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Federal board rules that employee advocacy for non-employees is protected. American workers have long had the legal right to collectively advocate for themselves on labor law matters, such as better pay and working conditions. However, there have often been disputes on just how far that right to concerted action extends. In a win for employees, the National Labor Relations Board (NLRB) recently ruled that federal labor law protections extend to employee advocacy for non-employees such as interns and job seekers. That means employees are legally protected from retaliation in those situations. If your rights have been violated by your employer, contact an experienced employment law attorney today to find out how we can help. What’s protected by the National Labor Relations Act (NLRA)? The NLRA, passed in 1935, is a foundational statute in United States labor law. The NLRA protects employees who engage in “concerted action” to address labor issues such as pay, benefits, and working conditions. While the NLRA protects labor unions, you don’t have to be part of a union to enjoy the NLRA’s protections. Any sort of concerted action to address labor issues is protected, including but not limited to: Speaking up with a group of coworkers about labor issues, such as unfair pay practices or unlawful harassment. This includes raising concerns with your employer, an appropriate government agency such as the EEOC or NLRB, or the media. Communicating with your coworkers about pay, benefits, and working conditions, inside or outside the workplace. (This means, for example, that if your employer has a policy saying you can’t talk about your pay, that policy is unenforceable.) Circulating petitions, information about unionization, or any other materials meant to rally collective support on a labor-related issue. Making preparations for labor-related concerted activity—even as an individual employee. Remember, though, that the NLRA’s protections are specifically for advocating for labor issues like pay and working conditions. If you speak out about problems with your employer’s products or services, for instance, that sort of advocacy is typically not protected by the NLRA (although it may be protected by other laws). The new NLRB decision protects employee advocacy for non-employees in the workplace The NLRB’s recent decision concerned the American Federation for Children (AFC), a nonprofit organization that advocates for school choice. AFC allegedly pushed an employee named Sarah Raybon to resign after she suggested that her boss’s reluctance to re-hire a Hispanic former coworker was motivated by race. Raybon also attempted to rally coworkers in support of bringing back their former colleague. In a 3-1 ruling, the NLRB determined that because the former coworker had applied to get her previous job back, she counted as an “employee” for labor law purposes. This means Raybon’s advocacy was protected concerted activity on behalf of a fellow employee. However, the NLRB took that decision a step further, determining that even if the former colleague were not an employee, Raybon’s activities would still be protected by the NLRA on the grounds that she was advocating for the "mutual aid and protection" of AFC's workforce. This decision has significant implications for all sorts of employee advocacy for non-employees, including not only job seekers but also interns, contractors, and so on. It also speaks to a broader legal reality: if you raise concerns about pay and working conditions at your job, you have legal protection against retaliation, and if your employer violates those rights, you have recourse. Talk to an experienced employment law attorney today However, to protect your legal rights, you need an experienced advocate in your corner. Federal labor and employment laws are complex, and whether a particular provision applies in your specific case is a highly fact-specific matter. An experienced employment lawyer can investigate your situation, explain your options, and advocate for your rights every step of the way. If you believe you have been retaliated against for speaking up about a labor issue, or if your employer has violated any of your legal rights, contact us online to schedule a free case evaluation with Nilges Draher LLC. Our conversation is confidential and there is no obligation to hire us, just answers about your options.

