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Bob DeRose, Esq. – The Paycheck Warrior – bderose@barkanmeizlish.com On May 28, 2026, the U.S. Department of Labor's Wage and Hour Division issued Opinion Letter FLSA2026-5, addressing a question that comes up more often than you might think: Can someone who is classified as an exempt employee also pick up hourly shifts in a different, non-exempt role — and what happens to their overtime rights when they do? The short version, from the DOL's perspective: an exempt employee can take on occasional hourly work in a secondary, non-exempt role without losing their exempt status — as long as the employer is genuinely meeting every requirement of the exemption to begin with. And here is the part employees need to hear clearly: this letter does not change the rules. It applies them. The basic tenets of the white-collar exemptions are exactly where they were the day before this letter issued. Let me walk through what this letter actually says, and just as importantly, what it doesn't. The Facts the DOL Was Given The opinion arose from an academic medical center that operates a non-profit acute care hospital. The hospital employs "Staff Nurses," whom it treats as non-exempt and pays hourly with overtime, and "Nursing Professional Development Specialists," whom it treats as exempt and pays a salary of roughly $4,000 per bi-weekly pay period (about $2,000 per week). The Specialists sometimes pick up Staff Nurse shifts on weekends — typically one, occasionally two, 12-hour shifts — on top of roughly 40 hours of Specialist work Monday through Friday. The hospital pays them an hourly rate for those extra shifts, derived from the Specialist's salary divided by 40. The employer asked the DOL: does this arrangement break the exemption or trigger overtime? What the DOL Concluded The Division concluded that, on these facts, the extra hourly work does not destroy the exemption and does not, by itself, create overtime obligations. The reasoning rests on two pillars that every employee should commit to memory, because they are the exemption: One: Primary duty. To be exempt under Section 13(a)(1), an employee's primary duty must still be the performance of exempt work. The DOL pointed out that the Specialist spends the substantial majority of working time — roughly 40 hours a week — in the exempt Specialist role, and that a weekend shift or two as a Staff Nurse is a supplement, not a substitution. The regulations say that spending more than 50% of time on exempt work generally satisfies the primary duty test, though it is a qualitative analysis, not a stopwatch. Two: Salary basis and level. The employee must be paid a genuine, predetermined salary at or above the regulatory minimum ($684 per week), and that salary cannot fluctuate based on the quantity or quality of work. The Specialist's roughly $2,000-per-week salary cleared the threshold, and the DOL found that adding extra hourly pay on top of a guaranteed salary is expressly permitted under 29 C.F.R. § 541.604(a), which allows additional compensation "on any basis" without defeating the exemption. So the headline answer is yes — but the conditions buried inside that "yes" are where the real fight always lives. Why This Letter Changes Nothing About the Core Rules Here is the message I most want employees to take away. FLSA2026-5 is an application of existing law, not a new rule. The DOL itself frames it that way, leaning on regulations that have existed for decades and prior opinion letters going back to 2005. An employer who waves this letter around as a license to reclassify workers or cut overtime is overreading it. The letter is loaded with conditions, and those conditions are the whole ballgame: It assumes the Specialist genuinely meets all the duties, salary-level, and salary-basis requirements in the first place. The DOL stated plainly that it was assuming these were satisfied based on the employer's representations. That assumption is doing enormous work. The DOL expressly warned in a footnote that if, over time, the employee's real primary duty turns out to be the non-exempt work, the employer "could not properly claim the exemption" in any workweek — and overtime would then be owed on the combined hours of both jobs. Footnote 7 is the part employers tend not to quote. The letter is also explicitly built on the employer's "full and fair description" of the facts. The DOL closed by noting that any other factual background "might require a conclusion different from the one expressed herein." In other words, the opinion is only as good as the facts it was handed. And in my experience representing employees, the facts an employer presents to the DOL and the facts on the ground are frequently two very different things. Where the Real Disputes Will Be — And What to Watch This is the part of the analysis where I'm offering my own read as an advocate for employees rather than reciting the letter. I'll flag these as open considerations, not settled conclusions, because the letter does not resolve them: The label is not the job. An employer can title someone a "Specialist" and pay a salary, but if the day-to-day reality is that the person is doing non-exempt frontline work most of the time, the title and the salary won't save the exemption. The duties test is about what you actually do, not what your job description says. The letter assumes a clean Specialist role with real autonomy, discretion, and educational responsibility. Many real-world "exempt" jobs are nowhere near that clean. Watch the creep. The DOL blessed one or occasionally two 12-hour shifts a week — about 23%, occasionally 38%, of total hours. The letter