Answers Posted By Neil Klingshirn

Answer to Is this legal?

You may have a minimum wage claim

Your employer can set and change the number of hours that you work and the amount that it pays you per hour. If you are an exempt employee, your employer can also set and change your salary.

However, as an hourly employee, your employer must pay you the minimum wage, $5.25, per hour. Therefore, if you work 84 hours each week, you should get $441. In addition, you are entitled to time and a half for all hours worked over 40 in a week. If you are working 84 per week, then you should receive an additional $115.50.

If these facts are right, go to the U.S. Department of Labor's wage and hour division and report this. They will investigate and have the authority to recover the money that is owed to you by law.

Best regards,

Neil Klingshirn

posted Aug 29, 2003 11:16 AM [EST]

Answer to Questions about Terminations & Non-Compete Agreements

Consider a small claims suit

Hi:

If your daughter cannot recover her personal possessions or final pay, she can file suit in small claims court to recover money and possessions worth up to $3,000. To find out how much she is owed in commissions, she can ask for a subpoena when she files her claim and use the subpoena to compel the employer to produce the sales records.

I cannot comment on the grounds for firing without knowing more. Generally, an employer is allowed to terminate for any reason, including the reason that the employee is looking for work elsewhere.

Turning to the non-compete, the answer to your questions depends on what the non-compete agreement says. I doubt that it prohibits her from using former clients as references. If not, she is free to use them. As for soliciting former clients from employment outside of the 50 mile radius, again see what the agreement says. If it is not prohibited, the non-compete will not stop her. I suspect, however, that the agreement will say something to prevent that from happening. Finally, Ohio's trade secret's law prohibits an employee from using confidential customer lists to contact customers. If the employer kept the customer list confidential, she should avoid using it.

Best regards,

Neil.

posted Aug 28, 2003 1:11 PM [EST]

Answer to Overtime for exempt and repayment of overpayment

You probably owe a month of pay.

If the company overpaid you, you cannot keep the money unless you have a separate basis for doing so. The vacation is one such basis. The overtime is another. However, the overtime claim is probably barred by the statute of limitations, which allows overtime claims for only up to three years.

Since possession is 9/10 of the law and you possess the cash, the company has to take you to court to get it back. Once there, you can explain the overtime and vacation pay issues to the judge and ask to keep it all. The judge will probably give you credit for the vacation pay.

Short of going to court, consider offering to pay back some amount. Haggle over it. Argue the OT and the vacation pay. If the company understands that it will have to pay to go to court and appear meanspirited in the process, it should be willing to cut you a break on your vacation in order to get back the balance.

Regards,

Neil.

posted Aug 11, 2003 10:02 AM [EST]

Answer to Unemployment redetermination appeal hearing request has not been honored.

ODJFS delay

Hopefully you have received a hearing date by now, as I am belatedly answering your question after a return from vacation.

I do not know how to force ODJFS to grant you a speedy hearing. This is a recent problem. I have a claim where I too am waiting for the hearing to get set. I suggest persistence in calling to ODJFS.

Regards,

Neil.

posted Aug 11, 2003 09:55 AM [EST]

Answer to the amount of severance & termination is $6500

You may have a severance claim

I am belatedly answering your question to MEL following my return from a delightfully long vacation.

It sounds like the company has a severance plan. If you are being forced out, you may qualify for it. Whether you do or not depends on the specific terms of the plan and the circumstances of your employment. If you want me to evaluate those, we offer an initial consultation. Since you are in Toledo, we will consider doing the consultation by phone. Kindly call Bev Potter at 330.665.5445, ext. 0 to get on my calendar if you would like our assistance with this.

Best regards,

Neil.

posted Aug 11, 2003 09:53 AM [EST]

Answer to OVER TIME-COLLEGE STUDENT

Mandatory overtime is legal

Unfortunately, your employer can require you to work mandatory overtime and suspend or terminate your employment if you are not able to work the required hours. Technically, an employer can require you to work 24/7 without violating the law.

The problem for the employer who forces employees to work excessive overtime is that the employees will refuse to do it and quit.

