ADA Accommodations During COVID-19

For many Americans,returning to work amidst the COVID-19 crisis causes concern for the health and safety of themselves their families. Since the declaration of a global pandemic, America’s most vulnerable citizens have been at the forefront of conversation about preventing the spread. Many “healthy” citizens are not considered at-risk for COVID-19, while those with pre-existing conditions are especially susceptible. Nevertheless, America is re-opening its economy. This leaves individuals with disabilities and pre-existing health conditions in an unwinnable battle. Should they attempt to return to work despite their condition or continue to stay home and risk income? Will the Americans with Disabilities Act (ADA) help them?

Limitations of the ADA

We recommend that if you have health and safety concerns, you express those concerns in writing to your employer. If you have an underlying medical condition or care for someone who does,  contact your doctor to ask about accommodations under the ADA.

The ADA prevents employers from denying employment based on an individual’s status as disabled. The ADA also calls for employers to provide sufficient accommodations for those individuals. New difficulties will continue to rise for disabled individuals during the COVID-19 pandemic and foreseeable future. Employment laws in America are about to undergo an unprecedented wave of new applications, potential violations, and changes. How can employees trust their employer will respect and comply with laws, when the laws themselves are not necessarily equipped to protect them in these uncertain times?

What’s Next?

It is hard to give an affirming answer to employees during uncertain times. However, workers can contact the Occupational Safety and Health Administration to file a complaint if their employer is not adhering to safe practices and may explore the possibility of a workers’ compensation claim if the worker contracts the COVID-19 as a result of returning to work at the employer’s insistence.

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Updates for DACA Recipients in 2020

On June 18, 2020, another long-awaited Supreme Court ruling regarding the status of those participating in the Deferred Action for Childhood Arrivals (DACA) program was decided. The decision was made up of a variety of different elements including holding that the Trump administration did not properly terminate the existing DACA program, that DACA program as of the decision will be completely restored as it existed prior to the rescission in 2017, and, most importantly, that current DACA recipients will continue to be protected from deportation and have their employment authorized. Also, new DACA applicants will be able to apply for deportation protection and employment authorization as soon as the DHS implements the Supreme Court decision.

The much-deliberated DACA recipients are undocumented individuals that were brought into the United States as children under 16. Individuals that qualify for the program receive a renewable two-year period of deferred action from deportation and will become eligible for a work permit. To qualify for the program, recipients cannot have felonies or serious misdemeanors on their criminal records as well as must have completed certain educational requirements. It should be noted that individuals in the program don’t necessarily receive citizenship status through participation in DACA, just the deferral of deportation actions.

The program was started in 2012 under President Obama amidst an elevated amount of undocumented high school graduates in the US. Presently, approximately 700,000 people nationwide are participants in the DACA program and 3,880 of them live in Ohio alone. The Supreme Court decision regarding the program arose from President Trump attempting to completely rescind the program through an Executive Order in September of 2017.

The 5-4 decision comes as good news for some employers as they can continue to legally employ DACA recipients. However, DACA participants should note that they need to file timely applications to renew their protections.  The decision still raises some questions. The Supreme Court did not discuss or decide on the general legality of DACA.  Because of this, the decision essentially reads as saying that DACA participants are safe in the United States “for now” and leaves open the possibly for another decision to change the status of the DACA program and its participants in the future.

– Audrey Bidwell

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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.

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Recent Law Changes and LGBT Worker Protections

Using the Civil Rights Act of 1964, the Supreme Court ruled that it unlawful to discriminate against an employee on the basis of their sexuality and gender identity. Now LGBTQ+ workers have a legal recourse to pursue workplace discrimination claims, even in states that do not already have protections in place. The 6-3 decision was a consolidation of three cases: Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC. The majority ruled this way as they reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

To prove an employment discrimination claim, an employee must prove either disparate treatment or discriminatory harassment. Generally, this means an employee must prove they are a member of a protected class, that their employer or workplace harasser knew that they were a member of a protected class, that they were harmed by the actions of their employer or harasser, and finally, that others of that class were similarly treated or that the harassment was because of their status as a member of a protected class. The Supreme Court also held that although there can be multiple “but for” causes of employee discrimination, termination, or harassment, if any of them are because of a protected classification then there has been a violation of federal law.

