Answers Posted By Neil Klingshirn

Answer to how will a 401k distribution effect an UN-opened claim

I agree with Bruce on the impact of the rollover on your 401(k) (that is, none). To be sure, consider contacting Jobs and Family Services with your question.

posted Aug 5, 2010 07:19 AM [EST]

Answer to Can a 5 year tuition reimbursement contract be broken?

Once you enter into a valid contract, it is difficult to get out of it. Unless you can prove duress, fraud in the formation of the agreement, mutual mistake of fact, lack of assent or some other legally recognized defense to the agreement, you should expect a court to enforce it. Your choices, it seems, are to work there for the balance of the five years or pay back the scheduled balance.

Although bound by a properly formed agreement, you are still free to renegotiate the terms, if the other side is also willing. To the extent that you can credibly claim an inability to repay the full amount upon termination, you might be able to renegotiate a reduction or payments.

posted Jul 7, 2010 09:37 AM [EST]

Answer to Can I sue my company for harassment while still working for them

You can take legal action to protect your rights while you are still employed. It might make things at work awkward, but you do not have to give up your job just to assert your legal rights.

Whether or not you can take legal action to stop the harassment in your specific case, however, depends on the nature of the harassment. If the harassment is based on gender (sex), race, age, disability or other protected class status, you can go to court to stop it. If it is in the form of forcing you to work too many hours, because your manager does not like you or even if the manager wants to favor a family member, it is usually not unlawful.

Read more on this site about harassment and seriously consider consulting an attorney about the facts in your specific case.

posted Jul 6, 2010 07:34 AM [EST]

Answer to Can my employer require a doctors slip for every FMLA absence?

Generally, no. An employer must usually wait 30 days before requesting a new certification. See the FMLA FAQ on this site.

posted Jun 24, 2010 1:22 PM [EST]

Answer to If a previous employer sends you business is their non compete still valid?

If your former employer sent business to you even though your non-compete with the former employer prohibited you from taking that business, a court would probably treat your employer as having waived its right to seek enforcement of the contract with respect to that business. However, waiving a contract right today does not necessarily waive it for all time into the future, so your former employer might be able to use it to prevent you from continuing to accept that business, once it withdraws the waiver.

To get a clear idea of your rights in this situation, consider a new book that I am just now finishing, called Unlock Non-Competes: Keys to Escape. I am attaching the Table of Contents and Introduction. The publisher is making final corrections, but I can sell you a near to final version as a pdf via PayPal if you like. Contact me at Neil@fklaborlaw.com if you want to do that.

posted Jun 21, 2010 09:44 AM [EST]

Answer to Non compete in Ohio under Pa law

You may have valid defenses to your non-compete, but you have to consult PA law. I suggest that you Ask MEL your question again, this time sending it to PA lawyers. You could also contact Chris Ezold, a MEL lawyer, who has written a lot about PA non-competes. Here is Chris's contact information:

http://www.myemploymentlawyer.com/members/268

posted May 14, 2010 08:41 AM [EST]

Answer to Is it legal for my employer to change commision structure without telling sales people?

Good question. An at-will employer can end your employment or change the terms and conditions whenever it wants. However, if your employer changes the terms and conditions of your employment you have the option of accepting the change or ending the employment. Thus, if your employer hires you at $12.00 an hour, it can reduce your pay the next day to $8.00 an hour. However, you have the right to refuse to work at that rate. If the employer "secretly" changes the terms of the employment agreement by reducing the hourly rate, you did not agree to the change. The result, I believe, is that the employer must pay the compensation to which you agreed.

If the total of unpaid commissions is less than $3,000 (assuming you are in Ohio), you should take your case to small claims court. The key has more to do with you not agreeing to the reduction than it does with the employer's ability to make the reduction or its sneakiness in not disclosing it to you. If the unpaid commissions are more than $3K and others are similarly affected, call me to discuss this further.

Best regards,

Neil Klingshirn.
330.665.5445.

posted Mar 27, 2010 08:59 AM [EST]

Answer to Company is based in OH & I take a job in GA, noncompete is judged by OH or GA laws?

David is correct. Check your non-compete to see if it specifies which state's law applies. If it specifies either Ohio or Georgia law, then that is probably the law that the court will apply.

If the non-compete is silent on whose law to apply, the court will usually apply the law of the state that it is in, so long as the non-compete has some contact with that court's state. Thus, if the non-compete suit was filed in Georgia or Ohio, Georgia would probably apply Georgia law, while Ohio would apply Ohio law. Generally speaking, Georgia law is more favorable to employees in non-compete cases.

Here is an article that goes deeper into choice of law issues:

http://www.myemploymentlawyer.com/wiki/Choice-of-Law-in-Non-compete-Cases.htm

posted Feb 25, 2010 3:28 PM [EST]

Answer to If a TNphysician severence agreement binds him to Colorado law is he immune from Non-Compete Clause?

I hope your law school exam answers are clearer than this question.

I think your question is this - should your dad, a TN physician, agree to a non-compete that states it shall be governed by CO law? Your dad should not sign a non-compete if he can avoid it. If he is willing to restrict his future employment, then he should negotiate the most favorable terms. Those would include a choice of the law of the state that permits the least enforcement of a physician non-compete. Hence, if physician non-competes are not enforceable in CO but they are enforceable in TN, Dad is better off agreeing to CO's laws.

The parties are not completely free to select the law of another jurisdiction to govern their agreement. They must have some contact with the other jurisdiction, and the application of the other jurisdiction's law cannot undermine an important policy of the forum state. Here is an article that addresses the choice of law issue in greater detail:

http://www.myemploymentlawyer.com/wiki/Choice-of-Law-in-Non-compete-Cases.htm

posted Feb 12, 2010 12:58 PM [EST]

Answer to Subcontractors getting paid by the hour not by the job. Are we entitled to overtime?

You are entitled to overtime if you work more than 40 hours in a week, unless you are exempt. The overtime law exempts dozens of occupations. The main ones are executives, administrative and professional employees. However, those only apply to you if your employer pays you on a salaried basis. So, if you are not paid a salary, chances are that you are entitled to overtime.

Here is more information on overtime and its exemptions:

http://www.myemploymentlawyer.com/cgi-bin/mel/app.cgi?action=browse&cat=Overtime&type=wiki

posted Feb 10, 2010 08:31 AM [EST]