Ohio and FLSA Overtime Attorneys – Non-exempt, hourly employee challenges Thor Industries and Airstream’s Failure to Pay All Overtime Wages Due when employees receive bonuses

Ohio and FLSA Overtime Attorneys file Collective and Class Action Lawsuit against Thor Industries, Inc. and Airsteam for their joint failure to fully pay all overtime wages due to their employees.

On March 1, 2018, the law firms of  Bryant Legal, LLC and Coffman Legal, LLC filed a First Amended Collective and Class Action Complaint against Defendants Thor Industries and Airstream (collectively “Thor”) on behalf of an hourly production employee of Thor and Thor’s other similarly situated employees regardless of location for the alleged failure to fully and properly compensate its employees for all overtime wages in violation of the Fair Labor Standard Act (“FLSA”).  Contact an Ohio and FLSA Overtime Attorney at Bryant Legal, LLC today for more information.

In particular, the amended complaint alleges that Thor compensates its employees an hourly wage for each hour worked. In addition to their hourly wages, the amended complaint alleges that Thor pays employees additional nondiscretionary bonuses, such as weekly attendance bonuses. When calculating its employees overtime rate, the amended complaint alleges that Thor pays employees one and one-half times their hourly rate of pay, rather than one and one-half times their regular rate of pay as required by the FLSA. The amended complaint alleges that Thor improperly excludes the nondiscretionary bonuses from the employees’ regular rate of pay calculations. By way of example, let’s assume a Thor employee was paid $10 per hour and worked 50 hours per week, but also received a $100 attendance bonus. Here is how the employee would be paid based on the hourly rate of pay compared to their regular rate of pay:

  • Incorrect Calculation
    • How an employer improperly paying an employee at one and one-half times the employee’s hourly rate of pay would compensate the employee:
      • $10 per hour x 1.5 = $15 per hour for overtime hours worked. This would mean the employee should receive $650 before taxes or withholdings for this week – ($400 for first 40 hours, $150 for 10 overtime hours, and $100 attendance bonus)
  • Correct Calculation
    • How an employer properly paying an employee at one and one-half times the employee’s regular rate of pay would compensate the employee:
      • the employee made $600 in compensation for hours worked (total straight time compensation – $500 for 50 hours and $100 for the attendance bonus). The total compensation of $600 divided by 50 hours means that the employee’s regular rate of pay was actually $12 per hour. Then, $12 per hour for 40 hours is $480 and $18 per overtime hour for 10 overtime hours is $180. So, the employee should have been paid $660 for the week.

The example above shows how an employer can underpay employees in violation of the FLSA where they pay one and one-half times the employees’ hourly rate of pay and improperly exclude nondiscretionary bonuses from the employees’ regular rate calculations. The unpaid overtime damages add up over time. Non-exempt hourly employees are entitled to to receive full and proper compensation under the FLSA. The FLSA sets forth the minimum compensation employees must be paid. The lawsuit seeks unpaid overtime wages since March 1, 2015, liquidated damages in an amount equal to the unpaid overtime, attorney’s fees, and costs, among other things.

The lawsuit was filed in the U.S. District Court for the Southern District of Ohio, Western Division (Dayton) and is titled, Funk v. Airstream, Inc., et al, Case No. 3:17-cv-260.

Additional information about the collective and class action against Thor Industries and Airstream may be found by contacting our office by calling 1-614-704-0546 or emailing dbryant@bryantlegalllc.com. If you have any questions about whether you are being properly paid for all of the compensable hours you work at the proper rate of pay, then contact our office today for a FREE consultation to speak with an Ohio and FLSA Overtime Attorney regarding any wage and hour issues. If we prove a violation of the FLSA, you may be entitled to unpaid overtime wages for up to the past three years, an additional amount equal to the unpaid overtime, attorneys’ fees, and costs.

Ohio Raises the Minimum Wage in 2018 to $8.30 per hour

Columbus, Ohio and Toledo, Ohio Minimum Wage Attorneys – Bryant Legal, LLC

The minimum wage in Ohio was raised in 2018. In Ohio, non-tipped employees must now be paid no less than $8.30 per hour (not including overtime). In order to comply with Ohio law, employers must pay Ohio employees at least an amount equal to Ohio’s minimum wage for all hours worked. If you are a non-tipped employee who is not receiving at least minimum wage of $8.30 per hour, you should contact either the Toledo, Ohio or Columbus, Ohio office to speak with one of our Ohio minimum wage attorneys today.

In addition to raising the minimum wage for non-tipped employees, Ohio also raised the minimum wage for tipped employees in 2018. Ohio’s minimum wage for tipped employees is now $4.15 per hour. Tipped employees are those employees who customarily and regularly receive more than $30.00 per month in tips. If you are a tipped employee who is not receiving at least the minimum wage of $4.15 per hour, you should contact either the Toledo, Ohio or Columbus, Ohio office to speak with one of our Ohio tipped employees attorneys today. Often times when there are minimum wage issues discovered with an employer, there are a variety of other issues that can come up with the manner in which employers compensate tipped employees.

