Answers Posted By Neil Klingshirn

Answer to Personal Time Off for Exempt employee

Docking salary for sick time

The issue here is whether your spouse is exempt from receiving overtime. To be exempt, she must be paid on a salaried basis.

An employer can lose an employee's exempt status (and therefore have to pay her overtime) if it does not pay her on a salaried basis. Deducting pay for sick time may not be on a salaried basis unless for full days and done pursuant to a sick time policy. Deductions of less than full days for being sick is not consistent with pay on a salaried basis. Depending on the compensatory time arrangement , that may be violating the salaried basis as well.

None of this matters much unless your spouse works more than 40 hours in a week. If she does, however, and has worked a substantail amount of overtime, you should consult an attorney or file a claim with the Department of Labor.

Regards,

Neil.

posted Mar 29, 2007 2:39 PM [EST]

Answer to 3 weeks and

You probably do not have a claim

It appears that your employer made a remarkably dumb decision by retaining a worker with less experience who does not work. However, you do not have a claim against an employer because the employer is stupid, even if it harms your employment. Take your good work ethic and record and benefit one of the vast majority of companies that appreciates hard work and experience.

Best regards,

Neil Klingshirn.

posted Mar 18, 2007 10:20 AM [EST]

Answer to Retalitation Claim

Your claim depends on the nature of your complaint

A retaliation claim requires you to prove:

1. That you engaged in protected conduct;

2. That you suffered an adverse employment action; and

3. That the adverse employment action is causally related to the protected conduct.

In your case you suffered an adverse action. It is hard to tell whether you can prove that the adverse action was caused by your complaint, but let's assume that it was. This narrows the issue down to whether your complaint was protected conduct or not.

Complaints are not, by themselves, protected by law from retaliation. Instead, the complaint must be about something that is itself protected by law. The most common examples are complaints to management or the authorities about safety, health or environmental violations, or complaints about discrimination or harassment of yourself. For harassment complaints to be protected conduct, the harassment of which you complain must be based on sex, race, age or other protected classification.

In short, if you have a good faith belief that the conduct of your boss about which you complained is unlawful, you probably engaged in protected conduct and would therefore have a retaliation claim. If not, your discharge may not be unlawful.

posted Mar 10, 2007 3:24 PM [EST]

Answer to Training count as hours worked?

Training time is compensable unless voluntary and not related to your job

Training time counts as hours worked for federal minimum wage and overtime purposes unless the training time is voluntary and on the employee's own time and the training is not related to the employee's job. In your case, it sounds like your training time should be hours worked.

Your employer does not necessarily have to pay you your full wage for training time. The employer must pay the minimum wage for all hours worked in a week. If your base wage is high enough, your employer might comply with the minimum wage law if your total pay for a week divided by all hours worked for the week (including training hours) was equal to or greater than the minimum wage.

Your employer probably can require you to pay for required schooling in much the same way that an employer can require an accounting applicant to have an accounting degree (which the applicant obtained at her own expense). If the employer requires you to use your time to get the training, though, it should, in your case, treat those hours as hours worked.

posted Mar 6, 2007 4:21 PM [EST]

Answer to non-compete agreement

Get the promise in writing.

A non-competition agreement is just that: an agreement. It is often part of an employment agreement. Therefore, ask your new employer to draw up an agreement that covers the essential terms of your employment. They would include:

1. Job title and duties.
2. Initial compensation.
3. Entitlement to benefits.
4. Term of employment; and
5. Any restrictive promises, like a covenant not to compete.

In your case, you would want to make sure that number 5 is not present and that number 4 is for a reasonable length of time, like a year.

Most employers, however, will not agree to continue your employment for a specific period of time. In that case, you are at risk that your employer will change your terms and conditions at any time by, for example, requiring a non-compete. Therefore, if this is an unacceptable risk, do not accept that employment.

A final strategy, if you employer refuses to guarantee a specific length of employment, is to get a promise that your employment will not be subject to a non-competition agreement. Make sure your condition your acceptance of employment on your employer's agreement not to require a non-compete and get it in writing. In that event, if your employer changes its mind and asks for a non-compete, you will have a basis for a breach of contract claim.

