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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.

On August 2, 2017, the law firm of Barkan Meizlish DeRose Cox, LLP filed a Complaint against Defendants Serenity Homes LV, LLC (“Serenity Homes”), and its manager, Valerie Kaleal, for the failure to properly compensate an employee in violation of the Fair Labor Standards Act (“FLSA”) and the Ohio Minimum Fair Wage Standards Act. Serenity Homes is a company based in Shelby, Ohio and provides home healthcare to individuals with mental and physical disabilities and specific medical needs throughout the Mansfield, Ohio and Shelby, Ohio area. The lawsuit is brought on behalf of plaintiff Catherine Sparks, a home health aide currently employed by Defendants, who regularly worked at least 40 hours per week, including overnight and weekend shifts, during the two years preceding the filing of the Complaint. The Plaintiff alleges Serenity Homes failed to pay her overtime at a rate of 1.5 times her regular rate of pay for all hours worked over 40 in a workweek. Specifically, Plaintiff alleges that she was not adequately compensated at the overtime rate when she worked “sleep time” hours (10:00 P.M. - 6:00 A.M.). To exclude sleep time hours under the FLSA, an employer must show an expressed or implied agreement with the employee that excludes sleep time, provide adequate sleeping facilities, and the employee must have at least 5 hours of consecutive sleep during the scheduled sleeping periods. 29 C.F.R. 785.22. Any interruptions to perform duties must be counted as hours worked. The Plaintiff alleges Defendants did not have any “sleep time” agreement, nor did Plaintiff have 5 hours of uninterrupted sleep while working sleep time hours as a home health aide. Additionally, Plaintiff alleges that she was not properly compensated for attending mandatory employee meetings and working “on call” hours, nor was she properly paid for her mileage or reimbursed for the use of her own car when she engaged in activities to benefit Defendants’ clients during the course of her employment. The lawsuit was filed in the U.S. District Court for the Northern District of Ohio, Eastern Division and is titled Sparks v. Serenity Homes LV, LLC et al., Case No. 1:17-cv-01618. If you feel that you are not being properly paid wages you have earned, call Barkan Meizlish DeRose Cox, LLP for a free consultation at 800-274-5927. You may have a viable claim and our employment attorney can help you determine the best course of action.

Earlier this year, the U.S. Department of Labor reported that it is finding “unacceptably high numbers of violations in the oil and gas industry,” and “pattern of industry employers failing to pay workers legally required overtime.” Common violations include: the mistaken classification of salaried employees as exempt; not properly calculating employees’ regular rates for the purposes of determining overtime, such as failing to include certain bonuses; failing to pay for time spent working off-the-clock; and paying flat daily/shift rates without regard to how many hours the employees worked. Even employees that earn more than $100,000 per year are often incorrectly classified as exempt, because the employer fails to satisfy all elements of the exemption. In addition to employees that work directly for oil & gas companies; workers in related businesses may also be underpaid, such as water and stone haulers, trucking, lodging, staffing companies and other types of oil and gas supporting trades. If you work for an oil and gas company, or if you work in an industry related to the oil and gas business; and if you work more than 40 hours a week, then call us for a free consultation to determine whether you are being paid properly. Remember, even if you receive “overtime” compensation, the amount of overtime paid may not be properly calculated by your employer or by the staffing agency. Also remember that wage and hour claims are typically subject to a two year statute of limitations. This is sometimes extended to three years, but only under certain circumstances. This means that as time goes by, historical weeks of earned wages are barred from recovery by the statute of limitations. Call us today at 800-274-5297. (Advertising Material: This Notice is for informational purposes and should not be construed as legal advice). Oil, gas industry workers in 9 states owed more than $1.6M in back wages ongoing Labor Department enforcement initiative finds See also To Be or Not to Be . . . exempt. I’m salaried, so I shouldn’t get overtime, right? Sorry, that is wrong. Oil, gas industry workers in 9 states owed more than $1.6M in back wages ongoing Labor Department enforcement initiative finds; and US Department of Labor finds oil and gas industry workers in New Mexico, west Texas underpaid by more than $1.3M Fact Sheet #17H: Highly-Compensated Workers and the Part 541-Exemptions Under the Fair Labor Standards Act (FLSA)