The past several years have seen numerous legal and practical changes in the area of workplace harassment. The federal agency that investigates harassment claims is now proposing new guidance to clarify employees' rights and employers' responsibilities. Last month, the Equal Employment Opportunity Commission (EEOC) announced new proposed guidelines for employers regarding illegal workplace harassment. The EEOC previously announced new guidelines in 2017, but they were never adopted. As changing workplaces grapple with new challenges and patterns of behavior, it's important for employees to know their rights. If you believe you are a victim of unlawful harassment at work, contact Nilges Draher LLC today. We can help. What's the definition of workplace harassment? While the new guidelines are a significant step, the basic definition of unlawful harassment has not changed. Harassment includes: Unwelcome conduct based on a protected characteristic such as sex, race, color, religion, pregnancy, disability, age (over 40), or national origin, and either: Enduring the offensive conduct becomes a condition of continued employment (quid pro quo), or The offensive conduct is so severe and pervasive to create an intimidating, hostile, or abusive work environment. Typically, harassment claims are based on a pattern of behavior, although single incidents can rise to the level of harassment if they are particularly egregious. Unlawful harassment can be committed by anyone in the workplace: supervisors, coworkers, contractors, and non-employees, such as customers and vendors. Moreover, you don't have to be the direct target of harassing behavior to have a claim; anyone who is affected by unlawful harassment in the workplace has legal recourse. How would the new guidelines affect harassment cases? The new guidelines aren't a change to the baseline definition of harassment but rather a clarification of how recent changes in the law and the workplace have affected the enforcement of harassment claims. Specifically, the new guidelines: Address the effects of Bostock: In Bostock v. Clayton County, the Supreme Court found that sexual orientation and gender identity are legally protected characteristics. The new guidelines clarify that harassment on the basis of sexual orientation or gender identity is unlawful. Take into account social media and digital technology: The new guidelines address the proliferation of digital technology and digital harassment to explain how online content can contribute to hostile work environments. Provide updated examples to address scenarios: With the post-COVID rise of remote and hybrid workplaces, the forms of harassment that can affect employees have changed. The EEOC's new guidelines would provide additional examples that apply to contemporary workplaces. Again, the new guidelines are not themselves new law; they reflect changes in the law and in circumstances that have already happened. However, they would put employers on notice about their responsibilities and advise employees of their legal rights. What to do if you are a victim of unlawful harassment There are a few immediate steps to take if you believe you are a victim of illegal harassment in the workplace. First, make sure you get documentation – write down notes on what happened, talk to witnesses, and so on. Since harassment claims are usually based on a pattern of repeated behavior, being able to document that pattern is critical. Second, report the harassment to your employer. If your employer has a protocol for reporting harassment, use it; if not, talk to your supervisor (or their supervisor if your supervisor is the one perpetrating the harassment), or to human resources. Get this report in writing so your employer can't claim ignorance later. Remember, you are legally protected from retaliation for reporting what you believe to be unlawful harassment in good faith. It's also important to talk to an experienced employment law attorney about your rights and options – even if you haven't reported the harassment to your employer yet. We can guide you through this process and protect your rights, whether that means advising you "behind the scenes" or litigating on your behalf. Talking to a lawyer isn't a commitment to taking legal action; it's a chance to tell your story and learn about your options. If you are a victim of illegal harassment at work, contact Nilges Draher LLC for a free case evaluation. We can help.

A proposed Department of Labor (DOL) rule could dramatically impact the number of workers who currently qualify as exempt employees, if it goes into effect as planned. The federal agency announced on August 30 a proposed rulemaking that would raise the salary threshold to qualify for the "white-collar exemption" from $684 to $1,059 weekly, or from $35,568 to $55,068 annually. This would mean current exempt employees who make more than $35,568 but less than $55,068 per year would no longer qualify as exempt under the new rule. According to DOL, this change could affect 3.6 million salaried workers nationwide. The proposed rule would also increase the threshold for "highly compensated employees" to $143,988 from $107,432. And it would build in an automatic increase in the threshold every three years. What are the white-collar exemptions? Employees who are categorized as exempt under the Fair Labor Standards Act (FLSA) are not eligible to receive overtime pay (time and a half) for hours worked in excess of 40 in a workweek. Most, though not all, exempt employees fall under one of the three "white-collar exemptions." In addition to earning at least the required salary threshold, employees' job duties must fall into one of these categories to qualify for the exemption: Executive exemption: managers who have hiring, firing, and evaluation power, or similar decision-making authority. This exemption is based on job duties, not job title; a nominal "manager" who spends most of their time doing ordinary work tasks instead of management tasks is not considered exempt. Learned professional exemption: employees who work in a field of science or learning, perform largely intellectual work that requires constant exercise of discretion, and typically acquire their knowledge through a prolonged course of specialized instruction. Examples of employees in this category include scientists, engineers, physicians, attorneys, and architects. Administrative exemption: employees whose work keeps the business itself up and running, and who are authorized to make important decisions. Examples of jobs in this category include finance, legal compliance, public relations, and database administration, although this is highly contextual depending on the type of employer. The new rule would not change the types of jobs that qualify for the exemption. It would only raise the minimum salary for workers with those job duties to be treated as exempt. What does the new rule mean for white-collar workers? Under the new proposed rule, employees who fall into one of the three categories listed above and currently make more than $35,568 but less than $55,068 would no longer qualify as exempt. At that point, employers would have two options: they can start treating those workers as non-exempt, which means they will have to start paying overtime, or they can increase salaries over the new threshold. Either way, this is a win for workers. While there is a somewhat common perception that being exempt means you have greater responsibility and opportunities for advancement, the reality is that being exempt means your employer can get extra work for no extra pay. In theory, the upside for the employee is greater flexibility, but in practice, that flexibility often only comes into play when it benefits the employer. What to do if your rights under the FLSA are violated Our firm is closely monitoring this new rule and stands ready to protect employees if their rights are violated. If you have any reason to believe your employer has violated your rights under the Fair Labor Standards Act or another wage and hour law, give us a call or contact us online for a free consultation with the wage law attorneys at Nilges Draher LLC. We can help.