The best strategy for you under these circumstances is to work out an arrangement with your employer to allow you to work the additional 10 hours a week during a time that does not conflict with your school schedule (e.g., on weekends). The employer may resist this, since everyone will want to take advantage of a more flexible schedule, but if the employer needs you to handle the large load of work, it may be willing to let you do that.

Regards,

Neil Klingshirn

posted Aug 5, 2003 2:18 PM [EST]

Answer to Bad Referal

You probably have a legitimate defamation claim

If you can prove that your current employer gave you a false reference, and if you can prove the he had a malicious reason to do so (i.e., to keep you from finding a better job), you may have a valid defamation claim.

The problem that you may have with your claim is damages. Did you get the job with the new employer (where your friend is) despite the bad reference? If so, then you probably have little in the way of damages. Since you go to court to recover the loss suffered as a result of someone else's unlawful behavior, it does not make sense to incur the cost of going to court unless you have lost something first.

If you have suffered a monetary loss as a result of the defamation, give me a call or email me with the specifics of the loss. We can talk further at that time about the costs that you would have to pay to sue your current employer (even if your attorney's fee is a contingency fee) and that will let you decide whether to pursue it.

Best regards,

Neil Klingshirn

posted Jul 26, 2003 11:04 PM [EST]

Answer to Forced overtime

They can tell you when to begin work, but they must pay you.

An employer can tell you when and how long you can work. Theoretically, an employer can require you to work around the clock for 365 days a year. If you refuse, the employer can terminate you.

The law does require the employer to pay you, however, for all time worked at least at the minimum wage. In addition, the employer must pay you time and one half for each hour over 40 that you work in a week. As a result, most employers settle on a 40 hour work week.

In your case it sounds like your employer is forcing you to work 15 to 30 minutes a day "off the clock." This is improper. You can go to the U.S. Department of Labor's Wage and Hour division and file a complaint. The DOL should audit payroll practices at your employer as a result. You will probably discover that you are either allowed to start checking emails and voice mails at 7:30.

Regards,

Neil Klingshirn

posted Jul 7, 2003 10:36 AM [EST]

Answer to loan officer transfer question about leads- no noncompete clause

This is a trade secrets issue

Absent a non-compete, you still must comply with Ohio's trade secret's act. That Act prohibits an employee (the prospective loan officer) from "misappropriating" trade secrets. In addition, the loan officer has a "duty of loyalty" to his current employer not to take that employer's business away. In your words, courts do consider taking business away to be a form of stealing, which you must avoid.

A full discussion of what is a trade secret, a misappropriation and theft of a business opportunity is is beyond the scope of this answer. In short, do not let the loan officer bring over existing loans that have not yet closed. In addition, if the former employer took reasonable steps to keep the customer or leads lists secret, the loan officer probably cannot use them.

Regards,

Neil.



posted Jul 1, 2003 10:20 AM [EST]

Answer to change from commission to salary and territory increase

It all depends

In order to give you a useful answer I need to know what interest, if any, the current employer has to protect with the non-compete and what threat, if any, your employment with a competitor presents to the current employer. Everything else aside, courts will protect an employer's legitimate interest.

The fact that you received almost nothing in consideration of signing a non-compete probably will not help you. I can explain why during a consultation. The short answer is that, while courts require some consideration to create a contract, they do not require much. Even $25 and continued employment may suffice.

The fact that your employer has now cut your pay and increased your work will help you if the threat to the legitimate interest of your current employer is slight. You could argue that, by changing your pay, your employer breached its obligations under the non-compete and you are free of your obligation under it as well. You can also argue that the employer's bad conduct allows the court to refuse to exercise its injunctive power to prevent you from competing. Injunctions are based on a court's equity power and courts do not have to exercise their equity power for a party who does not have "clean hands."

I can give you a more specific answer and strategize an exit from your current employer if you want to do a consultation. We offer a telephone consultation for $150 per hour for the first 90 minutes. If you are interested, call Cheryl Green at 330.665.5445, ext. 2.

Best regards,

Neil Klingshirn

posted Jul 1, 2003 10:10 AM [EST]