By: Tami Z. Hannon, Esq.
Mazanec, Raskin & Ryder Co., LPA
As you likely know, the Department of Labor (DOL) recently issued its final rule raising the salary requirement for overtime exempt workers. What does this rule mean for you?
- All employers covered under the FLSA are covered by the proposed changes.
If your business is subject to the FLSA or you have overtime exempt workers, then you are subject to the new regulations regardless of whether you are a private or public employer.
- This requirement does NOT impact those exempt as teachers, lawyers, or doctors.
These professionals have been historically exempt from the salary basis requirement and continue to be so under the new regulations.
- The new salary level only impacts the required pay of your overtime exempt employees.
To be exempt from overtime under the FLSA, the employee must meet two tests. First, the employee must perform certain job duties that the FLSA views as being “white collar” or “exempt” job duties. This new regulation does not change what those job duties are. The second part of the test is whether the employee who performs those job functions is paid a certain annual amount. Historically, that amount was $23,660 per year. The new regulations increase that amount to $47,476 per year through December 31, 2019. In order for your overtime exempt employees to keep their exemption, they must be paid a minimum of $47,476 per year. Please note that even if an employee is making at least $47,476 per year, the employee must still perform “white collar” job duties to qualify as overtime exempt.
For employees close to this level, consider whether you wish to increase their salary to maintain the exemption, maintain their current pay level but pay them overtime or keep their work to 40 hours per week.
- This requirement does NOT impact your non-exempt employees.
Employees that were previously paid overtime are still entitled to overtime. This new regulation does not impact their pay levels or requirements.
- An employee’s non-discretionary bonuses and incentive pay now count towards up to 10% of the required salary level.
What this means is that for an employee at the $47,476 mark, $4,747 of their salary can come from non-discretionary bonuses, commissions, or other incentive pay linked to productivity or profitability. To be considered part of the salary, the payment must be made at least quarterly and cannot be subject change at the discretion of the employer. Rather, once the criteria for earning the bonus are met – certain production standards, performance standards, or overall company profitability – payment of the bonus must be mandatory. Note that bonuses may be paid beyond this level, but no more than $4,747 will count towards meeting the necessary salary amount.
A non-discretionary bonus is one that you have promised, contracted, or agreed to pay to the employee and have no “discretion” in determining the fact of payment. These can include bonuses in collective bargaining agreements, production bonuses, bonuses for quality and accuracy of work, attendance bonuses, and bonuses to induce employees to remain or continue employment until payment. The latter can likely include longevity bonuses awarded to employees.
Meeting the pay requirement with bonuses:
- Each pay period the employee must be paid a minimum of 90% of the $47,476 or higher salary level. For an employee paid bimonthly this means a minimum of $1,643.40 per pay period.
- The remaining 10% will be paid in quarterly bonuses. If the total at the end of each quarter does not equal 13 weeks of full salary, then the employer must pay the remainder to the employee.
- In our example, our bimonthly employee must be paid $11,869 per quarter ($913 per week for 13 weeks). At the end of the first quarter, the employee received 90% of this amount, or $10,682.10 through his regular pay. If the employee does not meet the criteria for an incentive pay, the employee must still receive $1,186.90 in his next paycheck to ensure that the employee will be paid $47,476 by year’s end. This calculation must be done quarterly as you only have one pay period for the “catch up” payment for missed bonuses.
- If you include bonuses and incentive pay in your salary, make certain to do the math to retain the incentive.
As the law requires you to pay the minimum $47,476 yearly even if the employee does not reach the necessary levels to receive the bonuses, make certain to do the math and make the bonuses worth reaching for. Using our above example, the employee knows that he or she will still be entitled to a $1,186.90 check at the end of the quarter even if he or she does not meet the productivity or profitability standards to qualify for the bonus. To keep the incentive, make sure that the associated incentive pay is greater than this amount to encourage the employee to continue to excel at performance.
