Answers Posted By Neil Klingshirn

Answer to Overtime?

You are entitled to overtime whenever you work it.

Your employer may lawfully limit the amount of overtime that you work and may require you to obtain prior authorization before you work it, such that if you work over 40 hours in a week without permission, you can be lawfully punished or even terminated. However, once you work more than 40 hours in a week, your employer must pay overtime on the hours over 40. Thus, the employer could reprimand you if you did not get authorization, but would still have to pay the overtime. Therefore, the next time you find yourself in a position where you have to work another 15 minutes, get permission. If you do not get it, point out that you will have to go home and finish up the next day so that you do not violate the work rule against overtime. Use common sense in dealing with this situation, but unless you have permission to work, the employer can hardly reprimand you for not finishing your work.

As for time spent at mandatory meetings or training, it is counted as "hours worked" and is subject to overtime. There are some exceptions to this rule, but unless the meetings or training is voluntary, you are probably entitled to overtime. The federal regulations on this are at http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_785/29CFR785.27.htm. />
Best regards,

Neil Klingshirn.

posted Jun 19, 2008 08:27 AM [EST]

Answer to obligated after lay-off?

You have no obligation to work once your employment terminates

Dear 411:

Once the company terminates your employment, you have no further obligation to it, unless the Severance Agreement states otherwise. If it does, and if you have not yet signed it, I suggest that you attempt to negotiate a reasonable fee for calls that you might get. Otherwise, if the severance agreement is silent except to say that your employment will be terminated as of a specific date, you have no obligation to provide further services.

If you do get a call, look at it as an opportunity to sell your services to the company as a consultant. It sounds like it would be worth it for them to keep you on a retainer, at least for a time.

Best regards,

Neil Klingshirn.



posted Jun 12, 2008 09:44 AM [EST]

Answer to Re:Over The Road (OTR) Trucking & pay per mile.

This sounds like a breach of contract

I am not clear on how you are paid, but it sounds like you a paid a certain amount per mile for each load that you haul. It sounds like the dispute is on the number of miles being paid. If that is the case, then the number of miles driven is pretty easy to prove, using the guides and programs that you mention, as well as your odometer, no?

If so, and the trucking company is simply paying only for a portion of the miles, then you should be able to file suit for a breach of contract. The essential elements (what you have to prove) are the specifics of the agreement (amount per mile), the amount that you drove and the amount you were paid. The difference between that and what you should have been paid will be your damages claimed in your suit.

Also, flattery gets you everywhere.

Cheers,

Neil.

posted Jun 9, 2008 09:29 AM [EST]

Answer to is this legal

Your employer cannot make deductions from your pay without your approval

Once you earn your pay, your employer cannot make deductions without your approval. Ohio revised code section 4113.15 provides employees with a remedy if the employer makes such a deduction.

An employer can, however, structure your pay how it sees fit, so long as it pays you at least the minimum wage. Therefore, if the new policy is applied to future pay periods only, the practice of paying you an amount equal to $X.00 per hour times Y hours minus $1.00 times each time the drive through goes over 200 seconds, that is probably legal.

Crummy, but probably legal.

If you have the option of going to work for Arby's across the street, consider doing it. That will probably end the employer's new policy.

Regards,

Neil.

posted May 30, 2008 12:29 PM [EST]

Answer to Can a compnay change a commision structure after the quarter is complete and the work is done?

The employer cannot change the deal after the work is done.

Mary is right. This is a classic breach of contract case. While the employer can change the commission structure going forward, once you made sales under an existing commission pay plan, the employer is bound to pay it. If the amount in dispute is small, you may be able to go to small claims court. It is fairly easy to do.

The employer's other claim, that it mistakenly set the gateways too high, is a defense to the contract, but not a very good one. The employer must basically show that the two of you agreed to the lower amount and not just that it thought the deal was for the lower amount. If you have the higher amount in writing and remember the higher amount as the deal, then the "mistake" defense will probably fail.

posted May 30, 2008 09:35 AM [EST]

Answer to Severance Contract Never Paid

You can file for breach of contract and collect interest

It sounds like you have a valid contract. Once you have a valid contract, a fundamental truth of contract law is that neither party can rescind it without a material breach by the other. Since it appears that you kept your side of the bargain, the company has no grounds for rescission. The requirement that any change to the contract must be in writing reinforces this conclusion.