In addition to the minimum wage requirement explained above, many other wage and hour issues still persist today, including:

  • misclassifying employees as independent contractors
  • automatic meal break deductions or other break deductions
  • improper deductions from wages
  • improper calculation of the proper overtime rates
  • bonuses or shift differentials not included in overtime rate calculations
  • off-the-clock work
  • failure to provide a proper tip credit notice to tipped employees
  • failure to pay employees for travel, meetings, off-site work, or training
  • compensatory or “comp time”
  • paying employees straight time (their normal hourly rate) instead of 1.5 times their regular rate of pay

You deserve an honest day’s pay for an honest day’s work. We fight aggressively for clients to ensure they receive what they are due. Contact one of our Ohio wage and hour attorneys today if you are not being paid at least minimum wage or any of the above issues apply. We represent employees in all different types of litigation related to their unpaid wages and unpaid overtime. Call us at (614) 704-0546 or (419) 824-4439. Depending on where you are located throughout Ohio, you may also contact either office here.

Are You Entitled to Overtime Compensation?

Federal and Ohio Overtime Attorneys – Bryant Legal, LLC

As your Toledo, Ohio and Columbus, Ohio overtime attorneys, workers regularly inquire about whether or not they are properly being paid pursuant to the Fair Labor Standards Act (FLSA) and Ohio law. The FLSA is complex, and it is not always easy to know whether you may be entitled to a premium for your overtime hours, which is why we welcome you to contact any of the Toledo, Ohio and Columbus, Ohio overtime attorneys at Bryant Legal, LLC to discuss your situation in more detail. There are many exemptions to the FLSA, and each has key nuances that many do not fully understand. The purpose of this post is to clarify the complex nature of the FLSA that governs the pay policies and practices of employees.

Under the FLSA (and Ohio law), everyone is entitled to overtime pay (1.5 times your regular rate of pay for all hours worked over 40 in a workweek) unless they are specifically exempted under the law. In the event you are compensated on a salary basis, you may still be entitled to overtime wages if you work over 40 hours in a workweek and your primary job duties consist of non-exempt work. For more information on whether you have been misclassified, click here.

A. The Overtime Provisions Apply to Employees (not independent contractors, unless you have been misclassified as an independent contractor)

The FLSA only applies to employees—not independent contractors. However, often times companies misclassify their workers as “independent contractors” for purposes of avoiding overtime compensation, tax obligations, workers compensation obligations, among others. Whether you are truly an independent contractor or an employee is determined by applying the test referred to as the “economic realities test.” Under this test, workers are considered employees if they are economically dependent on the employer for their income. In other words, if you work full time for your employer, you are likely an employee. For a more in-depth explanation, click here.

B. Are You Actually Exempt or Did Your Employer just mandate that You are Exempt?

There are at least 44 different exemptions under the FLSA. If one of the exemptions apply, you may not be entitled to a premium for your overtime hours. However, whether you are exempt or not depends on (a) whether you are truly paid on a salaried basis; and (b) your primary job duties. For a more in-depth explanation on whether you have been misclassified as a “salaried employee” (and entitled to overtime) or not (and not entitled to overtime), click here.

With respect to the exemptions, the most common exemptions are referred to as the “white collar” exemptions. They include the following: (1) administrative, (2) professional, and (3) executive. If any of these exemptions apply, you are not entitled to a premium for your overtime pay. As I mentioned above, each exemption requires that the employer pay the employee a salary of at least $455 per week regardless of whether you work less than 40 hours in a workweek. As such, if you make less than $455 per week even if it is labeled as a “salary”, you are likely misclassified and should be paid overtime. The other elements of these three exemptions are discussed below.

1. Administrative Exemption

The administrative exemption requires the employer to prove all of the following:

  • (a) The employee performs office or non-manual work, which is directly related to management of the business;
  • (b) A primary component of which involves the exercise of independent judgment and discretion about matters of significance.

Work “directly related to management of the business” includes, but is not limited to, working in areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities.

In general, the “exercise of discretion and independent judgment” involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered.  The term, exercise, must be applied in the light of all the facts involved in the employee’s particular employment situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision.

The term “matters of significance” refers to the level of importance or consequence of the work performed.  An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly.

The key here is that the employee’s “primary duty” must be to exercise their discretion and independent judgment concerning matters of significance. Generally speaking, office workers are not exempt if their primary duty is to follow the directives of their employer.

2. Professional Exemption

The Professional exemption requires the employer to prove each of the following:

  • (a) The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • (b) The advanced knowledge must be in a field of science or learning; and
  • (c) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

“Work requiring advanced knowledge” means work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment. A professional employee generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.