does not tell us where the line is. If an employer steadily increases the hourly shifts until the non-exempt work becomes the bulk of the week, the primary-duty analysis can flip. The footnote 7 warning is precisely about this scenario. There is no bright-line percentage in the letter, and employees should not assume one exists. The salary must be real, not reverse-engineered. The letter notes the hourly rate was derived from the salary, and the DOL found no need to apply the "reasonable relationship" test of § 541.604(b) because the underlying compensation wasn't computed on an hourly, daily, or shift basis. That's a meaningful distinction. If an employer's "salary" is functionally just an hourly rate dressed up — where pay actually rises and falls with hours — that's a different case, and § 541.604(b) could come into play. The letter does not bless arrangements where the salary is a fiction. Reliance has limits. The letter is an official interpretation that an employer can rely on under the Portal-to-Portal Act — but reliance protects an employer only to the extent its real facts match the facts in the letter. An employer that relies on FLSA2026-5 while running a materially different operation is not protected by it. The Bottom Line for Employees If you're salaried, genuinely doing exempt work as your main job, and you pick up the occasional hourly shift in another role for extra pay, this letter says — consistent with long-standing law — that those extra shifts alone don't strip you of exempt status or automatically entitle you to overtime. But flip that around, because this is where employees get hurt: if your "exempt" title doesn't match your real duties, if the secondary hourly work is creeping toward the majority of your time, or if your "salary" is really just an hourly wage in a costume, then this opinion letter does nothing to legitimize your classification. The exemption either fits your real working life, or it doesn't, and FLSA2026-5 did not lower that bar one inch. If you think you've been misclassified — or your employer has started pointing to this new letter to justify how it pays you — that's worth a closer look at your actual duties, hours, and pay structure.

The Sixth Circuit's ruling in Kean v. Brinker International, Inc., ___F.4 th ___, 2025 WL1692713 (6th Cir. 2025), is not only a good Age Discrimination in Employment Act (ADEA) decision for those who represent employees; it offers great applications for Fair Labor Standards Act (FLSA) cases. Case Overview: A Lesson in Evidence Handling Jeff L. Kean, a 59-year-old General Manager at a Chili's, faced termination under dubious claims of fostering a "toxic culture." Kean contended this was merely a facade for age discrimination, especially since he was replaced by someone significantly younger and less experienced. Initially, the district court ruled in favor of Brinker, granting summary judgment. However, the appellate court highlighted a crucial factor: evidence spoliation. Brinker’s destruction of vital documents related to Kean's employment undermined their defense. The court determined that their failure to preserve original documents—especially after a litigation hold was issued—demonstrated gross negligence, severely impacting Brinker's credibility. This ruling reinforces the necessity of meticulous record-keeping in employment matters. Early Use of Preservation Letters: A Strategic Approach The Kean decision teaches us valuable lessons. Here are strategies for wage and hour lawyers to implement early preservation letters: Prompt Action: Send a preservation letter immediately when a potential FLSA client comes to your office.  You should get their permission to write to their employer if they are still employed. I am located in Ohio, and we have the benefit of a state statute Ohio Rev. Code 4111.14 (G), (H) that requires employers to produce payroll records within thirty (30) business days of receiving the request. My office couples the records request with an explicit request to preserve all relevant documents, including time records, payroll data, personnel records, and employee communications. Clarity in Document Requests: Clearly specify the types of documents to preserve, such as emails, performance evaluations, and schedules related to wage practices. Legal Reminders: Reference legal obligations under the FLSA and the cases in your jurisdiction in your preservation letters. This emphasizes the seriousness of maintaining relevant evidence. Follow-Up: After sending the letter, follow up with the employer to ensure compliance. Document any responses or lack thereof to establish the employer's awareness of their duties. Client Education and Obligations: Since the obligation to collect and preserve evidence applies to our clients, early in your representation you should educate your clients about the importance of maintaining their own records, including pay stubs and communication with employers regarding wages. Our office includes a simplified version of a preservation letter in an early communication with our clients. Now is the time to evaluate your current practices regarding preservation letters and evidence management. Are you proactively sending preservation letters to employers and prospective defendants? Are your clients informed about the importance of documentation and retention? Take action today by reviewing your strategies, educating your clients, and ensuring that you are prepared to advocate effectively for employee rights. By understanding the implications of the Kean decision and utilizing preservation letters strategically, we can better protect employee rights under the Fair Labor Standards Act.

