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Does Just The Title Manger Stop Me From Getting Overtime Pay? I Need A Lawyer!

On Behalf of | Dec 30, 2015 | Wage: Overtime |

Best Ohio Overtime Pay Attorney Answer: What employees are entitled to overtime compensation? What should I do if I think my employer has misclassified me as being exempt from overtime as a manager? What should I do if my boss won’t pay me for the overtime that I worked?

overtime, time and a half, wages, wage theft, misclassified, manager, salaried, salary Employment, Lawyer, attorney, law firm, Ohio, Columbus, Cincinnati, Toledo, Cleveland, While there are many employers out there that understand that paying their employees what they deserve keeps them working hard, increases productivity, and in the end increases profits, may bosses think that the best way to increase profits is by cheating employees out of their lawfully earned wages. These lousy, rotten employers will find ways to avoid paying overtime pay or even trying to pay less than minimum wage. Luckily, employees facing wage theft on their job do not have to face the battle to get their paychecks fixed alone.

Our dedicated wage and hour attorneys at Spitz, The Employee’s Law Firm regularly fight for employees who have been cheated out of their lawfully earned overtime compensation in violation of the Fair Labor Standards Act (“FLSA“). As our overtime law lawyers have blogged about before, the federal overtime laws contained in the FLSA and Ohio’s wage and hour laws in R.C. § 4111.03, mandate that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked. These wage laws further require that employers pay time and a half the employee’s regular hourly rate when the employee works more than 40 per week. As a kicker for violations, the FLSA penalizes employers who violate the law by making them pay employees not only unpaid back wages but also an equal amount in liquidated damages and reasonable attorney’s fees and costs. (See Overtime Attorney Top Answer: I’m A Manager. Can I Get Paid For Overtime Hours?; If I Do Domestic Work, Can I Sue For Overtime Pay?; Law: As A Salaried Employee, Am I Exempt From Overtime?; If I Do Domestic Work, Can I Sue For Overtime Pay?; Am I Entitled To Overtime? I Need A Lawyer!; Should Uber Drivers Be Paid Overtime? Wage Theft Law; and Are All Professionals Exempt From Overtime?).

employer, employee, Fair Labor Standards Act, FLSA, wage and hour, best, top, Brian Spitz, my job, my paycheck, I, pay, exempt, nonexempt, how do I, Sometimes, FLSA issue arises when an employer misclassifies its employees, whether intentionally or inadvertently. An example would be if an employer says that an employee is not entitled to overtime compensation because he or she is a “manager” even though the employee’s primary duties are actually duties that would normally be performed by a non-exempt employee who is able to earn overtime compensation. Under that scenario, if the employee can prove that he or she is performing non-exempt job duties and should be eligible for overtime compensation, then the employer has illegally misclassified the employee under the FLSA. This is a regular wage problem and something that our wage theft lawyers have blogged about regularly. (See Am I Entitled To Overtime If I’m A Manager In Name Only?; Can My Job Not Pay Overtime By Calling Me An Executive?; Do Assistant Managers Get Overtime Pay?; Should I Be Paid Overtime Even If I’m A Manger?; and What’s The Minimum Salary To Be Exempt For Overtime?).

Another recent example of misclassification is illustrated by a large federal collective action lawsuit recently settled in the United States District Court for the Western District of New York. In Heitzenrater v. OfficeMax Inc., over 300 assistant managers from OfficeMax opted into a lawsuit claiming that they were misclassified as “exempt” employees when in fact they should have been considered “non-exempt” and therefore able to receive overtime compensation. The lawsuit, originally filed by a single employee, bloomed to over 300 plaintiffs after it became a collective action, which under the FLSA, is very similar to a class action lawsuit. According to the employees bringing the lawsuit, their primary assigned duties included “customer service, stocking shelves, working the cash register, unloading trucks, setting up displays pursuant to diagrams, counting inventory, cleaning the store, working in the copy center, pricing merchandise, collecting shopping carts in the parking lot, merchandise recovery and organizing shelves.” However, according to the complaint, the employees’ primary duties did not include managerial tasks such as hiring, firing, scheduling, or disciplining employees.

The original employee-plaintiff commenced the lawsuit in September 2012 alleging violations of FLSA and New York law on behalf of himself and all other current and former similarly situated assistant managers. Thereafter, 17 additional assistant managers opted into the FLSA collective action. At that point, the employees moved the court to conditionally certify the collective action to add several more employees as plaintiffs in the case, a motion that was granted by the court in February, 2014, which held:

Plaintiff argues that he has met the minimal burden warranting conditional certification because “ASMs at OfficeMax are governed by the same set of designated job duties and responsibilities, are compensated in the same manner, are classified as exempt from the FLSA’s overtime provisions, and are subject to the same job description, corporate policies and work rules.” … Thus, Plaintiff argues, “Office Max has a `uniform business practice’ of treating ASMs similarly throughout the United States.” … To the extent that Plaintiff asserts that no further evidence is needed, this Court disagrees. Jenkins, 853 F. Supp. 2d at 324 (mere existence of a common job description is insufficient to warrant conditional certification); Khan v. Airport Mgmt. Servs., No. 10-CV-7735, 2011 WL 5597371, *4 (S.D.N.Y. Nov. 16, 2011) (same); Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469, 476 (S.D.N.Y. 2010) (same). As Defendants argue, Plaintiff is not alleging that the ASM job description or any relevant official policy demonstrates that the ASMs are improperly classified as exempt under FLSA. Instead, he argues that, in contrast to the official job description, the primary duties actually carried out by ASMs did not substantially differ from the duties of non-exempt hourly employees. (See Compl. ¶¶ 49-53; Heitzenrater Dep at 22, Docket No. 57.) Thus, in order to show that Plaintiff and any opt-in Plaintiffs were subject to “a common policy or plan that violated the law,” Myers, 624 F.3d at 555 (emphasis added), there must be a modest factual showing they “were similarly situated with respect to the claim that they were required to perform non-managerial job duties in contravention of the formal job description.” Guillen, 750 F. Supp. 2d at 476.

With the collective action conditionally certified, it created significantly more exposure for OfficeMax because now, instead of 17 employees suing the company, the lawsuit consisted of over 300 employees with claims under the FLSA. As a result, in 2015, after further litigation, the parties reached a settlement in the amount of $3.5 million to compensate the employees in exchange for dismissal of the lawsuit.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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