Answers Posted By Neil Klingshirn

Answer to Operating Agreement Non-compete clause

Non-compete issues are fact driven

In order to advise you in exiting your current employment we need to know:

1. the language of the non-competition agreement;
2. the business of your current employer to see what legitimate interest, if any, it has in enforcing a non-compete and
3. the nature of your next employment.

With that information, we can help. However, that is more than we can handle over the Ask MEL forum. Therefore, I suggest a consultation. We offer a consultation for $200. Please call Jenny at 330.665.5445, ext. 0 to get on my calendar if you would like a consultation.

Best regards,

Neil.

posted Dec 15, 2006 11:35 AM [EST]

Answer to Ohio Minimium wage under $250,000.

Ohio minimum wage for small employers (less than $250,000)

Emploeyrs grossing less than $250K a year are covered by the new Ohio minimum wage law. However, you can pay the federal minimum wage (now $5.15 an hour but expected to increase) instead of the Ohio minimum wage (now $6.85 but adjusted for inflation). You should be very careful before you rely on an exemption from the minimum wage that is contained in a state law, because the new minimum wage is required by Ohio's Constitution and a state law cannot override the Constitution.

A fuller explanation and answer is at http://www.myemploymentlawyer.com/serendipity/archives/24-I-am-a-small-business-with-less-then-250,000.00-a-year-gross-income.-How-does-the-new-Ohio-minimium-wage-affect-me.html

posted Dec 14, 2006 3:42 PM [EST]

Answer to OT and PTO / Vacation labor regulations

You may be entitled to overtime pay

Federal regulations exempt "computer employees" from overtime payment if such employees are "paid on a salaried basis" at least $455 per week and perform duties that are exempt. Charging for half days off or PTO may violate the payment on a salaried basis requirement, although I need to know more about how your employer pays vacation and PTO. In addition, the salaried basis test may be met if you are paid more than $27.65 an hour.

However, your description of your duties suggests that your duties are not exempt. Specifically, 29 CFR 541.400 states that the computer employee exemption applies to:

a computer employee whose primary duty consists of:
(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
(2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
(3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
(4) A combination of the aforementioned duties, the performance of which requires the same level of skills.

However the exemption does not apply (29 CFR section 541.401) to the:

Computer manufacture and repair.
The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in section 541.400(b), are also not exempt computer professionals.

So, if you believe that you are not paid a salary or wage that is high enough, are not paid on a salary basis or do not perform exempt duties, give me a call to discuss what would be involved in pursuing an overtime claim.

Best regards,

Neil Klingshirn
330.665.5445

posted Dec 13, 2006 2:18 PM [EST]

Answer to NEW OHIO WAGE

Answers on Ohio's new minimum wage law

I prepared an article on Ohio's new minimum wage law. It is at http://www.myemploymentlawyer.com/Ohio-minimum-wage-law-amendment.htm.
It also has links to my blog entries answer reader questions about the new minimum wage. I am not clear on your specific question, but you may be able to find your answer in the article or blog posts. If your question is whether tipped employees or businesses with less than $250,000 are year in gross revenues are exempt, the answer is "not really." Issue 2 exempts employers with less than $250,000 in gross revenues from its $6.85 minimum wage, but requires payment of the federal minimum wage, if higher. Issue 2 also allows employers to pay less than the minimum wage to tipped employees, but only if tips make up enough to reach the minimum wage.

Be aware that HB 690, implementing legislation, could be passed in the next few days. The problem with this legislation is that it rolls back large portions of the new minimum wage law. While that might be good if you are an employer, it is still bad, since implementing legislation cannot roll back a constitutional requirement. In other words, the exemptions and roll backs will not be effective. Therefore, if HB 690 passes, there will be a lot of confusion over who is covered. Come back to MEL's blog in a week or so and I should have a better analysis posted at that time.

posted Dec 12, 2006 2:21 PM [EST]

Answer to hired @ salary, paid hourly

Time docked from salary may entitle you to overtime

An employer is allowed to change your compensation and pay package. However, if your employer makes changes that dock your salary for less than full day's absenses, you may be entitled to overtime.

That is, if you are currently working more than 40 hours a week but not receiving overtime, you may have a claim. In order to qualify for an exemption from overtime for you, your employer must pay you on a "salary basis." Docking your pay for missed time is not salary based pay. Rather, it is really hourly based pay. If you are not paid on a salary basis, you are not exempt from overtime and may have a claim.

posted Dec 12, 2006 10:51 AM [EST]

Answer to Work dates vs. Payroll check date question

Ohio's new minimum wage law

If the 1/8/7 payroll covers only the period ending 12/30/6, then the 1/8/7 pay need not be calculated at the new minimum wage rate. That is, the wage rate applies to hours worked after 1/1/7 and not to payroll paid after that date for hours worked before that date.

Regards,

Neil Klingshirn.

posted Dec 4, 2006 2:23 PM [EST]

Answer to Can I get my vacation pay?

Vacation pay at termination depends on your employer's rules

An Ohio employer is not required by law to give its employees any vacation, holiday or other paid time off. Accordingly, when an employer provides paid vacation, it can establish the rules under which employees receive that benefit. The rules may be stated in a policy or handbook. If not, courts may consider pay documentation and the employer's past practice to see whether the employer pays unused vacation at the termination of employment.