The Fair Labor Standards Act imposes strict standards on how your employer is allowed (and not allowed) to make deductions from your paycheck, or what they are allowed to consider as part of your pay. Employers frequently try to skirt these rules and assume that their workers don’t know their rights well enough to notice or fight back against wage theft, but a wage and hour attorney in Columbus will notice right away. Because our wage lawyers in Columbus know what to look for when it comes to illegal wage deductions leading to unpaid wages, we want to empower you to know what to look for as well. If you’ve seen evidence of any of these illegal wage deductions, you should talk to our lost wages lawyers in Columbus about recouping the wages that you are legally entitled to. Illegal Wage Deductions for Uniforms While it is permissible for an employer to require a uniform for work, a provided uniform does not count as wages. An employer cannot provide a uniform in lieu of their obligations to pay minimum wage or overtime obligations. That means that an employer cannot deduct the cost of a uniform from your pay if it causes your pay rate to fall below the minimum wage or decreases the overtime rate that you are entitled to. That is an illegal deduction. You are legally entitled to that pay, and an unpaid wage and hour lawyer in Columbus can help you recover this. Take, for example,  if a restaurant pays minimum wage to a host, but deducts money from their paycheck for the host uniform. If a worker is making minimum wage, the employer cannot deduct money from their paycheck for a uniform, or most other reasons - even losses resulting from the employee’s negligence. If a worker is making more than minimum wage, employers are only allowed to deduct for specific purposes up to the amount of minimum wage. This means that at the end of the workweek, your paycheck, after the uniform deductions, cannot result in you making less than the minimum wage per hour on average.  In Ohio, the minimum wage will be $10.10 as of January 2023. If an employer is paying $11.10, or one dollar per hour over the minimum wage, then for an employer working 20 hours a week, they would only be able to deduct a maximum of $20 each week. If the employer deducts more than $20 in this example, the employee would actually make less the minimum wage per hour.   It sounds complicated, that is why an unpaid wages lawyer in Ohio should get involved to help fight back against these illegal deductions - preferably one with a long history of successful results. Illegal Wage Deductions Cover More Than Uniforms While the FLSA mentions uniforms specifically when referring to illegal deductions that a wage and hour attorney in Columbus can fight back against, the Act covers more than uniforms. The Act states that “items which are considered to be primarily for the benefit or convenience of the employer” cannot be included in wages. This means uniforms, but also some things one might not expect. Other categories considered to be “for the convenience of the employer” include tools required for work, damages caused by employees or customers, unpaid bills by customers, and theft of company property. None of these can be deducted from an employee’s weekly pay beyond minimum wage or overtime obligations, even if the employee is at fault. What an Employer Can and Cannot Do In a number of states, there are laws that protect employees from any paycheck deductions resulting from issues like damaged equipment or a cash drawer that comes up short. Ohio is not one of those states, but wage and hour attorneys in Ohio can still make sure an employer does not deduct wages beyond the Ohio minimum wage threshold in accordance with federal and Ohio law. That means that a minimum wage worker cannot have their paycheck deducted even if there is money missing from their register if the amount deducted will result in the worker making less than the minimum wage. Of course, that doesn’t mean your employer can’t take other actions - they are within their rights to terminate your employment or even pursue legal action if they believe money or equipment was intentionally stolen. Our employment attorneys in Columbus can help you fight back in any of these cases, especially if your check is being deducted unjustly or beyond the allowable maximum. If you feel you’ve had your wages cut unfairly, or more than is legally allowed, contact the wage and hour attorneys at Barkan Meizlish DeRose Cox, LLP and reclaim the wages you worked for and are legally entitled to.

SB 47, Ohio’s New Overtime Rules Sanction Wage Theft Starting July 6, 2022 On April 6, 2022, Ohio Governor Mike DeWine signed Senate Bill 47 into law which changes the State’s overtime rules. The Ohio Legislature failed miserably in its attempt to incorporate the federal Portal-to-Portal Act and Section 216(b) of the Fair Labor Standards Act (“FLSA”) into the Ohio Revised Code.   Ohio Legislators bowed to special interests by incorporating only the employer-friendly portions of the FLSA into O.R.C. §§ 4111.031 and 4111.10(C). They attempt to strip and muddle long-existing overtime protections granted to hourly workers by the United States Congress. How Does This Affect Employees and Employers? While the new overtime rules will hurt hourly employees, it will be a potential minefield for employers who comply with the law. The Portal-to-Portal Act, 29 U.S.C. § 254 of the FLSA, provides that employers are not required to pay for the time employees spend on activities occurring before or after they perform the principal activities for which they are employed. The new Ohio overtime law at Sec. 4111.031(A)(1) (a) and (b) incorporated Sec. 254(a)(1) and (2): Sec. 4111.031(A)(1) … an employer is not required to pay the overtime wage rate under section 4111.03 of the Revised Code to an employee for any time that the employee spends performing any of the following activities: (a) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities that the employee is employed to perform; (b) Activities that are preliminary to or postliminary to the principal activity or activities. Sec. 4111.031(A)(1)(a) and (b) mirror the Portal-to-Portal Act. However, the Ohio Legislature went one step further by adding Sec. 4111.031(A)(1)(c), which states that employers do not have to pay overtime for activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled working hours. 