Answers Posted By Neil Klingshirn

Answer to Wrongful termination

See a lawyer to evaluate your FMLA claim

It sounds like you have a valid FMLA claim. The FMLA prohibits employers from terminating your employment because you took FMLA leave.

One of Ohio's best FMLA attorney's , Gary Reeves, is in Columbus. I believe that his number is 614.228.2050. I recommend that you call him for a consultation. If you cannot reach him, call me and I should be able to help.

posted Oct 6, 2006 5:44 PM [EST]

Answer to Severance & Unemployment Benefits

Lump sum severance vs. salary continuation

Although you will be eligible for unemployment compensation benefits as a result of the closing, Ohio Department of Jobs and Family Services will reduce your weekly benefit dollar for dollar by any amounts that you receive during that particular week. This includes severance benefits paid as salary continuation. Therefore, if your employer continues your salary one week for each year that you were employed, you will probably lose your unemployment benefit for that week.

If your employer pays you the severance pay as a lump sum, however, you will receive it all at once. This means that you will receive it in one week. You may have your benefits reduced that week, but I do not believe that JFS will spread the lump sum amount out. Therefore, if you have some room for negotiation, you will enhance your unemployment benefit by receiving a lump sum instead of salary continuation.

Regards,

Neil.

posted Oct 3, 2006 5:09 PM [EST]

Answer to sexual harassment.... need to know what i can do

The harasser's newest victims may have a claim

The law requires your wife's employer to provide her and others with a work environment free from sexual harassment. It also encourages employers to have a complaint procedure and to investigate and remedy complaints. The law realizes that the employer cannot control every action of a bad employee but, once the employer learns that an the employee is sexually harassing others, it must take steps to prevent that harassment.

Think of it like a vicious dog law. The owner of the dog usually gets one warning. After that, the owner is liable for the harm caused by the dog.

Here, the owner was warned by your wife that this kid is harassing her. The employer took action to stop the harassment directed at your wife. Now it appears that the kid is doing it to others, but the owner has not responded to it.

At this point the law says that the girls at the store where the kid is harassing them may have a decent case. The owner is aware of the kid but doing nothing. Your wife, however, probably does not have a claim, since the kid is not harassing her.

Your wife can encourage the girls at the other store to stand up for their rights. However, if they choose not to complain about the guy, your wife will not be able to make a claim for them.

Regards,

Neil.

posted Sep 21, 2006 4:06 PM [EST]

Answer to wont send me my check after being threatened(physically)

Your final pay is your property

Once you earn your pay, it belongs to you. If the employer withholds it, you can go to small claims court and get it, plus a fee of $200, under Ohio Revised Code section 4113.15, semi-monthly payment of wages. Here is a link to an online code site: http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC. />
If the issue is whether you have to get it in person or they must send it to you, it is not worth the fight you will have to fight to make them come to you. I would go with several of my biggest friends or else call the cops and have them go with you to retrieve your property. If the employer fails to give you your property, it is probably a theft. In addition, if you have a good faith belief that you are in danger by going there to get it, you should ask the police to accompany you to protect you.

Regards,

Neil.

posted Sep 14, 2006 12:09 PM [EST]

Answer to Should I accept or decline

Wage loss compensation will make up for most of this loss

When it comes to working injured, your doctor will tell you to work within your limitations. That is excellent advise. If your employer does not have work within your limitations, it cannot keep you at work and therefore you will not get paid. However, you will be entitled to receive a workers's compensation benefit, called temporary total compensation, that will basically pay 2/3 of your wages.

In your case, it appears that your employer has work within your limitations, but it pays only 1/3 of what your main job pays. In that case, you can take that job and then apply to workers compensation for wage loss benefits. Wage loss compensation will pay 2/3 of the earnings that you lose as a result of taking the lower paying work.

posted Aug 10, 2006 1:40 PM [EST]

Answer to Mandatory Overtime for transcription

The overtime law requires payment for overtime hours. It does not prohibit overtime hours

The federal overtime law does not restrict the number of hours that an employer can require its employees to work. Theoretically, the overtime law allows an employer to schedule employees 24 hours a day, 7 days a week and then fire them when they can't keep up. No one does that of course, but the point is that the law gives employers the freedom to do it if they wanted to do it.

The overtime law does, however, require employers to pay a premium (time and a half) for overtime hours. This gives employers an incentive not to schedule overtime work. It is also desireable to employees who have the freedom to work more than 40 hours a week. Therefore, try checking with your boss to see if someone else could voluntarily pick up your overtime hours. Your type of work would lend itself to such flexibility.

Best regards,

Neil.

posted Aug 1, 2006 08:00 AM [EST]

Answer to Witness collaborate sex harrassment but HR says they didn't.

You have the right to be free from sexual harassment

Your main right is to be free from sexual harassment. If your employer fails to provide you such a work environment, then it may be liable for the harm you suffer as a result of the sexual harassment.

The law gives employers a defense against sexual harassment claims if they have a reasonable mechanism in place for stopping sexual harassment that they use to stop harassment once they learn of it. It sounds like your employer has such a policy, where it agrees to investigate your complaints. If your employer fails to use that process properly, however, it could lose the defense against your claim.

