Two sales representatives who worked for an advertising company called Cheap Escape and were paid almost exclusively on commission are claiming that they should have been paid minimum wage because of the Ohio Fair Minimum Wage Amendment passed in 2006. The case is currently in the Ohio Supreme Court after Ohio’s Second Court of Appeals ruled for the sales representatives. If the Supreme Court rules the same way, Ohio employers may have to pay minimum wage to employees who were exempt from receiving minimum wage under state and federal law.

The federal Fair Labor Standards Act (FLSA) exempts certain employees such as outside sales representatives from the requirement of being paid minimum wage. The Ohio Minimum Wage Amendment states that “employee” and other terms have the same meanings as under the FLSA, but also states “[o]nly the exemptions in this set forth in this section shall apply to this section.” The Amendment does not specifically list any exemption for outside sales representatives and some other federally exempted employees. After this amendment was passed, the Ohio legislature passed R.C. 4111.14, which incorporated the FLSA exemptions to who had to be paid minimum wage by employers. The employees are arguing that because the Amendment specifically states that the only exemptions that will apply are those listed in the Amendment, and the statute incorporates other exceptions, the statute is unconstitutional.

Ohio’s Second Court of Appeals determined that the statute “impermissibly narrowed” the constitutional amendment, making the statute unconstitutional. The case is now being reviewed by the Ohio Supreme Court, and there could be severe consequences for some employers if the Court rules the statute unconstitutional. Employers may now have to pay outside salespersons and other federally exempted employees minimum wage. There is also dispute as to whether employers would have to pay such employees minimum wage not only going forward, but all the way back to 2007 when the Amendment was implemented. This case has not been decided yet, but affected employers should keep an eye on it to determine whether they will now have to pay certain employees minimum wage.

Joe Burke is a Law Clerk at Lardiere McNair, LLC.  To read more about our firm, please visit www.lmcounsel.com

The information presented here has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.

Can Spousal Support payments be modified? The short answer is, it depends! It depends on some elements:

• The language of the decree;
• The date of the decree; and
• If the decree includes language specifically reserving the Court’s jurisdiction to modify.

If you can meet those elements, then the burden is on the party who wants to modify spousal support to prove a change of circumstances has occurred that would justify a modification.

Pursuant to the Ohio Revised Code, 3105.18(F)

“A change in the circumstance of a party includes, but is not limited to, any increase or involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as the change in circumstances is substantial and makes the existing award no longer reasonable and appropriate and the change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.”

If you are curious whether the spousal support order can be modified to request a higher support amount, or if you believe you have a change in circumstance due to retirement, loss of a job, etc., please contact our office. A Motion must be filed with the Court, but remember that the Court will not go back in time to the date of the decree, it will only consider a modification as of the date a Motion is filed.

Sunni DiNicola is an Associate Attorney at Lardiere McNair LLC.  Lardiere McNair LLC has a practice in which advises and assists both employers and employees with their employment concerns.  To read more about Sunni, please visit http://www.lmcounsel.com

The information presented here has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.

A recent federal court case, Jones v. Se. Penn. Transp. Auth., — F.3d—, No. 14-3814 (3rd Cir. Aug. 12, 2015), has ruled that employers are permitted to place employees on leave, with pay, while investigating employee conduct.  If the employer continues to pay the employee throughout the investigation, then it is not an adverse action against the employee.

Examples of adverse actions against employees, which can often result in employment discrimination cases, include: termination, transfer, demotion, and suspension without pay.

The Court found that a paid suspension is not a refusal to hire or terminate, “by design” does not change compensation, and does not cause a “serious and tangible” alternation of employment terms, conditions, or privileges.

It is important to treat all similarly situated employees with consistency through these processes.  Employers with questions should contact an attorney.

A full copy of the decision by the Court can be found at: https://casetext.com/case/jones-v-se-pa-transp-auth.

Chad Stonebrook is an Associate Attorney at Lardiere McNair LLC.  Lardiere McNair LLC has a practice in which advises and assists both employers and employees with their employment concerns.  To read more about Chad, please visit http://www.lmcounsel.com/chads-bio.html.

In one of its most recent decisions, the Supreme Court held that housing practices can be unlawful based on their discriminatory effect, even if there is no discriminatory purpose. The Fair Housing Act (FHA) makes it unlawful to “refuse to sell or rent…or otherwise make unavailable or deny” housing to a person based on race or any other protected characteristic. The lawsuit alleged that a Texas state agency had caused segregated housing patterns because the agency gave too many tax credits to developers in mostly minority inner-city neighborhoods and too few credits in the mostly white suburbs.

