Sixth Circuit Rejects FLSA and Contract Claims of Overworked Computer Professional

Last week, the Sixth Circuit rejected the overtime compensation challenge of an exempt computer professional under the Fair Labor Standards Act and contract law.  Bennink v. Cincinnati Bell Telephone Company LLC, No. 26-3150 (6^th Cir. 10/29/26).   The Court found that there was sufficient evidence that he was an exempt computer professional and did not examine whether he satisfied the administrative or executive exemptions.  The Court rejected the plaintiff’s contention that the exemption required any formal training or degree because “the statute’s lack of an explicit educational requirement “reflects the reality that someone [could] learn[] such skills through work experience or self study.”  More interestingly, the Court found that the letter offering him employment at $75/hour was not a binding contract because the letter explicitly said it was not a contract.  Therefore, the employer’s failure to pay $75/hour and to instead pay him a $3,000 weekly salary was not a breach of contract even though he regularly worked more than 15 hours/day. “The mere mention of a rate of pay similar to his previous rate as a contractor, without any assurances as to whether that rate was to be on an hourly or salaried basis, is insufficient to show that the parties agreed to a $75 hourly rate.”  Less controversally, the Court also found that the plaintiff had implicitly agreed to the terms of his actual compensation by accepting $3K/week for almost seven years without complaint.  Such a course of conduct during at-will employment constitutes agreement to the terms of employment because under Ohio law, the terms and conditions of at-will employment can be changed prospectively at any time.

According to the Court’s opinion, the plaintiff had been a long time engineer working with the employer developing its interactive voice response technology (IVR) system, first with outside contractors and then, starting in 2016 as a W-2 employee, to be paid $75/hour but treated as an exempt computer professional.  On his resume, he “described his position  . . .  as an “Ops/IT Solutions & Services Engineer” and  . . .  that he “design[ed], implement[ed], and maintain[ed] IT solutions and services, such as IVR call flow designs, dial plans, and various end user support applications.”  . . .  He highlighted that he “leveraged in depth knowledge of contact center technologies, platforms, and tools,” and accomplished “successful contact center infrastructure migrations (both on premise and Cloud based solutions).”  After regularly working 18 hour days and not receiving more assistance despite his complaints, he resigned in 2023.  He later filed suit because he claimed that he was not paid $75/hour, but only $3000/week and claimed that this both violated the FLSA and breached his contact of employment. 

The FLSA exempts from the statute’s overtime protections “any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker” with one of the specified “primary dut[ies].” 29 U.S.C. § 213(a)(17). In particular, 29 U.S.C. § 213(a)(17)(B) exempts employees who have the primary duty of “design, development, documentation, analysis, creation, testing, or modification of computer systems or programs . . . based on and related to user or system design specifications.”1 Computer employees “who [are] compensated on an hourly basis” must be “compensated at a rate of not less than $27.63 an hour” to be exempt. 29 U.S.C. § 213(a)(17). Although the parties dispute whether [the plaintiff] was paid on an hourly or salary basis, both agree he was paid at a rate well over the statutorily required hourly rate of $27.63. So we focus on the responsibilities targeted by the statute.

 .. . .

First, 29 U.S.C. § 213(a)(17)(B) requires that the relevant responsibilities—“design, development, documentation, analysis, creation, testing, or modification”—concern “computer systems or programs.” Here, much of Bennink’s work revolved around Cincinnati Bell’s IVR system. Although the statute does not define “computer system or program[],” 29 U.S.C. § 213; 29 C.F.R. § 541.400, we have little trouble concluding that an IVR system is one. An IVR system is complex and technical. It automatically routes a user’s call based on a programmed menu, pulling in information from various databases and other systems. In fact, even while disputing that his role involved working on a computer system, Bennink himself describes “the various computer systems that contributed to IVR’s functionality” and how part of his role was working with others to ensure the requested IVR updates “were even feasible within the computer systems.”  . . . . This description corroborates our assessment of the IVR system. After all, a program made up of smaller computer systems is still a computer system.

