or travel time, and they were not reimbursed for business expenses.

DirecTV claimed the installers were not their employees, but rather employees of DirecTV’s subcontractor Advanced Information Systems. However, the DOL found the installers only worked on DirecTV installations, drove DirecTV vans, wore DirecTV clothing, and DirecTV specified all conditions of employment. The DOL asserted DirecTV attempted to avoid employer liability by structuring the installers’ employment relationship like they did. However, the court ruled that DirecTV was a joint employer of the installers and responsible for any FLSA violations. Therefore, DirecTV was ordered to pay damages and back wages in the amount of $395,000 to 147 installers.

This case illustrates the misclassification of employees as independent contractors. Generally, to be an independent contractor, one usually has the right to control the manner and means in which they perform their job. Once an employer begins dictating how the work should be accomplished or performed, or in what order the work should be completed, the worker is more likely an employee and not an independent contractor. Independent contractors do not have to be paid minimum wage, overtime, or break time, and they do not have the same protections under the law that an employee has. Thus, classification of a worker as an employee or an independent contractor is a choice that must be made carefully and in compliance with the laws and regulations.

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

A Homerun for Minor League Baseball Players: Conditional Class Certification Granted

In a suit brought against Major League Baseball (MLB) by a group of former minor league players, a California federal court has granted a conditional class certification. The group of former players alleges they were not paid the requisite minimum wage in violation of the Fair Labor Standards Act (FLSA). As a result, the ruling allows both current and former minor league players the opportunity to join the lawsuit and potentially recover minimum wage and overtime payments.
The California court, under U.S. Magistrate Judge Joseph Spero, granted the players motion to certify a class of all minor league players who worked for the MLB or any MLB franchise since February 7, 2011, and who, at the time, had not spent time in the major leagues. The lawsuit alleges the MLB franchises paid the players less than minimum wage, denied overtime pay, and required the players to train without pay during the off-season.
Along with the alleged FLSA violations, the players assert the MLB violated similar state wage and hour laws in eight states. Specifically, the MLB violated the laws by paying the players only $3,000 to $7,000 during the five-month season, while the players worked 50 hours to 70 hours per week.
The recent California court decision is just the most recent victory for the former minor league players. In July, the U.S. District Court for the Northern District of California denied a motion by MLB franchises to dismiss the lawsuit. Instead, the court allowed the case to proceed to pre-trial discovery in order to determine if class certification was appropriate and whether the proposed class representatives have standing to represent the proposed classes. In opposition to the minor league players, the MLB argued the class should not be certified since minor league players are required to perform different tasks in the off-season as they are required during the season.

The minor league players’ compensation falls below the minimum wage as a result of the long hours they work during the season, and the fact that all current minor league players are bound by the same standard contract, which demands they work for a fixed salary despite the actual number of hours worked. The Court determined conditional certification was justified in this claim because the players’ allegations that they were subject to a uniform policy resulting in a failure to meet minimum wage requirements of the FLSA were significant.
Just weeks before this decision, U.S. District Judge Haywood S. Gilliam of California dismissed a separate lawsuit brought by minor league players against Commissioner Bud Selig and the MLB alleging federal antitrust laws were violated by Bud Selig and MLB in conspiring to restrict minor league players’ salaries.
Source: Gregg E. Clifton, Minor League Players Granted Conditional Class Certification in Wage Suit (October 29, 2015), See more at: http://www.natlawreview.com/article/minor-league-players-granted-conditional-class-certification-wage-suit.

Commission-Paid Employees Entitled to Minimum Wage or Overtime Protection?


Companies often seek to limit their risks in business, as well as limit their overall payroll expenditures. What simpler way to limit payroll risks than by implementing an “eat what you kill” compensation system that provides an employee the opportunity to work on a pure commission basis? However, employers should beware of violating the Fair Labor Standards Act (FLSA) and state wage hour laws as there are very real and potentially expensive consequences.
Generally, the FLSA requires employers to pay an overtime premium to employees of one and a half times the employee’s regular rate of pay for all hours worked in excess of 40 within a workweek and to also pay at least the minimum wage for all hours worked. However, there are certain exceptions to these requirements under the FLSA. One particular area of confusion is when an employee is a commission paid employee as the FLSA has carved out several exceptions.

• White Collar Exemption:
The “White Collar” exemption generally includes executives, administrators, and professionals. In order to qualify for this exemption, certain thresholds need to be met. First, the employee must be paid a salary of at least $455 per week (this is expected to substantially increase with new federal regulations that are anticipated to become effective in 2016). Once the salary level test is met, the employee must satisfy the duties test for their respective position. For example, a salesperson advising a client on the proper product to purchase might be an administrative employee. A sales manager, paid by commission, who supervises two or more employees, might qualify under the executive exception. Lastly, a lawyer who is paid a percentage of the fees that he collects likely falls under the professional employee exemption.
Regardless of the position, an employee must receive a salary, or guaranteed draw, of at least the required weekly amount. Therefore, a pure commission paid employee cannot be exempt under the “White Collar” exemption within the FLSA.