Fields of science or learning include law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, pharmacy,  chemical and biological sciences. These occupations have a recognized professional status and are distinguishable from the mechanical arts or skilled trades where the knowledge, while of a fairly advanced type, is not in a field of science or learning. The learned professional exemption is restricted to professions where specialized academic training is a standard prerequisite for entrance into the profession.

3. Executive Exemption

The executive exemption requires the employer to prove each of the following:

  • (a) The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  • (b) The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • (c) The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

Even from a brief review of the 3 primary exemptions, it is not always easy to determine whether you are entitled to a premium for overtime hours. You must understand each of the above exemptions, as well as the more than 40 other exemptions. As such, it is important to speak with a Toledo, Ohio or Columbus, Ohio overtime attorney to discuss the specifics of your employment relationship to determine whether or not you are entitled to unpaid overtime wages and other compensation.

In the event you believe you have a claim for unpaid overtime, it is important to contact us immediately so that your damages can be preserved. Workers who have a unpaid overtime claim can recover 2 times the amount you are owed in overtime wages, attorneys’ fees, and costs of the litigation. Contact us today to discuss whether you have an unpaid overtime claim by completing a contact form or calling either office of Bryant Legal, LLC directly.

Non-exempt, service technicians challenge Camping World’s Failure to Pay Overtime Wages

Ohio and FLSA Overtime Attorneys file Collective Action Lawsuit against Camping World (Camping World, Inc., FreedomRoads, LLC, and Sirpilla RV Centers, LLC) for failure to pay service technicians overtime wages.

On October 17, 2017, the law firms of Bryant Legal, LLC and Coffman Legal, LLC filed a Collective Action Complaint against Defendants FreedomRoads, LLC and Sirvilla RV Centers, LLC dba Camping World (collectively “Camping World”) on behalf of a Camping World service technician and Camping World’s other similarly situated employees for Camping World’s failure to pay overtime wages. The collective action was filed to redress Camping World’s alleged failure to pay overtime wages the service technicians are entitled to under the FLSA. Since the commencement of the lawsuit, an amended complaint was filed on January 18, 2018 to add a second named plaintiff and another law firm, Barkan Meizlish, LLP, as additional counsel on behalf of Camping World’s service technicians.

The lawsuit brought by a former and current non-exempt Camping World service technician was brought on behalf of all current and former Camping World service technicians who worked over 40 hours in a workweek during the previous 3 years. The former and current Camping World service technician allege that he and other similarly situated employees were not paid one and one-half times their regular rate of pay (“overtime”) for hours worked over 40 in a workweek.

The lawsuit was filed in the U.S. District Court for the Southern District of Ohio, Eastern Division (Columbus) and is titled Piner, et al. v. FreedomRoads, LLC, et al, Case No. 2:17-cv-00902.

Additional information about the collective action against Camping World may be found by contacting our office by calling 1-614-704-0546 or emailing dbryant@bryantlegalllc.com. If you have any questions about whether you are properly receiving overtime or whether you are being properly compensated for all of the compensable hours you work at the proper rate of pay, then contact our office today for a FREE consultation. If we prove a violation of the FLSA, you may be entitled to unpaid overtime wages for up to the past three years, an additional amount equal to the unpaid overtime, attorney’s fees and costs.

Unpaid Overtime Frequently Asked Questions

FLSA and Ohio Unpaid Overtime Wages Attorneys

Are you wondering whether you are not getting paid properly by your employer under the Fair Labor Standards Act (FLSA)? If so, below are a number of responses to frequently asked questions and/or myths that might help address your situation as it relates to your wages. If your situation is similar to any of the topics below, you should consider speaking with one of the Columbus, Ohio or Toledo, Ohio FLSA unpaid overtime wages attorneys at Bryant Legal, LLC to discuss your specific situation in more detail. We will determine whether you are owed unpaid wages and evaluate the best course of action. Contact us today for a free initial phone consultation.

Are employees entitled to mandatory work breaks or meal periods?

  • No. With the exception of truck drivers and minors, employees do not have a legal entitlement to any breaks during the work day, including lunch and other meal breaks. However, if you are working through lunch and still receive deductions for meal periods, then you should still be paid for that time.

Employees who perform work during their unpaid lunch do not have to be paid.

  • False. In order for a lunch/meal break to be unpaid, the break must be 20 minutes or more and the employee must be “completely relieved” of all work during the break. Any work performed by the employee during an “unpaid” lunch break transforms the break into a paid break. This is true even if the employee performs the work “voluntarily” or “without authorization.”
  • Do you suspect that you are performing other off-the-clock work? If so, please review common off-the-clock work that you should be paid for here.

My employer requires its employees to “clock out” for all breaks and all breaks are unpaid.

