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Employers such as restaurants, bars, strip clubs, and those who employ delivery drivers, among others, tend to pay employees at a rate that is less than the full minimum minimum wage. The difference is made up by customers who pay tips. This is called a “tip credit.” However, in order for an employer to enjoy the benefit of claiming a tip credit towards meeting the requirements of paying an employee minimum wage, there are a few rules that an employer must follow. If not, a “tipped employee” must be paid the full minimum wage for every hour he or she works. The employee may also recover double damages under federal law and triple damages under the Ohio Constitution (yes, that means triple damages for every hour). Before explaining in more detail, here are the 5 rules for “tipped employees:”

Rule #1: Tip credit employees must be paid at least minimum wage. This seems obvious, but employers fail to meet this minimum requirement due to a variety of reasons, such as an employee having a slow shift or an employer passes on business expenses onto the employee, among other reasons.

Rule #2: Under the Fair Labor Standards Act (FLSA) and Ohio law, a tipped employee is a worker who customarily and regularly receives tips that exceed $30 a month. It cannot be sporadic. For example, during months where you do not receive $30 or more in tips, you are entitled to the full minimum wage.

Rule #3: Managers, supervisors, and owners cannot retain tips. Tips are the property of the tipped employee and can only be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips (rule #2). This rule applies even if an employee is paid at least the full minimum wage for every hour.

Rule #4: Next, they must first be informed of their rights as a tipped employee prior to being paid less than the full minimum wage. If not, the employee must be paid the full minimum wage. For example, any of tip credit provisions such as (1) the amount of cash wage the employer paid tipped employees; (2) the additional amount claimed by an employer as a tip credit, which cannot exceed $5.12; (3) that the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee; (4) that all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and (5) that the tip credit will not apply to tipped employees unless the employee has been informed of the tip credit provisions.

If a “tipped” employee is not first informed of these rights, an employer cannot pay them less than the full minimum wage.

Rule #5: While Ohio law mirrors the FLSA, there is a slight wrinkle in that Ohio’s minimum wage has increased each year (while federal minimum wage has not). Under Ohio law, employers may claim a tip credit of up to half of the full minimum wage during the applicable year. The applicable minimum wage rates have increased the last several years, so if an employer keeps an employee’s rate at the same rate despite Ohio’s minimum wage increasing the next year, it would violate the Ohio Constitution. For example, let’s assume an employee is paid $4.28 per hour (which is 1/2 of the minimum wage rate in Ohio for 2019). In 2020, it increased to $8.70, which means the tip credit rate for that year was $4.35 per hour (1/2 of the minimum wage rate). If an employee is still paid $4.28 per hour, it would violate the Ohio Constitution and the employee is entitled to be paid the full minimum wage for every hour (plus triple damages).

What is a tipped employee?

While tipped workers can be paid less than the minimum wage, there are many ways in which they are paid less in violation of the law, including misclassifying employees as a tipped worker, miscalculating overtime pay on the wrong basis, or operating a tip pool improperly.

Many times, individuals assume they are being paid properly because they receive tips and trust that their employer is complying with the law. However, the rules governing tipped employees are complex and require the attention of a wage and hour attorney who regularly practices in this area of the law.

In Ohio, a tipped employee is an employee who:

  1. regularly and customarily receives $30 or more per month in tips; and
  2. must be paid at a legal base rate of ½ of Ohio’s minimum wage for the applicable year.

For example, if Ohio’s minimum wage in 2021 is $8.80, you must be paid at least $4.40 per hour and regularly and customarily receive $30 or more per month in tips. In Ohio, employers with annual gross receipts of at least $305,000 are subject to Ohio law. 

Employees must be paid the minimum wage when tips are combined with the tipped hourly wage. The federal minimum wage is currently $7.25 per hour; Ohio’s is $8.80 per hour (for 2021, but Ohio’s minimum wage is expected to increase in 2022 onward). If you are not receiving at least the applicable minimum wage (i.e., the employer had a slow week and the like), the employer must make up the difference in wages so that you are paid the minimum wage.

Tip credit

As explained above, tip credits allow employers to pay employees less than the minimum wage, as long as employees’ combined tip and cash wage earnings are equivalent to the minimum wage or exceed minimum wage.

Tip credits are calculated by subtracting the cash wage from the minimum wage (minimum wage – cash wage = tip credit). The FLSA allows a tip credit of $2.13 per hour against the federal minimum wage of $7.25 per hour. In Ohio, employers must pay a tipped employee at least half of the applicable minimum wage for that year. For example, the minimum wage in Ohio for 2021 is $8.80, and the cash wage is $4.40. By subtracting $4.40 from $8.80, the tip credit will be $4.40 ($8.80 – $4.40 = $4.40).

