Answers Posted By Neil Klingshirn

Answer to Upon returning from a requested FMLA, my Dr, requested I work 2nd shift as opposed to 3rd shift

Your doctor can ask for or recommend a shift change, but the FMLA does not require the employer to provide it. The FMLA requires the employer to restore an eligible employee on qualifying leave to his or her position or one substantially similar to it. If your employer decides to restore you to your prior schedule, it has arguably complied with its obligations under the FMLA.

However, under the Americans with Disabilities Act and, to a lesser extent, Ohio's anti-discrimination law, an employer might have an obligation to alter your shift schedule as an accommodation to the limitations caused by a disability. To qualify for an accommodation, an you must prove that you have a "disability," that the disability creates substantial limitations, that you require a reasonable accommodation to overcome those limitations, and that the shift change is a reasonable accommodation that does not place an undue burden on the employer. These are technical, legal standards, and some are difficult to meet, so it makes sense to consult with an employment lawyer before you make your request for an accommodation.

posted Jun 21, 2012 06:57 AM [EST]

Answer to Can I pursue sexual harassment against a coworker who is currently pursuing harassment against me?

David is correct. You walk a fine line here. On the one hand, there is some law that says an accused who counter sues an employee in a discrimination case has retaliated against the employee who sued for discrimination. However, the Ohio Supreme Court held in the case of Greer-Burger v. Temesi, 116 Ohio St. 3d 324 (Ohio 2007)that an employer's lawsuit against an employee who had earlier sued it for discrimination, was not retaliatory, so long as the lawsuit by the employer was not "objectively baseless."

However, when you talk to an employment lawyer, discuss the wisdom of filing a counter-complaint, and what you expect to gain from it. Also discuss with a lawyer an alternative of disclosing what happened to you in the investigation into the negative text, and saying that you object to and oppose the coworker's conduct.

posted Jun 5, 2012 07:00 AM [EST]

Answer to is it illeagal to get fired for no show no call when your off for doctors excuse?

Unless you are covered by the Family and Medical Leave Act FMLA, or you have a disability and took time off as an accommodation under the Americans with Disabilities Act (ADA), the law does not require an employer to allow you time off to go to the doctor. Also, the FMLA and the ADA both require you to notify the employer about the need to take time, basically as soon as you are able. However, if your employer has a policy that permits you to go to the doctor without notifying it, you may be able to take advantage of that policy.

posted Jun 5, 2012 06:52 AM [EST]

Answer to If away from home for work, how is compensable time calculated for non-exempt employees?

The US Department of Labor has specific regulations addressing compensable time during periods of travel. It is at http://law.justia.com/cfr/title05/5-1.0.1.2.71.4.81.6.html. It reads:

§ 551.422 Time spent traveling.

(a) Time spent traveling shall be considered hours of work if:
(1) An employee is required to travel during regular working hours;

(2) An employee is required to drive a vehicle or perform other work while traveling;

(3) An employee is required to travel as a passenger on a one-day assignment away from the official duty station; or

(4) An employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee's regular working hours.

(b) An employee who travels from home before the regular workday begins and returns home at the end of the workday is engaged in normal “home to work” travel; such travel is not hours of work. When an employee travels directly from home to a temporary duty location outside the limits of his or her official duty station, the time the employee would have spent in normal home to work travel shall be deducted from hours of work as specified in paragraphs (a)(2) and (a)(3) of this section.

(c) An employee who is offered one mode of transportation, and who is permitted to use an alternative mode of transportation, or an employee who travels at a time other than that selected by the agency, shall be credited with the lesser of:
(1) The actual travel time which is hours of work under this section; or
(2) The estimated travel time which would have been considered hours of work under this section had the employee used the mode of transportation offered by the agency, or traveled at the time selected by the agency.

(d) Except as provided in paragraph (b) of this section, an agency may prescribe a mileage radius of not greater than 50 miles to determine whether an employee's travel is within or outside the limits of the employee's official duty station for determining entitlement to overtime pay for travel under this part. However, an agency's definition of an employee's official duty station for determining overtime pay for travel may not be smaller than the definition of “official station and post of duty” under the Federal Travel Regulation issued by the General Services Administration (41 CFR 301–1.3(c)(4)).

posted Apr 12, 2012 08:15 AM [EST]

Answer to Current Employer Blocked Me From New Job

As unemployment dips and labor markets tighten, employers are once again recognizing that they are only as good as their employees. While placing a priority on employee retention is usually good for employees, in your case it appears to be the reason your company interfered with your opportunity with its distributor.

It is not clear if your employer's interference is unlawful. It could be, under the theory of tortious interference. Interference is tortious, or unlawful, if done for the wrong reason, or in a wrong way. For example, if a property owner interfered with his neighbor's sale of a residence to an unwanted minority, and interfered by spray painting racial epithets on the house, the interference is wrongful both because the reason was wrong (unlawful discrimination) and done in a wrong way (vandalism).

In your case, the question is whether your employer's reason for interference was wrongful. The answer is not clear. They did it, they say, to retain a valued employee. Maybe the real reason was to prevent an underpaid employee from earning his or her true worth. While the law generally disfavors restraints of trade, the law of non-competes recognizes employee retention as a valid business interest.

The bottom line, I think, is that, unless you have solid evidence that the interference was wrongful, taking your employer to court for keeping you on board is not a high payoff activity. However, you still have your job, and you obviously have a lot going for you. Now that you know your worth, keep looking for better, or at least comparable, employment and, when you see a place to land, consider approaching your current employer about their plans for your advancement and an adjustment in pay.

posted Mar 29, 2012 06:48 AM [EST]

Answer to is an employer allowed to say he is going to fuck me or kill me

Under normal Ohio law, one person cannot threaten to harm another or place another person in fear of imminent harm. This applies both in and out of the workplace, and does not depend on the ethnicity of the person making the threats.

It is not clear what is happening in your workplace, but if you are a witness to a lot of violence in the workplace, you should probably consult an employment lawyer about protecting yourself.

posted Mar 6, 2012 12:28 PM [EST]

Answer to Don't understand non compete I signed

I am not as optimistic as Bruce. That language describes businesses for whom you cannot "be employed by." It includes "any business that competes with COMPANY within 50 miles" of your former work location. Read literally, I think this describes any business that had a competitive location within 50 miles of where you worked for COMPANY.

Whatever the case, consult an employment lawyer knowledgable about non-competes before you accept the new employment. As Bruce says, courts may not enforce a non-compete if it is broader than necessary to protect the old business, but every case turns on its own, particular facts and circumstances. Also, there are usually more terms in the non-compete that can affect you adversely, and plenty of bad things happen if a court concludes that you violated your non-compete.

posted Feb 11, 2012 11:54 AM [EST]

Answer to Is it legal to be laid off when returning from work after reconstructive surgery for breast cancer?

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.

posted Oct 26, 2011 3:01 PM [EST]

Answer to What can part-time indep contractors offer in terms of language to replace a non-competer clause?

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.

posted Oct 24, 2011 3:07 PM [EST]

Answer to Govt contract - did not have a teaming agreement and the "partner" stole it, any relief?

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

posted Sep 30, 2011 08:24 AM [EST]