Answers Posted By Neil Klingshirn

Answer to Pay Docking

Docking pay may run afoul of the overtime and minimum wage laws

As long as your daughter's pay for the week is at least the minimum wage for every hour worked, the employer can dock her pay. However, if the employer is treating her as an exempt employee, meaning she is paid on a salaried basis without overtime, docking her pay for absences of less than a day will cause her to become non-exempt, or entitled to overtime.

Regards,

Neil.

posted Apr 11, 2002 09:17 AM [EST]

Answer to Fired for failure to falsify critical paperwork

If you can prove your refusal to fudge caused your termination, you may have a claim.

Hi J:

In Ohio you can challenge your termination as retaliatory either as a "whistleblower" or in a wrongful discharge suit, or both. So long as the company asked you to fudge the quality information, you refused to do so and the employer fired you as a result, you have the basic facts to support a claim. Your short term as an employee does not give the employer license to retaliate against you.

If you are in Northeast Ohio, we offer an intitial consultation to explore your claims further. Our fee for the consultation is $200.00. If you are interested, call Cheryl Green at 330.665.5445, ext 0 to get on my calendar.

Regards,

Neil.

posted Apr 8, 2002 12:32 PM [EST]

Answer to Employment Contract Restrictive Covenant

Form a company and let it hire your co-workers

Restrictive covenants, including non-recruits, are contracts. Whether your non-recruit contract prevents you and your co-workers from partnering up to form a new company is purely a matter of contract interpretation. That is, the contract says what it means and means what it says.

That said, two ways to deal with clauses like these are to 1) avoid any recruiting by all of you deciding on your own to leave and 2) form a new company that employs each of you. Be aware, however, that while this may technically avoid a contract violation, it still has to pass the test of not being too cute, since most restrictive covenants contain language that says you may not do something "either directly or indirectly", which would then cover the tactics that I just described.

Best regards,

Neil Klingshirn.

posted Mar 14, 2002 10:07 AM [EST]

Answer to severance/ unemployment

Severance considerations

If your severance package requires you to sign a release of rights, an attorney will help you value the rights that you give up. Check the FAQ article on severance agreements on this site for a general discussion of how to value rights against the benefits of a severance package.

Generally speaking, if you are collecting severance as pay continuation, you cannot collect unemployment. You are either treated as still employed, and therefore not eligible, or else unemployed and eligible, but the severance offsets your unemployment benefit dollar for dollar.

The rules have changed on this issue, so try calling Job Services and ask the question. You should not have to give your name to get an answer to this particular question.

If you are interested in a consultation, our fee is $200.00 and we generally need a week to get you scheduled.

Best regards,

Neil.

posted Feb 28, 2002 10:01 AM [EST]

Answer to Any help would be greatly appreciated

Here is the test for whether you are entitled to pay for taking classes

Attendance at after hours classes does not have to be counted as time worked, and therefore is not paid at either regular or straight time, if:

(1) attendance is outside of the employee's regular working hours;
(2) attendance is voluntary;
(3) the course, lecture, or meeting is not directly related to the employee's job; and
(4) the employee does not perform any productive work during the attendance.

Based on your question, your attendance is not voluntary and the course is job related. Therefore, it would appear that the hours spent in class would be "hours worked" under the overtime laws.

Note: your question assumes that you are not exempt from overtime. If you are a salaried supervisor, for example, your are not entitled to any overtime, and therefore would not be entitled to time and a half for time spent attending classes.

If you are entitled to overtime, you are only entitled to time and a half for hours worked over 40 in a week; not 8 in a day. If you are working a 36 hour week, therefore, you are not entitled to overtime until after the first four hours of class.

I do not know the answer on whether your employer must pay for materials.

Finally, if your employer must pay you but wants to pay you as little as possible, he could probably get away with paying you minimum wage for hours spent in attending class, since an employer is free to pay its employees different rates for different types of work.