  • must regularly make $30 in tips each month
  • be paid an hourly cash wage
  • retain all tips
  • be given advance notice of tip credit either orally or in writing

In Ohio, the tip credits claimed by the employer cannot exceed $4.40 or the amount of tips a tipped employee receives. If the employee’s tips and cash wage do not equal the minimum wage, the employer is required to make up the difference.

Employers are required to inform tipped employees of tip credit policies. Relying on the information that employees may be able to infer from pay stubs does not count as informing employees.

Failure to inform employees about tip credit policies means employers cannot legally claim tip credits.

Job duties that do not generate tips

In addition, there are many examples where a “tipped employee” performs non-tip-generating job duties (i.e. security personnel, rolling silverware, folding napkins, bussing tables, cleaning up, setting up, closing down, among other scenarios). If a tipped employee spends 20% or more of the workweek performing the non-tipped job duties, you must be paid the full minimum wage for such hours associated with those duties.

Overtime for tipped employees

Are tipped employees entitled to overtime?

Yes. However, this is where violations are likely to occur. As to federal law, employers must multiply the federal minimum ($7.25 per hour) wage by 1.5, then subtract the amount of tip credit used to arrive at the correct overtime rate of pay. If this formula is not followed (as to federal law), you could be entitled to seek unpaid overtime compensation (and double damages). 

Tip pooling

The FLSA and Ohio law allows employees to participate in a practice called tip pooling. It may also be referred to as tipping out or a tip pool. In general, tips belong to the employee. The employer cannot make employees give them their tips unless a valid tip pooling arrangement exists.

When an employer requires tip pooling, this means all employees in the pool must chip in a portion of their chips, which are then divided among a group of employees to be split out of a percentage. Tip pools are legal so long as they are done according to company policy AND only those who customarily and regularly receive tips. For example, if tips are shared with managerial employees, security personnel, or other non-tipped employees, this could result in a minimum wage violation. In such instances, an employee is owed the full minimum wage, reimbursement of tips that were not properly utilized by the employer, and other damages.

Scenarios when employers could violate the law for tipped employees

Given these laws are complex, some common wage violations of tipped employees’ rights include:

  • tip pools are shared with non-tipped employees (or non-tipped employees take tips such as managers, supervisors, and owners)
  • not paying overtime correctly or not paying overtime for hours worked over 40 in a workweek
  • not paying the correct tip credit rate
  • employees are paid 100% in tips (rather than a cash wage by the employer).

How paying credit card tips to employees affects tipped employees

Tipping with a credit card has become more commonplace, and there are some confusing aspects to how this affects tipping.

In some cases, employers must pay a percentage to the credit card company on each sale. Some states allow employers to subtract a proportionate amount of the tip to cover some of the employee’s share of the fee. If a credit card company charges a 4% fee, an employer could legally reduce an employee’s tip by 4%.

Currently, Ohio law does not address credit card charge issues, making this issue confusing and complex to navigate.

Federal law currently states that the credit card charge, when subtracted from an employee’s tip, cannot result in less than minimum wage. 

Contact Bryant Legal, LLC if you have questions about your rights as a tipped employee for more information

If you are a tipped employee in Ohio and you suspect your rights as a tipped employee may have been violated, contact Bryant Legal, LLC today to speak with our experienced employment law 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.

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.

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 wagesovertime wagesfamily and medical leaveunemployment 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.

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

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

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

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

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

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

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

1. Administrative Exemption

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

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

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

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

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

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

2. Professional Exemption

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

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

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

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

3. Executive Exemption

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

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

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

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

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.”

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).

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.

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 requirements for the exemption:

  • guaranteed salary of at least $455 per week;
  • primary duty is managing the employer or a customarily recognized department or subdivision of the employer;
  • the employee regularly supervises two or more full-time employees or their equivalent; and
  • the employee has the authority to hire/fire, or the employee’s recommendations in this regard are given particular weight by management.

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.

The purpose of damages in an employment case is to put an employee back in same place they would have been if it weren’t for the employer’s actions or inaction. There are several ways a court tries to accomplish this goal, a non-exhaustive list of which can include back pay, front pay, and punitive damages. To learn more about damages and your rights related to damages, please refer to the frequently asked questions/answers below. For more information on your specific employment issue, please contact the Ohio employment attorneys at Bryant Legal, LLC to discuss in more detail. You may utilize the contact form or call either the Columbus, Ohio, or Toledo, Ohio, office location.

