Answers Posted By Neil Klingshirn

Answer to I have a question about my vacation time, sick days, personal days while approved for FMLA

An employer can require you to use your vacation, sick and other paid time off while you are on FMLA leave. The FMLA guarantees your restoration to your job, for up to 12 weeks, to care for the serious health condition of you or a family member. Once you use up that time, though, your employer will not violate the FMLA by terminating your employment for further absences, even if caused by the same serious health condition.

Vacation, sick time and other paid time off provide a compensation benefit. That is, they provide pay for time off. Since FMLA is unpaid time off, an employer can require you to take your pay for the FMLA time.

posted Jan 31, 2013 09:15 AM [EST]

Answer to Do I have to disclose if I've had a record expunged?

An employer can lawfully ask if you have had a record expunged. If you do not answer truthfully, it can be grounds for discharge or license revocation.

posted Dec 14, 2012 07:24 AM [EST]

Answer to Can I be fired (without notification) while on maternity leave?

Ohio law requires an employer to provide maternity leave, but it does not specify the amount of leave. Most of us believe that, as a general rule, six weeks of maternity leave is reasonable under this law. Therefore, you may have a claim under Ohio law. You need to consult with an experienced employment lawyer to examine the specific facts of your case, though.

You also have an opportunity to appeal your unemployment compensation claim to a hearing officer to determine when you were released and why, and whether the reason for your separation qualifies you for unemployment compensation benefits or not. In your case, you may qualify, but again, you need to consult with an experienced employment lawyer to determine that. You can find qualified employment lawyers in the directory on this site, and at OELASmart.net.

posted Dec 2, 2012 09:20 AM [EST]

Answer to I think I may be let go for being out of work for medical reason 4 days.

If you were employed for over a year, worked more than 1,250 hours last year, and your job site employs more than 50 people, you may have an FMLA claim. To find out, I recommend that you consult with an experienced employment lawyer. We offer an initial consultation for this purpose. Our consultation fee is $200. You can find other experienced employment lawyers in the Cleveland area here: http://www.oelasmart.net/lawyers/Cleveland

posted Nov 21, 2012 07:51 AM [EST]

Answer to Do I have to pay former employer the money they overpaid me?

If your employer can prove that it overpaid you, it can go to court and get an order requiring you to pay it back. You do not get to keep money because your employer, or someone else, like a bank, overpaid you. That only happens in the game of Monopoly.

If your employer can prove to your satisfaction that it overpaid you, you can save everyone the trouble of going to court by agreeing to pay the money back. If your employer will not even show you why it thinks it overpaid you, though, you can reasonably refuse to pay it back. In addition, if you can show that the employer owed you for something, like unpaid wages or PTO to which you are entitled at termination, then you can hold on to the money to satisfy that obligation. That is what is meant by "possession is 9/10ths of the law."

posted Nov 14, 2012 07:33 AM [EST]

Answer to Can my 2nd employer enforce the non-compete against my 1st employer?

It is not clear if you signed a non-compete with Sumerel Tire. If so, normal non-compete law would apply to it, and it could, if otherwise reasonable and necessary to protect Sumerel's legitimate business interests, restrict you from returning to your old employment.

I recommend that you consult with a non-compete lawyer to see if the Sumerel non-compete has enforceable restrictions that will interfere with your return to your old employer.

posted Aug 20, 2012 09:43 AM [EST]

Answer to Do I have ANY recourse against the owner of the company for forcing me to give his grandson my job?

Assuming that you work for a private company, I am afraid that the law does not prevent an owner from nepotism or other forms of favoritism towards family members, even if the nepotism results in losses for other employees or involve bad business decisions. About the best I can offer is that, if you are forced out for this reason, it should not disqualify you from receiving unemployment compensation benefits.

posted Aug 20, 2012 07:25 AM [EST]

Answer to Will I qualify for unemployment benefits?

You did the right thing by being truthful on your application. It is troubling that your employer would encourage you to lie.

Just because your employer separated you for performance does not mean that you will not qualify for unemployment compensation benefits. First, technically, you should receive benefits unless you "disqualify," not the other way around. You disqualify for UC benefits if, in this case, you were terminated for "just cause," and not just for not meeting performance expectations. Just cause means that you were enough at fault for your discharge that you should not receive benefits.

Applied in practice you were terminated for just cause if you failed to show for work, violated a company policy knowing it was a violation, or you were able to perform your job but simply did not. On the other hand, if your employer placed you in a job for which you were not suited, or changed your job to add duties for which you were not qualified, you were not fired for just cause.

Every case is different. You should consult with an experienced employment lawyer about your specific situation and craft a strategy for demonstrating no just cause. The good news is that it sounds like your former employer will not contest your benefits, meaning that your explanation should be given credit.

posted Aug 19, 2012 08:35 AM [EST]

Answer to Ohio unemployment appealing denial because of severance

I believe that you can appeal this issue. Follow the instructions on the Notice of Determination. If you have any questions, though, consult an experienced employment lawyer. If you do not file an appeal timely, which is usually within 21 days, you will lose your right to appeal.

posted Jul 17, 2012 12:45 PM [EST]

Answer to Do I have any legal grounds against my company for not protecting me from workplace violence?

I do not agree entirely with Bruce. An employer does have a duty to provide a safe workplace. This duty arises under Ohio common law. OSHA also imposes a general obligation on employers to make the workplace safe.

Your problem, though, is not with an unsafe workplace. Rather, you seek a workplace free from intimidation by a co-worker. This is similar to a domestic violence or a stalking situation. On this, Bruce is correct. The law does not treat menacing in the workplace any differently from menacing away from work.

However, no matter where you are in Ohio:

"No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person."

Ohio Revised Code section 2903.211(A)(1), prohibition against menacing by stalking. If someone engages in this type of behavior, you can obtain a civil protection order (CPO)from court. If you have the evidence of menacing, a CPO is relatively easy to obtain.

It sounds like your co-worker already engaged in conduct that caused you to believe she would cause you physical harm or mental distress. If she engages in a pattern of this conduct (i.e., does it one or more times), then you may be able to obtain a CP0. Typically, a CPO will require the person to stay physically away from you, wherever you are, including at work.

Bringing this back to the practicalities of the workplace, let's hope it does not get that far. First, try to get along with your co-worker. Do not show fear. Show her respect, and ask her to do the same.

If you co-worker menaces or intimidates you, and you believe that she may cause you harm, you have the right to go to your employer, under the employer's general duty to provide a safe workplace, and report the menacing conduct to the employer. As Bruce said, though, from there you may not be able to force the employer to do something about the co-worker, but I think most employers will want to address the situation. If they do not, and the co-worker continues to engage in a pattern of menacing conduct, then you can go to court and obtain the CPO.

posted Jul 12, 2012 07:32 AM [EST]