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.

Ohio Retaliation Attorneys Update: New EEOC Enforcement Guidance Broadens Employee Protection

The purpose of this post is to provide a brief overview of how employees are protected from retaliation as well as how the new Equal Employment Opportunity Commission (“EEOC”) enforcement guidance now provides even broader protection to employees.

At the end of this post, I have included a “Top 10 List” of conduct which is protected under the law. If you believe you have been retaliated against, the Ohio retaliation attorneys at Bryant Legal, LLC can make sure your rights are protected and asserted effectively.

Are You Protected from Retaliation under Federal and Ohio law? Yes.

If you, as an employee, engage in certain activity at work, it may be protected under federal and Ohio law. If your employer takes disciplinary action against you because you either opposed discrimination (or other conduct you believe to be unlawful) or participate in any manner in an investigation, proceeding, or hearing regarding the discrimination, it will likely be unlawful retaliation.

A. What is “Protected Activity?”

Federal and Ohio law have anti-retaliation provisions so that employees can be free from discipline and not discouraged from opposing discrimination in the workplace. It is important to understand the two major types of activity that provide employees with protection (“protected activity”). These anti-retaliation provisions protect two main types of activity:  (1) participation; and (2) opposition.

  • (1) Participation is defined as follows:
    • An individual is protected from retaliation for having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. Participation may include, for example, filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination.
  • (2) Opposition is defined as follows:
    • An individual is protected from retaliation for opposing any practice made unlawful under the EEO laws. Protected “opposition” activity broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination. The manner of opposition must be reasonable, and the opposition must be based on a reasonable good faith belief that the conduct opposed is, or could become, unlawful.

B. Can My Employer Retaliate Against Me? No. 

Many employment laws, whether they are under federal or Ohio law, have provisions which prohibit retaliation against their employees. Importantly, any employee, regardless of his or her status, has a private cause of action if he or she experiences retaliation.

Although each situation is different, your employer cannot retaliate against you. For example, if you oppose discrimination in the workplace (based on your reasonable belief) and your employer takes disciplinary action against you (e.g. write-ups, reduction of hours, termination, etc.), it may constitute unlawful retaliation. As  you can imagine, retaliation can occur against employees in a variety of situations and in all aspects of employment.

C. New EEOC Enforcement Guidance Broadens Protection for Employees

Recently, the Equal Employment Opportunity Commission (“EEOC”) issued its new enforcement guidance for claims of retaliation under laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA). Topics explained in the new guidance include:

  • The scope of employee activity protected by the law.
  • Legal analysis to be used to determine if evidence supports a claim of retaliation.
  • Remedies available for retaliation.
  • Rules against interference with the exercise of rights under the ADA.
  • Detailed examples of employer actions that may constitute retaliation.

With respect to examples of employer actions that may constitute retaliation, a non-exhaustive list of actions that constitute protected activity by the employee is below.

Top 10 List of Protected Activity:

  1. Complaining about discrimination against oneself or others
  2. Threatening to complain about discrimination against oneself or others
  3. Providing information in an employer’s investigation of discrimination or harassment
  4. Refusing to obey an order reasonably believed to be discriminatory
  5. “Passive resistance” – e.g. supervisor refusing a request to dissuade subordinates from filing EEO complaints. Just not acting on the request is considered protected.
  6. Advising an employer on EEO compliance
  7. Resisting harassing behavior – The EEOC gives the example of an employee telling a supervisor to “leave me alone” and “stop it.” The fact that it’s a supervisor seems important here because the supervisor’s knowledge is imputed to the employer.
  8. Intervening to protect others from harassing behavior – Again, the EEOC example involves a co-worker intervening to stop harassment by a supervisor.
  9. Requesting accommodation for a disability or religion
  10. Complaining that pay practices are discriminatory – There doesn’t need to be an explicit reference to discrimination. If a woman says her pay is unfair and asks what men in the job are being paid, the EEOC deems that protected.

If you have questions about retaliation and/or have been retaliated against by your employer, you should contact an employment attorney at Bryant Legal, LLC to help make sure your rights are protected and asserted appropriately.

Are You an Employee or Independent Contractor? You May Be Entitled to Unpaid Overtime Wages

In this post, it is a brief overview limited solely to understanding whether you are being misclassified as an independent contractor rather than an actual employee of the company paying you. The example described below is focused on unpaid overtime wages due to the misclassification of an employment relationship (independent contractor vs. employee) under the Fair Labor Standards Act (“FLSA”).  Should you have questions about your employment status (whether you are an independent contractor or employee), feel free to contact either office of Bryant Legal, LLC to discuss your unique wage and hour scenario with an employment attorney.

When Employers Deliberately Misclassify Employees in an attempt to Cut Costs, Everyone loses.

The misclassification of employees as independent contractors presents a very serious problem facing affected workers, employers and the entire economy. Misclassified employees often are denied access to critical benefits and protections to which they are entitled, such as the minimum wages, overtime wages, family and medical leave, unemployment insurance, and safe workplaces. Employee misclassification generates substantial losses to the federal government and state governments in the form of lower tax revenues, as well as to state unemployment insurance and workers’ compensation funds. It hurts taxpayers and undermines the economy.

