Answers Posted By Neil Klingshirn

Answer to Non-Compete Agreement and Forming Company in Direct Competition

You raise intellectual property issues

Your situation has copyright and possibly patent implications. The code that you wrote is almost certainly subject to a copyright that your former employer owns. If so, you cannot use any of the code that you created for your former employer's product.

Although you may plan to write entirely new and original code, and thereby avoid reproducing or copying any of the old code, you will have a factual issue as to whether or not you really did so. Thus, if your former employer wants to challenge you, it will be able to do so. Under copyright law, if your employer registered its copyright, you could be liable for $20,000 to $150,000 in penalties.

If your code is truly unique, you may still have a patent problem if your employer applied for and obtained a patent on your work. You therefore need to find out if a patent exists on all the code you created.

The good news is that a non-compete appears not to be a problem, so long as you do not market or sell your code during the non-compete period. Unless your non-compete agreement bars your development of a competing product, I would be surprised if it prevented you from writing the code.

At bottom, you should consult with a good intellectual property attorney to formulate a business plan that your former employer cannot challenge. Once you do, be sure to consult with an accountant about how to set up a business and whether you should incorporate.

I wish you the best of luck. My brother left Motorola about 12 years ago to do something similar to what you are about to do. He maintained good ties with everybody, stayed on the right side of relevant legal issues and now lives in a beautiful Santa Barbara mountainside home.

Regards,

Neil.

posted Jun 26, 2002 12:11 PM [EST]

Answer to I was forced to resign or get fired...

Basics of FMLA coverage.

If your employer has 50 or more employees and you have worked for a year and at least 1250 hours during the last year, the FMLA covers you. Check the FAQ article on this site for more information about the rights available under the FMLA if you are covered.

Regards,

Neil Klingshirn

posted Jun 17, 2002 08:14 AM [EST]

Answer to Abusive Boss

You do not have to endure hitting, abuse and stalking by your boss

When your boss touched you in an offensive way without your consent, he or committed a battery. You can file a suit to recover money damages for the pain, suffering, fear and embarrasment that it caused.

If your boss's pattern of conduct has put you in fear of your physical safety, you can obtain a civil protection order forcing him to stop that conduct. Conduct that knowingly puts you in fear for your safety is known as stalking. If he violates the order, he can go to jail.

As for pure yelling and abuse, if he is doing it to you but not males, it may be a form of sexual harassment. If he is doing it to males as well, it may not, standing alone, be subject to a lawsuit. However, with the potential battery and stalking, you may be able to recover for the emotional upset that the yelling is causing.

If you want to discuss taking legal action to pursue these claims, we offer an initial consultation for $200.00. Call Cheryl Green at 330.665.5445,ext. 0 and she can get you on my calendar.

Regards,

Neil.

posted Jun 14, 2002 08:40 AM [EST]

Answer to Unemployment benfits for quitting

You can receive unemployment if you quit for "just cause"

Unemployment awards benefits to employees who have been forced to resign through no fault of their own. The most obvious example is a drastic cut in pay.

A drastic increase in duties may qualify you for benefits, but it is less certain. Your better course of action is to find new employment, even if it does not pay as much as the old employment, since unemployment compensation benefits are pretty meager.

Regards,

Neil Klingshirn

posted Jun 12, 2002 10:39 AM [EST]

Answer to non disclosure

Your employer can condition your continued employment on signing a non-disclosure

If you are an employee at will, meaning that you do not have an employment contract and are not in a union, your employer can require you to sign a non-disclosure agreement to keep your job. There is no law to prevent an employer from terminating an employee who refuses to sign a non-disclosure agreement.

That said, be careful of what you sign. If it is purely a nondisclosure agreement (NDA), you run little risk in signing it. Under Ohio trade secrets law, you cannot disclose proprietary employer information, whether you sign the NDA or not. If the agreement also limits your ability to compete against your current employer, however, be very careful, for signing this agreement may limit your ability to earn a living. For more information on non-competes, see the Employment Law FAQs on this site.

Regards,

Neil.

posted May 31, 2002 2:16 PM [EST]

Answer to Could be discrimination?

Signs that accurately state your hiring standards are okay.

As long as you are not, in fact, accepting applications and do, in fact, require applicants to pass a drug test, posting signs stating as much is both lawful and appropriate. You are allowed not to accept applications when you are not hiring, and you are allowed to condition employment on a successful drug screen. Therefore, commuincating this to potential applicants is both helpful and lawful.

Regards,

Neil.

posted May 1, 2002 2:41 PM [EST]

Answer to Change Required Hours per Week for Salary Employees

Your employer can change your hours

Regrettably, your employer is free to change your hours of work, your pay and even your employment. You, however, are free to find other employment and should begin exploring it. Once you do, you will be in a position to bargain for better pay or accept the better position.

Best of luck,

Neil.

posted Apr 23, 2002 12:27 PM [EST]

Answer to former employer getting scary

You have a lot of choices

Hi E:

Your first option is to sue to enforce the settlement agreement. If the amount is less than $3,000, you can file in small claims court. Alternatively, since the employer failed to live up to its end of the bargain, you can probably avoid the release of claims and pursue any claims that you may have had before you signed the settlement agreement. In that case, however, you give up any severance benefits.

Whether you choose to pursue the settlement agreement or your underlying claims, you should also pursue your unemployment compensation benefits. If Job Services denies your claim, appeal the denial. An appeal will result in a hearing. You can explain at the hearing that the wife ran you out and that you were not discharged for performance reasons.

Finally, you (and your husband) may have claims for defamation. If the poor references occured after you signed the settlement agreement, you did not release the company from your right to sue them for the defamation.

As for the scary part, if this individual is threatening you, you can ask the Stark County Court of Common Please for a civil protection order to make her stay away.

If you would like assistance with any of these options, we offer a consultation for $200.00. Call Cheryl at 330.665.5445 if you would like to get on my calendar. Our office is in Akron.

Best regards,

Neil.





posted Apr 23, 2002 11:18 AM [EST]

Answer to Disability

You may have claims under the ADA and FMLA

Have you used the Family and Medical Leave Act to take time away from work, either at the onset of the cancer or for later treatment? If so, you may have rights under the FMLA.

You may also have rights under the ADA, although if you recovered quickly from your cancer, you might not be considered "disabled".

Either way, you should apply for the position and see what happens. If you do not apply, you will probably be treated as waiving your rights to make a claim.

Depending on the nature of the games that your employer has played with you and the witness statements, you may have other claims. We offer an initial consultation at $200.00 to explore your matter fully. If you are interested, call Cheryl at 330.665.5445, ext. 0 and she will get you on my calendar.

Regards,

Neil Klingshirn

posted Apr 15, 2002 12:29 PM [EST]

Answer to Disparaging/False Statements in Performance Review

Make a factual, diplomatic rebuttal of the false performance review

Ohio law provides you very little legal redress for false and disparaging remarks on a performance review. First, you would need to establish that the false remarks were made for an unlawful reason or on an unlawful basis, such as your race, gender or age,and then show that they had a material, adverse affect on your employment. Until your employer justifies a demotion or termination on these remarks, you probably cannot show an adverse action.

As for defamation, an employer is generally free to express its opinions in a performance review. You would have to show malice towards you to overcome your employer's privilege to speak its mind in a performance review.

Although you do not have much in the way of legal remedies here, you can and should make a factual, objective and diplomatic response to the false statements. Give it to the HR person, keep a copy, and ask to have it included in your personnel file.

Regards,

Neil.

posted Apr 12, 2002 10:54 AM [EST]