Answers Posted By Neil Rubin
Answer to lies in job offer
Is this an employment contract which can be enforced?Dear Robert W.:
This is the type of story that just makes my blood boil. (I have suffered the situation you have described in my working career. This is the primary reason I work for myself.)
The presumption in Ohio is that you are an at-will employee. Practically speaking, you accept a job and do work and the employer pays you. If the terms of the employment are not satisfactory you are free to resign and get a new job. And . . . on the other side of the coin, the employer can terminate you for no reason at all, subject to the exception of certain discriminating conduct.
Another exception to at-will employment is the "employment contract".
The ultimate question in your fact pattern is if the document you signed is actually an "employment contract". If it is, you have some legal recourse. If it is not, you have no recourse. The only way for you to reasonably determine if you have an enforceable contract is to consult with a competent employment attorney.
But, even if you have a valid employment contract, you may need to sue your employer to enforce the contract's terms--not an attractive scenario--especially since he can fire you.
Sorry I could not be more encouraging. At the very least you should have an attorney look at the job-offer paper. This attorney may be able to negotiate something with your employer without filing suit.
Good luck,
Neil Rubin 216-923-0333
This post is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.
posted Jun 4, 2008 2:42 PM [EST]
Answer to Severance Contract Never Paid
Yes, you can sue themDear Paul H.
With the facts you state, yes, you have a breach of contract claim. What we call "pre-judgment" interest is a bit more problematic because, you must show lack of good faith on the part of the breacher. Currently, I believe statutory interest is 8% per annum.
I suggest that an attorney should look at the severance agreement to make sure that it did not have a loophole, but your assessment that the agreement can not be verbally modified is most usually the case.
Good luck.
Neil Rubin
This post is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.
posted May 22, 2008 10:44 AM [EST]
Answer to Salary Half Time
FLSA-Wage and Hour problemDear C. Smith,
You may have a federal Fair Labor Standards Act claim. If you are a non-exempt employee, there is no such thing as "comp time". You must be paid at least the minimum wage for every hour you work. Also, if you work over 40 hours per week, you must be paid 1 and 1/2 times your hourly wage for all time worked in excess of 40 hours. (The trigger for overtime is 40 hours per week. (There is no daily trigger value. For example, just because you work a ten-hour day does not mean you are eligible for overtime).
It does not matter if you
are called "salary half time". It depends on whether you are accurately classified as exempt or non-exempt. (see http://www.dol.gov/dol/compliance/comp-flsa.htm)
So, what can you do about it? You can file a complaint with the Department of Labor and they will investigate. Or you can hire an attorney to help you possibly get your back wages (times 2) plus attorney's fees.
Regards,
Neil Rubin
This message is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.
posted May 6, 2008 2:50 PM [EST]
Answer to Abusive Work Environment, Taped Conversation
Hostile Work Environment?Dear Brenda C,
You may have a retaliation claim, but the facts you give are such that a real determination can not be made until you consult with a competent employment attorney. (There are some excellent attorneys in the Columbus area). The fact that you quit will make the case more difficult but not impossible. This cause-of-action is called "constructive discharge" and has been found difficult to make in Ohio, especially in our current economic times.
Regarding the taped conversation: yes, its legal in Ohio to tape your own conversation with someone else who does not know about it. Whether it can be admitted into evidence in a court is another matter entirely. Certainly it can be brought up in negotiations.
And finally, you state that you have filed "Hostile Work Environment". With whom? The Ohio Civil Rights Commission? The EEOC? If either of these agencies, they are compelled to investigate but the outcome may not necessarily be to your liking.
You need to speak to an attorney.
Neil Rubin
This message is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.
posted May 6, 2008 2:31 PM [EST]
Answer to My employer is denying me FMLA for my baby
can FMLA leave be extended?Dear Cheryl,
The FMLA statute allows for up to 12 weeks of non-paid leave per year. If you used up all the FMLA leave for yourself, it is true that none is available for the care of your child.
What is not clear is how your employer is calculating the leave and when it resets. In other words, what is the employer's policy when it determines what the yearly start date is -- from the time you were hired, the calendar year or some other calendar date.
I suggest you pin down all this information from your employer. They need to tell you now.
I am sorry I could not be more encouraging.
Take care,
Neil Rubin
This message is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.
posted May 6, 2008 2:18 PM [EST]
Answer to PC Help Desk Overtime
wage and hour violationDear Jaeret,
Where do these bosses get their nerve? They can not "dock" you for "performance problems". This is not Dickensian London for gosh sakes!