This landmark case will be a drastic change for the 27 states that prior to this decision did not prohibit discrimination on the basis of sexual orientation or transgender status. These states include: Arizona, Michigan, Florida, Georgia, Ohio, Pennsylvania, and Texas. This may mean employers in these states will need to offer new anti-discrimination training and update their employee handbooks regarding gender and sexuality issues in the workplace.

However, this decision does not provide all the answers that employees will need regarding gender and sexuality-minorities in the workplace. The Supreme Court themselves noted there will likely be more cases in the future that further addressing the extent and influence of this opinion. For example, the disputes over restrooms and other gender-specific facilities being available for transgender employees may still be an issue as well as mandating certain healthcare benefits for transgender employees and potential religious liberty claims.

-Audrey Bidwell

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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 [“the Ohio Wage Act”], O.R.C. §§4111.01., 4111.03 and 4111.10, and the Ohio Prompt Pay Act [“the OPPA”].

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.

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Changing Workplace Culture during COVID-19

As with most aspects of life, COVID-19 has changed the daily routine of many workers. Today, the average worker is usually asked to have their temperature checked before beginning their workday. While the effectiveness of the practice in preventing the spread of the virus is debatable, the practice is currently required by many employers. Currently, the Equal Employment Opportunity Commission, a federal agency that enforces civil rights in the workplace, has stated that while conducting temperature checks does not violate the Americans With Disabilities Act, it may violate the Fair Labor Standards Act (FLSA) and some state employment compensation laws.

These temperature checks may be a violation of the FLSA because employees who have to spend several minutes waiting their turn for the check may be uncompensated for this time. The FLSA states that activities that are an “integral and indispensable part of the principal activities” of an employee are compensable. While activities that are preliminary and postliminary to principle activities are not compensable under the FLSA. When an employee cannot perform his “regular” job without first engaging in the preliminary activity, then the preliminary activity becomes ‘integral and indispensable’ and therefore compensable.

Temperature Checks and Compensation

These temperature checks could be argued to be ‘principle’ or ‘preliminary’ depending on your perspective. Time spent by employees putting on and taking off protective gear and walking between their work station and the protective gear changing areas were both deemed compensable activities. So, if we could liken the temperature check to being a protective measure against infecting their fellow employees like putting on protective gear would likely be a principle and compensable activity. However, the Supreme Court has ruled that time spent waiting to put on protective gear is not a compensable activity. Since waiting in line for the temperature check will likely be the most time-consuming activity, this activity may be considered preliminary and non- compensable.

Depending on how the federal or state courts rule on this issue, employers could face potential wage and hour claims related to this activity. It may be most advisable to employers to compensate the temperature checks before this becomes a litigated issue.

– Audrey Bidwell

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Answering whether the Social Security Disability Insurance (SSDI) program works for Ohio residents with long-term disabilities requires specifying what you mean by “work.” It helps people who have few other means of support, but qualifying for SSDI benefits grows more difficult each year.

3 Ways That Social Security Works for People With Disabilities

Thousands of Ohioans rely on SSDI as a literal financial lifeline. While federal permanent disability benefits are not generous, receiving SSDI payments is the only thing that makes it possible for many people to afford housing, food and other necessities. Without SSDI, long-term care facilities would be overwhelmed, homelessness and hunger would worsen, and the amount of human suffering would be incalculable.

SSDI also works in the sense that it is open to nearly all U.S. citizens who have paid into the Social Security system while working. Children whose parents have established Social Security eligibility also have access to federal disability benefits.

A third way SSDI can work for people in Ohio who are too disabled to work is that the program recognizes all types of disability. People in Ohio can qualify for Social Security disability payments regardless of whether a physical, mental, intellectual, or emotional problem leaves them unable to hold a job.

