Answers Posted By Ann Lugbill
Answer to FEEL I BEEN SHAFTED AT WORK
Job Problems-Truck DriverYou have had a lot of problems related to work. At some point, there may have been claims here that perhaps you might have been able to pursue, but there are time limitations for many of them that are less than one year and may have already expired for you. Please do not delay further in seeking legal help.
If you have a valid workers compensation claim for your shoulder, contact a workers compensation attorney in your area. You may also want to contact the EEOC to determine if you were entitled to FMLA leave and protections under that law. If there are any claims that you can pursue against you union, those have time limitations as well and other prerequisites.
If you still have any pending unemployment appeals, you may want to contact counsel to represent you.
You may also have some rights under the laws applying to truck driving, including the federal Surface Transportation Act. Claims under this law for retaliation because you would not drive under unsafe conditions, for example, must be brought within 180 days of the retaliation. This is a link that advises you of your rights and about the law: http://www.masscosh.org/surfacetransport.pdffi
posted Feb 17, 2004 08:42 AM [EST]
Answer to reclaim Unemployment benefits
UnemploymentYou have really suffered a lot. I hope that things get better for you very soon.
Some lawyers will assist with unemployment benefits and perhaps your local Legal Aid Society can assist or recommend someone. In Cincinnati, the Freking & Betz law firm represents individuals with unemployment claims.
You may want to visit the unemployment office and try to find out whether there is a legal basis for allowing you to have benefits. Unemployment is denied if there was a legal "just cause" for the termination. The unemployment office needs to know in writing what you did to notify your employer of the circumstances while you were in jail and thereafter to show that there was not "just cause" for the termination. Do not let the appeal time run on your claim--submit the papers showing that someone else has been arrested, that you notified your employer as to why you could not come to work,that you promptly reported back upon your discharge, and "make your case".
Also, you should seriously consider going back to your job and try to see if you can be rehired under any circumstances, even on a trial basis, or if anyone there is willing to assist you in finding work or giving you an good reference for another job.
An attorney consultation may also help you determine whether there is any legal basis for a claim, not against your employer, but perhaps against others, for the wrongful arrest and detention in jail. Most bar associations have a lawyer referral service providing names of attorneys willing to consult for a very modest fee (like $15 or so) for the first 30 minutes of consultation.
Ann Lugbill
posted Feb 16, 2004 08:35 AM [EST]
Answer to Non-compete clause validity
Non-competeWhen you sign a non-compete agreement or other employment contract and several different states are involved, plus your special HB status, it is not possible to answere your questions without review of each of the contracts and your immigration status.
To answer your questions, an attorney must understand exactly what the terms of any written agreements, including the non-compete, and whether the non-compete terms would be considered reasonable in time and scope (of work and geography).
1. Under the law in most states, the courts can "red-pencil" a non-compete agreement and restrict it to reasonable limitations in time and work, so that you are not deprived of you right to earn a living in your chosen field. For example, if your work was highly specialized and proprietary, the court might find that a broad geographic scope was appropriate (Ohio and Maryland and New York), not just where you were employed when you signed the non-compete agreements. However, if might find that a one-year term was not reasonable and that 6 months was reasonable, under all of the circumstances.
Another problem is that without looking at the documents, it is not possible to determine whether any of the prior non-compete agreements remain in effect and which state's laws apply to it and, thus, to you.
2. Assuming you have a valid contract, the laws generally permit you to sue for damages. However, it is probably not worth doing and will likely just cause a countersuit or claim to be filed against you on the non-compete.
3. If the notice period is specified in a contract that you agreed to, you have breached the contract and are liable for damages if sued on that clause. However, a general employer "preference" for 2 weeks' notice does not translate into a formal contractual right to demand 2 weeks' notice.
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As a practical matter, I would suggest that you try to go forward with the new employment you have been offered with the more honorable employer. You should either simultaneously either pay on your own for competent legal advice on this matter in Ohio or determine if the new employer's HR department can refer you to an attorney that they trust to provide the legal advice to you. Non-compete agreements are a special area of the law and you should be careful to be sure that the lawyer you consult with has experience in the area. General employment law experience may not be sufficient.
posted Feb 15, 2004 07:48 AM [EST]
Answer to Discriminatoin
DiscriminationContact the HR department and his superiors immediately and in writing if there is any hope of retaining your job and of enjoying protections under the Ohio Whistleblower Act. YoOu have nothing to lose at this point.
And, please get personal legal advice from any attorney as soon as you can.
Ann Lugbill
posted Feb 13, 2004 09:53 AM [EST]
Answer to Discrimination and commision problems.
Discimination and commissionBecause you have "confronted" your employer on these issues (assuming that you have done so not just on the commissions, but also on the race and sex discrimination), you are protected by federal and state laws prohibiting retaliation for those who "oppose" discrimination by employers.
Unless the salesperson has a written contract, the employer can legally pay different commissions to different people, so long as there is not sex, race, etc. discrimination in determing who is paid what. The wrongdoing by your boss regarding commissions, thus, is not where to focus. The race and sex discrimination, however, is.