For additional information or questions on the implementation of the new DOL rule at your company, please contact any of the following MRR Employment & Labor Law attorneys:
By: Tia J. Combs, Esq.
Mazanec, Raskin & Ryder Co., LPA
On May 13, 2016, the United States Department of Justice, Civil Rights Division, and the United States Department of Education Office for Civil Rights issued a joint Dear Colleague Letter providing guidance to school districts concerning the accommodation of transgender students. The crux of the Dear Colleague Letter is a declaration that transgender students are protected under Title IX of the Education Amendments of 1972 (“Title IX”) and its implementing regulations. The Departments have indicated that districts that fail to follow the guidance offered in the Dear Colleague Letter will not continue to receive federal funding.
Under Title IX, public entities, such as public schools, agree that as a condition of receiving federal funds they will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex, any person in educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations. The Departments interpret Title IX as requiring schools to treat a student’s “gender identity” as the student’s “sex.” “Gender identity” is defined as “an individual’s internal sense of gender.” Specifically, the Dear Colleague Letter states when a student notifies the school he or she will assert a gender identity differing from the student’s previous representations, the school must begin treating the student consistently with the newly asserted gender identity.
In connection with the Dear Colleague letter, the Department of Education also released its Examples of Policies and Emerging Practices for Supporting Transgender Students. This twenty-five page booklet gives examples of the policies and procedures used in districts across the country which the Department believes are supportive of transgender students.
The Fourth Circuit’s Decision in G.G. ex rel. Grimm v. Gloucester County School Board
The Dear Colleague Letter and Examples of Policies and Emerging Practices for Supporting Transgender Students comes on the heels of the Fourth Circuit’s decision in G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 WL 1567467 (4th Cir. Apr. 19, 2016), which also defines the rights of transgender students under Title IX.
In G.G., a transgender male student was given permission by an administrator to use the boys’ restroom facilities at his Virginia high school. However, soon after this authorization was given, the local board of education passed a policy mandating all students use the restroom consistent with their birth-sex or an individual facility. G.G. alleged the board’s policy was in violation of Title IX and equal protection. The district court held that 34 C.F.R §106.33, which allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” allowed the Gloucester County School Board to mandate use of bathrooms and locker rooms based on birth-sex.
The Fourth Circuit disagreed. It found that the word “sex,” as used in 34 C.F.R §106.33, is ambiguous because it does not clearly distinguish how to categorize a transgender student into the regulation’s two delineated categories of male or female. Since the Fourth Circuit found the regulation to be ambiguous, it also found that the US Department of Education guidance concerning the regulation should be used to interpret it. Although the case was decided prior to the issuance of the recent Dear Colleague Letter, prior guidance from the Department also directed that transgender students be allowed access to restrooms congruent with their gender identity. As such, the Fourth Circuit found the Gloucester County School Board’s policy in violation of Title IX and unenforceable.
The Gloucester County School Board has filed a petition for the case to be reheard by an en banc panel of the Fourth Circuit.
The Intersection between Law and Policy
The release of the decision in G.G. and the Dear Colleague Letter within a month of each other has left school districts throughout the country wondering where they should go from here. Unfortunately the answer is still far from clear.
The Dear Colleague Letter is officially only significant guidance from the Department of Justice and the Department of Education and does not technically have the force of law. However, it takes on new importance in light of the Fourth Circuit’s holding that 34 C.F.R §106.33 is ambiguous. The Fourth Circuit’s decision lends new validity to the Departments’ interpretive guidance, including the Dear Colleague Letter.
In future cases like G.G., courts will have to decide if they believe, as the district court originally held in G.G., that 34 C.F.R §106.33 is not ambiguous, or if they will follow the Fourth Circuit’s lead and hold the regulation is ambiguous. If the regulation is declared ambiguous, the Dear Colleague Letter will be used to resolve the uncertainties.
