Answers Posted By Neil Klingshirn

Answer to Can my employer sue me over a non-compete agreement

If 1) your non-compete is part of your employment agreement and 2) the employment agreement stated that you would perform sales manager duties at a specific salary, then the demotion and reduction in salary might amount to a material breach of that agreement by the employer. If an employer materially breaches a non-competition agreement, most states allow the non-breaching party (you) to rescind the agreement, including the non-competition portion.

You need to check Connecticut law to see if it allows rescission as a remedy for a breach of contract. You should also check with a qualified employment lawyer in Connecticut to see if there are any other valid defenses to the non-competition agreement.

Here is an article on Connecticut non-compete law:

http://www.cohenandwolf.com/CM/EmploymentLaborPublications/EmploymentLaborPublications88.asp

Note paragraph 10, which states:

An employer's material breach of an employment agreement can be a defense to the enforcement of a non-compete provision. Heritage Benefit Consultants, Inc. v. Cole, 2001 Ct. Sup. 2891, 2902-2903 (Conn. Super. 2001) ("[T]he breach of an Employment Contract by an employer is a recognized defense to the enforcement of a non-compete agreement.").

posted Feb 5, 2010 5:05 PM [EST]

Answer to Is it illegal for a school district to delay severance payment for tax purposes?

A court will not enforce a contract between two parties (the teacher and the school district) that violates a law. If the US Tax Code requires the school district to report income (the severance payment) in the year in which the teacher becomes entitled to receive it (the year of the agreement), then a court would not enforce an agreement by the school administration to report it in the subsequent year.

Whether or not deferring compensation for a year is permissible is a matter of tax law. I suggest that you consult with a qualified tax attorney or CPA to find out if the clause in the severance agreement is permissible. If so, have the CPA or tax attorney explain that to the school district. If not, then you are best off getting the tax treatment right.

posted Feb 5, 2010 5:00 PM [EST]

Answer to I had a restrictive covenant, but expired 2 years ago. A clause in the agreement states I cannot go

There is not enough information in your question to permit a proper answer. Here is a general article on New York non-competition law:

http://www.myemploymentlawyer.com/wiki/New-York-Non-competition-Law.htm.

I encourage you to contact and schedule a consultation with a New York employment lawyer to get a concrete answer to your question.

Best regards,

Neil.

posted Jan 18, 2010 09:44 AM [EST]

Answer to Can I sue for a breached settlement agreement? The check bounced.

It appears that the employer breached the contract by issuing a check with insufficient funds. However, it also appears that the employer cured the breach. Therefore, assuming that the second check did not bounce, you can probably sue for breach of contract, but the damages would be limited to the bank fees resulting from the bounced check and the interest on the settlement amount, since the employer cured the breach by issuing an adequate check.

Since a settlement agreement is a contract, any remedy is governed by contract law. Contract law limits most contract remedies to money damages for the losses that the parties could reasonable foresee. Hence, you can recover the bank fees and interest. However, you cannot recover money damages for the embarrassment or aggravation caused by the breach.

posted Jan 15, 2010 09:22 AM [EST]

Answer to Is a non compete clause valid if the company has been purchased bysomeone else but the name is same?

The new owner will be able to enforce your non-competition agreement if:

1) it obtained the company from the old owner in a stock purchase or

2) it purchased the assets of the old owner and obtained a valid assignment of the old owner's rights under your non-competition agreement.

These are both factual questions. If the transaction was an asset purchase with an assignment of the non-competition agreement, a question remains whether Kansas law permits assignments of non-competition agreements. Some states, like Indiana, hold that non-competition agreements are "personal service contracts" and therefore cannot be assigned. Other states treat non-competition agreements like normal contracts, which either parties can assign unless they agreed not to do so in the agreement itself.

According to a Kansas appellate court, valid covenants not to compete are generally assignable. See Safelite Glass Corp. v. Fuller, 15 Kan. App. 2d 351, 807 P.2d 677, rev. denied 249 Kan. 776 (1991), quoted in A.O. Smith Corp. v. Kan. Dep't of Human Res., 36 Kan. App. 2d 530, 538 (Kan. Ct. App. 2005).

posted Jan 7, 2010 11:45 AM [EST]

Answer to When factoring the difference when not making the min. wage as a tipped employee is this done daily?

I think you also asking the period on which the minimum wage is calculated to determine whether or not tips covered 1/2 of a tipped employee's earnings for that period. That should be done each workweek. That is, the FLSA says that the minimum wage must be paid to any employee "who in any workweek" qualifies for it.

As an example, suppose you work 20 hours in week one and 40 hours in week two. Further suppose that in both weeks you receive $100 in tips.

In week one, your compensation should be 1/2 the minimum wage (now $7.30 in Ohio) paid by the employer, or $73, plus $100 in tips, or $173. Since this exceeds the minimum wage of $146 ($7.30 x 20) you keep the rest of the tips.

In week two, your employer should pay $146 in base pay. It gets a credit for the $100 in tips, but will still owe you an additional $46 to reach the total minimum wage owed for week two (($7.30 x 40) - ($146 + $100). I do not believe that the employer can apply the $27 overage in tips from week one as a credit to week two.

posted Dec 31, 2009 11:22 AM [EST]

Answer to Do sales commissions figure into minimum wage?

Commissions earnings are properly included for minimum wage calculation in the work week in which they were earned. If they were earned evenly over the course of the month, they can be allocated evenly to the work weeks in that month.

posted Dec 29, 2009 1:42 PM [EST]

Answer to Unemployment Claim denied due to Remuneration

If you have not seen this already, I did an article on the effect of remuneration on unemployment compensation benefits.

http://www.myemploymentlawyer.com/wiki/Severance-Pay-can-reduce-Ohio-Unemployment-Compensation-Benefits.htm

Receiving remuneration is not a basis for ODJFS to deny your claim, however. Rather, remuneration only affects the amount that you receive. Therefore, if your claim has been denied, follow Bruce's recommendation to preserve your appeal.

posted Dec 23, 2009 09:22 AM [EST]

Answer to Can I take action against a company who withdrew a jobn offer after I quit my current job?

The answer to your question depends on New York employment law, specifically, whether New York would recognize an implied contract under these circumstances. If you do not receive an answer to your Ask MEL question, I recommend contacting an experienced New York employment lawyer, who should know the answer. Alternatively, try Just Answers, which is also on the Ask MEL page. You should be able to get an answer for under $50.

posted Dec 19, 2009 10:30 AM [EST]

Answer to What is the minimum salary to be paid to an employee?

Under Ohio's minimum wage law, you are entitled to a minimum wage that started out at $6,85 in 2006 and is now at $7.30 for every hour that you work. So, if you worked 80 hours and the minimum wage was $7.00, you are entitled to $560, less the $200 that you were paid for that week. The fact that you received a salary does not change your right to the minimum wage.

Ohio's minimum wage law allows "tipped" employees to be paid one half of the minimum wage as a base salary, so long as the employer pays the other half as tips. In the example above, if you received $200 in salary and $100 in tips, you would be entitled to $260 more.

You can file a complaint with the Ohio Department of Commerce, who will investigate and can prosecute your claim. You can also go to court. If you win in court, you are entitled to an award of attorneys' fees. If you prove unpaid minimum wages, you are entitled to triple the unpaid wage.

A serious practical consideration is whether the owner will have the money to pay a judgment. If so, consider pursuing it.

posted Dec 18, 2009 12:47 PM [EST]