Answers Posted By Ann Lugbill
Answer to Non-compete relating to prospective customers
Non-competeA non-compete, to be nforceable, as to be reasonable as to scope, geography, and time period.
Generally, in Ohio, a year is considered reasonable, although it can be less depending on the business. Some courts would likely not enforce a clause if it prohibited you from competing as to customers that were not customers of your old employer. To give you a more precise answer, the actual non-compete document that you signed must be reviewed, as must specific information be shared about the nature of your work.
You should consult an attorney knowledgeable in this area of law. One such listing of possible sources is at the www.ohioemploymentlawyersassociation.org website, click on roster. alternatively, you might ask your current employer if their law firm could suggest a person who would review your agreement and advise you if they foresee any difficulties.
It there are truly valid non-compete barriers, you may want to have this proposal submitted to them by your boss and under his/her name. One explanation for this may be truthfully that you are new to the company and that this prospect is so important to them that they wanted to make sure all potential questions and issues are overed. The added advantage is that this makes it even more difficult for the non-compete to bar your company from doing business with this prospect.
posted Mar 7, 2004 8:13 PM [EST]
Answer to personnel file access in Ohio
Personnel file accessThere is no Ohio statute giving employees of private employers the right to see their personnel files at their place of employment.
posted Mar 2, 2004 8:40 PM [EST]
Answer to wrongful termination
Termination1. You need to contact your workers comp attorney if your anxiety attack is at all related to the workplace injury. If you do not have a workers compensation attorney, given the types of medical issues you have that are work-related, you should contact an experienced employee's workers comp attorney in your area and meet with that person. Ohio certifies workers comp attorneys as specialisits and you may want to look for someone so certified.
2. 29 C.F.R. § 825.110(b),the FMLA regulation here that seems to apply, indicates that your time on workers compensation leave should have been counted toward the 1250 hours, provided that you had worked for the employer for a year. It states:
The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation [**7] are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment.
See also 29 CFR Secs. 825.207, 825.210(f), 825.216(d),
825.220(d), 825.307(a)(1) and 825.702(d) (1) and (2) regarding the relationship between workers' compensation absences and FMLA leave.
3. Ohio Code 4123.90 prohibits discharges in retaliation against those who have filed workers compensation claims and requires that employees not be terminated who are on temporary total disability (the "Coolidge" case).
I have not been able to find a case directly on point with your FMLA situation and thus urge you to contact the Department of Labor or an attorney knowledgeable in this area of the law as soon as possible.
Ann Lugbill
posted Mar 1, 2004 8:24 PM [EST]
Answer to I need some help please
I need some help pleaseYou need to actively search for another job and file for unemployment and do not give up trying to get unemployment benefits. Try to get the doctor's agreement to provide you with a good reference and to give you that reference in the form of a written reference letter that you can copy.
you need to contact an attorney in your area to see if the verbal/oral contract that you recite can be enforced. There are legal theories, including quasi-contract, promissory estoppel, oral contract, unjust enrichment, that could apply. You may also be protected by sex discrimination laws. If the employer is large, then the FMLA specifically allows you to take leave for your children.
You may also have some rights to payment for the overtime hours you worked, but that requires an involved examination of your pay rate, what your job duties were, etc.
You sound like a very motivated and skilled person who has been unfairly taken advantage of. Do not let that stop you from taking action, legal and practical--including getting a better job where you are treated fairly and paid adequately.
Ann Lugbill
posted Mar 1, 2004 12:02 PM [EST]
Answer to Lay-off and 2 year non-compete agreement
Non-compete agreementAssuming that this is a binding agreement upon your, this agreement may likely be found NOT to be fully enforceable if you are laid off or fired. However, parts of it might remain enforceable, depending on a variety of unique factual circumstances (like what was your job, what is the new job, where the two jobs are located, etc.). Below are some excerpts from some Ohio non-compete cases to give you some idea of what types of factors courts consider. You may want to read some of these to get a better idea of the considerations that the courts make, as they tend to be practical in nature. ultimately, you would need a lawyer with knowledge in this area to more fully explain your rights and obligations.