Immigration status does not affect an employee’s ability to recover for unpaid wages under the Fair Labor Standards Act (FLSA). Evidence brought forth that would lead a juror to infer that a plaintiff was or is undocumented will likely be excluded, because it is more harmful to the Plaintiff and is not relevant to the FLSA claim. Numerous Circuit courts and District courts have agreed. For example, a United States Magistrate Judge in Illinois, in the case of Kim v. Hakuya Sushi Inc. et al.,1:15-cv-03474, Doc. No. 158, recently barred evidence in the lawsuit of an employee against his former employer. There, the Judge stated that “an individual’s status as an undocumented worker does not affect his or her ability to recover unpaid wages under the FLSA”, and therefore, “courts are generally in agreement that such evidence is not a proper subject of discovery and is appropriately excluded at trial.” The court noted that introduction of evidence of immigration status is irrelevant to a claim of unpaid wages, and thus, any evidence, even if solely used for impeachment purposes, would likely be too damaging to the jury’s view of the Plaintiff and should, as a result, be excluded from evidence. This case suggests that Plaintiffs should not be fearful that evidence of their immigration status may be used against them in their lawsuit to recover for unpaid wages. Employers have a duty to comply with the FLSA, regardless of immigration status. If you feel that you are not being properly paid wages you have earned, call us 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 after thorough consideration of your situation. (Advertising Material: This Notice is for informational purposes and should not be construed as legal advice).

The National Labor Relations Act ("NLRA") was enacted in 1935 to “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices.” The Federal Arbitration Act (“FAA”) was enacted in 1925 to encourage private dispute resolution through arbitration. Whether two federal statutes can live in harmony or conflict is often a thing of heated legal debate. Currently before the Supreme Court of the United States (“SCOTUS”) are three consolidated cases that may put to rest a circuit split, deciding whether arbitration agreements that prohibit employees from joining other employees to pursue worked-related claims, including claims for unpaid minimum wages or unpaid overtime, violate the NLRA. In a rare position reversal, the U.S. Department of Justice filed an amicus brief in which it now supports class waiver by arbitration agreements. While not among the consolidated cases before the SCOTUS, the Sixth Circuit recently supported workers’ rights, holding that the NLRA does not conflict with the FAA, and since the NLRA creates a substantive, nonwaivable right to engage in concerted activity, arbitration agreements that prohibit concerted activities in any forum are unenforceable. It is important to note that the Sixth Circuit does not say that an arbitration agreement cannot require collective or class claims to be brought in arbitration. Rather, the Sixth Circuit says that an arbitration agreement cannot prohibit an employee from pursuing collective claims, class claims or any other concerted activity in all forums. It is an arbitration agreement’s prohibition against concerted activity that violates the NLRA, not the arbitration agreement’s requirement to arbitrate. Of course, disagreement on this issue is what the SCOTUS will decide. While the DOL’s shift certainly does not bode well for workers, we are hopeful that the legal arguments presented by the Sixth, Seventh and Ninth Circuits prevail. The power balance between workers and historically more powerful employers is facilitated by workers’ rights to join their individually insignificant damages and resources into collectives. If you feel that you are not being properly paid wages you’ve earned, and if you think you have no recourse because you signed an arbitration agreement; you should call us for a free consultation. You may have a viable claim in court or in arbitration, 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. https://www.nlrb.gov/resources/national-labor-relations-act http://www.legisworks.org/congress/68/publaw-401.pdf https://www.law360.com/employment/articles/935889/doj-reverses-obama-era-stance-in-class-waiver-suit?nl_pk=535043a8-09cf-4835-9108-d6d87bae778c&utm_source=newsletter&utm_medium=email&utm_campaign=employment See 6th Cir. Opinion at Nat'l Labor Relations Bd. v. Alternative Entm't, Inc., No. 16-1385(6th Cir. May 26, 2017) (Advertising Material:  This Notice is for informational purposes and should not be construed as legal advice).