• Outside Sales Exemption
In order to qualify for this exemption, the employee’s primary duty must be the sale of goods or services or the rental of facilities and the employee must be customarily and regularly engaged away from the employer’s place of business. The second prong of this inquiry is where most commission paid employees are disqualified. For example, a general salesperson that maintains an office at the company’s facility, but is required or expected to meet with customers, generally does not fit under the outside sales exemption and would be protected by the minimum wage and overtime provisions of the FLSA. Conversely, if an employee is an outside salesperson, the company does not have to pay him/her a salary or minimum wage.

• Employees Paid Commissions by Retail Establishments
This exemption requires that the employee must be employed by a retail or service establishment, defined as establishments 75 percent of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry. An employee at a retail establishment requires the employer to demonstrate the employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked. Further, the employer must show that more than half the employee’s total earnings in a representative period (at least one month and no more than one year) must consist of commissions. Once these requirements are met, the employer may compensate the employee on pure commission without overtime premiums.
While the FLSA has many exceptions and requirements, states generally have wage hour laws that are more restrictive than the FLSA. The various requirements pose challenges to employers as they can face immense liability for violating the FLSA or state laws. Therefore, it is imperative for employers, and employees, to verify the company is satisfying the FLSA’s and state’s minimum wage and overtime requirements for commission paid employees.

Source: Bennett L. Epstein, Do You Need to Pay Minimum Wage or Overtime to Your Commission-Paid Employees? (September 21, 2015), http://www.natlawreview.com/article/do-you-need-to-pay-minimum-wage-or-overtime-to-your-commission-paid-employees.

Lawyers watch wage-and-hour activity pick up as lawsuits proliferate

Business First of Columbus – by Cindy Bent Findlay For Business First

Friday, December 8, 2006

The law is clear on many wage-and-hour employment issues, but it seems many employers are still confused. And lawyers are becoming
more aware of the potential for recovery after a few well-publicized, large settlements and awards in class-action wage-and-hour cases.
As a result, class-action and collective wage-and-hour lawsuits are proliferating rapidly in federal and state courts, say attorneys for
employees and employers.
“I don’t think there is any increase in instances where employers are running afoul of these statutes. I’d say lawyers are getting a better
understanding of individuals’ rights,” says Bob DeRose, a partner at Barkan Neff Handelman Meizlish LLP in Columbus.
DeRose, a plaintiffs’ attorney whose firm has multiple wage-and-hour cases pending in Ohio and federal courts, says he sees the suits
spawning from many industries and just about in every form.
Wage-and-hour issues
Misclassification of who should be exempt from overtime pay and how overtime is calculated are typical examples.
“Years ago people thought if they were paid a salary, that fact alone meant they were not entitled to overtime for hours worked over 40,”
says John Marshall, whose Columbus firm, Marshall & Morrow LLC, also represents plaintiffs.
“We’re getting an increasing number of calls from people who are concerned about whether they should be paid overtime because of
increased public consciousness about the subject.”
Marshall has helped plaintiffs file wage-and-hour suits in Ohio and federal courts, including a case where technicians alleged that Digital
Dish, a satellite television company based in the Holmes County town of Millersburg, did not pay overtime or a legal minimum wage for
hours worked during training days. The case is pending in the U. S. District Court for the Southern District of Ohio.
Other pending Ohio cases include complaints against Lowe’s Home Centers claiming the giant hardware retailer improperly calculated
overtime for certain managers in Ohio stores.
Wage-and-hour lawsuits are not new, but more are being filed as collective or class actions.
Some defense attorneys quietly complain that plaintiffs’ attorneys have simply seized on the issue as the newest frontier in which to wield
highly profitable class-action lawsuits as weapons against employers.
“This is a place where the legal community hasn’t paid great attention, but it seems like employers are either negligently or in some cases
intentionally not following the law, and that’s part of the reason there’s more activity – the legal community’s eyes and ears are now open
about it. In my opinion, that’s a good thing,” says Marshall.
Rules have changed
Congress changed rules on what types of employees are exempt from overtime pay eligibility in 2004, creating some fluidity in this area of
labor law. But some say a spike in cases was coming before those changes because of the complicated nature of wage-and-hour law.
“I’ve known people at the wage-and-hour division of the federal government who feel comfortable they can walk into almost any place and
find some technical violation somewhere,” says Douglas Paul, an employment attorney with Buckingham Doolittle & Burroughs LLP’s
Cleveland office.
Marshall said there are cases in which employers who docked the pay of salaried employees for missed attendance suddenly face paying
those same employees overtime, because docking their pay changed the employees’ exempt status.
Overtime cases building
The cases are rippling over more industries in an increasing wave, says Mark Knueve, partner in the Columbus office of Vorys Sater
Seymour and Pease LLP.
In addition to the retail industry, Knueve says he’s observed cases in the financial, health-care and insurance industries in which relatively
high-salaried employees are disputing overtime pay and other wage-and-hour issues.
“It’s on the radar screen of most labor and employment lawyers where five years ago I don’t think we would have been involved in many, if any, overtime cases,” says Marshall, whose firm is handling many cases of this type.
Lawyers say there seems to be no end in sight to employment cases and that Ohio is no exception to the trend.
“The bigger these cases get, the more chance for recovery of substantial fees, the more likely we are to see these,” says Paul.

Cindy Bent Findlay is a freelance writer in Columbus.
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