Should you have any questions about the application or implementation of the Dear Colleague Letter in your district, please do not hesitate to contact any of the school law attorneys at Mazanec, Raskin & Ryder.
Notes from the House of Representatives
- Sub. HB No. 523 was passed upon third consideration to authorize the use of marijuana for medical purposes and to establish the Medical Marijuana Control Program.
- Am. HB No. 375 was passed upon third consideration to authorize townships to require the removal of snow and ice from sidewalks abutting property and to impose a fine for failure to do so.
- HB No. 559 was introduced to grant qualified civil immunity to certain medical providers who provide emergency medical services as a result of a disaster or mass hazard; to provide that any loss of a chance of recovery or survival by itself is not an injury, death, or loss for which damages may be recovered; to provide civil immunity to certain medical providers regarding the discharge of a patient with a mental condition that threatens the safety of the patient or others; and to require that governmental agencies that receive peer review committee records maintain their confidentiality.
- HB No. 560 was introduced regarding verification of community school enrollments.
- HB No. 562 was introduced to authorize local governments and officers to deliver certain notices by ordinary mail and electronically instead of by certified mail.
- HB No. 563 was introduced to provide for payments to municipalities or school districts for their lost income tax revenue after a business lays off 50 or more employees within their jurisdiction.
- HB No. 568 was introduced to create a generally uniform definition of employee for specified labor laws, to create a uniform standard to determine whether an individual performing services for an employer is an employee of that employer, and to regulate the payment of wages via payroll card.
- Sub. SB No. 215 was passed upon third consideration to grant a person immunity from civil liability for any damage resulting from the forcible entry of a motor vehicle for the purpose of removing a minor or an animal from the vehicle because the minor or the animal is in imminent danger of suffering harm.
- Sub. HB No. 130 was passed upon third consideration to create the DataOhio Board, to specify requirements for posting public records online, to require the Auditor of State to adopt rules regarding a uniform accounting system for public offices, to establish an online catalog of public data at data.Ohio.gov, to establish the Local Government Information Exchange Grant Program, and to make an appropriation.
- Am. HB No. 423 was passed upon third consideration to specify that an order for active military service or other documentation regarding the call to order of an individual in the Armed Forces of the United States or the Ohio organized militia is not a public record for a period of time.
Notes from the Senate
- Sub. HB No. 5 was passed upon third consideration to conduct feasibility studies regarding the efficiency of local public offices and state agencies, to authorize the Auditor of State to establish a shared equipment service agreement program among state agencies and political subdivisions, and to specify that a state agency or political subdivision that uses the loaned equipment may assume potential liability for its use.
- Sub. HB No. 166 was passed upon third consideration to make changes to the law governing community improvement corporations, the administration of property taxes, and the functions of county auditors.
- SB No. 273 was passed upon third consideration to enact the Corporate Governance Annual Disclosure Act, was considered the third time.
For questions or more information on MRR’s Ohio Legislation Updates, contact:
By: Kyle B. Melling, Esq.
Openly Carrying Firearms in Ohio
Recently gun enthusiasts petitioned the Republican Party to allow attendees to carry firearms at this summer’s Republican National Convention. The Secret Service quickly rejected this request citing Title 18 USC §§ 3056 and 1752, which provides the Secret Service with the authority to preclude firearms from entering sites visited by their protectees, including those located in open-carry states. While gun owners won’t be able to open carry at the RNC, many law enforcement personnel and private citizens find themselves at a loss when determining the specific laws regarding openly carried firearms in the state of Ohio.
Ohio is an “Open Carry” state and protects the right to bear arms under Article I, Section 4 of the state constitution. This means that anyone who can legally possess a firearm can carry one, in the open, without a license, with some exceptions.
Who Cannot Open Carry in Ohio?
Only individuals who can legally possess firearms in Ohio can open carry. Individuals who are not legally allowed to possess firearms include those who are fugitives from justice, those who are under indictment for or have been convicted of a felony, those who are drug dependent or intoxicated, and those who are mentally incompetent.
