Admissibility of Co-Worker Statements in Employment Cases

For a simple explanation about using co-worker statements in the employment law setting, see my article at neellaw.com.

Prior Consistent Statements in Employment Cases

For a simple explanation about using prior consistent statements in the employment law setting, see my article at neellaw.com.

The Future of President Obama's Overtime Pay Reforms

Interesting article regarding what President-Elect Trump might do to gut President Obama's overtime pay reform efforts.

Ohio Makes It Easier To Obtain Public Records

The Columbus Dispatch reports that the Ohio General Assembly has passed legislation intended to streamline fights with government over public record requests. The law applies to all levels and types of government in Ohio. The article reports:

"On Sept. 28, the Ohio Court of Claims will begin accepting complaints on the refusal to release records by government at all levels, from townships to the state. The law *** will send complaints to a mediator who will work with citizens and government officials in an attempt to reach a resolution. If no agreement is reached, a special master will rule within seven days whether government was legally correct in denying a records request or broke the law and must hand over the records. *** The appeals process requires but a complaint form, a $25 filing fee and accompanying copies of the records requests and government denials."

Public record requests area great way to gather information before suing a governmental entity. This new law should help make it easier to obtain such information.

Employer's Religious Rights Win Out Over Transgendering Employee's RIghts

Anthony Stephens began working as a Funeral director for R.G. & G.R. Harris Funeral Homes in 2007. Six years later Stephens gave the funeral home a letter stating:

"Dear Friends and Co-Workers:

"What I must tell you is very difficult for me and is taking all the courage I can muster. I am writing this both to inform you of a significant change in my life and to ask for your patience, understanding, and support, which I would treasure greatly. . ..I have a gender identity disorder that I have struggled with my entire life. I have managed to hide it very well all these years . . ..

"I have been in therapy for nearly four years now and have been diagnosed as a transsexual. I have decided to become the person that my mind already is. Toward that end, I intend to have sex reassignment surgery. The first step I must take is to live and work full-time as a woman for one year. At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee Australia Stephens, in appropriate business attire. . .. It is my wish that I can continue my work at R.G. & G. R. Harris Funeral Homes doing what I have always done, which is my best!"

There was no question that Stephens intended to abide by the funeral home’s dress code for female funeral directors. After receiving the letter the business owner, Thomas Rost, decided to fire Stephens. There was no dispute that Rost based his decision on sincerely held religious beliefs.

The legal issue was whether the federal Religious Freedom Restoration Act (“RFRA”) trumped Stephens’ rights under Title VII, the federal anti-discrimination in employment law. Title VII prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” The U.S. Supreme Court has recognized that sex discrimination may manifest itself in stereotypical notions as to how women and men should dress and present themselves in the workplace. It’s referred to as sex-stereotyping. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The goal of the sex-stereotyping theory of sex discrimination is that “gender” “be irrelevant” with respect to the terms and conditions of employment and to employment decisions. Id.

The funeral home based its RFRA defense on the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). The majority in Hobby Lobby held:

“[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2); see also § 2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” § 2000bb–1(a). If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” § 2000bb–1(b)." Id. at 2761.

The district court applied the following analysis: (1) whether the law at issue substantially burdens the Funeral Home’s exercise of religion (Hobby Lobby, 134 S.Ct. at 2775); (2) if so, whether the Government can meet its burden of showing that application of the burden “to the person is (a) in furtherance of a compelling governmental interest; and (b) the least restrictive means of furthering that compelling governmental interest. Hobby Lobby, 134 S.Ct. at 2761.

Finding that Title VII substantially burdened the funeral home’s exercise of religion The court next assumed that the EEOC met its first burden of showing the anti-discrimination provisions in Title VII furthered a compelling governmental interest and, therefore, proceeded to the least restrictive means burden analysis. The court decided that the EEOC failed to satisfy this burden. The court’s analysis seems to hinge on a question it asked: “[C]ouldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here?” The funeral home’s owner, Mr. Rost, had testified in deposition that female funeral director’s could acceptably wear a business pants suit. Stephens agreed. To the court the issue was whether Stephens had a right to comply with the funeral home’s dress code (skirt and matching jacket) and decided she did not if she could be accommodated by being allowed to wear a business pants suit -- less restrictive means of enforcing Title VII.

