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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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