3 Ways That SSDI May Work Against People With Disabilities

Getting approved to receive federal disability benefits is often difficult. Applicants must complete reams of paperwork, submit large amounts of medical documentation, and pass an assessment performed by a doctor chosen by the Social Security Administration. A large proportion of first-time applications for SSDI benefits are rejected, and appealing a rejection takes considerable time and effort.

A second problem is that a significant number of people will never be eligible for federal disability benefits at all. SSDI is only available to people who pay into Social Security. In Ohio, state employees such as public school teachers, police, professional firefighters, and civil servants do not have Social Security contributions withheld from their paychecks. State employees who never hold a private sector job cannot qualify for SSDI benefits. Instead, those individuals must rely on their pension plans if they become too disabled to work.

Last, Social Security requires longtime SSDI benefit recipients to reaffirm their need for disability payments. Completing that process involves submitting to another assessment, sending in new medical documentation and, possibly, appealing a suspension of benefits.

Since the SSDI program has limited funds, it looks for reasons to deny or stop paying benefits. It may do so by rejecting an initial application, strictly applying eligibility rules, or deciding that a long-term disability has become manageable to the point that a current beneficiary can return to work. In those ways, the Social Security disability program definitely works for itself rather than people with disabilities.

At Barkan Meizlish DeRose Cox, LLP, our Social Security disability attorneys work exclusively for our fellow Ohio residents. We are available to help with every stage of the SSDI application, appeals, and recertification process. We also offer free consultations to all potential clients. If you need assistance, call (614) 221-4221 to speak with a lawyer or schedule an appointment online.

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New FLSA Rules Rolling Out This Summer

Recently, the U.S. Department of Labor (DOL) released two new rules relating to overtime calculations and employee compensation under the Fair Labor Standards Act (FLSA).

Change to the Calculation of Overtime for Salaried Workers

Under the FLSA, there are two ways to determine overtime calculations, the “time and a half” method and the “fluctuating workweek” (FWW) method. The latter method is used when an employee receives a fixed salary for working fluctuating hours rather working on an hourly basis. FWW calculates a salaried employee’s overtime by computing the employee’s regular rate of pay each week based on the employee’s hours worked for that week. The new DOL regulations regarding DWW determine that all bonuses, premium payments, and other pay (such as commissions, hazard pay, or nighttime differentials) are included in the calculation of the FWW employee’s regular rate of pay for the purpose of calculating overtime.

This change may mean that salaried employees will see an increase in their overtime pay. However, it may also potentially hurt salaried employees because employers may choose to reduce an employee’s fixed weekly salary and shift considerable portions of an employee’s to bonuses and other forms of payment, all while the employees are averaging the same number of hours throughout the year.

Change to the Compensation of Commissioned Retail and Service Employees

Under the FLSA, commissioned employees working in a retail or service establishment may be exempt from receiving overtime pay. An employee falls within this exemption if they work for a “retail or service establishment,” if their regular rate of pay is in excess of one and one-half times the minimum wage, and if more than half of their compensation was derived from commissions earned from the sale of goods or services.

The most difficult part in determining if an employee fell within this exemption was determining if an employee was a ‘retail’ employee as the FLSA does not define what qualifies as a “retail or service establishment.”  In an attempt clarify if an individual worked in a retail establishment, the Wage & Hour Division of the DOL issued non-exhaustive lists of establishments that did and did not qualify as ‘retail’ under the FLSA.  However, because these lists were often vague, confusing and contradictory they were removed by the DOL. This update to regulation is effective on May 19th and will call for businesses to reevaluate whether they are considered ‘retail’ without the lists for guidance. This may lead to many businesses that formerly viewed themselves as ineligible for the exemption to begin implementing it on their commissioned employees.

Again, this change has the potential to both help and hurt employees depending on how their employers choose to implement the updates. In the worst cases, employees that long considered themselves to be safely outside of the “retail or service” work designation may begin to be considered within it according to their employer and lose the overtime pay they relied upon.

