Answers Posted By Christina Royer
Under the Ohio Revised Code, an employee may not waive his or her right to receive unemployment compensation benefits.
Revised Code section 4141.32(A) says "No agreement by an employee to waive his right to benefits is valid."
Regardless of whether an employee signs a handbook containing this policy, it would not be an effective waiver.
Chris Royer
answer to Can a 2wk notice be required and if not offered wave unemployment benefits posted Feb 18, 2011 11:15 AM [EST]
Revised Code section 4141.32(A) says "No agreement by an employee to waive his right to benefits is valid."
Regardless of whether an employee signs a handbook containing this policy, it would not be an effective waiver.
Chris Royer
answer to Can a 2wk notice be required and if not offered wave unemployment benefits posted Feb 18, 2011 11:15 AM [EST]
If your wife filed her claim, and her claim was allowed, she should have received paperwork from the Ohio Department of Job & Family Services (ODJFS) relating to her claim.
From there, in order to receive benefits, she should have filed weekly claims to establish her eligibility each week. It is not clear from your post whether she did this.
As a general proposition, claimants who establish eligibility for benefits are entitled to 26 weeks of benefits. Thereafter, if there were federal extension benefits available to her, she would have had to have applied and qualified for those. The federal extensions are now phasing out, but could be renewed, if the incoming Congress agree to extend them.
If federal extensions were not available at the time her claim for benefits under Ohio's system ended, her claim would have been done after she received 26 weeks of benefits, which she had a year to take.
Now, most claimants file their initial and weekly claims online, so she would have received e-mails relating to notices in her online/electronic account, which she could view using her username and PIN, which is mailed out after the claim is initiated.
If she opted not to do her claim online, and/or you moved or there was a mistake with the mailing address (i.e., such that she did not receive the paperwork assigning the username and PIN), that might explain why you never received any notices relating to her claim.
The problem is that, if your wife did not file her weekly claims, she would not be able to collect benefits. A claimant has 21 days to file a claim for each week of unemployment. ODJFS will not extend this time, absent "good cause."
You may want to contact ODJFS and figure out what happened. If she did not file weekly claims and there is a basis to establish "good cause" for failing to file timely, she may be able to receive her benefits.
ODJFS may question why it took you this long to contact the agency to see what happened with her claims, so you may want to be ready to answer that question.
Good luck!
Chris Royer
answer to Is there any way to challenge the state's failure to pay unemployment compensation benefits? posted Nov 19, 2010 4:48 PM [EST]
From there, in order to receive benefits, she should have filed weekly claims to establish her eligibility each week. It is not clear from your post whether she did this.
As a general proposition, claimants who establish eligibility for benefits are entitled to 26 weeks of benefits. Thereafter, if there were federal extension benefits available to her, she would have had to have applied and qualified for those. The federal extensions are now phasing out, but could be renewed, if the incoming Congress agree to extend them.
If federal extensions were not available at the time her claim for benefits under Ohio's system ended, her claim would have been done after she received 26 weeks of benefits, which she had a year to take.
Now, most claimants file their initial and weekly claims online, so she would have received e-mails relating to notices in her online/electronic account, which she could view using her username and PIN, which is mailed out after the claim is initiated.
If she opted not to do her claim online, and/or you moved or there was a mistake with the mailing address (i.e., such that she did not receive the paperwork assigning the username and PIN), that might explain why you never received any notices relating to her claim.
The problem is that, if your wife did not file her weekly claims, she would not be able to collect benefits. A claimant has 21 days to file a claim for each week of unemployment. ODJFS will not extend this time, absent "good cause."
You may want to contact ODJFS and figure out what happened. If she did not file weekly claims and there is a basis to establish "good cause" for failing to file timely, she may be able to receive her benefits.
ODJFS may question why it took you this long to contact the agency to see what happened with her claims, so you may want to be ready to answer that question.
Good luck!
Chris Royer
answer to Is there any way to challenge the state's failure to pay unemployment compensation benefits? posted Nov 19, 2010 4:48 PM [EST]
The Unemployment Compensation Act is designed to provide benefits to employees who lose their jobs through "no fault of their own."
When an employee files a claim for benefits, the Ohio Department of Job & Family Services first determines if he or she is "monetarily eligible" (did he/she work enough weeks and earn enough in the base period?).
Then, ODJFS evaluates the reason for the termination to determine if there was "just cause." The term "just cause" for this purpose has no meaning outside of the unemployment context. There are several factors ODJFS assesses.
Whether the employment is "at will" has nothing to do with whether there is "just cause" for purposes of Unemployment compensation.
Under the "at will" doctrine, the employer may terminate for "any reason, or no reason," but whether the employee is entitled to Unemployment compensation entails an analysis that goes beyond this mere fact.
