Off the Clock Work Under the Fair Labor Standards Act

Employee Recovery for Off the Clock Work Despite a Contrary Company Policy

In the off the clock work case of Bailey v. Titlemax of Ga., Inc., 776 F.3d 797 (11th Cir. Ga. 2015), the Eleventh Circuit decided a case that has important implications for whether an employee may recover under the Fair Labor Standards Act for unpaid overtime where the employee was “acquiescing” in working off the clock.

The Eleventh Circuit found that the supervisor was aware that the employee was working off the clock and the supervisor’s knowledge was imputed to the employer for the off the clock work. This was so, even though the company had a policy which prohibited off the clock work and even though the employee was aware of this policy. This important case essentially held that an employer cannot assert that an employee has unclean hands because the employee did not report all the hours he worked, although there was a company policy that said the employee was required to do so and which prohibited off the clock work. The important point to take away from this case is that if an employee is working off the clock, and the supervisor knows or should have known, then the employer is liable for the unpaid overtime.

Visit www.toledounionattorney.com to learn more about your rights under the Fair Labor Standards Act.

Probate Process in Ohio

Informal Stages of Estate Administration and Probate of a Will in Ohio

Generally, the chronological summary of the probate process in Ohio and the administration of an estate once opened with the probate court begins with locating the will or other estate planning documents and the initial examination of the will or other estate planning documents by an attorney licensed to practice law in the State of Ohio. Additional informal preliminary stages of the process include meeting with potential beneficiaries identified in the estate planning documents. The opening of the estate must be accomplished in a reasonable time after the death of the decedent.

Formal Stages of Estate Administration and Probate of a Will in Ohio

Next, are the initial formal stages of the probate process in Ohio, such as probating the will, appointment of the fiduciary, and collection of the estate assets. These initial stages of the probate process in Ohio are accomplished by filing particular forms with the Probate Court and happen fairly quickly after the estate is opened.

Final Matters of Estate Administration and Probate of a Will in Ohio

There follows a consideration of inventory and appraisal, tax planning, and filing of accounts. The final matters involve the approval of attorney fees, payment of claims and taxes, distribution of assets, and termination of the estate.

Visit www.charleshermanlaw.com to learn more about the probate process in Toledo, Ohio and Lucas County, Ohio and to see how an experienced Toledo Probate Attorney can help you.

What are my remedies if I believe that my employer has not paid me overtime?

Enforcement Options To Collect Unpaid Overtime

The Secretary of Labor is authorized and directed to administer the provisions of the FLSA. (29 U.S.C. §§ 204 and 211) The Wage and Hour Division of the Employment Standards Administration within the Department of Labor issues rules, regulations and interpretations under the Act and conducts compliance reviews. (FLSA regulations and interpretive guidelines may generally be found at 29 C.F.R. Part 500-899) All employees protected by the FLSA also have a private right of action to recover minimum wages and overtime compensation. (29 U.S.C. § 216(b))

Civil Action by Secretary of Labor.

Violations of the overtime provisions may be enforced in a civil action filed in the name of the Secretary of Labor under Section 16(c) of the FLSA. The Secretary of labor may institute suit in any court of competent jurisdiction to recover back wages and an equal amount as liquidated damages on behalf of aggrieved employees. (29 U.S.C. § 216(c)). Sums recovered in any action filed by the Secretary are held in a special deposit account and paid directly to affected employees on order of the Secretary. (29 U.S.C. § 216(c)).

Private Litigation by Aggrieved Employees

Individual Lawsuits.

An aggrieved employee may file a lawsuit for unpaid overtime pay and an equal amount as liquidated damages, plus attorney's fees and court costs. (29 U.S.C. § 216(b)). In addition, an employee may sue an employer who discharges or otherwise discriminates against him or her for asserting rights to which he or she is entitled under the Act. (29 U.S.C. §§ 215(a)(3), 216(b)).