4111.031(A)(1)(c) is not in the Portal-to-Portal Act because subsection (c) alters the definition of compensable work for an activity not when the activity was performed. Thus, if the activity meets the definition of work, meaning that the activity is necessary and indispensable to an employee’s principal activity, it is not eligible for overtime pay if it lasts for undefined time limits described as “insubstantial or insignificant periods of time.” Who gets to determine how much of an hourly worker’s time at home is “insubstantial or insignificant” such that her work should not be part of the overtime calculation? The new Ohio overtime law muddles what employers are to do with such time spent by their employees. The Portal-to-Portal Act renders any activity within the meaning of Sec. 254(a)(1) and (2) not compensable.  This means that the employer does not have to pay any wages for this time. The new Sec. 4111.031(A)(1) states that the employer is “not required to pay the overtime wage rate” for any activity within the meaning of Sec. 4111.031(A)(1)(a)-(c).  This sentence can be read two ways; (1) that the Ohio Legislature granted Ohio’s hourly workers at least Ohio minimum wages for all activity that would otherwise be non-compensable under the federal Portal-to-Portal Act; or (2) that to the extent that activity within the meaning of Sec. 4111.031(A)(1)(a)-(c) is compensable under the FLSA, Ohio hourly workers only get at least the Ohio minimum wage. The former is a granting of wage protections in addition to the FLSA which is permitted under Article 10 of the U.S. Constitution.  The latter would restrict wage protections granted by the FLSA and violates the federal supremacy laws, rendering it unconstitutional. Why Does This Matter? Why does it matter? Because the real question when the courts decide if the activity a worker performs is compensable is, was the activity “necessary or indispensable” to their principal activity?  If the activity fits that definition, then where it occurs and whether the employer thinks an employee spent an acceptable amount of their own time doing it, does not matter.  The Portal-to-Portal Act was enacted to prevent employers from having to pay for regular commute time or tasks after work that has no bearing on the employees’ job duties.  SB47 was enacted to help employers not pay for otherwise compensable work activities that employees do on their personal time.  That is wage theft. Sec. 4111.10(C) now requires that employees who are interested in joining a wage lawsuit against their employer must file their Notice of Consent to join the case. This is a significant shift in Ohio employee wage protections. Prior to the effective date of SB47, Ohio permitted workers to bring overtime and minimum wage claims as a class action under Rule 23.  These are called “opt-out” class actions because one worker can file a claim on behalf of all current and former workers and toll their statutes of limitations (the time the wage statutes give workers to make a claim). The prior Ohio overtime protections only provided two years of recovery and no liquidated damages. However, the tradeoff was that once one victim of wage theft filed a claim, they could toll the statute of limitations for all current and former employees.   This means that you did not have to file your own claim or even know that you were a victim of wage theft, and your rights were protected. SB47 removes the “opt-out” class actionability for Ohio overtime claims and requires every employee to file their own case or a Notice of Consent in a filed case to toll their statute of limitations. This type of action is called an “opt-in” collective action. This means that until a worker who was a victim of wage theft learns of the violations and how to file a claim, their time to make such a claim continues to erode. Proponents of SB47 claim that Sec. 4111.10(C) “mirrors” the federal “opt-in” process found at 29 U.S.C. § 216(b). This is incorrect. While Sec. 216(b) requires a wage theft victim to “opt-in” to an existing case or file their own case to toll the statute of limitations; it grants wage theft victims the ability to recover three years of damages and liquidated damages if the wage theft was willful.  Sec. 4111.10(C) did not grant Ohio wage theft victims the ability to recover three years of damages and liquidated damages if the wage theft was willful. The Ohio Legislature left those worker-friendly protections out of Sec. 4111.10(C). In doing so, Ohio now grants Ohio hourly workers less protection for the theft of overtime wages than does the FLSA.   This renders Sec. 4111.10(C) unconstitutional. Why does it matter?  This matters because many workers do not opt in. There are a variety of reasons for this. Some workers fear retaliation, even though it is illegal. Some think the collective action notice is part of a scam. Many notices never make it to workers in the first place because they moved. The original version of the law took care of all of these concerns at once. SB47 is a sloppy, ill-considered piece of legislation that was designed to strip hourly Ohio employees’ wage protection from theft of their overtime wages. While SB47—or Sec. 4111.031 and Sec. 4111.10(C) after enactment—will not survive a court challenge, many Ohio workers and businesses will be harmed in the process. The bill’s passage was unnecessary. Many people who opposed SB47, me included, offered considerable alternatives that would mirror the federal protections. This would have ensured Ohio’s hourly workers were protected from wage theft and leveled the playing field for those employers who follow the law. If you feel you have been a victim of wage theft or improper pay practices, please contact our office for a free consultation with an Ohio Wage and Hour lawyer today.  If you are an employer who needs help navigating the tempest caused by Sen. Bill Seitz and Sen. Andrew Brenner; call me and I will help you find a lawyer. The Paycheck Warriors is a bi-weekly column written by The Paycheck Warrior himself, Managing Partner Bob DeRose. Every other week, just like your paycheck, Bob will take the time to address commonly asked questions about wage and hour law. He will also take on wage and hour topics popping up in the news. Have a question? Leave a comment and see what The Paycheck Warrior has to say!

