Answers Posted By Neil Klingshirn

Answer to Are we in big trouble?

You are a defendant in a lawsuit, so it sounds like trouble to me.

Dear J:

If you have been served with papers, you need to get an attorney who is not only familiar with non-compete law, but who is also passionate about representing individuals (as opposed to companies). If you have not heard from Ann Lugbill yet (heavy hitter in Cincinatti), call her. You will find her phone number in the Find Lawyers directory on this site. If she is not able to jump in and help you, she will be able to tell you who is.

Best regards,

Neil Klingshirn.

posted Jul 27, 2005 9:50 PM [EST]

Answer to Non Compete after a company leaves a market

You are probably safe competing in a market that your employer abandoned, but....

Non-competes take two levels of analyses. First, read the contract that your employer made you sign. If it prohibits competition in a market that it was in before it abandoned it, then you have a contractual obligation not to compete. If you violate that obligation, you are subject to suit for breach of contract.

The second level of analysis is whether the court will enforce that obligation in the employer's suit. That will turn on whether the employer still has a protectible business interest in keeping you from competing against it. Since your employer abandoned that market, it is hard to see how it would have any continuing interest in protecting that market. However, this level of analysis is very fact driven. That is, every case is different. Therefore, it is not possible to say whether you would be able to compete or not.

My suggestion is that you approach the employer with your proposal to go into that market. The employer will have one of three responses. First, your employer might say "okay." In that case, wrap up your employment responsibly and go off and seek your fortune.

Second, your employer might point to a legitimate business interest that it needs to protect. In that case, the non-compete may be enforceable.

The third answer might be that "I can't afford to lose you." This is not a legitimate reason for enforcing a non-compete. However, you would probably be headed for litigation. In that case, call me at 330.665.5445 and we will figure out a strategy for breaking your non-compete.

Best,

Neil Klingshirn.

posted Jul 27, 2005 9:44 PM [EST]

Answer to Pay after giving resignation

You may be entitled to a week of unemployment compensation

When you tell your employer that you intend to quit, you are not entitled to pay until you quit. A decent employer would respect that, since they all ask for a two week notice, but if they do not, they do not have to pay you.

However, you are entitled to unemployment compensation benefits until your resignation date. You have to wait a week first, then you are eligible until your resignation date. Thus, if you gave a two week notice and were fired the next day, you should receive a week of unemployment compensation, which is probably worth a few hundred bucks or more. If nothing else, applying for it shows your employer that you understand your rights when he or she gets crappy with you.

Best,

Neil Klingshirn

posted Jul 27, 2005 9:35 PM [EST]

Answer to No notice of termination - Severance Pay?

There is no legal right to severance; just unemployment compensation

Jenny:

Unless your employer has a severance plan on the books, you are only entitled as a matter of law to receive unemployment compensation benefits. Make sure that you apply for unemployment right away, since you lose it if you do not.

Best regards,

Neil.

posted Jul 27, 2005 9:31 PM [EST]

Answer to disability and fml

FMLA and private leaves run concurrently

Unless your employer's policy provides otherwise, FMLA and employer unpaid leaves will run at the same time. Therefore, you will probably only have 12 weeks of FMLA time available.

Best regards,

Neil Klingshirn

posted Jun 21, 2005 1:05 PM [EST]

Answer to Final pay hourly wage cut

Your employer may owe the balance on the pay

If your husband is an at-will employee, meaning he was free to quit without notice and his employer was free to terminate his employment without notice, then his employer was just as free to reduce his pay at any time. However, the employer has to notify the employee before teh employee works that it just reduced the pay. Otherwise, if the agreement with your husband was to pay him $11.00 per hour and your husband worked the hours, your husband is entitled to $11.00 per hour.

A problem you may find, however, is that you have to go to court and sue the former employer to collect the difference. Lawsuits are genearlly very expensive and can cost thousands of dollars to pursue. Therefore, in far to many cases, justice is simply to expensive to obtain. This is especially true when the amount of lost wages is relatively small.

