Employee Payment for Rest and Meal Periods under Ohio and Federal Law

As an initial matter, it may come as a surprise that Federal and Ohio law generally do not require employers to provide rest or meal breaks to employees. One exception is Ohio Revised Code § 4109.07(C), which provides that minors must be allowed a rest period of at least thirty minutes for a shift of more than five hours.

Nonetheless, many employers allow or require employees to take rest or meal breaks, either paid or unpaid. Breaks are important for employee morale, and provide the required sustenance and physical respite to make it through the workday.

Unpaid Meal Periods under Ohio Wage Law and the Federal FLSA (Fair Labor Standards Act)

Employees must be paid for all meal periods that are not “bona fide”. Bona fide meal periods are breaks during which employees are completely relieved from duty for the purpose of eating a meal.

Employees must actually be relieved from duty if an employer doesn’t pay for meal periods – Workers generally must be paid if they are required to eat at their desk or machine, answer phones, respond to work-related inquiries or emails, or engage in any other duties.

Damages can add up even over short periods of time when employers don’t properly pay for non-bonafide meal periods.

For example, if an employer requires a worker to be at work 8 ½ hours each weekday with an unpaid ½ hour lunch period, but the employee works through lunch, the employee is entitled to 2 ½ hours of unpaid time at the end of the workweek (½ hour x 5 days). Since the employee worked 42 ½ hours during the workweek, and Ohio and Federal Law require workers to be paid time-and-a-half for all hours over 40 hours, there is an unpaid overtime violation.

Unpaid Rest Periods under Ohio Wage Law and the FLSA

Rest periods of 5 to 20 minutes are common in industry, promote efficiency, and generally should be paid as working time. If an employer does not pay workers for taking short breaks for things such as coffee or eating snacks, or to use the bathroom, the employer may be violating Ohio and Federal law entitling the employee to back pay, liquidated damages and attorneys’ fees.

This all being said, it is important to note that Federal law only allows recovery of unpaid overtime for a period of up to 3 years in the case of willful violations, and 2 years for non-willful violations. Therefore, it is important for employees to exercise their rights to be paid properly promptly.

If you have not been paid for all time worked Attorney Kevin M. McDermott II may be able to help. Feel free to call (216) 367-9181 for a Free Consultation and to discuss your options with a Licensed Attorney.

The Manager Exemption to Overtime and Minimum Wage from an Employee's Perspective.

Employers are generally required to pay employees minimum wage for all hours worked and overtime pay for all hours worked over 40 hours each workweek pursuant to the Fair Labor Standards Act (the “FLSA”). Overtime is defined as one and one-half times the regular rate of the employee’s pay.

However, the FLSA provides certain exemptions to the minimum wage and overtime requirements, including under what is known as the executive employee exemption. This exemption is sometimes called the manager, or management exemption, although it applies to more job titles/categories than just managers.

Ohio and Federal law do not permit an employer to fail to pay minimum wage and overtime just because the employer calls certain employees managers or supervisors. This is especially true when the “manager” has no actual control of the employees they supervise, spends the vast majority of their time performing manual labor, or has little or no control over who is working under them – such as no actual ability to supervise, discipline and/or terminate workers. If all decisions of the “manager” (or “assistant manager”) come from above, the employee may be misclassified and entitled to overtime and minimum wage. The manager must also direct the work of at least two or more other full-time employees, or their equivalent (such as four part-time employees).

It is also common for employers to pay “managers” an hourly rate but with no overtime. This violates the FLSA, because the employee must be paid on a “salary basis” of not less than $455 per week.  A “salary basis” means that the employee must receive a predetermined amount each pay period, and this amount cannot be reduced because of variations in quantity or quality of work. If the employer makes deductions from the “salary” for absences less than a day then the employee may be misclassified and entitled to overtime compensation and minimum wage.

In sum, under the FLSA, in order for an employee to qualify as an executive employee, the employee must:

(1) be compensated on a salary basis at a rate not less than $455 per week; (2) customarily and regularly direct the work of at least two or more other full-time employees; (3) have a primary duty of managing the enterprise (or a recognized department or subdivision thereof); (4) have authority over the employees he/she supervises, such as selecting and terminating employees, or the executive’s suggestions are given particular weight.

If an employee does not meet each of these requirements, the employee may be misclassified and entitled to unpaid back pay, liquidated damages, costs and attorney fees.

If you have not been paid for all time worked Attorney Kevin M. McDermott II can help. Feel free to call Attorney Kevin M. McDermott II at (216) 367-9181 for a Free Consultation and to discuss your options.