By failing to pay the agreed upon severance, the company has breached the agreement. You can therefore sue for damages for breach of contract, which would be the unpaid severance. If the severance amount is less than $3,000, bring suit in the small claims division of the municipal court covering your employer. If the claim is between $3K and $5K, bring the claim in the general division of the same municipal court. If the claim is over $15K, bring the claim in your county court of common pleas.

Interest on the unpaid severance is set by the Ohio Tax Commissioner. It is based on short term Treasury notes and has been in the 6% to 8% range in the last couple of years. By law, the rate is to be posted by the clerk of courts, who should be able to tell you what it is.

If you decide to pursue a claim on your own, the Ohio Legal Services Foundation just added a nice section to their website to help with this. It is located at http://www.ohiolegalservices.org/ in the For the Public section.

Best regards,

Neil Klingshirn.

posted May 22, 2008 10:15 AM [EST]

Answer to Employee Quiting with Wages Owed to Employer

Employers cannot make deductions without the employee's consent

Google Ohio revised code 4113.15 for Ohio's wage payment law. In a nutshell, you cannot make deductions unless the employee authorized them without running a risk of a $200 penalty. Putting something in your employee handbook will not override this law.

Neil Klingshirn

posted May 21, 2008 12:32 PM [EST]

Answer to Employer shuts down; won't pay workers what is owed.

Recovering wages after a plant shut down

How many employees worked at the plant before it was shut down? Under the federal WARN Act, the employer must provide 60 days notice if the plant employed 50 or more employees.

In addition to rights under WARN, any employee owed wages should be recoverable from the employer, not just the plant. If the same corporate employer that owned the plant is still in business and operating elsewhere, then you can file suit against that employer. So, if the same corporation is still in business, you should be able to pursue claims against it.

Call me if you would like to discuss this further.

Best regards,

Neil Klingshirn
330.665.5445

posted May 15, 2008 3:31 PM [EST]

Answer to Non-compete Ohio

Voiding a non-compete for failure to pay commissions

If the employer fails to perform a material, or major, part of the non-compete bargain, you may be able to avoid the non-compete. The legal theory is that, if one party fails to perform an essential part of the bargain, the other side can "rescind" the agreement, as though it never happened. Courts are not crazy about allowing one party to rescind an agreement, however, and require that the breach is significant.

Whether or not the agreement to pay a specific amount of commissions was a material part of the bargain will depend on your employment agreement. Whether or not the failure to pay the promised commissions is a significant breach of that obligation depends on the amount of the unpaid commissions.

Best regards,

Neil Klingshirn

posted Apr 30, 2008 1:35 PM [EST]

Answer to Do I have a case?

Negotiating severance pay - age, gender discrimination and harassment.

I am sorry to hear about the loss of your husband and now the loss of your job. I can only imagine how difficult this must be for you.

An employer can lawfully set the number of hours that you must work. The employer can also decide what work your job entails, including more difficult tasks and time consuming paperwork. If you do not want to work the hours or perform the additional duties, the law says that you can leave and find other work. This is part of the employment at will doctrine, which says that an employer can terminate your employment any time that it chooses to do so, and so can you.

However, as an exception to the employment at will doctrine, the law prohibits an employer from forcing an employee to quit, or firing them outright, for certain prohibited reasons, including the employee's age or gender. So, if your employer hired a substantially younger, male as your replacement, you might be able to challenge the decision as unlawful age or gender discrimination. Whether or not the severance offer is adequate in light of your potential claims will depend on the specific facts of your situation.

A severance offer of one year's pay is fairly generous by today's standards. Technically, if you demand more, you have rejected the original offer and it can be withdrawn. If you approach the discussion of severance with your employer properly, however, experience shows that the employer will probably not remove the offer altogether.

From here, evaluating your claims and providing specific, strategic advise for negotiating severance pay is very fact specific. To dig into the facts, we offer an initial consultation at a fee of $200. If you would like to meet for a consultation, please call Jenny at 330.665.5445, ext. 0 and she will get you on my calendar.

Best regards,

Neil Klingshirn.

posted Apr 28, 2008 08:37 AM [EST]