Answers Posted By Neil Rubin

Answer to Rules for Salary employees regarding overtime

Ohio_non-exempt overtime/Fair Labor Standards Act

Dear Sandy:

The ultimate question is to determine whether or not you are a "non-exempt" employee in accordance with the Fair Labor Standards Act and the requirements of IRS. (An overview for exemption can be found at http://www.dol.gov/dol/compliance/comp-flsa.htm. Ohio laws track the federal statute.)

If you are characterized correctly as "non-exempt", then

1) you must be paid for ANY travel time on behalf of your employer; also, if you work during your lunch hour you must be paid for that time too.)

2) just because your employer calls you an "executive" and "exempt" does not make it so; and

3) If you work over 40 hours in any one week you must be paid time and 1/2 for any time worked over the 40 hours (80 over two weeks is NOT the law and not therefore relevant.) Accurate tracking of time would be very important to determine what you may be owed.

If you file suit and win your damages could include:

a) the overtime $ to which you are entitled:

b) an additional amount equal to the amount in a); and

c) all reasonable attorneys' fees and expenses to prosecute the case.

So, your very first step is to contact a competent employment attorney and discuss your job duties in detail to determine your exempt/non-exempt status. There will then be many follow-up questions regarding time-card evidence and such.

You should act quickly because there is only 2-3 year "look-back" period to add up all of your lost overtime.

Good luck.





posted Feb 27, 2008 7:49 PM [EST]

Answer to Wrongful termination and withholding documentation

Pregnancy discrimination/medical leave violation or both?

On the face of these facts there may be what we call a "colorable claim" (possible lawsuit), however, much more detail is required before a competent employment attorney can give you an opinion. For example, how much leave did she take? Was it in accordance with the Family Medical Leave Act or based on company policy? How have they treated other employees who have taken medical leave? How have they treated other employees with the same amount of writeups? Why would they be targeting her?

Regarding her personnel file, the courts have held that the file is usually the property of the employer. However, it can be obtained after suit is filed during the evidence discovery process. From your question it is a bit unclear as to what the employer is saying. (Do they want the evaluation copies back that she took?)

In summary, I would recommend you call an attorney for an appointment so the facts can be hashed out in greater detail.



posted Feb 25, 2008 7:56 PM [EST]

Answer to renege on pan plan after task accomplished

Ohio-Employment contract?

There are lots of issues here which need more detailed discussion.

Most importantly, an attorney needs to look at the signed agreement to see its terms and make a determination as to its binding effect.

Also, without knowing all the details, I would say that if you quit, you will NOT be eligible for unemployment compensation. There might be some wiggle room because your earnings could be reduced substantially, however, you state "potential earnings" may be reduced. My recent experience has shown that employers are fighting unemployment payments even after the employee has been first awarded such compensation by the Ohio Department of Job and Family Services. And then the ex-employee has been compelled to pay the money back! This is an unfair result but one which is occuring over and over.

Finally, there may be the issue governed by the Fair Labor Standards Act which determines if you are an exempt employee. This brings into play the unpaid "24/7" on call of which you mention.

In sum, you need to speak to an employment attorney soon to discuss the ramifications.

posted Feb 21, 2008 11:01 AM [EST]