Answers Posted By Neil Klingshirn

Answer to Is this considered worked time and payable by employer?

Department of Labor Regulations state that Actual meal periods are not worktime. However:

meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while
eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.

http://www.dol.gov/dol/allcfr/Title_29/Part_785/29CFR785.19.htm

The restrictions on your ability to go where you please during your meal break may make it compensable hours worked. You can file a complaint with the Department of Labor, who should conduct an investigation. You can also contact an employment lawyer who can file suit.

posted Nov 2, 2009 6:47 PM [EST]

Answer to Can my employeer deduct pay from a second check?

If you work for the same employer, all of your hours worked count towards the same work week. Your employer cannot avoid overtime by splitting your work week into two jobs.

The Department of Labor has regulations that cover this situation, which it refers to as "joint employment." The idea is that you can work for two different employers, in which case your overtime is calculated separately for each. However, if the employment is by the same employer or associated employers, then, unless "completely disassociated from employment by the other employer(s), all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the Act. In this event, all joint employers are responsible, both individually and jointly," for overtime.

Here is a link to the DOL regulation:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d52ccfb5e60bb8f3db1bc9bb08000529&rgn=div8&view=text&node=29:3.1.1.2.49.0.446.2&idno=29

posted Nov 2, 2009 6:30 PM [EST]

Answer to Can an employer dock pay for monetary errors

From a purely legal perspective, an employer can "agree" with an employee that the employee is responsible for certain costs, such as uniforms, and can dock pay (that is, withhold money from paychecks) to cover those costs. However, the agreement must be in writing. ORC 4113.15. I do not know of a legal reason why an employer could not hold an employee responsible for costs that it incurred because of the employee's mistakes.

Historically, employers abused this to the point of placing employees in debt, particularly in company towns. The minimum wage was passed in large part to protect employees from that abuse. For a highly compensated individual, Bruce has some good advice on how to deal with an abusive employer.

posted Nov 2, 2009 07:06 AM [EST]

Answer to Question about a Non-Compete and Harassment from former employer

It is not entirely clear who the "woman" is that you want to keep from your wife's customers, but if it is the former employer who sent a letter threatening litigation, you should take the threat seriously. If you become a defendant in a non-compete lawsuit, the best possible outcome is that you will incur $5K to $10K to get out of the suit. From what you describe, however, your wife may be liable for violating the non-compete, in which case she could be facing an injunction and a claim for money damages.

So, don't blow it off. Consult legal counsel. You should probably try to negotiate a resolution with the former employer to avoid the lawsuit.

posted Oct 28, 2009 1:01 PM [EST]

Answer to withholding last paycheck as ransom

The link to 4113.15 below is broken. Here is a good link:

http://codes.ohio.gov/orc/4113.15

posted Oct 28, 2009 07:46 AM [EST]

Answer to Wages Held

The link to 4113.15 in my previous answer is broken. Here is a good link: http://codes.ohio.gov/orc/4113.15

posted Oct 28, 2009 07:45 AM [EST]

Answer to Can a comapany require it's hourly employee to be on call without on-call pay?

Federal overtime law addresses whether "on call" time is considered "hours worked". It states:

An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while ``on call''. An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. (Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v.
Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))

http://www.dol.gov/dol/allcfr/Title_29/Part_785/29CFR785.17.htm

The question is thus whether you are free to live your normal life, subject to getting calls.

posted Oct 26, 2009 08:15 AM [EST]

Answer to I was denied unemployment because of my lump sem severance package

Most likely what happened is that Ohio Dept. of Jobs and Family Services (ODJFS) allowed your claim for unemployment compensation benefits, but reduced the amount of your weekly benefit to zero for those weeks that it considered covered by the severance agreement.

Even if ODJFS approves a claim (which is based on the reasons for your discharge), it must still decide how much you receive. Your unemployment compensation benefit is based on your prior earnings and the number of your dependents. However, ODJFS will reduce the amount of your benefit in any week in which you receive any "remuneration," or payment for services, from whatever source. ODJFS treat severance pay as remuneration for the weeks in which it is received.

When a former employee receives severance pay as a lump sum, Ohio law states that it shall be treated as received during the period covered by the severance pay. For example, if your severance agreement stated that you received $X as a lump sum severance payment for Y weeks, then ODJFS will divide X by Y to calculate the amount deemed received by you each covered week. If the amount exceeds your unemployment compensation benefit amount, the unemployment compensation benefit is reduced to $0.

If there is no designation of the period with respect to which payments are made, then ODJFS can attribute an amount equal to your normal weekly wage as deemed paid for the first and each succeeding week following your separation until the lump sum amount is exhausted.

ORC Section 4141.31. The corresponding Ohio Administrative Code section states:

Payments made to employees in return for their agreeing to a separation from employment shall be deducted from unemployment benefits otherwise payable to them as provided under section 4141.31 of the Revised Code. Such payments shall be deemed to be remuneration in the form of separation pay.

OAC 4141-30-01, Separation Pay.

If this is what happened in your case, then you should begin receiving unemployment compensation benefits in the week following the completion of the severance pay period, unless your earnings from other employment at that point exceed the unemployment compensation amount.

posted Oct 22, 2009 10:11 AM [EST]

Answer to Can a general release override the terms of a Non-compete agreement?

A general release by your employer of the claims it may have against you, coupled with its waiver or termination of its right to prevent you from competing against it, would probably free you from the restrictions of the non-compete. However, if the release is your release of claims against the employer without a release of the employer's claims against Similarly, if the release is one by your employer, but it only releases you from claims that your employer has at that point in time without relieving you of your obligation not to compete, your employer would have a new claim against you when you began competing against it, which would not be waived by the earlier release. I those events, your non-competition obligations would remain.

Both the non-competition agreement and the general release are contracts. They say what they mean, so the best way to understand them is to read them carefully. If their meaning remains unclear at that point, consult an employment lawyer.

posted Sep 27, 2009 07:48 AM [EST]

Answer to Is it legal for a company to pay straight commission in a non-sales job i.e collections

I am not aware of a non-salaried exemption to overtime for an employee engaged in the business of debt collection. Feel free to contact me individually with the number of weeks that you have worked this arrangement, you average weekly commission earnings and the number of similarly situated co-workers who might be interested in collecting unpaid overtime. My email address is neil@fklaborlaw.com.

posted Sep 24, 2009 11:28 AM [EST]