In your case, get written statements from each of your witnesses as to what happened. Have them include in their statement that they told HR what they are telling you in writing. Then see what happens. If the harassment stops, you have what the law wants you to have, which is a workplace free from harassment. If it continues, you may be able to pursue a claim for sexual harassment.

Regards,

Neil Klingshirn

posted Jul 19, 2006 11:12 AM [EST]

Answer to Can company sueing me recover money from me?

The company can sue for damages, but must prove it has damages

A non-compete lawsuit is essentially a suit for a breach of contract. The normal remedy for a breach of contract is an award of money damages. Non-compete cases are unique in that the remedy is more often than not an injunction, which is what is stopping you from continuing your competitive employment.

Importantly, unless the contract says otherwise, an injunction is not the exclusive remedy. The company can get an injunction and, if it proves that it lost business as a result of the contract breach, may also be able to recover the amount of its lost profits as damages.

The key, however, is that the company must prove that you actually caused it damage. If you did not, the case should be over.

Regards,

Neil Klingshirn.

posted Jun 6, 2006 12:38 PM [EST]

Answer to Evaluations being shared with others.

Review and evaluation law 101

The answer to your question requires some background on performance reviews and evaluations. These play a huge role in an individual's workplace success. Employers base promotion, demotions and terminations on reviews and evaluations, together with their cousin, the performance improvement plan (PIP).

Surprisingly, employees have few rights regarding the substance of a review. First, reviews and evaluations are the property of the employer. In Ohio, a private sector employee has no right even to see an evaluation, much less make a copy of it. Public sector employees can probably get their reviews with a public records request, but so can everyone else.

Fortunately, most employers allow employees to see their own personnel file. This is because doing so is a sound business practice, however, and not because the employer has to do so.

Second, you have little control over the contents of the review or evaluation. The employer does not have to change it if you object. At most, you might get an opportunity to write a rebuttal. You were therefore fortunate, in a sense, that the school district changed the review. Your problem is now with tracking down and stopping distribution of renegade copies of the old review.

You might be able to pursue a claim for defamation if untrue factual statements in the review harm your reputation, but only if the review is "over published" or written out of malice. Employers are generally "privileged" to get performance reviews wrong, even when it harms an employee's reputation. The privilege is a defense to a defamation suit. The idea is that employers should be able to communicate candidly with employees without worrying about getting sued. Otherwise, the employer would not be willing to let you know how it believes you could improve.

The employer loses loses this privilege if it communicates the negative review beyond a large "need to know" group or by writing it out of malice. I do not believe that over publication would occur if a member of the public asked for the records with a public records request. Happily that does not appear to be the case for you. Instead, it sounds like there may be both over publication to the new employee, as well as some evidence of malice (pay back for not going to the social event). To evaluate whether that is the case and advise you of your rights, we would need to schedule a consultation.

Returning to performance reviews generally, a third problem is the reluctance of a court to do anything about a false review until the false review results in a tangible harm, like termination, loss of a raise or denial of a bonus. That is, discrimination and retaliation laws protect employees only from "tangible, adverse employment actions." Generally, tangible means a loss of money. Therefore, unless the negative review has a direct result on pay, it is not probably not tangible enough to trigger court intervention. Courts do this to avoid being a "a super human resources department."

If the retaliation in your case is unlawful (at least one Ohio case says retaliation for refusing to donate to United Way is not unlawful; the same may be true for declining an invitation to a social event), it is probably not actionable in court, especially since the school district undid the false one.

If an employer is using a false review as a paper trail to justify a discharge down the road, the employee can use the fact of the false review to prove unlawful discriminatory or retaliatory motive. This is known as "pretext" proof.

So, you have limited rights to control what goes into the employer's review. In your case, your employer corrected the review, so the problem is not there. Instead, the problem is with the supervisor who may be harming your reputation by distributing the false review. For specific advise as to how to deal with him or her, feel free to call for a consultation.



posted Dec 8, 2005 09:04 AM [EST]

Answer to Business Already Existed On The Side

You do not have to sign the non-compete, but you could lose your job.

A non-competition agreement is just that, an agreement. You have to agree to it. Your employer cannot impose it on you.

However, unless you have an existing contract, you are probably an at-will employee. This means your employer can end your employment at any time, for any reason. This would include ending your employment for the reason that your employer does not want you to compete against it. Therefore, as a practical matter, your employer can effectively force you to choose between your job and your business.

Separately, even absent a non-compete or a requirement that you choose between your job or your business, Ohio law places a duty on an employee to be "faithful," which means the employee cannot compete against the employer while employed or otherwise divert the employer's business to his or her own business. While it does not appear that you have done this so far, once your employer enters into your specialty concrete table business, the potential for a conflict with the "faithful employee" rule arises. Therefore, if you want to continue your own business, continued employment with your current employer may become very difficult.

Regards,

Neil.


posted Oct 27, 2005 10:20 AM [EST]