Answers Posted By Neil Klingshirn

Answer to Termination of employee

Engaging in protected conduct does not insulate an employee

An employer can terminate an at-will employee without reason or for any reason, so long as it is not an unlawful reason. You could therefore terminate this employee for no reason or for the reason(s) of excessive absenteeism, theft or no-call no show.

The risk you run, however, is that the employee will claim that the real reason for termination is unlawful, being either that the employee is disabled or is on family and medical leave. Assuming that the employee is, in fact, disabled (which is not at all clear) or is entitled to FMLA leave (which requires you to have 50 or more employees and the employee to have worked at least a year), you should make sure that you can prove that you decided to terminate the employee for the lawful reasons and not the unlawful ones.

You may call me at 330.665.5445 if you would like to review this matter in greater detail. We offer an initial consultation at an hourly rate of $130, which I would offer for purposes of this evaluation.

Best regards,

Neil Klingshirn

posted Jan 10, 2003 3:27 PM [EST]

Answer to Parents' rights

B elieve it or not, you do not have the right to look at your own personnel file.

Ohio law treats personnel files as the employer's property. An employer is therefore free to gather and keep whatever information it wants to about its employees, so long as not intruding into their privacy. The employer has no legal obligation to share that information with anyone, including the employee it is about.

As a practical matter, most employers understand that their employees want to know what is in their personnel file and will allow them to see what is in them. As a result, the common perception is that an employee is "entitled" to see her own file. You thus may be able to gain access to your daughter's personnel file by having her ask for the opportunity to review it. As for getting access to it yourself, if the employer says no, then you have little legal recourse to force them to open it up to you.

Regards,

Neil.

posted Dec 30, 2002 09:07 AM [EST]

Answer to Gender Discrimination - Pay Rates

You have a classic equal pay claim

Both Ohio and federal law require an employer to pay opposite sexes equally for "substantially equal" work. So long as you are performing substantially equal work as your male counterpart, you and your female co-worker have a classic equal pay claim. Under this claim you would be able to recover the difference in wages ($1,000 a year) plus your attorneys' fees.

If you have not been working there long you will not have much to recover. It therefore probably does not make much sense to hire an attorney to pursue a lawsuit. Further, most attorneys would not see enough to recover to make a contingency fee arrangement worthwhile. I therefore suggest that you make a professional presentation to the company asking for an adjustment (it is unlawful to adust the male down, by the way). If that does not work, you can file a complaint with the equal employment opportunity commission. If neither of those works, email me with the company's position (i.e., its stated reason for the pay difference) and we can discuss it further.

Best regards,

Neil.

posted Nov 26, 2002 09:04 AM [EST]

Answer to Unsure of Non-Compete requirements

You may be able to avoid your non-compete

You describe two potential defenses to a suit by your former employer to enforce your non-compete. The first is that, with the pay change in March, the deal changed, such that the non-compete no longer applied. This defense will depend on the specific language of your non-compete and is probably a long shot. At best, you might be able to argue that the agreement wtih the non-compete in it ended with the pay change, such that the non-compete period began to run then. Most agreements do not tie their termination to a change in compensation, however, so this would be a bit of a surprising result.

The better defense is that you do not pose a threat to your former employer if you are not calling on any former customers or prospects. For starters, 100 miles is a significant geographic scope. Unless you actually sold throughout that region, a court could be persuaded to not enforce it. Finally, a court should only enforce a non-compete to the extent necessary to protect the employer. Therefore, if you can prove that you are not calling and cannot call on your former customers or prospects, you may be able to avoid it.

The problem is that, if your former employer is inclined to enforce the agreement, you have to get through a lawsuit to find out if it is enforceable. Another employer might not be willing to hire you.

If you would like to discuss this in more detail, we offer an initial consultation for $200.00. I would be willing to do it by telephone to save you the trip up from Columbus, as I am in Akron.

Regards,

Neil.

posted Nov 25, 2002 09:49 AM [EST]

Answer to Retaliation

Don't sign the release

You describe a classic retaliation case. You are suffering retaliation by both the termination and the continuing negative references. Federal and state law give you a remedy for the wages that you lose as a result, as well as your emotional pain and suffering.

By asking you to sign a release, the company is offering to buy your right to recover a remedy for the harm it has done. If the company was willing to pay you full value for that harm, you should be willing to sign a release for that amount. However, at this point it is probably impossible to know how much you will lose, at least until you find comparable employment. $3,000 is, on its face, very low. In addition, the company is not making it easy for you to find new employment.

