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.

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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.

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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.

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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.

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The federal agency is seeking to reduce the risk of misclassification

On October 13, the United States Department of Labor (DOL) published a proposed rule that would affect how employees are classified under the Fair Labor Standards Act.

The new rule would restore the multifactor economic reality test that DOL previously used to assess misclassification. The rule was changed to be more business-friendly by the outgoing administration on January 7, 2021.

Our legal team remains on the forefront in the fight for employees’ rights and the struggle to ensure Ohio employees are paid appropriately for all hours worked. If you have concerns about possible misclassification as an independent contractor, give us a call or contact us online today.

Breaking down the multifactor economic reality test

The proposed DOL rule would consider the “totality of the circumstances” when assessing whether a worker is a contractor or an employee. In other words, there is no single litmus test; the government weighs several factors in determining whether a violation of the FLSA has occurred.

• Opportunity for profit or loss depending on skill. Independent contractors generally have the ability to make more or less money depending on the quality of their work, whereas employees are paid a set wage.
• Level of investment by the worker and the employer. This factor looks at whether the worker has a degree of capital or entrepreneurial investment in the work. Purchasing tools and equipment, in and of itself, isn’t sufficient.
• Permanence of the relationship. Contractors’ relationships with employers are usually either definite (that is, brought in for a set period or a specific project) or sporadic (for instance, handling overflow work as needed). An ongoing, indefinite relationship is an indicator that the worker is an employee.
• Degree of control over the work. Contractors usually have substantial control over key aspects of their work, such as scheduling and location.
• Integral part of the business. Work that is central or necessary to the employer’s business is typically performed by employees, not contractors.
• Specialized skills and business-like initiative. This factor examines whether the contractor is hired for a particular set of skills and whether those skills are consistent with the contractor being in their own business instead of dependent on the employer.

It’s important to remember that these rules apply specifically to classification as an independent contractor under the FLSA, which affects, for example, whether you are eligible for minimum wage and overtime. Other factors may be used to determine your classification in other contexts, such as whether you are protected by anti-discrimination laws.

If you are misclassified as a contractor, talk to an employment law attorney

Misclassification can have a tremendous impact on affected workers. For example, being misclassified as a contractor could lead to you being severely underpaid for your work, not to mention the implications for your taxes and important legal protections. Moreover, if you are misclassified, there’s a good chance that others who work for the same employer are being misclassified as well.

That’s why you need to talk to an experienced attorney at Nilges Draher LLC about your legal rights and options. We have a winning track record in wage and hour cases involving misclassification, and we can help you find a path forward. Contact us today for a free case evaluation.

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Understanding your legal protections under federal and Ohio law

Both the federal Age Discrimination in Employment Act (ADEA) and Ohio state law protect workers who are at least age 40 from discrimination on the basis of age. Unfortunately, some employers incorrectly believe that older workers aren’t capable of keeping up and treat them differently in hiring or employment on that basis. If that happened to you, then you should know your rights — and talk to an experienced age discrimination attorney. We can help.

The four key elements of a workplace discrimination case

As we’ve written previously, the first part of any employment discrimination lawsuit is establishing what’s called a prima facie case of discrimination — a legal term that literally means “on the face of it.” In an age discrimination case, the four elements are:

• You are at least 40 years old (or, more precisely, you were at least 40 years old when the alleged discrimination occurred). It’s worth noting that while you must be at least 40 years old at the time of the alleged discrimination, the employer or manager who discriminated against you doesn’t have to be younger than you.
• You did your job well enough to meet the employer’s legitimate performance expectations.
• You suffered an adverse employment action, such as being fired, laid off, demoted, denied a raise, passed over for a promotion, or given an unfavorable reassignment.
• You would not have suffered this action but for your age. This doesn’t require that age discrimination was the sole cause of the adverse action; it means that if you were under 40, the adverse action wouldn’t have happened.

For instance, if you were fired despite meeting performance expectations and your position was filled by a substantially younger but otherwise similarly situated employee, you likely have a prima facie age discrimination case. This doesn’t mean you will automatically win. It means the onus is now on your employer to show that they did not discriminate on the basis of age.

