Answers Posted By Neil Klingshirn

Answer to Termination for Inquiry of Unemployment Rights

Ohio prohibits terminations that jeapordize public policies

Hi Erin:

Ohio courts have developed a wrongful discharge law that prohibits terminations that violate public policy. The classic example is a discharge of an employee who misses time for jury service.

If you can prove that your employer terminated you because you asserted your right (or said you would assert your right) to apply for unemployment compensation, you may have a viable claim. The burden will be on you to show 1) that your conversation about unemployment compensation triggered your termination and 2) that permitting employees to inquire about unemployment compensation is a sufficiently strong public policy to merit a claim. It would appear that you may be able to carry your burden on both of these.

Local attorneys are willing to work on public policy discharge claims on a contingency fee basis. Our firm is one of them. Ours and other firms are very selective when it comes to contingency fee cases, however, and we base our selection on the merits of the case, the amount of damage (lost wages, emotional harm) that you have suffered and other factors. In order to make this evaluation, we first conduct an intitial consultation, after which we investigate the claim.

Our consultation fee is $200. If you are interested, please call Rhonda at 330.665.5445, ext. 0 to schedule a consultation.

Regards,

Neil Klingshirn

posted Dec 12, 2001 11:06 AM [EST]

Answer to Is Non-compete Agreement enforceable if the employer has no more business with the client

You can file suit for a ruling that old employer has no business interest .

Hi:

Ohio courts generally enforce non-competes only to the extent the employer who wants to enforce it can show that enforcement is necessary to protect a legitimate business interest. In your case, the business interest that the employer would claim to protect is a customer who has chosen not to do business with your old employer. Therefore, your old employer will have difficulty arguing that it still has a business interest to protect.

As for waiving the non-compete for another employee but not for you, it is discrimination, but probably not unlawful discrimination. That is, unless you can prove that the employer is refusing to waive your non-compete because of your race, age, gender, national origin or other unlawful reason, it is allowed to discriminate.

Importantly, you may still be able to use the fact of the waiver for the other employee as proof that the employer has no business interest to protect in your case. That is, if it had such an interest, it would not have waived the non-compete for the other employee.

Finally, as for whether you can sue the old employer, Ohio law allows you to file a "declaratory judgment" action. This suit will ask a court to "declare" whether the non-compete is enforceable. Again, your best argument that it is not is that the employer no longer has a business interest to protect.

I suggest that you hire an Ohio attorney near you to write a letter to your old employer explaining all of this. Your employer should be willing to negotiate a release of your agreement. If you would like any further help, please call.

Regards,

Neil.

posted Dec 6, 2001 1:17 PM [EST]

Answer to Termination of Employment

You may have a remedy if your termination was for an unlawful reason.

Hi Bruce:

The legal answer to your question is that your employer has the right to terminate you for any reason if you were an "employee at will." You probably were, unless you signed a contract or belong to a union.

An exception to employment at will is where your employer terminates you for a reason that is unlawful. The most common examples are discrimination based on age, sex, race or other prohibited reason, as well as retaliation for engaging in protected conduct. You can learn more about both of these topics on the FAQs and Answers on this site.

In your case your employer told you that it terminated you for conduct that it appears to claim violated its business ethics policy. This reason, if true, is generally a lawful reason. Even if not true or provable, it is not an unlawful reason.

If this reason is false, however, you can use the fact that it is false as evidence of discrimination or retaliation. In short, if you think that your employer fired you for an unlawful reason, we may be able to help you pursue a remedy, and the stated reason, if false, will help you prove your case.

posted Nov 7, 2001 5:20 PM [EST]

Answer to FMLA/Newborn care leave

Here is some general information about newborn care

You can use FMLA for the birth of a child for any reason during, including simply being with the child. If you want to take a day off here and there for doctor's visits as opposed to taking weeks off at a time, you may need to provide your employer with specific, advance warning of this.

The department of labor has a good website on the FMLA: http://www.elaws.dol.gov/fmla/wren/menufmla.htm. />
Best regards,

Neil Klingshirn

posted Nov 5, 2001 1:46 PM [EST]

Answer to Missing last paycheck from a law office

You can file a small claim under Ohio's wage payment law

Ohio law requires your employer to promptly pay your wages. If he does not, you could go to the Akron Municipal Court's Small Claims division and file suit to collect your wages. Base your claim on contract (He offered and I agreed to work for $X.-- per hour and thereafter worked Y hours for which I have not been paid) and Ohio's wage payment law. Here is a link to the 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= />
As you will see, you can ask for penalties under the wage payment law.