Whether a worker is classified as an “employee” versus an “independent contractor” has significant ramifications. Indeed, according to the Department of Labor, “he misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy.” There are many protections for employees that simply are not available to independent contractors. For example, when an employer misclassifies a worker as an independent contractor rather than an employee, the worker may be denied critical benefits and protections including compensation of at least the minimum wage for all hours worked and/or compensation of at least one and one-half the worker’s regular rate for hours worked in excess of 40 hours per week. Other benefits denied to misclassified workers include FMLA benefits, unemployment benefits, workplace safety benefits, and many others. Additionally, there are many burdens and savings that employers experience whether a worker is classified as an “employee” versus an “independent contractor.” Not only does misclassification harm workers, but it harms employers that play by the rules because those employers that act unlawfully in this regard enjoy a competitive advantage over the law abiding employers. Another question is whether an individual is an “employee” is the question of who is the “employer.” Sometimes a potential employer evades lawful obligations by creating sham contractor relationships in order to save labor costs. In such situations, as with others, there arises the question of whether one company is the “employer” or if multiple companies are “employers” under the law; often referred to as “joint employers.” In an effort to ensure the remedial purposes of the Fair Labor Standards Act are met, the Department of Labor, from time to time, issues regulations, interpretive bulletins or opinion letters intended to clarify or frame questions including whether a worker should be classified as an “employee” versus an “independent contractor” or whether one or more companies are “joint employers” under the law. Such efforts are necessary because many workers have no choice but to agree to a mandated classification of “independent contractor.” Guidance by the Department of Labor does not limit the ability of a sophisticated self-employed entrepreneur from choosing his or her own classification. It hurts those who have but two choices: (1) accept the misclassification; or (2) find other work. These two choices are often no choice at all, especially if the worker lives in an economically depressed region where jobs are hard to come by. Unfortunately, last week the Department of Labor announced that it is withdrawing its 2015 and 2016 informal guidance concerning joint employment and independent contractors. Because employers typically have more power than the employees, the now withdrawn guidance will further increase the power imbalance against workers. If you feel that you have been misclassified, call us at 800-274-5297 to schedule a free consultation with on of our attorneys. https://www.dol.gov/whd/workers/misclassification/#resources https://www.dol.gov/newsroom/releases/opa/opa20170607 (Advertising Material:  This Notice is for informational purposes and should not be construed as legal advice).

Ohio Break Laws Breaks and lunches are an essential and often expected part of a workday but the reality of Ohio’s break laws might surprise you. Employers in the state of Ohio are not required to give anybody 18 or older breaks throughout their work shift. That being said you will be hard-pressed to find an employer who doesn’t allow for such breaks. Routinely scheduled breaks have been shown to improve the overall effectiveness and productivity of employees. This is why most, if not all employers in Ohio allow for regular breaks and lunches. When employers choose to offer their employees breaks they have a list of rules put in place by the FLSA that they now have to abide by. Employers must pay employees for any break less than 20 minutes in length. Employers are not required to pay for meal breaks that are longer than 20 minutes. If any work-related task is performed during a meal break the employer then has to pay the employee for the entire break. This last point is the most commonly broken rule in the workplace and is often violated in scenarios where the employer has an automatic meal deduction system in place. If you feel like your employer is violating any of these rules, contact an unpaid wage attorney at Barkan Meizlish LLP today. We will fight for you and help you recover the wages that are rightfully yours. More information on unpaid wage violations can be found here. Automatic Meal Deductions Employers can run into trouble by implementing “ automatic lunch deduction policies” as a shortcut around the FLSA’s requirements.  Rather than have employees clock in and clock out for meal breaks, many employers will automatically deduct break time from employees’ hours each day. The problem with this practice is that wages often go unpaid because it does not take into account work performed during a lunch break—whether that is an employee working straight through their lunch, answering a quick phone call or email from a supervisor during a break, or other interruptions during the break because of any other work-related duties. If your employer makes you perform work tasks during an unpaid break then you might be eligible to recover lost wages. The unpaid wage attorneys at Barkan Meizlish LLP are here to help you recover what’s rightfully yours under the FSLA. If you are an employer we strongly encourage you to refrain from automatic meal deductions. While it may be more time-consuming, manually tracking employees’ break times is the way to go. Doing this ensures your employees are being paid what they are rightfully owed and prevents you from having to deal with any unpaid wage lawsuits in the future. Ohio Break Laws for Minors As you might expect, the laws surrounding minors’ break times are different than those of people over the age of 18. Any worker under the age of 18 must take a 30-minute uninterrupted break for every 5 hours worked. This break does not have to be paid but the minor in question cannot perform any work related duties in the 30 minute time period. Labor laws surrounding minors are more strictly enforced and should be followed at all costs. Unpaid Wage Attorneys The fair labor standards act was put in place in 1938 to ensure that workers are treated fairly and compensated for every hour of their time. This act introduced many of the labor laws that are still in place today. Including a federal minimum wage, 40 hour work week, and those laws mentioned above regarding breaks. Barkan Meizlish LLP has been representing clients’ unpaid wage claims since 1957. If your employer has violated any of the laws mentioned above you need to contact one of our unpaid wage attorneys. We understand how valuable your time is and will fight for every hour of unpaid wages you are owed.

