Answers Posted By Neil Klingshirn

Answer to Unpaid wages, overtime and expenses as independant contractor.

As an independent contractor, you have only the contractual rights to overtime and weekend pay negotiated in your agreement with the Locum broker. It sounds like your Agreement might be evidenced in a couple of places, so there could be a dispute about its precise terms. However, if you prove the existence of the agreement you described in your question, then you would have a breach of contract claim.

Independent contractors do not not have a statutory right to overtime pay. As a result, the Department of Labor would not be able to help you, unless you were in fact an employee of the Hospital client of Locum company.

Your options for settling depend on the strength of your claim. If you have a 100% winner (no one ever does) and it costs you nothing to win (it actually costs tens of thousands of dollars), then your claim is worth what you are owed, and the Locums company should be willing to pay you that to avoid its own litigation fees. Your claim is not a 100% winner, though, and litigation has costs, so you have to factor those things in.

As a general rule, you need to file suit in the state in which the defendant resides, has its principal place of business, or where the claim arose. If it is possible to file in more than one state, then you need to make a strategic decision about which state is the best venue for your claim.

I recommend that you schedule a consultation with an experienced employment lawyer. We charge $200 for our consultation. Our goal in your case would be to arm you with a negotiation strategy that would get you paid without, if possible, going to court.

posted Oct 8, 2014 1:07 PM [EST]

Answer to Independent Contractor Non-Compete Agreement

Non-competition agreements are not limited to employment relationships. They show up in other types of contractual relationships as well, like independent contractor agreements and agreements for the sale of a business.

The further a contract is from the employment relationship, the less scrutiny courts tend to give it for overreaching restrictions. Courts have upheld non-competition agreements for up to five years in connection with the sale of a business, for example. As an insurance agent, though, I suspect that most courts would interpret and enforce an insurance agent independent contract non-compete the same way they would for an employee.

I realize this answer is a bit late to help you with the situation that prompted your question, but I thought it a good question and thought it deserved a better late than never answer in case someone has it again.

posted Oct 4, 2014 1:50 PM [EST]

Answer to What recourse do I have when my employer laid me off after filing a discrimination claim with H.R.?

You need to consult with an employment attorney in Oklahoma, but on the face of your facts it would appear that you have a potential claim for retaliation.

Another fact to consider is whether your old employer employed 15, 20 or more employees, as the federal discrimination laws only cover employers with 15 or more employees, except for age discrimination, which covers employers with 20 or more employees. In addition, ask an employment attorney if Oklahoma has a law within the state prohibiting discrimination.

If you cannot find an employment attorney, consider going to the Equal Employment Opportunity Commission. It is the federal agency that enforces the federal anti-discrimination and retaliation laws.

posted Oct 2, 2014 2:55 PM [EST]

Answer to Can employers require employees to use of personal devices & internet for work duties?

First, I am not a tax lawyer and disclaim any tax expertise. As a business owner (my law firm), though, I believe that the expense reimbursement should be a non-taxable payment to you, not wages.

Your employer would benefit by treating a reimbursement of an expense as an expense of the business and not as wages, since the employer pays FICA and Medicaid taxes on wages. Therefore, it won't hurt to suggest the proper treatment.

Double check with an accountant on this, but I think that, if your employer insists on treating the reimbursement as wages, then it is not really a reimbursement, but in effect a raise, and you can deduct the expenses yourself, as a cost of doing business as an employee.

One more time, though, I am an employment lawyer and not a tax lawyer, so get an opinion from someone qualified to provide it.

posted Sep 10, 2014 08:44 AM [EST]

Answer to My company rights

Non-compete cases turn on state law, so you need to consult with a Massachusetts lawyer for a proper answer.

By way of general information, if you were in Ohio and Ohio law applied, then a court would probably find a 1 year, 25 mile non-compete to be reasonable, unless your business was much more local than that.