How your employer can fight back in an age discrimination lawsuit

There are several strategies an employer can use to defend against a claim of age discrimination. Some potential arguments include the following:

• Reasonable factors other than age. They may argue the younger employee was a better fit for the position because of their skills or education, for instance.
• Good cause. The adverse employment action was based on a non-age-related cause, such as poor job performance.
• Misconduct at work, such as violating company policies.
• Lack of required qualifications to hold the position. This argument often comes up in cases involving age discrimination in hiring.
• Elimination of the position or general reduction in the workforce (e.g., layoffs).

If your employer offers one of these arguments, then your attorney’s job is to prove either that their stated reason is a less likely explanation than age discrimination or simply that it’s untrue. For example, if your employer claims you lacked the required qualifications but hired a younger employee who also lacked those qualifications, you may be able to rebut their argument.

Build a strong age discrimination case with an attorney on your side

Evidence is critical in age discrimination cases. Sometimes, it’s possible to find direct evidence of discrimination, such as a manager explicitly talking about letting you go or refusing to promote you because you’re too old. More often, it comes down to circumstantial evidence that, when taken together, shows that discrimination was a factor. For example, if the employer claims you were fired due to poor job performance, their argument is weakened significantly if you can show the court your positive performance reviews.

That’s why you need to talk to an experienced attorney who can investigate your claim, find critical evidence, and advocate for your rights under the ADEA and Ohio law. If you believe you were discriminated against because of your age, contact Nilges Draher LLC today. We can help.

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Understanding Employer FMLA Violations in Ohio

Know your rights if you need medical leave in Ohio, including North Canton, Cleveland, and Columbus.

The federal Family and Medical Leave Act (FMLA) gives eligible employees across Ohio and the U.S. certain protections when they need to take time off for serious health conditions, family needs, or the arrival of a new child. However, not all employers follow the law, and some employees face mistreatment for exercising their FMLA rights. If you believe your FMLA rights have been violated, it is critical to understand your options—especially with the unique landscape of FMLA in Ohio’s workplaces.

If you’re in North Canton, Cleveland, Columbus, or anywhere in Ohio and are dealing with an FMLA violation, our experienced attorneys can help protect your rights.

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What Are My Rights Under the FMLA?

The FMLA provides job-protected, unpaid family and medical leave to eligible employees. To be covered by the FMLA in Ohio, you must meet these criteria:

• Your employer has at least 50 employees within a 75-mile radius of your work location.
• You have worked for your employer for at least 12 months.
• You have worked at least 1,250 hours for that employer in the 12 months before taking leave.

If you qualify, you may take up to 12 weeks of unpaid leave for:

• Your own serious health condition.
• Caring for a spouse, child, or parent with a serious health condition.
• Bonding with a newborn, adopted, or foster child.
• Certain needs relating to military family members.

This leave can be taken all at once or as intermittent FMLA—sometimes in increments as small as 15 minutes—especially for ongoing treatments or chronic health conditions. You must provide your employer with enough notice and sufficient information for them to determine if your leave is FMLA-protected.

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What Are Employer FMLA Violations?

Employers in Ohio, including in North Canton, Cleveland, and Columbus, can violate your FMLA rights in several ways, including:

• Denying FMLA leave even though you qualify.
• Requiring you to work during approved FMLA leave.
• Retaliating against you for requesting or taking FMLA leave. This can include termination, demotion, pay cuts, or negative job actions.
• Intermittent FMLA harassment, such as discipline or harassment for taking intermittent absences protected under the law.

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Penalties for FMLA Violations by Employers

If your employer violates the FMLA, Ohio and federal law allow you to pursue several forms of relief:

• Job reinstatement if you were unlawfully terminated.
• Approval of denied FMLA leave.
• Compensation for damages, including:
  • Lost back pay (wages and benefits already lost)
  • Lost front pay (future wages and benefits)
  • Liquidated damages (often double damages if the employer did not act in good faith)
  • Attorney’s fees and costs

Employers may also be subject to additional penalties or enforcement actions by the U.S. Department of Labor.