Consequently, the court held that the funeral home was entitled to an RFRA exemption from Title VII. The EEOC has thirty days to appeal the decision to the Sixth Circuit Court of Appeals. Given its straightforward and undisputed facts, this is an excellent case for the Supreme Court to revisit its decision in Hobby Lobby in order to provide guidance on what is a re-occurring issue.

The case is EEOC v. RG & GR Harris Funeral Home, Inc. (E.D. Mich., Aug. 19, 2016).

Court Decides LGBT Discrimination is Lawful

Kimberly Hively sued Ivy Tech Community College claiming she was not promoted because of her sexual orientation. She based her claim on Title VII of the 1964 Civil Rights Act, arguing that employment discrimination against lesbians should be prohibited under Title VII. 

Hively of course is correct -- such discrimination should be unlawful. Title VII, however, is limited to discrimination based on race, color, national origin, sex or religion. Predictably the federal Seventh Circuit Court of Appeals decided that Hively's claim went "beyond the scope" of the statute. If Title VII is to apply to the LGBT community only Congress or the Supreme Court can make it happen.

Discrimination against gays, lesbians and others with different sexual make-ups should be illegal -- Hively was right about that. This won't happen without legislative action. Sad but true. 

The case is Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. 2016).

Police Shooting of a Non-Threatening Suspect Following A Car Chase Gives Rise to Viable Civil RIghts Case

Suing the police is a difficult endeavor because the qualified immunity doctrine shields government officials from liability for their exercise of discretion, unless their actions violate clearly established rights. Most civil rights cases against police officers fail for this reason. Moreover, after a trial court decides the qualified immunity question the case is immediately appealable. This means that years can go by before the plaintiff can even begin to engage in discovery on the merits, much less get a trial.

Sometimes though the evidence demonstrates a clear case under 42 U.S.C. section 1983, the applicable civil rights statute. For example, police officers who fire rounds into a suspect's vehicle when the chase ends but who have no reason to believe they are threatened are not going to be entitled to qualified immunity. That's what happened in Thompson v. City of Lebanon, Case No. 14-5711 (6th Cir., July 26, 2016). The police in that case killed the suspect.

Thompson's case merely survived a qualified immunity challenge. It took more than six years from the date of the incident to get a ruling from the court of appeals. The case now goes back to the trial court for further proceedings, assuming the defendants do not ask the U.S. Supreme Court to intervene. Justice delayed is justice denied. This case is prime example.

Workers' Compensation Retaliation Claim Does Not Require Proof Of A Workplace Injury

Following his termination Michael Onderko sued his former employer, Sierra Lobo, Inc. for workers' compensation retaliatory discharge under Ohio Revised Code 4123.90. The employer argued that Onderko's injury did not happen at work and that it terminated him for his “deceptive” attempt to obtain workers’ compensation benefits. The trial court threw out the claim because Onderko failed to prove his injury occurred at work. The Ohio Supreme Court upheld the court of appeals' reversal. The law in Ohio is now clear that retaliatory discharge under section 4123.90 does not require a showing that the plaintiff suffered a workplace injury. The court further held that a failure to appeal the denial of a workers’ compensation claim does not preclude a retaliatory discharge claim under section 4123.90.

The decision makes sense. The gravamen of a workers' compensation retaliatory discharge claim is retribution for the filing of a claim. The employee's entitlement to workers' compensation benefits is irrelevant. What matters is the employer's motivation for the discharge. Thus, the employer who decides to terminate an employee because of a workers' compensation filing is liable under section 4123.90, regardless of the employee's entitlement to benefits under the workers' compensation system.

You can read the Ohio Supreme Court's decision here:  Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027 (July 21, 2016).

From the Ohio State Bar Association:

Overtime pay is changing: What Is Changing

The U.S. Department of Labor has posted its final overtime rule. The Final Rule updates the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt, in particular it:

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); and
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)
Automatic Updates and Salary Basis Test

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.
Effective Date

The new rule takes effect Dec. 1, 2016. The initial increases to the standard salary level (from $455 to $913 per week) and HCE total annual compensation requirement (from $100,000 to $134,004 per year) will be effective on that date. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

Republicans Discriminate Against LGBT Americans

On July 21, 2014 President Obama signed an Executive Order prohibiting discrimination against Americans working for companies doing business with the federal government based on sexual orientation and gender identity. What a common sense decision. Why should employers be permitted to fire a fellow American because they are gay or because of their gender identity? There is no excuse for employment discrimination, period. Sure, employers should be permitted to "discriminate" between employees based on work quality or production, but because of who they are? Please.

