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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. All contents of this site © American City Business Journals Inc. All rights reserved

The Fair Labor Standards Act ("FLSA") sets forth the general requirement that all employers pay employees minimum wage and overtime pay. Under a narrow exception to this rule, an unpaid internship can comply with the FLSA if the student intern qualifies as a "trainee." In other words, employers don't need to compensate students who qualify for this unpaid category. To determine whether an individual is a "trainee," the Department of Labor considers these six factors: 1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; 2. The internship experience is for the benefit of the intern; 3. The intern does not displace regular employees, but works under close supervision of existing staff; 4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion, its operations may actually be impeded; 5. The intern is not necessarily entitled to a job at the conclusion of the internship; and 6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. Although more than half of college students today have participated in unpaid internship programs, these programs tend to violate the FLSA when employers use internships as a way to complete work tasks and not educational experiences for the student. Bottom line-the more an unpaid internship resembles an educational program for the benefit of the intern, the more likely it is to qualify under the FLSA's narrow exception. Source: Susan Miner Parrott, Are You Paying Your Summer Intern Correctly? (May 28, 2015), http://www.jdsupra.com/legalnews/are-you-paying-your-summer-intern-33073/.

The Ohio Revised Code states that no employer shall discharge, demote, or take any punitive action against an employee because the employee filed a workers’ compensation claim. R.C. 4123.90. The elements of a retaliatory discharge require an employee to prove that (1) they were injured on the job; (2) the employee filed a claim for workers’ compensation benefits; and (3) that the employee was discharged in contravention of R.C. 4123.90. Once the employee establishes each of these elements, the burden shifts to the employer to articulate a legitimate and nondiscriminatory reason for terminating the employee. In a recent case, the Court of Appeals of Ohio granted an employer’s Motion for Summary Judgment, because the employee was unable to sufficiently prove that the employer was aware that a workers’ compensation claim had been filed prior to the employee’s termination. In Dragmen v. Swagelok Co., 2014-Ohio-5345 (2014), the employee injured himself while failing to follow the employer’s standard safety procedures. As such, he was placed in a work safety program to stress the importance of following safety procedures, and warned that repeat or additional violations could constitute further discipline, including termination. Id. at ¶8. The employee also filed a workers’ compensation claim, but did not inform his supervisors, and instead filed the claim through the employer’s third party administrator. Three weeks after being placed in the employee safety program, the employee had a disagreement with a co-worker, which resulted in the employee pulling a chair out from underneath his co-worker. Id. at ¶ 10. The employee was terminated, and he filed a suit alleging that he was fired in retaliation for filing a workers’ compensation claim. The employer filed a Motion for Summary Judgment, which was granted, because there was no evidence that the employee’s supervisors who made the decision to fire him were aware that the employee filed a workers’ compensation claim. Id. at 20. Thus, “To be liable for retaliating against an employee for taking part in a protected activity, the employer must have knowledge of it.” Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261 at ¶22. Moreover, even though circumstantial evidence can establish knowledge, it is not enough for an employee to simply assert that their employer’s supervisors generally have knowledge of the charges filed by employees. Id. As such, an employee must prove that their employer knew of their workers’ compensation claim, and fired them as a result of it in order to have a valid retaliation claim. Source: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2014/2014-ohio-5345.pdf

Social Security follows a multi-step evaluation process. They will gather medical records from your doctors and obtain hospital records and test results. SSA may choose to have you examined by a doctor or psychologist. To determine if you meet the definition of disability, SSA will ask the following questions: 1) Are you working? If so, your claim will be denied. If not, proceed to next question. 2) Do you have an impairment or combination of impairments which significantly effects work related functions such as standing, walking, lifting, hearing, seeing, concentration, attention to task, attendance, and understanding instructions? SSA will also consider if your impairments have lasted or are expected to last for at least 12 months. If not, your claim will be denied. If yes, proceed to next question. 3) Is your condition so severe as to qualify for disability without further consideration? SSA has a list of impairments which are considered to be totally disabling. If your impairment meets all the elements of the listed impairment, you will be determined to be disabled. If not, proceed to next question. 4) Do your impairments restrict your work capacity so that you cannot return to any of your past relevant work? SSA considers your past relevant work to be all jobs you performed in the past 15 years. If you are found to be capable of returning to one or more of your past jobs, your claim will be denied. If SSA agrees you cannot return to your past work, proceed to next question. 5) Do your impairments restrict your work capacity so that you are unable to adjust to other work which exists in significant numbers in the national economy? SSA does not have to find you work or determine that you could be hired. SSA only determines whether you would be capable of performing and sustaining work if given the opportunity. In determining whether you are capable of other work, SSA will consider your age, education, past work performed, and acquired skills.

