Current Issue in Employment Law

Guest post by my friend Jack Malkin

       There has been a recent trend in the workplace that does not involve complaints of discrimination or harassment.  Employees are now pursuing claims for overtime under the provisions of the Fair Labor Standards Act; and in Ohio, pursuant to ORC Section 4111.03.              

R.C. 4111.03(A) provides that an employer must pay an employee for overtime at a wage rate of one and one-half times the employee’s wage rate, for hours worked in excess of 40 hours in one work week, unless the employee is exempt under Section 7 and Section 13 of the Fair Labor Standards Act of 1938 (“FLSA”).  If an FLSA exemption applies, then the employee is not entitled to overtime pay under R.C. 4111.03(A).

Exemptions are narrowly construed against the employer. The employer must demonstrate by clear and affirmative evidence that the employee is covered by the exemption.  Because there is a presumption of non-exemption, the exemption is applied only in “‘those circumstances plainly and unmistakably within the exemption’s terms and spirit.’” The manner in which an employee spends his time is a fact question, but the issue of whether the employee’s duties fall within an exemption is a question of law. 

As an example of a typical exemption, an individual employed as an outside salesperson who is compensated by commissions is an exempt employee. R.C. 4111.03(D)(3)(d). However, an employee cannot be considered an outside salesperson unless, in performing his/her job duties, he/she is “customarily and regularly engaged away from the employer’s place or places of business.”

To successfully maintain an action for overtime under the FLSA, a plaintiff has the burden of establishing all of the following: 1) that plaintiff was non-exempt under R.C. §4111.03(A); 2) that plaintiff has in fact performed work for which he/she was improperly compensated; and 3) that the defendant employer had actual or constructive knowledge that plaintiff was working overtime hours.

Unless this “three-pronged” requirement is met, a plaintiff fails to meet his/her burden under the FLSA to maintain an overtime claim.  An employee must present sufficient evidence to establish that he/she in fact worked overtime hours and evidence that the employer had actual or constructive knowledge of any overtime.

The recent trend of pursuing claims for overtime has gained momentum because attorneys are keenly aware that in addition to actual damages for failure to compensate an employee for overtime hours, reasonable attorney fees can be awarded.  From a financial standpoint, this makes these cases attractive to those representing employees and often results in settlement to avoid large attorney fee awards.        

For more on your rights and obligations as an employer, please contact Jack for guidance and assistance. Visit Jack Malkin Attorney or call (216) 751-7708.

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