Once the employees and competitor ignore a cease and desist letter from your attorney, the next step is usually to file suit and ask the court for a temporary restraining order, which will last for a couple of weeks, and then a preliminary injunction, to stop the violations of the non-compete. That usually involves $5K to $10K in legal fees, though.

If you decide to go to court to enforce your non-compete, I recommend that you find an attorney who has been in court on them before. Again, that would need to be an attorney licensed in MA.

posted Mar 11, 2014 09:01 AM [EST]

Answer to When to bring claim of

Absent an employment agreement that states otherwise, Ohio law provides employee/minority shareholders some protection from discharge by the majority shareholder. The majority shareholder cannot terminate the employee/minority shareholder for a corporate advantage, and must have a legitimate reason. This gives the minority shareholder/employee more protection than an at-will employee, but not a lot more protection.

If the injury resulting from the majority shareholder's actions are to the value of the company, then Ohio lets minority shareholders pursue so-called derivative actions, where the minority shareholder asserts the rights of the corporation, and not individual shareholder or employment rights. In a derivative action, the remedy is to compensate the corporation, not the minority shareholders.

In any case, breach of fiduciary claims are fact intensive. We offer individual, initial consultations to review your situation and to provide particularized advice. Our consultation fee is $200. If you would like to schedule a consultation, call our Office Manager at 330.665.5445, ext. 0.

posted Feb 26, 2014 10:54 AM [EST]

Answer to relocation contract

Good question, but the answer is a tax answer, not an employment answer, so I will be of little help. Nonetheless, I will give it a try.

Based on my non-legal understanding of how the tax code works (and not as a tax attorney), and assuming that this all happened in the same tax year, I think what happens is you pay back the gross amount, you do not include the gross relo payment in income, and you get a refund for the tax withheld. That way, you end up where you started, tax-wise, meaning no relo check but no tax bill.

If the relo payment and repayment are in two tax years, it gets more complicated. In either case, your best bet is to check with an attorney or tax preparer.

posted Feb 14, 2014 07:28 AM [EST]

Answer to Can my employer ask for all medical records from all my doctors since my accident

As a general rule, the only medical examination that your employer can obtain upon your return from a medical leave is a fit for duty certification, and then only if the employer notified you at the time you began leave that one would be required.

The Americans with Disabilities Act specifically prohibits medical examinations, unless required by business necessity, or unless you are asking for a reasonable accommodation and your employer has a legitimate question about the limitations caused by a disability that it needs to accommodate.

If you want to avoid submitting your medical records, you should probably consult with an employment attorney. Your employer may not understand the limits on its rights to get medical information, and it could see your refusal to provide that information as insubordination. Your union might be able to help, but there is no guarantee that it knows the laws on medical records.

posted Jan 27, 2014 07:08 AM [EST]

Answer to When does FMLA actually begin?

Generally speaking, an employer violates the FMLA by designating days as FMLA covered that are not, in fact, FMLA days. That violation becomes serious when it results in a job loss, which can happen if you need the FMLA day later on.

If you are unable to find an employment lawyer in SC who can assess your individual situation, I would be willing to provide a consultation. Our consultation fee is $200. If you would like to schedule a consultation, call our Office Manager at 330.665.5445, ext. 0 and she can get you on my schedule. However, you are best off if you can consult with a qualified employment lawyer in South Carolina.

posted Dec 9, 2013 12:47 PM [EST]

Answer to I am being let go in Ohio and am going to receive 45 weeks of "severance"

Here is an article that discusses how severance pay can affect your unemployment compensation benefits.

http://www.myemploymentlawyer.com/wiki/Severance-Pay-can-reduce-Ohio-Unemployment-Compensation-Benefits.htm

I believe that, if your employer states, in the severance agreement or an explanation of the payment, that the severance pay is allocated to your last day of employment, or earlier, as compensation for work and not as a payment to help transition you to new employment, then it will not interfere with your unemployment compensation benefits. Otherwise, there is a good chance that it will.

posted Dec 3, 2013 09:34 AM [EST]