Every year, employers in Ohio and across the United States steal billions of dollars from their employees. If employees were to steal that much from their employers, they would be facing lengthy prison sentences. But when employers illegally short-change their employees, they often face little accountability. That's the reality of wage theft in America. According to estimates, wage law violations add up to tens of billions of dollars every year. Those dollars come disproportionately out of the paychecks of low-income workers who are struggling to make ends meet. And only a tiny fraction of those dollars are ever recovered. This is why we do what we do here at Nilges Draher LLC. Our law firm is dedicated to helping employees recover the wages they deserve for every hour worked. The only way to put a stop to wage theft is to hold employers accountable. What is wage theft? Wage theft is an umbrella term for violations of wage and hour laws that result in employers not paying the proper wages due. Any violation that results in paying an employee less than what is legally required is an act of wage theft. Examples of wage theft include: Minimum wage violations (i.e., not paying at least the legal minimum wage for all hours worked) — this type of wage theft alone costs workers about $15 billion annually. Overtime violations (e.g., not paying time and a half for all hours worked in excess of 40 in a workweek, or not calculating the overtime rate correctly for employees who earn commissions and bonuses). Unlawful rounding and pay to shift practices. Not paying employees for travel time that is part of their job duties. Misclassifying employees as independent contractors to avoid paying overtime and benefits. Misclassifying employees as exempt to avoid paying overtime. Tipped minimum wage violations, such as confiscating tips or paying the tipped minimum wage for non-tipped work. Unpaid break violations (e.g., requiring employees to clock out for short rest breaks, or not giving 30 uninterrupted minutes for an unpaid break). Some types of wage theft are blatant, but many are subtle. That's why it's important for employees to know the warning signs and understand their legal rights. Warning signs that you may be a victim of wage theft Your employer asks you to work off the clock without additional pay. This may include working through unpaid breaks or performing additional work before or after your shift. You are required to put on and take off special gear that is required for your job (such as hair nets and gloves) before and after your shifts, but you are not paid for that time. You have to complete a 1099 rather than a W-2, but your employer still treats you as an employee rather than a contractor. Your employer tells you that you can't get overtime because you are a "manager," but you spend most of your work day performing regular work tasks and don't have hiring, firing, or evaluation power. You notice errors in your paycheck, such as your pay not matching the number of hours you actually worked, and they are not corrected promptly. You do not promptly receive your final paycheck after leaving your job. What to do if you suspect wage theft First, document everything. Don't rely on your employer's records; keep track of your own hours worked, your paychecks, and any bonuses, commissions, or other income. Keep track of your job duties as well. If your employer says you are exempt, how much time do you actually spend performing management tasks as opposed to ordinary work tasks? If you are a tipped worker, how much time do you spend performing tipped versus non-tipped work? Remember, under federal law, you have the right to discuss your salary and benefits with your coworkers (as long as you are not a management employee). Odds are good that if your employer is taking money out of your paycheck, it's part of a larger pattern. Finally, talk to an experienced wage and hour attorney as soon as possible. Talking to a lawyer isn't a commitment to file a lawsuit against your employer; it's a way to find out what your rights and options may be, fully confidential and with no obligation. Contact us online today to schedule your free case evaluation with Nilges Draher LLC.