Is an employee who travels to different job sites on a daily basis a fixed-situs employee subject to the “coming and going rule” for the purposes of determining whether he or she is entitled to workers’ compensation? If so, does the “special hazard exception” apply? Recently, in Palette v. Fowler Electric Co., 2014-Ohio-5376 (2014), the 11th Appellate District determined that they would be subject to the “coming and going rule” and the “special hazard exemption would not apply. Id. A fixed-situs employee is one who commences his or her substantial employment duties only after arriving at a specific and identifiable workplace designated by his employer. Barber v. Buckey Masonry & Constr. Co., 146 Ohio App.3d 262, 269 (11th Dist. 2001). “As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers’ Compensation Fund because the requisite casual connection between the injury does not exist.” MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66 (1991). This is referred to as the “coming and going” rule, and it is used to determine whether an injury suffered in an auto accident occurs in the course of and arising out of the employment relationship. Ruckman v. Cubby Drilling, Inc. 81 Ohio St.3d 117, 120, 689 N.E.2d 917 (1998). In Palette, the employee worked as an electrician and was injured in an auto accident while driving a company car from his home, to a supply house, before going to the company office for a weekly meeting. Id. at ¶10. Here, the Court determined that because the employee did not commence his substantial employment duties until after arriving at a specific and identifiable work place, he was considered a fixed-situs employee. Palette at ¶30. Moreover, the Court determined that the “special hazard exception” to the “coming and going” rule did not apply, as his travel on the date of the accident did not create a risk that was distinctive or greater in nature than risks to the greater public. Ruckman, 81 Ohio St.3d 117 at paragraph two of the syllabus. For more information on Palette and other cases, please see: http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2014/2014-ohio-5376.pdf.

Paul F. Woodrow Filing for Social Security Disability (SSD) benefits involves a sometimes lengthy administrative process.  A claim is filed by contacting the Social Security Administration (SSA), which may be done online, over the telephone, or in person at your local SSA office.  The SSA representative will ask you for information about when you became disabled, your work history  and,  most importantly,  the medical and /or mental health conditions that prevent you from working.  It is very important that this information be complete and accurate, so that SSA can thoroughly evaluate your claim.  Once they have obtained this information, SSA will transfer your claim to the Bureau of Disability Determination, an agency of the state of Ohio, which will actually process your claim, using SSA’s rules and regulations for evaluating disability. The state agency will contact your doctors and other medical providers, and gather all of the medical evidence pertaining to your disabling conditions.  They may send you to a doctor for an examination, at their expense, in order to get a better picture of your medical condition.  They may also contact you or your representative for additional information.  Once the state agency has gathered all the evidence, your claim will be reviewed by a state agency doctor, who will determine the severity of your medical conditions, how they may limit your ability to function in a work setting, and whether they meet the SSA definition of disability.  Your claim will then be returned to SSA, who will send you a written decision.  At the initial level, this process usually takes about six months.  If SSA finds you disabled, they will then process payment of your benefits. If your claim is denied, you have the right to appeal.  This is called requesting a reconsideration.  At this level, SSA and the state agency will obtain updated medical evidence, review your claim again, and make a new decision.  This process usually takes three to six months.  If SSA finds you disabled at this level, they will notify you and process your benefits. If your claim is denied at the reconsideration level, you have the right to request a hearing.  At the hearing level, you will have the opportunity to appear and testify at an informal hearing before an Administrative Law Judge.  Your representative will make sure all the evidence is up to date, and will present your claim to the Judge, making arguments on your behalf.  The Judge does not have to follow the earlier decisions which denied your claim, but will make a brand new decision after considering the medical evidence, your testimony, and the arguments of your representative.  Because of the large backlog of claims at the hearing level, it usually takes about nine to twelve months for a hearing to be scheduled. When filing for disability benefits, it is very important to be in treatment for all of your medical and/or mental health conditions, so that they can be documented for your claim.  It is also vital that SSA be kept informed of any changes in your medical condition or treatment, so that they will have complete and accurate information when evaluating your claim.  Your attorney representative can help you make sure SSA has all the information they need at all stages of the claim, and can help present your claim in a way that will maximize your chance of success.

The Social Security Administration recently announced that monthly Social Security and Supplemental Security Income (SSI) benefits will increase 1.7 percent in 2015. The 1.7 percent cost-of-living adjustment (COLA) will begin for Social Security Disability and Retirement beneficiaries in January 2015. Increased payments for SSI beneficiaries will begin on December 31, 2014. SSI beneficiaries will now receive $733.00 a month, increased from $721.00. The Social Security Act states that the annual COLA is linked to the increase in the Consumer Price Index as determined by the Department of Labor’s Bureau of Labor Statistics. If you are currently receiving Social Security benefits, you may soon receive award notices in the mail that will show your monthly payment. If you have any questions regarding your new payment, please don’t hesitate to contact our office. If you are not yet receiving benefits, but are interested in what your monthly benefit amount may be, you can create an account at www.socialsecurity.gov/myaccount.

