Last month, a New York federal court in Saleem v. Corporate Transp. Grp., Ltd., 2014 WL 4626075 held that drivers for a “black car” business were independent contractors, rather than employees, under both the FLSA and New York Labor Law.  The drivers claimed that their employer misclassified them as independent contractors, entitling them unpaid overtime and other wage claims.

We’ve explained the test for determining independent contractor versus employee status in a few of our earlier posts.  The “economic realty test,” which is one of the various tests courts apply, considers (1) the degree of control exercised by the employer over the worker; (2) the worker’s opportunity for profit or loss and investment in the business; (3) the degree of skill required to perform the work; (4) the permanency of the working relationship; and (5) whether the worker contributes services that are an integral part of the business.  The analysis in Saleem provides a good illustration of how courts will apply these factors to determine employee or independent contractor status.  Here is what the Saleem court considered:

(1) Control—this factor weighed in favor of classifying the drivers as independent contractors.  The employer only exercised limited control over the drivers.  The drivers could set their own schedules, hire other drivers to work on their behalf, and take vacations whenever they wanted—even without notifying the employer.  They had no obligation to accept any job, and they could also freely work for other transportation companies. Even though the employer did require the drivers to periodically inform them of the status of their assignments, the court still found that this factor weighs slightly in favor of independent contractor status.

(2) Opportunities for loss or profit—the court found that the drivers had an opportunity for profit or loss.  Because they were not guaranteed a set amount of work under their franchise agreements, the drivers could ultimately control their income with the amount of jobs they accepted.  The drivers also invested money into the business by buying, renting, or maintaining cars and paying fees associated with their for-hire drivers licenses.

(3) Skill—this factor did not weigh in favor of employee or independent contractor status. While the drivers were not required to have a high degree of skill, they did need to exercise a high degree of independent initiative.  Because the drivers were not required to accept any particular job, they had to independently take affirmative steps to secure jobs in order to be successful.

(4) Permanence of the relationship—this factor weighed in favor of independent contractor status.  Even though the drivers had franchise agreements with the employer for many years, they could quit working at any time.  The fact that the drivers could work for other companies also weighed in favor of independent contractor status.

(5) Integral part of the business—this last factor favored employee status, as the employer could not operate the business without the drivers’ work.

After weighing the factors and looking to the totality of the circumstances, the court determined that the drivers were properly designated as independent contractors and accordingly dismissed the drivers’ FLSA claims.

Tags: FLSA, Independent Contractors, Wage & Hour
Posted in News & Media, Wage & Hour/Overtime Violations | No Comments »

Tags: DOL, FLSA, Wage & Hour
Posted in News & Media, Wage & Hour/Overtime Violations | No Comments »

Under the Fair Labor Standards Act (“FLSA”), there is no black-and-white rule for determining when travel time is compensable—it all depends upon the type of travel and when it occurs.  The regulations interpreting the FLSA don’t provide much clarity either, stating that travel “all in a day’s work” must be counted as compensable hours worked.  29 C.F.R. § 785.38.  Not surprisingly, this vague terminology offers little guidance to most employees.  What if the employee is called back to work after returning home for the day? What constitutes “hours worked?”  As a general rule, the commute between an employee’s worksite and home is a “normal incident of employment” and thus is not compensable “working time” under the FLSA.  But, of course, many exceptions apply, and it is important for employees to be aware of circumstances when such travel is compensable.

Here are a few quick examples:

• Work-related duties while commuting. The travel time between home and work is compensable if an employee is required to perform work during the commute (picking up supplies on the way to work or reporting to a meeting place, for example) that must be counted as hours worked. When that happens, the employee is considered to be “on the clock” when the initial work-related duty begins.  29 C.F.R. § 785.38.

• Emergency jobs. If an employee is required to travel “a substantial distance” to perform an emergency job after the employee has completed the day’s work, the travel time to and from the work site is compensable. 29 C.F.R. § 785.36.

• Out of town travel. Travel time is also compensable when employees are given special one-day assignments in another city.  For example, an employee that regularly works at a fixed location in Columbus will be compensated for travel time if required to make a one-day trip to Cincinnati.  This does not fall under the ordinary home-to-work rule, as the trip is performed the employer’s benefit and at the employer’s request.  However, the time that the employee normally spends commuting to and from their regular worksite can be deducted from the out of town travel.   29 C.F.R. § 785.37.

