Answers Posted By Neil Klingshirn

Answer to My Boss told a fellow employee that I slept with his wife.

You may have a claim for "false light" invasion of privacy.

The Ohio Supreme Court recently held that statements made about you that are offensive can be the basis for an invasion of privacy claim. I discussed this case in a blog posting on this site, located at http://www.myemploymentlawyer.com/serendipity/archives/32-A-new-right-for-the-Falsely-Accused-in-Ohio-False-Light-Invasion-of-Privacy.html />
Best regards,

Neil Klingshirn

posted Aug 7, 2007 11:11 AM [EST]

Answer to mandatory on call

On Call Time is Usually not Compensable

An employer can require you to be on call without paying you for the interference that that has with your life, so long as you are generally free to go about your normal routines. The U.S. Department of Labor (DOL)has regulations that identify the point at which the on-call requirements will be treated as "hours worked" for overtime purposes on its website. The DOL says that an employee who is required to remain on call on the employer's premises is working while "on call" and entitled to be paid for the hours worked. An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.

posted Aug 7, 2007 11:08 AM [EST]

Answer to Awareness of Discrimintory Action

Any tangible, adverse action is grounds for retaliation

When you complained to your supervisor about his sexually harassing conduct, you engaged in protected conduct. If your employer takes a tangible, adverse employment action because of your protected conduct, you will have a claim for retaliation.

A tangible, adverse employment action is generally something that results in a financial loss to you. If the permanent position paid better and had better benefits, then blocking you from the position be a tangible, adverse action.

In your case, you might have a problem of proving that your supervisor actually blocked your advancement into the new position. This is a factual issue. If you believe that you have such proof, I suggest that you contact an employment attorney from this site who is in Cincinnati or Columbus.

Best regards,

Neil Klingshirn

posted Aug 7, 2007 11:03 AM [EST]

Answer to Not allowed to have a copy of my performance review?

You are not entitled to a copy of your performance review

An employer's personnel records, such as performance reviews and personnel files, are the property of the employer. The employer does not have to provide a copy, even to the employee to which the records relate.

Although employers do not have to provide copies to their employees, most will do so. It makes sense to do so and breeds suspicion if the employer does not. This is why most employers will provide copies. However, if the employer choose not to do so, the employee cannot force the employer to provide a copy.

A compromise that employers who do not want to give up copies might nonetheless accept is to let you see your review, without providing a copy. Try that.

If you file suit against your employer, then you can obtain a copy of your personnel file and other relevant documents using a subpoena or a discovery request. If the employer discards or alters a positive performance evaluation before producing it in litigation, you would have a claim for destruction of evidence.

Therefore, when your employer lets you see the copy of your review initially or as a compromise to giving you a copy, take notes of your scores for the major categories. Then, if the employer changes it, you will know.

Best regards,

Neil Klingshirn

posted Jul 29, 2007 6:36 PM [EST]

Answer to non compete question

Non-competes can bind independent contractors and lessees

A non-compete agreement is a contract. As long as the contract meets the requirements of a valid contract (offer, acceptance and consideration), a court will enforce it, subject, however, to the usual requirement that the restrictions imposed by the non-compete is not greater than that necessary to protect the other party's legitimate business interest.

A lease is, technically, not a contract. However, a non-compete agreement contained in a lease probably is a contract and therefore, as stated above, will be generally enforceable. Thus, if you are renting space from another manicurist or someone else who has a legitimate interest in avoiding competition with you, do your best not to sign the non-compete unless you are willing and able to abide by the restrictions in it once your lease agreement is over.

Best regards,

Neil Klingshirn

posted Jul 25, 2007 08:40 AM [EST]

Answer to non compete

Non-compete in an independent contractor agreement

Non-competes can be valid if they are in an independent contractor agreement. Non-competes do not apply only to employees.