Many of [the plaintiff’s] responsibilities regarding the IVR system fell within several of the duties described in 29 U.S.C. § 213(a)(17)(B), namely, “documentation,” “design,” and “development.” For one, [he] extensively documented the IVR system, mapping out where and how the system routed callers based on their needs. He worked in collaboration with others in IT, updating the map to reflect changes made by programmers or giving the programmers direction on what should be updated to make the system more effective. Although [he] insists that this responsibility was little more than creating “complicated flowcharts,”  . . . , his documentation was essential to helping others in the company understand how the current system worked, and therefore how it could be successfully changed in the future. . . .

[The plaintiff’s] documentation responsibilities also bled over into “design” and “development.” 29 U.S.C. § 213(a)(17)(B). In a system like IVR, which exists solely to route customers to the relevant assistance, “the design is the flow.”  . . . . [He] met with the team members who would be using or supporting the IVR, taking their feedback and determining how the system should be structured to meet user needs while complying with technical demands. By gathering these inputs and proposing the flow of the IVR, Bennink was designing and developing the system.

 . . .

To be sure, not all of Bennink’s work fell cleanly within the exemption. Bennink relied on other team members to carry out the actual programming of the system and ensure that the necessary data would be pulled in accordance with the goals laid out by his document. He also often acted as a project manager, coordinating across teams, negotiating deadlines and budgetary requirements, or preparing for the launch of a new IT solution. But it is not surprising that a job like Bennink’s was multi-dimensional. On this record, Bennink’s responsibilities concerning documentation, design, and development of the IVR system were the “main” or “most important” part of his job, making them his “primary duty.” 29 C.F.R. § 541.700(a). Although the parties do not present an exact breakdown of how much time Bennink spent on his various responsibilities, the evidence demonstrates that Bennink’s IVR related responsibilities were key to his role at Cincinnati Bell. Bennink himself believed he was brought on as an employee at Cincinnati Bell in large part because of his IVR expertise. These skills later made him an integral part of the efforts to migrate and update Hawaii Telecom’s IVR system, a task he admitted was sensitive, complex, and time-consuming. Because these responsibilities were so central to Bennink’s initial hiring and his workload, we conclude that they were his primary duty.

The Court also rejected the breach of contract claim based on his offer letter’s promise to pay him $75/hour when the employer “only” paid him $3,000/week despite him regularly working more than 15 hours per day.  As a contractor, he had been paid $75/hour for all hours worked, but he was not paid more when he worked more than 40 hours in a week after he became a W-2 employee.   To his detriment, despite his complaints about his working hours, he never complained about his compensation until he filed the lawsuit.

Even drawing all inferences in [the plaintiff’s] favor, [he] cannot show that his offer letter created a valid contract between him and [the defendant employer]. Two facts are insurmountable. First, [his] offer letter, which he signed, stated twice that it “does not constitute an employment contract.” . . . . Second, in his deposition, [he] himself stated that he “d[idn’t] think there was a meeting of the minds” when the parties exchanged the offer letter. . . . . . To find that the offer letter itself constituted a valid contract here, where one party clearly stated that it did not intend to enter into a contract and the other party admits to understanding that lack of intent, would require us to ignore the fundamentals of contract law.

It is true that despite the lack of an initial contract, [the plaintiff] went on to work as an at-will employee for [the defendant employer] for several years. And Ohio recognizes that at-will employment is generally “contractual in nature.”  . . . But even if at-will employment necessarily creates some sort of contractual relationship, enforcing any contract provision requires sufficiently definite terms.  . . .  Ohio courts allow the trier of fact to consider the facts and circumstances surrounding at-will employment, including the custom and course of dealing between parties, to determine whether “implied or express contractual provisions . . . alter[ed] the terms” of employment.  . . . So the ultimate question is whether [he] can demonstrate that a $75 hourly rate (including hours beyond forty per week) was a term the parties agreed upon.

In contrast to cases where employees have alleged that specific conversations or company documents provided guarantees about their employment,  . . .  [the plaintiff] argues only that he was being paid $75 per hour as a contractor before joining [the defendant employer as an employee]. So, he believed the offer was intended to be under “precisely the same terms.”  . . . . But the offer letter containing the $75 per hour rate did not say whether this would be on an hourly or salary basis, nor did it provide any details regarding overtime pay or hours to be worked per week. And [he] does not provide any evidence of other, later assurances made by [the employer] on such matters. The mere mention of a rate of pay similar to his previous rate as a contractor, without any assurances as to whether that rate was to be on an hourly or salaried basis, is insufficient to show that the parties agreed to a $75 hourly rate.

