Answers Posted By Neil Klingshirn

Answer to Gender Discrimination

Ohio civil rights law applies to employers of four or more

Ohio Revised Code Chapter 4112 is Ohio's civil rights act. It applies to employers of four or more. In addition, the Ohio Supreme Court has held that employers with less than four employees are bound by a common law prohibition against sexually harassing conduct.

Best regards,

Neil Klingshirn

posted Jun 3, 2004 3:43 PM [EST]

Answer to Is Ohio a Neutral Reference State?

Ohio law protects employes who provide a negative reference

Ohio is not a neutral reference state. To the contrary, Ohio law specifically protects an employer from a defamation claim for a false reference, so long as the employer did not make the false reference with malice or ill will towards you.

posted Apr 15, 2004 6:36 PM [EST]

Answer to Employer will not accept physician release

Have you worked there for 12 months?

If you worked for 12 months and worked at least 1,250 hours and the employer has over 50 employees, then the Family and Medical Leave Act specifically requires the employer to accept without challenge a return to work certification by your doctor.

I think that you can claim this medical certification right under the FMLA even though you did not specifically us FMLA leave. Whether or not an absence is covered by the FMLA or not is a matter of law and not designation by the employer and employee.

posted Apr 15, 2004 6:32 PM [EST]

Answer to Geographic Limitation

Competition is where you do what you do.

Non-competition agreements are contracts. To figure out what they mean, courts look at their plain language and, to the extent that the plain language does not spell out the bargain struck by the parties, industry practice and the practice of the parties.

In your case the language prohibits you from "competing" within 60 miles of a fixed location, your city. Therefore, the issue is the location of the competing activity.

The location of competition is probably where you are when you do what you do. Therefore, if you are a magazine writer working from home, you cannot be living and working within 60 miles of your home. If, however, you are a freelance computer consultant calling on and working for customers 60 or more miles away from your city, you are probably meeting the geographic restriction.

Best regards,

Neil.

posted Mar 25, 2004 08:49 AM [EST]

Answer to State and Federal laws with respect to damages

Good USERRA question

USERRA provides a right against discrimination, as well as a remedy if an employer violates the right. The remedy is found in 38 4323(d). I am printing that section at the end of this message.

Your question is whether you can also recover punitive damages under Ohio law. It is possible that you can, but a recent Ohio Supreme Court case clouds the issue. The issue is whether the public policy expressed by USERRA is jeopardized because the remedies available under the USERRA would deter you from pursuing your rights under it. Sinced USERRA allows you to recover lost wages, plus an equal amount as liquidated damages if the employer's action was "willful," plus reinstatement and attorneys' fees, you have to find out if that is sufficient to support an effort to pursue your rights. This in turn will depend on the strength of your case and the extent of any lost wages. If you you can show that it is not economically logical to pursue these claims based on those limited recoveries, but that it would be worth it if punitive damages were recoverable, then you may have the basis for bringing a public policy claim.

Best regards,

Neil Klingshirn

Here is the text of 4323(d):

(d) Remedies.
(1) In any action under this section, the court may award relief as follows:
(A) The court may require the employer to comply with the provisions of this chapter [38 USCS �� 4301 et seq.].
(B) The court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer's failure to comply with the provisions of this chapter [38 USCS �� 4301 et seq.].
(C) The court may require the employer to pay the person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if the court determines that the employer's failure to comply with the provisions of this chapter [38 USCS �� 4301 et seq.] was willful.
(2) (A) Any compensation awarded under subparagraph (B) or (C) of paragraph (1) shall be in addition to, and shall not diminish, any of the other rights and benefits provided for under this chapter [38 USCS �� 4301 et seq.].
(B) In the case of an action commenced in the name of the United States for which the relief includes compensation awarded under subparagraph (B) or (C) of paragraph (1), such compensation shall be held in a special deposit account and shall be paid, on order of the Attorney General, directly to the person. If the compensation is not paid to the person because of inability to do so within a period of 3 years, the compensation shall be covered into the Treasury of the United States as miscellaneous receipts.
(3) A State shall be subject to the same remedies, including prejudgment interest, as may be imposed upon any private employer under this section.

(e) Equity powers. The court may use its full equity powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the rights or benefits of persons under this chapter [38 USCS �� 4301 et seq.].

(f) Standing. An action under this chapter [38 USCS �� 4301 et seq.] may be initiated only by a person claiming rights or benefits under this chapter [38 USCS �� 4301 et seq.] under subsection (a) or by the United States under subsection (a)(1).

(g) Respondent. In any action under this chapter [38 USCS �� 4301 et seq.], only an employer or a potential employer, as the case may be, shall be a necessary party respondent.

