Answers Posted By Neil Klingshirn

Answer to Overtime pay, retaliation

It sounds like you have a claim for unpaid overtime

It appears that you may have been entitled to overtime since January of 2006 and perhaps prior to that time. You can go to the department of labor and file a complaint, hire an attorney to pursue a claim and perhaps pursue a claim yourself, in small claims court, to recover the unpaid overtime. If you would like to figure out how much you are owed and how you can obtain it, we offer an initial consultation for $200 to answer these questions.

You may also have a claim for retaliatory demotion/reassignment, if you can show that you engaged in protected conduct and the demotion/reassignment resulted from that. For example, if you had complained to the head accountant about the unpaid overtime or objected to only three weeks of unpaid overtime, and the company decided to demote you as a result, then you may have a retaliation claim. We could discuss a retaliation claim at a consultation as well.

If you would like to get together, please call Jenny at 330.665.5445, ext. 0.

Best regards,

Neil Klingshirn

posted Jun 20, 2007 11:28 AM [EST]

Answer to Ohio revised code 4109

You can sue for unpaid wages and report a safety violation to the government

Both Ohio and federal law govern the employment of minors and the payment of minimum wage. You have found the Ohio law, which begins at Ohio Revised Code Chapter 4109. The federal law is the Fair Labor Standards Act and is found at 29 United States Code section starting at section 201. Those laws spell out who enforces them and how.

In the case of prohibitions against giving hazardous work to minor employees the Ohio Dept. of Commerce and the federal Department of Labor, Wage and Hour division, can investigate and fine an employer that violates the safety rules. I do not believe that the minor employee is entitled to receive anything, however.

If the employer fails to pay the minimum wage, the government can investigate that at the same time it investigates the safety violation. If the government finds that the emmployer did not pay the minimum wage, it can order the employer to pay the employee. As another option, the employee can file suit in state or federal court to make the employer pay the minimum wage.

Under the new Ohio minimum wage the employee can recover three times the new unpaid minimum wage, plus attorneys' fees.

You can go back two years for a minimum wage claim. If you prove that the employer's failure to pay it was "willful," you may be able to go back three years.

If the amount of the unpaid minimum wage is low, you can go to small claims court. You will not need a lawyer to do so.

Best regards,

Neil Klingshirn

posted Jun 15, 2007 4:28 PM [EST]

Answer to Employee's Final Pay

Ohio law limits deductions from an employee's final pay.

Check Ohio Revised Code section 4113.15 at:
http://codes.ohio.gov/orc/4113.15

It limits deductions from employee pay to those authorized by an employee in writing or where the employer has a "dispute of any wage claim including the assertion of a counterclaim" that accounts for the nonpayment. Failure to pay without deductions results in the penalties spelled out in 4113.15. It is not clear whether the employee's failure to return company property will give rise to a claim under 4113.15, so you need to proceed with caution.

As for records of hours worked, you should make your best record of the hours that she worked and pay her for them. Do not pay her only for those hours she recorded where you know she worked more hours, since the obligation to have accurate records is placed on the employer and not the employee. The fact that the employee is not cooperating will not excuse you from making a good faith payment for her actual hours worked, but it will probably help you if she goes to the Department of Labor and claims that you did not pay her for all of the hours that she worked.

Regards,

Neil.


posted May 16, 2007 3:47 PM [EST]

Answer to Worried about signing Seperation Agreement

A resignation will disqualify a claimant from unemployment benefits

Be careful before signing a severance agreement whereby you agree that you resigned. A voluntary resignation is grounds for disqualifying you from unemployment compensation benefits.

On the other hand, some employees welcome the opportunity to resign, at least where there may be a question as to whether the employer terminated them for cause or not. In other words, it may give you a better reason for losing your job than a termination for cause. In your case, however, if you are laid off for lack of work, most employers will not hold that against you.

Regards,

Neil.

posted May 16, 2007 3:38 PM [EST]

Answer to IS THERE A STATUTE OF LIMITATIONS ON UNPAID OVERTIME

You have two and possibly three years to file an overtime claim.

The federal overtime law has a two year statute of limitations. You are well within it. If you prove that your employer willfully violated your overtime rights, as would appear to be the case here, the statute of limitations expands to three years to bring an overtime claim.

On the merits of your claim, I do not see anything in the employer's excuse that is valid. If the company has a rule against working overtime, then it waived that rule by asking you to work overtime. Further, even if the company had not waived the rule, you are still entitled to overtime pay for the overtime hours that you worked. That is, the company might be able to discipline you for not following the no overtime rule, but it cannot refuse to pay you for overtime hours that you actually worked.

Finally, an agreement to work for free or any other agreement not to be paid the required overtime is invalid.

I suggest that you contact the wage and hour division of the federal department of labor and file a complaint. Be aware, however, that there is an exemption from overtime under the Motor Carrier's Act that applies to big rig and hazardous material truck drivers.

Regards,

Neil.



posted May 9, 2007 6:19 PM [EST]

Answer to employer illegal activity caused termination

You have claims for you unpaid salary, unpaid taxes and lost wages

I see three issues.