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Intermittent FMLA and Harassment: Your Rights in Ohio

Intermittent FMLA leave is a vital protection for Ohio employees who need time off in smaller increments for chronic conditions, regular treatments, or family care. However, some employers engage in intermittent FMLA harassment—such as giving poor performance reviews, discipline, or denying advancement because of your intermittent absences.

Federal law prohibits employers from interfering with, restraining, or retaliating against employees who exercise their FMLA rights. If you experience any form of harassment or negative treatment for taking intermittent FMLA leave in North Canton, Cleveland, Columbus, or elsewhere in Ohio, seek legal advice promptly.

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Steps to Take If Your Employer Violates Your FMLA Rights

1. Document everything: Save copies of all FMLA requests, HR communications, doctor’s notes, and any records of retaliation or harassment.
2. Contact an Ohio FMLA attorney: Experienced legal counsel can help you prove your case and protect your rights.
3. File a complaint: You may file with the Department of Labor Wage and Hour Division or pursue a lawsuit for damages and reinstatement.

Ready to protect your rights? Schedule a free, confidential consultation with our Ohio FMLA attorneys.

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FMLA Protections for Employees in Cleveland, Columbus, and North Canton

In cities like Cleveland, Columbus, and North Canton, FMLA rights and employer obligations remain the same, but local workplace cultures may differ. Our attorneys have successfully defended workers’ FMLA rights throughout Ohio’s major cities and are ready to address issues specific to your location.

• Cleveland: High volume of healthcare and service industry cases
• Columbus: Government and corporate sector nuances
• North Canton: Manufacturing and small business compliance concerns

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Common Misconceptions About FMLA in Ohio

• FMLA leave is always paid. (False—most FMLA leave is unpaid.)
• Only mothers can take bonding leave. (False—Fathers and non-birth parents may also qualify.)
• Your job is not protected. (False—Your employer must reinstate you to the same or a similar position.)

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How to Prove FMLA Violations by Employers

Successfully proving an FMLA violation in Ohio requires you to demonstrate:

• Eligibility for FMLA leave
• Proper notification and documentation
• A link between the adverse job action and your use of FMLA leave

With offices serving North Canton, Cleveland, Columbus, and all of Ohio, our firm stands ready to help employees gather evidence, negotiate with employers, and litigate claims if necessary.

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Frequently Asked Questions (FAQs)

What counts as FMLA harassment in Ohio workplaces?

FMLA harassment includes negative job actions, threats, or discipline for taking or requesting FMLA leave—especially intermittent absences. If you are experiencing harassment, speak to an attorney.

What are the penalties for FMLA violations by employers in Ohio?

Employers may be required to reinstate your job, pay back and front pay, and sometimes double those amounts if they acted in bad faith, plus cover your attorney’s fees.

Can I take intermittent FMLA leave for ongoing treatments or chronic conditions in Ohio?

Yes. Ohio employees can use intermittent FMLA for treatments like chemotherapy, therapy sessions, or recurring care, as long as proper notice and documentation are provided.

What should I do if I am fired after requesting FMLA leave?

Document everything and contact an Ohio employment lawyer as soon as possible to discuss your rights under FMLA, ADA, and Ohio law.

Does FMLA apply to small businesses in Ohio?

FMLA only applies to employers with 50 or more employees within a 75-mile radius, but you may have other protections under Ohio law.

Ohio FMLA Legal Help When You Need it

You have rights under the FMLA. An experienced employment attorney from our law firm can protect them. If you had an FMLA request denied or are facing retaliation for requesting or taking medical leave, contact us for a free and confidential case evaluation

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Your time has value — including travel time.

Is travel part of your job? For many employees, the answer is “yes,” whether that’s every day or merely an occasional special assignment. You deserve to be paid for all your work hours, and that includes travel time that is part of your job.

