Answers Posted By Neil Klingshirn

Answer to Procedure or Precedence for Re-opening a Dismissed Case?

Rule 60 allows Relief From Judgment or Order

Federal Rule of Procedure 60 allows a court to correct its own order as a result of mistake, inadvertence or excusable neglect. You also have the option of appealing the order to the Circuit Court. However, if the order is final and the time for appeals has run, then the case may be over and cannot be revived for trial.

posted Nov 9, 2007 08:46 AM [EST]

Answer to Salaried Employee docked pay for 1 day off.

You may be entitled to reimbursement for your docked day.

Your question asks whether you are entitled to overtime because your employer docked your pay for a hospital stay after you ran out of vacation and personal days. The answer is "maybe."

As a general rule, you are entitled to overtime unless you are "exempt" from it. Employees who perform supervisory and administrative duties are exempt from overtime if they are paid "on a salaried basis." To be paid on a salaried basis, you must be paid a predetermined amount of at least $455 each week without deduction based on the amount or quality of work performed. Thus, if your employer docks your pay, it is not paying the predetermined amount.

An employer is allowed, however, to make the following deductions:

"1. Deductions from pay may be made when an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability. Thus, if an employee is absent for two full days to handle personal affairs, the employee's salaried status will not be affected if deductions are made from the salary for two full-day absences. However, if an exempt employee is absent for one and a half days for personal reasons, the employer can deduct only for the one full-day absence.

"2. Deductions from pay may be made for absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability. The employer is not required to pay any portion of the employee's salary for full-day absences for which the employee receives compensation under the plan, policy or practice. Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance thereunder. Thus, for example, if an employer maintains a short-term disability insurance plan providing salary replacement for 12 weeks starting on the fourth day of absence, the employer may make deductions from pay for the three days of absence before the employee qualifies for benefits under the plan; for the twelve weeks in which the employee receives salary replacement benefits under the plan; and for absences after the employee has exhausted the 12 weeks of salary replacement benefits. Similarly, an employer may make deductions from pay for absences of one or more full days if salary replacement benefits are provided under a State disability insurance law or under a State workers' compensation law."

My read is that, unless you receive short term disability or sick pay for the day spent in the hospital, you will not be exempt for that pay period.

You are probably only entitled to overtime for that pay period. If you were paid a salary all other weeks, then you are likely not entitled to overtime in those weeks. Further, the employer can avoid an overtime claim if it pays you for the sick day.

Consider explaining this to the employer and suggesting that you should be paid. The relevant law is section "29 CFR 541.602", which you can find by googling it. Your employer would be wise to pay you for the day.

Regards,

Neil.

posted Oct 18, 2007 12:47 PM [EST]

Answer to What qualifies as

You earned your bonus

The employer's excuse for not paying your bonus is whooey.

If you earned your bonus, your employer must pay it. You earned it by meeting the sales target, giving a two week notice and working your final two weeks. Unless the employer conditioned the bonus on a face to face notice of resignation, he or she cannot impose that condition now.

To collect the bonus, you can file suit in small claims court. Ask for the filing fee to be waived since the amount is so small. Say in your complaint that you gave your two week notice and worked out your shifts. Also state that the employer's failure to pay the wages is a violation of Ohio Revised Code 4113.15. Search for it on this site or Google "ORC 4113.15." As you will see, it requires Ohio employers to pay wages promptly and imposes a penalty if they fail to do so. Also ask that your filing fee, if you have to pay one, be reimbursed by the employer.

Before filing suit, share a copy of 4113.15 with your employer and ask him or her to reconsider. It might work. If not, file your suit. The employer will probably be so embarrassed and ashamed that it will just send you your pay.

Regards,

Neil.


posted Sep 27, 2007 08:54 AM [EST]

Answer to non-solicitation enforcement

Lack of consideration is no longer a defense

The Ohio Supreme Court held within the last two years that an employer's continued employment of an at-will employee would not amount to a failure to provide consideration (i.e., value) necessary to form an agreement. In other words, the non-solicitation agreement is not invalid simply because it was signed well into your employment.

The fact that the employer instructed you to back date the agreement suggests some level of misrepresentation. However, unless you were essentially duped into signing something in the belief that it was something else, such misrepresentation will probably not help you avoid the non-compete.

The fact that the non-compete goes on for three years, however, may cause it to be too broad (i.e., too long in duration). A court could make the duration shorter. However, the fact that May, 2008 is not far off at this point makes the value of a court challenge questionable.

If you want to explore other ways to work around the non-competition restrictions, I have a great deal of experience at that. Please call Jenny at 330.665.5445, ext. 0 if you would like to schedule a consultation. We charge $200.

posted Sep 26, 2007 12:23 PM [EST]

Answer to Overtime for Salaried Employees

Overtime pay exemptions

Except in the case of minors, the federal wage and hour laws do not regulate the number of hours that you work. Rather, they allow an employer to require employees to work 24 hours a day, 7 days a week if the employer so chooses. The employer must pay the employees entitled to overtime at 1 1/2 times their regular rate for all hours in excess of 40, but the employer is free to require the employee to work as many hours as it sees fit. Employees, of course, are free to refuse to work excessive hours.