Contact me if you would like assistance drafting or reviewing contract language.

Best regards,

Neil Klingshirn

posted Mar 4, 2007 11:55 AM [EST]

Answer to Stop Payment on a Paycheck

Complain to the DOL and file a small claims action

It is not illegal to put a stop payment on a paycheck for money owed. Illegal, as I use the term, refers to a crime. While perhaps it should be a crime to do that, in the State of Ohio, it is not.

Instead, the law provides several remedies for an employee in your situation. First, you can complain to the U.S. Department of Labor's Wage and Hour Division that the employer failed to pay the minimum wage. You can complain to the National Labor Relations' Board (NLRB), which is also a federal governmental agency, that the employer against the employees for engaging in "concerted action." The NLRB will probably treat such retaliation as an "unfair labor practice charge."

Third, you can go to small claims and file suit for a money judgment. Search for answers for "4113.15" on this site and you will find Ohio's wage payment statute. It includes penalties. You should also be able to recover the overdraft charges resulting from the bounced paycheck.

Under the circumstances that you describe, it is likely that a court will find in your favor.

Regards,

Neil.

posted Feb 19, 2007 12:41 PM [EST]

Answer to Do I have a sexual harassment case even though I resigned ?

You may have a claim for interference with your employment

The claim that you may not be seeing here is one for interference with prospective employment. A prior employer cannot block your employment with a competitor by threatening to sue on a non-existent non-compete agreement. If you can prove that you would have been offered a job but for that threat, consider a consultation about pursuing the wages that you lost from that job.

We can also talk about the sexually harassing conduct that you endured during your employment. The fact that you endured it does not prevent you from recovering for it, especially because it was coming from your manager. You may even have a claim directly against the manager. Under Ohio law, if you quit recently and the interference was within the last year, you still have time to pursue both types of claims.

Regards,

Neil Klingshirn

If you would like

posted Feb 8, 2007 10:47 AM [EST]

Answer to Should I file an appeal and file with State personnel review board?

Appeal your unemployment and exhaust any appeal to the State Board

You should always appeal any denial of an unemployment claim because you are entitled to a hearing on the denial of a claim. You can get a copy of your unemployment file beforehand to discover what your employer is claiming as the grounds for your discharge and then prepare a defense to that claim.

You may have a right to appeal to the State Personnel Board of Review (SPBR) if you are a public employee in the classified civil service. If so, and if you believe that you were terminated without just cause, you should probably appeal your termination to SPBR. Normally you have a very short period of time (say a week to 30 days) to make the appeal, so do not delay.

Due to the lack of detail in your question I cannot give you a more specific answer and caution you that this is not legal advise. If you would like to get specific legal advise, please call Jenny at 330.665.5445, ext. 0 to schedule a consultation (see policy below).

Best regards,

Neil Klingshirn

posted Jan 30, 2007 10:35 AM [EST]

Answer to when does the employer have the right to deny union repesentation.

Your right to a union representative

An employer has the right to discipline employees for performance problems and rule violations. The fact that the employees are represented by a union does not change that right. However, if the union negotiated a procedure for discipline that allows the union to be involved in the discipline, then you need to follow the procedure in order not to violate the union agreement.

In other words, the answer to your question is within the collective bargaining agreement. If you do not have a collective bargaining agreement, then you probably do not have an obligation to wait until the union representative shows up.

Regards,

Neil.

posted Jan 29, 2007 4:28 PM [EST]

Answer to Retaliation

What was the gist of the complaint?

Whether you have a claim depends in large part on the substance of the complaint that you made about your manager. If you complained about his sexually harassing or discriminatory behavior, your complaint was probably protected from retaliation, meaning that you may have a claim against the manager and company if you can prove that the conduct was the cause for the termination.

If the complaint was that your manager was a poor boss, smelled bad, was lazy or even unfair, the complaint was probably not protected since that conduct (smelling bad, being unfair) is not against the law.

I am willing to discuss your case through a telephone consultation if you like. If you would like to schedule one, call Jenny at 330.665.5445.

Best regards,

Neil.

posted Jan 16, 2007 09:27 AM [EST]