Take a look at the FAQ article on this site regarding severance pay. The same issues are at play in your case. Bottom line, you should consult with an attorney before you sign anything. We offer an initial consultation for $200 for this purpose. We also accept cases on a contingency fee basis if the potential recovery is sufficient to cover the expected costs. If you would like to get together, call Cheryl at 330.665.5445, ext. 0 to get on my calendar.

Best regards,

Neil.

posted Nov 18, 2002 09:35 AM [EST]

Answer to Employer witholding my final paycheck -- Ohio

You are entitled to your pay without doing an interview

Ohio law requires an employer to pay you promptly. The law is at http://onlinedocs.andersonpublishing.com/revisedcode/. Search for 4113.15. If your employer does not pay you, you can file a small claims action and recover your pay, as well as the penalties spelled out in that section.

Best regards,

Neil.

posted Oct 25, 2002 09:27 AM [EST]

Answer to Terminated and Defamed

The basis for suit depends on the specific complaints

Ohio law does not expressly protect employees who complain about management's abilities. Depending on the nature of the ethical issue, however,Ohio law may give you some measure of protection from retaliation for registering ethical issues, depending on the nature of the ethical issue.

As for defamation, you may have a claim if you can prove that you were not "insubordinate" or "belligerent." If you can further prove that you have been denied new employment because of a false reference, you may be able to show money damage as a result.

At bottom, this kind of case is more factually intensive than most. In order to properly evaluate your claim we would need to meet and discuss the specifics of your complaint to the company and whatever support the company might have for its claims of behavior on your part. We offer an initial consultation for a fee of $200 for this purpose. If you are interested, call Cheryl at 330.665.5445 and she can get you on my calendar.

Regards,

Neil.

posted Oct 17, 2002 11:15 AM [EST]

Answer to non-compete for right to purchase stock

A non-compete needs some "consideration", but not much

I am not entirely clear on what you were given to buy stock and by whom, and on what terms the stock was offered, and by whom. The bottom line, however, is that the company with whom you have the non-compete had to give you something of value in exchange for your decision to sign the non-compete. That something of value does not, however, have to be much. Many courts consider continued employment sufficient considerations. Therefore, I would need to discuss the specific transaction with you to see if you could avoid the non-compete on the basis of lack of consideration.

There are a number of other strategies available to dealing with a non-compete. If you would like to discuss them, we offer an initial consultation for $200.00. Please call Cheryl at 330.665.5445 if you would like to schedule a consultation, as she can get you on my calendar.

Regards,

Neil.

posted Oct 14, 2002 10:00 AM [EST]

Answer to Company wants proof of sortware being deleted, no such prove is available from manufactor..?

Your employer cannot unreasonably refuse to pay you.

Tim:

Ohio law requires your employer to pay you promptly upon earning your wage. Generally, this means within 30 days of performing the work. Ohio law does not permit the employer to withhold or deduct amounts from your pay unless it has a claim against you.

Based on your email, it appears that your employer is placing an unreasonable condition on your receipt of your final pay. It cannot do that any more than it can require you deliver a rock from the moon before it will pay you. That is, if the uninstall program does not generate a serial number (I have never heard of any program doing that), you obviously cannot deliver such a serial number.

Moreover, you are offering to prove to your employer that you have deleted the program. An inspection of your computer would be sufficient to do that. Finally, even if you refused to uninstall that program, your employer would have to prove some damage as a reseult of it. Keeping what is now probably useless software on your computer does not harm you.

Here is a link to the Ohio wage payment law:

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=

Bottom line: tell them to come to your home, check your computer and pay up.

Regards,

Neil.

posted Oct 10, 2002 4:58 PM [EST]

Answer to Terminated for having baby

You may have maternity leave rights.

An employer is expressly prohibited from terminating you for becoming pregnant. An employer with 50 or more employees is also prohibited from terminating you for taking maternity leave, so long as you have worked at least 1250 hours and at least one year for that employer. Technically, however, an employer is not expressly prohibited from terminating an employee because the employee has family obligations that conflict with work.

Since your employer terminated you while you were on leave, you probably have a viable claim that that is the reason that you were fired, especially because your employer does not know if your family obligations will conflict with your work.

Best regards,

Neil Klingshirn

posted Oct 3, 2002 5:08 PM [EST]