And regardless of the parties’ initial understanding regarding Bennink’s compensation, in at-will employment relationships, either party “may propose to change the terms of their employment . . . at any time.”  . . .  Here, [the plaintiff] was paid $6,000 per pay period, or $3,000 per week (the equivalent of $75 x forty hours), no matter how many hours he worked since October 2016. Although [he] argued below that he did not assent to any change in the terms, this argument is unavailing. [He] reviewed his paychecks, which stated he was being paid “$3,000 weekly.”  . . . [He], moreover, knew he was unable to log more than 40 hours per week and that he was categorized as an “exempt” employee. For its part, management knew that [he] was working many hours, partly because of [his] own complaints about his schedule—complaints where he did not mention any issues concerning his compensation. So even if [he] and [the employer] had initially agreed to a $75 hourly rate for all hours worked, we conclude on these facts that [he] agreed to continued employment on a salary basis.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court Enforces Repayment of Hiring Bonus

 Last week, the Cuyahoga County Court of Appeals affirmed the terms of an employer’s hiring bonus when the employee resigned less than a year after starting training and was required to repay the entire amount of the five figure hiring bonus.  CommuteAir, L.L.C. v. Bremer, 2025-Ohio-4843.  The Court rejected the defendant’s argument that he was constructively discharged because there was no evidence that his working conditions were intolerable.  He claimed that he could not complete training because of his wife’s illness and a death in the family, but could not refute the employer’s evidence that it attempted to reschedule his training without his cooperation in communication.  Finally, it rejected his argument that the hiring bonus was a non-forfeitable wage instead of a bonus that could be subject to conditions or that this breach of contract claim was preempted by the Railway Labor Act.

According to the Court’s opinion, the employer hired the defendant for its pilot training program.  He signed an agreement for a hiring bonus of $22K that he had to repay in full if he failed to complete his training or voluntarily resigned or was fired for cause in less than a year and half of the bonus if after one year, but less than two.  He delayed the commencement of his training by more than six months and then resigned less than a year later.  The agreement required him to repay the full amount, plus fees and costs. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Examines The Last Man Standing

 Last week, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on a breach of contract claim brought by its former CEO and award of prevailing party attorney’s fees on the grounds that it was ambiguous – and thus a jury question – whether the CEO’s comment that employees should not be the “last man standing” breached his employment agreement to not solicit employees to resign their employment.  Slinger v. Pendaform Co., No. 18-6187 (7-11-19).   The employer’s honest belief and reliance on a non-discriminatory reason for terminating the CEO is insufficient evidence to warrant summary judgment for breach of contract when the CEO plausibly proved that the employer’s explanation was simply pretext to avoid paying severance pay.   When it comes to evaluating breach of contract claim, intent and good faith is generally irrelevant unless the contract contains a clause making it relevant.  In other words, breaching a contract is a strict liability issue that cannot be avoiding by claiming a good reason or good faith.


According to the Court’s opinion, the defendant company was acquired by a company which was not a fan of the CEO’s performance.   He was directed to simply respond to emails and to forward emails he received.  Because he had an employment agreement that required severance pay if he was terminated without cause, the acquiring company intended to simply let his employment agreement expire naturally so that he would not be entitled to severance pay.   However, the agreement did not require severance pay if he was fired for cause (which included gross misconduct, fraud, felony or insubordination).  The agreement also contained a provision prohibiting him from soliciting employees to resign their employment.    As sometimes happens, the acquiring company began laying off employees.  During this period, the CEO visited one of the Ohio plants to retrieve the personal items he had left there and chatted with some employees about the future of the company.   Apparently, he said something to the effect that they should not be the last man standing.  Some employees did not think much of his comments, but others were alarmed and reported the comment to new management.   Within two minutes of learning of the comments, the new company president emailed that the CEO should be fired.  The CEO was then quickly fired for “gross misconduct” by soliciting employees to resign in violation of his employment agreement.   When he brought suit for his severance pay, the trial court granted summary judgment to the employer and awarded it over $188K in attorney’s fees as the prevailing party under the agreement.  The CEO appealed and the Sixth Circuit reversed.


