Answers Posted By Neil Klingshirn

Answer to Can I be compensated for all the time I worked?

Claims older than three years are barred by the statute of limitations

Your question raises interesting issues as to whether you were properly exempted from overtime or not. If your primary duties did not involve the hiring, firing and supervision of others, or the ability to have significant input into those decisions, then you may have been entitled to overtime.

However, you must bring overtime claims within two years from the time that you earned the wages. If the failure to pay overtime was willful, you have three years to bring the claims. Here, it appears that it may have been four years or more since you last worked there. In that event, your claims will be time barred, meaning that the overtime statute of limitations will be a defense to an overtime action.

Regards,

Neil.

posted Apr 16, 2008 4:48 PM [EST]

Answer to FMLA question

Did the dealership employ 50 people?

Your husband has the right to be restored to his prior position under the Family and Medical Leave Act. However, that law only applies to employers with 50 or more employees. You can check the FAQ article on the FMLA for more details. If his employer has more than 50 employees, he should be able to get his job back.

Regards,

Neil Klingshirn


posted Apr 9, 2008 3:23 PM [EST]

Answer to How can they tell me no matter where I work and get laid off for the next year I can

Unemployment compensation eligibility.

I cannot tell from your question what exactly is going on. If you were receiving buyout payments from the former employer during a week of unemployment following your layoff from the second employer, then the amount of the buyout payment from the first employer will reduce the unemployment compensation benefit from the loss of the second job. The idea is that your unemployment benefit is reduced by any compensation that you receive from any source. Thus, if you have a weekly benefit of $500 and you earn $400 helping your brother in law with his business, your unemployment benefit would be reduced by $400 to $100. The same is true if you receive $400 in buyout payments.

If your situation is different from this, feel free to call to set up a consultation. Whatever the case, your former employer will be charged a portion of the bill for your unemployment benefit, so it has standing to question the amount of the payment.

Best regards,

Neil Klingshirn.

posted Mar 12, 2008 4:45 PM [EST]

Answer to Lying to the Police

You may have a claim for defamation

This is a tragic situation. No one should be able to do this to someone else's career.

The law may provide you a remedy, but there are several hurdles.

Your remedy would be in the law of defamation. If someone says something untrue that harms your reputation, you can recover money damages for the harm to your reputation. Here, the former employer made an untrue report to the PD recruiter, which appears to be the reason why you did not get the job.

The first hurdle that you face is the qualified privilege that the law gives to an employer who provides a response to a reference request. The privilege protects the employer from a defamation case for what it reports in response to a reference request, which is what happened here. In other words, the privilege is a defense to your defamation claim, so the fact that the defamation occurred in the context of a reference request means that the former employer has a pretty good defense to your claim.

However, the privilege is "qualified," which means that it has its limits. The former employer loses the privilege if the reference request is made maliciously. You have to prove malice. However, in this case, you might be able to do so, as it looks like the employer was getting you back for trying to collect what it owed you.

Another hurdle will be the causation between the reference and the loss of the opportunity. The employer will be able to introduce evidence suggesting that you might not have landed the job, even without the defamatory statement.

To explore the viability of your claim further, we offer an initial consultation. If you would like to consult on your case, call Jenny at 330.665.5445, ext. 0 and she can get you on my calendar.

Best regards,

Neil.

posted Feb 8, 2008 09:40 AM [EST]

Answer to Liability of new ER in regards to hiring ee with non compete

The new employer has as much, if not more, exposure to a non-compete claim

Non-competition agreements are contracts, typically between two parties, a company and an employee. A competitor who has not signed the non-compete is not a party and cannot be sued by the company for a breach by the employee, since the competitor is not a party to the contract.

However, if the competitor hires the employee knowing that the employee will breach his or her contract with the Company, then the competitor could be liable for "interfering" with the contract between the Company and the employee. This claim is known as tortious interference with business or contractual relations, or tortious interference for short.

A suit for tortious interference can be more damaging to the competitor than the employee, since breach of contract claims have limited remedies, while a tortious interference claim has the same remedies as a contract claim plus it allows the Court to award punitive damages against the interfering employer.