"[T]he law does not favor restrictive covenants * * * this measure of disfavor is especially acute concerning restrictive covenants among physicians, which affect the public interest to a much greater degree." (Busch v. Premier Integrated Med. Assocs., Ltd., 2003 Ohio App. LEXIS 4255 (Montgomery Cty. App., September 5, 2003)(citing Ohio Urology, Inc. v. Poll (1991), 72 Ohio App.3d 446, 452-453, 594 N.E.2d 1027).
We have held that factors to be considered in determining reasonableness of the [non-compete] restrictions a covenant imposes include "(1) the existence of time and geographic limitations; (2) whether the employee represents the sole contact with the customer; (3) whether the employee possesses confidential information or trade secrets; (4) whether the covenant seeks to eliminate competition which would be unfair to the employer or merely seeks to eliminate ordinary competition; (5) whether the covenant seeks to stifle the inherent skill and experience of the employee; (6) whether the benefit to the employer is disproportional to the detriment to the employee; (7) whether the covenant operates as a bar to the employee's sole means of support; (8) whether the employee's talent which the employer seeks to restrict was actually developed during the period of employment; and (9) whether the forbidden employment is merely incidental to the main employment." (Busch v. Premier Integrated Med. Assocs., Ltd., 2003 Ohio App. LEXIS 4255 (Montgomery Cty. App., September 5, 2003)(citing Pratt v. Grunenwald (June 29, 1994) Montgomery App. No. 14160, 1994 Ohio App. LEXIS 2805 (citing Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 325 N.E.2d 544 (1975)). See also Rogers v. Runfola & Associates, Inc., 57 Ohio St.3d 5, 565 N.E.2d 540 (1991).
Among the factors identified as relevant to this inquiry is "whether the covenant seeks to eliminate competition which would be unfair to the employer or merely seeks to eliminate ordinary competition." Id., at p. 25, quoting Extine v. Williamson Midwest (1964), 176 Ohio St. 403, 200 N.E.2d 297.
The non-compete requirement covers sixteen states and three years. We find that a question of material fact exists as to whether the extent of the non-compete is unduly burdensome to Granzier beyond what is needed to protect Cabbage. Granzier v. Cabbage, Inc., 2003 Ohio App. LEXIS 3236* 10 (Cuyahoga Cty. App., July 3, 2003).
posted Feb 20, 2004 1:10 PM [EST]
Answer to What violation is it?
What violation is it? Uniform policyThere is no certainty as to what this is, whether it is simply the daily friction of the job or real discrimination. Generally the law requires that "adverse action" be taken against you and requiring the wearing of a uniform is probably not going to be considered a significant enough adverse action to merit bringing a charge, claim, or lawsuit about discrimination. An adverse action is more likely to be a demotion, pay cut, disciplinary action, termination, etc.
An employer may not treat employees differently for illegal reasons (race, serious disability that interferes with major life activity or is perceived as doing so, sex, etc.) However, legitimate employer reasons for different treatment is legal. And, the different treatment must be significant enough to be an adverse action.
My advice is to do your best to comply with your supervisor's directions and to not worry too much about differences among the workforce. An employer can require you to do anything not prohibited by law. There is no law prohibiting the wearing of company uniforms.
If you want more information, you may want to consult with an attorney, such as one at www.ohioemploymentlawyersassociation.com, one referred to you by your local bar association, or an employee of the federal EEOC or the state human relations or civil rights commission.
posted Feb 20, 2004 09:11 AM [EST]
Answer to Terminiated After Giving Two Weeks Notice
Terminated After 2 weeks notice givenAn employer can terminate you for any reason not specifically prohibited by law. There is no law that prohibits termination after you have given notice that you are quitting.
This does not sound like you have done anything wrong that merits such poor treatment. It sounds like a standard company policy to mistreat employees and I hope that you have found a new position with a more honorable employer.
posted Feb 19, 2004 5:17 PM [EST]
Answer to Financial help during maternity leave
Financial Help during leaveObtaining state benefits for maternity leave is outside the scope of employment laws. However, I am not aware of any such program to pay mothers who have newborns, like the kind common in Europe, where new mothers receive a government stipend. You can contact the local office of the Jobs & Family Services offices to see if you qualify for any assistance, including day care assistance.