The Court criticized the trial court’s weighing of the evidence at the summary judgment stage of the litigation.  The trial court seemed to be relying on the honest belief rule and reliance on a legitimate business reason instead of construing the evidence in favor of the party opposing summary judgment as required by the rules of civil procedure.    The Court found that Wisconsin law – which governed the agreement –and the employment agreement do not recognize a good faith defense to breach of contract.   While the contract could have created a good faith belief defense for the employer (and some contracts do), this one did not.   Therefore, the employer’s subjective belief as to whether the CEO had engaged in gross misconduct was insufficient evidence to avoid a jury question on a material dispute of fact as to whether the CEO’s comment breached the agreement.  


While the parties did not materially dispute what the CEO said, they disputed what he meant and was understood by his comment:

What his words meant is disputed.  The gloss that one puts on the interaction is the nub of this case.  In the company’s telling of the tale, Slinger deliberately approached every employee to deliver the same missive of impending doom, disrupting the workplace by soliciting employees to leave.  In Slinger’s version, he was approached by employees nervous about their job security after the merger and told them kindly to look after themselves.  And indeed, some employees took his comments as a friendly goodbye, while others feared for their jobs.  The District Court ignored these differences in simply stating that “five employees stated Plaintiff’s comment concerned them and believed they should find other employment.”  2018 WL 3708023, at *7.  That statement fails to summarize all of the evidence.  “A study of the record in this light leads us to believe that inferences contrary to those drawn by the trial court might be permissible.”

In contrast, the CEO asserted that the company’s explanation was simply pretext to terminate him without severance pay.  He put forward a compelling case:  The purchase agreement noted next to his name “no severance.”   The decision to terminate him was made within two minutes.  In addition, the Company suggested that it fired him for gross misconduct and then changed it to breach of the non-solicitation clause.   Moreover, the employment agreement did not define “solicit.”

What Slinger said is not disputed, but the import and meaning of his words in context is disputed.  Each party’s characterization of the same events is plausible and is linked to specific evidentiary support.  Given that the term “solicit” is susceptible to two reasonable, competing interpretations, summary judgment here was improper.

Because there could be different inferences drawn from the evidence whether the CEO was fired for cause or simply to avoid paying severance pay, the jury was entitled to hear the evidence and decide whether the agreement had been breached.  Accordingly, the attorney’s fee award was also vacated.  One can wonder if there is too much water under the bridge for the parties to settle in light of the expense of this litigation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

When Willful Misconduct Is not Necessarily All Other Intentional Misbehavior

Earlier this month the Montgomery County Court of Appeals affirmed a $655,733.44 jury verdict (in addition to$262, 227 in costs,  interest and attorney fees)  in favor of an executive who it found was terminated in violation of his employment agreement and in bad faith.   Becker v. Direct Energy, LP, 2018-Ohio-4134.   The Court concluded that the trial court’s jury instruction explaining when the defendant company could terminate “for cause” the executive was correct and that there was sufficient evidence to show that the company acted in bad faith.  Thus, when the employment agreement provided that the executive could only be terminated “for cause” if the company “in good faith” believed that he had “engaged in acts of fraud, material dishonesty, or other acts of willful misconduct in the course of his duties hereunder,” the “other acts of willful misconduct” referred to conduct which was similar to “fraud” and “material dishonesty.”    Therefore, the jury could conclude that the plaintiff’s behavior did not constitute willful misconduct that the employer acted in bad faith in terminating him for yelling at and poking a subordinate employee who twice in three weeks had violated significant safety rules when the plaintiff had a long history of excellent performance and no prior disciplinary infractions, when other employees had received far less severe sanctions and when circumstantial evidence showed that his potential severance pay could have been a motivating factor for his termination.

