Answers Posted By Neil Klingshirn

Answer to how do i go about being sexually harrass by a customer at my workplace

Sexual harassment by a customer is like sexual harassment by a co-worker. If the company is not aware of the sexual harassment, it is not responsible for it. Once the company learns that the co-worker or customer is sexually harassing an employee, though, the company has an obligation to take appropriate action to stop it, including termination of the co-worker, if necessary, or banning the customer from the store.

If you are concerned that this customer might come back, consider contacting an employment lawyer near you. The attorney can help you write a request for help that is effective and provides as much protection as possible against retaliation.

posted Jun 6, 2013 07:42 AM [EST]

Answer to How long after a "mutually separated agreement" can a case be reviewed as wrongful discharge?

Federal anti-retaliation laws, embedded in clean air, water and hazardous substances laws, protect employees who complain to their employers about working conditions that violate those laws. To pursue such a retaliation claim, employees must file a complaint with OSHA.

I believe that the time to file is very short - only 30 days. Research that issue or hire an attorney to do so for you, though. This is not legal advice.

If you have time to file a retaliation claim, you need to evaluate whether you have the facts to support it. To do that, consult an experienced employment lawyer. You can start with MEL's attorney directory. Also check OELASmart.net, which is the website of the association of attorneys who represent individual employees. You may also have other claims, which the attorney can help you identify as well. And, of course, we offer consultations. Our fee is $200. If you would like to schedule a consultation, please call our Office Manager at 330.665.5445, ext. 0 and she can get you on my calendar.

posted May 6, 2013 09:14 AM [EST]

Answer to can I be told not to call in anymore if I have accrued six weeks sick leave?

The question, I think, is whether caring for a step parent with a serious health condition, or caring for your brother's child, is protected by the FMLA.

First, I will assume that you worked for this employer for more than a year, and worked over 1,250 hours during the last year, at a work location with 50 or more people. Based on those assumptions, you would qualify for FMLA coverage. That leaves the question of whether or not the reasons for your absences are covered by the FMLA.

Caring for a step parent is not covered by the FMLA. The FMLA allows absences to care for a "parent," defined as "the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter." This definition does not include step parents, and the Department of Labor FMLA regulations state that the definition of parents does not cover "in laws."

The FMLA also permits coverage "because of the placement of a son or daughter with the employee for adoption or foster care." Adoption means "legally and permanently assuming the responsibility of raising a child on one's own."

Foster care means "24 hour care for children in substitution for, and away from, their parents or guardian. Such placement is made by or with the agreement of the Sate as a result of a voluntary agreement between the parent or guardian that the child be removed from the home, or pursuant to a judicial determination of the necessity for for foster care, and involves the agreement between the State and foster family that the foster family will take care of the child."

It is not clear from your question whether you are permanently adopting you brother's children. It is also not clear whether you, your brother and the state have agreed to place his children with you for foster care. In order to evaluate these issues, you will need to consult with an experienced employment lawyer.

Finally, if you are adopting the children or there is an agreement with the state that you will provide foster care, then a remaining issue is whether the company was aware of that.

posted Apr 11, 2013 09:07 AM [EST]

Answer to lump sum payment

I think you are asking about unemployment compensation benefits, and the effect of a lump sum payment at the time of your separation or layoff on your unemployment compensation benefits.

Ohio reduces your unemployment compensation benefits in any week in which you receive separation pay. If you employer continues your base wage for four weeks as separation pay, then the Ohio Department of Jobs and Family Services (ODJFS) will reduce your benefits by the amount of your continued wage for those four weeks.

Separation pay paid in a lump sum will reduce your benefits for those weeks that the lump sum is designated to cover. Sometimes your employer will designates the weeks for which you receive separation pay. For example, if you received a week of pay for each year of service, and worked 15 years, then you would be treated as receiving the lump sum payment for the first fifteen weeks. Similarly, if the employer does not designate the weeks, but pays everyone the same amount as a lump sum, then ODJFS will treat it as separation pay in an amount equal to your normal pay until it is used up. For example, if you earned $1,200 a week and received $4,800 in separation pay, then the Ohio Department of Jobs and Family Services (ODJFS) would treat that amount as received over your first four weeks of unemployment.

