Answers Posted By Neil Klingshirn

Answer to Several questions

An employer does not have to provide breaks, except for minors.

Surprisingly, neither Ohio nor federal law mandate breaks. In theory, an employer can require employees to work 24/7 and then terminate them for absenteeism when they stop showing up. In reality, however, because federal and state overtime laws make hours worked in excess of 40 expensive, employers to voluntarily limit normal schedules to 40 hours. This leave employers free, however, to force you to work through lunch and without breaks, or to allow only limited breaks.

Importantly, your employer must pay you during breaks of 30 minutes or less, and must also allow you to come and go as you please if it does not pay for breaks of 30 minutes or more. In your case, however, it appears that your employer is doing that.

Constructive discharge refers to terms and conditions of employment that would force a reasonable employee to quit. In the eyes of the law, a constructive discharge is the same as an actual termination and would trigger the rights and benefits available to an employee who is fired, as opposed to one who voluntarily quit. There is no limit to the number of employees required for a constructive discharge. If a sole proprietor forces her only employee to quit by cutting her pay in half while increasing her hours and adding awful duties, for example, the employee could quit and could probably still collect unemployment compensation benefits.



posted Jan 2, 2009 10:00 AM [EST]

Answer to overtime laws for movie theater employees

Movie Theaters are exempt from federal overtime laws

The federal Fair Labor Standards Act (FLSA) exempts employees of motion picture theaters from the FLSA's overtime requirements. 29 USC 213(b)(27). Ohio's overtime laws incorporate the FLSA's exemptions, so your son would be exempt from Ohio's overtime laws as well.

Regrets,

Neil Klingshirn.

posted Dec 23, 2008 2:06 PM [EST]

Answer to Only one not to receive severance

Did your employer have a severance plan?

Generally speaking, an employer has no obligation to provide severance, unless the company has a severance pay plan. See the MEL FAQ article on severance pay for a broader discussion of the general law of severance pay.

If there is a Plan, the Plan would define who is eligible to receive severance and under what conditions. You can ask for a copy of any severance plan, which the employer must provide if it exists. Consult it to see if you were covered.

If the employer did not have a formal severance plan, it may be possible, although difficult, to establish that an informal but clear practice existed of paying severance, such that the law will imply a severance plan. We would need to evaluate whether you could prove an implied severance plan based on the facts of your case. I would also need to research whether the law has changed recently in this area.

You may also be able to establish a claim if you were excluded from severance pay for an unlawful reason, such as your race, age, gender or other protected classification, or because your ex-employer retaliated against you for engaging in protected conduct. This would be a fact intensive claim and would involve the additional issue of whether you could assert a claim for "employment" discrimination in connection with a benefit that arises as a result of your termination of employment.

Best regards,

Neil Klingshirn.

posted Dec 17, 2008 11:13 AM [EST]

Answer to hourly vs. exempt pay

The job duties control whether the job is exempt, not the job description

The US Department of Labor (DOL) regulations state that the actual job duties determine whether an employee is exempt or not. The job description and job title are not controlling. The fact that the employer treats other employees as non-exempt in the position appears to undermine the claim that you are exempt.

You can file a claim with the US DOL's wage and hour division, which will investigate and, if your complaint has merit, will attempt to recover your unpaid overtime.

Follow this link to a DOL letter regarding this issue:

http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17a_overview.pdf

Best regards,

Neil Klingshirn

posted Dec 4, 2008 12:46 PM [EST]

Answer to unpaid wages

You appear to have a valid contract claim but . . .

. . . you may have trouble collecting a judgment for your claim.

If you have not been paid an agreed upon amount of money, you can file suit for breach of contract. Your damages are the amount that is due but unpaid. There is a question as to whether you can file suit in Ohio or you must file suit in NM. If the agreement is silent as to venue and jurisdiction and some or all of it was performed in Ohio, you should be able to file suit here.

As long as the agreement is valid, there is not a claim that you amended the agreement and the fact that you have not been paid is not in dispute, then you should be able to obtain a judgment for the unpaid wages. This process may take up to a year and perhaps even longer, depending on how crowded the court's docket is.

Getting a judgment, however, is only half of the battle. The second half of the battle requires you to identify assets, such as a bank account, land, personal property and so on, of your employer, and then use the legal process to levy on those assets. In short, if you are convinced that this employer cannot pay because of its financial condition, then obtaining a judgment against it may not be worth anything.

Regards,

Neil Klingshirn

posted Dec 3, 2008 4:00 PM [EST]

Answer to Accidental Overtime?

