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.

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.