Answers Posted By Neil Klingshirn

Answer to Should I sign a non-compete when I am bringing skills to the job to create new function there?

For the reasons that you identify, DO NOT sign away your ability to use your existing, specific skills. This may meant that you have to walk away from this opportunity.

Offering to sign a non-disclosure agreement is responsible. The duration of the NDA should reflect the length of time that the information will remain valuable as long as it is kept secret. Under Ohio's Trade Secrets Act, the statutory prohibition against using proprietary information has no end date. In other words, the duration is forever.

Here is an article on Trade Secrets: http://www.myemploymentlawyer.com/wiki/Trade-Secrets-Overview.htm />
If you really want to explore this opportunity but the new employer is stuck on a non-compete, consider the following as compromises:

- agree not to solicit, accept or interfere with those customers that you develop. The employer has a legitimate expectation that it will not lose those customers when you leave.

- request severance pay for the duration of the non-compete. The new employer will probably not agree to this, but it will starkly illustrate the cost to you of signing that document.

Best regards,

Neil.

posted Sep 22, 2009 08:51 AM [EST]

Answer to What happens if the tipped employee doesn't earn the other half of minimum?

For unemployment compensation purposes, your wages are what you actually earned, including tips. If your employer failed to report your tips to avoid paying its share of the taxes on them, you can submit proof of what you actually earned. You need to appeal the unemployment compensation decision denying your benefits, however, to preserve the opportunity to submit proof of what you actually earned.

If you did not earn enough to cover the minimum wage, including the one-half of your wage that should have come from tips, then you can file suit to recover three times the amount of the unpaid minimum wage for the last three years, plus your attorneys fees.

If you received more compensation than your employer reported, but your employer under-reproted your wages to avoid paying taxes on them, I suspect that your employer will be stuck with the number that it reported and will not be allowed to challenge it as low. So, calculate your hours worked, multiply it by the minimum wage in effect for the last three years (it has gone up each year) and multiply it by three.

Send me an email (neil@fklaborlaw.com) and let me know how much you are owed. I am also interested in knowing whether other employees were paid less than the minimum wage as well.

posted Sep 12, 2009 07:45 AM [EST]

Answer to I terminated an employee based on hearsay

I am not aware of any law or public policy that would prohibit an unconditional offer of employment to your former temporary staffer. The offer should end the temp's eligibility for unemployment compensation benefits. You may still be responsible for weeks of unemployment compensation occurring before the offer of re-employment, however.

For specific legal advise, I recommend that you consult with an employment lawyer in Georgia.

posted Sep 10, 2009 09:58 AM [EST]

Answer to I signed an ADR when I hired on with ex-employer. Can I file with EEOC for Pay Discrimination?

You can file a charge of unequal pay with the EEOC even though you agreed to take your Title VII (federal equal pay/gender discrimination) claim to arbitration, rather than court. The reason you can do both is that federal law gives the EEOC the power to investigate charges of discrimination, including unequal pay charges. The same federal law gives you the right to file suit on you own, after you first give the EEOC a chance to investigate your claim.

The arbitration agreement affects only your right to file suit in court, not the EEOC's right to accept and investigate your charge. Therefore, once the EEOC wraps up its investigation, you would file a demand for arbitration, rather than a lawsuit in court.

I see little risk in filing with the EEOC before demanding arbitration. In fact, the opposite is probably true. If you filed a demand for arbitration before filing with the EEOC, the ex-employer would probably prevail on a motion to dismiss your federal equal pay claim, since you need a right to sue letter from the EEOC, which requires you to file a charge, before you can proceed with your claim on your own. Also, the value of your equal pay claim will diminish over time, so the sooner you file with the EEOC, the better.

posted Sep 2, 2009 1:41 PM [EST]

Answer to Can I be terminated without proof of the accusation and a chance to defend myself?