Best regards,

Neil.

posted Feb 5, 2002 3:20 PM [EST]

Answer to State of Ohio Laws regarding maternity leave

I believe that you are entitled to six weeks of unpaid leave.

If memory serves me right, administrative regulations implementing Ohio's Civil Rights Act require employers to provide at least six weeks of unpaid maternity leave. Contact the Ohio Civil Rights Commission to verify this.

Regards,

Neil.

posted Feb 5, 2002 09:19 AM [EST]

Answer to Do I have a case for wrongful termination?

Why did your employer reassign you?

Hi Jason:

An employer in Ohio can terminate an employee for refusing a new job assignment, even if the assignment is outside of the employee's knowledge and qualifications, unless the employer is trying to force the employee to quit for an unlawful reason. Therefore, for purposes of answering whether you have a case, answer first why your employer made the reassignment. If it was a dumb but otherwise innocent decision, you probably do not have a case. If it was because you had complained to governmental authorities or because of your gender, race, age or other protected status, you may have a case.

Assuming an unlawful motive, the next question is whether you were justified in turning down the offer. I would need to know more about your situation to give you a specific answer. Generally speaking, however, if your employer wanted to force you out and gave you a "choice" that no reasonable employee in your shoes would accept, the law may treat you the same as an employee whom the employer fired outright.

As far as a statute of limitations, it depends on the nature of the claim that you would bring. An age discrimination claim in Ohio has a very short (as little as six month) statute of limitations. Otherwise, you can bring most other claims anywhere from two to fifteen years after it arose.

Best regards,

Neil Klingshirn

posted Feb 4, 2002 2:38 PM [EST]

Answer to Company closure over Holidays

Salaried compensation during holiday closure

Absent a contract of employment, an employer has no obligation to pay an employee who does not perform work, even where the employer does not schedule the employee to work.

The fact that the employer pays the employee on a salaried basis probably means that the employer does not pay the salaried employee overtime. The employer does not lose the salaried exemption from overtime by closing the plant and not scheduling the salaried employee for work, so long as the closure is for a day or more.

Finally, an employer generally can set the terms of vacation and holiday pay, including a requirement that the employee must use the vacation or holiday pay during a mandatory closure.

On the (not very) bright side, if the employer pays the employee nothing (not even vacation), the employee can apply for unemployment compensation benefits. However, the employee must wait seven days before collecting such benefits. This therefore would not benefit an employee laid off for only two days.

Regards,

Neil.

posted Jan 9, 2002 1:24 PM [EST]

Answer to Reductuton in wages anytime and selectively

Your employer should be careful when changing your wages

Absent a contract for a fixed term, your employer is allowed to change your pay, even from day to day. You can accept the pay or reject it at any time. The employer cannot reduce it below the minimum wage ($5.15/hour) or fail to pay you for overtime if you are non-exempt.

As a salaried employee receiving flucuating wages, you are not entitled for that reason alone to receive that salary. You may, however, be entitled to overtime. If you routinely work more than 40 hours a week, this will be something to explore.

Finally, changing your salary may expose your employer to an "equal pay" claim, which arises where the member of the opposite gender receives more than you for performing the a substantially equal job.

Regards,

Neil.

posted Dec 18, 2001 2:39 PM [EST]

Answer to paid day of pain

Your boyfriend can apply for workers compensation benefits for his lost time.

An employee's exclusive remedy for an injury at work is workers' compensation benefits. In order to receive benefits, your boyfriend must file a claim, called a First Report of Injury. The Industrial Commission takes it from there and provides an administrative process to determine the specific benefits to which he is entitled.

If your boyfriend's cut is a compensable claim, he can receive a portion of his lost wages, coverage for medical bills and compensation for the lost use of his finger in the future. He cannot get money for pain and suffering.

In the case of a severe injury, you should consult with an experienced workers' compensation attorney to obtain the full range of benefits available to you. Check with the bar association or telephone directory where you live.

Regards,

Neil Klingshirn

posted Dec 18, 2001 1:28 PM [EST]