The Supreme Court found that unlawful practices under the FHA include housing restrictions that function unfairly to exclude minorities from certain neighborhoods and communities without sufficient justification. The Court did, however, hold that if the plaintiff relies on a statistical disparity without being able show that the policy caused the disparity, the claim would fail. The Court additionally limited the decision so that housing authorities and private developers can make practical business choices and profit-related decisions without being drawn into litigation.

So while the Supreme Court held that housing practices can be unlawful when they have a discriminatory effect, housing authorities and developers may continue the practice if they can prove it is necessary to achieve a valid interest and that there is not a less discriminatory alternative. Additionally, any plaintiff must be able to show that the housing practice caused the disparity, so housing authorities and developers won’t be held liable for racial disparities they didn’t create.

Joe Burke is a law clerk at Lardiere McNair, LLC. To read more about Joe and our firm, please visit www.lmcounsel.com.

The information presented here has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.

The Fair Labor Standards Act (FLSA) requires employers to provide basic rights and wage protections for employees, which includes minimum wage and overtime, such as, time and a half of their regular pay, for any hours worked in excess of 40 hours per work week.

FLSA does exempt overtime pay on so called “white collar” workers, such as administrative, executive and professional workers, if they are paid a salary of at least $455.00 per week, while satisfying other duties.  But to qualify for an exempt status, the employee must earn $455.00 per week, which comes out to $23,660.00 per year, which is just barely above the national poverty level for a family of four.

Experts are predicting that the new rules may actually double the salary amount requirements, which means a large amount of employees who make between $23,660.00 and $47,320.00 (or possibly even more) will be subject to overtime pay.

Employers should begin determining which employees this could affect and budget accordingly.  Employers should plan that the “white collar” exemption may become more constrictive, for example, the executive exemption duties test could limit the amount of time a manager can engage in the same job duties as their non-exempt direct reports.

Employers should consider updating job classifications of all of its exempt employees with detailed descriptions of the duties performed and the amount of time spent on each duty, and updating their organizational charts to determine the number direct reports of each exempt manager.  However, employers must be careful they do not misclassify their employees, or they could face penalties if the Department of Labor does an audit.

Sunni DiNicola is an Associate Attorney at Lardiere McNair, LLC.  To read more about Sunni, please visit lmcounsel/sunnis-bio.htm

The information presented here has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.

Dave and Linda decided they wanted to improve their home in Franklin County by adding a parking pad and widening their driveway. They live in an area that does not have curbs, sidewalks or street lighting. They toured the neighborhood to get some ideas of what other neighbors had done to improve their driveways. They found a neighbor who had recently put in a driveway which was exactly what they wanted. Dave and Linda contacted the contractor who had installed the neighbor’s driveway and hired him to do the work. The contract required the Contractor to get any permits which were needed. The Contractor assured Dave and Linda that there should be no problem. Shortly thereafter, the Contactor applied for a permit through the Township Zoning Department and installed the driveway as planned. Upon completion, the Township building inspector visited the job site and approved the work. Dave and Linda were happy with their new driveway!

However, shortly thereafter, Dave and Linda received a Notice of Zoning violation from the County detailing three violations of County zoning regulations. It seems nine months earlier, the County Commissioners had passed new regulations to address the width of driveways in Franklin County based on an issue in another Township. The Commissioners imposed this standard across the County!!!

Dave and Linda took their case to the Franklin County Board of Zoning Appeals to seek a variance. However, after a review of the case, the Board held that even though Dave and Linda acted in good faith, thought they were following the correct permitting process, were not advised by the Township Zoning that County approval was required, and relied on a Contractor who had previously installed a similar driveway in the same neighborhood, the Board would not allow a variance. Dave and Linda are now faced with the dilemma of removing their new driveway or facing a criminal charge for a zoning violation.

What is the lesson here?

Despite good faith actions and experienced Contractor advice, this couple ran into problems. A simple reminder from the Township Zoning Department that County approval needed to be obtained would have eliminated the problem. However, there is no “requirement” that the Township provide additional help. Be aware that for whatever improvements you wish to make, there may be multiple authorities who must approve permits. In many communities you may need approval from the City, the Homeowner’s association AND there may be an association WITHIN the Homeowner’s association. Failure to obtain the proper permitting can result in very expensive problems!

If you are not sure of who you need to approve your project, give us a call and we will be happy to provide guidance!

Charles McClenaghan is Of Counsel to Lardiere McNair, LLC. To read more about Charles, please visit: lmcounsel.com or lawdublin.com.

The information presented here has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.