Tags: FLSA, Overtime Violations, Wage & Hour
Posted in News & Media, Wage & Hour/Overtime Violations | No Comments »

A former employee recently brought a class action lawsuit against Wendy’s for violations of the Fair Labor Standards Act (FLSA).  The lawsuit, filed on behalf of all service technicians, alleges that the technicians routinely reported fewer hours than they actually worked, and seeks compensation for unpaid work hours worked and overtime hours from December 2011 to the present.

Under the FLSA, employees must be paid at least the federal minimum wage for all “hours worked,” whether clocked in or not.  All covered employees must be paid overtime for all hours worked in excess of forty (40) in one workweek.  With the exception of higher management or other exempt positions in the fast food chain, Wendy’s must pay employees who work over 40 hours at week overtime at a rate of one-and-one-half times their regular rate of pay.  Employers may be required to pay unpaid minimum wage, unpaid overtime compensation, or liquidated damages as a consequence of violating the FLSA.

Tags: FLSA, Wage & Hour
Posted in News & Media, Wage & Hour/Overtime Violations | No Comments »

Elizabeth C. Leffel

A Social Security disability hearing is not a trial. It is not even in a courtroom. But the idea of a hearing can be very stressful for anyone. The hearing is just that, it is an opportunity for the Administrative Law Judge to hear the claimant’s side of the story. It is the time for the Judge to listen to what you have to say and ask questions to better understand your claim.

You will be asked questions about your work history, your age and education level, your disability, your treatment. The hearing is held in an office building in most areas. It is a conference room, set up with video and recording equipment. Hearings can be done with the Administrative Law Judge (AU) in person or in another city by video. The attorney and claimant are seated at a table. There is no witness box or jury or spectators. Usually the attorney makes an opening statement on your behalf and discusses procedural matters with the AU. Then depending on the method of taking testimony that the Judge prefers, the attorney will ask you questions or the Judge may do so.

One must be prepared to discuss every aspect of their disability. Activities of daily living are explored. The time limits for sitting, standing and walking are very important to know prior to hearing. The effect of the disabling impairment on one’s ability to perform activities is discussed. The prognosis for the future and the effect of medications and treatment are also considered and discussed.

Medical expert testimony may be elicited in certain cases where a Medical Expert has been called to testify. The doctor will assess the impairments and let the Administrative Law Judge know if the claimant’s condition meets the Listings found in the Social Security Regulations. The Listings are basic definitions of disability approved by the Social Security Administration. If a person meets or equals a listing, they are found disabled. The Medical Expert also addresses and gives testimony regarding the limitations and restrictions that are pertinent to the case, if the Listings are not applicable.

Vocational expert testimony is also used at a hearing. That is why testimony is taken from the claimant regarding the duties performed in past work. That is very important in evaluating whether there is a job in the past that can still be done, or whether other jobs are available that accommodate the current physical or mental restrictions. The testimony of a vocational expert (VE) is used to help make these determinations in most cases. A vocational expert will attend the hearing by phone, video, or in person. They will testify as to the past relevant work done by the applicant. They will give the Administrative Law Judge the lifting and standing requirements of that job, the exertion and skill level. Then the VE will be asked a series of hypothetical questions to determine if there are any past or other jobs available. The hypotheticals will describe the alleged disabilities and the restrictions on various environments and activities. There is an opportunity for cross examination of both the Medical Expert and the Vocational Expert. A brief closing argument is usually allowed.

Most hearings take 45 minutes to an hour. They are non-adversarial. The decision is usually not rendered at the time of the hearing. It can take 60-90 days before a decision is issued. The decision is sent by mail to the applicant’s current address. So it is important to keep that up to date with SSA or your attorney. The hearing gives you the opportunity to be heard, so don’t miss it.

Tags: Social Security
Posted in News & Media, Social Security | No Comments »

Being injured on the job not only makes life more difficult in the physical sense but the following dealings with worker’s compensation claims can be a  mental nightmare if you don’t know how to approach the situation. Here at Barkan Meizlish DeRose Cox, LLP our Columbus worker’s compensation attorneys help you make sense of your worker’s comp claim so you can get the compensation you deserve. Keep reading as we take an in-depth look at Temporary Total Disability and a specific case we had where the results relied on whether or not the employee was fired from or abandoned their job. 

