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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Can An Administrative Law Judge Use Social Media as Evidence?

Social media constantly evolves. Keeping up with social media developments can be a huge task. Lawmakers and attorneys have a responsibility, within reason, to keep up with these changes. They may impact existing laws and regulations. Some changes can even lead to the creation of new laws. We previously reported that Facebook posts could be used in an ALJ’s decision on your Social Security Disability claim. However, the law continues to evolve. Now, there are some limitations on an ALJ’s ability to use your social media as evidence.

Updated Laws and Guidelines

Recent guideline changes impact how ALJ’s use social media in their rulings. The Social Security Administration guidelines state that, “adjudicators and hearing office staff must not use Internet sites and social media networks to obtain information about claimants to adjudicate cases.” This means that an Administrative Law Judge cannot use your social media as evidence against you. There are exceptions to the rule. These exceptions involve the Cooperative Disability Investigation Unit (CDIU). If a CDIU investigation finds social media content as appropriate evidence, it can be used by an ALJ in their decision-making. Your ALJ should not use your social media to directly rule against your SSDI claim unless approved to do so.

Responsible Social Media Usage

At the end of the day, however, social media posts can be more public than intended. You never know who is looking at your content, or when a post will come into question in a court of law. Take it from our Social Security Disability Attorney, Mindy Yocum:  “Never post anything on social media that you would not want read aloud in court!”

If you are filing a Social Security Disability Insurance claim, and need guidance through the process, give us a call today.

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No Ohio employee rights attorney can guarantee the outcome of an unpaid overtime lawsuit.

Winning is not a sure thing, and the amount of money that can be claimed in the event of succeeding at trial or negotiating a settlement depends on too many factors to calculate accurately. So, we will never be able to tell anyone precisely how things will end.

However, we understand that clients in unpaid wage cases want to know what they should expect to go through when they sue their current or former employee. That is a question we are prepared and happy to answer.

Still, we cannot include every detail here, and your situation may present some unique challenges we have not anticipated. Please contact us online or call Barkan Meizlish DeRose Cox, LLP at (614) 221-4221 to schedule a free confidential consultation if you need more information or wish to pursue an unpaid overtime lawsuit.

First, Know Whether You Have Grounds to File an Unpaid Overtime Lawsuit

Under a federal law called the Fair Labor Standards Act (“FLSA”), hourly workers who do not manage other employees and who earn less than $455/week ($35,568/year) are eligible to earn overtime pay. The legally mandated overtime pay rate is 1.5 times the eligible employee’s hourly wage, and overtime starts after an employee has worked 40 hours during a 7-day workweek.

Nearly all employees who traditionally receive tips, such as wait staff and bartenders, are eligible to earn overtime, but are also often eligible to be paid a lower hourly rate. On the other hand, some skilled professionals and salespeople who get paid hourly are not eligible. The rules regarding exemptions from overtime eligibility become pretty complicated pretty quickly. Feel free to ask an unpaid wage attorney if you are unsure whether you meet the criteria for earning overtime.

Consider Talking to Your Coworkers or Former Colleagues

Employers use a variety of tactics to deny overtime pay. A few of the most common are

• Misclassifying employees as managers or nonemployee independent contractors,
• Telling employees they must work unpaid overtime in order to keep their jobs,
• Inappropriately counting tips as a component of hourly pay, and
• Playing games with comp time in lieu of paying overtime.

Checking with coworkers or the people they used to work with to learn if such problems are occurring will give a worker a sense of whether they have grounds to file an unpaid overtime lawsuit. Also, groups of people who worked for the same employer can join together to take collective legal action against a company that underpaid them. Collective actions can have a great chance of succeeding in court than lawsuits filed by individuals.

Understand That There Will Be a Lot of Paperwork

Proving that an employer violated overtime rules requires collecting and analyzing pay stubs, timesheets, corporate records and internal communications between supervisors and managers. An attorney who has experience in handling unpaid wage cases will know how to compel an employer to share all the necessary information. It will also be helpful for you to gather any documents that have your pay or time information on them and provide them to your attorney as soon as possible.

Do Not Be Surprised if Your Employer Pushes Back

Federal employment regulations call demanding fair pay for all the hours that one works “engaging protected activity.” It is illegal for an employer to retaliate against an employee who engages in protected activity, but it is not uncommon.

