Answers Posted By Neil Klingshirn

Answer to Severance Payout after 30 days

Severance pay can be based on conditions

Severance pay is usually based on an agreement by the employer to pay it. Therefore, the employer can set the severance terms that it wants. In your case, the employer conditioned severance on you remaining employed until 5/15.

The part about waiting a month to get paid would make me nervous, especially if the employer is financially shaky.

I suggest that you evaluate whether it is worth sticking around another six weeks and then risking non-payment. If you have a better opportunity elsewhere, consider taking it. Also, if you have the ability to leave now, approach your employer about paying you immediately on 5/15 if you stick around, since that is what the employer wants.

Please note that I am an Ohio attorney. This is general information only. To get legal advice, contact an attorney in your state.

Regards,

Neil.

posted Mar 30, 2001 09:35 AM [EST]

Answer to Are homosexuals and people over 70 safe from discrimination?

Age and sexual orientation laws and rules for repo

Q: Are people over the age of 70 protected by the ADEA?

A: Yes. When first enacted, the answer was no, but Congress has since amended ADEA to cover you after age 70. In addition, Ohio law protects anyone over 40 from age discrimination.

Q: And do Federal EEO Laws protect homosexuals from discrimination in employment?

A? No. Sexual orientation is not a protected classification under any federal anti-discrimination law.

Q: Does an employee have to report sexual advances to the company in order to claim sexual harassment?

A: Yes, if the harassment is by a co-worker and the employee wants the employer to be responsible for it. Basically, the idea is that if you want to hold your employer responsible, you must inform the employer. If the harassment is by a supervisor or higher member of management, however, the answer is no, the employee does not have to report it before the company is responsible for it, since the supervisor or member of management is, in the eyes of the law, the manager.

A: If a applicant interviewing for a position with our company has a gap in his/her employment history, can you ask the applicant if they have been arrested?

Q: The short answer is "not a good idea". You can generally ask about convictions, but not arrest records. Ask instead why the gap occurred. If they say they were in jail due to a conviction, you do not need to hire. Independently (and you should in most every case) conduct a background check (about $50.00 to $75.00). If the gap was due to jail time, this will turn it up. You can then also refuse to hire for lying about the resume gap.

Q: Or will this (refusing to hire based on a criminal conviction) be discrimination?

A: No, unless you hire people outside of the protected class with conviction records but not people inside the protected class.

Q: What are the management/HR similarities between unionized and non-unionized companies?

A: Union HR managers have all of the same duties as non-union, plus union contract negotiation and administration.

Regards,

Neil Klingshirn
Fortney & Klingshirn


posted Feb 20, 2001 5:12 PM [EST]

Answer to Should we get paid for putting on the company uniform?

Time spent changing may be compensable.

The answer is "it depends" on whether your employer requires you to wear and change your uniform (as it sounds like in your case) and, if so, whether it takes you more than a minute or two at the beginning of each shift. If your employer is requiring you to show up, say, 10 minutes early to be in uniform and at work at the beginning of your shift, the time is probably compensable.

Regards,

Neil Klingshirn


posted Feb 20, 2001 5:05 PM [EST]

Answer to What right do I have to see my personnel file?

You do not have a legal right to your personnel fi

In Ohio, the answer is "no." Personnel records are company records. Though about you, they are the company's records.

Despite this, most companies at least allow their employees and, to a lesser extent, their former employees, to see their own personnel file. Therefore, ask.

If they refuse and you file a law suit to pursue one or more claims, you will be entitled to a copy of your file through the lawsuit discovery process.

Regards,

Neil Klingshirn
Fortney & Klingshirn


posted Feb 20, 2001 4:58 PM [EST]

Answer to Fired after giving notice of resignation - what can I do?

Your employer can fire you after you resign.

Assuming that the employee is "at-will", the answer is no. At will means that the employer can terminate the employee at any time for any reason, other than an unlawful reason, and the employee can quit at any time as well. Most employees are at-will, unless they enter into a contract of employment.

Since an employer can fire an at-will employee at any time, the employer is free to do so when the employee turns in a resignation. Many employers do this.

Though not unlawful, a termination for submitting a resignation should entitle you to unemployment compensation for the time before you intended to resign. Since you are not eligible for the first week, this should entitle you to unemployment compensation for the second week.