First, you ask if you have a claim for unpaid wages; Second, whether you have a claim because the company has failed to remit your payroll taxes to the IRS and third, you ask whether you have a claim for wrongful discharge? Finally, in addition to these questions you asked in another email whether an employment agreement that the employer did not sign is nonetheless binding on the employer.

The answer to the unsigned employment agreement is that yes, the agreement is binding, even though not signed. Employment agreements can be (and most are) verbal. In your case, you are one step better than verbal, since the employer wrote down the deal. That put it in writing. The fact that the employer did not sign the agreement gives it, at most, an argument that it did not agree to the terms that were in writing. If the employer prepared the written agreement, however, it will almost certainly lose that agreement.

The second question is whether you can recover your lost wages. Again, the answer is "yes." If less than $3K, you can file suit in small claims court. The claim is breach of contract. Attach the written but unsigned contract to the small claims complaint and allege and prove (testify; show bank records) that you did not receive the disputed pay.

Next, you (and all other employees) have a claim for theft against this employer. He stole money that he was required to remit to the IRS. He is in even bigger trouble with the IRS. However, from your point of view, you have a theft claim and will need to file suit to recover the stolen money.

Finally, you should have a claim for wrongful discharge in violation of public policy. Ohio public policy protects employee questions about unpaid wages and unremitted payroll taxes.

The main downside to legal action may be the solvency of this emoployer. Does this employer (or perhaps its owners) have the means to pay the unpaid wages and back taxes?

Call me if you want to schedule a consultation.

Best regards,

Neil Klingshirn
330.665.5445

An employment

posted May 8, 2007 12:52 PM [EST]

Answer to overtime rate

The overtime rate for tipped employees

The overtime rate for tipped employees under Ohio and federal law is 1 1/2 times the employee's "regular rate" for that week.

The "regular rate" is an amount equal to the total wages, tips and other pay earned that week divided by the number of hours worked that week. Unless tips are the same each week, the Regular Rate will change each week.

posted Apr 27, 2007 3:58 PM [EST]

Answer to work environment harassment

Sexual preference harassment is not unlawful

It appears that you are being subjected to harassment that is severe or pervasive enough to amount to a hostile environment. It is less clear, however, whether the motivation behind the harassment is for an unlawful purpose.

If the harassers are harassing you because you are female, then the motivation to harass you (your gender) is unlawful. However, if the harassment is based on a sexual preference for the same gender, then it is probably not unlawful. This is a shortfall in the law. However, it is the current state of the law.

You raise a number of other issues that I have not addressed in this answer, such as how to deal with this situation. If you would like to schedule a consultation we can address those issues, as well as explore other legal remedies that might be available to you in this situation.

As a final matter, let me know if you do not want your name to appear in this question and answer, which will be on the site. I think I can remove your name from the site.

Best regards,

Neil.

posted Apr 19, 2007 1:05 PM [EST]

Answer to Job offered and accepted, then someone else was hired...

The doctrine of detrimental reliance

This is a tough situation. The legal questions are 1) whether you entered into a contract of employment; 2) if so, did the employer breach that agreement by giving the job to someone else; and 3) whether you relied to your detriment on the promise of a new job to quit your old job.

It appears that you did enter into an employment agreement. The company offered employment on specific terms, which you accepted. You therefore probably had an employment agreement.

The problem with this agreement is that it is probably at-will, meaning the employer could terminate the employment at any time, for any reason, or for no reason. Unless the contract had a specific term of employment or stated that you could only be terminated for cause, it was at will.

If your agreement was employment at-will, then the employer was free to terminate your employment even before it began. Therefore, although there was an employment agreement, it probably was not breached by terminating it.

Another way to attack a situation like this is with the doctrine of promissory estoppel. That is a doctrine that helps an employee who has not entered into an employment agreement but nonetheless acted in reasonable reliance on an employer's promise of a job. This doctrine is also known as the doctrine of detrimental reliance.

Unfortunately, I do not think that this doctrine will help you here. Again, the reason is that, absent a promise of employment for a specific term, such as a year or five years, the only thing that you could reasonably rely upon was the promise of at-will employment. As a result, I do not see a legal claim arising out of these facts.

That said, the facts and circumstances of your situation are unfair enough that you might be able to appeal to the sympathy of someone at the company. Write a letter similar to your Ask MEL question and ask the company to be responsible by covering the wages that you lost. It might result in a favorable decision.

Best regards,

Neil.

posted Apr 19, 2007 1:00 PM [EST]

Answer to Is A Non Compete Binding If There Is No Consideration

Consideration, yes; reasonable, probably not

If the company gave you access to it's database in exchange for the agreement, there is probably sufficient consideration to support the creation of an agreement. As a general rule, courts will not question the adequacy (amount) of consideration. As long as you received something in exchange for signing the agreement, there is probably enough consideration to form a contract.

The next question for a non-compete contract, however, is whether the restrictions in it go beyond those necessary to protect the company's legitimate business interest. In this case, it appears that they do go too far. If a court agrees, it can rewrite the agreement to allow you to engage in business activities that do not impair the company's interests in showing you its database.

The problem you face, however, is that you will be at risk of a lawsuit and can only reform/rewrite your agreement in the context of a lawsuit. In order to examine what that means for you, I suggest a consultation.

Best regards,

Neil Klingshirn

posted Apr 6, 2007 12:04 PM [EST]