Employees are entitled to overtime for unauthorized overtime

The Fair Labor Standards Act requires employers to pay employees for all hours worked, whether authorized or not. As long as the work is done for the employer, the employee is entitled to pay.

This raises two problems. First, what to do about the employee who works unauthorized overtime and second, how to account for time actually worked.

The law allows an employer to have and enforce a rule prohibiting unauthorized overtime. Therefore, an employer can take disciplinary action, up to and including discharge, when an employee works overtime without authorization. The employer must nonetheless pay the employee for the overtime worked.

As for record keeping, the law requires employers to keep records of hours worked. A time clock is probably the best way to do that. Here, however, the problem may be that the time clock is not accurate. In that case, it might be possible for the employer to prove that the time clock was inaccurate, but by doing so the employer proves that it did not keep accurate records. Therefore, as a practical matter, the employer is probably stuck with the record created by the time clock.

As with unauthorized overtime, however, the employer can make and enforce rules requiring accurate time clock punching. If the employer implements such a rule, the employer could discipline and discharge an employee for clocking in early or out late.

Regards,

Neil Klingshirn.

posted Nov 24, 2008 09:42 AM [EST]

Answer to Unpaid wages from temp agency

Claim for unpaid wages

You are entitled to be paid at least the minimum wage for all hours that you work at the request of an employer.

The employer has an obligation to keep records of the hours that you work. If the employer fails to pay you and fails to have a record of the hours that you work, then the court should consider the record of hours worked that you kept should convince the court of the hours that you worked.

The temporary employment agency may claim that they were not asked by the trash company to assign you to the additional hours. If that is the case, you may need to amend your small claims complaint to name the trash company and seek the additional hours from them. Both the temporary company and the trash company are considered to be your "employer" in a temp agency situation.

I am not aware of a law that requires an employer to pay additional compensation for performing dangerous work. Instead, an employer has an obligation to provide a safe workplace and proper safety equipment.

However, check "Ohio Revised Code section 4113.15" (search this site or Google that term), which allows the court to impose a $200 penalty on the employer for failing to pay you on time for your hours worked. Finally, you can file a complaint with the US Department of Labor or the Ohio Department of Commerce for unpaid minimum wage. Both agencies have the authority to investigate the claim.

Best regards,

Neil Klingshirn



posted Nov 21, 2008 08:18 AM [EST]

Answer to please answer

Your personnel files belong to the employer

You probably do not have a right to see your personnel records at your previous place of employment, unless you subpoena them in the context of a lawsuit. Ohio law treats those records as belonging to the employer, even if the subject of the records is you.

posted Nov 10, 2008 1:20 PM [EST]

Answer to FMLA Entitlement Denied by Manager

FMLA coverage continues for a Certified Serious Health Condition

Your employer appears to be way off base here. Once you have been certified as having a serious health condition, leave time required for that condition is considered a serious health condition as well, even if you do not meet the 3 day rule required for some types of serious health condition. So, as long as you worked at least 1,250 hours in the previous year, your employer has more than 50 employees and you have not used up your 12 weeks of FMLA leave in the last year, you should be covered.

If you would like to explore legal action, we offer an initial consultation for $200. Being in Columbus, you might consider contacting Gary Reeve, one of the leading FMLA experts in the country, whose office is in Ohio. His number is (614) 228-2050.

Best regards,

Neil Klingshirn

posted Nov 2, 2008 08:34 AM [EST]

Answer to Ensuring no conflict of interest prior to consultation

The initial consultation is covered by the attorney client privilege

You have two sources of protection against an undisclosed conflict of interest. First, the rules governing attorney ethical conduct prohibit conflicts of interest and attorney misrepresentation. This means that an attorney must disclose to you if they have a conflict of interest. In addition, they cannot misrepresent that they do not represent your employer.

This duty not to make a misrepresentation does not depend on the attorney/client relationship. If an attorney misrepresents a material fact, even on a public forum like this website, they put their law license at risk.

Second, once you schedule a consultation and an attorney offers legal advice, the attorney/client relationship has formed and the attorney must treat anything that he or she learns from you as privileged and confidential and cannot disclose it to anyone else, including his or her other clients. Note, however, that this website and the answers that you receive from Ask MEL are not covered by the attorney/client relationship and are not privileged.

To protect yourself, I suggest that you pick the attorney that you feel you can trust, schedule a five minute consultation for the purposes of investigating the presence of a conflict or not and then go forward with or end the consultation depending on whether there is a conflict. I believe that every attorney, including me, will offer the initial consultation to investigate a conflict, for free.

Best regards,

Neil Klingshirn

posted Oct 26, 2008 11:21 AM [EST]