In your case, your pay stub is good evidence that you had 48 hours of vacation at the time of your resignation. However, it does not answer whether you were entitled to the vacation pay when you resigned. If the employer's "use it or lose it" practice applies to resignations, you may not be entitled to it.

Since there is no employee handbook, I believe that the employer's practice with other employees will be the key. If the employer routinely paid other employees for accrued but unused vacation when they left, you should have enough evidence to file a small claims action.

The following is for legal researchers who want to dig further into this issue. It is a list of cases enforcing employer vacation policies cited by the court in Sexton v. Oak Ridge Treatment Ctr. Acquisition Corp., 2006 Ohio 3852, P13-P14 (Ohio Ct. App. 2006)

Ammons v. Akromold, Inc. (May 20, 1998), Summit App. No. 18641, 1998 Ohio App. LEXIS 2202; Winters-Jones v. Fifth Third Bank (May 27, 1999), Cuyahoga App. No. 75582, 1999 Ohio App. LEXIS 2410 (holding that former employee was not entitled to payment for vacation time accrued but not used at the time she left her employment where the company's policy manual clearly stated that vacation time must be used during the employee's employment or is lost); Bologa v. I.H.S., Inc. (Mar. 17, 1999), Summit App. No. 19218, 1999 Ohio App. LEXIS 1107 (determining employee was not entitled to unused vacation pay at termination where employer's vacation policy stated that no paid time off would be paid out at termination). See also, Van Barg v. Dixon Ticonderoga Co., 152 Ohio App.3d 668, 2003 Ohio 2531, 789 N.E.2d 727 (holding employer was entitled to implement "use it or lose it" vacation policy prospectively, but could not apply the policy retroactively to divest terminated employee's vacation time accrued before the policy went into effect); Spry v. Mullinax Ford (Nov. 13, 2000), Stark App. No. 2000CA00118, 2000 Ohio App. LEXIS 5265 (enforcing written company policy requiring employee's continued employment on anniversary date to be entitled to payment for accrued vacation time). Compare, Braucher v. Allied Truck Parts Co., Stark App. No. 2002CA00278, 2003 Ohio 1698 (holding employee was entitled to accrued vacation pay upon termination where employee handbook expressly provided that "Eligible employees will be paid for earned but unused vacation upon termination".

In addition Although employee handbooks and policy manuals are not in and of themselves contracts of employment, they may define the terms and conditions of an at-will employment relationship if the employer and employee manifest an intention to be bound by them. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104, 19 Ohio B. 261, 483 N.E.2d 150; Finsterwald-Maiden, supra; Sowards v. Norbar, Inc. (1992), 78 Ohio App.3d 545, 549, 605 N.E.2d 468; Winters-Jones, supra.

posted Nov 30, 2006 09:14 AM [EST]

Answer to Back pay/no pay

You need to file suit to collect your wages

You should probably file suit to collect your wages. It appears that your employer will not dispute that it owes you the money. Therefore, the only issue for trial will be how much it owes you. The case should proceed fairly fast and should end with you obtaining a judgment for the amount of unpaid wages, interest on the unpaid wages at about 6% and possible penalties for late payment under Ohio revised code section 4113.15. Search MEL's answers for "4113.15" to find more about that code section. It allows you to get a penalty of up to $200 per violation (i.e, each failure to pay).

The harder part it appears will be collecting the judgment. It sounds like your former employer does not have the money to pay it. This means you should act fast, since the ship may be sinking, and keep realistic expectations about being able to collect.

Consider consulting an attorney to assist you with this process. Some collections attorneys will work on a percentage of what they collect. You may also be able to negotiate a payment of a reduced amount in exchange for agreeing not to sue. If any part of the negotiated payment is deferred (i.e., not paid immediately), ask for a "cognovit" note. Call me if you get that far and need to know more about cognovit notes.

Regards,

Neil Klingshirn.



posted Nov 17, 2006 4:26 PM [EST]

Answer to Time clock hours don't count

You and your co-workers appear to have valid overtime claims

The overtime law requires your employer to do 2 things:

1. Pay you for all hours worked over 40 each week; and

2. Keep an accurate record of all of your hours worked.

It sounds like your employer is violating both rules.

If you can prove that your employer's hours are not correct, which you would do simply by keeping your own notes of the hours you work, then the log of hours that you work is considered the correct reocord of your hours worked for an overtime claim. The same is true for your co-workers.

Call me or email me at Neil@fklaborlaw.com if you want to discuss pursuing this. In particular, how long has your employer been cheating you, how many hours each week, for how many employees and at what rate of pay?

I can give you a good idea of what you could recover if you provide that information.

Regards,

Neil.

posted Nov 14, 2006 10:00 AM [EST]

Answer to Withholding Two Weeks Pay

The company must pay you promptly

An employer in Ohio must obey a prompt payment law. Here is a good answer that contains a reference to the law http://www.myemploymentlawyer.com/mel/answer.php3?answer_id=263 />
I believe that the law does not allow the employer to hold on to your pay. Therefore, ask politely for your pay and if the employer refuses, you may have a claim for every pay day that the employer pays late.

Regards,

Neil.

posted Oct 30, 2006 08:25 AM [EST]