According to the Court’s opinion, the plaintiff’s employment agreement provided that the executive could be terminated for cause or without cause.  However, if he was terminated without cause, he would be entitled to severance pay (including 24 months of salary and 18 months of COBRA payments), or he could resign with three months’ notice (entitling him up to 3 months of pay if the company opted for an earlier separation).  The executive had worked for many years for the company and its predecessors and his performance reviews reflected that his division was one of the most profitable.  The company had also been more focused on employee safety.  

The plaintiff was responsible for conducting random surprise inspections of employees and found an employee, who had been suspended during the prior year for safety issues, engaged in a number of unsafe practices and serious quality issues.  After discussing the issues with the employee, the plaintiff spoke with the employee’s supervisor about taking disciplinary action, but the supervisor never spoke to or terminated the employee.  Two weeks later, the plaintiff spoke with the supervisor about whether that employee was even teachable because the supervisor had not properly handled the situation.   He then decided to inspect that employee’s work again on his way to another meeting and found some of the same safety violations he had previously noted just two weeks earlier.   Stressed because he was running late, the plaintiff lost his temper with the employee.  He poked the employee (who was much larger than him) in the chest and yelled at him in a very unprofessional manner.  Although he apologized, he also believed that the employee should be fired because of his unsafe practices.

The employee called his wife, who worked in HR for another company and told her that he thought that he was going to lose his job.  The next day, he filed several internal complaints about the executive’s unprofessional treatment of him the prior day.  The executive admitted that much of the complaint was true.  While he denied harassing the employee, he was embarrassed by his behavior.  Up to this point, there was no allegation about violence, pushing or physical harm.  HR conducted an investigation and the current and former manager both recommended that the executive receive no more than a written reprimand or warning based on his prior record and level of the offense.   After a conference call with senior management, HR forwarded a copy of the executive’s employment agreement to legal counsel.  During the next conference call, the decision was made to terminate the executive for willful misconduct under his employment agreement.

The executive was informed of his termination and asked to remain until the end of the month. The script prepared for his termination indicated that he was not to be permitted to resign (even though the company’s practice had always been to permit employees to resign at any time for any reason) and that the remaining employees would be told that he was passing the torch, instead of being terminated.  The plaintiff filed suit for breach of contract, breach of the duty of good faith and fair dealing, and defamation.  

On appeal, the Court rejected the employer’s arguments that the court should have ruled in its favor as a matter of law on the grounds that the plaintiff materially breached the employment agreement.  The court found this to involve an issue of fact, which was resolved against the employer at trial.

The Court also agreed that “willful misconduct” under the employment agreement was ambiguous.  Under the doctrine of ejusdem generis, because “the agreement used the term “or other acts of willful misconduct,” it  can be read, under an established principle of construction, to indicate that willful misconduct was intended to relate back and be confined to the same general nature as the previous, more specific terms, which were fraud and material dishonesty.”  Indeed, the former executive who had hired the plaintiff testified (without objection) that this is what he meant when that term was inserted into the employment agreement.  In addition, “[t]here is no dispute about the  fact that [the defendant’s] legal counsel prepared the agreement, and Ohio law is settled that  ambiguities in contracts are construed strictly against the drafter.”  The employer could have avoided the ambiguity by defining the term “other acts of willful misconduct”  or deleted “other,” which had referred back to the earlier specific acts.

The Court also rejected the employer’s argument that there was no evidence (i.e., admissions) that the plaintiff had been fired in order to avoid paying his severance pay because circumstantial evidence may support a verdict as well as direct evidence.  The jury had ample circumstantial evidence that the employer had acted in bad faith.  The HR employees had not initially recommended more than a written warning for the plaintiff’s misconduct.  After this, she then learned that the plaintiff’s most recent performance evaluation had been “exceeds expectations,”  and she provided his employment agreement to counsel.  Consideration of the employment agreement could support a plausible inference that the severance pay factored into the decision, particularly because none of the witnesses recalled any discussion as to whether violation of the harassment/workplace violence policies would similarly constitute willful misconduct under the agreement or whether there were any grounds to terminate him for cause under the agreement.  The employer also prepared a script for the termination meeting which did not permit the plaintiff to voluntarily retire and which gave a false reason for his separation.  The actual decisionmaker was not called to testify as to the basis for their decisions.  There was also testimony that the employer did not have a zero tolerance workplace violence policy and comparisons to other similar situations show that the plaintiff was treated much more harshly for a first time disciplinary infraction.