  • False. This myth results in off-the-clock work, which you should be paid for. According to FLSA regulations, only breaks of 20 minutes or more can be unpaid. Consequently, any breaks of less than 20 minutes must be paid. It does not matter if the employer has required the employee to “clock out” for the duration of the break. If the break was for less than 20 minutes, the employee must be paid for the time (even though his or her time card indicates no work during that time period).
  • Do you suspect that you are performing other off-the-clock work? If so, please review common off-the-clock work that you should be paid for here.

An employee who works unauthorized overtime is not entitled to overtime pay.

  • False. You should still be paid overtime even if it was not authorized!
  • To provide context, consider this scenario:  Bob asks his boss if he can work on Saturday to get caught up in his work. Bob’s boss says no because he does not want to pay him overtime wages. Bob instead disregards his boss’s decision and works 12 hours of overtime on Saturday. When Bob’s boss finds out, he is upset and accuses Bob of insubordination. Due to the insubordination, the boss refuses to pay Bob for the overtime work because it was “not authorized.”  In this scenario, should Bob still be paid?  YES. Bob’s boss has violated the FLSA. The employee must be paid for all hours worked, even unauthorized hours. Although the employer could still discipline or possibly terminate the employee, it cannot simply withhold pay.

All salaried employees are exempt.

  • False. If you work more than 40 hours in a workweek, you should be paid overtime unless you are specifically exempt under the FLSA. Paying an employee on a salaried basis is only one requirement of the FLSA’s white collar exemptions. If the employee’s job fails to satisfy all of the duties requirements of the exemption, the employee will not be exempt and will be entitled to overtime for all hours worked in excess of 40 in a work week. For example, paying a clerical employee a salary does not make the employee exempt from the FLSA’s overtime requirements because a clerical employee’s job duties do not fall under any exemption under the FLSA.
  • For a more in-depth discussion on whether or not you have been misclassified, click here.

My employer told me that my job title dictates exempt status.

  • False. If you work more than 40 hours in a workweek, you should be paid overtime unless you are specifically exempt under the FLSA. Simply inserting the word “supervisor,” “executive,” or “manager” into an employee’s job title does not make the employee “exempt” from the overtime provisions of the FLSA (e.g.  Assistant Manager, Shift Supervisor, Executive Assistant, Custodial Manager, Environmental Specialist).
  • For example, in order to qualify for the FLSA’s executive exemption, the employee must meet all of the requirement for the exemption:  (1) guaranteed salary of at least $455 per week; (2) primary duty is managing the employer or a customarily recognized department or subdivision of the employer; (3) the employee regularly supervises two or more full-time employees or their equivalent; and (4) the employee has the authority to hire/fire, or the employee’s recommendations in this regard are given particular weight by management.
  • For more information on whether you have been misclassified, click here.

Employees who prefer time off instead of overtime can be given compensatory time off in lieu of overtime pay.

  • False. There is no such thing as compensatory time off in the private sector. Thus, the FLSA requires an employee to be paid for the overtime hours. For example, an employee who works 8 hours of overtime this week cannot be given time off with pay for 8 or 12 hours next week. The employee must be paid for the overtime hours. Overtime earned in week one cannot be erased in week two by providing compensatory time off.
    • caveat:  Flexible work schedules. Work schedules can be manipulated in the same work week in order to avoid overtime pay (i.e., Monday through Thursday, the employee works 38 hours; the employer can instruct the employee to work only two hours on Friday to avoid overtime).
  • What about public employees?
    • While public sector employers are able to substitute compensatory time off for overtime pay, private sector employers cannot.

Subsequent to exhausting paid leave, the salary of an exempt employee can be docked when the employee comes in late or leaves early due to sickness or personal reasons.

  • False. An employer can never dock an alleged exempt employee’s salary for partial day absences (unless the absence is FMLA-qualifying). If you are paid on a salaried basis and your pay is docked, then your employer has likely misclassified you.
  • The only permissible deductions from an exempt employee’s salary are for:  (1) full day absences after the employee has exhausted all available paid leave; (2) infractions of safety rules of major significance; (3) disciplinary suspensions of one or more full days for violation of workplace conduct rules; (4) pro rata adjustments for the first and last week of employment; and (5) unpaid leave pursuant to the FMLA. Consequently, if an exempt employee has exhausted all available paid leave, arrives to work at 8 am, and leaves work at 8:30 am because of sickness (that is not FMLA-qualifying), the employer cannot deduct any amount from the employee’s weekly salary because this was not a full day absence.

Employees are entitled to be paid for accrued but unused vacation, sick time, or PTO upon the termination of employment.