Ohio's law on this is in ORC Section 4141.31. The corresponding Ohio Administrative Code is OAC 4141-30-01, Separation Pay. Also, search online for the "Ohio Dept. of Job and Family Services' Workers Guide to Unemployment Compensation." The current Guide says that amounts received as "Severance Pay" and "Company Buy-Out Payments" will be deducted from an individual's weekly benefit.

posted Apr 2, 2013 08:44 AM [EST]

Answer to Is cutting my hours and not giving me a raise considered retaliation

A claim of retaliation requires:

1. That you engage in protected conduct;

2. That you suffer an "adverse employment action;"

3. The protected conduct and adverse action are "causally connected.

Having your hours cut and being denied a raise are probably adverse employment actions. From the timing, it sounds like they may be causally connected to your reports. However, whether reporting that you found pot and reporting that management practices were poor and policy not followed, are "protected conduct," IS unclear. For example, there is no law against an employer failing to follow its own policies and procedures.

Ohio's whistleblower's statute defines what you can report that will be protected from retaliation. Google ORC 4112.52. Note that there are specific requirements about making a verbal report, then following it up in writing. If you followed those steps and then suffered adverse action, you may have
a retaliation claim at that point.

posted Mar 29, 2013 10:28 AM [EST]

Answer to Can I contact my employee's doctor if he is exhibiting unacceptable behavior?

This is a thorny area. This employer should seek experienced employment law advice about this situation. If it was my client, I would not recommend calling the employee's doctor.

First, the employee has a right to privacy, which extends to information about his physical or mental condition. The doctor knows this, and probably would not provide information if asked.

Second, the Americans with Disabilities Act (ADA) prohibits employers from making medical inquiries, unless for a legitimate business reason, and from discriminating on the basis of a disability. This employer might have a legitimate reason for making an inquiry, but then again it might not, and so would violate the ADA. Moreover, what is this employer going to do with the information once it gets it, other then make decision based on that medical condition? That gets it close to discriminating on the basis of a disability.

The real issue, it appears, is the fear that this employee might harm himself or others. The ADA permits an employer to suspend, remove or discharge an employee if the physical or mental condition, with accommodation, nonetheless presents a "direct threat" of harm to himself or others. Proving a direct threat is not easy, though, so the employer should only go down this road with advice of counsel.

By far the better approach, though, is for this employer to focus on the employee's behavior, not his medical condition. If the employee is not coming to work, does not follow directions, does not stay on task, disrupts others, and so on, he is violating basic work rules. The employer can counsel him, write him up, warn him that he will get fired, and/or fire him, if he does not follow the work rules. So, ignore the underlying cause of the conduct, as best you can, and focus on the conduct.

posted Mar 29, 2013 09:09 AM [EST]

Answer to Can an employer not pay you for time worked because of a failed drug screen?

Your employer cannot refuse to pay you for work that it permitted you to do, whether or not it later decides not to continue your employment.

Consider filing a claim in small claims court. State that you worked X hours over Y to Z days, at a promised wage of A, for unpaid wages of X x A. Also, Google Ohio Revised Code 4113.15, which is the prompt wage payment law. It states that you can receive additional amounts if your employer fails to pay you timely.

posted Mar 17, 2013 11:37 AM [EST]

Answer to STD/FMLA situation. refused to accommodate and FMLA lapsed. ODJS D/c without just cause.

The favorable finding by ODJFS will not give you grounds for suing for disability discrimination or interference with Family and Medical Leave. However, the facts that caused ODJFS to reach that result appear to give you grounds for such claims.

If you were able to perform your job with a reasonable modification (keeping your leg elevated while you sat at a desk), then prohibiting you from performing your job with that accommodation would appear to violate the Americans with Disabilities Act. This is especially so if the employer allowed other employees such an accommodation in the past.

I encourage you to consider scheduling a consultation to explore the merits of pursuing a claim.

posted Mar 14, 2013 11:54 AM [EST]

Answer to Doctors recommendation not sufficient

First, congrats on the birth of your child.

Second, you do not need a doctor's excuse to take FMLA for the birth of your child. You only need to provide sufficient information to show that you gave birth to your child, like a birth certificate.

If your company continues to give you a hard time, contact me.

posted Mar 12, 2013 07:52 AM [EST]

Answer to Contract is Expired but Working at Will - Is Non Compete Still Valid?

Whether the restrictions on working for an employer remain in force now that the two year contract expired depends on the language of the contract. I recommend that you review it with an employment lawyer familiar with non-competition agreements.

posted Feb 4, 2013 5:26 PM [EST]