Know your rights under the federal wage and hour laws. Home health workers have a difficult job. They work long hours, perform physically demanding duties, are constantly on the road, and usually receive low pay and benefits. Unfortunately, home health agencies are also notorious for skirting state and federal wage and hour laws, taking money right out of aides' pockets. It's critical for home health aides to understand their legal rights under the wage and hour laws as well as the types of recourse they can pursue when those rights are violated. If you believe your employer has violated your rights, contact us today for a free case evaluation. We can help. Common wage and hour violations in the home health industry Home health aides are almost always hourly, non-exempt workers. That means they need to be paid at least the legal minimum wage for all hours worked, and they must be paid overtime (time and a half) for all hours worked in excess of 40 in a workweek. However, that is not always the case in practice. Some common wage and hour violations involving home health aides include: Unpaid overtime. Home health aides must be paid time and a half for all hours worked in excess of 40 in a workweek. Home health agencies need to track workers' hours and make sure they are in compliance with the overtime laws. To comply with the law, a "workweek" must be a 7-day period that is the same from week to week; for instance, if your employer decides your workweek starts on Wednesday and ends on Tuesday, that is legal, but they can't keep switching the dates in order to pay less overtime. Home health agencies also need to carefully track all hours worked, including administrative tasks as well as direct patient care, in order to properly pay overtime. Unpaid travel time. By law, while your regular home-to-work commute does not have to be paid, all travel that is part of your job needs to be paid. Many home health aides don't even have a regular place of work to commute to; they spend their work day traveling to clients' homes. You should be paid at least the legal minimum wage for that travel time. Overnight work. Home health is not a 9-to-5 job, and some home health aides need to stay at their clients' homes overnight. By law, if your shift is less than 24 hours, the entire shift must be paid, even if there is a stretch of time when you are permitted to sleep. Shifts of over 24 hours can deduct up to 8 hours of unpaid sleep time, but only if certain criteria are met, including at least 5 hours of uninterrupted sleep. If your sleep is regularly interrupted (i.e., because a patient may require assistance overnight), then that time must be paid. In practice, we believe home health aides should be paid for the entire overnight shift in virtually all cases because they can rarely, if ever, depend on uninterrupted sleep. Misclassification as independent contractors. Home health aides are often misclassified as independent contractors to allow their employers to avoid paying overtime, minimum wage, and benefits. If your employer exercises significant control over your work, you have a permanent and exclusive relationship with a home health agency, and your services are an integral part of their business, there is a good chance you are misclassified and may have a claim for unpaid overtime and other costs. If your employer has violated any of these laws, you may have a claim for unpaid work, unpaid overtime, or both. If other employees of the same company have been similarly underpaid, you may be able to pursue a class action on behalf of yourself and your coworkers. The only way to know your options is to speak with an experienced attorney who understands how these cases work. If your rights have been violated, we can help Home health aides play an essential role in our healthcare system and will only become more essential as the population continues to age. The wage and hour attorneys at Nilges Draher LLC are proud to stand up for home health aides in Ohio and nationwide whose rights have been violated. We have achieved significant results for home health aides, including a $1.5 million class action settlement for home health workers who were not paid for travel time. If you believe your rights have been violated, contact us today. We can help.

If your employer is violating wage and hour laws, we can help. Under the federal Fair Labor Standards Act (FLSA), unless you qualify as an exempt employee, you should be paid overtime (time and a half) for all hours worked in excess of 40 in a single workweek. The law sets specific rules and requirements for employees to qualify as exempt, and the onus is on the employer to prove that each and every element of the exemption is satisfied if they want to treat an employee as exempt. Unfortunately, far too many employers in Ohio and nationwide violate the law and misclassify workers as exempt, whether through ignorance or a deliberate scheme to save money. Either way, the result is the same: free labor for the employer, and money out of the employee's paycheck. One group of employees who are very frequently misclassified are field service technicians and engineers. How the "learned professionals" exemption applies (or doesn't) to field service engineers and technicians There are a few specific categories of workers who can be treated as exempt, including managers, outside salespeople, and "learned professionals." Field service engineers, if they qualify to be exempt at all, would fall under the learned professional category. According to the latest Department of Labor guidelines, there are four criteria to qualify as a learned professional for the purposes of being classified as exempt: The employee must be compensated on a salary or fee basis at a rate not less than $684 per week (which is the equivalent of $35,578 per year); 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; The advanced knowledge must be in a field of science or learning; and The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. According to the Department of Labor, the final criterion there means that most technologists and technicians, including field service technicians, do not qualify as learned professionals. Although a technician's work certainly requires some scientific knowledge, it is not the level of knowledge that requires an advanced specialized academic degree as a standard prerequisite for the job. (Note that the issue here isn't whether the employee has an advanced degree; it's whether the role typically requires an advanced degree level of knowledge.) Some field service engineers may meet the requirements to be classified as learned professionals under the FLSA, but most do not. It depends on the nature of the job and the types of knowledge they actually use in the course of their employment. What to do if you suspect you are misclassified as exempt Being misclassified as exempt is a serious matter. While your employer may claim your "exempt" status is a sign of increased responsibility and seniority in the company, in reality, it's a way for them to get more work out of you without paying fairly for your time. Misclassified employees have recourse under the wage and hour laws, but the law isn't self-enforcing. You need to document and report the issues in order to get compensated for your time. If you regularly work overtime without overtime pay, there are two steps you need to take. First, document everything. Make sure you have documentation of the nature of your job, the hours you have worked, and the amount you have been paid in order to justify a potential claim. Second, contact our experienced wage and hour attorneys at Nilges Draher LLC for a free, confidential case evaluation. You have rights, and the right wage and hour lawyer can fight for them. We can help.