Overall, these updates could be simplifying and beneficial to employees in their shift to a more flexible, COVID-attuned work schedule. If you still have questions about how you may be impacted by these rules, a Wage & Hour attorney can help.

– Audrey Bidwell

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Typing “average workers’ compensation settlement for a back injury in Ohio” into Google or another search engine will return a few dollar amounts. However, the numbers are unlikely to be very accurate for an Ohioan who suffered a back injury on the job.

The reality is that many factors go into determining what constitutes a fair and acceptable settlement amount. The Ohio Bureau of Workers’ Compensation and the injured worker will have to ask and answer some questions, including:

• How much has treatment and therapy for the back injury cost to date?
• How long will the injury and its symptoms require treatment and therapy?
• How much will ongoing treatment and therapy cost?
• How long did the worker spend off the job while recovering?
• Has the worker been medically cleared to return to their job?
• Has the worker already resumed working?
• Are any replacement wages still due?
• Is any lump sum settlement for an amputation, loss of use, or some other permanent injury due?
• Is the injury so serious that returning to work seems unlikely and that disability benefits from Social Security or the Ohio Public Employees Retirement System are possible?

A workers’ compensation claim can be settled at any time, even before the claim is allowed. However, an employer cannot force its employee to settle a claim. Nor can an employer retaliate against a worker who reports an on-the-job injury.

The injured worker has an undeniable legal right to seek the advice of an experienced and knowledge employee rights attorney while considering these questions. But the final decision on whether to accept a settlement offer from the workers’ compensation program rests entirely with the individual.

One More Consideration

A related issue will be whether the person who suffered a back injury on the job could have grounds for filing a personal injury claim against a party other than their employer. What lawyers call third-party claims can be filed against those other than co-workers whose negligence causes an injury such as drivers who crash into company vehicles, makers of defective tools, and contractors who failed to comply with electrical and building codes.

A settlement of  the workers’ compensation claim will not affect an injured employee’s right to pursue a third-party claim. However, knowing that a personal injury settlement or jury award is possible could influence an individual’s willingness to conclude their dealings with, and reliance on, workers’ compensation for the payment of medical and therapy bills.

A third-party claim arising from a work-related injury has the same burden of proof as any other personal injury case. To succeed in securing a settlement or winning jury award, the injured person must produce evidence that the defendant’s negligence caused their injury resulting in damages. In the third-party claim, the damages include pain and suffering which are not available in the workers’ compensation claim.

Attorneys with Barkan Meizlish DeRose Cox, LLP, are available to help with Ohio workers’ compensation and personal injury cases in Columbus and across the state. You can schedule a free consultation online of speak with a lawyer directly by calling (614) 221-4221.

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Economic Impact Payments: Non-Filer Need to Knows 

The United States Federal Government has officially started rolling out Economic Impact Payments to eligible citizens. If you filed 2018 and 2019 taxes, and opted for direct refund deposits, your check should be direct deposited. If you opted to have your refund mailed, your stimulus check will be mailed to you.  However, if you did not file taxes in 2018 or 2019, you may be confused about what steps you need to take.

Most recipients of Social Security Disability Insurance, Social Security Retirement, or survivor benefits will receive benefits automatically. On the other hand, some recipients of Federal aid programs are not eligible for the same automatic relief. Groups that do not qualify for automatic relief include:

• Individuals who receive veteran’s disability compensation,
• A pension, or
• Survivor benefits from the Department of Veterans Affairs, or
• Individual’s whose income level was lower than federal tax filing requirements

If you fall into any of the above categories, you must take additional steps to receive your economic impact payment. Here is what you need to do!

First, please visit THIS page. You will be able to fill out the required “mini” tax return form. This form is used instead of a traditional tax return form. After you create your account and submit your application, watch your emails.  Once completed, you will receive a confirmation email. Once you have completed these steps, the process for receiving your economic impact payment check will be in motion.

If you still have questions about how you may be impacted by these rules, a social security attorney can help.

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