Answers Posted By Neil Klingshirn

Answer to Can I be fired for refusing to take a load with a truck that doesnt have an operating jake break an air leak transmission oil and has had the def system deleted. He constantly wants me to cheat my log book when heavy the transmission feels like it is goin

The Surface Transportation Assistance Act protects truck drivers who refuse to drive unsafe trucks.

https://www.whistleblowers.gov/statutes/staa

Paul Taylor from Trucker’s Justice Center handles these claims nationwide.

https://www.truckersjusticecenter.com/

posted Jan 7, 2020 10:42 AM [EST]

Answer to can a privately owned company implement pay cuts without employee agreement to take the pay cut?

Unless the employees have a contract for a specific period of time, they are likely "at-will," meaning the employer can terminate the employment at any time. If the employer can terminate employment at any time, it can also terminate the rate of pay and offer continued employment at the new and lower rate of pay. In that case the employee has the right not to continue working. However, as long as the employer pays the employees at the old rate for all hours worked up to the point of switching to the lower rate, the employer is within its rights to switch to a lower rate.

Time to find a new employer, or else a union. Under a collective bargaining agreement, employers cannot reduce wages unilaterally.

posted Dec 9, 2019 11:54 AM [EST]

Answer to I signed a non-compete on 2/27/2007, and was let go 6/19/2019, is there a statue of limitation?

I am licensed to practice law only in Ohio so I cannot answer a question about Delaware law. By way of general information only, in Ohio, courts read the contract to see what they say. A typical non-compete says you cannot compete during your employment and for a period of time after it ends. The restriction therefore does not expire until the employment ends and the period of time expires. As a result, an employee who works for many years will be subject to the restrictions for those many years and until the period of time expires. In other words, by itself, the fact that a non-compete was signed a long time ago does not make it invalid.

posted Dec 2, 2019 08:06 AM [EST]

Answer to can a public act recently enacted void a non-compete non-solicit contract that was violated before the public act

I am licensed to practice only in Ohio, so I cannot answer a question about Connecticut law. By way of general information only, in Ohio, legislation affecting substantive rights is generally not retroactive while legislation affecting a process, like the amount of time required to file a suit, can be.

Legislation that voids restrictive covenants would affect an employer's substantive right, which is an existing claim for breach of contract. That suggests that it would not be retroactive. In addition, the legislation itself may have a clause that states its effect on existing claims.Ask your lawyer to be sure and, for this issue, get a copy of the legislation and review it.

posted Dec 2, 2019 08:01 AM [EST]

Answer to Can I be written up for not calling off 30 minutes before my shift if I have ups that occur anytime?

If time off from work is covered by the FMLA, an employer cannot terminate an employee for it, no matter what the employer calls the time off. If it does, the employer could be liable for discriminating against an employee who has taken leave or for interfering with the employee's exercise of FMLA rights. Also, an employer does not get to decide if leave time is covered by the FMLA. That is up to the courts.

Technically, a write-up for missing FMLA covered time could amount to FMLA discrimination or retaliation, but discipline that stops short of suspension or termination may not be sufficiently severe to trigger court action. If you believe that your use of intermittent leave might result in a suspension or termination, consult an employment lawyer. I recommend Walt Auvil in Parkersburg.

http://www.myemploymentlawyer.com/members/296

posted Sep 5, 2019 06:50 AM [EST]

Answer to I signed a noncompete with my company when I was a full time employee. I then resigned. I did work a few shifts as a PRN employee over the course of the next year. I did not sign a new contract. Is my noncompete still valid?

The answer depends on the specific language of the non-compete. If it says you cannot compete for a period of time after a particular event, then the restriction exists for that period of time following that event. If the event was your resignation, the time was a year and that time has expired, then restrictions have probably expired.

Again, though, there is no substitute for the actual language. If your former employer disagrees with your reading, it can take you to court where ultimately a judge decides what the contract means. Before you end up in court, though, you should review the contract with your own attorney.

Former employer's HR is loyal to former employer. It is unlikely that you will get a completely unbiased objective read of the agreement from them. Instead, ask your attorney what he or she thinks the contract means and what, if any, notice you should provide your former employer.

posted Sep 4, 2019 07:35 AM [EST]

Answer to A former employee has went to EEOC for wrongful termination due to her having a disability. The employee provided a doctors note that stated she had ADHD, but it did not describe the diagnosis as severely impacting a major life activity (work) and she did

Americans with Disabilities Act (ADA) cases are very fact intensive, so it is not possible to evaluate whether the employee has a case based only on a doctor's note that she has ADHD. First, it is not clear whether her ADHD would amount to a disabling condition. Second, we cannot tell what accommodation, if any, would be required and reasonable for her. Third, we need to review the performance problems and the counseling that she received to comment on whether they were legitimate grounds for termination.

If you would like to evaluate these issues or obtain assistance in answering the EEOC charge, call 216.382.2500 and request a consultation. Our consultation fee is $300, which should be sufficient to answer your questions.

posted Aug 30, 2019 07:58 AM [EST]

Answer to What are the parameters for workers under 16 years of age?

Here is the United States Code governing child labor:

https://www.law.cornell.edu/uscode/text/29/212

This law generally prohibits "oppressive child labor" and authorizes the US Department of Labor to define what it is. The DOL has done so. Here a DOL fact sheet on child labor.

https://www.dol.gov/whd/regs/compliance/whdfs43.pdf

The DOL Child Labor regulations are at

29 CFR Part 570, https://www.law.cornell.edu/cfr/text/29/part-570

posted Aug 29, 2019 08:55 AM [EST]

Answer to Have I been terminated “for cause” if I turn in a two weeks notice and am immediately walked out?

Good question.

Generally speaking, the answer requires contract interpretation. That means a judge has to review it and decide if "voluntarily terminate . . . during the first year" means to form an intent to terminate (give notice) or terminate the employment. If the former, you owe the relocation costs, if the latter, you don't.

To interpret the contract, courts use the plain and ordinary meaning of the words. If the wording is capable of two different and competing meanings, the contract is ambiguous and the court can look behind the words to bargaining evidence, like emails or what the employer has done in similar cases.

However, even if a judge agrees with you, you lose, since you will be a defendant in a collection lawsuit incurring legal fees that will probably surpass the relocation costs. Therefore, you should avoid a factual situation that has an uncertain legal outcome. In other words, consider delaying your depart date by two weeks or giving less or no notice.

posted Aug 22, 2019 09:08 AM [EST]

Answer to What are my FMLA rights and am I being discriminated or retaliated against for using my FMLA?

Without meeting and consulting with you I cannot provide legal advice specific to your situation. By way of general information, though, the FMLA prohibits both discrimination and retaliation. Under general anti-discrimination laws, like Title VII of the Civil Rights Act, harassment based on use of FMLA leave can be both discrimination, like sexual harassment, and retaliation.

When the harassment is by co-workers, an employer can escape liability for the harassment by co-workers if it has a policy encouraging employees to report harassment and the target of the harassment does not use the policy to report the harassment.

To find out how to apply this to your situation, consult with a Texas employment lawyer. You can find Texas employment lawyers in MEL's directory. Another good source is the Texas Employment Lawyer's Association website, https://www.mytela.org/index.cfm?pg=findalawyer.

posted Aug 8, 2019 08:25 AM [EST]