Chris
answer to Is there a way for employers to not have to pay unemployment if they comply with Employment-At-Will? posted Oct 27, 2010 10:27 AM [EST]
When an employee files a claim for benefits, the Ohio Department of Job & Family Services first determines if he or she is "monetarily eligible" (did he/she work enough weeks and earn enough in the base period?).
Then, ODJFS evaluates the reason for the termination to determine if there was "just cause." The term "just cause" for this purpose has no meaning outside of the unemployment context. There are several factors ODJFS assesses.
Whether the employment is "at will" has nothing to do with whether there is "just cause" for purposes of Unemployment compensation.
Under the "at will" doctrine, the employer may terminate for "any reason, or no reason," but whether the employee is entitled to Unemployment compensation entails an analysis that goes beyond this mere fact.
Chris
answer to Is there a way for employers to not have to pay unemployment if they comply with Employment-At-Will? posted Oct 27, 2010 10:27 AM [EST]
If you make withdrawals from an IRA, those withdrawals will be deducted from your UE benefits for the week(s) in which the monies from the IRA become payable. If the withdrawal(s) exceed(s) the amount of your weekly benefits, then you will not receive any UE benefits for that week.
However, if you take a lump-sum distribution and re-invest the entire amount within 60 days (i.e., rollover the funds into a different account), the amount of the withdrawal will not be deducted from your benefits.
To verify what will happen, the best course of action is to call your Processing Center, as some Centers deal with these issues, and the fact-finding around them, differently.
Chris
answer to IRA WITHDRAW WHILE ON EUC posted Jul 27, 2010 3:58 PM [EST]
However, if you take a lump-sum distribution and re-invest the entire amount within 60 days (i.e., rollover the funds into a different account), the amount of the withdrawal will not be deducted from your benefits.
To verify what will happen, the best course of action is to call your Processing Center, as some Centers deal with these issues, and the fact-finding around them, differently.
Chris
answer to IRA WITHDRAW WHILE ON EUC posted Jul 27, 2010 3:58 PM [EST]
In addition, sometimes the Ohio Department of Job & Family Services will do some additional "fact finding," issue a finding "vacating" the allowance of the claim, and then issue another determination disallowing benefits.
You need to read your notices very carefully to see why the claim is now denied. Also, there is a 21-day window to appeal the denial of your claim, so be sure to stick to that deadline so that you don't lose the right to appeal.
answer to can an employer still appeal an unemployment claim after the first 21 days? posted Jul 27, 2010 10:49 AM [EST]
You need to read your notices very carefully to see why the claim is now denied. Also, there is a 21-day window to appeal the denial of your claim, so be sure to stick to that deadline so that you don't lose the right to appeal.
answer to can an employer still appeal an unemployment claim after the first 21 days? posted Jul 27, 2010 10:49 AM [EST]
My first question is whether you are sure you are a non-exempt employee. There are exemptions from overtime for IT professionals, including programmers and other computer-related positions.
I would be concerned that your job duties as an IT engineer render you exempt.
That said, if the employer treats you as non-exempt and actually pays overtime in some form, there may be an argument that the exemption does not apply, and you are entitled to overtime.
Overtime at a rate of time and one-half must be paid for all hours over 40 that you work in any given workweek. The calculation must be done on a weekly basis, not on a monthly basis, as your employer appears to be doing.
You should consult with a lawyer in your area about the specifics of your situation to determine if you are truly exempt from overtime and, if so, if it would worthwhile to try to pursue the wages you are owed.
answer to Overtime Question posted Jul 31, 2009 4:20 PM [EST]
I would be concerned that your job duties as an IT engineer render you exempt.
That said, if the employer treats you as non-exempt and actually pays overtime in some form, there may be an argument that the exemption does not apply, and you are entitled to overtime.
Overtime at a rate of time and one-half must be paid for all hours over 40 that you work in any given workweek. The calculation must be done on a weekly basis, not on a monthly basis, as your employer appears to be doing.
You should consult with a lawyer in your area about the specifics of your situation to determine if you are truly exempt from overtime and, if so, if it would worthwhile to try to pursue the wages you are owed.
answer to Overtime Question posted Jul 31, 2009 4:20 PM [EST]
when must employers pay employees?
Absent something in your collective-bargaining agreement that speaks to when employees must be paid, there is no recourse under Ohio law to force the employer to give you a check on the Friday payday, if you decline direct deposit.
Under Ohio law, employers are obligated only to pay employees twice a month (15th and 30th). Employers who pay more often than that are choosing to do so. They are not legally obligated to pay more often than semi-monthly.