1. If I win my case, what will I receive?

The damages a court can award depend on the type of claim. Damages include all of the financial and emotional losses a person suffers as the result of an employment dispute. The purpose of a damages award is generally to put the individual back into the same place they would have been had they not lost their job. In most federal and Ohio discrimination cases (depending on each unique set of facts), the employee is entitled to receive the following types of damages:

  • Back pay;
  • Front pay or future damages;
  • Lost benefits (e.g. health, vacation, sick leave, and pension;
  • Reinstatement;
  • Reasonable accommodations;
  • Compensatory damages;
  • Liquidated damages; and
  • Punitive damages.

2. Will I be able to receive all of the back pay that I would have earned had I not lost my job?

Back pay and benefits are among the types of damages most typically awarded in successful employment cases. Back pay includes all of the wages, salary, bonuses, commissions, and benefits lost because of an unlawful dismissal or discrimination, minus any amount the employee was able to earn in the interim. This offset is known as “mitigation,” which basically means your efforts in an attempt to limit your damages (discussed below).

Back pay includes much more than your salary or wages. It includes interest, overtime, shift differentials, and raises you would have received. The value of employer-provided housing lost because of the discrimination is part of a back pay award. Back pay is calculated from the date of the discrimination or job loss to the date of the court’s decision.

3. Will I be able to receive all of the benefits that I would have earned had I not lost my job?

All of the benefits an individual lost because of the discrimination or unlawful action are included in the amount of back pay. For example, you should be paid for unused earned vacation time plus vacation time accrued up to the court’s decision. If your company allots a certain number of sick days per year, you are entitled to the value for the number of unused sick days you have earned. If the company pays for health or life insurance benefits, you should receive the value of the premiums or benefits the company would have paid had you continued to be employed. Your former employer may also be required to pay any unreimbursed medical expenses which would have been covered by the employer’s health plan.

Back pay also includes all forms of pension benefits that you have earned or accrued. Adjustment to pension benefits made during the time period of your case would also be included. Essentially, anything that was part of the compensation and benefits provided by your employer may be part of the back pay award.

4. Can I get my job back? (“Reinstatement”)

Reinstating employees into the jobs they lost is the preferred remedy by courts in discrimination cases, and may be a remedy in other kinds of cases as well. Sometimes, however, courts will not order reinstatement because of the now-hostile relationship between the former employer and employee, or because there is no longer a job available. As a result, employees can pursue what is commonly referred to as “front pay” (see below).

5. What damages can I receive if I am not reinstated to my previous position?

If a court believes that reinstatement is not appropriate given the circumstances, it generally awards “front pay,” which is the amount of compensation and benefits the court views necessary to make up for the difference in pay that the employee would have earned in the future. The amount of front pay depends on how long the court finds it will take the employee to return to the same level of pay that he had when he was terminated. Front pay includes all lost benefits, just as back pay does.

6. What are “compensatory” damages?

The purpose behind compensatory money damages is that they are intended to make you “whole.” Compensatory damages are also called actual damages. In employment cases, they refer to the damages that are harder to measure, such as the following:

  • Emotional distress
  • Pain and suffering (such as grief, fright, anxiety, humiliation, and depression)
  • Permanent disability
  • Mental impairment
  • Medical bills

In employment discrimination cases brought under the federal anti-discrimination law, Title VII, the compensatory and punitive damages (but not back pay) that a jury could award to plaintiffs for discrimination are capped. If the employer has:

  • 15-100 employees, the cap is $50,000
  • 101-200 employees, the cap is $100,000
  • 201-500 employees, the cap is $200,000
  • 500 employees and up, the cap is $300,000

Other types of cases may not be subject to these caps.

7. What are “punitive” damages?

Punitive damages are damages awarded in cases of malicious wrongdoing to punish or deter the wrongdoer or deter others from behaving similarly. In employment cases, punitive damages are designed to punish the employer and make it an example for others, where it can be shown that the employer intentionally discriminated with malice or reckless indifference.

Despite a popular misconception, the employer’s conduct need not be “egregious” to allow an award of punitive damages. It is not the seriousness of an employer’s conduct that governs whether punitive damages will be awarded, but its intentions: did the employer “discriminate in the face of a perceived risk that its actions will violate federal law.” At bottom, it must be determined whether the employer knew that a particular action was discrimination that was against the law, and still decide to do it anyway?

Employers who adopt an anti-discrimination policy, effectively enforce the policy, and thoroughly document the policy’s strict enforcement may use the policy as a “good-faith” defense against punitive damage awards, as well as decrease the likelihood that discriminatory conduct will occur in the first place.