From the facts you post it appears your employer is violating the federal Fair Labor Standards Act as well as Ohio wage and hour laws. Paying overtime has nothing to do with your job performance.
Whether you are non-exempt depends on your job duties. So, if those that do the exact same job as you are non-exempt, so are you. Just because they characterize you as "salaried" with no payment for overtime does not make it so.
If you are non-exempt, your employer can not withhold overtime if you have worked in excess of 40 hours in any one week (sick days and vacation can not be included in the weekly calculation). You are owed time and a half for every hour that you have worked over 40 hours. You state that you have worked "many, many weeks of well over 40 hours". If that is the case, they owe you money. Also, if you sue them, they are liable for twice that amount plus reasonable attorneys' fees and case expenses. (There is a 2-3 year "look back" period).
You can file a complaint with US Department of Labor or the Ohio Attorney General's Office. Or you can consult competent counsel to lead the battle.
Not so incidentally, if you file a complaint or consult an attorney, they can not retaliate against you. Otherwise, they will have even more trouble with which to tend.
Good luck.
This post is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.
posted Mar 15, 2008 5:54 PM [EST]
Answer to Which non-compete should I honor?
Ohio_Which non-compete is the one for you.Dear Kevin,
I have written this previously and I am writing it again, "non-compete agreements are the hobgoblins of little minds." (See previous posting).
Having said that, employers have been increasingly willing to enforce them through the courts so you need to be very careful.
The agreement needs to be "reasonable". Unfortunately, no one really knows what that means until a judge gives her/his opinion.
On the face of the facts you have presented, this appears to be a goofy situation but one which can not be adequately answered until an attorney with non-compete experience can read and analyze all the iterations of the agreements. (It is possible that the last one signed supersedes the rest.)
Sorry I could not be of greater help, but you really need an attorney to look at these things and give you an informed opinion.
Good luck.
This posting is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.
posted Mar 13, 2008 09:49 AM [EST]
Answer to Overtime in a 80 hour week
Employer is violating the federal and state overtime lawHere are the short answers:
1) No.
2) Overtime must be computed on a WEEKLY basis.
How's that for a response with no legalese?
If you are truly non-exempt, (that is, must be paid overtime) your employer is violating the federal Fair Labor Standards Act as well as Ohio wage and hour law. This employer is liable for a 2-3 year look-back period in which he/she would have to pay ALL of your overtime at 1.5X your hourly rate. (Plus, if you need to sue him, a 2nd amount equal to the overtime, and attorneys costs and fees. They also may get fined.)
Rather than confront the employer directly, it might be best to file a complaint with the US Department of Labor or the State Attorney General's Office. If there are other employees involved, they will be happy to investigate and bring the hammer down.
If it is just you or just a few workers, the DOL may not jump on it so hard. In that case, you could consult with a competent employment attorney and go the lawsuit route. (Not so incidentally, if you file a complaint or lawsuit, your employer may NOT retaliate against you. Otherwise, the employer will be liable for a lot more than just overtime.)
Good luck.
This message is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.
posted Mar 13, 2008 09:08 AM [EST]
Answer to No compete clause in ultrasound
non-competeDear Wills-Carcione:
Non-compete agreements are the "hobgoblins of little minds". They are drafted purely for the benefit of the employer. The employee has little choice but to sign it as is or not get a job. Now, having jumped off of my soapbox I will attempt to answer.
The courts in Ohio have upheld non-compete agreements because they believe that the employee has agreed to its terms at "arms length" which essentially means "you knew what you were getting into when you signed it, so why are you bitching now"?
One saving grace is that the terms must be "reasonable". Unfortunately, there is no menu for what is "reasonable". Each jursidiction has its own opinion.
In your question you do not state the restricted time period. This term could be crucial. Also, I see where the non-compete has as its geographic limits the entire United States. On its face this sounds unreasonable, however, it must be analyzed within context of the competition your current company has. In other words, does your current company do business over the entire country?
There are other issues which must be entertained but are outside the scope of this simple answer.
I recommend you engage a competent employment lawyer to read the agreement you signed and analyze your risk if you move to the competitor.
Good luck!
posted Feb 29, 2008 08:04 AM [EST]
Answer to preapproved ot
preapproved OT compelled?Dear Ken,
This has a short answer dependent on the facts.
If you are validly classified as "non-exempt" and thus eligible for overtime, your employer MUST pay you time and 1/2 for any time you work in excess of 40 hours per week. This is regardless whether or not you got pre-approval.
Now, the employer CAN discipline you for not getting pre-approval if that is the policy, but he can not withhold wages.
posted Feb 28, 2008 09:41 AM [EST]