Where Can Individuals Open Carry in Ohio?
While Ohio generally allows its citizens to open carry fire arms, there are limitations to the locations in which citizens may open carry. Ohio generally prohibits persons from openly carrying in liquor-serving establishments, within school zones, and within court houses. Further, private business owners may prohibit any firearms from being brought into their establishments by posting a notice in a conspicuous location. Finally, absent a Conceal and Carry License, Ohioans may not open carry loaded firearms in any type of vehicle.
Can Police Officers’ Stop and Detain Individuals who are Openly Carrying a Firearm?
The Fourth Amendment requires that in order for a police officer to detain a citizen to conduct an investigation he must have reasonably articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1. (1968). Recently the Sixth Circuit held that in Open Carry states, such as Ohio, the presence of an openly carried firearm alone is not enough to permit a police officer to detain and disarm the carrier. See Northrup v. City of Toledo Police Dept., 785 F.3d 1128 (6th Cir. 2015). The Court went on to clarify that this general rule only applies first when the Officer has no reasonable suspicion of any possible criminal activity, and second, when the firearm does not on its face appear to be an illicit firearm, such as an assault rifle, or other automatic weapon. As such, in Ohio, police officers may not detain individuals who are otherwise behaving lawfully, who are openly carrying a firearm.
For questions or more information on the topic of this blog post, please contact:
By: Tami Z. Hannon, Esq.
Mazanec, Raskin & Ryder Co., LPA
The Department of Labor (DOL) has issued its final rule adjusting the salary requirements for employees to be exempt from overtime. The DOL is not making any changes at this time to the other part of the exemption test – the duties the employee must perform to qualify for an overtime exemption.
Under the final rule,
- An employee must make $913 weekly, or $47,476 annually to qualify for an exemption;
- An employee must make $134,004 annually to qualify for an exemption as a highly compensated employee;
- These levels will be updated every three years to align with the 40th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region. The threshold for highly compensated employees will be adjusted to the 90th percentile of annual earnings of full-time salaried workers nationally. The first update will occur on January 1, 2020.
The rule will also now permit employers to use nondiscretionary bonuses, incentive pay, and commissions to contribute towards a maximum of 10% of required salary levels for non-highly compensated employees. This additional pay must be paid at least quarterly to be counted towards the salary requirements.
The final rule becomes effective December 1, 2016.
For more information or if you have any questions, please contact:
Tami Z. Hannon – MRR Cleveland
Notes from the House of Representatives
- HB 529 was introduced to provide for firearms training for tactical medical professionals; to permit such a professional who has received that training or comparable training and who is authorized to carry firearms by the law enforcement agency the professional is serving to carry firearms while on duty in the same manner, to the same extent, in the same areas, and subject to the same potential for civil and criminal liability as a law enforcement officer of the agency; and to grant such a professional, while on duty in that capacity, the same right to carry a concealed handgun in this state as a person who was issued a concealed handgun license.
- HB 531 was introduced to require townships to provide mileage reimbursement to a member of a board of township trustees and to a township fiscal officer for travel within the township that is necessary in the performance of the member’s or fiscal officer’s duties.
- Am. HB 361 was passed upon third consideration to authorize boards of township trustees and boards of park commissioners to expend funds for the public purpose of presenting community events in their parks and at other recreational facilities.
- HB 537 was introduced to make discrimination in housing or employment on the basis of sexual orientation an unlawful discriminatory practice; to provide specified protections for religious expression and beliefs about marriage, family, and sexuality; and to prohibit an elected official who solemnizes marriages from refusing to solemnize a marriage of two persons who have been granted a marriage license.
- HB 545 was introduced to allow a corporation to become a benefit corporation.
