Answers Posted By Neil Klingshirn

Answer to TX: Can employers require me to use my accrued PTO to cover a an optional team building meeting lasting two days & away from home?

Disclaimer: I am licensed only in Ohio and therefore cannot provide a legal answer. If you were in Ohio, I believe that the answer is that an employer can require you to use up vacation for any time away from work. For example, an employer who shuts down a factory for two weeks during the holidays can require employees to use vacation time to cover it. Employees do not like it, but the law does not prohibit it. Therefore, if in Ohio, an employer can probably require its employees to use vacation time for optional company events. If the event is mandatory, though, you would have an argument that you should be paid like any other workday.

Federal anti-discrimination law protects family caregivers from discrimination based on family care obligations. Employers should therefore be sensitive about interfering with family obligations.

Before you bring this up with your employer, though, I highly recommend that you consult with an employment lawyer. There are retaliation issues to consider. You can find Texas employment lawyers in MEL's directory. Another good source is the Texas Employment Lawyer's Association website, https://www.mytela.org/index.cfm?pg=findalawyer.

posted Aug 8, 2019 08:17 AM [EST]

Answer to Will my career be hurt if I report an incident of harassment/intimidation?

Disclaimer: I am licensed to practice law only in Ohio and answer your question only with general legal information and personal observation.

First, it is impossible to answer your question without context and because it asks to predict the future. In other words, who knows if an anonymous report will hurt your career progression?

Second, from a legal perspective, if an employer took adverse action against a former employee for posting an anonymous complaint of unlawful discrimination, federal anti-discrimination law prohibits that. Therefore, if you in good faith believe that the harassment you are reporting is unlawful, and your former employer harms your career as a result, you would probably have a claim for retaliation.

Based on experience, though, I believe employers want to know about employee misconduct and, as a result, have little incentive to track down and punish those who report it. At best, they would use the information to comply with their obligation to provide a non-hostile workplace. At worst, they would use the information to cover it up.

If they cover up discrimination an let it continue, someday someone may sue them and discover your hotline report, which could serve as evidence of a fair warning that they ignored.

posted Aug 1, 2019 12:50 PM [EST]

Answer to I live in nebraska my son is 5months old and my day care provider says they will no longer be able to do sundays can I use my fmla for care of a new born on the sundays I have to work because I dont have child car?

The only requirement for leave for the birth of a child is the birth of a child. You can take leave just to be with your infant. Basically, the law assumes that infants require care and you are therefore eligible for leave just because you are the parent.

However, your employer has to be covered by the FMLA, and you need to be eligible for it, in order to take it.

Your employer is covered if it employed 50 or more people for 20 or more weeks in this or the last calendar year. You are eligible if you worked for at least a year, more than 1,250 hours in the last year, and the place where you work has 50 or more employees (or there are 50 who work within a 25 mile radius.

posted Jul 28, 2019 09:21 AM [EST]

Answer to Ilegal interview questions

Consider filing a charge of discrimination with the Equal Employment Opportunity Commission or the Maryland Department of Labor Office of Fair Practices about the interview questions.

posted Jul 23, 2019 09:49 AM [EST]

Answer to Rights to require the company to honor my hiring offer/agreement despite a policy change?

Your employer is free to change its policies at any time, as it sees fit. If you are an at-will employee, your employer is also free to terminate your employment at any time, for any reason, as long as the reason is not unlawful. Since free to terminate your employment, your employer can also change the terms and conditions of your employment like where you work. You are free to quit if you do not like the changes.

However, as an individual with a disability you have the right to request a reasonable accommodation to help you overcome the limitations on your ability to do your job that are caused by your disability. Your employer must provide you a reasonable accommodation, which is some change how you do your job, unless it creates an undue hardship. In your case, you could ask for an exception to the policy that requires you to relocate as a reasonable accommodation for your disability. Given your eight years of proficient performance, it will be difficult for your employer to prove that maintaining the status quo will cause an undue hardship.