Leave it to our current Republican Congress to authorize discrimination against people because of their sexual orientation and identity. On April 29, 2016, the Republican-controlled House Armed Services Committee voted to allow such discrimination. Why stop there? Why not not approve discrimination based on religion, color or any other trait?

We don't need bigots in Congress. Vote a straight (no pun intended) Democratic ticket in November.

Sixth Circuit Decides Hybrid § 301 Fair Representation Claim

Chillicothe Telephone Company terminated repair technician Jason Blesedell from his job of sixteen years for falsifying a timecard and impersonating a customer in telephone calls to the company. Blesedell had reported working on buried cables for four hours in the afternoon when work orders did not exist for that work and his GPS showed he had gone home early. The company met with Blesedell and his union representative to discuss the discrepancy. Following the meeting Blesedell called in and asked a dispatcher to change a work ticket to correspond to the story he had given the company at the meeting. The company believed that Blesedell made additional calls posing as a customer in order to manufacture evidence to address the company’s suspicions. Following his termination Blesedell filed a grievance but the union decided not to pursue arbitration, primarily because Blesedell’s version of events was not credible and conflicted with the evidence.

Blesedell filed a hybrid § 301/fair-representation claim, alleging the company breached the collective bargaining agreement in violation of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, by discharging Blesedell without just cause, and that the union did not fairly represent Blesedell in the grievance process.

This case is a prototypical hybrid § 301 case. Hybrid claims require proof of both breach of the union’s duty of fair representation and breach of the collective bargaining agreement by the employer. Employees may prove breach of the union’s duty by showing that the union’s actions or omissions during the grievance process were arbitrary, discriminatory, or in bad faith. Arbitrariness, discrimination, and bad faith each provides a separate route by which a plaintiff may prove breach. In addition to proving arbitrary, discriminatory, or bad-faith conduct, a hybrid-claim plaintiff must prove that a union’s actions or omissions “more than likely affected” the outcome of the grievance procedure.  Because a hybrid claim requires proof of both breach of the union’s duty and breach of the collective bargaining agreement by the employer, the entire claim fails absent a finding that the union breached its duty of fair representation.

A union acts arbitrarily only if its conduct “is so far outside a wide range of reasonableness as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991). The duty of fair representation requires a union to undertake a reasonable investigation to defend a union member, not an error-free one. Here, the union investigated the facts surrounding the grounds for termination and found that the termination would not be overturned through arbitration. Moreover, the court found, none of the union’s alleged failures in the investigation would have affected the outcome of Blesedell’s grievance.

The moral of the story for employees is simple – do your job every day and don’t lie to your employer.

"Ban the Box" to Become the Law for Federal Employers

Later today in Newark, New Jersey President Obama will announce an Executive Order prohibiting questions about criminal history on federal job applications. The announcement comes after years of nationwide lobbying by the "ban the box" movement. The Executive Order is geared toward giving people convicted of crimes a chance to land a job.

It's no secret that most employers reject job applicants who reveal a criminal history on a job application. Prohibiting criminal history questions on an application will at least keep people in the running for a job. Employers will still be permitted to run background checks. There are no laws forbidding employers to base hiring decisions on background checks, so the ban the box order may not result in more employment for people with a crime on their record. It will, however, increase their employment opportunities. It remains up to the individual to demonstrate that despite their history they have experience and skills that make them the most qualified applicant.

To help convicts get a job the State of Ohio created Certificates of Qualification for Employment ("CQE"). Ohio employers who hire a CQE holder are protected from lawsuits arising from conduct by the holder. Getting sued is often a reason why many employers do not want to hire people with a criminal history. Read more about the process of obtaining a CQE here.