- HB 546 was introduced to authorize a board of education or governing authority of a school to enter into an agreement with a volunteer who is a current or retired law enforcement officer to patrol school premises to prevent or respond to a mass casualty event, to generally provide to a board of education or governing authority of a school and to such a volunteer immunity from civil liability for injury, death, or loss arising from the volunteer’s services, and to provide a tax credit for volunteer service.
- HB 547 was introduced to provide authorization and conditions for the operation of state programs and to make appropriations.
- Sub. SB 152 was passed upon third consideration to prohibit a public authority from requiring a contractor to employ a certain percentage of individuals from the geographic area of the public authority for the construction or professional design of a public improvement and to prohibit a state agency or state institution of higher education from requiring a contractor to or prohibiting a contractor from entering into certain labor agreements as a condition of performing or bidding on a public improvement project, was taken up for consideration the third time.
- Sub. SB 75 was passed upon third consideration to limit the authority of a board of county commissioners or board of township trustees to prohibit agritourism through zoning, to apply current agricultural use valuation to land used for agritourism for property tax purposes, and to establish immunity in a civil action for agritourism providers, was taken up for consideration the third time.
Notes from the Senate
- SB 318 was introduced to prohibit discrimination on the basis of sexual orientation or gender identity or expression, to add mediation to the list of informal methods by which the Ohio Civil Rights Commission must attempt to induce compliance with Ohio’s Civil Rights Law before instituting a formal hearing, and to eliminate certain religious exemptions from the Ohio Civil Rights Law.
- SB 320 was introduced to revise the requirements for renewable energy, energy efficiency, and peak demand reduction, to permit property owners to petition municipal corporations and townships for the purpose of developing and implementing special energy improvement projects, to govern condominium association participation in special improvement districts, to require deployment and permit cost recovery of advanced energy analytics technology by electric distribution utilities, and to revise the law governing net metering service provided by electric utilities and electric services companies.
- SB 220 was passed on third consideration to authorize the Ohio Public Employees Deferred Compensation Board and local governments to establish designated Roth account features and other tax-deferred or nontax-deferred features permitted for government deferred compensation plans.
- SB 321 was introduced to create a procedure within the Court of Claims to hear complaints alleging a denial of access to public records and to modify the circumstances under which a person who files a mandamus action seeking the release of public records may be awarded court costs and attorney’s fees.
- SB 322 was introduced to require the Ohio peace officer training commission to develop and conduct a chief of police training course for newly appointed chiefs of police appointed on or after January 1, 2017, and to require newly appointed chiefs of police of villages, cities, and townships to attend the training course within six months of appointment as a chief of police.
- SB 325 was introduced to repeal the requirement that electric distribution utilities and electric services companies provide 12.5% of their retail power supplies from qualifying renewable energy resources by 2027, to repeal energy efficiency and peak demand reduction requirements for electric distribution utilities, and to modify the topics included in the Energy Mandates Study Committee report.
- Sub. HB 207 was passed upon third consideration to eliminate the minimum number of employees required for a private sector employer or a board of county commissioners with respect to the construction of a sports facility to obtain self-insuring status under the Workers’ Compensation Law and to allow a state fund employer to have a workers’ compensation claim that is likely to be subrogated by a third party paid from the surplus fund account in the state insurance fund rather than charged to the employer’s experience.
For questions or more information on MRR’s Ohio Legislation Updates, contact:
Most people are familiar with the National Highway Traffic Safety Administration (NHTSA)’s “Drive Sober or Get Pulled Over” campaign. Throughout the years, a lot of advertisement money from various organizations has been used to educate and persuade people about the dangers of “drinking and driving.” However, little attention has been paid to the ever-increasing incidents of drivers taking to the road while under the influence of a drug.
While driving under the influence of alcohol and driving under the influence of a drug or drugs are both criminalized under Ohio Revised Code section 4511.19 and while the elements of the respective crimes are the same, investigation and prosecution of a driving under the influence of alcohol case can be vastly different from investigation and prosecution of a driving under the influence of a drug or drugs case.