  • False. The FLSA does not require employers to pay out accrued but unused vacation, sick time, or PTO upon termination of employment.  In Ohio, this issue is dictated by policy and/or practice. Whether or not an employee will be paid for unused vacation, sick time, or PTO will only be determined by the applicable employer policies. To that end, employers can insert various provisions that govern payment of unused vacation, sick time, or PTO. For example, “upon the termination of employment, employees will not be paid for any accrued, but unused leave (vacation, sick, PTO).  Additionally, employers can condition the payment of such accrued but unused leave upon the employee satisfying certain conditions (e.g. appropriate notice of termination, no-fault termination, etc.).

If your situation is similar to any of the myths above, contact an Ohio and FLSA attorney at Bryant Legal, LLC. We are happy to determine whether you may be entitled to unpaid wages and overtime wages at no cost to you. If you wait too long, you may be unable to recover the past wages you were wrongfully denied.

Recordkeeping for Computing Wages under the FLSA

Federal and Ohio Unpaid Wages Attorneys:  Recordkeeping

As Columbus, Ohio and Toledo, Ohio unpaid overtime and minimum fair wage attorneys, it is important to provide an overview of the importance of recordkeeping as it applies to all hours worked so that your employer can properly pay you the compensation you deserve. Oftentimes, failure to adhere to the FLSA and Ohio recordkeeping requirements results in unpaid overtime wages and minimum fair wage violations. The Fair Labor Standards Act (“FLSA”) requires employers to keep records on wages, hours, and other items, as specified in Department of Labor recordkeeping regulations. Ohio law also requires that employers maintain records of its employees (including the name, address, occupation, pay rate, hours worked, and amount paid).

In the event your employer does not provide you with records of your wages or you believe you are not being paid for all hours worked as a result of inaccurate recordkeeping by your employer, you may be entitled to unpaid overtime wages and/or other wages as a result of your employers minimum fair wage violations. For more information about your rights and potential compensation you may be entitled to as employees, you should contact one of the federal and Ohio unpaid wages attorneys at Bryant Legal, LLC.

What does the FLSA Require your Employer to Maintain in its Records with Respect to your Wages?

Most of the information required under the FLSA is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations. The records do not have to be kept in any particular form and time clocks need not be used. However, with respect to an employee subject to the minimum wage provisions or both the minimum wage and overtime pay provisions, the following records must be kept:

  1. personal information, including employee’s name, home address, occupation, sex, and birth date if under 19 years of age;
  2. hour and day when workweek begins;
  3. total hours worked each workday and each workweek;
  4. total daily or weekly straight-time earnings;
  5. regular hourly pay rate for any week when overtime is worked;
  6. total overtime pay for the workweek;
  7. deductions from or additions to wages;
  8. total wages paid each pay period; and
  9. date of payment and pay period covered.

What if I am a Tipped employee? 

In addition to the recordkeeping requirements for hourly employees explained above, federal regulations require employers to accurately maintain additional information for “tipped employees” (i.e. waiters/waitresses, bartenders, strippers in strip clubs, and wait staff, among others) given the fact that they rely on tips for the majority of their wages. Specifically, federal regulations require the following for “tipped employees:”

  • (a) With respect to each tipped employee whose wages are determined pursuant to section 3(m) of the Act, the employer shall maintain and preserve payroll or other records containing all the information and data required in §516.2(a) and, in addition, the following:
    • (1) A symbol, letter or other notation placed on the pay records identifying each employee whose wage is determined in part by tips.
    • (2) Weekly or monthly amount reported by the employee, to the employer, of tips received (this may consist of reports made by the employees to the employer on IRS Form 4070).
    • (3) Amount by which the wages of each tipped employee have been deemed to be increased by tips as determined by the employer (not in excess of the difference between $2.13 and the applicable minimum wage specified in section 6(a)(1) of the Act). The amount per hour which the employer takes as a tip credit shall be reported to the employee in writing each time it is changed from the amount per hour taken in the preceding week.
    • (4) Hours worked each workday in any occupation in which the employee does not receive tips, and total daily or weekly straight-time payment made by the employer for such hours.
    • (5) Hours worked each workday in occupations in which the employee receives tips, and total daily or weekly straight-time earnings for such hours

See 29 C.F.R. § 516.28

If you are a “tipped employee” and suspect that your records are inaccurate, they do not accurately reflect the hours you worked, and/or you believe you have unpaid wages as a result, do not hesitate to contact a Toledo, Ohio or Columbus, Ohio unpaid overtime and minimum fair wage attorney so that your rights can be protected properly.

What if I my boss tells me I am a Salaried, Exempt Employee?

Records required for salaried “exempt” employees differ from those for nonexempt workers. Special information is required for homeworkers, for employees working under uncommon pay arrangements, for employees to whom lodging or other facilities are furnished, and for employees receiving remedial education. However, salaried employees are often misclassified and may still be entitled to overtime wages in the event they primarily perform nonexempt duties and work in excess of 40 hours in a workweek. If you are a salaried “exempt” employee and have questions about whether you have been misclassified due to your job duties, we are happy to discuss your situation in more detail.

