Answers Posted By Neil Klingshirn

Answer to overtime with different stores same company

Here is the test for "different employer" defense.

The answer to your question depends on whether the different franchise operations are independent companies or not. The Department of Labor limits the �second employer� defense to employers who were �entirely independent� and �completely disassociated� from each other.

The DOL uses the example of, in some cases, an employee works 40 hours for company A and 15 additional hours during the same week on a different job for company B. In this case it would seem that if A and B are acting entirely independently of each other with respect to the employment of the particular employee, both A and B, for overtime purposes, would count only the hours worked for them. If, on the other hand, the employment by A is not completely disassociated from the employment by B, the entire employment of the employee for both A and B should be considered as a whole for the purpose of the statute.

See Interpretative Bulletin No. 13, Paragraph 17, issued July, 1939, cited in Walling v. Friend, 156 F.2d 429, 432 (8th Cir. Mo. 1946).

In United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2nd Cir. 1960),one corporation made some of its guards available to an affiliated corporation for six hours a week. The corporations had the same officers and shareholders and were engaged in the same general enterprise. The court held that even though the employees were working for two separate employers and were paid by two separate employers, nevertheless, the defendant corporation acted directly or indirectly within the meaning of 29 USC � 203(d) in the interest of the other corporation in the employment. Accordingly, aggregation of the number of hours worked was

So, unless the franchise locations are completely independent, you probably have a valid overtime claim.

If you can put together a solid case that the franchise operations should be aggregated, feel free to give me a call.

posted Jun 18, 2009 8:18 PM [EST]

Answer to Illegal paycut?

Is your average hourly pay more than $7.30

I see two issues. One is minimum wage and the other is contract.

You are entitled to the minimum wage, now $7.30, for all hours that you work, regardless of duties or location. A tipped employee can be paid less than the minimum wage, but only if the tips bring him or her up to the minimum wage. So, if the total that you receive in a week, including tips, divided by the number of hours that you worked that week is less than $7.30, you have a minimum wage claim.

Assuming that you are paid the minimum wage, an employer is free to pay employees at one location more or less than comparably situated employees at another location, unless the reason for the differing wage rates is unlawful discrimination (for example, paying males more than females). However, if your employer agreed to pay you a certain amount, you have a contract claim to that amount, once you have worked the hours.

The concern in your case is whether the local supervisor is the one with the authority to set wage rates. If so, then he or she is not bound by what is done at other sites and is free to change your pay from day to day, subject again to the minimum wage requirement.

To address this problem with the least risk of retaliation, consider investigating who sets your wage rate. If it is the local supervisor, approach the issue as you would a request for a raise.

Sorry about that prior message. It got away before I could write my answer.

Best regards,

Neil Klingshirn.

posted May 21, 2009 10:58 AM [EST]

Answer to Illegal paycut?

Is your average hourly pay more than $7.30?

posted May 21, 2009 10:14 AM [EST]

Answer to Denied Unemployment Despite Lack of NEEDED JOB Experience at HIRE.

Were the expectations of the job reasonable?

You are entitled to benefits unless the employer proves that it had just cause to terminate your employment. The Ohio Supreme Court set forth the following test for whether an employee's inability to perform a job constituted just cause:

An employer may properly find an employee unsuitable for the required work, and thus to be at fault, when:

(1) the employee does not perform the required work,

(2) the employer made known its expectations of the employee at the time of hiring,

(3) the expectations were reasonable, and

(4) the requirements of the job did not change since the date of the original hiring for that particular position.

The key in your case will be whether the expectations were reasonable, since the employer knew that you did not have the experience required when you were hired. You should appeal your case to the Board of Review and present this argument there.

You can find the Ohio Supreme Court case on this topic at http://www.web.ucrc.state.oh.us/Abstract/Court/c0000094.stm />
Best regards,

Neil Klingshirn

posted May 10, 2009 10:54 AM [EST]

Answer to Allocation of Severance pay

Unemployment will not pay you during the weeks you receive severance.

The basic rule is that, if you receive severance during a week in which you are entitled to receive unemployment compensation, Jobs and Family Services (JFS) will reduce the amount of unemployment compensation dollar for dollar by the amount of severance that you receive. In your case, since you are receiving severance payments over a period of weeks, JFS will reduce your unemployment compensation in the amount of the severance payments.