What is Temporary Total disability? 

Temporary total disability compensation or TTD is a worker’s compensation benefit resulting from an injury that renders the employee in question unable to perform any job duties for a temporary period of time. When a worker receives this type of compensation they are entitled to a percentage of their weekly pay until returning to full-time work. This exact number varies but workers who are awarded temporary total disability compensation typically receive two-thirds of their regular income. This amount is paid until the worker recovers from his or her injuries and is reduced when the employee returns for part-time labor or restricted duty. TTD compensation ceases once the employee is cleared to return for full-time work.

Filing Workers’ Comp Claims

Workplace injuries can be a major setback to any household and can make it difficult to sustain the lifestyle that you are accustomed to. Workers’ comp insurance is there to make sure that you receive the assistance you need after an injury or illness is sustained through meeting your employer’s demands. I am going to cover some things you need to know before filing your claim so that you can ensure you get the compensation you deserve and then I am going to go over a past case where the employee essentially forfeits their workers’ compensation pay.

The first thing you want to do with any injury is to start a paper trail documenting the injury. To do this you need to make sure that you immediately report the injury to your employer or workplace supervisor. What this does is ensure that your injury has been documented and recognized by your place of employment. After reporting an injury to an employer they will likely require you to undergo a drug screening to ensure that your injury was not sustained due to being under the influence.

After you have reported your injury to your employer the next thing you are going to want to do is seek medical treatment as quickly as possible. This is an important step because if you neglect seeking treatment then a likely argument against you in regards to your workers’ comp case is going to be that your injury was not severe enough to seek medical treatment, therefore it is not severe enough to receive disability compensation.

Once the above steps have been completed you need to make sure that you file a workers’ compensation claim with whatever state you reside in – Ohio claims can be made through the Ohio Bureau of Workers’ Compensation. Never rely on your employer to file your claim as it can easily fall to the wayside and be forgotten for a period of time long enough to essentially render your claim invalid.

If at any point in time you have any questions regarding your workers’ compensation claim we here at Barkan Meizlish, LLP are eager to help. We have helped Columbus, Ohio, and the surrounding areas with these types of claims since 1957 and have become some of the most trusted attorneys in the area. Contact our team of workers’ compensation attorneys today to ensure you get the compensation that you deserve.

Now that you have a good understanding of the steps you need to take in filing your claim I am going to go over a case where an employee inadvertently surrendered their rightful claim to workers’ compensation so you know what to avoid.

Temporary Total Disability Case Results

On June 3, 2009 an employee injured himself while working as a mechanic. He was later diagnosed with a sacroiliac joint sprain/strain. He was released to work six days later with the ability to work in a light-duty capacity.

Upon returning, the employer confirmed that the employee could return to light-duty work and asked that the employee return a Jeep that the employee had borrowed from the employer. This upset the employee, and a disagreement followed, prompting the police to be called. The employee cooperated with the police and left the premises, ending his employment.

Upon filing for Workers’ Compensation, the employer objected to the claim, but the claim for a left sacroiliac sprain/strain was allowed. However, the employee’s request for temporary total disability compensation (TTD) was denied on the basis that the employee voluntarily abandoned his job. The Court held that the employee was barred from receiving TTD, as he voluntarily quit his job for reasons unrelated to his industrial injury.

“This disagreement happened to occur shortly after (the employee) reported working with a note from his doctor restricting him to modified duty.” Moreover, “His departure was not causally related to the industrial injury. … Temporary-total-disability compensation is intended to compensate an injured worker who is temporarily unable to return to the duties of his or her former position of employment as a result of a workplace injury.” Thus, it is important that when an employee leaves their job, it must be due to an industrial accident, if they wish to recover TTD benefits.

Now you have a better understanding of what constitutes TTD and what you need to do as an employee to ensure you get the compensation you deserve in the event of a workplace injury. If you have any questions concerning your claim our professional team of workers’ comp attorneys is here to help. Contact Barkan Meizlish, LLP today for all of your workers’ comp needs.