When an officer suspects a driver of being under the influence of alcohol, he or she can look for very specific clues, the most telling of which are an odor of alcoholic beverage on or around the driver’s person, or an admission by the driver that he or she consumed alcohol recently. Most officers, and lay people who may end up on a jury, are familiar with the scent of alcoholic beverage, can likely associate certain behaviors with intoxication by alcohol, and are aware of the general time frame in which alcohol has an effect after consumption.
But what happens when an officer pulls over a driver, and the driver acts very strangely, or even erratically, but there is no sign that alcohol is consumed, there are no drugs in sight, and the driver does not admit to having consumed any particular substance? If a blood or urine test is obtained, this will frequently answer the question of what substance has been used, and in what quantity. However, what happens when the driver refuses a test, a test is unavailable, or results are lost in the mail?
Many of Ohio’s appellate courts have held that speculation as to which drug a driver may be under the influence of is not sufficient to convict a driver of OVI. The prosecution must present evidence sufficient to establish a nexus between the driver’s impaired condition and any type of drug of abuse. While circumstantial evidence may be used to convict a driver, such evidence must point to the use of a particular drug of abuse (for example, empty prescription bottles that have been filled very recently, or the odor of burnt marijuana). Appellate courts have also held that the prosecution must present some evidence of how that particular drug affected the defendant (in the form of expert testimony or testimony from someone familiar with the driver and how he or she acts while using the drug), and essentially how this effect caused the impairment.
Furthermore, most officers use the Horizontal Gaze Nystagmus (HGN) test, outlined in the NHTSA manual, to determine whether a driver may be intoxicated. According to the NHTSA manual, when performed correctly, the HGN can help an officer determine, with 88% accuracy, whether a suspect has a blood alcohol content of .08 or higher, or may suggest that the subject is under the influence of a CNS depressant (like bartbituates or sleep medications), an inhalant, or a dissociative drug, like PCP. However, the HGN cannot determine whether the driver is under the influence of many other drugs, including marijuana. Some Ohio courts have refused to admit the results of an HGN test into evidence in cases in which the defendant has been suspected of driving under the influence of marijuana.
With the increase of people driving under the influence of drugs and the push to legalize marijuana, the issue of driving under the influence of a drug or drugs of abuse will not go away. We will likely see an increase in court decisions regarding the topic.
The First Amendment prohibits public entities from dismissing or demoting an employee because of the employee’s engagement in political activity. Therefore, if a public employee engages in political activity and is dismissed or demoted as a result, the employee has an actionable claim under 42 U.S.C. §1983.
However, in the recent case of Heffernan v. City of Paterson, New Jersey, the United States Supreme Court was presented with the question of whether a public entity can be held liable under 42 U.S.C. §1983 for dismissing or demoting an employee when the demotion or dismissal is based upon the public entity’s mistaken belief that the employee engaged in political activity. In other words, is it possible for a public entity to deprive an employee of the right to engage in political activity if the employee never actually engaged in said political activity?
In a 6-2 decision, the U.S. Supreme Court answered that question in the affirmative, ruling that when a public employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. §1983, even when the public employer’s actions are based on a factual mistake about the employee’s behavior. The Court relied heavily on the concept that the First Amendment’s language focuses upon government activity, not the activity of a deprived individual. As such, it is the motive of the public employer in so demoting or dismissing an employee that matters, not whether the employee did or did not actually engage in political activity.
The holding in Heffernan v. City of Paterson, New Jersey is highly relevant for all public sector employers and an important reminder for all public entities that an employee should never be demoted, dismissed, or otherwise disciplined for any activity protected by the U.S. Constitution, regardless of whether the employee’s activity is real or perceived. If there is ever a question as to whether the employee’s behavior is constitutionally protected, make sure to contact our office before any action is taken on behalf of the public entity.