You should contact the EEOC or Ohio Civil Rights Commission about how to protect your rights and to disclose the wrongdoing. You may also want to report your information, orally and in writing (a short, completely accurate, to the point e-mail is fine, not a lengthy memo) "up the chain" to HR officials or supervisors that are independent from and higher in the chain than your boss and ask them not to reveal your identity to your boss and to protect you--their responses should tell you how quickly you may need to find another job.
Obviously, human nature being what it is, going against your boss, as you have already done, jeopardizes your job. It may be an illegal firing, but it could be years until you prove that. And, your boss may not be the only one trying to "protect" the company, so be careful about whom you really trust.
Thus, you should protect yourself, preserve your options, and actively search for another job--starting today.
You will need to have written proof if you hope other to believe your allegations that you opposed these practices, that these events occurred, and that you experienced retaliation. This proof can be through e-mails, company paperwork, etc.
You may also want to consider discussion of these issues with an attorney in your area, such as the one representing the person who has sued your company or someone that attorney suggests. The Ohio Employment Lawyers Association website contains a list of members who practice employment law on behalf of employees.
You have done the right thing and done what Congress wanted employees in your situation to do when it enacted employment discrimination laws--oppose illegal practices. Our society becomes better every day thanks to your courage as shown here. But, to protect yourself and avoid becoming a victim, you will need to continue to be active in protecting yourself.
Ann Lugbill
posted Feb 13, 2004 06:29 AM [EST]
Answer to hostile work enviorment
Hostile Work environmentYour girlfriend should contact the Ohio Civil Rights Commission or the Equal Employment Opportunity Commission and perhaps her local legal Aid Society for assistance. In particular, she should ask the agency about whether to proceed with the medical examination. In the meantime, she should inquire with her employer about the medical exam, when, where, etc., and could even go ahead to schedule an appointment (maybe the appointment will be weeks or months into the future, for example) so that she is not subject to being fired for failure to cooperate or being insubordinate.
Depending on the size of the employer, it sounds as if she may have some legal protections under the federal Family & Medical Leave Act and the Americans with Disabilities Act (ADA) and the state of Ohio counterpart to the ADA. These laws prohibit discrimination on the basis of taking medical leave and on the basis of disability inteferering with a major life activity or perceived [by the employer] as doing so.
You are very thoughtful to inquire on her behalf and hope that this is helpful.
Ann Lugbill
posted Feb 11, 2004 10:08 AM [EST]
Answer to Terminated due to affair
Terminated due to affairAn employee cannot be discriminated against on the basis of his or her gender. Thus, more favorable treatment of similarly-situated males, as occurred here, is generally a violation of federal and state law.
If you worked for a private (not governmental) employer, your privacy rights are very limited because there simply are no laws that give you legal rights in this area, except some protections for health records, substance abuse treatment records, Social Security numbers, and the like. Public employers generally are subject to more laws that thus provide employees with protections, including in some instances First Amendment rights (which includes privacy rights), as well as statutory rights.
You should contact the federal EEOC and/or your state civil rights agency [in Ohio it's the Ohio Civil Rights Commission} as soon as possible to protect your legal rights.
Ann Lugbill
posted Feb 10, 2004 10:28 AM [EST]
Answer to emotionally wiped out!
Emotionally wiped outDear healthcare CNA:
Unless there is a specific law or contractual provision being violated, an employer can require uniforms, change work hours, limit overtime, etc. Unless you can show that some special status (age, race, sex, etc.) is causing you to be treated differently from others similarly situated, there is likely no law being violated.
There is no general law prohibiting "harassment" in the workplace.
With regard to slander and defamation and invasion of privacy, the legal standards are very strict and difficult to prove in court, particularly when it involves a workplace. Thus, these cases are rarely filed and even less frequently successful.
Another example of where you might be singled out for different treatment is where you are opposing illegal practices, like fraudulent billing of Medicare and Medicaid, poor patient care, etc. This is also illegal.(For more information on this see my website, www.whistleblowerlaws.com)
I would be very concerned that you not be perceived as a trouble maker at work and that if this perception exists and continues, that you may find your good standing and/or your employment in jeopardy.
Ann Lugbill
employment
posted Feb 8, 2004 12:05 PM [EST]
Answer to Firing upon coming off of Doctor recommended leave
Termination after sick leaveGenerally, private employer can terminate someone for any reason not prohibited by law or contract. Because your husband has a contract, his legal rights may be better than those who do not have a contract.
There are sufficient complications in these events to suggest that he might have contractual legal rights that could be explored. However, you would need to consult with an attorney in person who can review the contract and explore relevant facts.
Because your husband worked less than 12 months for the employer, he is not entitled to FMLA leave.
You may want to promptly explore whether the company will take him back under any circumstances.
Ann Lugbill
posted Feb 7, 2004 11:39 AM [EST]
Answer to holding paycheck for not cleaning vehical
PaycheckYour husband is required to do whatever the company wants him to do, provided it is not illegal or violative of specific providion of a union contract.
Under Ohio law, paychecks are not to be delayed for more than two weeks past the end of the pay period for hourly employees.
I hate to say this, but clean the van. The consequences could be more severe ultimately than a delayed paycheck, he can legally be fired for this and it is possible that unemployment compensation could be denied since it could be said that he failed to do his job duties and was insubordinate.
Ann Lugbill
posted Feb 6, 2004 2:41 PM [EST]