The Wrongs of Working off the Clock

Let us start by saying that common sense and our universal understanding morality tell us that people deserve to be paid what they earn. Forcing someone to work for free or for a subminimum wage not only goes against Congress’s directive but a civilized society’s understanding of what is right and wrong. In the employment context, however, it is far too common for employers to deny employees all wages for all hours worked. This can occur because of an employer’s simple oversight on one end to on the other an employer's willful scheme to deprive workers wages to increase the bottom line. An employer’s unlawful failure to pay for time worked can take many forms, including:

• Forcing employees to answer phone calls after hours without compensation;

• Refusing to pay employees for travel time when the destination is greater than the time it takes to get to the usual place of work or refusing to pay for travel time during the workday;

• Requiring employees to arrive at work before the shift starting time. For example, where an employer requires employees to arrive at the workplace 15 minutes before the scheduled start time without pay;

• Failing to pay employees for the time it takes to suit up a uniform in some circumstances;

• Making paycheck deductions automatically for lunch breaks even though the employee does not always take a break or works through the lunch break;

• Rounding employee start times and end times predominantly to the employer’s benefit;

• Making seemingly random deductions to paychecks;

• A policy of reducing wages or refusing to pay for employees to attend mandatory meetings or voluntary meetings that ultimately benefit the employer.

The examples above are only a few cases where employees have successfully sued and got back their wrongfully withheld wages. Ohio and Federal Law affords employees the right to recover unpaid wages and in some cases an additional one or two times unpaid wages. Furthermore, in many cases employees are entitled to attorney’s fees and the costs to bring an unpaid wage claim, including in cases involving unpaid overtime compensation and where the employer fails to pay minimum wage for all hours worked.

If you have not been paid for all time worked Attorney Kevin M. McDermott II can help. Call Attorney Kevin M. McDermott II at (216) 367-9181 for a Free Consultation and to discuss your options.

When does Flirting, Inappropriate Comments, or Repeated, Unwelcomed Requests for a Date Become Sexual Harassment at Work?

Ohio recognizes two types of actionable Sexual Harassment: (1) ‘quid pro quo’ sexual harassment and (2) ‘hostile environment’ harassment. Let us start by examining both types to determine when what may seem initially as unprofessional but ‘harmless’ comments become sexual harassment prohibited under Ohio and Federal Law. 

‘Quid pro quo’ sexual harassment, from the Latin term for "this for that," is just what it sounds like in English – an employer or supervisor makes unwelcome advances or requests a sexual favor and the employee’s submission to the unwelcome advances is an express or implied condition for advancement or favorable job conditions. Another case of quid pro quo sexual harassment occurs where rejection of the sexual advances results in a tangible job detriment, such as termination or demotion. Under Ohio Law the company is strictly liable for the offender’s misconduct.

‘Quid pro quo’ sexual harassment is frequently obvious, where, for instance, a supervisor fires an employee for refusing his sexual advances. In other cases, the supervisor’s misconduct may be more subtle, such as if a supervisor tells an employee that in order to receive a promotion she must dress more revealing or provocatively. 

Hostile work environment sexual harassment occurs when the harassing conduct was sufficiently severe or pervasive to affect the ‘terms, conditions, or privileges of employment,’ or any matter directly or indirectly related to employment. The harassment must have been committed by a supervisor or the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Unlike quid pro quo sexual harassment, the offender does not have to be a supervisor for an employee to have a claim – only that the supervisor knew or should have known but did nothing to stop it. 

In the case of Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), the US Supreme Court held that while Title VII is not general civility code, and that therefore offhand comments, teasing and even verbal or physical harassment are not necessarily prohibited, conduct that affects the employee’s ‘terms, conditions, or privileges of employment’ is prohibited and actionable. So, for example, if a coworker makes one offhand comment on the job a court may not find sexual harassment. However, if the conduct is so severe or pervasive that it affects the employee’s performance of the job itself, a case may be made for sexual harassment. So, in the previous example, if the coworker makes sexual jokes repeatedly or regularly, engages in unwanted touching, or repeatedly asks the coworker out after being turned down there may be a case of hostile work environment if the employer knew or should have known of the actions of its employee but took no action to stop it. 

Victims of sexual harassment at work often initially explain a boss, superior, or coworker’s inappropriate conduct as the offender just being flirty, trying to be funny or cute, or justify the coworker’s advances because he’s “harmless.” However, conduct at the workplace amounting to sexual harassment is inherently destructive and is prohibited by Title VII and the Ohio Laws Against Discrimination. 

Are you or have you been in a situation at work where initially innocuous teasing or [attempted] flirting by a coworker, superior or boss is starting to hinder the performance of your job or affect you personally? There may be a case of Sexual Harassment for which Ohio Law gives you remedies. 

If you are a victim of sexual harassment or were discriminated against at the workplace, and would like to discuss your options with an Ohio Attorney, contact Kevin M. McDermott II at (216) 367-9181. Mr. McDermott will personally assess your case. Call (216) 367-9181 for a Free Consultation.