Whether or not you are entitled to overtime pay mainly depends on your duties. If you perform "exempt" duties, such as executive, professional or administrative duties AND you are paid on a salaried basis, you may be exempt from overtime. In that case, the number of hours that you work will not change the fact that you are exempt.

Thus, the answer to your predicament is in the market for jobs, where you can look for an employer who does not abuse the number of hours that you work, rather than in the court room.

I do not know if Pennsylvania law is different on this subject. Please consult a PA lawyer.

Best regards,

Neil Klingshirn

posted Sep 10, 2007 11:03 AM [EST]

Answer to Right to see my employee files

You do not have a legal right to see personnel files

Personnel files and other employer documents about employees are the property of the employer. Employers do not have an obligation to share them with their employees.

Many employers share such information with employees because it is a good practice to do so. If the employer refuses, however, you cannot go to court to force the employer to give you a copy.

Best regards,

Neil.

posted Sep 8, 2007 3:01 PM [EST]

Answer to seeking damages for unsafe working enviroment

You have every right to demand a safe workplace

You do not have to work under the conditions that you describe. It is shameful that your employer is a union. Union's are devoted to helping the worker.

Ohio has many laws that address workplace safety. Most of them are remedial in nature. That is, the objective of the laws is to force employers to make the workplace safe. To that end, you can complain to a number of state and federal agencies, like OSHA, to seek enforcement of the safety laws. In theory, this forces the employer to stop placing you in hazardous conditions.

In reality, many employers comply with the safety laws only to the extent necessary to deal with the investigative agency. Those employers tend to frown on their employees who are complaining about, and causing scrutiny of, the unsafe conditions. By complaining, you thus place yourself at risk of retaliation by the employer.

If the employer discharges you for complaining, you have a number of claims for lost wages and compensatory and punitive damages against the employer. You must go through a lawsuit to recover those damages, however.

In your case, I suggest that you consult with an attorney who can help you evaluate the benefits and risks of standing up for your rights. In the meantime, look for another place to work. If you have a fall back position, it opens up your options considerably. Finally, you may have a potential workers compensation claim.

If you would like to consult with our firm, call Jenny at 330.665.5445, ext. 0 and she can get you on my calendar.

Best regards,

Neil.



posted Aug 30, 2007 08:36 AM [EST]

Answer to Racial Discrimination or at will?

How to save your job or maximize your severance benefit.

Your situation does reek of a setup and discrimination. Doing nothing is an option, but probably not a good one.

You should get specific, tactical advice from attorney, since you can do a number of things to put yourself in a better position to save your job or increase your leverage in a severance negotiation. This is only general legal information and some common sense advice.

First, be the best employee this insurance company ever had. Never give it an excuse to terminate your employment. Beam sunshine. Hum a happy tune. This is very hard to do in your situation, but you avoid being labeled as an "attitude problem."

Pick your battle. Call them when you have obvious, unfair discrimination and simply ask that it stop. It might work. Also, this is protected activity, so if they fire you because you asked for a lawful workplace, you will have a claim for retaliation in addition to racial discrimination. However, this is a risky tactic (it could get you fired) and should only be done with reasoned judgment and advice of legal counsel.

I can offer that counsel at this stage if you like. We offer an initial consultation and charge $200 for what is typically a 90 minute meeting. I can do a consultation by telephone if the distance is a problem. If you would like our assistance, please call Jenny at 330.665.5445, ext. 0 and ask her to get you on my calendar.

posted Aug 29, 2007 1:52 PM [EST]

Answer to Didn't sign a non-compete, what now?

Protect your trade secrets

A signed non-compete might not helped you even if you had one. California generally does not enforce non-competition agreements between an employer and employee. However, you may be able to prevent your former employee from competing against you by using California's trade secrets act.

Disclaimer: I am licensed to practice law only in Ohio and am not proficient at California law.

That said, most states, including Ohio and, I believe, California, adopted a uniform trade secrets act. Under Ohio's act, customer lists and contact information may be trade secrets, as long as there were, in fact, kept secret by the employer. In that case, you may be able to apply for an injunction in court to prevent the former employee from using the trade secrets, and recover damages if he does.

Bottom line, consult with a California attorney about trade secrets. Check MEL's lawyer directory and MEL's Answers to see who can write well. Check also the attorney directory at the National and California Employment Lawyer's Associations.

Best regards,

Neil.

posted Aug 20, 2007 08:57 AM [EST]

Answer to Mandatory Overtime for Straight Time Pay

An employer does not have to pay time and a half for less than 40 hours

The more accurate question, in terms of overtime law, is whether the employer must treat vacation or PTO hours as "hours worked" when calculating the number of hours worked in a work week for overtime purposes. The answer is "no," vacation and overtime hours are not hours worked. Thus, if your employer requires you to work 8 hours on a Saturday in the same week that you took 40 hours of vacation or sick time, then you have worked only 8 hours that week for overtime purposes. Since 8 does not get you over 40, you are not entitled to overtime for those 8 hours.



posted Aug 17, 2007 2:04 PM [EST]