As for the jury instructions, the Court found that the trial court’s instruction were proper:  “the terms fraud or material dishonesty may be instructive regarding the seriousness  required for behavior * * * to constitute an other act of willful misconduct.”  Moreover,

As indicated above, the agreement provides that the termination must be made in, quote, “good faith.”  Thus, a second issue is whether [the defendant’s] termination of [the plaintiff] on the basis that his conduct was an act of willful misconduct, breached [its] obligation to exercise good faith and fair dealing in interpreting the agreement to justify terminating [his] employment.

The jury was also instructed that “it could not find for [the plaintiff] regarding a breach of good faith and fair dealing unless it found that [the employer’s] action in terminating [him] from his position for cause

“was not an act of honesty in interpreting and applying the language in the Employment Agreement, but was instead an act of dishonesty in applying the definition of cause for an ulterior purpose or motive, and not a truthful interpretation or application of the definition of “cause” as contemplated by the parties.

As for the award of attorney’s fees, they generally are not awarded in the absence of punitive damages or statute.  However, the Court recognized an exception for when “a prevailing party may be awarded attorney fees after demonstrating the unsuccessful litigant’s bad faith.”  In this case, “[b]ad faith can involve conduct during litigation, but can also involve conduct giving rise to a party’s claim.”  “The jury did not just find that [the employer] had breached the duty of good faith and fair dealing; it specifically found that [it] had acted to take advantage of [the plaintiff].”  The jury unanimously agreed that the employer had acted in bad faith when responding to one of the jury interrogatories:

Do you find that Plaintiff proved by the preponderance of the evidence that Defendant’s decision to terminate him “for cause” was made in bad faith to take advantage of Plaintiff and improperly deny him the benefits he would have received if he had been terminated “without cause” under the contract? 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

No Breach of Settlement Agreement by Employer When Employee Failed to Properly Direct References to Specified Individual

The Trumball County Court of Appeals this month affirmed summary judgment in favor of an employer on a claim by a former employee that the employer breached their settlement agreement concerning job references.   Baumgartner v. AIM Leasing, 2013-Ohio-883.   In that case, the parties’ settlement agreement – as many do --  provided for a certain job reference (which omitted certain driving accidents by the employee in the course of his employment) if he directed his future employers to contact a particular Human Resources employee.   When applying for jobs with other trucking and delivery companies, the plaintiff-employee failed to specify on his job applications (or on the job reference waiver forms) who the potential employer should contact at his former employer.   Consequently, these prospective employers did not receive the agreed-upon job reference information pursuant to the settlement agreement.  One of these employers hired the plaintiff-employee anyway, but fired him after receiving reference information (which disclosed his preventable and unpreventable traffic accidents) that was inconsistent with the information he provided on his job application.  The Court found that the defendant-employer was not required to provide the agreed-upon reference information unless the prospective employer contacted the particular HR employee as agreed in the settlement agreement.   Therefore, there was no breach of the settlement agreement. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court Awards Employee Damages When Employer Violated Written Contract By Decreasing His Pay Rate.

Last month, the Trumbull County Court of Appeals affirmed an award of $42,116.38 in damages plus interest to a former employee who sued for breach of a written contract when, upon the advice of its accountant and based on poor economic conditions, his former employer decreased the plaintiff’s salary below $75,000/year in breach of his employment agreement. Sloan v. Shafer Commercial & Indus. Servs. Inc., 2008-Ohio-4765. The employer had also decreased the salaries of the other officers and laid off employees at the same time. Although the plaintiff objected to the wage cut, he continued to work for the employer for another 33 months. The court rejected the employer’s various arguments that, among other things, the plaintiff waived his contractual rights by continuing to work at the reduced pay, that he was guilty of laches for waiting three years to file his claim, and that he should be estopped from challenging the wage cut three years later. In particular, the court found the employee did not waive his contractual rights by continuing to work after the pay cut. While the employer might have had a good argument that the contract had been mutually modified by the parties, the court refused to consider this argument on appeal because the employer failed to raise that argument before the trial court.


Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/11/2008/2008-ohio-4765.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.