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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LAYOFFS AND FURLOUGHS DUE TO COVID-19 IN OHIO: WHAT ALL EMPLOYEES NEED TO KNOW.

Employers across Ohio are closing their operations due to Gov. DeWine’s declaration of a state of emergency and the “Shelter in Place” Order.  While the emergency declaration and the “Shelter in Place” Order are necessary to #flattenthecurve, many Ohio businesses are reducing their workforce due to the coronavirus pandemic through layoffs, furloughs, reductions in hours, and pay cuts. The business decisions an employer makes have different impacts on its employees.

If you have been laid off, furloughed or had a reduction in hours, you have important rights.

OHIO UNEMPLOYMENT BENEFITS

The emergency declaration expands unemployment coverage in Ohio until the emergency declaration is lifted.

• If you are quarantined due to COVID-19 you are eligible for unemployment benefits.
• The one week waiting period to file for unemployment benefits has been waived so an unemployed worker can file for benefits immediately upon being separated.

The online form to apply is found at: http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/. Applying online will help expedite your application.

If you are working, but have a reduction in hours, you may still be eligible to apply; however, your earnings will be deducted from your maximum benefit amount. This means if what you earn in a week with reduced hours is more than your state maximum benefit, you will not receive unemployment. Maximum Weekly Benefits are:

• The emergency declaration has waived the requirement that a person receiving unemployment benefits is “actively seeking work.”

THE CORONAVIRUS AID, RELIEF, AND EMERGENCY SECURITY ACT

The federal Coronavirus Aid, Relief, and Emergency Security Act or the “CARES Act” that passed on March 27, 2020 impacts your unemployment benefit entitlement and Maximum Weekly Benefits. Under this federal stimulus law, if you have an unemployment claim in Ohio, you are entitled to an additional weekly $600 Federal Pandemic Unemployment Compensation payment on top of existing state unemployment benefits for a maximum of thirty-nine weeks, subject to further extension rules. Further, sick employees who have the coronavirus can also collect unemployment if they are not receiving paid leave benefits.

The CARES Act mandates extension of unemployment coverage to an individual who is otherwise able to work and:

1. who is not eligible for regular compensation or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
2. who has exhausted all rights to regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
3. who is unemployed, partially unemployed, or unable or unavailable to work because the individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
4. who is caring for a household family member who has been diagnosed with COVID–19;
5. who is primary caregiver for a child or other person in the household who is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and this prevents work;
6. who is an employee or new hire that is unable to reach the place of employment because of a COVID-19 quarantine or health provider self-quarantine;
7. who has become the breadwinner or source of major support for a household because the head of the household has died from COVID–19;
8. who has to quit his or her job as a direct result of COVID–19 due to closure of the place of employment; or
9. who is self-employed, is seeking part-time employment, does not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation.

WAGE AND HOUR CONSIDERATIONS

No pay means no work.

If you have had your normal work hours reduced, your employer cannot require you to do any work outside of those reduced hours without you getting paid for it.  In other words, if an employer asks an employee to do any work during the reduced hours, then the employee must be compensated for that time.   Things like answering emails, taking phone calls, picking up mail, etc. are all work activities for which employees must be compensated.

Wages

An employer cannot reduce an hourly employee’s pay below the Ohio minimum wage which is currently $8.70 per hour.  Employers cannot reduce a salaried employee’s weekly wage below $684 per week.  Both of these are still violations of the Fair Labor Standards Act and the Ohio Wage Act.

Payment

The Ohio Prompt Pay Act remains in effect.  Employers must still pay employees at least on a bi-weekly basis and cannot make an employee wait more than 30-days for their paycheck.