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).

An often difficult issue for employers is whether meal breaks for non-exempt employees under the Fair Labor Standards Act (“FLSA”) count as compensable hours worked. Generally, the FLSA regulations state meal breaks do not count as hours worked when an employee is “completely relieved from duty for the purposes of eating regular meals.” 29 C.F.R. § 785.19. Further, an employee must generally be given 30 minutes or more and must be completely relieved of his or her duties for a period to qualify as a bona fide unpaid meal break. However, issues arise when an employer puts various restrictions on non-exempt employees during unpaid meal breaks. For example, if an employer prohibits an employee during an unpaid meal break from leaving the employer’s premises without prior authorization, or if an employee must remain on call during a meal break to perform work at any moment, an employer could find itself in violation of the regulations and be required to pay compensable hours worked. Recently, the Third Circuit, which covers the jurisdictions of Delaware, New Jersey, Pennsylvania, and the Virgin Islands, clarified the test to be used to determine whether restrictions placed on employees during meal periods make the periods compensable hours worked, regardless of whether the employee actually performed any work during the meal period. In the case of Babcock v. Butler County, correction officers alleged the Prison’s policy for meal breaks constituted an FLSA violation and resulted in unpaid overtime compensation. The officers claimed certain restrictions were placed on them during meal breaks; for example, not being able to leave the prison without prior authorization, and being required to remain in uniform and be on call and in close proximity to emergency response equipment in the event of an emergency. The Prison filed a motion to dismiss alleging the meal periods were not hours worked because the “predominate benefit” of the meal period was received by the officers. On appeal, the Third Circuit agreed with the Prison’s assertion and affirmed the dismissal. The “predominate benefit” test was adopted, which asks whether the employee is primarily engaged in work-related duties during the meal period. Therefore, the Third Circuit expressly rejected the more restrictive “relieved from all duties” test. In arriving at their conclusion, the Third Circuit acknowledged the “predominate benefits” test is a “fact-intensive inquiry” that assesses the “totality of the circumstances to determine, on a case-by-case basis, to whom the benefit of the meal period inures.” Based on the facts, the Court found despite the restrictions, the officers received the predominate benefit of the unpaid meal break. The Court also looked at the parties’ collective bargaining agreement, noting that the officers were required to be paid the entire meal break period if it was “interrupted” by work. Therefore, the Court found the agreement’s protections on overtime compensation supported the overall conclusion. Employers and employees within the Third Circuit, as well as in other Circuits, should take note of the recent decision. Specifically, attention to following is required: 1. Restrictions on non-exempt employees during meal break periods do not necessarily make the meal break time compensable hours worked for FLSA purposes. 2. Under the “predominate benefit” test, the analysis is whether the restrictions are so significant and expansive that the employer predominately benefits from the meal time, not the employee. 3. Employers should treat meal breaks as compensable hours worked if the employee is interrupted by work duties at any point during the meal break. 4. If an employer wants meal breaks for non-exempt employees to remain unpaid, the employer should institute clear policies and procedures to educate employees to (1) not perform any work during a meal break unless expressly instructed by management, and (2) to report any interrupted meal breaks immediately so compensation may be received. Due to the significant liability concerns that meal break issues present to employers, employers would be wise to ensure they have adequate and lawful meal break policies in place. Source: Adam Long, When Must Meal Breaks Be Paid? Third Circuit Clarifies FLSA Test (December 2, 2015), See more at: http://www.jdsupra.com/legalnews/when-must-meal-breaks-be-paid-third-39704/. (Advertising Material:  This Notice is for informational purposes and should not be construed as legal advice).

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.

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.

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