I recommend that you consult with an employment attorney. This is an exceptionally complicated area of the law. If you would like to consult with our firm, call 216.382.2500 and request a consultation. Mention this Ask MEL question and you will receive a $30 discount on the consultation.

posted Jul 20, 2019 10:31 AM [EST]

Answer to My Colorado company is changing the commission structure, is this legal?

The answer depends on Colorado contract law on employee commissions. I do not know and have not researched Colorado law on that topic.

Ohio has a specific law protecting manufacturers' reps paid on a commissioned basis.
http://codes.ohio.gov/orc/1335.11v1. You could check to see if Colorado has a law like that protecting employees paid on a commission basis.

In addition, general Ohio employment law, rooted in at-will employment, says that an employer must pay an agreed upon wage for the hours its employee worked and cannot pay less than that amount without notice to the employee and consent to take the lower amount. The consent could be continuing to work (not quitting) but the employee has to know he or she has a choice.

Legally speaking, notice and consent is an offer and an acceptance to amend the original employment agreement, where Pay = X hours x Y wage. The amendment is to reduce Y, the wage.

An amendment to an agreement requires an offer, acceptance and consideration, just like the original employment agreement and any other contract. An offer must be understandable, both by you so you know what you agreed to, and by the Court, which has to calculate a remedy based on the contract terms. If ambiguous or incomprehensible, it is not an offer. No contract (or amendment) can come of it, under Ohio law.

So, if this was in Ohio, you could argue that the employer failed to offer a reduced commission schedule in sufficiently clear terms to permit employees to accept it, that no one accepted it until it was sufficiently clear, and that the employer owes at the old commission rate until that offer and acceptance occurred. Check with a Colorado employment lawyer to see if that is the law there. If multiple employees were similarly affected by the change in pay, one lawyer might be able to help them all.

posted Jun 27, 2019 10:07 AM [EST]

Answer to I was on STD in Omaha, Nebraska and it turned into LTD where 15 days after surgery I was demoted. I had let LEAVES know that my STD was up 2 day after surgery Is this legal?

The EEOC has guidelines on whether an additional, unpaid leave of absence should be a reasonable accommodation. https://www.eeoc.gov/eeoc/publications/ada-leave.cfm It sounds like you might have qualified for one.

Whether or not an employer should provide a reasonable accommodation is a fact based question, though. There is no stock answer. You need to consult with an employment lawyer and go over your specific facts with him or her.

posted Jun 18, 2019 09:06 AM [EST]

Answer to I worked 7 days straight 8 hours a day i also worked on the 8th day start of new pay period do i get pd over time for my 8th day also?

Overtime is based on the "workweek," which is a seven day period. If you work more than 40 hours in a workweek, you are entitled to time and a half on the hours worked over 40.

Employers get to decide the days on which their workweek starts and ends. They cannot, however, change or manipulate the workweek to their benefit.

Now to your question, you are entitled to overtime for the hours over 40 worked during the seven days of the workweek. The eighth day, however, starts a new workweek. If you work less than 32 hours during the next six days, you will not receive overtime pay. If you do work more than 32 hours during the next six days, you will. After that, your workweek starts over again.

posted May 20, 2019 11:29 AM [EST]

Answer to How can my employer take $500 out of my check a week without my permission

Most states prohibit employers from reducing or withholding worker pay. When employers keep employee wages or make them work off the clock, this is known as "wage theft."

Texas has a wage theft law. Here is a good description of it:

http://www.workersdefense.org/programs-2/workplace-justice/wage-theft/wage-theft-fact-sheet/.

posted May 2, 2019 08:26 AM [EST]

Answer to My employer only allows I restroom break for and 8.5 hr day.

OSHA requires employers to provide employees with toilet facilities in restrooms separated for men and women. Employers may not impose unreasonable restrictions on the facilities' use. You can therefore make a complaint to OSHA, which will investigate and should order corrective action as appropriate.

https://www.osha.gov/laws-regs/standardinterpretations/1998-04-06-0

posted May 2, 2019 07:02 AM [EST]