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.

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.

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.

Home Health Care Workers Entitled to Overtime Wages

SCOTUS Decision – Over 2 Million Home Health Care Workers Entitled to Overtime Wages. Contact an FLSA Overtime Wages Attorney.

As of today, June 27, 2016, the Supreme Court of the United States (“SCOTUS”), denied hearing the Home Health Care Association of America’s request to determine the validity of the Department of Labor’s Home Care Final Rule.

If you are a home health care employee working as a home health aide, caregiver, or in any other position to provide companionship or other services, then you should contact an Ohio overtime attorney at Bryant Legal, LLC immediately to be advised of your rights to unpaid overtime. We are currently involved with representing individuals in the home health care industry who are entitled to overtime wages and can advocate on your behalf.

What Does this Ruling Mean for me?

Described as a “Win for Home Care Workers,” your once “exempt” position (which means not entitled to overtime pay) is now a “non-exempt” position such that you are entitled to overtime wages for all hours worked over 40 in any given workweek. In other words, you must be paid time and a half (overtime) for every hour you work in excess of 40 for each workweek. If you are not paid overtime wages, then your employer is violating the law and you are entitled to your unpaid overtime pay with an equal amount of liquidated damages and attorney’s fees.

Background of the Home Care Litigation

For years, home health care companies took advantage of millions of workers who provide compassionate and competent care to our loved ones who wish to remain in their homes and communities. For years, they regularly worked between 60 and 120 hours per week without a dime of overtime wages.

To provide some context to this ruling, on October 1, 2013 the Department of Labor (“DOL”) issued the Home Care Final Rule, which overturned an outdated “companionship services” exemption under the Fair Labor Standards Act (“FLSA”). Workers unfairly subject to the “companionship services” exemption meant those services which provide fellowship, care, and protection (e.g. household work, meal preparation, bed making, washing of clothes, etc.) for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. See 29 C.F.R. § 552.109(a) and 29 C.F.R. § 552.6(b). The Home Care Final Rule extended minimum wage and overtime protections to almost 2 million home care workers.

Because home health care companies had to finally pay its workers time and a half (overtime wages) for all hours over 40 per week, the Home Health Care Association of America continued to fight against the DOL’s Rule. The rule was challenged in federal court, but on August 21, 2015, a federal Court of Appeals issued a unanimous opinion affirming the validity of the Final Rule. This opinion upholding the Home Care Final Rule became effective on October 13, 2015, when the Court of Appeals issued its mandate. On November 18, 2015, the Home Health Care Association of America continued to fight against allowing millions of deserving home health care workers overtime wages. It filed a petition for certiorari to seek the validity of the Home Care Final Rule.

On June 27, 2016, the U.S. Supreme Court issued an order denying a request to review the Court of Appeals decision, meaning the opinion stands. As a result, millions of home health care workers were entitled to overtime wages on October 13, 2015 – the date the appellate court issued its mandate.

Contact an FLSA Overtime Attorney at Bryant Legal, LLC today to discuss seeking overtime wages at no cost to you. You may do so using the contact form or call either office to discuss your rights.

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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