The general rule is that your regular home-to-work commute is your time and does not have to be paid. However, there are many circumstances in which travel for work is considered work time and thus needs to be paid. If you are a non-exempt employee and your employer is not paying you for travel time, then you may have a claim for unpaid wages, unpaid overtime, or both. An experienced wage and hour lawyer can advocate for your rights in this situation.

Travel during your workday is paid time.

If you travel from job site to job site during your working day, then your employer is responsible for paying you for that time — including overtime if applicable. You are only responsible for your regular home-to-work commute. Any travel during the workday beyond that is part of your job, and it should be paid like any other part of your job.

Understanding the “special assignment” rule

Again, your regular home-to-work commute does not have to be paid, but if your employer gives you a one-day “special assignment” that requires a longer commute, you do need to be paid for the additional travel time.

For example, suppose you live and work in Columbus, and your usual commute is about 15 minutes. For one work day, your employer sends you to a satellite office in Cleveland, a two-hour drive away. Your employer is required to pay you for the additional hour and 45 minutes you spend commuting to Cleveland on that day.

Rules for paid travel time during overnight business trips

Pay for travel time is more complicated for business trips lasting more than one day. First, your employer is required to pay you for any travel time that cuts across your regular working hours — even on days when you do not usually work. For example, if you typically work Monday through Friday, 8:30 a.m. to 5 p.m., but you need to catch a flight for a business trip on Sunday and have to arrive at the airport at 2 p.m., then you should be paid for the three hours between 2 p.m. and 5 p.m. on Sunday.

Travel time for an overnight trip outside your regular work hours does not generally have to be paid if you are relieved of all your work duties and able to travel as a passenger (meaning you are effectively free to use the time for your own purposes). But the law defines “relieved of all work duties” quite strictly; if you’re doing any work for your employer while traveling, then you should be paid for that time. Some examples include:

• You perform work tasks during your travel time, such as working on a presentation on the train or taking a work call at the airport.
• You are “engaged to wait” for any work tasks that may arise during travel. For instance, a direct care worker who travels with a client and is expected to be available to help the client as needed during the trip should be paid for that time, whether or not the client actually needs assistance on a given trip.
• Your employer requires you to drive, for instance, to transport supplies or personnel, or because you are required to have a vehicle with you at the destination.

Talk to an experienced wage and hour lawyer about your unpaid travel time.

By law, you should be paid for all hours worked; if travel is part of your job, that includes travel time. An experienced attorney can determine whether your unpaid travel time is a violation of the wage and hour laws and explain your legal rights and options. Nilges Draher LLC has a strong track record in these types of cases, including a $4.9 million settlement for a class of construction workers who were not paid for travel time. If you believe your employer is violating wage laws, give us a call or contact us online today.

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The “Speak Out Act” would be an important step forward for employees.

A bill recently introduced in Congress aims to make it easier for employees to report workplace sexual harassment and assault.

The “Speak Out Act,” introduced in June 2022 by a bipartisan group of federal lawmakers, would make non-disclosure agreements (NDAs) unenforceable when workers report sexual misconduct, according to the Washington Post. This law would remove a possible threat of retaliation and chip away at the culture of silence around sexual harassment.

NDAs are exceptionally common in employment — in 2018, the Harvard Business Review found that over one-third of the U.S. workforce is bound by NDAs. When appropriately limited in scope, these agreements do have some legitimate purposes, such as protecting actual trade secrets and other intellectual property. Still, they shouldn’t be abused to stop employees from exercising their legal rights.

This is one of the reasons the vast majority of cases of workplace sexual harassment go unreported — anywhere from 87% to 94%, according to the Equal Employment Opportunity Commission (EEOC). This proposed law would remove certain barriers, but it’s important to note that those who report sexual harassment already have protections under current law.

A non-disclosure agreement cannot legally cover everything.

It’s unfortunately common for employees who are under an NDA to think they have no options when they actually do. For instance, some victims may be hesitant to seek legal recourse if they have an NDA, but an NDA can’t stop you from filing a report in good faith against an employer that you believe has violated the law. In particular, if you are sexually harassed at work, you can file a report with the EEOC, and if you are a victim of a crime, you can report it to law enforcement.