You must be paid for all hours worked. Is your employer following federal and Ohio law with regard to breaks? While the federal and Ohio wage laws do not require Ohio employers to offer breaks, they do set standards that must be followed if an employer does offer breaks. If your employer is violating the law with respect to your breaks, we can help. Contact Nilges Draher LLC for a free case evaluation. Here's what you need to know about breaks under federal and Ohio wage and hour laws Short rest breaks of 20 minutes or less must be paid. Your employer is not legally permitted to deduct short rest breaks from your hours worked. We have represented thousands of employees who were denied wages as a result of an employer’s unlawful deduction of short rest breaks from hours worked. An employer can deduct time for bona fide meal breaks. To constitute a bona fide meal break, you must get 30 uninterrupted minutes during which you are completely relieved of all your work duties. If your meal break is interrupted by work duties, your employer cannot deduct that time from your hours worked. We have represented thousands of employees who were denied wages as a result of an employer’s deduction of meal breaks that were either not taken or were interrupted by work duties. Contact a wage and hour attorney today If your employer deducted time from hours worked for short rest breaks or for meal breaks that were either not taken or were interrupted by work duties, then you may have a claim for unpaid wages. The only way to know your rights and options is to speak with an experienced wage and hour attorney about your situation. Give us a call or contact us online for a free, confidential case evaluation. We can help.

Make sure you know your legal rights and options at work. Under both federal and Ohio law, employees are entitled to a work environment free from illegal discrimination. That includes discrimination on the basis of race, color, religion, sex, national origin, age (if over 40), disability, or genetic information. It also includes protection from retaliation for reporting discrimination or cooperating with an investigation. However, the laws against discrimination are not self-enforcing. Employees need to be vigilant and report discrimination when it occurs. And because discrimination is often subtle, it can fly under the proverbial radar. That's why you need to know how to recognize illegal discrimination and what to do if you see something. Some examples of discrimination that can fly under the radar involve: Offensive comments related to a person's race, sex, sexual orientation, religion, age, disability, or other protected characteristic. Most people can recognize slurs and other explicitly hateful language, but more subtle comments can also be discriminatory depending on the context. Handling of PTO requests. Employers are generally free to set their own paid time off (PTO) policies and change them as they see fit, but they cannot enforce them in a discriminatory manner. For example, if the company grants time off requests for certain religious holidays but not others, that might be illegal religious discrimination. Enforcement of policies. Again, while employers are free to set their own professional conduct policies such as dress codes and attendance policies, they must enforce them in a non-discriminatory manner. Enforcing the dress code against women but not men, for example, would constitute illegal discrimination. So would penalizing members of one race for arriving late but not another. Opportunities for prestige and advancement. Who are the people who work on the most important accounts or prestigious projects at your workplace? Are they a diverse group? If employees in one category are disproportionately favored for the most important projects and advancement opportunities, that may be a sign of discrimination. Inappropriate questions. This one can come up both during job interviews and at an existing job. If your employer seems to be fishing for information they don't need about your race, gender, sex, national origin, disability, or another protected characteristic, that could be a sign of discrimination. Unequal pay. If employees are paid differently for the same work based on their race, gender, age, or another protected characteristic, that is illegal discrimination. Keep in mind that your employer cannot legally prohibit you from talking about your pay at work unless you are a manager. What to do if you suspect illegal discrimination at work If you believe you're a victim of workplace discrimination, or even if you have witnessed something you think is discrimination, then you have legal protections. Your employer cannot retaliate against you — including demotion, firing, disciplinary proceedings, or any other adverse employment action — for reporting illegal discrimination in good faith. "In good faith" simply means that you report something you believe to be true, even if an investigation finds that it was just a misunderstanding. With that in mind, there are several actions you can take. One is to report the discrimination to your employer. If your employer has a procedure for reporting illegal discrimination, then follow that procedure. Otherwise, inform your manager (if your manager is the one committing the discrimination, then tell their manager) or human resources. Make sure to get the report in writing so your employer can't claim ignorance later. You can also file a report with the applicable federal or state agency. However, we also encourage you to speak with a discrimination attorney as soon as possible. Talking to a lawyer doesn't mean you have to file a lawsuit or take other legal action; it's just a chance to get answers about your legal rights and options. If you believe you are a victim of illegal discrimination at work, contact Nilges Draher LLC today. We can help.