You do not need an attorney to pursue a matter in small claims.

Best regards,

Neil Klingshirn

posted Oct 29, 2001 5:36 PM [EST]

Answer to When is Overtime pay at a driving school required?

Ohio overtime law applies to your employer

Hi Mary:

Your employer probably believes that he is exempt from federal overtime laws because he either grosses too little or because he is not involved in interstate commerce. In either case, he is still subject to Ohio's overtime laws if he grosses over $150K. Here is a link to Ohio's overtime law (copy it and paste it to your address bar): http://onlinedocs.andersonpublishing.com/revisedcode/home3.cfm?GRDescription1=revised%20code&GRDescription2=title%2041&GRDescription3=&TextField=%3CJD%3A%224111%22%3ECHAPTER%204111%3A%20MINIMUM%20FAIR%20WAGE%20STANDARDS&GRStructure1=4111&GRStructure2= />
As to your other questions, you generally are only entitled to overtime for hours worked over 40 in a week; not over 8 in a day. Also, you are not entitled to breaks under the overtime laws; just compensation for working over 40 hours in a week.

I hope this helps.

Neil Klingshirn

posted Oct 25, 2001 10:13 AM [EST]

Answer to Non-compete

Have you tried asking for permission to work for the client?

From a legal perspective, you could argue that the employer lacks a protectable interest in preventing you from working for the client that no longer has work for your employer. This is a difficult argument, however, which the employer could rebut by claiming that you and the client got together and worked out a plan whereby the client would terminated the consulting agreement and then hire you. Also, your employer could stick by its agreement just to make a point.

Your best bet is to ask to be released from the non-compete for the sole purpose of working for a client that your employer has no hope of keeping as a client. Your request becomes much more effective if you sit down with an attorney beforehand and work through your particular factual situation, as the initial ask is delicate and follow-up negotiations are sometimes tricky.

If you do not receive a response from an attorney in Columbus, you can call my office and schedule a telephone consultation. We charge $150 an hour for the first hour of a telephone consultation. That oftentimes is sufficient to enable you to follow through with the negotiations from there.

Best regards,

Neil Klingshirn

posted Oct 25, 2001 08:34 AM [EST]

Answer to Employer will not pay severance

You can file suit to enforce a severance benefit

You have two issues. The first is whether you are entitled to severance pay and the second is whether the company will pay it. If you are terminated , you are entitled to three months of pay or until you find a job, whichever comes first. Getting the company to pay, however, may require filing suit.

The company will have little defense to a suit for severance, assuming you were terminated. Lack of funds is not a defense. A judge should rule in your favor and give you an order requiring the company to pay. At that point you have won only half the battle. The harder half may be getting paid.

To get paid, you will have to take the court order to your employer's bank and fill out a garnishment order. You can also attempt to attach other assets. This is all difficult, confusing and time consuming. If the employer is being honest and really has no money, it will also be futile.

If you are not terminated, find another job now. If you are terminated, consider filing suit. You can do so without an attorney if you needed to do so. If you believe that the company really has no money, however, consider bargaining for what you can get and finding work with a more solid enterprise.

I hope this helps.

Regards,

Neil.

posted Oct 19, 2001 2:10 PM [EST]

Answer to Does non-compete transfer from current client to acquiring company?

Does you non-compete speak in terms of action by you?

I have three suggestions. First, read the literal language of your non-compete. If it uses language describing actions by you that are prohibited, it may not prevent you from working for the acquiring company. That is, if it says that you shall not accept employment from a competitor, then you have not done so based on your question.

Second, if your original employer tries to enforce the non-compete, it has to show some legitimate business interest to protect. The fact that you are coming into competition with them in such a roundabout way suggests that no legitimate business interest is really involved.

Third, explore whether your current customer or the acquiring company will indemnify you in connection with a non-compete battle. It is their actions and not yours that may create a breach of your contract. However, this is a fairly extreme position to take with respect to a current customer, who can tell you to get lost altogether, but it gets at the fact that you have done nothing to make the non-compete an issue.

Best regards,

Neil.

posted Oct 3, 2001 2:27 PM [EST]

Answer to Job restructuring during maternity leave

The company restructure the same way it would have if you did not take maternity leave

If your employer would have restructured your department in the same way, leaving you responsibility for just half of that department, had you not taken maternity leave, then it is free to do so if you take leave. The anti-discrimination laws prevent an employer from taking an adverse action because of, in your case, your maternity leave. If the employer can prove that your maternity leave had nothting to do with its restructuring decision, it is free to put it in place.

posted Oct 3, 2001 09:47 AM [EST]