We cannot stress the important of accurate reporting and recordkeeping of your wages. Should you have any questions or concerns, contact a Toledo, Ohio or Columbus, Ohio unpaid overtime and minimum fair wage attorney at Bryant Legal, LLC.

Does Title VII and Ohio law Prohibit Discrimination/Retaliation Based on Sexual Orientation (Gay, Lesbian, Bi-sexual, Transgender)?

Ohio Sexual Orientation Discrimination Attorneys:

Sexual orientation discrimination continues to be a contentious civil right facing millions of Americans. Courts around the country have continued the movement towards protecting employees against discrimination and/or retaliation because of sexual orientation (gay, lesbian, bi-sexual, or transgender). At some point in the future, federal and Ohio law will provide full protection against this conduct. However, we are not at that point, yet. This article focuses on the current protections under the law. If you are gay, lesbian, bi-sexual, or transgender, you are still protected against sexual orientation discrimination if you do not conform with traditional sex stereotypes (explained below) and are discriminated/retaliated against because of the non-conformity.

Under Title VII of the Civil Rights Act of 1964 (Title VII) provides that “it shall be an unlawful employment practice for an employer…to discharge an individual, or otherwise discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment, because of… his/her sex….” 42 U.S.C. 2000e-2(a). Under Title VII, sexual orientation is not a prohibited basis for discriminatory acts. See Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, (6th Cir. 2011). (Ohio law has not yet extended protection).

Despite the fact that sexual orientation discrimination itself is not an actionable claim under current Federal and State (Ohio) law, federal Courts across the country have been expanding protection for related claims. Indeed, incremental changes have over time broadened the scope of Title VII’s protections of sex discrimination in the workplace.

Recently, on November 4, 2016, a U.S. District Court of the Western District of Pennsylvania (3rd Circuit) denied an employer’s motion to dismiss the Equal Employment Opportunity Commission’s (“EEOC”) claim on behalf of a gay male against an employer. Among other claims, the EEOC alleged that the gay male was constructively discharged due to a hostile work environment because the male was discriminated against based on his sexual orientation (i.e. he is gay). The EEOC alleged that during his employment, he was subjected to disparaging comments referencing his sexual orientation that created a hostile work environment, which more or less forced him to leave his place of employment. The employer requested that the Court dismiss the case and argued that sexual orientation is not a protected class (i.e. it can discriminate/retaliate against the male employee because he is gay).

The Court denied the employer’s motion to dismiss and held that “Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation.” Accordingly, the EEOC’s claim properly stated a claim for relief under federal law. See U.S. Equal Employment Opportunity Commission v. Scott Medical Center, P.C., Case No. 16-225, 2016 WL 6569233 at *5-6 (W.D. Penn., Nov. 4, 2016).

Although federal courts in the 6th Circuit (Ohio, Michigan, Tennessee, and Kentucky) have not recognized actual sexual orientation (i.e. you are fired because you are gay/lesbian/bi-sexual/transgender), they do protect against sex discrimination when the individual does not conform with traditional sex stereotypes, which is explained in detail below.

Courts Recognize Sex Discrimination When the Claim is Based on “Non-Conformity with Traditional Sex Stereotypes”

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court held that harassment directed at a person because that person does not conform to traditional stereotypes is a form of sex discrimination prohibited by Title VII. According to Price Waterhouse, it is apparent that the female employee was tougher than females are traditionally viewed. Comments like females should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry,” not be a “macho,” or that females should take a “course on charm school” were indirect evidence of discrimination because of sex (i.e. a female not conforming to traditional stereotypes of how females should be). Since this case, courts have continued to expand upon the meaning of “does not conform to traditional sex stereotypes” in the context of both male and female traditional sex stereotypes.

The Sixth Circuit (the federal circuit, which includes Ohio) also recognizes claims of sex discrimination when males or females are discriminated/retaliated against because he or she does not conform to traditional sex stereotypes. Indeed, where men are penalized for acting femininely, the disparate treatment (i.e. penalizing him) is “because of sex” and prohibited under federal law. See Smith v. City of Salem, 378 F.3d 566, 674 (6th Cir. 2004).

In Koren v. The Ohio Bell Telephone Co. (Northern District of Ohio, 2012), the Plaintiff-employee alleged that his employer discriminated against him because he took his husband’s name after they married, but did not similarly discriminate against women for doing the same. Importantly, the Plaintiff did not allege discrimination because he was gay. Rather, he alleged that by taking his husband’s last name, he did not conform to traditional sex stereotypes. As a result, the Court allowed Plaintiff’s case to move forward on the theory of gender non-conformity.

This case again demonstrates the difference between a sexual orientation discrimination claim, which is not currently protected by Title VII or Ohio law, and a gender stereotyping claim, which is an increasingly recognized form of sex discrimination.  The claim of gender stereotyping removes actual sexual orientation from the analysis and relies only on establishing that the plaintiff was discriminated against because he or she did not conform to traditional gender stereotypes.