Regards,

Neil Klingshirn
Fortney & Klingshirn


posted Feb 20, 2001 4:54 PM [EST]

Answer to Retention agreement - what happens if I do not sign?

Bargain for the best retention agreement possible.

Q: What are my legal rights to continue to state I don't want to sign until I get my official 60-day notice?

A: You are probably an at-will employee, meaning you do not have any rights until you negotiate a contract. You are objecting (properly so) to a contract proposal that is vague and open ended. The consequence of refusing to sign accept this proposal is that the company may withdraw it and you would not receive any benefit other than the pay for the work that you perform.


Q: Can I be fired or my benefits of employment cut if I don't sign this pre-letter (my employment is at will)?

Yes.


Q: Also, can I be held liable for signing and agreeing to stay for the unspecified time, but then resigning before?

A: This is more troublesome, but the answer is probably not. If you cannot tell how long your retention obligation runs, the company can hardly expect to go to court to enforce a particular date.

I suggest that you approach this as a contract negotiation. Explain your objection and make a counter-offer, rather than simply rejecting the offer. Include a specific end date for getting the retention benefits and spell out the amount of the benefits and when they will be paid. If you cannot reach agreement, you are free to go and they are free to end your employment.

If you need more help or want to hire us to assist with a specific counter-offer and contract review, call me.

Regards,

Neil Klingshirn
Fortney & Klingshirn


posted Feb 20, 2001 4:27 PM [EST]

Answer to Pregnancy related complications - is leave available?

Options for pregnancy related complications

Q: I am 24 weeks pregnant and have a medical history of pre-term labor with my previous child. I have been experiencing pre-term labor symptoms with this pregnancy and have been ordered bed rest for the past ten days by my physician. I was cleared to return to work on a part time basis only for the remainder of my pregnancy. I presented this documentation to my employer and was terminated the next day. The reason given was that my job was a full-time position only.

A: Is it? This is the key. If the employer has always had this position filled full time and has not allowed it to be filled part time in the past, then it has the right to require the person who fills it to be there full time.

Q: I have been employed with this company for only seven months, so I am not covered by FMLA.

A: You are, however, covered by the pregnancy discrimination laws. This prevents your employer from terminating you because you are pregnant. However, it does not prevent the employer from terminating you if pregnancy related conditions prevent you from performing the actual requirements of your job.

Q: I have paid into a temporary disability insurance account. Do I have any options to utilize my disability insurance and keep medical benefits through the remainder of my pregnancy?

A: It depends on the terms of the plan. If you have to be actively employed to get the disability insurance benefits, you probably do not qualify.

If your employer left you high, dry and with a problem pregnancy, you should at least ask for a way to get disability benefits. Regardless of what the law says, your employer did a rotten thing to you and should be feeling a little bit guilty about it. If so, ease your employer's pain with a proposal that you stay on the payroll on an unpaid leave, to take advantage of the disability benefits.

In addition, apply for unemployment compensation.

Sincerely,

Neil Klingshirn.

posted Feb 20, 2001 4:22 PM [EST]

Answer to Does a law set a maximum on the number of hours worked?

The law does not limit the number of hours you wor

No. The only rule is that if you work over 40 hours, you have to be paid time and a half. The only exception is for minors. This is limited to Ohio law. The law in other states may differ.

Regards,

Neil Klingshirn.

posted Feb 20, 2001 4:11 PM [EST]

Answer to My doctor will only certify FMLA leave once a year

You should get another doctor for your FMLA leaveGenerally speaking, your employer is correct. If your doctor will not give you the certifications required to take medical leave and still keep your job, get another doctor. Some exceptions apply to the 30 day rule. Go to the FMLA regulations on this issue at href="http://www.elaws.dol.gov/fmla/wren/er4.htm" for a complete answer.

posted Feb 19, 2001 6:55 PM [EST]

Answer to Severance pay following two week notice.

You should apply for unemployment compensation

In Ohio you are not entitled to severance pay when your employer asks you to leave following a two week resignation notice. However, you should be eligible for unemployment compensation for those two weeks. You will only receive unemployment compensation for the second week, however, since Ohio has a one week waiting period.

posted Feb 3, 2001 1:13 PM [EST]