Answers Posted By Neil Klingshirn

Answer to Duration of time of a non compete agreement.

Duration of a non-compete

At one time a year or two ago a researched the length of time that Ohio courts would enforce non-competes. While every case is different, and the length of the non-compete must be related to the particular circumstances, I found that courts rarely questioned a two year non-compete and frequently enforced a three year non-compete.

Therefore, there is no hard and fast rule. While one year is more enforceable than two years, a court may find two years enforceable as well. It depends on the nature of the interest that the employer is trying to protect and other factors.

Best regards,

Neil.

posted Jan 15, 2007 10:11 AM [EST]

Answer to I WORK 44 HOURS STRAIGHT TIME EVERY WEEK.,WHY?

Salesmen, partsmen and mechanics selling farm equipment are exempt from federal overtime

Your employer's practice of not paying overtime for the first four hours of overtime is probably lawful. Federal law requires payment of overtime for hours worked in excess of 40 in a week. That law has many exemptions. One of the exemptions, found in 29 USC section 213(b)(10)(A), allows employers not to pay overtime to "any salesman, partsman, or mechanic primarily engaged in selling or serviceing automobiles, trucks or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to the ultimate consumer."

Regards,

Neil.



posted Jan 9, 2007 1:25 PM [EST]

Answer to MINIMUM WAGE FOR SMALL BUSINESSES

Small businesses must pay the minimum wage

Ohio's new minimum wage applies to small employers. If the employer is really small, with less than $250K in gross revenues, it is allowed to pay the federal minimum wage instead of the higher Ohio minimum wage. However, it must still pay a minimum wage.

Paste this link in your browser for more information on the new Ohio minimum wage:

http://www.myemploymentlawyer.com/Ohio-minimum-wage-law-amendment.htm

Regards,

Neil.


posted Jan 8, 2007 09:07 AM [EST]

Answer to defamation?

Try Badreferences.com

Badreferences.com is a service that calls your former employer and asks for a reference. I believe that they use a court reporter to avoid disputes as to the authenticity of the reference. I have also heard good things about this service.

Once you know what reference your former employer is providing, it will be possible to provide a suggestion for dealing with it.

Regards,

Neil.

posted Jan 5, 2007 4:43 PM [EST]

Answer to calculating overtime

Overtime is any time worked over 40 hours in a week

Overtime law says that you are entitled to overtime pay for the time worked in excess of 40 hours in a week. There is no minimum amount of time each day or week that you must work overtime.

If you only worked five minutes of overtime in a week, an employer might say that it does not keep track of time in less than .1 hour increments. However, if you are working 1/4 hours or more of overtime, it should count. Further, if you work 1/4 hours of overtime for five nights, you worked 1.25 hours of overtime.

If you cannot work this out with your employer, you might consider a complaint to the U.S. Department of Labor.

Regards,

Neil.

posted Jan 5, 2007 4:39 PM [EST]

Answer to Ohios min wage law

You should follow your company's time keeping procedures

The new Ohio minimum wage law requires an employer to keep records of the hours worked and pay earned by each employee for each day. The law does not say how the employer must obtain that information. Implementing legislation clarifies that the employer can decide on its own how best to gather that information. The only rule is that the employer gather it.

Punching a time clock is a classic method of recording hours worked. The only problem is that it might not record all of the hours, especially if you work at home, on the road or in locations where you do not have access to a time clock. In those cases keep an accurate record of your time. Making entries in a computer or paper calendar would be sufficient. However, if you are at work and your employer says to punch the time clock, I suggest that you punch the time clock.

posted Jan 3, 2007 10:18 AM [EST]

Answer to Retaliation?

Retaliatory discharge

A retaliatory discharge requires:
1. you engaging in protected conduct;
2. your employer terminating your employment; and
3. a causal connection between your protected conduct and discharge.

Whether or not your termination and your complaint to management are causally connected is a factual issue that will ultimately be decided by a jury. On the face of it, though, the timing is highly suspicious. If your employer replaces you or you can otherwise prove that the downsizing was just an excuse to get rid of you, you may be able to make a causal connection.

The other issue is whether you engaged in protected conduct. Calling an employee "worthless" is probably not unlawful, so a complaint about that comment is probably not protected. Calling an employee a "crackhead" may be defamatory and therefore actionable, such that your complaint to management might be protected. Reporting a concern with a sexually hostile environment and, perhaps, a concern with a manager's drinking habits, may qualify as protected conduct. However, I would need to know the specifics of each of the complaints.

If you believe that your discharge may in fact be unlawful, I recommend that you consult with an attorney quickly. The time limit for bringing some types of complaints is very short, such as 90 or even 30 days.

Regards,

Neil.

I

posted Jan 2, 2007 1:07 PM [EST]

Answer to out of state employer

If you earn your wage in Ohio, the Ohio minimum wage applies

You are entitled to receive the new Ohio minimum wage if you work in Ohio. Your employer does not escape Ohio's minimum wage merely by being based in another state.

posted Jan 2, 2007 12:58 PM [EST]

Answer to statue of ohio's non-compete clause for prof. employment

Ohio non-compete law is made by judges

Ohio does not have a statutory law on non-competition agreements. Instead, Ohio's law is made by judges. The non-compete FAQ article is based on Ohio non-compete law. Ann Lugbill answered an Ask MEL question with some citations to the Ohio cases that explain Ohio non-compete law. You can find her answer at http://www.myemploymentlawyer.com/mel/answer.php3?answer_id=1644 />
You may have to copy and paste that link in your browser for it to work.

Once you have the case citation, you should be able to find the case itself by going go http://www.clelaw.lib.oh.us/public/DECISION/Oh_sup.htm or try
http://www.findlaw.com/11stategov/oh/ohca.html

Good luck,

Neil Klingshirn

Best regards,

Neil.

posted Dec 30, 2006 1:39 PM [EST]

Answer to Is this Wrongful Discharge

You may be able to sue for retaliation

You were well within your rights to ask for an accurate paycheck. You are also allowed to place your employer on notice of your intent to take enforcement action to collect your pay. Although the DOL may not be able to force your employer to pay more than the minimum wage in any one week, if you in good faith believed that the DOL had jurisdiction over your pay issue, you were entitled to place your employer on notice.

Separately, Ohio law requires an employer to timely pay wages. Failure to include part of your pay could violate this law. Hence, you were within your rights under state law as well to ask for your pay.

If you cannot find new, comparable employment and thereby lose wages, you may have a claim for retaliation. Call me at 330.665.5445 if you would like to schedule a consultation to explore pursuing this claim. We charge $200. for the consultation. Another route for you to pursue is through the DOL. Even though you did not go there with your initial complaint of unpaid wages, you could still go there with your complaint of retaliation for asking about those wages.

As for the EEOC, it will be able to help you only if the termination was motivated by your race, age or other protected status. While a complaint of racism appears to have started the ball rolling towards your termination, it looks like your complaints are what led to your employment demise.

Best regards,

Neil Klingshirn

posted Dec 22, 2006 12:25 PM [EST]