Answers Posted By Neil Klingshirn

Answer to FMLA Violation - release of medical records request

Your employer cannot condition approval of FMLA on your release of medical records

Your employer is allowed to require you to obtain an FMLA certification from your doctor and, if dissatisfied with that certification, to send you to its own doctor for a certification. However, the employer may not require you to provide your medical records, do 20 jumping jacks or anything other than provide the FMLA certification.

As long as you provide the certification, you can miss work and are entitled to your position when you return. If your employer refuses to return you to work, you will have a claim. The Americans with Disabilities Act also prohibits an employer from requiring you to provide medical records, with some fairly narrow exceptions.

posted Mar 7, 2009 08:36 AM [EST]

Answer to non-compete

Your answer depends on what your non-compete says

You need to look at your non-compete to answer this question. It should state the conditions under which it applies. In most cases though, employers write these so that they apply whether the separation voluntary or involuntary.

If the non-compete states that it applies if you were involuntarily terminated, it will probably be enforced. I am not aware of any court case where the court has held that the employer's decision to terminate the employment invalidated the non-compete.

posted Mar 6, 2009 1:36 PM [EST]

Answer to Is this a 'hostile work environment'?

This may be a hostile environment

You may have a claim for a hostile work environment. At a minimum, you have the right to complain to the owner and ask that the comments stop.

A work environment is "hostile" if unlawful harassment is so severe or pervasive that it makes the working conditions intolerable. Harassment is unlawful if it is based on sex, race, religion or other protected class status. Sexual preference is not a protected class, therefore sexual preference harassment is not unlawful. Items 2 and 3 would fall into the category of unlawful religious harassment, however.

The fact that you are not in the protected class does not defeat your claim for harassment. Other people in the hostile environment can pursue claims, but they must prove that the hostility directed at others in fact makes their working conditions (and not just those of the targeted group) intolerable.

The factual question that appears from your situation is whether there is more harassment then the two unlawful incidents and, if not, whether the two are severe or pervasive enough to give rise to a law suit. Even if they are not, you have the right to object to the harassment without getting fired. In other words, if you complain about the owner's conduct and get fired for doing so, you should have a claim of retaliation against him.

posted Feb 27, 2009 12:13 PM [EST]

Answer to docking pay for late clock in

Docking pay

An employer may violate your rights by docking your pay if the total pay for the week divided by the total hours worked that week is less than the minimum wage, which is now $7.30 in Ohio. In addition, if the employer is making deductions from your paycheck without your written authorization, it might be violating Ohio's prompt payment law. Search other Answers on this site for Ohio Revised Code section 4113.15.

Time worked before clocking in and after clocking out is still time worked. It is counted for purposes of minimum wage and overtime calculations. Therefore, make a careful record of how much you actually work.

Better yet, you should not work before you clock in or after you clock out. If your employer tries to force you to do so, consider contacting an attorney. Do not, however, refuse to perform the work. Rather, make a record of the time that you actually worked and note your objection to your employer.

Best regards,

Neil.

posted Feb 24, 2009 5:04 PM [EST]

Answer to Collecting Umployment on Seperation Pay

You are eligible for unemployment, but the amount is reduced

You will be eligible for unemployment, whether or not your employer pays severance, so long as you are laid off due to poor economic conditions.

However, unemployment is calculated on a weekly basis, and reduced by amounts that you receive as pay from other sources. So, each week that you receive some compensation from some other source, the amount of your unemployment compensation is reduced dollar for dollar by the amount that you receive as pay.

Severance amounts paid as wage continuation (that is, as ongoing paychecks) are treated as pay and will reduce the amount of your unemployment compensation. If the severance amount is greater than your unemployment amount, you will receive nothing from unemployment during the severance eligibility period.

Most companies now require a severance agreement that releases them from potential suit in exchange for severance pay. Whether that is a good deal for you or not depends on whether you have any valid claims to assert against the company. If you do not, then you are not giving up something of value. To find out whether you have potential claims, however, you should consult an attorney. It is also a good idea to have an attorney review any severance agreement.

Best regards,

Neil Klingshirn

posted Feb 13, 2009 1:08 PM [EST]

Answer to Salaried or not?

Check the Administrative and Professional Exemptions

If you are paid the same amount each week regardless of the number of hours that you work, and your pay is more than $455 per week, then you are probably paid on a salaried basis, even if your pay stub shows 80 hours. If your employer reduces your pay because you work less than 40 hours, or docks your pay if you miss less than a full day other than due to illness, then you may not be salaried.

Whether you are paid by the salary is only half the question. The second half is whether you are also primarily performing exempt duties. The three types of exempt duties are Executive, Administrative and Professional. You are not performing Executive duties if you are not supervising anyone. However, you might be performing Administrative duties if you are exercising discretion and judgment in the performance of your employer's business operations. As an RN, you would qualify as a Professional, which requires study, etc., but it sounds like you are not performing Professional duties.

For more information on whether the duties that you perform are Administrative or Professional, go to the overtime regulations for Administrative and Professional employees, located at:

http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/Subpart_C.htm

and http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/Subpart_D.htm />
Best regards,

Neil.

posted Jan 21, 2009 08:56 AM [EST]

Answer to Company Buyout

WARN requires 60 days notice

The federal Workers Adjustment and Retraining Act (WARN) requires employers to provide 60 days advance notice of a "mass layoff" or a "plant shutdown." WARN does not, however, apply to the sale of a company.



posted Jan 13, 2009 11:20 AM [EST]

Answer to Giving out pay raises then laying people off

If you are an employee at-will, the answer is probably yes.

Unless you have a contract for a specific term of employment or have otherwise limited your employer's ability to terminate your employment, you are probably an employee at will and your employer can terminate you at any time, including right after it gave out pay raises and promotions.

Regrets,

Neil

posted Jan 13, 2009 11:16 AM [EST]

Answer to workers comp office in Cambridge ohio lost paperwork

I suggest that you consult with a workers compensation attorney.

I suspect that you could be reimbursed for your mileage by resubmitting the lost paperwork. In that case, you would not need an attorney. However, you have had a serious accident and may be entitled to greater compensation than you currently understand, especially for the permanent impairment caused by the finger loss. Consequently, I recommend that you consult with an attorney who specializes in workers compensation. Find out what the attorney believes he or she can recover for you and what he or she will charge. If you are already well on your way to recovering what is due to you, then you probably do not need to hire the attorney. If the attorney can convince you that he or she will recover enough to offset their fee, then seriously consider hiring them. They will also use their expertise to manage the bureaucratic process.

If you would like suggestions on competent workers compensation attorneys in the Columbus Ohio area, please contact me directly at Neil@fklaborlaw.com and reference this MEL post.

Best regards,

Neil.

posted Jan 8, 2009 10:54 AM [EST]

Answer to Unemployment compensation after severance expired

Severance benefits will offset unemployment compensation benefits

You should apply for unemployment compensation benefits starting from the time that you are first unemployed. You must wait the first week before receiving any payments. After that, you are eligible for payments so long as you are available for and seeking work.

However, if you receive pay from another source during a week covered by unemployment compensation, including severance pay, the amount of your unemployment compensation benefit is reduced by the amount from the other source.

While the amount may be reduced, perhaps to zero, by the severance pay that you received, I cannot think of a reason not to apply for benefits during those weeks, as it is up to the Department of Jobs and Family Services to decide how much you will receive.

posted Jan 7, 2009 12:03 PM [EST]