Answers Posted By Neil Klingshirn

Answer to Layoff Voiding My Non-Compete

An involuntary termination may not void a non-compete

The answer is that it depends on the language of your non-competition agreement. If it restricts your competition only in the event of a resignation or termination for cause, you will be free to compete. However, if it applies after termination, for whatever reason, you will not be released merely because the termination was involuntary.

You may be able to escape the non-compete another way, however, which is to claim that your employer no longer has any legitimate business interest to protect (the clients have gone). This is a difficult argument to make, however, and could trigger a lawsuit to find out if you are correct or not. Therefore, do not attempt it without consulting your own attorney beforehand. Above all, do not rely on this message to take a specific course of action.

Regards,

Neil.

posted Jun 22, 2001 1:01 PM [EST]

Answer to With less than 12 mos. employed am I entitled to FMLA for newborn if I wait until 12 mos. w/company?

What a good question! Yes, you are entitled to leave.

Congratulations on the upcoming arrival of your child. You are eligible for leave upon reaching the 12 month/1250 hour mark. At that time you can take leave for a specified number of events, one of which is the birth of your child. You are entitled to take this leave at any time during the 12 months following the child's birth. Therefore, you can return to work, become eligible, and then take your leave.

The interesting question will be what to do with the time that you necessarily take off for the birth of the child. In Ohio, you are entitled to take up to six weeks off for maternity leave, regardless of the amount of time that you have been at work. Can that time be counted against your 12 weeks, once you qualify? If it could, would you be interested in taking 18, unpaid weeks off?

As a practical matter, there is little downside to working through this issue with your employer. Decide what you want to do and propose it. If you get aggressive,like by asking for 18 weeks, expect your employer to object. At that point, decide how badly you want the time off and then contact me to formulate a response to your employer.

I hope this helps.

Neil.

posted Jun 22, 2001 12:56 PM [EST]

Answer to Client/Employer purchased my credit report without my permission

Credit checks in employment

Dave:

The answer to your question is in the Fair Credit Reporting Act. It prohibits employers from making employment decisions based on a credit report without the applicant's consent and without informing the applicant that it used the report. The first issue in your case is whether you are an "employee." From your question, it sounds like you may be an independent contractor and not an employee. Second, it does not sound like the client made an adverse decision based on the report (i.e., did not hire you or fired you). This leaves the question of whether you have a remedy against any other person who accesses your credit records. I do not know the answer. However, you should be able to find out by doing a general search engine search on the phrase Fair Credit Reporting Act.

Best regards,

Neil.

posted Jun 7, 2001 11:05 AM [EST]

Answer to Being Disciplined for Being Sick?

Your employer may be interferring with your benefits.

Maureen:

This sounds fishy. First, did the company tell you beforehand that your absences could extend your probation? Second, did the company extend your probation, before or after learning that you had a serious health condition or would use short term disability (STD) benefits?. Third, did the company extend the probation of other employees with a similar absenteeism track record?

Depending on these and related answers, you may have claims involving the FMLA and ERISA. ERISA is a federal law that requires employers to make benefits available according to the plan's terms.

You should find out exactly what the short term disability (STD) benefits are. To do this, ask your employer for a copy of the short term disability policy. You are entitled to this. See who is covered. It is possible that you are covered after a specific period of time, regardless of your probationary status.

Once you have this information, you should see an attorney. We are in your back yard. We offer an initial consultation for $200.00. You can learn more about our consultation policy at

http://www.myemploymentlawyer.com/Schedule%20a%20consultation.htm

(copy and paste that link in your address bar).

If you are intersted, call Rhonda at 330.665.5445, ext. 0.

Best regards,

Neil.

posted May 27, 2001 5:07 PM [EST]

Answer to Reembursement of relocation expenses

You may have a contract to repay your relocation expenses

Hi Jeff:

The answer to your question is "maybe yes," you do have an enforceable agreement to repay the relocation expenses. The main issue is whether you received anything in exchange for the promise that you made to do so.

The general rule is that an employment agreement is enforceable against the employee if the employee received "consideration" for making the agreement. Consideration is anything of value.

