Answers Posted By Neil Klingshirn
You would be covered under the FMLA if your employer has 50 or more employees where you work and you had worked more than half-time for at least a year. You may or may not be covered under the ADA, depending on the limitations caused by the breast cancer and how long you expect them to last.
In either case, it may be a defense to the employer that it would have laid you off due to lack of work whether or not you have a disability or were on FMLA covered work. That is a factual issue but, if true, may give the employer legal justification for the layoff.
answer to Is it legal to be laid off when returning from work after reconstructive surgery for breast cancer? posted Oct 26, 2011 6:01 PM [EST]
In either case, it may be a defense to the employer that it would have laid you off due to lack of work whether or not you have a disability or were on FMLA covered work. That is a factual issue but, if true, may give the employer legal justification for the layoff.
answer to Is it legal to be laid off when returning from work after reconstructive surgery for breast cancer? posted Oct 26, 2011 6:01 PM [EST]
If you do not want to sign the non-compete, you may have to work somewhere else, since this company is insisting on the non-compete. I do not know what the company might consider instead of a non-compete. However, you might propose that the non-compete be modified to a very short period of time or make it applicable only to the customers with whom you come in contact.
answer to What can part-time indep contractors offer in terms of language to replace a non-competer clause? posted Oct 24, 2011 6:07 PM [EST]
answer to What can part-time indep contractors offer in terms of language to replace a non-competer clause? posted Oct 24, 2011 6:07 PM [EST]
It sounds like you might have a claim for tortious interference with a prospective contractual relationship. That claim involves:
1. The existence of a prospective contractual opportunity.
2. The third party's knowledge of it (in this case the company helping you)
3. Interference in that relationship (here, the company taking it for itself) and
4. A wrongful purpose or means.
Wrongful means would be, for example, where the third party that took the contractual opportunity breached a confidentiality agreement or used your trade secrets to get the deal.
Whether or not you have such a claim, and whether it would be worth pursuing if you did, depends on the facts, circumstances and amount at stake. To review all of that, we offer a consultation for $200. If you would like to schedule a consultation, call 330.665.5445, ext. 2 and we will get you on my calendar.
Neil Klingshirn
answer to Govt contract - did not have a teaming agreement and the "partner" stole it, any relief? posted Sep 30, 2011 11:24 AM [EST]
1. The existence of a prospective contractual opportunity.
2. The third party's knowledge of it (in this case the company helping you)
3. Interference in that relationship (here, the company taking it for itself) and
4. A wrongful purpose or means.
Wrongful means would be, for example, where the third party that took the contractual opportunity breached a confidentiality agreement or used your trade secrets to get the deal.
Whether or not you have such a claim, and whether it would be worth pursuing if you did, depends on the facts, circumstances and amount at stake. To review all of that, we offer a consultation for $200. If you would like to schedule a consultation, call 330.665.5445, ext. 2 and we will get you on my calendar.
Neil Klingshirn
answer to Govt contract - did not have a teaming agreement and the "partner" stole it, any relief? posted Sep 30, 2011 11:24 AM [EST]
The IRS would be interested in the $70 that the employer paid you for fuel reimbursement, since the effect of reimbursing you for fuel is the same as paying you under the table. Once you submit your complaint to the IRS, it should conduct an investigation and take appropriate action.
Less clear is whether you have a claim for retaliation based on complaining about the payment practice. I suggest that you contact the National Whistleblower's Institute. Ask for Richard Renner, http://www.whistleblowers.org/index.php?option=com_content&task=view&id=75&Itemid=75
answer to Can an employer deduct fuel reimbursement from your gross wages? posted May 18, 2011 2:03 PM [EST]
Less clear is whether you have a claim for retaliation based on complaining about the payment practice. I suggest that you contact the National Whistleblower's Institute. Ask for Richard Renner, http://www.whistleblowers.org/index.php?option=com_content&task=view&id=75&Itemid=75
answer to Can an employer deduct fuel reimbursement from your gross wages? posted May 18, 2011 2:03 PM [EST]
When a union fails to protect the rights of its members, the member can go to SERB and file an unfair labor practice (ULP) charge alleging a breach of the union's duty of fair representation to that employee. Here is an article describing that right and the process for filing a ULP:
http://www.myemploymentlawyer.com/wiki/Ohio-Duty-of-Fair-Representation-in-the-public-sector.htm
answer to We are union and we have a contract ...But posted Mar 18, 2011 10:13 AM [EST]
http://www.myemploymentlawyer.com/wiki/Ohio-Duty-of-Fair-Representation-in-the-public-sector.htm
answer to We are union and we have a contract ...But posted Mar 18, 2011 10:13 AM [EST]
If a court order says that you cannot hire your competitor's employees until a specific date, it sounds like hiring the employee before that date would violate a court order, rather than breach a contract. The consequences of violating a court order are much more severe than breaching a contract, and you have much less room for error. If you violate the court order, you can be subjected to very serious costs, penalties, attorney's fees and even jail time.