I do not believe it is discriminatory to treat "direct deposits" differently from "non-direct deposits." Ohio law prohibits discrimination on the basis of things like race, religion, gender, age, and disability. Method of pay does not seem to relate to any of these categories.
answer to Change of Payday posted Oct 31, 2007 6:14 PM [EST]
Absent something in your collective-bargaining agreement that speaks to when employees must be paid, there is no recourse under Ohio law to force the employer to give you a check on the Friday payday, if you decline direct deposit.
Under Ohio law, employers are obligated only to pay employees twice a month (15th and 30th). Employers who pay more often than that are choosing to do so. They are not legally obligated to pay more often than semi-monthly.
I do not believe it is discriminatory to treat "direct deposits" differently from "non-direct deposits." Ohio law prohibits discrimination on the basis of things like race, religion, gender, age, and disability. Method of pay does not seem to relate to any of these categories.
answer to Change of Payday posted Oct 31, 2007 6:14 PM [EST]
is a negative reference defamation?
Defamation in general is very difficult to prove, and is all the more difficult to prove in the job reference context.
Under Ohio law, there is a privilege that attaches to an employer's communications when giving out job-reference information. "Privilege" means that, even if the words are false nad defamatory, they are not legally actionable because of the context in which they are said.
The privilege can be overcome by showing that the specific, false statements made as part of the reference were made with knowledge that the statements are false, or with "reckless disregard" as to whether the statements are false.
If you believe that you aren't getting jobs because of statements by these past employers, the first step is to find out whether that's true. That may be difficult to do.
Then, if you succeed in determining that that you didn't get a job because of a negative reference (as opposed to the other issues you raise, or something else altogether), you then need to find out exactly what these past employers said and when.
The statute of limitations is very short: one year from the date the defamatory statement is actually made, not when you discover that it was made.
I think it would be very difficult to go after these past employers, but not impossible if you are able to do some detective work and get straight answers from the places that turned you down.
Good luck!
answer to negative references, defamation, other posted Oct 31, 2007 6:08 PM [EST]
Defamation in general is very difficult to prove, and is all the more difficult to prove in the job reference context.
Under Ohio law, there is a privilege that attaches to an employer's communications when giving out job-reference information. "Privilege" means that, even if the words are false nad defamatory, they are not legally actionable because of the context in which they are said.
The privilege can be overcome by showing that the specific, false statements made as part of the reference were made with knowledge that the statements are false, or with "reckless disregard" as to whether the statements are false.
If you believe that you aren't getting jobs because of statements by these past employers, the first step is to find out whether that's true. That may be difficult to do.
Then, if you succeed in determining that that you didn't get a job because of a negative reference (as opposed to the other issues you raise, or something else altogether), you then need to find out exactly what these past employers said and when.
The statute of limitations is very short: one year from the date the defamatory statement is actually made, not when you discover that it was made.
I think it would be very difficult to go after these past employers, but not impossible if you are able to do some detective work and get straight answers from the places that turned you down.
Good luck!
answer to negative references, defamation, other posted Oct 31, 2007 6:08 PM [EST]
Fair competition after non-solicitation agreement expires
As a preliminary matter, any attorney would have to read the actual agreement you signed to be able to give you specific advice about your rights and obligations relating to it.
Nonetheless, your question raises valid concerns about what is acceptable competition in the marketplace, whether there is a non-compete or non-solicitation agreement in place.
There are laws that prevent businesses and individuals from stealing and improperly using another business's trade secrets. This is so regardless of whether the company has its employees sign non-compete/non-solicitation agreements.
There are also laws that prohibit businesses and individuals from engaging in behavior that wrongfully interferes with another businesses relationships with its own employees and customers. Likewise, these laws are in place regardless of a non-compete/non-solicitation agreement.
In your case, even when your non-solicitation agreement expires, these laws will continue to protect your former employer.
This means that anything you do to pursue this particular customer (or any other of your former customers) must fall into the category of normal business activities that are designed to promote reasonable competition.
For example, you may not use confidential information or trade secrets (such as pricing structures, sales data, etc.) from your former employer to try to procure this customer's business.
Also, you should not disclose confidential information or trade secrets to your new employer in order to procure a competitive advantage that the new company wouldn't already have in the marketplace.
You should also refrain from "bad-mouthing" your former employer, or saying false and defamatory things about the company, in order to induce its clients or employees to sever their relationships with your former employer.
All of that said, if this customer likes you and wants to continue doing business with you, and is comfortable with your new employer, then it is not unreasonable to try to foster a business relationship after the six-month period expires.