As a Charter School principal, you were probably an employee at-will with the same rights and remedies available to you as an employee of a purely private enterprise. Absent further facts, such as evidence that your employer know that the accusations were false but used them to terminate you for an unlawful reason, I cannot see rights that are available to you to fight the false accusations.

posted Aug 26, 2009 11:29 AM [EST]

Answer to Are school bus drivers elgible for overtime compensation under Ohio law?

If the drivers and their passengers never leave the state of Ohio, you are probably entitled to overtime under Ohio law. You may be entitled to overtime under federal law, if you or your employer engaged in interstate trips, unless the Motor Carrier Act exemption applies to you.

posted Aug 21, 2009 07:22 AM [EST]

Answer to CAN MY EMPLOYER FIRE 100'S OF PEOPLE RIGHT BEFORE THE BUSINESS CLOSES TO AVOID PAYING UNEMPLOYMENT?

This sounds like a possible "mass layoff" under the WARN Act. Check this article and the external links to the U.S. Department of Labor website at the bottom of the article to see if these terminations involve a mass layoff.

http://www.myemploymentlawyer.com/wiki/WARN-Act-Requires-60-Days-Notice-for-Plant-Closings-and-Mass-Layoffs.htm

If not, but it looks close, contact me because there are "reach back" provisions in WARN that will aggregate certain layoffs. If you believe that your employer has triggered a mass layoff, contact me to discuss your options.

Best regards,

Neil Klingshirn.

posted Aug 12, 2009 11:23 AM [EST]

Answer to I NEED TO KNOW IF I HAVE A CASE

It is not clear if you have been terminated from your position. Also, it is not clear if you are in the classified civil service. If so, your best remedy may be to appeal your discharge to the Columbus Civil Service Commission. Usually, you have a very short time period to make this appeal - as little as 10 days. Therefore, if you are covered by civil service, find out tomorrow how long you have to appeal.

You should also consult with an employment lawyer about potential disability discrimination and FMLA claims.

posted Aug 10, 2009 5:51 PM [EST]

Answer to do i have a case of retaliation?

On the face of your facts, you appear to have a claim for unlawful retaliation, unless you have not suffered a "tangible, adverse action."

A retaliation claim requires you to 1) engage in protected conduct, 2) suffer a tangible, adverse employment action and 3) prove a causal connection between the two.

Reporting the sexually harassing conduct of a manager, even for harassment of someone else, is protected conduct. It appears that your reports have led to your write up, but you have the burden of proving that. Let's assume for this answer that you will be able to carry your burden of proving a causal connection.

It is not clear whether a write up and probation are sufficiently "tangible" adverse actions, however. In general, the law requires the injury to victims to be more than slight before it will allow the victims to go to court to sue. Therefore, in retaliation cases, the adverse action has to be tangible. Generally, an action is tangible if it has an economic consequence or otherwise is of a nature that it would chill the reasonable employee from engaging in the protected conduct.

In your case, if you have not suffered a suspension or decrease in pay, your adverse action may not be sufficiently tangible to go to court. You are, however, very close to that point.

The best outcome for you would be not to suffer anything more tangible than a write up and probation. To recommend a course of action that will protect your employment or place you in the best position to recover a remedy if you do lose your job, you should consult with an experienced employment lawyer. We accept telephone consultations if travel is a problem. Call my office if you would like to schedule a consultation. Our fee is $200.

Best regards,

Neil Klingshirn.

posted Aug 8, 2009 09:30 AM [EST]

Answer to Can a noncompete be enforced if a company lay's an employee off?Would being on uneployement be a good argument (against public interest)?

Whether or not your employer can enforce the non-compete against you after laying you off depends on the language in the non-compete agreement. If it states that you cannot compete for X years after your termination, whether voluntary or involuntary, or something to that effect, then it applies even if you were laid off. In Ohio, courts generally do not consider that as a factor in judging the reasonableness of a non-compete.

Courts will look at whether you acquired your trade through the new employment or already had it prior to the non-compete, as well as whether you have any other way of earning a livelihood.

posted Aug 7, 2009 07:40 AM [EST]