Answers Posted By Neil Klingshirn

Answer to Wrongful Termination

You can be fired for no reason at all.

Unless the real reason for a termination is unlawful, an employer can fire you for no reason or even a ridiculous reason, such as violating a policy that, from your perspective, did not exist. It is arbitrary and unfair, but not unlawful, meaning that the courts will not give you a remedy.

Your employer cannot keep your paycheck and cannot prevent you from receiving unemployment compensation, although its a shame that they made you work as much as they did to get to that point.

posted Jan 14, 2004 09:55 AM [EST]

Answer to Time Frame of Wages According to O.R.C. or D.O.L.

Ohio and federal law for wage payment

Here is a link to an answer to a previous question that should help you out here. http://www.myemploymentlawyer.com/mel/answer.php3?answer_id=1206.

You may need to copy this link and paste it into your address bar.

Good luck.

Neil.

posted Dec 29, 2003 09:25 AM [EST]

Answer to Is a layoff the same as a termination?

A layoff is a form of termination

A layoff is one form of termination. It is an involuntary termination, usually for lack of work. It is almost always without "fault" by the employee.

It sounds like you have an employment contract that has a specific termination provision. If an involuntary layoff is not covered by the termination provision, then the question is whether you have any ongoing rights to continued compensation or to severance, since you have been laid off without fault on your part.

In order to answer that question, I need to see the contract. If you would like me to review it, call Bev Potter at 330.665.5445, ext. 0 to set up a consultation and to send a copy of the contract. I may need very little time to review your agreement to answer your question, so you may want to talk to Bev about scheduling less than a full consultation.

Best regards,

Neil.

posted Dec 29, 2003 09:21 AM [EST]

Answer to Situation is very detailed.

Ask the court to modify the CPO to cover work

An employer has an obligation to provide you a safe workplace. That includes protection from another employee. Unfortunately, your rights to compensation for an injury from another employee do not arise until after you have been injured. Presumably you would like to get the employer to protect you so that you are not injured.

I suspect that the most effective way to protect yourself from the threatening employee is to ask the court to modify the CPO so that it prohibits the threatening employee from being within, say, 500 feet of you anywhere you might be found, including at work. You will have to show that the other employee poses a threat, but evidence of hostility directed at you while at work may suffice.

If this appears to be a viable option for you, consider going to the employer first to let it know that you will ask the court for an order that will effectively prevent the threatening employee from working. This might get the employer to do the right thing and protect you from the employee itself.

Best regards,

Neil Klingshirn

posted Dec 18, 2003 5:45 PM [EST]

Answer to Would like to sue and collect commissions on loans I should have closed.

You should receive commissions that you already earned

In Ohio, so long as you did all of the work to prospect, originate, qualify and prepare the loan for closing, your boss should not be able to deprive you of the commissions by firing you and closing them himself, unless your commission agreement clearly states otherwise.

How much is at stake?

If you want to talk about this and your options for getting the money, call 330.665.5445 for a consultation. Hit extension 0 for Bev and she will get you on my calendar. If you prefer to do a telephone consultation, let Bev know that I will be willing to do one. The telephone consultation rate is $150 per hour, as opposed to $200 for a typical 90 minute session.

Regards,

Neil Klingshirn

posted Dec 1, 2003 09:52 AM [EST]

Answer to Sexual harassment

Your wife has claims for sexual harassment and retaliation

Ohio law prohibits sexual harassment, even by very small employers. You describe sexually harassing conduct. I suspect that the good dentist retaliated against your wife after she complained as well.

If you have difficulty locating an attorney in the Dayton area, I would be willing to do a telephone consultation. I have worked with co-counsel in both Cincinnati and Columbus and would consider taking your wife's case. Your wife may call Bev at 330.665.5445, ext. 0 with any questions and to get on my calendar. While you may participate, the consultation needs to be with your wife.

We should discuss all of the circumstances of her employment, the incidents of harassment, other victims and witnesses, the harm that this has caused her (lost wages and emotional damage)and the costs and risks of litigation.

Best regards,

Neil Klingshirn

posted Oct 28, 2003 8:53 PM [EST]

Answer to Duration & Geography

Reasonableness depends on the circumstances.

The answer to each of your questions is "it depends." Reasonableness of duration depends on how long it will take your former employer to protect its relationships with customers, if you are in a customer service business. As a general rule, duration of less than one year is reasonable, more than three years is not.

A reasonable geographic area would be that in which the former employer operates or has tangible plans for operating.

As for different services or products, it depends on whether those services or products could be substitutes for what the former employer sells.

At bottom, non-compete analysis is fact specific. The specific facts revolve around protection of the employer's interests. If your new employment is in the same industry but a different niche or location, the former employer may not get too far in asking for an injunction to keep you from working.

If you would like a more specific answer, feel free to call Bev to schedule a consultation. I am willing to do a consultation by phone if traveling to Akron is a hardship for you. However, you generally will learn more if we can meet face to face.

posted Oct 16, 2003 12:34 PM [EST]

Answer to enforcement of non compete

Stay tuned to the Supreme Court

The Ohio Supreme Court is currently considering whether a non-compete agreement signed after employment begins and with no new consideration is enforceable. If you did not receive new consideration when you signed your agreement 6 months into your employment, it may not be enforceable.

Otherwise, you non-compete is a contract. It covers what it describes, so long as necessary to protect the old employer's business interest. Therefore, if it says that it goes into effect only if you leave without cause (and not if you are fired), then you would have a good argument that it does not apply. If it is silent as to cause for termination but applies upon your termination, then the fact that you were actually fired may be irrelevant.

As for your paycheck, your employer should not be able to withhold it. Look at ORC 4113.15 (http://onlinedocs.andersonpublishing.com/oh/lpExt.dll/PORC/1d66d/1d989/1d9c6?f=hitlist&q=4113.15&x=Advanced&opt=&skc=800000020001D9C7&c=curr&gh=1&2.0#LPHit1) for your right to your last paycheck.

posted Oct 13, 2003 6:06 PM [EST]

Answer to harrasment or discrimination?

An employer can have a "no smoking anywhere" rule

Regrettably, an employer in Ohio can require its employees not to smoke at all, anywhere, as a condition of employment. There is no law prohibiting an employer from intruding on your otherwise personal habit of smoking, so the employer can condition your employment on no smoking.

posted Sep 10, 2003 3:47 PM [EST]

Answer to Non compete in Ohio law

You may have a public policy argument against the non-compete

The fact that the hospital initiated the separation will not lessen the enforceability of the non-compete. So long as the hospital has a legitimate interest to protect, a court will enforce the non-compete.

I suspect that your most successful challenge to the non-compete lie with the public policy in favor of providing scare medical services and the lack of a legitimate interest to protect. If the hospital got out of the doctor business, what interest does it have in keeping your husband out of that business. In addition, courts will not enforce non-competes where it lessens the public's access to medical care. While this has been applied primarily to medical specialties, the fact that family doctors are so scarce as a result of the malpractice insurance crisis may make the argument apply.

If you would like to develop a more specific strategy, call Bev of our office for a consultation at 330.665.5445, ext. 0. She can get you on my calendar.

Best regards,

Neil Klingshirn

posted Sep 10, 2003 3:45 PM [EST]