There has been a recent trend within the workplace that does not involve complaints of discrimination or harassment. Staff are now pursuing claims for overtime underneath the provisions of the Fair Labor Standards Act; and in Ohio, pursuant to ORC Section 4111.03. R.C. 411one.03(A) provides that an employer should pay an employee for overtime at a wage rate of one and one-0.5 times the employee’s wage rate, for hours worked in far more than 40 hours in one work week, unless the worker is exempt under Section seven and Section 13 of the Fair Labor Standards Act of 1938 (“FLSA”). If an FLSA exemption applies, then the worker is not entitled to overtime pay beneath R.C. 4111.03(A).
Exemptions are narrowly construed against the employer. The employer should demonstrate by clear and affirmative evidence that the employee is covered by the exemption. As a result of there is a presumption of non-exemption, the exemption is applied solely in “‘those circumstances plainly and unmistakably within the exemption’s terms and spirit.’” The manner in that an employee spends his time may be a fact question, however the issue of whether or not the employee’s duties fall at intervals an exemption may be a question of law. As an example of a typical exemption, an individual utilized as an outdoor salesperson who is compensated by commissions is an exempt employee. R.C. 411one.03(D)(three)(d). However, an employee cannot be thought of an outside salesperson unless, in performing his/her job duties, he/she is “usually and regularly engaged removed from the employer’s place or places of business.”
To successfully maintain an action for overtime below the FLSA, a plaintiff has the burden of building all of the subsequent: 1) that plaintiff was non-exempt under R.C. §411one.03(A); 2) that plaintiff has in fact performed work for which he/she was improperly compensated; and three) that the defendant employer had actual or constructive data that plaintiff was working overtime hours.
Unless this “three-pronged” demand is met, a plaintiff fails to satisfy his/her burden under the FLSA to maintain an overtime claim. An employee must gift sufficient evidence to ascertain that he/she in fact worked overtime hours and proof that the employer had actual or constructive knowledge of any overtime.
The recent trend of pursuing claims for overtime has gained momentum as a result of attorneys are keenly aware that as well as actual damages for failure to compensate an employee for overtime hours, cheap attorney fees will be awarded. From a monetary standpoint, this makes these cases attractive to those representing workers and usually leads to settlement to avoid giant attorney fee awards.