FMLA, No-Fault Attendance Policies and the Statute of Limitations

          A recent case out of the federal Seventh Circuit Court of Appeals shows the danger of waiting to assert FMLA time-off rights. In Barrett v. Ill. Dep't of Corrs., unreported, Case No. 13-2833 (7th Cir., Oct. 20, 2015), plaintiff's employer had a no-fault attendance policy allowing 12 absences before termination. The plaintiff missed work one time each in 2003, 2004 and 2005 for FMLA-covered absences but did not assert her FMLA rights. The employer counted those absences against her under the attendance policy. Plaintiff's twelfth absence occurred in 2010 and resulted in her termination. Plaintiff waited seventeen months before filing suit in 2012.

          Plaintiff argued that the FMLA violation occurred upon her termination. The employer countered that the alleged FMLA violations occurred in 2003-2005 and, therefore, Plaintiff’s FMLA claim had to be filed within two years thereafter. The trial court and the Court of Appeals agreed with the employer.  The Court of Appeals reasoned as follows:

We begin with the statutory text. The FMLA provides that “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” *** To determine when the claim accrued, the statute tells us to identify the “last event” constituting the alleged FMLA violation.

          Without going into the full analysis, it’s pretty clear that the event giving rise to what was an FMLA interference claim was counting an FMLA-covered event as an unexcused absence under the attendance policy. Consequently, the FMLA-claim accrued at the latest in 2005. Plaintiff had until 2007 to bring the claim but waited until 2012 to file a lawsuit.  Too late.

          The moral of the story is that employees should not sit on their rights. Contact an employment lawyer (i.e., me) as soon as you’ve been nailed with an unexcused for medically-related reasons. I have had great success with FMLA/attendance policy cases, but no lawyer will be able to help you if you sit on your rights.

Visit me at NeelLaw.com

You can contact me via email through NeelLaw.com 

Halloween, Wicca and Religious Discrimination

          To most Americans October 31^st is Halloween. To members of the Wicca religion October 31^st is one of the most, if not the most, important “sabbats” (solar festivals) of the year. I know this because I was recently asked by a member of the faith whether her employer was legally obligated to give her the day off for religious observance on October 31^st.  I had to do a little research into the subject and what I learned is good news for witches and warlocks.  

          Federal courts are in agreement that Wicca is a religion protected under federal law just as mainstream religions are.  This from Saeemodarae v. Mercy Health Services-Iowa Corp., 456 F. Supp.2d 1021 (N.D. Iowa 2006):

Federal courts have recognized Wicca (also known under various names, including “the Wiccan (or Wiccian) religion,” “the Craft,” “witchcraft,” or “the Old Religion”) as a bona fide, established, or sincerely held religion that is protected, for example, by the Free Exercise clause of the First Amendment to the United States Constitution or Title VII of the Civil Rights Act of 1964. See, e.g., Dettmer v. Landon, 799 F.2d 929, 931-32 (4th Cir. 1986) (Wicca is a religion protected by the Free Exercise clause of the First Amendment to the United States Constitution); Van Koten v. Family Health Mgmt., Inc., 955 F. Supp. 898, 902 (N.D. Ill. 1997) (finding that Wicca was a “religion” within the meaning of Title VII), aff’d, 134 F.3d 375 (7th Cir. 1998) (table op.) (finding sufficient evidence to assume a prima facie case, including that the plaintiff was asserting protection on the basis of a “religion” within the meaning of Title VII).

See also Hedum v. Starbucks Corp., 546 F. Supp.2d 1017, 1023 (D. Or. 2008) (“There is no dispute that Ms. Hedum's practice of the Wiccan religion places her in a protected class”).

          What does this mean for employees who request a day off from work for religious observance on October 31st?   Thus, the employer who allows a Catholic employee a schedule change to attend services on Good Friday must treat members of the Wicca faith in the same manner on their important holidays, otherwise the employer is discriminating based on religion.

The Objective Test for Severe or Pervasive Sex Harassment

Dana Ellis worked for Jungle Jim’s grocery. Upon transfer to the seafood department her new supervisor, Caldas, started making lewd comments and suggestions on what she said was a daily basis.  Ellis cried and became physically ill because of her supervisor’s conduct. She needed her job, which paid $9.00 an hour. The store had a sex harassment policy in its employee handbook but Ellis didn’t follow it by complaining to her supervisor’s boss. A co-worker brought the harassment to the attention of management. The company reprimanded Caldas and told him to stop but the conduct continued albeit in a less direct way.

