Answers Posted By Neil Klingshirn

Answer to Can an employer deduct fuel reimbursement from your gross wages?

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

posted May 18, 2011 11:03 AM [EST]

Answer to We are union and we have a contract ...But

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

posted Mar 18, 2011 07:13 AM [EST]

Answer to Is it a breach of contract by hiring someone as an independent contractor that is under non-compete

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.

posted Mar 16, 2011 12:08 PM [EST]

Answer to Can a company enforce a noncompete that I was never aware of?

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.

posted Mar 12, 2011 11:18 AM [EST]

Answer to My employer changed my benefits after I signed a noncompete? Is this legal?

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.

posted Jan 27, 2011 07:42 AM [EST]

Answer to Can an employee be forced to use PTO for paid Holidays?

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.

posted Dec 16, 2010 08:05 AM [EST]

Answer to Can I file FMLA for your child over the age of 18, for a serious health condition?

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.

posted Dec 5, 2010 08:06 AM [EST]

Answer to We have 29 employees total - are we required to follow FMLA regulations?

The Family and Medical Leave Act (FMLA) is a federal law and applies to U.S. employers of 50 or more employees. However, not all employees of covered employer are eligible for FMLA coverage. Instead, FMLA coverage is limited to employees who worked for that employer 12 months and 1,250 hours, at a worksite with 50 or more employees within a 75 mile radius.

Since you have under 50 employees, you do not get to the question of whether they are within 75 miles of a single worksite.

Your employee may, however, have other rights under state and federal law. For example, if he is an "individual with a disability," as the need for knee surgery suggests, the American's with Disabilities Act (ADA) and similar state laws require you to provide a reasonable accommodation to this employee, which may mean an unpaid leave of absence.

Whether or not your employee's medical condition implicates rights under the ADA or some other state law depends on the particular facts of your case, as well as the state in which he or she works. A great number of employment rights surround employee medical conditions. The law in this area has been called, perhaps somewhat too dramatically, a quagmire. The point is, consult an experienced employment lawyer and chart a specific course for ensuring that you do not violate this employee's rights. A good employment lawyer can also help you communicate the decisions that you make to your employee.

posted Nov 12, 2010 1:37 PM [EST]

Answer to Can my employer deduct this time from FMLA?

Check your employer's FMLA policy. If it states that your employer can require you to use your vacation or other paid time off during FMLA qualifying absences, then your employer is probably correct. Under such a policy, if the time taken off for the pregnancy related complications qualifies for FMLA leave, your employer can probably deduct that time from the 12 available FMLA weeks. Therefore, unless the policy states otherwise, you probably cannot extend your FMLA by the amount of available vacation or time off.

As for treating shifts of less than 9 hours as partial FMLA days, full and partial days are based on your normal schedule. If you are unable to work your normal work schedule because of an FMLA qualifying reason, then the portion of the scheduled hours that you cannot work counts as a partial FMLA day. For example, if your regular shift is 8 hours and you are able to work only 6, then you used 1/4 of an FMLA day (2/8). If your normal shift is longer, say 12 hours, then you only use 1/6 of an FMLA day when you miss 2 hours of it.

In your case, it may be important to document the higher number of hours that you were normally scheduled to work. Be aware, though that that could be a double edged sword. For example, if you can only work 8 hours out of 9, you use up 1/9 of an FMLA day. However, if you can only work 8 hours but normally worked 12 hours, you actually use up 1/4 of an FMLA day ((12-8)/12).

posted Nov 9, 2010 12:14 PM [EST]

Answer to If the company is under new ownership, is the non-compete agreement signed previously still valid?

Here is an article that addresses your new employer question.

http://www.myemploymentlawyer.com/wiki/Enforcing-Non-competition-Agreements-after-the-Sale-of-a-Business.htm

If the employer's obligation to pay taxes and make contributions to your 401(k) are part of the non-competition agreement, then the employer's failure to perform those obligations may give you the right to rescind the agreement. Here is an article on rescission:

http://www.myemploymentlawyer.com/wiki/Rescinding-or-revoking-Non-competition-Agreements-because-of-the-Employers-Breach.htm

posted Nov 4, 2010 1:51 PM [EST]