The Smith and Koren decisions, among others, have dramatically changed the landscape of sex discrimination cases. Under Smith and Koren, all other classes of individuals who engage in gender non-conforming conduct are granted Title VII protection.

As a result, employers’ traditional dress and grooming policies may also be challenged to the extent they require conformance to traditional gender roles, e.g., requiring women to wear skirts or make-up, or preventing men from doing so.

The Ohio Sexual Orientation attorneys at Bryant Legal, LLC will continue to monitor this ever-changing area of sex discrimination. If you believe you have been discriminated and/or retaliated against because of your non-conforming gender role, contact us immediately so we can immediately protect your rights.

Sexual Harassment – Top 10 Steps To Take If You Are a Victim of Workplace Sexual Harassment

Ohio Sexual Harassment and Sex Discrimination Attorneys

As a reminder, Federal and Ohio law make it unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

In the event you are a victim of workplace sexual harassment, the following tips should provide some general guidance with respect to what you should do. Please note that each factual scenario is different, so the following are general tips and should not be taken as legal advice to your specific situation. For more information, please contact an employment attorney at Bryant Legal, LLC to discuss in more detail so that we can immediately protect your rights.

Top 10 Tips To Do If You Are a Victim of Workplace Sexual Harassment:

(1) Do Not Ignore the Harassment

  • Talking about sexual harassment can be uncomfortable, but speaking up about it with other employees who may also be experiencing similar conduct can empower you.

(2) Make it Clear to the Harasser that the Conduct is Unwelcome

  • An essential element of a sexual harassment claim is that the conduct must be unwelcome. Harassers sometimes contend that their victims welcomed and enjoyed their words and actions. Although it can feel uncomfortable or even frightening to object, you must unequivocally tell the harasser to stop the behavior.

(3) Not All Offensive Behavior is Sexual Harassment under the law

  • As mentioned above, whether certain behavior constitutes sexual harassment is considered on a case-by-case basis. Thus, it is especially important to talk to a lawyer who knows about sexual harassment law and how to deal with such behavior.

(4) Keep Careful Notes on what happened, but not on employer-owned equipment

  • You should keep any notes, memos, letters, emails, textual messages, gifts, or other tangible evidence from the harasser. Be careful how and where you record your evidence. For example, communications using company equipment are not confidential and can be used against you. Other examples that can be used against you because it may contain person information is social media.

(5) Report and Oppose the Conduct Immediately

  • Why? Your report does two important things. First, it puts your employer on notice that the sexual harassment occurred. Second, it provides your employer with an opportunity to correct the problem and make it stop. If it does not stop, you still have legal options, but consult with a sexual harassment attorney first.

(6) Human Resources is Not on Your Side – Anything you tell HR can be revealed to others in the company

  • Do not assume that anything you tell them is going to be kept confidential. The HR department may report your complaint to their supervisors and to other managerial employees. Although Human Resources is ideally in place to help the company’s employees, often times it does not help. Rather, it makes a record against you to cover for the company. After all, the company also pays them as employees so HR employees have the company’s interest as the top priority.

(7) Do Not Quit Your Job

  • Quitting your job provides an employer with the argument that you did not give it enough time to correct the problem. Quitting could also affect your ability to recover your lost wages and make it even harder to collect unemployment benefits (due to “job abandonment”).

(8) Retaliation is Unlawful

  • You might have a stronger retaliation claim if you make a reasonable good faith complaint of harassment to your employer and your employer subsequently takes any “adverse action” against you because of the complaint.

(9) Keep Performing Your Job Well

  • Making a complaint about sexual harassment does not give you permission to stop performing your job to the best of your ability or excuse you from the same standards you had to meet before the conduct started or you complained. After all, Ohio is an at-will state. Thus, if you stop performing your job well, your employer has a “business justification” for taking adverse action against you.

(10) Get Legal Advice from an attorney who knows about sexual harassment law as soon as you can

  • Due to the fact that sexual harassment is a serious and often frightening experience, your rights need to be protected at every step of the way. Talk to an attorney who handles these matters and takes them just as seriously as you do. This is especially important if you are considering quitting your job.

For more information about your situation involving workplace sexual harassment, contact us today.

Ohio National Origin Discrimination Update: EEOC Issues New Enforcement Guidance

In the wake of a particularly divisive Presidential election where immigration was a frequent topic, the purpose of this post is to provide a timely reminder of the law prohibiting national origin discrimination in all aspects of employment. This post also provides a brief overview of how the new Equal Employment Opportunity Commission (“EEOC”) enforcement guidance outlines examples of national origin discrimination in multiple facets. Should you have any questions about whether you have been discriminated against because of national origin, do not hesitate to contact the attorneys at Bryant Legal, LLC to discuss your legal options.