Disability payment you receive from workers' compensation and/or another public disability payment may reduce you and your family's Social Security benefits. Your Social Security disability benefit will be reduced so that the combined amount of the Social Security benefit you and your family receive plus your workers' compensation payment and/or public disability payment does not exceed 80 percent of your average current earnings. A workers' compensation payment is one that is made to a worker because of a job-related injury or illness. It may be paid by federal or state workers' compensation agencies, employers, or insurance companies on behalf of employers. Public disability (PDB) payments that may affect your Social Security benefit are those paid under a federal, state, or local government law or plan. A PDB is not usually based on a work-related disability. They differ from workers' compensation because the disability that the worker has may not be job-related. Examples are civil service disability benefits, military disability benefits, state temporary disability benefits, and state or local government retirement benefits which are based on disability.

As we’ve previously discussed, the Department of Labor Wage and Hour Division (WHD) has stepped up its enforcement initiatives over the past few years to pursue civil money penalties, back wages, and liquidated damages when violations of the Fair Labor Standards Act (FLSA) are found.  Specifically, Section 11(a) of the FLSA authorizes the WHD to enter an employer’s premises to investigate the employer’s compliance with the Act’s requirements.  Most of these investigations begin after an employee submits a complaint.  But the WHD can also initiate investigations by strategically targeting certain industries (like the restaurant industry, for example) or by examining particular geographic areas. Here are the main steps in an investigation: 1. INITIAL CONFERENCE. The investigator will first contact the employer to set up an initial conference to explain the review process, or they may just show up unannounced. 2. EXAMINE RECORDS. Next, the investigator will examine records to see if any exemptions apply.  This includes records relating to the employer’s involvement in interstate commerce, government contracts, and the dollar volume of an employer’s annual business transactions.  The investigator will then look for any miscalculations or inaccuracies by examining personnel time records and payroll records dating back at least two years.  If willful violations of the FLSA are reported, records for the past three years may be examined. 3. EMPLOYEE INTERVIEWS. The investigator will interview certain employees to verify their payroll records and inquire into the employer’s pay policies. 4. ENFORCEMENT ACTION. If violations are found, the investigator will meet with the employer to discuss corrective actions and request any back wages owed to the employees for minimum wage and overtime violations. Source:  DOL Fact Sheet http://www.dol.gov/whd/regs/compliance/whdfs44.htm; BURKE COSTANZA & CARBERRY LLP, Department of Labor Investigations – Basis for an Employer, Jan. 31, 2013 http://www.bcclegal.com/labor-employment-blog/2013/1/31/department-of-labor-investigations-basics-for-an-employer.

Working Off the Clock The Fair Labor Standards Act (“FLSA”) was effectively a law beginning in 1938. It was the first big success for workers of the industrious country of America and effectively implemented many of the same working standards that are still in place today. Aside from prohibiting the almost incomprehensible child labor that was common at the time, the FLSA also implemented the first mandatory minimum wage and time and a half pay requirements for any employee who goes over a 40-hour workweek. Another key point of the FLSA is that employers must pay their employees for every hour of time worked - in other words, it prohibits employees from working off the clock. Can I Work Off the Clock? It can be easy to forget to clock in before starting menial tasks when you get to work but you should try to avoid it at all costs - your time and work are valuable and you need to be fairly compensated for everything you do at work. The same thing goes for the end of the day tasks, once you clock out it is important that you do not do any more work. If your employer asks you to do extra work before or after your shift simply explain that you need to clock in before doing any work. If they give you a hard time or try to pursue disciplinary actions make sure you keep a paper trail and contact us immediately. We here at Barkan Meizlish, LLP have been practicing worker’s compensation and labor law since 1957 and are here to fight for the compensation that you deserve. For obvious reasons, working off the clock may be praised by your employer and supervisors but you really aren’t doing them any favors. By staying late or working early without being clocked in you put your company at risk of violating FLSA standards. Even if you admit to willingly working off of the clock the company you work for can still be required to pay fines and compensate you for the time worked. To avoid getting your supervisor or employer in trouble for an FLSA violation you should avoid working off the clock at all costs. Can My Employees Work Off of the Clock? If you are a business owner and employer then you need to take extra steps in ensuring that none of your employees are working off of the clock. This can lead to legal action being taken against you in the future. To prevent this all together you need to let your employees and supervisors understand that no hourly employee is to ever work off of the clock. You might have employees that tell you they don’t mind performing a simple task without being paid, but you should never trust their word no matter how trustworthy of an employee they are. By allowing employees to work off of the clock you open yourself to receiving lawsuits from current and past employees. If you are a business owner and want to avoid paying your employees overtime then you should explore salary-based pay which protects you from any off-clock work complaints from employees. In order to best protect you and your company from being required to pay large amounts of back pay, you need to implement a strict work process where your managers closely monitor employees’ work times, lunch, and break times. By closely monitoring the work process you can ensure your employers get the most amount of work done without having to pay overtime wages. If overtime is required then you have to pay it to prevent any unpaid wage complaints in the future. Labor Law Attorney Columbus Here at Barkan Meizlish we have been protecting worker’s rights since 1957 and have become one of the most trusted firms when it comes to worker’s compensation and wage issues. If your employer has been requiring you to work off the clock then you are entitled to compensation for every single hour worked. If you don’t take action to recover your missed wages promptly then you might not be able to recover them at all. In order to get the compensation that you deserve you need to contact Barkan Meizlish, LLP today so you don’t miss out on your opportunity to recover your missed wages.