Whether or not your non-compete is too vague or broad to be enforceable requires an individual analysis, which would be essentially the same analysis as that applied to any other non-compete agreement.

posted Jul 23, 2007 09:51 AM [EST]

Answer to My legal rights using sick/FMLA time

You should contact a lawyer immediately

If you are covered by the FMLA (worked for one year and 1,250 hours during that year), then it your employer appears to be violating your FMLA rights and will do so further if it terminates your pay and benefits.

To answer your questions, you do not have to provide confidential treatment notes to qualify for FMLA leave. Your doctor's certification that you have a serious health condition is generally sufficient. Further, obtaining your treatment notes without your consent may be a violation of your right to privacy.

You may need a release from your doctor to return to work if the company requires it of everyone returning from leave and says so in its written FMLA policy. That release is sufficient if signed by your doctor.

Your employer can terminate your pay and benefits, but doing so may give you the right to file suit. Ideally, you or an attorney acting on your behalf should explain to the company that it is violating your rights and stop it before it terminates your pay and benefits.

You wrote a very organized question, by the way.

I practice in the Columbus area and can help you in this matter. If you would like to schedule a consultation, please call Jenny at 330.665.5445, ext. 0. If this matter is urgent, let Jenny know that and she will schedule the consultation as quickly as possible. If you need to do the consultation by telephone, let Jenny know that as well.

Regards,

Neil.

posted Jul 19, 2007 11:17 AM [EST]

Answer to Retaliation over airline safety concerns

How to file an FAA whistleblower or retaliation claim

It appears that you have a claim for retaliation under the FAA's anti-whistleblower rules.

Read MEL's retaliation FAQ on this website for a general understanding of how to prove a retaliation claim. As you will see, retaliation requires you to first engage in protected conduct. The FAA regulations make complaints about air carrier safety protected conduct. If you were fired because you complained about air carrier safety to your employer, then you have a retaliation claim.

You need to file a complaint with OSHA within 90 days of the termination, however. Here is the FAA's webpage on this topic:

http://www.faa.gov/safety/programs_initiatives/aircraft_aviation/whistleblower/policy/qa/

If you want assistance filing your claim or would like to discuss how to prove that the "not a fit" is really pretext for retaliation, we offer a consultation. Please contact Jenny at 330.665.5445, ext. 0 if you would like to schedule a consultation. Our fee is $200.

Best regards,

Neil.

posted Jul 10, 2007 08:14 AM [EST]

Answer to Unjust Discharge

You are winning your unemployment compensation claim

The determination means that you are entitled to unemployment compensation benefits. If you had been terminated for cause, you would not have been eligible for unemployment compensation benefits.

The determination does not mean that your employer is liable for anything other than unemployment compensation benefits. First, if you were an employee at will, your employer was free to terminate your employment with or without cause. The cause determination thus probably has meaning only for unemployment compensation purposes. Second, even if you had a contract of employment that allowed you to be terminated only for cause, Ohio's unemployment compensation law specifically prohibits the use of an unemployment comp determination in any other court proceeding. Thus, you would have to prove your case in the other proceeding without reference to what Jobs and Family Services found.

So, the good news is you should receive your benefits. The bad news is that the decision does not establish any other claim for you. If you believe that you have other claims, consult with an attorney to see whether it makes sense for you to pursue them.

Best regards,

Neil.

posted Jul 10, 2007 08:03 AM [EST]

Answer to Sign or be fired

Try to strike a bargain

You have a good question. I am not aware of any Ohio law or case that would provide a remedy if you were fired because you refused to authorize a payroll deduction to cover errors that you did not cause. Ohio has a wage payment law that prohibits an employer from making payroll deductions unless you provide your consent, but it is silent as to whether the employer can fire you if you refuse to provide the consent.

I suggest that you try to negotiate with your employer. Point out that it is unfair to charge you for errors that you did not cause, and that your employer will probably incur greater costs recruiting and training a new night auditor. If you are willing to give permission for deductions for errors that you cause, then say so, but consider asking for a way to verify that an error was made and that you are responsible for it.

posted Jun 28, 2007 08:23 AM [EST]