Data released by the U.S. Equal Employment Opportunity Commission in February 2020 show that retaliation was the number-one complaint the agency received during the previous fiscal year, accounting for nearly 54 percent of the cases. When supervisors and managers harass, insult, demote, or fire an employee who files an unpaid overtime lawsuit, that employee also has the right to file a workplace retaliation lawsuit.

Recognize That the Hassle Can Be Worth It

A worker who wins their unpaid overtime lawsuit receives the payments they were originally denied, interest on the back pay, and other monetary damages. The court may also issue orders for the company to improve its pay practices or face further fines.

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Salaried Employees Can Be Either Exempt or Not Exempt

There is a common misconception that “salaried” means “exempt” under the Fair Labor Standards Act (“FLSA”) or Ohio wage laws. ^[1] While many exempt employees are salaried,^[2] not all salaried employees are exempt. This results in underpayment for employees who are entitled to at least minimum wages for all hours worked, and overtime pay for hours worked in excess of 40 in a workweek.

Overtime for Non-Exempt Employees

Overtime pay is calculated at a rate of one and a half an employee’s “regular rate”. If a non-exempt employee is hourly, then the regular rate is usually their hourly rate. If the non-exempt employee is salaried, the regular rate is their hours worked in a workweek divided by the amount of salary attributed to that workweek. The regular rate should also be used for purposes of calculating such things as non-discretionary bonuses or safety incentive payments.

While a thorough consideration of all the facts may lead to the ultimate conclusion that your are indeed exempt, you should not automatically accept an “exempt” status simply because you are a salaried employee and/or because your employer says so.

Salaried employees whose hourly pay per week ends up being less than the required $7.25/$8.70 should call us at 800-274-5297.^[3]  Additionally, employees who work more than 40 hours in a workweek but do not receive an overtime can also reach out.  Remember, it is unlawful for an employer to retaliate against you for asking questions about your hours worked and wages paid, exercising your rights under the FLSA and/or Ohio wage and hour laws.

[1] Note that this is not the same “exemption” as used concerning your taxes. See for example Withholding Exemptions – Personal Exemptions – Form W-4

[2] See for example DOL Fact Sheets 17a and 17g.

[3] This post was first published in 2017. The Ohio minimum wage was $8.10 at the time. Updates reflect the 2020 minimum wage in Ohio.

(This Notice is for informational purposes. It is not legal advice).

Originally published on June 14th, 2017

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Call Center Employees Affected by Wage Theft

In today’s age of technology and convenience, customer service is often only a phone call or instant message away. With an increasing consumer demand for faster support and quicker turnaround times, it seems that more industries than ever have turned to call centers as a means to provide streamlined service to their customers. Call center employees are essential service providers for customers in need of guidance. Sadly, mistreatment is common.

Unfortunately for Customer Service Representatives (“CSRs”), call centers are one of the most common places for companies to commit wage violations, These violations can be accidental or intentional, depending on the centers management. Under the Fair Labor Standards Act (“FLSA”), covered nonexempt employees are entitled to receive minimum wage for all hours worked, and overtime compensation at one and one-half times their regular rate of pay for all hours worked in excess of 40 in a workweek.

Today, numerous call centers across a variety of business channels call central Ohio home, including Teleperformance, Call Management Resources, ContactUS Communications, and Total Quality Logistics all operate facilities in the Columbus area. Nationwide, Verizon, DISH, JPMorgan Chase, and Randstad also operate centers in the surrounding vicinity.

FLSA Violations and Call Centers

When centers expect their employees to perform unpaid “off-the-clock” work, problems arise. This type of work is a direct violation of the FLSA. Call center employees must receive paid for time spent performing everyday duties. These duties include:

• turning on/off computers
• logging in to programs
• making pre- or post-call notes
• attending work-related meetings
• working through lunch
• participating in work-related training

If you work in a call center and are not being properly paid wages you have earned, an attorney can help. You can call 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. The team at Barkan Meizlish DeRose Cox, LLP is here to help.

originally published on March 13th, 2018

Tags: Employee, FLSA, Ohio, Wage & Hour
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