NEW FAMILY MEDICAL LEAVE RIGHTS AND PAID SICK TIME

On March 18, 2020, the federal Families First Coronavirus Response Act (FFRCA) became law.  The law includes two new important provisions for Ohio workers: 1) an emergency expansion to the Family Medical Leave Act (FMLA) and 2) a new Emergency Paid Sick Leave Act that requires paid leave for employees forced to miss work because of the COVID-19 outbreak in certain circumstances:

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

• Applies to private employers with fewer than 500 employees and to all public employers that are covered by the FMLA regardless of size.
• An employee is eligible after he or she has been employed for at least 30 calendar days before the first day of the leave.
• Employees are entitled to 12 weeks of protected leave if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. A public health emergency means an emergency with respect to COVID-19 declared by a federal, state, or local authority.
• The first 2 weeks of leave are unpaid, but an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
• After the first 2 weeks, leave is paid at two-thirds of the employee’s usual pay, with a cap of $200 per day. For employees with schedules that vary from week to week, a six-month average is to be used to calculate the number of hours to be paid. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work.
• The Secretary of Labor is empowered to issue regulations to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave, and to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.

EMERGENCY PAID SICK LEAVE ACT

Requires private employers with fewer than 500 employees and public employers regardless of size to provide up to 80 hours of paid sick leave to employees on top of what the employer now provides (if any). This new paid sick time applies to employees who are unable to work, or telework, because the employee:

1. Is subject to a federal, state or local quarantine or isolation order.
2. Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
3. Is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. Is caring for an individual who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine as described above.
5. Is caring for his or her child whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 precautions.
6. Is experiencing any other substantially similar condition specified by the Secretary of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

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Fighting the ALJ’s Decision

Picture this: you have made your way through the long disability determination process. Finally, you have had a hearing in front of an Administrative Law Judge (ALJ). But unfortunately, the ALJ’s decision is not in your favor, and your claim was denied. You may find yourself asking- what now? At this point, Social Security gives you a couple of choices.

The ALJ Denied My Social Security Benefits – What Are My Options?

Option 1:

Your first option is to appeal the ALJ’s decision to the Appeals Council. The Appeals Council  is another component of the SSA, with its headquarters located in Falls Church, VA. The appeal must be filed within 60 days of the ALJ’s decision. You don’t get another hearing at this level. Rather, the Appeals Council will review the ALJ’s decision, the evidence in your claim file, and legal arguments submitted by your attorney in support of the appeal. The Appeals Council will then make a new decision.

The Appeals Council may uphold the ALJ’s decision and deny your claim again. Alternatively, it may reverse the ALJ’s decision and send your claim back to the ALJ with instructions to take another look at it. This is called a remand. Lastly, the Appeals Council may reverse the ALJ’s decision decision enitrely and award benefits to you directly. Because the Appeals Council handles appeals from ALJs all over the nation, it usually takes 12 to 18 months to receive a decision. For full details on the appeals process, you can check out the SSA’s website.

Option 2:

Your second option is to file a new application for benefits. Social Security no longer allows you to file an appeal and a new application at the same time, except under limited circumstances.

The best decision for you depends on several factors, including the strength of the evidence in your claim; whether you continue to be insured for the disability benefit; the ongoing state of your health; and of course any legal mistakes the ALJ may have made in denying your claim.

This decision is best made in consultation with a Social Security Disability Insurance Attorney who is familiar with your case and can advise you as to your options.

Originally published on December 2nd, 2015

Tags: Social Security
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What Does Onset Date Mean?

Simply put, an onset date is a date that you initially sustained an injury or became disabled. This is something that plays a significant role in your SSI approval and back pay amount and can make or break your Social Security Disability case. If you need assistance in determining your onset date you should consult with a reputable disability lawyer like those here at Barkan Meizlish LLP. 

Determining the onset date for a disability involves the consideration of your allegations, work history if any, and any medical and other evidence concerning the severity of your medical condition. There are two distinct onset date classifications that you need to understand when dealing with SSI disability. AOD, or alleged onset date, is the date you will provide the social security administration when applying for your benefits. The EOD, or established onset date, is the date in which the social security administration has established the start of your disability.