The law is clear as to what plaintiff’s such as Ellis must prove to win a hostile work environment sex harassment case:

Ellis must demonstrate: that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that 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," and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

The third element requires a two-pronged showing: the conduct in question must (1) be severe or pervasive enough to create an objectively hostile or abusive work environment, and (2) be subjectively perceived by the victim to be abusive.

When you read the opinion it seems abundantly clear that the supervisor created an abusive sexually charged work environment. Nevertheless, the trial court tossed the case on summary judgment because it decided that the supervisor’s conduct wasn’t bad enough to make it harder for Ellis to do her job. The court of appeals reversed that decision and sent the case back for trial. The trial court’s error was in making its own subjective determination that a reasonable person would have been able to put up with the supervisor’s behavior. This is what I believe is a common mistake judge’s make. The issue for the trial court is not the judge’s opinion of the plaintiff’s working condition; rather, the issue is whether reasonable people, sitting on a jury, could view the evidence as demonstrating the existence of a hostile work environment. It’s unfortunate that Ms. Ellis had to pursue a timely and costly appeal in order to correct what really is a simple application of the law.

Treatment of Direct Evidence in Age Discrimination Cases Under the ADEA

The federal Sixth Circuit Court of Appeals recently opined on how direct evidence of age discrimination under the ADEA is to be addressed on summary judgment. In Scheick v. Tecumseh Public Schools, Case No. 13-1558 (6th Cir., Sept. 2, 2015), the district court granted summary judgment in favor of the employer Plaintiff’s evidence consisted, among other things, of statements that “[t]he Board wants you to retire”  and that the employer "wanted someone younger.” The district court granted summary judgment, finding these statements not direct evidence of age discrimination.

The Sixth Circuit reversed based on the second set of statements, explaining as follows:

To prevail on a claim under the ADEA, it is not sufficient for the plaintiff to show that age was a motivating factor in the adverse action; rather, the ADEA’s “because of” language requires that a plaintiff “prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009) (citing Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 141-43, 147 (2000)). *** [A]fter Gross, we now look to whether evidence, if believed, requires the conclusion that age was the “but for” cause of the employment decision.

*     *     *

The first statement, made during the performance review, did not constitute direct evidence of age discrimination. As the district court found, McAran’s statement that the Board wanted Scheick to retire would require an inference to conclude that retirement was a proxy for age (as opposed to either years of service or a desire that he leave the position voluntarily). See, e.g., Scott v. Potter, 182 F. App’x 521, 526 (6th Cir. 2006) (finding the statement “[w]hy don’t you retire and make everybody happy” did not constitute direct evidence of age discrimination).

In contrast, McAran’s other two statements about wanting “someone younger” are not ambiguous and, if believed, do not require an inference to conclude that age was the but-for cause of the decision not to renew Scheick’s contract. First, the statements by McAran to Scheick on February 26 and March 15, respectively, represent direct references to age. See Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 794 (6th Cir. 2013) (involving statement “we want someone younger”). Moreover, the statements are not ambiguous despite the lack of an explicit statement that “the Board” wanted someone younger. Cf. Fuhr, 710 F.3d at 674 (finding ambiguities required inferences about what part of the “old boys network” took which unspecified retaliatory actions).

The Sixth Circuit, however, rejected the notion that presentation of direct evidence will always defeat an employer’s motion for summary judgment under the ADEA.

Thus, even when direct evidence of age discrimination has been offered, the question to be asked in deciding an employer’s motion for summary judgment is whether the evidence, taken as a whole and in the light most favorable to plaintiff, is sufficient to permit a rational trier of fact to conclude “that age was the ‘but-for’ cause of the challenged employer decision.” Gross, 557 U.S. at 178.

The Court ultimately concluded that “the evidence, taken as a whole and in the light most favorable to Scheick, is sufficient to permit a reasonable juror to conclude that Scheick’s age was the but-for cause of TPS’s decision not to renew the contract for his services.”

2016 Ohio Minimum Wage Same As 2015

Ohio’s minimum wage of $8.10 per hour for non-tipped employees and $4.05 per hour for tipped employees will stay the same in 2016.  A minimum wage of $7.25 will apply to smaller companies (yearly gross revenues of $297,00 and under) and to 14- and 15-year-olds.

Can Supervisors Enforce an Arbitration Agreement They Did Not Sign?