Punitive damages are not available against the federal, state or local governments, but only against private employers. Punitive damages are very rarely awarded by courts. Many employers choose to settle cases in which their exposure to punitive damages is significant, to avoid the potentially large financial liability as well as the negative publicity resulting from a public award of punitive damages imposed by a jury.

However, in the event punitive damages are awarded, the amount can be significant. The combination of punitive and compensatory damages is capped in federal discrimination cases under Title VII according to the employer’s size. These caps may not apply, however, to cases brought under laws other than Title VII.

8. What are “liquidated” damages?

Liquidated damages are referred to as a type of punitive damages, where the penalty amount for a proven violation of a law or a contract provision is designated in advance.

Under the law, a penalty amount such as “double damages” or “treble damages” is a common liquidated damages penalty. For example, while the Age Discrimination in Employment Act (ADEA) and the Fair Labor Standards Act (FLSA) do not provide for punitive damages, liquidated damages of up to twice the amount of back pay may be awarded in the event of a “willful” violation, if the employee proves that employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute.

Under the FLSA, liquidated damages are considered the norm and are presumed. However, if and only if an employer shows that it acted in good faith and that it had reasonable grounds to believe that it was not violating the FLSA, a court may in its discretion limit the amount of liquidated damages. Importantly, it i the employer’s burden to prove it acted in good faith and its actions were reasonable.

Liquidated damages provisions are also common in contracts. For example, if you settle your lawsuit against your employer with a confidentiality provision, which requires you to keep the amount and certain facts about the resolution of your case a secret, the settlement agreement may have a liquidated damages clause which requires you to pay the employer a pre-designated amount for violating the agreement.

9. What do I have to do while my case is pending in court or with an administrative agency?

In employment cases, you must make a good faith effort to reduce the money that you have lost in wages because your former employer caused you to lose your job. These efforts are referred to as “mitigation” of damages. As a discharged worker, you have two obligations:

  1. to make reasonable efforts to find employment; and
  2. to accept employment of a “like nature,” if offered.

If the other side can convince the judge or jury that you did not do what was reasonable, you could win your case, but still be awarded only one dollar (called “nominal damages”). However, if you did reasonably look for other work, you will not be denied damages for lost wages just because your efforts were unsuccessful and even if your efforts could have been “more exhaustive.”

10. How much is my case worth?

It depends on the type of claim, which can be clarified after speaking with an employment attorney at Bryant Legal, LLC. Typically, the underlying damages award depends on how much the individual made during his or her employment. In most cases, employees who have lost their jobs due to discrimination are entitled to their lost wages and benefits. Employees can also seek punitive and compensatory damages in cases alleging discrimination based on race, sex, religion, national origin, color, creed, or disability under Title VII. The employee must prove that the employer engaged in a discriminatory practice with “malice or with reckless disregard” for the employee’s rights. Intentional actions by an employer causing the embarrassment, mental distress or humiliation of a person because of race or sex will support an award of punitive damages. An employer’s failure to take action to protect employees from racial or ethnic slurs of fellow employees can also entitle the employee to punitive damages. As referenced above, there are dollar limits on the amount of punitive and compensatory damages that can be awarded in cases alleging discrimination based on race, sex, religion, national origin, color, creed, or disability under Title VII.

In other cases, e.g. the federal Age Discrimination in Employment Act (ADEA), the Equal Pay Act, and the Family and Medical Leave Act, individuals who win their cases and prove that the discrimination was “willful” can get liquidated damages, which is double the back pay award. Employees alleging retaliation under federal statutes can also get compensatory damages.

11. Are my attorneys’ fees covered?

If you win your case, yes. Under the federal discrimination laws and Ohio’s laws prohibiting discrimination, the employer must pay your attorneys’ reasonable fees if you prevail in your case. This prevailing party provision under federal and Ohio laws prohibiting discrimination is in place because, under normal circumstances, terminated employees do not have money lying around to pay an attorney at an hourly rate. As a result, attorneys can be retained on a contingent basis (no payment of attorney fees unless an amount is recovered).

12. What other damages can I recover while my case is pending?

Due to the fact that legal action often takes over a year (often longer) to really address the merits of the case, courts typically award prejudgment interest as an essential part of the back pay award. Prejudgment interest serves to compensate for the loss of the use of money you would have had absent the discrimination or loss of your job. The courts have substantial discretion in the calculation of prejudgment interest, including the interest rates to apply and the manner of compounding the interest.

For more information about your damages, the employment attorneys at Bryant Legal, LLC are happy to discuss your employment matter with you. Please utilize the contact form or call either the Toledo, Ohio or Columbus, Ohio office location to schedule a free initial phone consultation.