Alleged Onset Date

Your alleged onset date is the date that you submit to the SSA when filing your claim. This is very important as it will determine the amount of backpay you are eligible to receive up to a maximum of 12 months worth. If the Social Security Administration approves your AOD then you will receive back pay starting 5 months after your AOD, to the day your claim was approved. For example:

• AOD is 1/1/2019
• Claim accepted 8/1/2019
• You receive back pay between 6/1 and 8/1 of 2019.

Established Onset Date

If the Social Security Administration disagrees with your alleged onset date then they may instead opt for a new later EOD, or established onset date. This can only be done if they have sufficient medical evidence proving that your onset date is later than the AOD you submitted. On the other hand, if the AOD is accepted and approved it effectively becomes the new EOD.

Disputing EOD

If you feel that the SSA has cheated you of some back pay then you can dispute the established onset date through the DDS, or Disability Determination Services. Upon this, the DDS will review the EOD and determine whether or not it is going to be upheld. 

Disputing an EOD should not be taken lightly as it may trigger a review of the disability determination and could potentially trigger a complete revocation of the disability ruling.  

Another thing to keep in mind is that if the EOD is still more than 17 months before the initial SSI claim then you won’t be losing any backpay and should refrain from disputing the EOD altogether. To prevent losing your benefits over a discrepancy in AOD and EOD, you should consult with one of our Columbus disability lawyers at Barkan Meizlish LLP.

Disability Lawyer Columbus, Ohio

Filing for SSI disability is a complex task that should not be taken on alone. You have already dealt with enough from your injury and trying to take on the entire Social Security Administration without the help of a professional will only make things worse.

If you need assistance in determining your AOD or disputing an unfair EOD then you need to contact the trusted disability lawyers here at Barkan Meizlish LLP. We will walk you through every step of your claim and ensure you get the monthly compensation you deserve.

If you have any question about your disability onset, our Social Security Disability Insurance and Supplemental Security attorneys may be able to help. Give Barkan Meizlish DeRose Cox, LLP a call today.

Originally published on May 13th, 2015.

Tags: Social Security
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To Our Clients, Co-Counsel, Defense Counsel, Friends and the Community:
 
At Barkan Meizlish DeRose Cox, LLP, protecting the health and safety of our personnel and their families and servicing the needs of our clients is of the upmost importance. Barkan Meizlish DeRose Cox, LLP is changing the way we do business while our communities, states and our nation deals with the global COVID-19 pandemic.  However, our commitment to providing outstanding client service remains unchanged.  

As of Wednesday, March 18, 2020 Barkan Meizlish DeRose Cox, LLP will close its physical offices and transition to a work-from-home operation.  The following measures have been implemented: 

1. Attorneys and staff are equipped to work remotely with full access to client files; 

1. Protocols are in place to ensure the confidentiality, privacy and safety of all records and data; 

1. On a rotating basis, personnel will come to the office to pick up and scan mail to the appropriate attorneys and staff handling your case; 

1. Communications can occur with attorneys and staff via email, telephone and video conferencing;  

1. In-person appointments, check disbursements and meetings will occur on a case-by-case basis; and, 

1. Canceled all non-essential business travel for our attorneys and staff. 

Our Management Team is closely monitoring the updates from the Centers for Disease Control and the Ohio Department of Health.  We will adjust our policies as events unfold and further guidance is given from the relevant agencies handling this global COVID-19 pandemic.
Sincerely,

 The Team at Barkan Meizlish DeRose Wentz McInerney Peifer, LLP

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“A fair day’s pay for an honest day’s work,” is such an ancient principle that versions of it appear in the Bible and even earlier writings. The concept was enshrined in U.S law during the 1930s with adoption of the Fair Labor Standards Act, or FLSA, which mandates the payment of a minimum wage and eligibility for overtime pay. The general rule for most people is that they earn overtime after they work more 40 hours over the course of a single week.