Given the seriousness of the consequences of violating a court order, you run a huge risk trying to get around it with a technicality. You should get an opinion in writing from a competent and experienced attorney that your proposed plan will not violate the court order. Even then, make sure that you believe in the arrangement itself, since you could be walking on very thin ice.
answer to Is it a breach of contract by hiring someone as an independent contractor that is under non-compete posted Mar 16, 2011 3:08 PM [EST]
Given the seriousness of the consequences of violating a court order, you run a huge risk trying to get around it with a technicality. You should get an opinion in writing from a competent and experienced attorney that your proposed plan will not violate the court order. Even then, make sure that you believe in the arrangement itself, since you could be walking on very thin ice.
answer to Is it a breach of contract by hiring someone as an independent contractor that is under non-compete posted Mar 16, 2011 3:08 PM [EST]
It sounds like the placement agency signed a non-compete with your company, which means that they cannot assist you in going to the competitor. Unless you were a party to that agreement, though, I do not believe that you can be bound by it.
I disagree with the HR lady. A valid contract requires offer, acceptance and assent. If the company did not present a non-compete and you did nothing to accept restrictions on your employment, or if you did not assent to entering into it the agreement, then you cannot be bound by it.
answer to Can a company enforce a noncompete that I was never aware of? posted Mar 12, 2011 1:18 PM [EST]
I disagree with the HR lady. A valid contract requires offer, acceptance and assent. If the company did not present a non-compete and you did nothing to accept restrictions on your employment, or if you did not assent to entering into it the agreement, then you cannot be bound by it.
answer to Can a company enforce a noncompete that I was never aware of? posted Mar 12, 2011 1:18 PM [EST]
In Ohio, if one party to a contract commits a material breach of the contract, the other party can elect to remedy the breach by rescinding the contract. From a legal perspective, rescinding a contract is the same as if the contract never existed in the first place. Courts have applied this rule to non-compete agreements to allow employees to rescind them if the employer breaches a material term.
A material term is one that goes to the essence of the contract; the reason for entering into it in the first place. If you would not have entered into the employment agreement with the non-compete but for the promise of a fully funded HSA, then the failure to fund the HSA may be a material breach.
I cannot tell from your post whether the HSA was a material term, or whether the employer's breach will allow you to rescind it. I suggest that, once you find an opportunity with a new employer, you consult with an experienced employment attorney to evaluate whether you can challenge the non-compete based on this breach, or on any other possible grounds.
answer to My employer changed my benefits after I signed a noncompete? Is this legal? posted Jan 27, 2011 09:42 AM [EST]
A material term is one that goes to the essence of the contract; the reason for entering into it in the first place. If you would not have entered into the employment agreement with the non-compete but for the promise of a fully funded HSA, then the failure to fund the HSA may be a material breach.
I cannot tell from your post whether the HSA was a material term, or whether the employer's breach will allow you to rescind it. I suggest that, once you find an opportunity with a new employer, you consult with an experienced employment attorney to evaluate whether you can challenge the non-compete based on this breach, or on any other possible grounds.
answer to My employer changed my benefits after I signed a noncompete? Is this legal? posted Jan 27, 2011 09:42 AM [EST]
Unless the employer's PTO gives you the right to take unpaid days off while you still have PTO available, the answer is "probably no." That is, I am not aware of any law that prohibits an employer from requiring you to use available PTO during an employer mandated shutdown.
answer to Can an employee be forced to use PTO for paid Holidays? posted Dec 16, 2010 10:05 AM [EST]
answer to Can an employee be forced to use PTO for paid Holidays? posted Dec 16, 2010 10:05 AM [EST]
It appears that your HR person may be correct. FMLA leave is available to care for the serious health condition of a "son or daughter." The department of labor (DOL)regulations that implement the FMLA define son or daughter to mean:
". . . a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence."
“Incapable of self-care” means that the individual "requires active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs). Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc ."
29 CFR 825.122(c).
If your company's policy incorporates the DOL's definitions, then it does not cover a child over 18 years of age. Even if your company's policy defined a son or daughter to mean one who is over 18 years of age, you probably will not be able to hold the company to it unless the policy has the force of a contract. Most employer policies do not have the force of a contract.
answer to Can I file FMLA for your child over the age of 18, for a serious health condition? posted Dec 5, 2010 10:06 AM [EST]
". . . a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence."
“Incapable of self-care” means that the individual "requires active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs). Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc ."
29 CFR 825.122(c).
If your company's policy incorporates the DOL's definitions, then it does not cover a child over 18 years of age. Even if your company's policy defined a son or daughter to mean one who is over 18 years of age, you probably will not be able to hold the company to it unless the policy has the force of a contract. Most employer policies do not have the force of a contract.
answer to Can I file FMLA for your child over the age of 18, for a serious health condition? posted Dec 5, 2010 10:06 AM [EST]
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