The blurred lines from the fissured workplace make achieving compliance with the wage and hour laws a difficult task. Intense competition between business models like subcontracting, temporary agencies, labor brokers, franchising, licensing and third-party management leads to low pay, and noncompliance pulls down standards for all – making it difficult for responsible employers to survive in low margin, fiercely competitive conditions.  The costs in this race to be the lowest bidder are borne by workers deprived of their wages and their rights.

Issue:  Misclassification of Independent Contractors instead of Employees

According to the Department of Labor, between 10% and as high as 30% of employers may misclassify their employees as “independent contractors.” That means that workers misclassified as independent contractors are wrongfully denied access to important benefits and protections (such as minimum wages and overtime wages). For example, when a worker is determined to be an “employee” and works in excess of 40 hours per week, he or she is entitled to overtime wages. The misclassification is important because he or she would not have previously been entitled to overtime wages as an independent contractor. However, when the economic reality is that of an employee, the worker is entitled to the benefits he or she previously missed out on due to the misclassification.

Fair Labor Standards Act (“FLSA”) Definitions Overview:

In order for the Fair Labor Standards Act’s (“FLSA”) minimum wage and overtime pay provisions to apply, an employment relationship must exist between the “employer” and an “employee” (e.g. the worker).The FLSA’s definition of “employ” includes “to suffer or permit to work.” As such, The FLSA definition of employ was specifically designed to broadly cover as many workers as possible. That means that most workers are employees under the FLSA.

Importantly, you are only entitled to overtime wages and minimum-wage compensation if you are an “employee.” An independent contractor cannot enjoy the FLSA’s protections.

Solution: Determine Your Employment Status. Are You an Employee or Independent Contractor?

A worker is an “employee” if he or she is economically dependent on the employer, whereas a worker is an “independent contractor” if he or she is in business for himself or herself. Thus, it is the economic reality (the “economic realities test” explained below) of the worker’s relationship with the employer that determines whether the worker is economically dependent on the employer (and therefore, an employee) or is in the business for himself or herself (and therefore, an independent contractor).

The Sixth Circuit Court of Appeals (which covers Michigan, Ohio, Kentucky, and Tennessee), broadened the scope of the employee/employer relationship and narrowed the independent-contractor definition. Specifically, the Sixth Circuit follows the “economic realities” test for determining whether an individual is an employee or an independent contractor. Under this test, courts consider six factors when determining if you are an employee or misclassified as an independent contractor:

  1. the permanency of the relationship;
  2. the degree of skill required;
  3. the worker’s investment in equipment or materials;
  4. the worker’s opportunity for profit or loss;
  5. the degree of the alleged employer’s right to control the manner in which the work is performed; and
  6. whether the service rendered is an integral part of the alleged employer’s business.

Each factor has its own analysis and will be considered under the totality of the circumstances.

Example of Misclassification of Independent Contractors – You may be Missing Out on Important Benefits (such as Unpaid Overtime Wages).

In the context of unpaid overtime wages, in Keller v. Miri Microsystems LLC a satellite dish installer agreed to provide his services as an independent contractor, but later filed a lawsuit against the installation company claiming he was actually an employee entitled to substantial overtime pay under the Fair Labor Standards Act (FLSA). Even though the installer provided his own vehicle, tools, and equipment; could set his own schedule; was not required to wear a uniform; could work for other companies; and was able to hire his own staff, the Sixth Circuit found that it was possible he was misclassified as an independent contractor. In reaching that conclusion, the court found it significant that the installer never turned down an assignment and worked full-time for the company for twenty months. The court also noted that, even though the installer was free to work for others, his geographic location made accepting other work difficult. The court further reasoned that providing the installer with training to obtain a necessary certification was more consistent with employee status. Similarly, the court held that because the installer typically followed the work schedule he received from the company, and the company guaranteed his work, a jury could conclude that the company’s control over the installer was consistent with an employee classification.

At Bryant Legal, LLC, we ensure you are informed of your rights with respect to minimum wages, overtime wages, and other workplace benefits so that we can both protect and assert your rights. If you would like to speak with an employment attorney regarding you wage and hour issue, utilize the contact form and submit a confidential inquiry.

Expansion of Overtime Wages Protection to 4 Million Workers – Final Rule

On May 18, 2016,over 270,000 comments, President Obama announced the publication of the Department of Labor’s Final Rule updating the overtime regulations, which will automatically extend overtime wages protections to over 4 million workers within the first year of implementation. Specifically,the Department of Labor updated and expanded the regulations defining which “white collar” workers are protected by the Fair Labor Standard’s Act’s (“FLSA”) minimum wage and overtime standards.  The Final Rule is set to take effect on December 1, 2016. The Final Rule significantly affects Ohio workers who could now be entitled to overtime wages.

Importantly, salaried employees must now be paid $913 per week or $47,476 annually to be exempt from overtime wages. The increase is substantial compared to the previous threshold ($455 per week or $23,660 annually).

What does the new rule mean for “salaried” employees? If you are a “salaried” employee and work over 40 hours per week, you must be paid at least $913 per week or $47,476 annually. If not, but you still work over 40 hours per week, you may be entitled to overtime wages. If you have questions, please contact the wage and hour attorneys at Bryant Legal, LLC to discuss whether you are entitled to overtime wages in more detail.

A brief overview of the key provisions to the final rule, which will take effect on December 1, 2016, is below.

Key Provisions of the Final Rule

The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the Final Rule:

  1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);
  2. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and
  3. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

For more information, please contact us to discuss your specific Ohio overtime wages matter in more detail.

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