The US Department of Labor Protects Ohio Workers from Retaliation Receiving adequate wages for hours worked is an entitlement that many employers simply ignore or overlook. Bringing issues with your paycheck to your employer’s attention can be scary and often very intimidating.  Most employees are hesitant to complain about unpaid overtime or earned wages out of concern that they will upset their employer, leading to discipline, a hostile work environment, or even termination.  However, employees have the federally protected right to complain to their employers about how they are being paid.  This protection extends to complaining about how their co-workers are being paid.  Under the Fair Labor Standards Act (FLSA), it is illegal for any employer to fire, demote or in any other way discriminate against employees for exercising their FLSA rights. How are Ohio Workers Protected? This past March, the U.S. Department of Labor (DOL) issued a new field assistance bulletin entitled Protecting Workers from Retaliation, which outlines the worker protections from retaliation for exercising their FLSA rights.   The DOL reiterated that the FLSA anti-retaliation protections “hold the promise that workers can complain to the government or make inquires to their employers about violations of the law without fear that they will be terminated or subject to other adverse action as a result.” The DOL stated that it is stepping up its enforcement of anti-retaliation protections. Make Complaints In Writing The courts have held that oral inquires, or complaints are protected.  However, it is a better practice to make all inquiries or complaints in writing and state that you are exercising your FLSA rights in making the inquiry or complaint.  Then save a copy of what you give to your employer.  It takes courage to make the inquiry or complaint but understand that you are within your rights to do so, and you are protected from retaliation.  The FLSA provides broad remedies to employees who are the victim of retaliation at work for exercising their FLSA rights.  The remedies include unpaid wages, liquidated damages, attorneys’ fees, and payment for emotional distress. This could also include back pay for up to two years. If you have brought up an issue to your employer about pay you are entitled to, or if you feel you have suffered from a hostile work environment by reaching out to your employer about unpaid wages, give us a call to see how Barkan Meizlish can help. There is no obligation to discuss your case. The Paycheck Warriors is a bi-weekly column written by The Paycheck Warrior himself, Managing Partner Bob DeRose. Every other week, just like your paycheck, Bob will take the time to address commonly asked questions about wage and hour law. He will also take on wage and hour topics popping up in the news. Have a question? Leave a comment and see what The Paycheck Warrior has to say!

Anyone Can Be a Victim of Wage Theft Wage theft is a significant issue that affects millions of workers each year. Unfortunately, many people do not even realize they are a victim until it's too late. In this post, we will discuss what wage theft is and some of the most common forms it takes. We will also share resources for workers who think they may have been a victim of wage theft. So, if you are interested in learning more about this important topic, keep reading! Wait, What IS Wage Theft? Wage theft is the practice of employers not paying workers their full wages for all hours worked in a timely manner.   Examples include: paying less than the federal or state minimum wage, not paying overtime, not including all of the workers’ wages when paying overtime, automatically deducting the time for meal breaks when workers do not get the meal break, requiring workers to work off-the-clock or taking workers’ tips.   This is a major issue that impacts workers and their families in the short-term, as well as long run. Not only does it reduce the income that a person would have been making had they not been deprived, but wage theft also impacts loved ones by taking away money for resources like food, rent or mortgage payments, out-of-pocket healthcare costs and clothing. What are some steps that workers can take if they experience wage theft or if they suspect that their employer is engaging in this practice? One option is to contact the Department of Labor's Wage and Hour Division (WHD), WHD | U.S. Department of Labor (dol.gov) which investigates wage concerns. All calls are confidential, and you can call to ask questions about labor laws even if you are not sure, you want or need to file a complaint. In Ohio you can contact the Bureau of Wage & Hour Administration to file a complaint for non-payment of regular wages or overtime at Wage & Hour | Ohio Department of Commerce. There are organizations that help workers who are the victims of wage theft.  Many unions provide workers wage theft assistance, as well as non-profit organizations. In central Ohio, the Central Ohio Worker Center is leading resource for Ohio workers. They can be contacted at https://centralohioworkercenter.org/. Know Your Rights The first step to combating and preventing wage theft is understanding your federal and state rights at work.  While some mistakes are accidental, many wage issues are a result of an employers’ policy violate state and/or federal wage laws. You should track your own hours and keep your own record of the hours you actually work.   If you perform tasks that help prepare you for your job duties or necessary after your shift is over, that is still work and you should be paid for that time.  If you are not being paid for that time, seek help.  It is important to speak up about wage theft and fight for your rights as a worker! Wage theft is a significant issue that impacts workers and their families. This problem has been around for a long time, but it continues to persist.  This practice reduces the income of hardworking people and should not be tolerated. If you have experienced wage theft, or know someone who has, please call a union, a workers’ right center or a wage and hour lawyer to discuss your case. You may be entitled to back pay, damages, and other relief. Thank you for reading our blog post on this important topic. The Paycheck Warriors is a bi-weekly column written by The Paycheck Warrior himself, Managing Partner Bob DeRose. Every other week, just like your paycheck, Bob will take the time to address commonly asked questions about wage and hour law. He will also take on wage and hour topics popping up in the news. Have a question? Leave a comment and see what The Paycheck Warrior has to say!