This does not mean that your former employer could not try to enforce rights it believes it has under the non-solicitation agreement or under the legal priniciples discussed above. There is always this risk. But, if you conduct yourself in a manner that is consistent with good business ethics, and make sure that you are engaging only in fair competition, it would be more difficult for the former employer to prevail.
answer to Hidden Non-solicitation Clause posted Oct 18, 2007 5:19 PM [EST]
As a preliminary matter, any attorney would have to read the actual agreement you signed to be able to give you specific advice about your rights and obligations relating to it.
Nonetheless, your question raises valid concerns about what is acceptable competition in the marketplace, whether there is a non-compete or non-solicitation agreement in place.
There are laws that prevent businesses and individuals from stealing and improperly using another business's trade secrets. This is so regardless of whether the company has its employees sign non-compete/non-solicitation agreements.
There are also laws that prohibit businesses and individuals from engaging in behavior that wrongfully interferes with another businesses relationships with its own employees and customers. Likewise, these laws are in place regardless of a non-compete/non-solicitation agreement.
In your case, even when your non-solicitation agreement expires, these laws will continue to protect your former employer.
This means that anything you do to pursue this particular customer (or any other of your former customers) must fall into the category of normal business activities that are designed to promote reasonable competition.
For example, you may not use confidential information or trade secrets (such as pricing structures, sales data, etc.) from your former employer to try to procure this customer's business.
Also, you should not disclose confidential information or trade secrets to your new employer in order to procure a competitive advantage that the new company wouldn't already have in the marketplace.
You should also refrain from "bad-mouthing" your former employer, or saying false and defamatory things about the company, in order to induce its clients or employees to sever their relationships with your former employer.
All of that said, if this customer likes you and wants to continue doing business with you, and is comfortable with your new employer, then it is not unreasonable to try to foster a business relationship after the six-month period expires.
This does not mean that your former employer could not try to enforce rights it believes it has under the non-solicitation agreement or under the legal priniciples discussed above. There is always this risk. But, if you conduct yourself in a manner that is consistent with good business ethics, and make sure that you are engaging only in fair competition, it would be more difficult for the former employer to prevail.
answer to Hidden Non-solicitation Clause posted Oct 18, 2007 5:19 PM [EST]
Possible FMLA Issue
In addition to Neil Klingshirn's comments about the overtime issues, I believe this question may implicate the FMLA.
When employers approve an employee's FMLA leave, they must allow the employee up to 12 weeks of leave each year.
FMLA leave may be taken intermittently (i.e., a day off at a time over a period of time) or it may be taken consecutively (i.e., 2 straight weeks off, or 12 stratight weeks off).
The catch is that FMLA leave is unpaid. Although employers cannot deny eligible employees the time off, they are not obligated to pay employees for that time away from work.
Many employers have policies where certain amounts of leave are paid, whether through accrued vacation time or through short- or long-term disability programs. But, these programs are voluntary, and the law does not require employers who do not have these programs to pay employees for FMLA leave taken.
It is not clear from the question whether you exhausted FMLA leave in connection with your surgery, or whether the FMLA leave was granted for the medical condition that necessitated the surgery.
If you had remaining FMLA leave after returning from surgery, and missed the day for reasons relating to the medical condition, then the employer may elect not to pay you for the day missed. This is because it is counting that day towards your FMLA leave.
If you missed work for a reason that is unrelated to your medical condition, then the employer should not treat it as FMLA leave, and should neither dock your pay, nor charge that day against any remaining FMLA leave that you may have.
answer to Salaried Employee docked pay for 1 day off. posted Oct 18, 2007 4:56 PM [EST]
In addition to Neil Klingshirn's comments about the overtime issues, I believe this question may implicate the FMLA.
When employers approve an employee's FMLA leave, they must allow the employee up to 12 weeks of leave each year.
FMLA leave may be taken intermittently (i.e., a day off at a time over a period of time) or it may be taken consecutively (i.e., 2 straight weeks off, or 12 stratight weeks off).
The catch is that FMLA leave is unpaid. Although employers cannot deny eligible employees the time off, they are not obligated to pay employees for that time away from work.
Many employers have policies where certain amounts of leave are paid, whether through accrued vacation time or through short- or long-term disability programs. But, these programs are voluntary, and the law does not require employers who do not have these programs to pay employees for FMLA leave taken.
It is not clear from the question whether you exhausted FMLA leave in connection with your surgery, or whether the FMLA leave was granted for the medical condition that necessitated the surgery.
If you had remaining FMLA leave after returning from surgery, and missed the day for reasons relating to the medical condition, then the employer may elect not to pay you for the day missed. This is because it is counting that day towards your FMLA leave.
If you missed work for a reason that is unrelated to your medical condition, then the employer should not treat it as FMLA leave, and should neither dock your pay, nor charge that day against any remaining FMLA leave that you may have.
answer to Salaried Employee docked pay for 1 day off. posted Oct 18, 2007 4:56 PM [EST]
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