On January 15, 2025, the United States Supreme Court, unanimously decided E.M.D. Sales, Inc. v. Carrera, holding that employers must only meet the ordinary preponderance of the evidence standard when defending against claims under the Fair Labor Standards Act (“FLSA”). The employers in Carrera were improperly held to a heightened standard of proof by the Fourth Circuit Court when defending against an FLSA claim. When an employee alleges their employer failed to pay them minimum wage or overtime compensation in accordance with the provisions in the FLSA, if the employer’s defense is that the employee was exempt from the FLSA provisions, the law places the burden on the employer to show the exemption applies. The Fourth Circuit Court incorrectly required the employer to prove by clear and convincing evidence that an employee was exempt from the minimum wage and overtime pay provisions of the FLSA. The ruling in Carrera rectifies the circuit split, holding that only a lower standard of proof, often referred to as “more likely than not,” is necessary
What impact does this have for employers in Ohio? This ruling clarifies that employers must only prove an employee is exempt under the FLSA by showing a preponderance of the evidence. Preponderance of evidence standard is a much lower bar, making it easier for employer’s to defend against FLSA claims.
If you are an Employer who classifies employees as FLSA-exempt and are unsure if you have sufficient documentation to defend against potential future FLSA claims, contact a member of our Labor and Employment Section. We can help ensure appropriate steps are taken to protect your company and demonstrate your employees have been properly classified.
Payroll Protection Act Rolls Out in Ohio, Compliance to Beginning in Early April
On January 8, 2025, Ohio Governor Mike DeWine signed the Ohio Pay Stub Protection Act into law. The Act will take effect on April 8, 2025. The Act, which passed the Ohio House and Senate unanimously, requires employers to provide detailed pay stubs to employees. This act applies to every employer in Ohio with at least one “employee.” The law requires Ohio employers provide written or electronic pay stubs for each pay period on the regular payday established by the employer. The paystub must include the following information:
- Both the employer and employee’s name;
- The employee’s address;
- Total gross wages earned during the pay period;
- Total net wages earned during the pay period;
- The amount and purposes of each addition or deduction to wages; and
- The date the employee was paid and the pay period covered by that payment
For employee’s who are paid on an hourly basis, the pay stub must also include:
- Total hours worked;
- The hourly rate the employee was paid; and
- The employee’s hours worked in excess of forty hours in one workweek.
The law does not provide employees a private right of action for employees who are not issued paystubs or are issued paystubs without all the required information listed above. The law does, however, empower employees to report violations to Ohio’s director of commerce. The employee must first make a written request to their employer to rectify the statement before they can report the violation to the Ohio’s director of commerce. If the Director determines that there are reasonable grounds to find a violation exists, the director will issue a written notice to the employer, which must be posted in a conspicuous place on the employer’s premises for ten days.
What impact does this have for employers in Ohio? Employers should review current payroll policies to ensure that their paystubs will comply with the requirements of the new law. If you have questions or would like assistance with complying with the new law, please contact a member of our Labor and Employment Section.
Hostile Work Environment: How to Identify and Prevent Hostility in the Workplace
What is a hostile work environment?
A Hostile work environment is defined as the following: when the workplace is permeated with discriminatory intimidation, ridicule, and insult so severe it alters the conditions of the plaintiff’s job and creates an abusive working environment.
The individual creating the hostile work environment can be an employee, supervisor, independent contractor, or even the owner of the company. It is important that there are policies and procedures in place to deal with any potential hostile work environment that may arise.
Importance of recognizing and preventing a hostile work environment
A hostile work environment creates a legal risk to the company. Employer liability can increase if management fails to make reasonable attempts to rectify the hostile work environment and a complaint is filed with the EEOC. To impose liability on an employer for a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, an employee must show that they experienced conduct that was:
- Unwelcome,
- Based on the employee’s protected characteristic,
- Was sufficiently severe or persuasive to alter the employee’s terms and conditions of employment and create an abusive work environment; and
- Is imputable to the employer.
Harassment prevention training can provide employers with a legal defense to hostile work environment claims that may arise. The U.S. Supreme Court in Faragher-Ellerth, provides employers with a defense to hostile work environment claims if the employer can demonstrate they:
- exercised reasonable care to prevent and promptly correct any harassing behavior, and
- the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm.
Examples of hostile work environments
- Unwanted physical touching or advances
- Displaying offensive symbols or images
- Stereotyping an individual based on their protected characteristic
- Repeated comments or jokes about an individuals’ protected characteristic
Multiple incidents are not needed to rise to the level of a hostile work environment. Just one singular incident, if severe enough, can create a hostile work environment. An example of this is physical assault.
How can we help?
Our labor and employment attorneys can provide in-depth in-person harassment prevention training to both management and employee’s. Additionally, we can draft handbooks that outline policies and procedures to follow in the event workplace harassment occurs.
Approaching Deadline to Post Last Year’s Work-Related Injuries and Illnesses
By: Vedder Price via Lexology.com
Employers need to be prepared to post required workplace injury and illness information by February 1, 2025.
Pursuant to Occupational Safety and Health Administration (OSHA) regulations, unless and industry specific exemption applies, employers with 10 or more employees must keep a Log of Work-Related Injuries and Illnessed (i.e., OSHA Form 300) and must complete an Injury and Illness Incident Report (i.e., OSHA Form 301) for each recordable injury or illness.
OSHA defines a recordable injury or illness as follows:
- Any work related fatality
- Any work related injury or illness that results in loss of consciousness, days away from work, restricted work or transfer to another job
- Any work-related injury or illness requiring medical treatment beyond first aid
- Any work-related diagnosed case of cancer, chronic irreversible diseases, fractured or cracked bones or teeth, and punctured eardrums
- There are also special recording criteria for work-related cases involving: needlesticks and sharps injuries; medical removal; hearing loss; and tuberculosis
At the end of each calendar year, employers must review their OSHA 300 Log and verify that entities are complete and accurate, and correct any deficiencies identified.
Each year, employers must also complete a Summary of Work-Related Injuries and Illnesses (i.e., OSHA Form 300-A). Employers must then certify and post that summary in a conspicuous place or places where notice to employees are customarily posted from February 1 until April 30.
Employers with establishment that meet certain size and industry criteria are also required to electronically submit 2024 injury and illness data from their OSHA Form 300-A, 300, and 301 once per year to OSHA’s electronic Injury Tracking Application (ITA) by March 2.
Noncompete Agreement Issue Decided by National Labor Relations Board
The legal validity of noncompete agreements continues to be a moving target. However, on December 9, 2024, an Administrative Law Judge (ALJ) of the National Labor Relations Board (NLRB) ruled that an employer’s noncompete agreement was legal. For more information and background on noncompete agreements, please see our most recent publication of The Employer. The ALJ in the case of Permobil, Inc., specifically found that an employee’s Section 7 rights to discuss the terms and conditions of employment was not violated. The ALJ’s decision fails to support the May 2023 Memo from the NLRB General Counsel Jennifer Abruzzo which stated that noncompete agreements violate employees’ rights under the National Labor Relations Act.
Therefore, at this point, narrowly tailored language in noncompete agreements remain legally valid at least under federal law. Please contact a member of Bugbee & Conkle’s Labor & Employment Section with questions or concerns.