Tags: Workers' Compensation
Posted in News & Media, Workers’ Compensation | No Comments »

Recently, the Ohio Supreme Court held that a commissioner of the Industrial Commission of Ohio is not required to attend a hearing in order to vote on a matter being heard. In State ex rel. Every v. Indus. Comm., Slip Opinion No. 2015-Ohio-120 (2015), an injured workers surviving spouse filed for death benefits under R.C. 4123.59. The claim for death benefits was allowed, but because the motion for death benefits was not filed within one year of the date of death, a staff hearing officer denied the motion.

The surviving spouse appealed through the administrative process until the commission was asked to reconsider the decision to deny benefits. At this hearing only two of the three commissioners were present, and by a vote of two-to-one, denied the surviving spouses’ request to exercised continuing jurisdiction over the case. The missing Commissioner stated that she discussed the case at length with a Staff Hearing Officer who was present at the hearing, and also reviewed the evidence within the claim file.

The surviving spouse filed a complaint in mandamus in the Court of Appeals, also stating that she was denied due process of law when the Commissioner voted on the motion for reconsideration despite not attending the hearing. The Court of Appeals issued a limited writ of mandamus compelling the commission to conduct a new hearing before all commission members. However, the Supreme Court of Ohio reversed this decision, as it stated in State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St.3d 298, 2013-Ohio-3686, 995 N.E.2d 2014, “the due process requirement of a full and fair hearing means that the decision maker must, in some meaningful manner, consider and appraise all the evidence to justify the decision.”

Thus, because the missing commissioner reviewed the evidence on file and discussed the proceedings and testimony of the hearing with a Staff Hearing Officer who was present, the commissioner was said to have considered all evidence in a meaningful manner. As such, it is appropriate for a commission hearing to only have two of the three commissioners present, so long as the missing commissioner completes a meaningful review of the evidence.

Tags: Meaningful Review, Workers' Compensation
Posted in News & Media, Workers’ Compensation | No Comments »

Employee v. Independent Contractor – What You Need To Know

What is the difference between an employee and an independent contractor? This is an important question and one that business owners and workers must reckon with. Oftentimes, employers will attempt to classify a new hire as an “independent contractor.” This is done to limit exposure under a given state’s worker’s compensation act. Also, if a hire is considered an employee, employees are mandated to withhold income taxes and pay Social Security, Medicare taxes, and unemployment tax on wages. Employers are under no such obligation to independent contractors.

This is an issue that raises a number of questions and attempting to answer them is not exactly straightforward. In fact, there are many factors that go into determining how to most effectively address this situation. When courts have weighed in on the “employee versus independent contractor” dynamic, some common factors have become apparent. 

Control and Relationships – What They Mean And How They Affect You

It’s important to note that each jurisdiction has its own statutes and regulations and if you have specific, detailed questions you should refer to a state’s statutes and rules that focus on employment. Regardless, the most common element that all courts look for in these relationships is the right of “control” as to the means and manner of the job. 

The IRS offers two key points to clarify how to understand the dynamics that define an employee compared to an independent contractor. 

As we said, the first is control. If the business controls what a person does and then directs how it is done, that is considered a type of behavioral control. Financial control is also a consideration if the business dictates particular aspects of the tasks. That includes

• Level of instruction
• Amount of training
• Degree of business integration
• Method of payment
• The furnishing of work tools and other materials
• Ultimate control over the work environment and where work is completed
• The right of discharge

While this list is by no means exhaustive, it should provide all parties with a firm understanding of the factors which go into an independent contractor/employee relationship determination.

A second factor is the relationship between the two parties and any contractual obligation or benefits associated with the employment.  The factors, for the type of relationship between two parties, generally fall into the categories of:

• Written contracts
• Employee benefits
• Permanence
• Services provided  

Again, this is not a definitive list, but it should offer some clarity in terms of an established relationship between an employee or independent contractor and their employer. 

If you have any questions about your status as an employee or independent contractor, please contact our team today. 

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, Ohio workers’ compensation, Social Security Disability, and personal injury/medical malpractice. Our law firm and individual law firm members appear on lists of the best law firms and attorneys in the nation.