Re-introducing: the Paycheck Warriors at Barkan Meizlish, LLP! The Paycheck Warriors is a weekly column written by The Paycheck Warrior himself, Managing Partner Bob DeRose. Every week, Bob will take the time to address commonly asked questions about wage and hour law. He will also take on wage and hour topics popping up in the news. Have a question? Leave a comment and see what The Paycheck Warrior has to say! Today's topic: tip credit and the 80/20 rule How many jobs can your server have?  And which job pays them at least minimum wages? What is a tip credit? Did you know that your busy server is actually doing three jobs at once? An employer is required to pay their employees at least the Federal minimum wage for all hours worked, currently $7.25 per hour; however, for employees who regularly and customarily receive tips, employers may apply a “tip credit” which allows them count tips received as if it were cash payment toward the minimum wage.   Servers being paid under a “tip credit” system, can be paid as little as $2.13 per hour (in states that don’t have a state tipped employee minimum here is a link to the Department of Labor’s list of state minimum wage requirements) and the restaurant owner uses customers’ tips to make up the remainder of the minimum wage owed.   Thus, the employer gets a “credit” for the tips customers leave to apply to its obligation to pay its servers. In 2018, the Trump administration, removed a provision of the “tip credit” that required employers to pay tipped employees the full minimum wage when they are spending more than 20% of their time performing non-tipped duties.  On December 28, 2021, the U.S. Department of Labor (DOL) reinstated the “80/20 Rule” and broadened tipped employee protections. Under the revived and renewed “80/20” rule, a tip credit is not available when tipped employees spend more than 20% of their working time on non-tipped activities. The revision also created the “30-Minute” Rule.  The “30-Minute” rule prohibits employers from taking a tip credit when a tipped employee spends more than thirty continuous minutes performing non-tipped work. The new rule creates three categories of work:    “Tip-producing work,” “work that directly supports tip-producing work,” and “work that is not part of the tipped occupation.” What is tip-producing work? The DOL provided a non-exhaustive list in its final rule but defined it as “all aspects of the work performed by a tipped employee when they are providing service to the customer” and customarily and regularly receive tips. What is directly supporting work? According to the Rule, directly supporting work is work that is “either performed in preparation of or otherwise assists the tip-producing customer service work.”  The DOL provided another non-exhaustive list of what it considers directly supporting work.  The directly supporting work are tasks that an employer assigns and are foreseeable such as refilling condiment containers, rolling silverware, setting tables, bussing tables, and cleaning up the table areas.   Servers waiting for customers to wait on is considered “directly supporting work.”   An employer cannot take a tip credit for directly supporting work that exceeds 20% of the server’s workweek or performed for more than 30-minutes at a time. What is work that is not part of the tipped occupation? Everything else. Confused?    Not surprising! The reinstated and revised “80/20 Rule”  does give servers more protections.  It will be a challenge for employers to categorize a tipped employee’s hours worked each week, but they must do it if they want to comply with the FLSA and pay employees correctly.  It is important to note that the “80/20” Rule applies to all tipped employees, not just restaurant workers.   If are a tipped employee with questions about how your employer pays you, feel free to call us at Barkan Meizlish DeRose Cox, LLP.

