Answers Posted By Neil Klingshirn

Answer to Former employer refuses to provide me a copy of non-compete.

Request a copy of you non-compete via certified mail

Write to your former employer and ask them for a copy of your non-compete agreement. State that your understanding of the agreement is that it will not interfere with potential employment that you are considering, if that is true. Ask them to send you the agreement so that you can verify that this is the case. Send the letter via certified mail.

If your employer refuses to send you a copy, it can hardly go to court to enforce it against you, where it will have to attach a copy of the agreement to its complaint filed to start the lawsuit. Also, as a practical matter, if the employer cannot be bothered to send you a copy of the non-compete, I doubt that it will spend the time and money necessary to enforce it in court.

Hopefully you will not end up in court and will not have to contact a lawyer.

Best,

Neil Klingshirn

posted Oct 26, 2005 10:29 AM [EST]

Answer to Pending Termination

This may be retaliation if the timing is right

If you have fallen out of favor because you raised safety, overtime and other legal issues affecting employees, you may have a claim of retaliation. The key is the timing. If you were targeted for termination shortly after engaging in protected conduct (raising safety, overtime or other legal issue), then the timing will suggest that the protected conduct caused the termination decision.

If you would like to discuss the particular facts of your situation, call my office to schedule a consultation. Dial extension 0 for Julie, our office manager, at 330.665.5445.

Best regards,

Neil Klingshirn

posted Oct 17, 2005 09:30 AM [EST]

Answer to non-compete documentation

You should ask your employer for a copy of your non-compete

The physical non-compete agreement is your employer's property. It is not available in a public place, so the only way to get a copy is to ask for one from your employer.

There is little downside to asking your employer for a copy. You may discover that it does not have one. If it does have a valid copy, you should know that before you engage in competitive work.

If the employer falsified a copy of a non-compete or forged your name, it is running a huge risk. A separate cause of action exists for "spoliation," which refers to the alteration or destruction of evidence that may be used in litigation. When I see employers do such things, it invariably "makes my day." Also, if your employer is going to fake a non-compete in response to your request for one, it will almost certainly do the same thing if it intends to file suit.

Best regards,

Neil Klingshirn

posted Oct 11, 2005 2:15 PM [EST]

Answer to non-compete distance

"As the crow flies" is the safest approach

Most employers would argue that that the 20 mile limitation is drawn as a straight line. This would be the most conservative approach to take. With the prevelance of precise mileage on MapQuest and Google Maps, however, you can argue that the employer intended the distance to be driving distance. However, with every legal argument comes the potential for a lawsuit, so this would expose you a bit more to the possibility of a suit.

Best,

Neil.

posted Oct 11, 2005 2:10 PM [EST]

Answer to Is this retaliation or discrimination?

This looks like discrimination, but retaliation tu

Retaliation and discrimination are two separate claims. If the company laid you off in order to hire a male, then you would have a claim for discrimination. Factors that matter for the success of that claim include whether the male filled the position vacated by your termination and whether factors other than sex could explain the employer's actions.

In order to have a retaliation claim, however, the complaints that you made about a co-worker had to involve so-called "protected conduct." If you complained about a co-worker's sexually harassing behavior, for example, your conduct (the complaint) is protected. If you complained about the way the co-worker did his job, however, the complaint is not protected.

Assuming that your complaint amounted to protected conduct, then the question is whether your termination was caused by the complaint. Factors considered by courts in deciding that question include direct evidence of retaliation, such as a statement by your boss that "complainers are not tolerated", as well as circumstantial evidence, such as timing. If you were fired within days of the complaint, for instance, the timing would point to retaliation.

Another issue here is whether the stated reason for your termination, lack of work, is a "pretext," meaning that it is not true but was stated to cover up the real reason. If you can prove that the company did not lack work, as would be the case if it hired a male to do the work, then a jury can infer unlawful discriminatory or retaliatory motive from the employer's effort to cover it up with a false reason.

If you would like to explore the viability of your claims, as well as the options, costs and benefits of pursuing them, call for a consultation at 330.665.5445, ext. 0, which will connect you with our Office Manager.

Best,

Neil Klingshirn

posted Oct 11, 2005 08:40 AM [EST]

Answer to Non-Disclosure/Non-Compete Contract

Do not sign the non-compete without knowing what could happen

The good news is that you are asking whether to sign a non-compete before you actually sign it. The bad news is that your employer wants you to sign a non-compete.

Nothing in the law is certain, but when it comes to non-competes, the best advise is "do not sign it." Why? Because signing it can wreck your career.

Begin by reading the non-compete carefully. Assume that a court will enforce it exactly as written. Chances are that a court would do so. Then imagine every possible next job that you might want to pursue and figure out which ones the non-competition agreement would block.

The results can be pretty frightening. In one case an employer fired a long service, successful salesman without cause. The employer fired his fiance, too, and then marched to court to prevent the salesman from working for any competitor within driving distance. The salesman was in a highly specialized field, so he chosen line of work was blocked.