Many restaurants save on labor costs by paying their tipped employees half of the minimum wage. This is called the “tip credit.” Tipped employees typically include servers and bartenders but could include other jobs too, if the employee customarily receives tips. Employers are permitted to take advantage of this budget-saving partial exemption to the minimum wage requirements only if the employee still averages at least the minimum wage per hour when including the employee’s tips received. For example, in Ohio, the minimum cash wage an employer can pay a tipped employee in 2023 is $5.05 per hour, as long as the employee's tips bring their total hourly earnings up to Ohio’s 2023 minimum wage of $10.10 per hour. The federal minimum wage is only $7.25, so the tip-credit rate is $2.13 per hour. What is the 80/20 rule? Some employers take this legal inch and stretch it into an illegal mile by having servers perform work that does not generate tips, yet, still pay the labor-cost saving “tip credit” rate. For example, sometimes servers are required to spend substantial time performing duties that are related to the service of the customers, and therefore related to generating tips, such as “side work” like folding napkins and refilling condiments. Unfortunately, some employers require the tipped employee to spend so much time doing this “side work” that it detracts from their main job: serving customers and earning tips. This practice could be illegal, depending on how much time is spent doing this “side work.” The legal framework under which these claims are analyzed is commonly called the “80/20 rule.” This rule applies to tipped employees who perform both tipped and non-tipped duties during their shifts. What are some examples of the 80/20 rule? According to the 80/20 rule, if a tipped employee spends more than 20% of their shift performing non-tipped duties or tip-supporting “side work,” the employer must pay them the full minimum wage for those hours. For example, if a server spends 30 minutes of their 2-hour shift bussing their tables, folding napkins, refilling condiments, etc., they may be entitled to the full minimum wage from their employer for that 30 minutes of work, even if they received tips during that time. In addition to the 20% percentage threshold, the employer must pay the full minimum wage for any tip-supporting “side work” that exceeds 30 or more minutes at a time. The 80/20 rule ensures that tipped employees are not taken advantage of by employers who try to use the tip credit mechanism to pay a lower wage for non-tipped work. The 80/20 rule applies to both federal/FLSA and Ohio minimum wage law. Also, some employers require tipped employees, such as servers, to open and close the restaurant when there are zero customers because the establishment is not yet open or closed for the day. Zero customers means zero tips. Yet, some self-serving employers still enjoy the cost savings of paying the server the lower “tip-credit” rate even though there is zero chance the tipped employee can make any tips when opening and closing. Tipped employees have legal rights Indeed, some employers require their tipped employees to perform work that has nothing to do with tips generation, like general restaurant cleaning, or worse, cleaning bathrooms. Yet, the employer still takes the cost-saving route of paying the tipped employee the lower tip-credit rate. In these situations, the tipped employee should be paid no less than the full minimum wage regardless of how much time is spent doing it. If the work has nothing to do with generating tips, then it should be paid at no less than the full minimum wage. It's important to understand your rights as a tipped employee and to advocate for fair wages. Tipped employees are a vital part of the service industry and deserve to be compensated fairly for their hard work and dedication. If you are a tipped employee that has to do opening or closing duties, or substantial side-work, but are paid less than the full minimum wage for that work, you should call for a free consultation to ensure you are being compensated fairly for your work.