Re-introducing: the Paycheck Warriors at Barkan Meizlish, LLP! The Paycheck Warriors is a bi-weekly column written by The Paycheck Warrior himself, Managing Partner Bob DeRose. Every other week, just like your paycheck, Bob will take the time to address commonly asked questions about wage and hour law. He will also take on wage and hour topics popping up in the news. Have a question? Leave a comment and see what The Paycheck Warrior has to say! Today's topic: shift differentials Employers must include shift differential in regular rate when calculating overtime. You are working an afternoon shift at your company.  You work six 8-hour shifts and get paid overtime for all hours you work over 40-hours per week. That sounds great until they forget about the fact that every afternoon shift worker has their hourly rate increased by $0.50 per hour - or a  shift differential. When a worker is paid a shift differential, that additional money must be added to the hourly rate, or what is called the regular rate, when calculating the rate that overtime hours are paid.   If the company does not include the shift differential when calculating overtime pay,  the workers are being cheated out of their hard-earned money! The Department of Labor ( DOL) has specific rules on how overtime must be paid.  Overtime is paid at 1.5 times a worker's "regular rate" not their hourly rate. One of the most common mistakes employers make is not including shift differential in the regular rate when paying overtime.   So, what does the FLSA consider an employee's "regular rate?"    To compute the regular rate, you take all compensation an employee earned in a workweek and divide  it by the total hours worked in that workweek. Example: Employee makes $10.00 per hour and works 50-hours per week.  The overtime rate for the 10-hours she worked over forty is $15.00 per overtime hour.  The regular rate is in this example is the same as the hourly rate.   However, if she received a $0.50 per hour shift differential during the week, her regular rate has to include $0.50 for each hour she was paid the shift differential. Let us say she usually works day shift and is paid $10.00 per hour but gets $10.50 ($0.50 shift differential) when she works afternoon shift.  In our example she worked two 8-hour afternoon shifts in the week she worked 50-hours.   Her regular rate is calculated by taking 34-hours multiplied by $10.00 ($340.00) and 16-hours multiplied by $10.50 ($168.50) for a total of $508.00.  Divide the $508 by 50-hours and her regular rate is $10.16.  Thus, each overtime hour must be paid at 1.5 times $10.16 or $15.24. In our example, if her employer did not include the shift differential in her regular rate then she was cheated out of ten overtime hours at $15.24, or $2.40 for that week.  This amount may not seem like much to the reader, but for her, since she did the work, it is wage she earned and is entitled to receive. In Conclusion: DOL overtime rules are complex, but overtime is one of the most regulated areas in employment. If an employer fails to pay overtime correctly, an employee could file a wage and hour claim against them. Those claims can get expensive as they often result in back overtime wages plus liquidated damages that must be paid to employees who win their case(s). I hope that you found this blog post helpful. I would love to hear your feedback or any questions about the topic discussed in my blogs at barkanmeizlish.com/blog.   Thank you for reading! Bob DeRose, Esq. Attorney at Law | The Paycheck Warrior! barkanmeizlish.com/blog | bderose@barkanmeizlish.com | 614-221-4221 (office) | 614-832-5297(cell) ©2022 All Rights Reserved. Neither Barkan Meizlish DeRose Cox, LLP, nor the author intends to create an attorney-client relationship by providing information through this blog or otherwise. The transmission of information from this blog or the provision of any email correspondence to Barkan Meizlish DeRose Cox, LLP or the author does not create an attorney-client relationship. This blog is not intended to be legal advice and is provided for informational purposes only. Laws change frequently, and across jurisdictions. This information is not a substitute for individualized legal advice. Although we have attempted to provide accurate and current information, the laws in your jurisdiction may be different from those described here. If you have questions about your specific wage issue, you should contact an attorney to seek specific advice. If you have any questions about overtime or would like more information on how to correctly pay overtime, please contact Barkan Meizlish DeRose Cox, LLP. We are happy to help!

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.

Severance Agreements Changes to Combat COVID-19 Related Economic Loss In the era of COVID-19, many employers are attempting to lower their bottom line. Many employers turn to measures affecting workers, such as buying out employees close to retirement, mass lay-offs, and the issuance of severance agreements among all levels of companies. What You Need To Know about Severance Agreement Although workers often feel powerless during the discussions of a severance agreement with an employer, it is important to realize that often the employer is asking for something from the worker in return for the agreement. This makes it reasonable for the employee to attempt negotiation. Employers often want to ensure that they limit their future liability for lawsuits and other claims. This necessitates that most severance agreement to contain a waiver of such claims by the employee. While certainly the employer has the ultimate power- as a severance agreement is not legally required to terminate employment in an at-will employment setting- employees can also exert some power to negotiate based on their willingness to release potential current and future claims against the employer. Another factor to consider is whether you will be subject to a Non-Compete Agreement upon the end of your employment. Non-Compete Agreements are typically upheld in Ohio and can be difficult to navigate when searching for your next position. This can often be a sticking point in negotiations of a severance package and can have broad implications for your future job search. How We Can Help The employers have attorneys on their side and you should too. Assistance in reviewing and negotiation your severance agreement can be incredibly helpful in protecting your future. Clarity on your responsibilities and on any potential non-compete issues is crucial. An attorney’s review can lead to additional items or an increase of the payment or other terms. Speaking with an attorney gives you the opportunity to discuss what is most important in the negotiation, and to make those goals a priority. Our office offers flat-fee severance review and advice to anyone facing a severance package. Contact us at 614-221-4221 for more information. - Jessica Doogan

