Answers Posted By Neil Klingshirn

Answer to Non-Compete contract in Ohio under duress?

Duress as a defense

A non-compete agreement is a contract. Duress is a valid defense to a contract. If you can prove that you signed the agreement with a "gun to the head," you may be able to avoid it using the defense that you signed it under duress.

However, it is difficult to establish duress in the non-compete setting, at least where you are an employee at will and the duress is in the form of a threat of termination. In Ohio an employer can refuse to continue your employment if you do not agree to the terms of a non-compete. Therefore, the flip side, that a non-compete signed to keep a job, is probably not duress sufficient to avoid the agreement. In other words, you have a choice, albeit unpleasant, to leave that employment without signing the non-compete.

It may be a different matter, however, if the employer threatened to withhold pay that you had already earned. That is closer to conversion (theft) and Ohio has a law requiring prompt payment of wages. If your employer withheld pay in a way that violated Ohio's law, it might constitute a basis for invalidating the agreement. Whether it amounts to duress, however, is probably going to depend on whether you had no other choice but to sign to get your paycheck. Since you could have sued for your paycheck, you may not reach that standard under those fact, either.

As for the over-breadth of the non-compete's restrictions, a court can redraw the restrictions so that it restricts your subsequent employment no further than is necessary to protect your employer's legitimate business interests. In your case, that may provide some relief.

Finally, while duress is often not a defense, the employer's failure to live up to a material part of its non-compete bargain may be a defense. In your case, if your compensation terms are part of the non-compete and your employer did not pay, or significantly and/or repeatedly delayed payment, you may be able to "rescind" the non-compete agreement as a remedy for your employer's breach of its part of the bargain.

I suggest that you get together with an attorney who has negotiated these issues and develope a strategy specific to your industry and job. I am happy to help, although the trip to Akron may be a bit far for you.

Best regards,

Neil.

posted Apr 29, 2005 4:25 PM [EST]

Answer to Overtime claim against an employer

How to pursue an overtime claim

If you worked more than 40 hours in a week, were not exempt from overtime and did not get paid overtime, you have two and possibly three years to file a complaint with the U.S. department of Labor ("DOL") or to file a private lawsuit. Therefore, you should go to the DOL or consult an attorney quickly, as it appears that your two years will begin to expire soon.

If you want an idea as to what you might be able to claim, email the following information to me:

The name of the employer.
Your beginning and ending dates.

Your average hours worked each week (if seasonal, provide seasonal averages and beginning and end dates for the seasons) and

Your average weekly compensation (adjusted for seasonal variations, if appropriate).

Regards,

Neil Klingshirn

posted Apr 4, 2005 09:58 AM [EST]

Answer to unpaid commissions

Pursue a claim for $3K or less in commissions in small claims court

You can pursue a claim for unpaid commissions in small claims court if the claim is for $3,000 or less. It only costs about $75 to file and you do not need an attorney.

If your claim is for more than $3,000, you can waive the amount in excess of $3K and still go to small claims, or you can go to the regular division of the Municipal Court (that is, not the small claims division). Once you get into the regular division of the court, however, the process starts getting complicated and you may want to consider hiring an attorney to assist you.

Best regards,

Neil Klingshirn

posted Mar 30, 2005 10:24 AM [EST]

Answer to violation of personal property/ failure of employer to have e mployee complete paperwork

You are entitled to your pay, but not to privacy on the employer's computer

An employer is generally free to inspect computers that it provides to its employees. An employer is also free to prohibit employees from using the computer for personal purposes. Therefore, an employer is generally within its rights to inspect your computer and to terminate your employment if it finds that you used it for personal purposes.

One exception to this rule is if the employer fired you for another, but unlawful, reason, and simply said that it fired you for personal use of your computer.

You are, however, entitled to pay for the time you worked. If your employer fails to pay you, consider filing a small claims action in your local Municipal court. It costs $75 and you do not need an attorney. Most employers would just pay up, rather than go through the embarrasment of appearing in court.

Best regard,

Neil Klingshirn

posted Mar 30, 2005 10:21 AM [EST]

Answer to withholding last paycheck as ransom

Unless you agreed in writing, your employer cannot keep your final pay

Ohio's semi-monthly payment of wage law requires employers to timely pay wages earned and prohibits deductions from that pay unless, among other things not applicable here, you authorize the deduction. It sounds like you did not do that. Ask your former employer to show you where you authorized the deductions. If they cannot, consider filing a small claims action (up to $3,000)to recover your pay. It costs $75 to file and is simple enough that you will not need an attorney.

You can find 4113.15 here:

R.C. 4113.15 can be found at:
http://onlinedocs.andersonpublishing.com/revisedcode/home3.cfm?GRDescription1=revised%20code&GRDescription2=title%2041&GRDescription3=&TextField=%3CJD%3A%224113%22%3ECHAPTER%204113%3A%20MISCELLANEOUS%20LABOR%20PROVISIONS&GRStructure1=4113&GRStructure2=

Regards,

Neil Klingshirn

posted Mar 30, 2005 10:15 AM [EST]

Answer to Relocation contract

You may have a case of gender discrimination

If you can prove that you are being harassed and set up to get fired because you are female, then you can claim a sexually hostile environment. The law recognizes variants on the classic sexual harassment hostile environment where the harassment is "because of sex." Here, it appears that you would not face the same harassment if you were a male.