In your case your employer will say that you received a job and the relocation benefits in exchange for your agreement to pay the relo expenses back if you left within your first 12 months. It sounds, however, like the payback agreement had nothing to do with either the job or the relocation itself, especially if you had started the job and had already moved by the time you signed the pay back agreement. Even if you had not signed the agreement, but your new employer had convinced you to take the job by promising to pay reloctation expenses, you may be able to argue no "new" consideration for the pay back agreement. If you did not receive anything new, the employer arguably cannot enforce the contract in court.

In other employment agreement contexts in Ohio, however, particularly in the non-competition context, courts have allowed employers to get around the no new consideration problem by treating employees at will as getting something valuabe each new day of employment. If that theory of consideration is applied to your pay back agreement, you will not be able to avoid it.

Bottom line: a conservative approach will be to treat the pay back agreement as binding. If you really want to leave, invite the new employer to cover those expenses for you, if you are forced to pay them.

Best regards,

Neil Klingshirn

posted May 25, 2001 3:18 PM [EST]

Answer to Once Trooper begins therapy for personal problems a system of harrassment began

The Highway Patrol might consider you to be handicapped.

If your nerve problem is a "handicap" under Ohio's civil rights law and, despite such handicap, you can do your job with or without a reasonable accomodation, your termination may be unlawful discrimination.

If your nerve problem is not a handicap but your employer thinks it is, your termination may still be unlawful. The main issue is whether your nerve problem was the real reason your employer terminated you and, if so, whether your nerve problem is such that it amounts to a "handicap."

posted May 14, 2001 10:27 AM [EST]

Answer to Can an employer hold your pension savings plan after you have been terminated?

Ask for the Plan document and review it with an ERISA attorney

Lynn:

Write to your employer and ask for the pension plan document. Also ask for the summary plan description. The employer may want to give you the summary only, but make sure you get the full document. You have the right to get it.

Read it carefully and see what it says about releasing money to participants who terminate their employment. You should also contact an employment attorney specializing in an area of the law called ERISA. This law govern's an employer's administration of health and pension benefits.

Generally speaking, an employer's obligations are governed by the plan document. That is why you need to get it and read it. In addition, you have some other rights under ERISA that might help. That is why you should see an attorney.

Do both things quickly. Your time to challenge and then appeal decisions of the pension plan are very limited.

I hope this helps.

Neil Klingshirn

posted May 10, 2001 10:17 AM [EST]

Answer to Help! I think I've been blacklisted. . .

Find out what they are saying in your reference.

Bontz:

First, read the Employment Law FAQ on this site on Family Leave. If you were employed for over a year, your employer had more than 50 employees and your chest pain qualifies as a "serious health condition," you may have a claim under the FMLA. Contact me if that is the case.

As for blacklisting, you need to find out what your former employer is saying about you. They told you they would only give you a "neutral" reference. You can ask a friend with a business to make a reference call for you and find out if that is what you are getting.

If the company is giving you a negative reference, you have another obstacle to overcome, which is an Ohio law that protects employers from suit for making references. Unless you can prove that the reference was false and malicious, you have very little chance of prevailing in a suit based on a bad reference.

Please note, you can search MEL's Answers using the keyword "defamation" to find answers to similar questions to yours.

I hope this helps.

Regards,

Neil Klingshirn



posted May 10, 2001 10:11 AM [EST]

Answer to Is sick leave the same as FMLA?

Your employer can count days that you are out for a serious health condition towards FMLA

FMLA and short term disability are two different things. FMLA protects your job from being filled during an absence for a serious health condition or birth or adoption of a child, assuming you are eligible for it. It is unpaid. Short term disability provides some payment while you are away from work due to a disability. It does nothing to protect your job. While you might be eligible for STD and FMLA for the same absence, they are two different benefits.

Your employer can require you to "use up" your unpaid FMLA time if you are out due to a serious health condition. To find out what that means and to learn more about the FMLA, go to the Employment Law FAQs menu on this page and click on Family Leave.

Regards,

Neil.

posted Apr 27, 2001 4:55 PM [EST]

Answer to I had a stroke..and I was fired

You have FMLA rights if your employer employs more than 50 people

If your employer has 50 or more employees and you worked full time for a year, you should have FMLA rights for the first twelve weeks and anti-retaliation protection for missing the work when you return.

If you do not receive a response from a Georgia attorney, contact www.nela.org and follow the instructions for an attorney referral to find a Georgia attorney near you knowledgeable about the ADA.

posted Apr 20, 2001 11:21 AM [EST]