An NDA can also be found legally unenforceable under some circumstances. For instance, a legal NDA needs to be reasonable and specific about what is considered confidential information. Broad, unreasonable, or onerous language intended to oppress workers or cover non-confidential information can be grounds to invalidate the NDA. The power imbalance between employer and employee can also render an NDA unenforceable, depending on the circumstances.

Talk to an attorney about your legal rights and options.

In short, if you are subject to sexual harassment or other unlawful conduct in the workplace, don’t assume that your employer has the power to keep you quiet. You may have more legal rights and protections than you think — but the only way to know for sure is to talk to an attorney about your specific situation, and you absolutely should get legal advice before you take action.

If you’re concerned about retaliation or other consequences for reporting sexual harassment, we would be honored to listen to your story and explain your rights. Our conversation is confidential and there is no pressure to take legal action, just answers about your legal options. Give us a call or contact us online for a free consultation with Nilges Draher LLC.

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Breaking down a common misconception about wage & hour law

“You’re salaried, so you don’t get overtime.”

We hear this statement, or variations on it, all the time, and it stems from a misunderstanding of how wage and hour laws work. When people use the term “salaried” this way, they really mean “exempt” — and “exempt” is a legal term with a specific legal definition. Only certain workers are considered exempt and thus don’t get overtime. Just because your employer says you’re one of them does not make it so.

Being “on salary” is just a method of paying you, as opposed to being hourly, day-rate, or piece-rate. Exempt employees usually have to be paid on salary, but not all salaried employees are exempt. You need to understand this distinction to protect your legal rights.

Who can and cannot be exempt is based on job duties

Not every employee can be classified as exempt; indeed, most employees cannot. In addition to the minimum salary requirement (currently $684 per week, as set by the Department of Labor), only particular jobs as defined by law can be treated as exempt. The most common exemption, which exists in basically any organization, is for managers who have hiring, firing, and evaluation power or comparable decision-making authority.

The key issue here is that the exemption is based on job duties, not job title. Your employer can call you a supervisor, manager, director, or even vice president, but if you are not a bona fide manager with hiring, firing, and evaluation power, you’re not exempt. This happens too often to “assistant managers” in industries such as retail, hospitality, food service, and banking, for example. You may have a few extra responsibilities or act as a “shift leader” when your boss isn’t around, but if you spend most of your day helping customers and performing ordinary work tasks instead of managerial tasks, you’re not exempt.

Certain non-management jobs are also eligible to be exempt, including learned professionals (e.g., doctors, lawyers, engineers), administrative professionals, and outside salespeople who physically go out and meet with customers. There are also certain other jobs that are specifically exempted by statute. Again, this exemption is based on job duties, not job title.

Remember, if you are exempt, the exemption cuts both ways

It’s not enough for your job duties and salary to qualify as exempt. Your employer has to actually treat you as an exempt employee, which means paying you the same amount for every week you work, regardless of hours. This means you don’t get overtime if you work 50 hours in a given week, but it also means you aren’t docked pay if you work 30 hours the next week. Your employer can make you use paid time off (PTO) during such weeks, but they can’t pay you less than your usual weekly wage.

Employers are only allowed to deduct pay from exempt employees in specific circumstances, including the first and last week of employment and weeks when you take unpaid FMLA leave. If your employer makes improper deductions from your salary, then they can lose the exemption — meaning they have to start paying you overtime.

Talk to an experienced wage & hour attorney about your rights

Misclassifying an employee as exempt is an incredibly pernicious violation of wage and hour laws. Often, it’s framed as a step up for you — a chance for you to take on more responsibility and grow your career — when in fact it’s an excuse for your employer to steal money out of your pocket. That’s why misclassified workers have legal recourse.

Depending on the circumstances, you may be eligible to file an individual claim or a class-action lawsuit if your employer has a pattern of misclassifying many employees as exempt. Either way, it starts with a free, confidential consultation with an experienced attorney. We would be honored to listen to your story and explain your legal options. No cost, no obligation, just answers. We can help.

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