Another client brought his book of business to his employer, who made him sign a non-compete and then fired him. Absent a court battle, he was finished in his field.

The conventional wisdom is that courts do not enforce non-competes. That is not entirely correct. Perhaps more important, once the employer files suit, it will cost the employee thousands and even tens of thousands of dollars. In many cases, the employee (who may not be working) simply cannot afford the cost of challenging the non-compete.

Therefore, do not sign this non-competitionn agreement unless you have adequate, other options for your career. For example, you need to be able to find work in your area using your existing skills. If the non-compete would prevent that, go find the new job now. Another option is to bargain for severance pay during the non-competition period.

If the choice is to sign it or get fired, consider calling for a consultation to explore your options in more detail.

Best regards,

Neil Klingshirn

posted Oct 7, 2005 08:53 AM [EST]

Answer to Employer Smoking Ban

An employer can ban smoking at work, outside work and even away from work.

In Ohio and under the Americans with Disabilities Act, an addiction to nicotine is not a "disability." Therefore, an Ohio employer can discriminate against smokers without violating applicable laws. The discrimination can take the form of prohibiting smoking at work, on company premises and even away from work. For example, an Ohio employer could lawfully refuse to hire applicants who smoke.

posted Sep 26, 2005 09:11 AM [EST]

Answer to maternity leave info needed for ohio and michigan

Maternity leave is different from leave for pregnancy complications

The federal FMLA and Ohio's Civil Rights rules provide protection for employees who need time away from work for pregnancy related complications and child birth. The FMLA allows leave for a serious health condition and for child birth. You are thus entitled to 12 weeks of leave for pregnancy related complications or child birth or both, but not more than a total of 12 weeks under federal law.

Ohio's Administrative Code, which may soon change, does not currently require leave directly, but instead defines "sex discrimination" as occurring when an employer denies an employee leave, as follows::

* * *

termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available,

OAC � 4112-5-05(2).

Ohio's Code thus does not provide a leave for pregnancy related conditions, but protection from firing if you take a leave for maternity. The amount of leave is that which is "sufficient." Theoretically, a sufficient amount of time could be more than the 12 weeks required by the FMLA.

This rule is changing, however. The Ohio Civil Rights Commission has proposed a new rule that will allow for 12 weeks of maternity leave or pregnancy related complications, as long as the employee's phsycian recommends the leave. This is a controversial rule change, however, and it is not clear whether the Ohio General Assembly will change it or not. Check My Employment Blogger's blog posts for updates on the OCRC's rule change.

If the new rule goes into effect, it would only allow for 12 weeks of medical leave. Thus, in your case, it might actually limit the amount of leave that you can take to 12 weeks.

Do not rely on this answer to exercise your legal rights. This area is changing. I suggest that you discuss your maternity plans with your employer ahead of time. If you feel that your employer is not providing sufficient leave, you may want to contact me. It is much easier to fend off a termination than it is to get rehired.

Best,

Neil.

posted Sep 16, 2005 08:38 AM [EST]

Answer to Broken-Footed Worker being pressured to stay home

An employer cannot force you to do a job that hurts you

Your employer is being a pig, but all is not lost.

A recent appellate court decision out of Franklin County held that Honda of America violated an employee's rights by firing her for refusing to work in an environment that it knew was harmful to her. The court held in that case that firing an employee who is at special risk of injury for refusing to do the job that would injur her violated established public policy in Ohio requiring a safe workplace.

You have other issues going on with this employer, such as its apparent effort to make you quit. Resist quitting, stopping short of hurting yourself. You should also consider taking steps to protest the employer's conduct and placing it on notice that it is violating your rights. This might make the conduct stop and, failing that, will lay the foundation for a punitive damages claim once it continues.

Do not, however, treat or accept this message as legal advise. Please read the disclaimer on this site (especially the part about being foolish to rely on internet advise). You need a particularized strategy to protect your rights in this situation, since you are still employed and are at risk of getting hurt.

If you would like a consultation, contact me via email, Neil@fklaborlaw.com, or call me at 330.665.5445, ext. 2. My consultation fee is $200.00.

Best regards,

Neil.

posted Sep 14, 2005 1:16 PM [EST]

Answer to Clocking out for restroom use

Your employer cannot make you clock out unless you have 30 minutes and freedom to leave.

Federal and Ohio wage and hour laws require your employer to pay you the minimum wage and overtime for all hours worked. Your employer cannot count break times as hours "not worked" unless you have at least 30 minutes and the freedom to go where you want during the break.

Point this out to your employer in a very diplomatic way. You are protected from retaliation by state and federal law for asking to have your pay rights respected.

Best,

Neil Klingshirn

posted Jul 27, 2005 9:56 PM [EST]

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Neil Klingshirn

Neil Klingshirn
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Independence, OH
Phone: 216-382-2500