The vast majority of courts agree that union members may bring an FLSA suit without resorting first to the grievance-arbitration provisions contained in their collective bargaining agreements, since an employee's right to pursue overtime claims in court is deemed independent of any contractual rights to arbitrate wage claims.(Bratten v. SSI Servs., Inc., 185 F.3d 625 (6th Cir. 1999)).

Class Actions.

Section 16(b) permits one or more employees to maintain an action, on behalf of themselves and others similarly situated, to recover damages on any of the bases available for individual relief. (29 U.S.C. § 216(b); 29 C.F.R. § 790.20). Section 16(b) collective actions are not, however, traditional class actions. Under section 16(b), an employee does not become a party plaintiff in a collective action unless he or she first gives a written consent to become such a party, and that consent is filed with the court. (29 U.S.C. § 216(b); 29 C.F.R. § 790.20). Generally, a class member must 'opt in' to be bound. For statute of limitations purposes, consents to become a party to the lawsuit must be filed before the limitations period has run; consents filed after the filing of the original complaint do not relate back to the date the complaint was filed. (29 C.F.R. § 790.20).

Disability Discrimination Case out of Sandusky, Ohio

Yost v. Sandusky, 2015-Ohio-805

Disability discrimination case brought under the Ohio Civil Rights Act, where a battalion chief with the fire department was diagnosed with Parkinson's disease. Medical examinations found him unfit for duty. The court found that the City of Sandusky's reliance on the recommendations of the physicians prevented the claim that they engaged in an unlawful discriminatory practice.

Ohio Revised Code 4112.02, the Ohio Civil Rights Act, prohibits disability discrimination and provides that it is an unlawful discriminatory practice:

"For any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. R.C. 4112.02(A)."

An employee is considered “disabled” where he or she has

"a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment." R.C. 4112.01(A)(13).

In order to establish a prima facie case of disability discrimination, a plaintiff must establish:

"(1) that he was [disabled or regarded as disabled], (2) that an adverse employment action was taken by an employer, at least in part, because the individual was [disabled], and (3) that the person, though disabled], can safely and substantially perform the essential functions of the job in question." DeBolt v. Eastman Kodak Co., 146 Ohio App.3d 474, 2001-Ohio-3996, 766 N.E.2d 1040, ¶ 39 (10th Dist.), citing Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 697 N.E.2d 204 (1998).

Labor Representation - UAW and VW

Multiple Tiered Bargaining Representatives

Volkswagen has a new policy that allows labor organizations that can prove they represent at least 15% of the workers at a plant to represent those workers in workplace discussions. This is a very interesting concept. The policy goes onto state that if any union does in fact desire to become the exclusive bargaining representative of the workers, that they must do so in the normal method by going to the National Labor Relations Board and petitioning.

NFL Concussion Lawsuits

NFL Concussion Lawsuits

The lead attorney in this lawsuit recently spoke at a seminar that I attended here in Toledo, Ohio. He made some very interesting points regarding preemption arguments raised by the NFL and how that issue, which was never decided by the Court, played into their decision to settle the lawsuits.

Public Sector Agency Fees

Public Sector Agency Fees

Harris v. Quinn, 573 U. S. ____ (2014)

The U.S. Supreme Court's decision in Harris v. Quinn, 573 U. S. ____ (2014) creates a situation where only full-fledged public employees must pay agency fees, thereby exacerbating the problem of free riders obtaining rights bargained for by their labor representatives without having to pay towards any of the costs. In this case, the Court found that Illinois' Public Labor Relations Act which permitted union security agreements violated the First Amendment. The case involved personal assistants who had voted to have a labor organization represent them as their exclusive bargaining representative. Both the State and the individuals receiving care from the personal assistants had a role in the employment relationship. The recipients of the services defined the personal assistants’ duties and controlled their hiring, firing, training, supervising, and disciplining. However the State paid the personal assistants through medicaid. The Court found that because of this, the personal assistants were not full-fledged employees of the State and could not be required to pay public sector agency fees for the bargaining activities performed on their behalf.

As a result of this decision, organized labor can expect that the assault on public sector labor unions will continue.