In your case, to overcome this problem, consider going to small claims court. You do not need to hire an attorney and the filing fee is only about $75. Ask for the amount of unpaid wages. In addition, ask for the penalties provided for under Ohio Revised Code Section 4113.15. Here is a link to the Ohio Revised Code, where you can find a copy of section 4113.15:

http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC

You will probably have to copy that and paste it in the address bar of your browser. At any rate, if you are willing to take the time and deal with the aggravation of small claims court and your husband worked the hours with the understanding that he would earn $11.00 per hour, then you should have a good chance of recovering it.

posted Jun 10, 2005 11:35 AM [EST]

Answer to Two questions regarding pay.

A company cannot "bank" overtime hours to be paid in a week with less than 40 hours

An employer must pay non-exempt employees time and one half for all hours worked over 40 in a single work week. The employer cannot bank hours over 40 in week 1 to be paid at straight time rates in a week 2, 3 or later, in which you work less than 40 hours. In addition to being a state and federal overtime violation, this practice probably violates Ohio's semi-monthly wage payment law, which generally requires an employer to pay an employee wages promptly.

Call me at 330.665.5445 if this practice is affecting a substantial number of employees over a long period of time. It may be a claim worth pursuing.

As for different rates of pay, an employer can pay different rates for different duties. The practice that you describe is therefore probably lawful. Note, however, that you are entitled to overtime pay after 40 hours of "hours worked," which is probably different from your employer's "billable hours." That is, if some of your work is neither billable nor non-billable, but is time that the employer required you to be there but then did not have enough work for you to do, then you may have additional overtime hours.

Finally, federal and Ohio overtime laws do not require overtime for holidays. That is up to the employer or, if you have a union (and it sounds like you might need one), a requirement of a collective bargaining agreement.

Best regards,

Neil Klingshirn

posted Jun 9, 2005 10:31 AM [EST]

Answer to write up from employer

Your personnel file is company property.

You can certainly ask your employer for a copy of the contents of your personnel file, as well as any disciplinary action. Your employer does not, however, have an obligation to give it to you. It is considered the employer's property.

As a practical matter, many employers will allow employees to see the contents of their personnel file. Therefore, feel free to ask, but you will basically be stuck with the answer if the answer is "no."

Best regards,

Neil Klingshirn

posted May 26, 2005 2:48 PM [EST]

Answer to Age Discrimination Claim?

Send the employment application to the Ohio Civil Rights Commission

It is unlawful in Ohio to ask questions that elicit information about your age and other protected class status, such as race or national origin. An empployer also may not ask for medical information prior to making an offer. It sounds like this application may break several of these rules.

The most effective way to deliver a wake up call to this village is to send the application to the Ohio Civil Rights Commission (OCRC). The OCRC may require you to file a charge of discrimination to investigate, at which point you have to decide if you want to do that. If you do, the OCRC will investigate and will almost certainly require the village to clean up this application.

posted May 6, 2005 11:11 AM [EST]

Answer to Non-compete

The question is not whether the non-compete is enforceable, but whether you will get sued.

Most courts will not prevent you from working for a competitor in another state that does not involve work for your former employer's customers. Therefore, even though you may go to work for a competitor, and even though you "agreed" you would not do so, most courts will not prevent you from accepting that employment under the above circumstances.

However, the real issue is whether your prior employer will sue you and/or your new employer, its competitor. If so, your new employer may not continue your employment. Even if it does, you will have attorneys' fees of at least $5,000 and likely $10,000-$15,000 by the time a court decides that the non-compete is unenforceable. Generally speaking, you cannot recover those attorneys' fees. Thus, if the risk of owing these amounts to take on the new employment is too great, then the risk of getting sued is your real deterrent; not whether a court will ultimately enforce the agreement.

To minimize this risk, explore with the competitor/new employer whether it will assist you in defraying some of the costs of the non-compete litigation.

Finally, as you likely now know, do not sign non-competes in the future if possible and, if you have to sign something, sign it only after you reach agreement on some limits, such as existing customers in the existing state. You have all of your bargaining power at that point and will likely have some success at limiting the restrictions on your future employment down to something that a court will actually enforce.

Best regards,

Neil Klingshirn

posted May 3, 2005 11:55 AM [EST]