If you had received your severance in a lump sum, then JFS would not have paid you unemployment compensation in the week that you received it. In addition, JFS would have asked to see the severance agreement and, if the severance agreement describes the severance amount as covering a period of time (e.g., "$X, as six weeks of severance pay"), then JFS will treat the lump sum as being paid during that period of time, reducing your benefits accordingly.

Regards,

Neil.

posted Apr 23, 2009 10:19 AM [EST]

Answer to Required Rest Period - Adult

Ohio does not require rest breaks for adults

Ohio law does not require rest breaks for adults. Only child labor laws require breaks.

posted Apr 20, 2009 8:49 PM [EST]

Answer to 45% pay cut and reverse discrimination

Pay cuts and commission withholding

You are correct; an employer can change pay at any time. The employer must honor the pay rate in place before the change but, once it notifies the employee of the change, the employee will is entitled only to the changed/reduced compensation. The fact that your husband appealed the pay cut will almost certainly not defer the cut.

Whether or not the employer can withhold commissions until the customer pays depends on the commission payment plan. If the issue is not addressed in a written plan, then a court would look at past practice to see if the employer consistently withheld commissions under similar circumstances. If so, it would probably find that the employer is able to do so in your husband's case as well.

Finally, courts today do not look at female discrimination of males as "reverse" discrimination. Rather, they see it as pure gender discrimination. That is, if an employer is treating members of one gender better than another with respect to tangible job benefits and compensation, they have engaged in unlawful discrimination.

Best regards,

Neil Klingshirn

posted Apr 7, 2009 5:46 PM [EST]

Answer to not sure what to do about a former employer bad mouthing me

Defamation and retaliation

If the former employer is saying untrue things that harm your reputation, without being asked his opinion by the former clients, then he may be liable for defamation. In addition, if you opposed his sexually harassing conduct and he is bad-mouthing you in retaliation for that, you may have a claim for retaliation as well.

Until you actually lose out on a job opportunity because of what he is saying, you will have a difficult time proving a specific amount of money damages. Also, the costs of suing for defamation and retaliation are very high, making the cost/benefit payoff low. Therefore, your inclination not to file suit is probably the right one.

However, you may be able to get him to stop the bad-mouthing with a well written letter. It should state 1) the things that he has done that were offensive and led to your decision to leave, 2) the things that you know he has said to your former clients and 3) that he must cease and desist from disparaging your reputation or you will take legal action. The letter should go only to him and not to third persons.

If he persists, it is probably worth your while to hire an attorney to write a cease and desist letter as well, which usually works. If you scheduled a consultation with us, we would write that letter as part of the consultation, in addition to reviewing the balance of your potential claims.

Best regards,

Neil Klingshirn.

posted Apr 7, 2009 5:39 PM [EST]

Answer to Employer threatening to sue employee for not fullfilling responsibilities

If your daughter was an at-will employee, her former employer will not have a valid claim

Unless your daughter entered into a agreement with the former employer to work for a specific period of time, she was probably an employee at will. As an employee at-will, she was free to quit at any time. In that event, neither she nor her former employer could sue the other for breach of contract.

I suggest that your daughter ask her former employer to provide her with any contract by which it claims she agreed to work for a specific period of time. If one does not exist, then the law presumes that she is an employee at will and she would have a valid defense to a breach of contract claim.

posted Mar 26, 2009 10:24 AM [EST]

Answer to Validity when there are multiple non-competes

A court will try to read the non-competes together.

A court goes through a two step analysis with non-competes. First, it identifies the parties' agreement. Second, it decides whether the agreed upon restrictions are too limiting and, if so, redraws the restrictions.

When parties to a contract enter into several agreements regarding the same subject, a court will decide whether the most recent agreement extinguished the prior agreements. Often contracts have a "supersedes" clause that extinguishes the old agreement.

If the parties did not express an intent to extinguish or amend the earlier agreement, the court will try to read them together, if possible. If they are in direct conflict, however, the court will have to decide which agreement to enforce. Generally, the court will enforce the more specific and/or more recent of the agreements.

Once it figures out the contours of the parties' bargain, the court will then go to the second step of analyzing whether the restrictions of either are too severe. In your case, a court could conclude that the parties did not extinguish the first non-compete, but decline to enforce it anyway because it no longer protects any legitimate interest of the prior employer.

To give you a more certain answer, I would have to see all of the agreements.

Neil Klingshirn.

posted Mar 17, 2009 10:51 AM [EST]

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Neil Klingshirn

Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist
Independence, OH
Phone: 216-382-2500