Tags: Employee, Independent Contractors, Workers' Compensation
Posted in News & Media, Workers’ Compensation | No Comments »

Last week, law firms Barkan Meizlish DeRose Cox, LLP and JTB Law Group, LLC filed a class and collective action against S & E Flag Cars, LLC (“S & E”), a Kentucky limited liability company in the race track operations business.  The lawsuit, Perkins et al. v. S & E Flag Cars, LLC et al., was filed in the United States District Court for the Southern District of Ohio as a class and collective action on behalf of all non-exempt current and former employees of S & E over the past three years.  Under Ohio and federal wage and hour law, nonexempt employees must be paid at least the minimum wage for all hours worked, plus overtime pay at a rate of one and one half times the regular rate for hours worked in excess of 40 in a workweek.  The Complaint asserts that S & E violated the Fair Labor Standards Act (“FLSA”) and the Ohio Minimum Fair Wage Standards Act (“Ohio Wage Act”) by failing to pay Plaintiffs overtime compensation at a rate of one and one half (1.5) times their regular rate of pay.  Plaintiffs seek to recover monetary damages, liquidated damages, and costs, including attorney’s fees, for themselves are all others similarly situated.

Barkan Meizlish DeRose Cox, LLP focuses on wage and hour litigation, workers’ compensation, Social Security disability, and personal injury/medical malpractice.  Over the past fifty years, Barkan Meizlish DeRose Cox, LLP has represented the rights of working people on and off the job through representation of labor unions, individual employees, and the injured and disabled.  The lawsuit was filed by attorney Bob DeRose (bderose@barkanmeizlish.com).  Learn more at www.barkanmeizlish.com, or visit our Facebook page at https://www.facebook.com/pages/Barkan-Meizlish-Handelman-Goodin-DeRose-Wentz-LLP/197862930238456.

[social_share style=”square” align=”horizontal” heading_align=”inline” facebook=”1″ twitter=”0″ google_plus=”1″ linkedin=”1″ pinterest=”0″ /]

Tags: FLSA, Overtime Violations, Wage & Hour
Posted in News & Media, Wage & Hour/Overtime Violations | No Comments »

Workers frequently work over 40 hours a week in this rapidly growing industry, sometimes even up to 100 hours per week. With much of the work sub-contracted out to smaller companies, the structure of the oil and gas industry certainly makes it “an industry ripe for noncompliance,” as stated by Dr. David Weil, administrator of the Wage and Hour Division. Investigators for both state and federal government agencies have specifically targeted this industry over the past few years.  By August of last year, the Department of Labor’s investigations resulted in over $13 million in back wages to over 9,100 employees. There are numerous jobs in this industry that may be entitled to overtime pay, including compressor operators, roustabouts, pumpers, directional drillers, service supervisors, oilfield delivery specialists, rig operators, instrument fitters, electricians, mechanics, and truck drivers.

Employers can use many different tactics to avoid paying the required minimum wage and overtime pay to employees.  You should be aware of 3 common violations:

1. Misclassification. One major issue facing oil and gas workers is misclassification—where employers treat full-time nonexempt employees as independent contractors to avoid the overtime obligations under the FLSA. Keep in mind that your day-to-day job duties and actual employment relationship determine whether you are exempt from overtime pay, not your job title.  To make this determination, courts will look to: the degree of control your employer exercises over you, the skill required for your job, whether the services you provide are an integral part of the overall business, and your investment in any materials or equipment.

2. Travel time.  Workers will often travel from drill site to drill site   For example, employees working in the field may be required to report to a central office location at the beginning and end of each shift, but travel to various assignment locations throughout the day. These employees should be compensated for all travel from the time they leave the central office location until they return at the end of their shift.

3. Day-rate plans. Workers paid on a day rate basis receive a flat rate per day, regardless of the number of hours worked.  But this does not eliminate your employer’s obligation to track hours or pay overtime compensation—this common method of payment may still violate the FLSA if nonexempt employees do not receive time-and-a-half for hours worked over 40 a week.

Questions? Learn more at www.barkanmeizlish.com. Unpaid Wages Attorney Columbus Ohio
Source: WHD News Release, US Labor Department helps more than 5,300 Pennsylvania and West Virginia oil and gas workers recover $4.5M in back wages for unpaid overtime (Dec. 9, 2013) http://www.dol.gov/opa/media/press/whd/WHD20141883.htm   

Tags: Misclassification, Overtime Violations, Wage & Hour
Posted in News & Media, Wage & Hour/Overtime Violations | No Comments »