(h) Fees, court costs.
(1) No fees or court costs may be charged or taxed against any person claiming rights under this chapter [38 USCS �� 4301 et seq.].
(2) In any action or proceeding to enforce a provision of this chapter [38 USCS �� 4301 et seq.] by a person under subsection (a)(2) who obtained private counsel for such action or proceeding, the court may award any such person who prevails in such action or proceeding reasonable attorney fees, expert witness fees, and other litigation expenses.

(i) Inapplicability of State statute of limitations. No State statute of limitations shall apply to any proceeding under this chapter [38 USCS �� 4301 et seq.].

(j) Definition. In this section, the term "private employer" includes a political subdivision of a State.

38 USCS � 4323

posted Mar 24, 2004 12:40 PM [EST]

Answer to Employer breaking signed contract

If your contract was for one year of employment, you should have a valid claim

Believe it or not, an employer in Ohio can entice an employee to pull up stakes in one state to move here with the expectation of having a job, and then pull the job out from under them. However, the exception to this rule is when the employer promises a specific term of employment. In that case, you should be entitled to your damages for the employer's breach, which would include lost wages and possibly the moving costs.

If you want me to review your contract, we offer an initial consultation for $200. Call Julie at 330.665.5445, ext. 0 and she will set up an appointment.

Best regards,

Neil.

posted Mar 18, 2004 3:41 PM [EST]

Answer to Discontinuation of services before end of job contract.

A three month salary forfeiture may be an unenforcable penalty

Good question. The answer lies in contract law. First, the courts generally will not disturb the parties' bargain, even if it turns out to be a bad deal for one of the parties later on. Therefore, if your contract says that you have to pay back three months of salary, the burden is on you to prove that a court should not enforce that obligation.

Courts do not enforce certain types of promises if they violate public policy. A court will not, for example, enforce a promise to commit a crime. In your case, you may be able to argue that a three month penalty provision violates the public policy of allowing a spouse and parent the freedom to care for his wife and newborn child if, for example, you qualify for FMLA. Also, the courts do not like penalty provisions that bear no relationship to the cost that the employer will bear from the breach of the agreement. That is, if your employer can hire your replacement with short notice at little cost, the three month forfeiture will be a penalty, which courts do not like.

Finally, you can try to renegotiate your contract. Your employer cannot force you to keep working and will incur costs to try to collect three months of salary from you. Therefore, consider approaching your boss, explain why you feel you need to leave and ask if you can give three months of notice rather than three months of salary. If you run into resistance, then consider calling me at 330.665.5445 to schedule a consultation. There are other strategies that may be available.

Regards,

Neil Klingshirn.

posted Mar 17, 2004 09:57 AM [EST]

Answer to need a lawyer expert in medical contracts

The answer depends on the language of your non-compete

Non-competition law is a creature of contract. Therefore, the length of time that you cannot compete against your former employer will be found in the non-competition agreement (i.e., contract) itself.

If you want, you can fax your non-competition agreement to me at 330.665.5446 and I will take a quick look at it. Most non-competes say that they will last for a period of time after your employment, and not after the original employment agreement comes to an end. However, it is possible that your employer was sloppy and wrote an agreement that has expired. If not, we can talk about strategies for working around the non-compete.

Best regards,

Neil Klingshirn

posted Mar 9, 2004 08:24 AM [EST]

Answer to does fmla cover absentism due to sick baby

Family leave allows you to care for your child's serious health condition

You are entitled to use FMLA leave to care for your child if:

1. Your employer has 50 or more employees at your location;

2. You have worked there for one year and worked 1,250 hours during that year; and

3. Your child's condition is a serious health condition. Check the FAQs on this site for the definition of a serious health condition. The U.S. Department of Labor website has an excellent service called "eLaws" that can help you as well. If you still wonder whether your child has a serious health condition, feel free to email me directly.

Best regards,

Neil.

posted Mar 8, 2004 12:13 PM [EST]

Answer to contract's nessary or not

An employer cannot refuse to withhold taxes with a 1099

You ask whether an employer can treat you as an independent contractor if you are really an employee. The answer is no, not legally.

Whether or not you are an employee or an independent contractor depends on your circumstances. Generally, the more control that the "employer" has over how you perform the job, the more likely it is that you are an "employee" and not an independent contrator. Importantly, the fact that your employer calls you an indpendent contractor or pays you with a 1099 will not change the actual nature of your relationship.

If you believe that you have been harmed financially as a result of the misclassification, consider a consultation. Call Bev Potter at 330.665.5445 if you are interested. A consultation lasts about 90 minutes. The fee is $200.

Best regards,

Neil Klingshirn

posted Jan 24, 2004 1:17 PM [EST]

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Neil Klingshirn

Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist
Independence, OH
Phone: 216-382-2500