New laws popping up around the country highlight employers' responsibilities As wage and hour attorneys serving employees in Ohio and throughout the Midwest, we closely monitor the development of new laws that affect employees' rights. One trend that we're watching is the rise of salary transparency laws and bans on asking about salary history in various jurisdictions. Colorado started this trend in 2019 by passing a law that required employers to disclose a salary or salary range in job postings, as well as a general description of benefits and other compensation. Since then, many other state and local governments have passed laws that require employers to disclose the salary range and/or prohibit employers from asking about salary history during hiring. Two of those jurisdictions are here in Ohio: in both Cincinnati and Toledo, local ordinances prohibit employers with 15 or more employees within the city from asking about salary history or considering information on previous salaries in hiring and compensation decisions. Although these laws do not yet directly apply to most employees in Ohio, there are still implications for employers that hire people in multiple jurisdictions, not to mention fully remote positions that can be done from anywhere. These laws also shine a light on a broader point: the responsibility employers have to ensure that their pay structure does not run afoul of anti-discrimination laws. Hiding salary information can contribute to pay inequality When a prospective employer doesn't disclose up front what they are willing to pay for a particular role, they'll often start the hiring process by asking the job seeker what their salary requirements are or (in jurisdictions where this is still legal) what their current salary is. The prospective employee is left to attempt to negotiate salary without a reference point to determine what's fair, especially if they are new to the workforce or to the industry. Job seekers can make up some of this gap in knowledge by researching salaries for similar positions online, but those sources are not always reliable, as they aggregate information on roles that may not be especially similar despite sharing the same title. It's not especially reasonable for an employer, which has far more information about what the role entails and what the market rate for the position should be, to put the onus on the prospective employee to come up with a salary figure. More significantly, from a legal perspective, when employers hide the proverbial ball on salary, they can end up in violation of anti-discrimination laws. For instance, companies that assign salaries based on negotiation or previous salary could end up systematically paying men more than women, which violates the Equal Pay Act. It's not acceptable for that company to say, "the men negotiated for more." It's the employer's responsibility to audit their salary structure and make sure it complies with the law. Victims of pay inequality may have legal recourse While the law gives employers a fair amount of discretion when it comes to salaries and benefits, employers cannot discriminate on the basis of sex, race, age (if over 40), national origin, or any other protected characteristic. Current law in most jurisdictions may not require pay transparency, but it absolutely does require employers to ensure that their salary structure does not discriminate. If you believe you are being paid less based on your gender, race, religion, or other protected characteristic, you may have a case. We can help. The first step is to talk to an experienced legal professional about your rights and options. Give us a call or contact us online to schedule your free case evaluation with Nilges Draher LLC.

Even before you're hired, potential employers need to follow the law. In many fields, the first few months of the year are the peak hiring season, and as the labor market continues to fluctuate, many Ohio workers are looking for new jobs. Job searching can be frustrating and feel like the deck is stacked against you, but you do have some legal protections. While employers have fairly wide latitude in making hiring decisions, they cannot make those decisions for unlawful reasons. It's important to remember that your legal rights under federal and Ohio law don't just apply when you're an employee; many also apply to the hiring process. If you're looking for a new job, make sure you know your legal rights and are ready to stand up for them with an experienced employment attorney on your side. Illegal discrimination in hiring Under both Ohio and federal law, employers cannot make hiring decisions based on your protected characteristics, including: Race, ethnicity, or national origin Sex, gender, gender identity, or sexual orientation Religion Age (if over 40) Pregnancy Disability Genetic information This applies even to the initial job posting or job description. For example, physical fitness requirements that aren't relevant to the job's core responsibilities can be discriminatory against older, pregnant, or disabled workers. It's fine for an employer to expect a factory worker, warehouse worker, or construction laborer to be able to lift up to 35 pounds, for instance, since that's a core part of the job, but the same requirement for an office worker who is not regularly required to lift heavy objects would be discriminatory. Likewise, questions asked in interviews should be focused on the job requirements and responsibilities without discriminating on the basis of a protected characteristic. Some examples include: "Are you legally authorized to work in the United States?" is a lawful question. However, "Were you born in the United States?" could be considered discriminatory on the basis of national origin. "Can you perform the job duties, with or without reasonable accommodations?" is a lawful question. However, "Do you have any medical conditions that could affect the job?" could constitute disability discrimination. "What is your weekend and holiday availability?" is a legitimate question if that's important for the role. However, "Will your religious practices affect your availability?" could be religious discrimination. "How much experience do you have in this field?" is a valid question. However, "How long have you been in the workforce?" is functionally a question about age, which could be discriminatory. These are illustrations, not hard and fast rules; whether a certain question is lawful or unlawful depends on the circumstances. It's also up to you how you want to respond to an unlawful question. One option is to sidestep the question by focusing on what's relevant to the job: "nothing in my personal life will interfere with my ability to do the job" is a reasonable answer. Wage history and salary negotiations In Ohio, it's generally legal for employers to ask about your current salary or salary history. It's also generally legal for them to ask about your salary requirements or expectations. That said, you aren't required to disclose that information; it's reasonable to say, "my salary requirements depend on the job duties" or "I need to look at the whole compensation package" instead of giving a figure up front. Regardless of how salary negotiations progress, employers are legally responsible for paying workers fairly for their work without discriminating on the basis of race, gender, or another protected characteristic. This isn't about intent; it's about the impact of their policies. If, for example, an employer ends up paying men more than women for the same work, it's not a valid defense for the employer to say, "the men asked for more money in negotiations" or "the men made more money in their previous jobs, so we paid them more." The onus is on the employer to ensure their salary structure complies with the Equal Pay Act and other relevant laws. Talk to an experienced employment law attorney about your rights If you believe a prospective or current employer violated the law in the hiring process, you may have legal recourse. The first step is to talk to an experienced employment law attorney about your rights and options. Contact Nilges Draher LLC for a free case evaluation. We can help.