EEOC Files First Gender Bias Suits Based on Sexual Orientation

On March 1, 2016, in the case of EEOC v. Scott Medical Health Center, P.C., No. 2:16-cv-00225 (W.D. Penn. March 1, 2016), the Equal Employment Opportunity Filed one of the first suits alleging discrimination based on sexual orientation in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). Section 703(a)(1) provides that it is unlawful to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

While Title VII does not expressly prohibit discrimination based on sexual orientation, the EEOC claims that the Defendant violated the employee's rights on the basis of his sex, created a sexually hostile work environment, and unlawfully constructively discharged him in violation of the Statute.

In the Complaint, the EEOC alleges that the Defendant’s employees’ acts, including allowing and permitting a supervisor to call an employee a “fag,” “faggot,” and “queer,” violate Title VII and amount to unlawful discrimination. The EEOC contends that the supervisor's conduct directed at the employee was motivated by his sex (male), that sexual orientation discrimination necessarily entails treating an employee less favorably because of his sex that the employee, by virtue of his sexual orientation, did not conform to sex stereotypes and norms about males to which the supervisor subscribed; and in that the supervisor objected generally to Plaintiff’s lifestyle, causing a violation of Title VII.

The decision of the EEOC to take up such a case has been long expected since the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which held in a 5-4 decision that marriage is a fundamental right to same-sex couples under the Due Process and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It will be interesting to see how this case and others filed concurrently move through the courts as the Supreme Court has not yet held that sexual orientation is a protected class when interpreting Title VII.

Supreme Court Agrees to Hear Automotive Dealership "Service Advisor" FLSA Exception Case

The US Supreme Court has agreed to hear a case about whether car dealership workers, namely "service advisors," should be entitled to overtime pay. While certain car dealership workers such as mechanics, sales and parts personnel, and service writers have long been exempt from the overtime requirements of the Fair Labor Standards Act, other non-sales employees believe they are entitled to overtime compensation.

http://www.reuters.com/article/idUSL2N14Z313

Appeals Court Holds Disability Discrimination and FMLA Claims against the State of Ohio are Subject to Two Year Statute of Limitations.

In Coleman v. Columbus State Community College, No. 15AP-119 (10th Dist. Nov. 12, 2015), Belinda J. Coleman brought a lawsuit against Columbus State for discriminating against her because of her disability and under the Family and Medical Leave Act. Ms. Coleman suffered from fibromyalgia and polymyalgia rheumatic and argued that Columbus State harassed her, retaliated against her, and fired her for her disability. Ms. Coleman ultimately filed an action against Columbus State in the Court of Claims and Columbus State filed a motion to dismiss in the trial court arguing the claims are barred by the two-year statute of limitations as set forth in R.C. 2743.16(A), which allows for certain actions against the State of Ohio to be commenced no later than two years after the date of accrual of the cause of action. Ms. Coleman argued that the trial court should apply the 3-year statute of limitations for willful violations of the FMLA the 90 day statute of limitations under the ADA after the EEOC dismisses a charge. In addition, Ms. Coleman argued that the court should apply the doctrine of equitable tolling to her claims for her intentional infliction of emotional distress, negligent infliction of emotional distress, and state law discrimination claims.

            Ms. Coleman argued that R.C. 2743.16(A) was inapplicable to the ADA and the FMLA because the Supremacy Clause of the “mandates that federal law governs when litigants must file those claims, and that a state cannot alter the substantive features of claims established under federal law, including the applicable statutes of limitations.” In other words, Ms. Coleman argued that the federal limitation periods to her federal claims superseded those set by Ohio Law.

            The Tenth District was unconvinced, stating that “the Supremacy Clause does not confer authority upon Congress to abrogate a state's immunity from suit in its own court without its consent,” and that the State of Ohio has not consented to being subjected to the federal limitations periods for the ADA and FLMA. “[T]his court has consistently found that litigants cannot pursue claims against the state more than two years after the claim accrued ... Because federal law does not preempt or abrogate R.C. 2743.16(A) 's two-year filing requirement as to Coleman's FMLA and ADA claims, the trial court properly concluded Coleman's federal claims were untimely.”

            Addressing Ms. Coleman’s equitable tolling argument, the Tenth District noted that “[t]he doctrine is generally limited to circumstances in which an employee is intentionally misled or tricked into missing the filing deadline,” and here no exceptional circumstance warranted equitable tolling.

            This case underscores that Employees must pay particular attention to the Statute of Limitations in all contexts including when pursuing claims against the State. While Ms. Coleman, as she argued, was a victim of discrimination and retaliation, her failure to timely assert her rights as required under the Ohio Revised Code ultimately rendered her claims unattainable. The bottom line, Plaintiffs must be swift to assert their rights and remember that sometimes the nature of the Defendants, not the claims themselves, is determinative when deciding when to file suit.

            Are you a victim of discrimination or retaliation under the ADA, FMLA, or other State or Federal law at your place of employment? Kevin M. McDermott II can help. Call (216) 367-9181. I charge nothing for the opportunity to meet you and hear your story.