However, what you may want to explore, is whether you can: "extend" your FMLA leave (which is likely the unpaid maternity leave you refer to) or also take FMLA leave and/or disability leave IN ADDITION to the unpaid maternity leave.
First, you are entitled to any disability leave provided to male employees--if males are paid, you should be too, during the period of time (usually 4-6 weeks) beginning with childbirth and thereafter, when your physician does not approve you working.
FMLA leave is available to employees of employers with 50 or more employees and who have worked for the employer for at least 1200 hours in the preceding year. The way to extend your FMLA leave would be to take "intermittent leave," that is go back to work earlier, but work a reduced schedule, allowing you a longer time with your baby until you go back to work full-time when your leave is exhausted. You could take intermittent leave until you have taken the equivalent of 12 weeks of full-time leave. If your husband was also able to take some FMLA leave, you might be able to work it out so that one or the other of you is home with the baby for an extended period of time, especially if you were able to combine this with a few babysitter hours here and there (the kinds that grandmothers, friends, and relatives can provide).
Be sure, however, not to use up all of your leave time and to save some for future doctors visits and other medical needs of an infant.
You may also want to go over your finances with a trusted advisor and determine if there are job-related expenses that you will not have if you are not working (transportation, drycleaning, clothing, gas, insurance for second car, lunches, eating out at fast-food places and restaurants, child care expenses, income taxes, etc.) and that might enable you to stay home with your child--particularly if you suppemented your income with some part-time work, babysitting another infant, etc. There are usually local child-care agencies that will help you think through your options if you want to consider child-care as an alternate source of income.
Finally, some employers will make arrangements that might allow you to bring your child to work while very young, work part-time or from home for an extended period, etc. Alternatively, you could look for another job that offers more flexibility in scheduling, where your work 30-35 hours (not 40), etc.
Quality, reliable childcare for a young infant can be very expensive. You may find that the unpaid leave will save you a lot in child care expenses, not to mention making your life with a new baby not so hectic.
I hope that you are able to spend as much time with your child as you want. Please consider all of your options in making these important family plans.
Unfortunately, our American laws do not support families in the most needed ways that we might wish. European countries are far ahead of us. Improvements are being made, but there is a long way to go.
posted Feb 18, 2004 11:52 AM [EST]
Answer to Ohio Employment and Labor Law
Ohio employment and labor law1. The Ohio Employment Lawyers Association, www.ohioemploymentlawyersassociation.org.
2. Click on Roster on the above site and you will find individual lawyer websites as well.
3. The Ohio Bar Association website has a FAQ area with pertinent information.
4. I have to be modest, but there is a legal text entitled, Representing the Terminated Employee in Ohio (Anderson 2d ed. 1997, Supp. 2003). I co-authored this book with James B. Helmer, Jr. It is in many libraries or is now available for purchase from LEXIS Publishing.
5. Contact attorney Paul Tobias in Cincinnati, Ohio, who is the founder of the National Employment Lawyers Association.
Good luck on your paper.
Ann Lugbill
posted Feb 18, 2004 08:48 AM [EST]
Answer to Employment termanation due to Court Summons
Court SummonsInterference with a witness violates the law and terminating someone for testifying is interference.
You may want to contact the lawyer who called your husband as a witness or the lawyer for the party on whose behalf your husband testified, and if all else fails the Judge (nor his clerk) in whose court your husband testified and ask that the lawyer or court personnel contact the employer and confirm that your husband was subpoenaed and legally required to appear. You may obtain some help from the county prosecutor's office, but they may or may not assist.
Make sure that the employer has a copy of the subpoena, too.
However, in the short term, your husband needs to do whatever he can to keep his job and to comply with all reasonable requests of the employer.
posted Feb 17, 2004 1:15 PM [EST]