Answers Posted By Neil Klingshirn

Answer to severance pay if hired back?

The answer depends on the language of the severance agreement

Jim:

Your severance agreement should answer this question. It should say that you are entitled to a specific benefit as a result of your termination. If it says nothing more, you probably can claim the severance whether or not you accept a new position there or with some other employer. The key will be to satisfy the terms set forth in the agreement.

If you want me to review the agreement, call Cheryl Green at 330.665.5445, ext. 0 to set up a time for me to review it and discuss it with you.

Regards,

Neil.

posted Jun 18, 2003 3:20 PM [EST]

Answer to Problems with illness/employer

Your employer cannot count FMLA absences as attendance infrations

Hi Jim:

I need to know more about your specific situation to suggest a course of action. However, if your employer is covered by the FMLA and you are eligible for it, then your employer must basically ignore FMLA covered absences when administering its attendance policy.

The US Dept. of Labor has a good website for the FMLA at http://www.dol.gov/elaws/fmla.htm.

Regards,

Neil.

posted Jun 13, 2003 08:52 AM [EST]

Answer to Is a no compete contract void if you leave a business and then come back after 9 months?

The actual language of your non-compete controls.

The reach of a non-compete depends on the language in it. Many restrict an employee from competing for "one year after your employment" or language to that effect. In that case employees can argue that the non-compete clock started to tick when they first terminated their employment.

Regards,

Neil.

posted May 7, 2003 2:11 PM [EST]

Answer to Question about racial slurs in the workplace

Check the harassment policy

I too am sure that the bank has an anti-harassment policy. Get a copy. It will, among other things, provide a mechanism for making confidential complaints.

You are entitled to complain about conduct covered by the policy, especially if it makes you uncomfortable or, worse yet, interferes with your job. The bank should investigate your complaint and take appropriate, remedial action to prevent employees from making racially offensive comments.

Complaining about your co-workers will probably change their behavior, but it may also carry the price of resentment. Consider as an alternative approach speaking with the co-worker confidentially and explaining that their comments offend you. You can send the same, but even more powerful message, by writing a letter to the co-worker and carbon copying "File." The message: keep it up and a copy of this letter will be attached to my complaint to the bank. This usually works quite well and is proven effective in most harassment cases, including sexual harassment.

Finally, consider turning something bad into something good by opening up a dialogue with this co-worker, if you think the two of you are up to it. She will probably be surprised to learn that you see her as behaving like a bigot, but that is the first step in stopping bigotted behavior.

Best regards,

Neil.

posted Apr 17, 2003 09:52 AM [EST]

Answer to Manager wants me fired

The law provides few remedies for harm caused by the abusive boss

The law is flawed by numerous gags in the remedies it gives for obvious harms. Emotional pain and suffering caused by the abusive boss is one of them. Generally speaking, you cannot recover money damages under the circumstances that you describe, unless you prove that the harassment was for an unlawful reason, such as your age, gender or race.

The exception to this rule is if the boss's conduct was so outrageous that it meets the legal standard of an "intentional infliction" of "emotional distress" that is "severe." If you described to a stranger on a park bench what your boss and the stranger sat up and said "that's outrageous," you may meet the standard of "intentional infliction." To be "severe," your emotional distress should be at least partially debilitating.

I have met with many employees abused by their bosses. Many had, in my opinion, severe emotional distress. The hard part to prove, however, is the outrageous nature of the boss's abuse. Where a boss screamed inches from the employees face, at one point slapped her, made her and another employee cry, a jury might find outrageous conduct. In most cases, however, the boss can be quite abusive without going over the outrageous line. For those, the law offers no meaningful remedy. That, in my view is a real problem.

Regards,

Neil.

posted Apr 16, 2003 09:31 AM [EST]

Answer to Is this a law?

I have a question for you.

If the company says that you are an hourly employee, does that mean that you are paid for all hours worked and for overtime for hours in excess of 40? If not, then your employer is probably treating you as an emplyee "exempt" from overtime. Whether you are "exempt" or "non-exempt" depends primarily on your job duties and responsibilitie and only partly on whether your employer pays you by salary. Read the Overtime answers on MEL for more information on who is exempt and non-exempt.

posted Apr 11, 2003 10:17 AM [EST]

Answer to Retirement - Job Elimination

Eliminating a position before retirement

The short answer is, no, an employer has no legal restriction against eliminating a position of an employee because the employee has less than two years to retirement. However, if the decision to eliminate your position was based on your age, then age discrimination laws would provide a possible remedy.

posted Apr 11, 2003 10:12 AM [EST]

Answer to Family Medical Leave

If your son requires "continuing treatment," you are covered

Assuming that you are eligible for FMLA (you have worked at least 1,250 hour and 12 months for this employer), you can take leave to care for your son's "serious health condition." A serious health condition includes an injury that requires either inpatient care at a hospital or "continuing treatment by a health care provider." Continuing treatment requires a period of incapacity of more than three consecutive calendar days that involves treatment two or more times by a health care provider.

Assuming that your child does not need to be in the hospital overnight, he almost certainly will require "continuing treatment." A broken hip in a cast will incapacitate him and he will need to see the doctor at least twice.

You need to notify your employer about your child's condition and ask for FMLA forms. They will include a medical certification. Give the certification form to your child's doctor and make sure that the doctor certifies both that your child will be incapacitated and will receive treatment at least twice.

Best regards,

Neil Klingshirn

posted Mar 31, 2003 11:09 AM [EST]

Answer to Fired for a bad back...

You may have a claim for workers compensation retaliation

Did you file a workers compensation claim when your job aggravated your back? If so, you may have a claim under Code section 4112.90 for retaliation. To prevail, you must prove that the company fired you because you filed a claim. If you did not file a WC claim, however, you cannot pursue a retalaition claim.

The fact that your back prevents you from doing a portion of your job hurts that claim more than helps it. Your employer could defend a 4112.90 claim by arguing that you were not qualified to perform your job. Unless you are covered by the ADA (i.e., you are a "qualified individual with a disability,") you need to be able to perform all of the actual functions of your job. Since you can perform all but a small portion of your job, you probably do not have a disability, as defined by the ADA, and are not covered by the ADA. In other words, if you cannot perform an actual function of your job, your employer does not have to keep you in it. As such, a work restriction from your doctor does not necessarily protect your job.

If you filed a workers compensation claim and pursue a retaliation claim, it will be important to find out if your employer required employees who did not file WC claims to perform every aspect of the job. If not, then your employer's reason for terminating you may be phony. Evidence that the employer's stated reason for terminating you is not the real reason is evidence of retaliation, as is the comment that this employer refuses to hire employees with prior back injuries.

Best regards,

Neil.


posted Mar 12, 2003 08:20 AM [EST]

Answer to Releasing an Employee on Maternity Leave

Do not terminate an Ohio employee while on maternity leave.

Ohio has a specific law requiring six weeks of maternity leave. It applies to employers with fewer than 15 employees. If you terminate your full time employee as described, you will almost certainly face a claim. Without documentation to back up your performance concerns, the employee has a good chance of prevailing on that claim. Bottom line -- do not terminate this employee while she is on maternity leave.

As with any employment matter, you need to share your performance concerns with the employee as they arise. You should follow this up with formal evaluations. This tells the employee where she stands and allows you to make changes to your workforce when the performance of the employee merits it.

Our firm provides employee manuals, guidance with performance issues and legal advice regarding terminations. If you want to put a solid employment relations program in place, suitable to your size, call me at 330.665.5445.

Best regards,

Neil Klingshirn

posted Mar 10, 2003 09:36 AM [EST]