Title VII of the Civil Rights Act of 1964 and Ohio law prohibit National Origin discrimination.

National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group. (See 29 C.F.R. § 1606.1 (defining national origin discrimination “broadly”)) Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin. (See 42 U.S.C. § 2000e-2; 29 C.F.R. § 1606.2) National origin discrimination includes discrimination by a member of one national origin group against a member of the same group.

National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race. For example, charges filed by Asian Americans may involve allegations of discrimination motivated by both race and ancestry (national origin). Similarly, discrimination against people with origins in the Middle East may be motivated by race, national origin, or even the perception that they follow particular religious practices. As a result, the same set of facts may state claims alleging multiple bases of discrimination.

On November 18, 2016, the EEOC released a new enforcement guidance on national origin discrimination. The EEOC’s continued focus in this area is the agency’s first interpretation of the law on national origin discrimination since its 2002 compliance manual. The guidance notes that the “American workforce is increasingly ethnically diverse;” that the largest numbers of immigrants to the United States in recent years have been from Asia and the Middle East; and that while immigrants are present in “every occupation,” they are highly represented in many of the country’s highest growth jobs, such as those in the service sector.

To that end, the guidance emphasizes the broad definition of national origin discrimination. As noted above, it includes “discrimination because an individual (or his/her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” A “certain place” may include a country, former country (such as Yugoslavia), or a region (such as Kurdistan). Physical, cultural, or linguistic characteristics may include accents or traditional styles of dress. National origin discrimination also encompasses adverse actions based on perceived ethnicity, as well as actions based on an individual’s association with others having a particular national origin.

With respect to accents and language ability, the EEOC explains that an employment decision legitimately may be based on an employee’s accent or fluency in English only if those traits materially interfere with job performance. To meet this standard, an employer must show that effective spoken communication in English is required to perform the duties of the job and that the presence of an accent materially interferes with the employee’s ability to communicate in English.

Retaliation is Prohibited

Importantly, Title VII (and Ohio law) prohibits retaliation, or reprisal, against an individual because he or she has opposed unlawful national origin discrimination or participated in the EEO process by filing a charge or complaint, testifying, assisting, or participating in any manner in an employment discrimination investigation, proceeding, or hearing. (See 42 U.S.C. § 2000e-3(a)).

There are three essential elements of a claim that an employer action was retaliatory:

  • Employee Protected Activity – opposition to discrimination or participation in any EEO investigation, proceeding, or hearing;
  • Materially Adverse Action – any adverse treatment by the employer (beyond a petty slight or a trivial annoyance), that might dissuade a reasonable person from participating in protected activity; and
  • Causal Connection – between the protected activity and the adverse treatment.

The most obvious types of materially adverse actions are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge because the individual engaged in protected activity. Other types of materially adverse actions include threats, warnings, reprimands, transfers, negative or lowered evaluations, or verbal or physical abuse (whether or not it rises to the level of creating a hostile work environment) because an individual engaged in protected activity.

Among other issues discussed by the new EEOC enforcement guidance on national origin discrimination, the attorneys at Bryant Legal, LLC are prepared to advocate on your behalf. Should you have any questions, contact an employment discrimination attorney at Bryant Legal, LLC today.

Overtime Compensation – Misclassification of Salaried Employees

Ohio and Federal Unpaid Overtime Attorneys

Fair Labor Standards Act: Unpaid Overtime Wages due to the Misclassification of Salaried Employees

As I previously posted, here, the U.S. Department of Labor’s amended regulations to the Fair Labor Standard Act (“FLSA”) will become effective on December 1, 2016. Under these new regulations, employees across the nation must earn at least $913 per week (or $47,476 annually) in order to qualify for any of the “white collar” (executive, administrative or professional) overtime exemptions. This minimum salary will be adjusted annually to an amount equal to the 40th percentile of weekly earnings for full-time salaried workers.

In order to be properly classified as exempt from overtime under any of the white collar exemptions, an employee must meet two tests. First, the employees must meet the salary basis test. Under this test, the employee must be paid a fixed salary each week that is not subject to reduction based on the quantity or quality of work. Basically, if you are paid on a salaried basis and that amount is less than the new minimum of $913 per week, the employer must either increase the employee’s salary to the new minimum or begin treating that employee as hourly, non-exempt.

Second, the employee must meet a duties test. Under this requirement, the employee’s primary job duties must meet certain minimum requirements depending on the type of exemption. Often times employers have general job duties descriptions for their employees, but they are not the controlling factor. The ultimate test is what the employee primarily performs on a daily basis.

If either of these tests are not met, you may be misclassified and, thus, entitled to unpaid overtime wages in the event you work in excess of 40 hours per week. In light of the new regulations, feel free to contact the attorneys at Bryant Legal, LLC to determine whether you may be entitled to unpaid wages, including overtime compensation.

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