For nearly 90 years, employers have violated the FLSA. They commit wage theft and refuse to pay overtime in many ways, including

• Misclassifying employees as independent contractors,
• Miscategorizing hourly workers as managers,
• Forcing people to work off the clock,
• Docking pay excessively for supplies and policy violations,
• Promising but never authorizing comp time leave instead of paying overtime,
• Stealing tips,
• Miscalculating tips as part of the hourly wage, and
• Telling tipped employees they are not eligible for overtime.

The good news is that the FLSA gives workers the right to report wage theft and unpaid overtime. The process of compelling an employer to hand over back pay and compensatory damages often seems daunting, which is why we make our services available as wage and hour attorneys in Ohio.

Know the Rules

During 2020, Ohio set the minimum wage for the majority of workers at $8.70 per hour. Tipped employees could legally be paid $4.35 per hour as long as their tips ensured they averaged a pay rate of at least $8.70 per hour. If the tips come in short, the employer must make up the difference.

Individuals who work for U.S. government agencies in Ohio are guaranteed only the federal minimum wage of $7.25. At all types of employers, people who get paid by the hour and earn less than $455 per week can earn overtime at a rate that starts at 1.5 times their usual hourly pay.

Exemptions apply to eligibility for the Ohio and federal wage and overtime rules, however. For instance, managers and independent contractors do not have rights to demand the minimum wage or overtime. Speaking with an employee rights attorney when an employer says you are not covered by the FLSA can help clarify your situation.

Keep Track and Ask Coworkers

Rules put in place for enforcing the FLSA allow workers to ask their managers and supervisors about hours, wages, and overtime. It is also legal for coworkers to talk to each other about what they are being paid and to compare pay stubs. Such discussions among coworkers can identify patterns of wage theft and unpaid overtime that provide grounds for a collective or class action lawsuit.

As employee rights attorneys, we understand that workers may hesitate to exercise these rights to ask about and advocate for fair pay. Retaliation from managers happens far too frequently. The thing to remember is that penalizing, bullying, or firing a worker for raising issues related to wages is also illegal and can serve as the basis for a lawsuit.

Act Fast and Know Where to Report Wage and Hour Violations

The statute of limitations on filing claims for wage theft and unpaid overtime is two years. The clock starts ticking on the day of the last violation. When a claim is filed, all past instances of unfair pay can be part of the complaint.

Individuals who work under the laws of Ohio must contact the Department of Commerce’s Division of Labor and Worker Safety. Federal employees file their complaints with the U.S. Department of Labor’s Division of Wages and Hours.

Working with an Ohio wage and hour attorney can make going through the process and holding an employer accountable easier. The lawyer will know how to prepare and submit paperwork, and also how to obtain the corporate records that are needed as evidence. Gaining access to those records will be particularly important for determining whether it makes sense to pursue a collective or class action lawsuit.

You can schedule an appointment with a Columbus employment attorney at Barkan Meizlish DeRose Cox, LLP, by calling (614) 221-4221 or by connecting with us online. The initial consultation is free, and all communications with potential clients are kept strictly confidential.

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For some years now in Ohio, lawmakers have been working on a bill that would allow first responders to apply for workers’ compensation if they receive a PTSD diagnosis. The current legislature in Ohio states that in order to receive compensation for PTSD, a physical injury must also be present. This has historically prevented individuals, like first responders, who witness a traumatic event from receiving benefits despite having their lives impact and work inhibited. Several factors have caused push back on the bill for the last nine years. The anticipated increase in workers’ compensation costs by expanding the eligibility criteria has drawn skepticism, as well as fear of a snowball effect following the expanded guideline.

That all being said, this expansion would allow for many workers affected by PTSD to apply for potentially life-saving benefits. The bill passed in the House on February 12^th, 2020 and is scheduled for consideration in the Senate.

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