Proving gender discrimination will not necessarily get you out of your relocation obligation. However, a victim of a hostile environment has a right, and some would say a duty, to report the sex-based hostility to management, who then has an obligation to make it stop. If you could get the harassment to stop, it would likely solve your problem and you could complete your year of service in peace.

If management does not stop the hostility and you end up with a claim, then you could try to bargain with the company for a clean break, meaning you would not pursue your claims for discrimination in exchange for being released from your relocation obligation.

Managing your way out of a hostile environment is tricky business. You have to make a complaint that is effective, but not so inflammatory as to draw retaliation. While retaliation is also unlawful, being a victim of it is not fun. If you would like to arrange a consultation to set a strategy, call Julie at 330.665.5445, ext. 0 and she will try to get you on my calendar.

Best regards,

Neil Klingshirn.

posted Feb 9, 2005 09:58 AM [EST]

Answer to employment agreemnt

Post this question to California attorneys

I suggest that you post this question to California attorneys. I believe that California has a fairly strict non-competition law that discourages non-compets. Given that the headquarters are in California, a Cal. attorney can probably tell you if it applies.

Otherwise, feel free to call for a consultation to work through the specific issues involved in your non-compete under Ohio law.

Best regards,

Neil Klingshirn,

330.665.5445,ext. 2

posted Feb 4, 2005 2:25 PM [EST]

Answer to What will I be paid today???

If you are not paid on a salary basis, you are entitled to overtime at time and a half

Your employer cannot pay you hourly and then fail to pay time and one-half for overtime hours. The "professional" exemption that allows your employer to exempt you from overtime requires payment on a salaried basis.

Please feel free to email me at Neil@fklaborlaw.com with an estimate of the nunmber of hours that you have not received full overtime payment. If substantial, it may be worthwhile to file a claim to pursue it.

As for changing your pay, or the basis for calculating it, your employer is free to do so, unless you have an agreement that states otherwise. However, if your employer decides to pay you by the hour, it loses the right to exempt you from overtime.

Best regards,

Neil Klngshirn.

posted Feb 1, 2005 5:35 PM [EST]

Answer to Non Compete statement

You may be able to get out of the non-compete, but it may involve court

I see three potential ways out of your non-compete. Two may work but one will not.

First, the fact that your employer made you sign the non-compete after you started your job will not invalidate it. This was once thought possible, but the Ohio Supreme Court recently upheld a non-compete that was signed after employment had begun, without any consideration other than continued employment, which was considered sufficient. That is the angle that won't work.

Second, if you mean that the company is worthless in that it does not pay you when it is supposed to do so or is otherwise in material breach of its side of the non-compete agreement, Ohio law may excuse you from your obligation.

Third, if the employer is so unconcerned about protecting its business interest that it has not obtained non-competes from other employees, then it may not have enough proof of a protectible interest to justify restricting your employment.

As for staying out of court, if the non-compete language, on its face, prevents you from accepting the employment you seek, you had better budget for a court fight. Also, you should disclose the non-compete to the new employer so that it is not surprised, as the old employer can drag the new employer into the litigation. On the other hand, the new employer can be an important ally in litigation and is usually in a better position to help cover court costs.

All of that said, each of these cases is fact specific. If you would like to explore a strategy for getting away from the old employer, call for a consultation at 330.665.5445. If the hike from Youngstown is a problem, we may be able to do a consultation over the phone.

Best regards,

Neil Klingshirn.

posted Jan 20, 2005 08:48 AM [EST]

Answer to re: competition clause and not receiving prompt or correct pay.

You may be able to accept competitive employment because of this breach

Your current employer has put you in a classically unfair position. It got a restriction on your right to move to competitive employment, but is failing to pay you, forcing you to seek your new employment.

Ohio law recognizes the unfairness of this situation and provides a way out, under certain circumstances. Specifically, if your non-competition agreement recites that, in exchange for your employer's promise of employing and paying you your salary, you agree not to comptete, then its breach of the agreement to pay you may excuse you from the restrictive covenant (the non-compete). The key is whether the non-compete is tied to getting paid for your job. That depends on the language of the non-compete itself.

As a practical matter, if your employer cannot afford to pay you your regular pay, it probably cannot justify paying $10K to fight what is probably a losing battle to keep you from going to the competition. In other words, if you feel lucky, you can take a chance on accepting the competitive employment and hope that your employer does not enforce the non-compete.

Finally, if you can find employment that involves little or no actual contact with your former patients for the duration of that agreement, your chances in court and the chances that you will not get sued both go up.

If you would like to discuss this further, a consultation may make sense for you. Call Julie Rupert at 330.665.5445, ext. 0 if you would like to do that.

Best regards,

Neil Klingshirn

posted Jan 10, 2005 09:47 AM [EST]