Plaintiff Rivera worked for Rent a Center. He sued his supervisor, Owens, for race discrimination. Owens presented an arbitration agreement between Rivera and Rent a Center and asked the court to dismiss or stay the case pending arbitration. The agreement provided arbitration of legal claims against not only Rent a Center but also against its employees. Rivera insisted that the agreement was between him and Rent a Center only.

The Cuyahoga County Court of Appeals reversed the trial court's decision denying Owen's Owens' motion. The reason? Pretty simple: Owens was a third-party beneficiary of the agreement. In short, basic agency and contract principles apply to arbitration agreements, including ones between employer and employee.  Rivera v. Rent A Center, Inc., 2015-Ohio-3765 (8th Dist., Sept, 17, 2015).

Overtime and Minimum Wages Under Ohio Law

The Cuyahoga County Court of Appeals recently issued a highly favorable opinion for employees seeking overtime and minimum wage payments. In Porter v. AJ Automotive Group, Inc., 2015-Ohio-3769 (8th Dist., Sept. 17, 2015), plaintiffs claimed nonpayment of minimum wages and overtime under the Fair Labor Standards Act ("FLSA") and the Ohio Minimum Fair Wage Standards Act ("OMFWSA"). The trial court decided that defendants were not "employers" as defined under the FLSA and the OMFWSA because plaintiffs did not establish that they met the $150,000 revenue threshold, but invoked its "equitable powers" and awarded plaintiffs the difference between what defendants had paid them and what they should have, and awarded plaintiff the difference. The trial court, however, did not not award liquidated damages, attorney's fees and costs which were otherwise available under the FLSA and the OMFWSA. Plaintiffs appealed that portion of the decision.

The court of appeals reversed, explaining:

{¶8} According to the trial court's decision, it reasoned that the OMFWSA did not apply because     plaintiffs failed to establish that AJ Automotive and Andrew Jackson met the definition of "employer" as contained in R.C. 4111.03(D)(2), which provides in relevant part:

(2) "Employer" means * * * any individual, partnership, association, corporation, business trust, or any person or group of persons, acting in the interest of any employer in relation to an employee, but does not include an employer whose annual gross volume of sales made for business done is less than one hundred fifty thousand dollars * * *.

{¶9} The trial court's reliance on this section to deny plaintiffs protection under the OMFWSA was flawed for two reasons. First, this section applies to "overtime" and does not relate to a claim for failure to pay minimum wage, which is the bulk of Porter and White's claims. R.C. 4111.02, which governs an employer's duty to pay minimum wage, expressly states that "[e]very employer, as defined in Section 34a, Article II, Ohio Constitution, shall pay each of the employer's employees at a wage rate of not less than the wage rate specified in Section 34a of Article II, Ohio Constitution." The statute does not contain a sales threshold within the definition of an employer.

{¶10} Article II, Section 34a, Ohio Constitution sets forth that "`employer' and `employee' shall have the same meanings as under the federal Fair Labor Standards Act or its successor law * * *." Under the federal FLSA, AJ Automotive and Andrew Jackson satisfy the broad definition of "employer," which is defined as "any person acting directly or indirectly in the interest of an employer in relation to an employee * * *." 29 U.S.C. 203(d). 

The court further stated that employers have the burden of proving their business' gross volume is less than $150,000 (citing Graham v. Harbour, 20 Ohio App.3d 293, 297, 486 N.E.2d 184 (10th Dist.1984).

The lesson here is that Ohio plaintiff's employment lawyers should plead overtime and minimum wage claims under the OMFWSA as well as under the FLSA. Moreover, according to Judge Robert McClelland of the Cuyahoga County Court of Common Pleas, trial courts have equitable authority to award minimum wages and overtime, even if the FLSA and OMFWSA do not apply. Clearly a victory for plaintiffs. Kudos to plaintiffs' lawyer, Alan Goodman, for his work on this case.

Halliburton Agrees to Pay $18,293,557 in Overtime Wages

The Department of Labor reports:

In one of the largest recoveries of overtime wages in recent years for the U.S. Department of Labor, oil and gas service provider, Halliburton, has agreed to pay $18,293,557 to 1,016 employees nationwide. The department’s Wage and Hour Division investigated Halliburton as part of an ongoing, multi-year compliance initiative in the oil and gas industry in the Southwest and Northeast.