For Immediate Release: COMPLAINT FILED AGAINST THE OHIO GOREMATORY, LLC LORAIN COUNTY OHIO, May 18 th, 2020- Attorneys with Barkan Meizlish DeRose Wentz McInerney Peifer, LLP have filed a Collective Action lawsuit against the Ohio Gorematory, LLC in Loraine County Common Pleas court. The Ohio Gorematory, based in Lorain County, Ohio, is a seasonal haunted house. The complaint’s defined plaintiff class includes employees who worked for the Ohio Gorematory, LLC between May 12, 2017 until present, and names the company Ohio Gorematory, LLC and each of the owners as Defendants. An amended complaint was filed on May 22nd The Complaint brings claims of wage theft and minor labor law violations against the owners, citing the Ohio Minimum Fair Wage Standards Act, O.R.C. 4111 et seq., (“the Ohio Wage Act”), the Ohio Prompt Pay Act (“OPPA”), O.R.C. § 4113.15 (referred to collectively as “the Ohio Acts”), Ohio minor labor laws, O.R.C §§ 4109 et seq. These violations include employees, called “scare actors,” not being paid for their work either entirely or in part, not paying the Ohio state minimum wage, and working long days with improper breaks for minors. Individuals who believe themselves affected by this action can contact Barkan Meizlish DeRose Wentz McInernery Peifer, LLP via email at consents@barkanmeizlish.com or at 800-274-5297. Plaintiffs’ Attorney, Jessica Doogan, official statement: “Wage theft is a pervasive issue that should not, and cannot, be tolerated in any form. This case is especially egregious, as the employer here took advantage of high school age minors that were looking for a fun way to make extra money during the Halloween season. We intend to fight for our clients to receive the unpaid wages they are owed and will work with our clients and local authorities to pursue criminal prosecution of this employer for the child labor law violations it committed.” You can read a copy of the complaint here. For more information on the lawsuit and the opt-in process, you can refer to our Wage and Hour department website here.

Updates as of 2/2/2021 The United States District Court for the Southern District of Ohio, Judge Susan D. Morrison, granted Plaintiffs’ FLSA 216(b) motion for conditional certification. The Plaintiffs, three Nationwide Children’s’ Hospital psychometricians who brought federal and Ohio wage claims against the Defendant for failing to pay them and their similarly situated co-workers for work performed before and after their scheduled shift and failing to pay all hour over 40 in a workweek at 150% of their regular rate. All psychometricians who are or have been employed by Nationwide Children’s Hospital over the last three years are now eligible to receive communications regarding joining the suit. Morris, et al., v. Nationwide Children’s Hospital 2021 WL 320740 (S.D. OH February 1, 2021). The decision can be found by clicking this link: MORRIS et al v NATIONWIDE CHILDRENS_2021WL320740 Original Post Below: For Immediate Release: COMPLAINT FILED AGAINST NATIONWIDE CHILDREN’S HOSPITAL On June 24, 2020 Attorneys with Barkan Meizlish DeRose Wentz McInerney Peifer, LLP filed a federal collective and Ohio class action Complaint against Nationwide Children’s Hospital. According to the Complaint, Nationwide Children’s Hospital (“NCH”) participated in acts of wage theft against employees in the Psychometric position. These violations include failure to compensate employees for all hours worked and failure to pay overtime, in violation of the Federal Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§201, et seq., the Ohio Minimum Fair Wage Standards Act , O.R.C. §§4111.01., 4111.03 and 4111.10, and the Ohio Prompt Pay Act . Natalie Morris, a psychometrician, brought this lawsuit on behalf of herself and all other similarly situated current and former NCH psychometricians who worked for NCH since June 24, 2017. Originally, an unnamed NCH psychometrician filed a wage theft complaint against NCH with the United States Department of Labor (“DOL”). In response to that complaint the DOL investigated. While the substance of that investigation is not public, the DOL and NCH are attempting to resolve all the psychometrician’s wage claims by offering a lump-sum payment to affected employees. This lawsuit was brought by Ms. Morris to secure complete payment of all the hours she is owed.  She also brought this lawsuit to obtain payment for all the hours owed on behalf of all current and former NCH psychometricians who worked for NCH since June 24, 2017. Plaintiffs’ Attorney, Robert E. DeRose official statement: “Although the DOL investigated this case, it is apparent from the facts that Nationwide Children’s Hospital did not have a good faith basis for paying its psychometricians the way it did and that is wage theft. Wage theft in any form cannot be tolerated.  The hospital willfully paid these employees in violation of the wage laws and they should be paid for three years of time and liquidated damages.  The amount the hospital is trying to pay to get out of trouble is far below what the employees are due.  That is why the court will decide this case.” A copy of the complaint can be found here About Barkan Meizlish DeRose Cox, LLP: The law firm of Barkan Meizlish DeRose Cox, LLP is over sixty years old, with a national practice, focused on wage and hour/overtime litigation, worker’s compensation, Social Security disability, personal injury, and medical malpractice.