Consequently, Senior Management should tread carefully and consult with a qualified employment lawyer before bringing the employee on board. It is possible to work around, reduce or even eliminate non-compete restrictions, but you need to understand the risks.

Best regards,

Neil Klingshirn.

posted Jan 21, 2008 11:24 AM [EST]

Answer to Employer fraud

You do not have to sign a false statement to receive your 410k benefits

You are entitled to your 410k benefits and your employer must roll them over, as required by law. Your employer cannot erect additional obstacles to your receipt of your 401k benefits.

So, do not sign the resignation letter.

Regards,

Neil.

posted Jan 10, 2008 12:57 PM [EST]

Answer to Non-Compete Employer leaving area

You have excellent facts to fight enforcement of your non-compete

If your employer will not have any protectible business interest in Northeast Ohio, most Northeast Ohio judges will refuse to enforce the non-compete. The problem is that you may have to incur legal fees to get a ruling that the non-compete is unenforceable. Therefore, if you can negotiate a voluntary release, it may be worth doing.

Regards,

Neil Klingshirn

posted Nov 29, 2007 10:32 AM [EST]

Answer to FMLA eligibility

FMLA coverage of satellite offices

Your answer is in the federal regulation at 29 CFR 825.111. Here is a link to the Department of Labor's site:

http://www.dol.gov/dol/allcfr/esa/title_29/part_825/29CFR825.111.htm

You will probably find your answer there. If not, consult a reputable employment lawyer who represents businesses before you refuse FMLA leave to an employee. The cost of violating the law is far more than the cost of asking an attorney what the law is.

Best regards,

Neil.

posted Nov 27, 2007 08:29 AM [EST]

Answer to ohio pregnancy leave laws?

Ohio pregnancy leave

First, congratulations on your pregnancy. Kids, though a ton of work, are what life is worth living for.

On the legal front, I have good news. The Ohio Civil Rights Commission has just issued a new rule that will, if it becomes effective, will allow you up to 12 weeks of leave for pregnancy or maternity, if recommended by your doctor.

The rule must, however, survive a hearing next week (12/3/7). If it passes, however, the law will encourage your employer to allow you leave for your pregnancy.

You can find more on this topic on MEL's blog, which is at http://www.myemploymentlawyer.com/serendipity/archives/37-New-Ohio-Pregnancy-Discrimination-Rules-Provide-12-Weeks-of-Leave.html

posted Nov 26, 2007 09:02 AM [EST]

Answer to Physician Charges $15 to Complete FMLA Papers

The FMLA regulations do not require the employer to pay for the Employee's Certification

This is a good question and it does not have a clear answer. It does not have a clear answer because the FMLA and the regulations that implemented it do not spell out the physician's obligations. They only cover the obligations of the employer and the employee.

The certification obligations are found at 29 CFR 825.305 through 29 CFR 825.307. If you google those terms, it is helpful to read the regulations.

To preview, they allow the employer to require a physician certification. They do not say who has to pay for it. Presumably, that is a charge that the employee would be responsible for paying. The employer then has the right to seek a second opinion and even a third opinion, if needed. The regulations require the employer to pay for the second and third opinion and to pay the employee's out of pocket cost for obtaining the second and third opinion.

Thus, the regulations appear to require the employee to pay for the first opinion, even though the employer requires it. However, since most doctors, to my knowledge, have not charged such a fee, I am not aware of any cases that definitively decide the issue.

Given this, but depending on how often the issue comes up, it might make sense to cover the $15 cost to avoid the risk of litigation. That risk is three fold. First, the employee might file suit to recover the $15. Unlikely, but stranger things have happened. More troublesome, the employee could claim that forcing him or her to pay it is a form of retaliation or interference with their FMLA rights. Most troublesome, if a court decides that the employer interfered with FMLA rights, it could go further and find that the employer's failure to restore an employee for failure to have the medical certification is invalid. Thus, in this case, an ounce of prevention may be worth a pound of cure, at least until the courts clarify this issue.

Best regards,

Neil.

posted Nov 21, 2007 11:30 AM [EST]