Know your rights as an employee - and be prepared to protect them The holiday season is ostensibly a time of joy and cheer, but it's also notorious for certain violations of employment and wage and hour laws. It's vital for Ohio employees to go into this time of the year with a clear understanding of their legal rights. Here are three of the most common holiday-related employment law violations we see — and how we can help protect your rights. Unpaid overtime and other wage and hour violations The holiday season is also the busy season in many industries, including retail, transportation, shipping, hospitality, and food service. Some employers hire seasonal help to get them through the holidays, but in many cases, full-time employees are required to pick up overtime. This will likely be an especially big issue in the 2022-2023 holiday season because of the tight labor market. Remember, under both federal and Ohio law, unless you meet the legal criteria to be considered exempt, your employer must pay you overtime (time and a half) for all hours worked in excess of 40 in a single workweek. The vast majority of workers in this situation are not exempt and should be paid overtime. In addition, any bonuses or commissions you receive during the same workweek should be included when the overtime rate is calculated — so, for example, if you are paid a holiday bonus during a week when you also work over 40 hours, your overtime rate should be based on your higher effective hourly rate with the bonus taken into account. You also have to be paid for all hours worked, including travel time that is part of your job (for instance, if your employer sends you to another location to provide holiday coverage). Keep close track of your hours and your pay to ensure that your rights under the wage and hour laws are respected. A wage and hour attorney from our firm can help you recover any unpaid or underpaid overtime. Discrimination regarding holiday pay and time off Neither federal nor Ohio law requires private-sector employers to give employees paid time off for the holidays or to pay time-and-a-half for working on a holiday. However, many employers choose to provide certain paid holidays or to pay extra for work on a holiday as a job benefit. Your employer is generally free to set their own policies regarding holiday pay and time off, but they must enforce their policies in a lawful and non-discriminatory manner. For example, if your employer shows a preference on the basis of gender, religion, age, or another protected characteristic, that is illegal discrimination. Furthermore, if you have an employment contract that includes stipulations regarding holiday pay and time off, then your employer must honor the contract. In addition, employers are required to reasonably accommodate an employee's sincerely held religious beliefs, which may include time off for a religious holiday. Depending on the circumstances, a reasonable accommodation might include allowing you to take a religious holiday off unpaid or to use your vacation time; either way, the employer must make a good-faith effort to accommodate your religion. If your employer refuses to make reasonable accommodations, you may have a religious discrimination claim. Sexual harassment at office holiday parties It's common for boundaries to be blurred and professionalism to be relaxed at office holiday parties, especially when alcohol is involved. However, employers need to recognize that an office holiday party is still a work event, and it's still bound by the same rules as any other work event. In particular, sexual harassment at holiday parties is a huge issue, whether that's sexualized gifts or activities, comments, or even unwanted touching. A single egregious incident at a holiday party may be enough to support a sexual harassment claim on its own, or it may be part of a larger pattern of behavior that creates a hostile work environment. Employers have a legal responsibility to ensure employees are safe from sexual harassment at the office holiday party. That may include proactively sharing their sexual harassment policy before the party, limiting alcohol use, and encouraging victims and witnesses to promptly come forward to report any incidents so they can be addressed immediately. Remember, you are legally protected from retaliation by your employer for filing a sexual harassment report in good faith, even if it turns out to be a misunderstanding. Talk to an employment law attorney about your legal rights Again, if your rights were violated during the holidays, you have recourse, but you need the right attorney to advocate for your interests. Give us a call or contact us online to schedule your free case evaluation with Nilges Draher LLC. We can help.