Answers Posted By Neil Klingshirn

Answer to Non Compete signed on the wrong signature line

The short answer is probably yes, assuming the non-compete is otherwise enforceable.

Contract law requires an indication of "assent" by the parties to an agreement. Parties can signify assent by signing a written agreement, but they can also signify assent in other ways, like by beginning to perform the contract or by sending an email that says "I agree,"

In your case, it sounds like you tried to get a change made but, when you were not successful, you gave in and signed the agreement to get the job. The fact that you signed in the wrong place will probably not be enough to avoid a finding that you accepted the non-compete.

posted Feb 2, 2015 07:48 AM [EST]

Answer to Can I be denied overtime because I have a work comp injury in Missouri?

I am an attorney registered only in Ohio. In Ohio, a denial of overtime because you have a workers comp injury would be workers comp retaliation. Check with a Missouri employment or workers comp lawyer to see if that is the case there.

posted Jan 24, 2015 12:59 PM [EST]

Answer to if a position was miss classified as being hourly when it should be exempt, can you re-classify the position?

In a word, yes. Exemptions from overtime apply to the workweek, are based on an employee's duty, compensation and other facts set by statute and regulation, and can change from one week to another, if the facts allow. So, if you change duties or method of payment from one week to the next, you can change the employee's exempt status. If you are not taking advantage of an exemption for which the employee qualifies now, you can begin to exempt the employee from overtime the next workweek, notwithstanding prior classification.

Be aware that you and your employees do not determine exempt and non-exempt status. The Department of Labor and the courts do that. You can, however, evaluate each employee's duties, compensation and other facts that bear on their exempt status, and classify them accordingly, You should seek the assistance of an experienced employment lawyer when you do this.

posted Jan 21, 2015 3:16 PM [EST]

Answer to Is a non-compete valid if executed basically under duress?

I think you have a defense to enforcement, but it's probably not duress. Instead, the defense is lack of consideration for the non-compete It sounds like you had a contract, and the non-compete was not part of it. Unless you got a raise or something of value extra for it, it may fail for lack of consideration.

Talk to a Texas employment lawyer, now. Don't wait until you are ready to leave this employment.

posted Jan 16, 2015 10:44 AM [EST]

Answer to I need an attorney to review a severance agreement. How do I go about finding one?

Here is MEL's employment lawyer directory:

http://www.myemploymentlawyer.com/directory

I also recommend the lawyer directories at

- National Employment Lawyer's Association (NELA.org);
- California Employment Lawyer's Association and
- WorkplaceFairness.org.

The attorneys on these directories primarily represent individual employees, rather than companies.

Once you find attorneys in your state specializing in employment law who represent employees, check out their:

Website
AVVO.com profile
Lawyers.com profile
LinkedIn profile

AVVO and Lawyers.com providing ratings by other lawyers and clients. Also, Google their name. Google turns up the darnedest things.

Lawyers who publish, speak and write a lot are among the best and most helpful advocates.

posted Jan 10, 2015 3:11 PM [EST]

Answer to If you haven't sign a non compete initially and now you are laid off with servent pay of 4 months and they are asking you to sign an no compete for one year is that legal?

By way of general information (I am not a licensed lawyer in Maryland), the only "unlawful" contracts are those whose purpose is against public policy, like a murder for hire contract. If a contract is unlawful, then courts will not enforce it.

A non-compete for severance pay is not unlawful. That is, courts will not refuse to enforce it because of the subjects of the bargain (severance pay for a non-compete). The real question is whether a non-compete for severance pay contract is unenforceable for any other reason.

The answer is probably not, unless the company has a severance pay plan that says your husband is entitled to four weeks of severance due to his layoff, AND that severance pay plan does not require a non-compete as a condition of receiving the severance pay. Under those circumstances, the "no new consideration" rule could make the contract unenforceable. That is, if your husband only receives that to which he is already entitled, like his final pay, in exchange for the non-compete, then he may not have received anything for it, making it unenforceable.

Here is more information about employment contracts: http://www.myemploymentlawyer.com/wiki/The-Role-of-Contracts-in-Employment-Law.htm

posted Jan 3, 2015 09:11 AM [EST]

Answer to I was laid off due to lack of work. In Ohio can I be replaced with new employee just because the supervisor does not like me?

If you are an at-will employee, the answer is yes, your employer has no obligation to recall you from layoff because you worked there before, and an employer is within its rights not to recall an employee just because he or she did not like that employee.

Unions play an important role in curbing abuses of at will employment like this. If you were in a union, it would probably have negotiated a collective bargaining agreement requiring the employer to recall employees in order of seniority.

posted Dec 22, 2014 07:56 AM [EST]

Answer to I live in Ohio. I was terminated Dec. 8 and asked to sign a settlement agreement that included a severance package. I signed the contract, but now the employer wants me to sign another that will pay me less money. I am not inclined to sign the amended

You should consult a lawyer.

As a general rule, a party to a contract cannot unilaterally change it. Dropping the severance from 12 to 11 weeks looks like a unilateral change. Unless you received something worth more than the lost week in exchange for losing it, this would not be an enforceable amendment, since it lacks consideration.

The problem that I see with your situation is that the company might argue that you never had a contract in the first place, since there was no "meeting of the minds" as to the amount. That is, she could say she thought it was the dollar amount, while you thought it was the number of weeks.

If there is no agreement, then you did not give up your right to pursue any claims you may have against the company. Therefore, you can either bargain towards a new severance agreement, where you give up your right to sue the company in exchange for the severance payment, or you pursue your claims. I recommend the articles on MEL about negotiating severance pay. The bottom line is that you should identify any claims you may have against the company so you know what you are giving up by the release. To identify claims and their values, I recommend consulting an employment lawyer.

posted Dec 17, 2014 08:07 AM [EST]

Answer to Will I be informed that I have been accused of sexual harrassement? how do i find out if iam under investigation?

The answer in your particular case depends on your employer's harassment and investigation policies. You can ask for a copy of the harassment policy. Most employers do not share their policy on how they conduct their investigations, though.

Generally speaking, a sexual harassment policy encourages employees to make complaints and assures them that, as much as possible, the company will keep their complaints in confidence. Sexual harassment policies typically also state that the company will investigate the complaint.

If the company keeps the complaint completely confidential, the accused will not know if he or she has been accused, or whether there is an investigation. However, if the company needs to get the accused's side of the story, then the accused will understand that there has been a complaint. While the company has no obligation to share the complaint with the accused, or the identity of the complainant, the accused may be able to figure it out from the circumstances.

If you believe that you are under investigation for harassment, consider consulting an employment lawyer in your state. Use MEL's directories to find them. Also, if you believe you know who made a complaint, avoid doing things that would appear retaliatory in nature, or that would appear as an attempt to affect the outcome of the investigation.

posted Dec 15, 2014 09:54 AM [EST]

Answer to Overpaid PTO and Tax Question

This is a tax question and I am not a tax expert. Also, I do not know Minnesota law on an employer's obligations surrounding pay for time off.

That said, I believe that the employer has to adjust for the taxes. With any luck, the employer uses a payroll service who will know how to do that. It should be a relatively easy thing to do. I think it could be as simple as receiving pay for the next 20 hours without deducting state and federal taxes.

posted Oct 30, 2014 10:14 AM [EST]