Some states recognize a dual-intent, or dual-purpose doctrine when an employee is injured while traveling for both business and personal purposes. However, in a recent case, the Ohio Supreme Court clarified that the doctrine of dual intent does not apply in Ohio when determining whether an employee who is injured while traveling for both work and personal reasons is entitled to benefits through workers’ compensation. Instead, workers’ compensation benefits are only available for an injury that occurs in the course of and arising out of the person’s employment. In Friebel v. Visiting Nurse Assn. of Mid-Ohio, Slip Opinion 2014-Ohio-4531, the claimant was employed as a nurse by the Visiting Nurse Association of Mid-Ohio (VNA) to provide home health care services to clients. The claimant frequently traveled to the homes of her patients, and sometimes stopped at the VNA office for job-related activities. On weekdays she was paid for travel time and mileage, minus the distance it took to go to and from VNA’s office. On weekends, the claimant was compensated for all travel time and mileage. In January of 2011, on the way to her first patient’s home, the claimant drove her two children and two family friends to the mall. Before she was able to reach the mall, her car was rear-ended. The claimant sought workers’ compensation benefits for a neck sprain. After several administrative and judicial decisions, the state appeals court found that the claimant would not have been at the accident site if she had not been engaged in work duties as she was on her way to her patient’s home and that, therefore, she was entitled to benefits. However, the Ohio Supreme Court reversed this decision. As stated, when an employee is injured while traveling for both business and personal purposes, some jurisdictions recognize the dual-intent or dual-purpose doctrines. There, if an employee’s work creates the need for travel, then the employee is acting in the course of employment while traveling, even if he or she does a personal errand. However, Ohio courts have rejected this doctrine. See Cardwell v. Indus. Comm., 155 Ohio St. 466, 99 N.E.2d 306 (1951). Therefore, if you are injured while traveling to or from work, you should immediately contact an attorney to get a better understanding of what your rights and remedies are. For a longer analysis of Friebel and a copy of the Ohio Supreme Court’s slip opinion, please visit: http://www.courtnewsohio.gov/cases/2014/SCO/1021/130892.asp#.VE49IfnF-uF.

Last week, an Arizona news column reported about a restaurant that requires its employees to donate their tips to charity one day a month.  Can employers have this much control over employees’ tips?  Under Arizona wage statutes, the answer is no.  But aside from violating Arizona state law, this practice could also violate the Fair Labor Standards Act (“FLSA”).  It all depends upon whether a “tip credit” system was used. Here’s a little background information on “tip credits.”  Under the FLSA, tips are the sole property of the employee.   Covered employees must make at least $7.25 per hour, the federal statutory minimum wage.  Provided certain conditions are met, employers may pay “tipped employees” at an hourly rate that is less than the federal minimum wage by crediting a portion of employees’ tips against their minimum wage obligations.  The difference between the required cash wage (at least $2.15) and the federal minimum wage is the maximum tip credit an employer may claim.  If the employee’s tips and wages combined do not meet at least the hourly federal minimum wage, the employer must make up the difference. So if an employee’s hourly rate is below $7.25, any income from tips would supplement the hourly rate to raise it to the federal minimum wage requirement.  It would be unlawful for an employer to withhold tips in this situation because it would result in the employee being paid less than minimum wage.  However, employers may divert an employee’s tips when an employee’s hourly rate is equal to or greater than $7.25. Some states, like Ohio, have chosen to increase the minimum wage above the federal requirement.  Ohio’s current minimum wage is $7.95 per hour for non-tipped employees and $3.98 per hour for tipped employees.  This wage rate applies to the employees of businesses with annual gross profits greater than $292,000 per year. Source: Georgann Yara, When boss dips into tips, it raises a red flag (September 6, 2014) http://www.azcentral.com/story/money/business/career/2014/09/06/tips-wages-state-federal-law/15216185