Answers Posted By Neil Klingshirn

Answer to I got 4 weeks of Severence pay, when should I apply for Unemployment

I cannot tell exactly what is going on, and would probably have additional questions if I did. However, the short answer is that you should file for unemployment compensation benefits online, at https://unemployment.ohio.gov/PublicSelfServiceChoice.html. I am aware of no good reason for delaying that application.

By way of general information, your vacation pay should not affect your eligibility for benefits. The length of time you were in the job from which you were separated, the length of time you were in the prior job, the amount of time between jobs and the amount and timing of your severance all may affect your eligibility for benefits. As a result, once you create an application online, Ohio Department of Jobs and Family Services will probably send you questions about them.

If the questions or the process are confusing, I believe it is fairly easy to get a live person on the phone once you create an application.

Once you have the process started and on its way, contact an employment lawyer if you still have questions.

posted Nov 1, 2013 06:53 AM [EST]

Answer to denial of benefits, other

You may consider asking HR for an explanation of its decision on the fitness facility. Assuming that you and the company are covered by the FMLA, the company cannot treat the taking of leave as a negative factor in its employment decisions, including whether to allow you to use an employee benefit. However, if the company has an evenly applied rule that puts the fitness facility off limits to anyone who is not actively at work, and a legitimate business reason to back it up, it may be within its rights to exclude you.

Once you get some more information on the company's justification, follow up with an experienced employment lawyer in your state.

posted Oct 30, 2013 07:05 AM [EST]

Answer to im filing a lawsuit on my employer for min wage violation of 40hrs how much will i get

I cannot speak to Tennessee law, only to the Fair Labor Standards Act (FLSA), which is the federal minimum wage and overtime law. Assuming that it applies to you and your employer, then the FLSA says that you are entitled to recover all of your wages, plus an amount equal to your unpaid wages, unless the employer can prove that it had a good faith and reasonable basis for not paying you the minimum wage that was due. In addition, if you hire an attorney to represent you, the court can order the employer to pay your attorney's fees.

If there are other employees who also did not receive their minimum wage payments and they are interested in collecting them, you may contact me at neil@fklaborlaw.com to let me know.

posted Oct 14, 2013 2:54 PM [EST]

Answer to Did my supervisor violate my privacy under Hipaa and FMLA?

I think it depends on what your manager told your co-worker. If she shared your medical condition, then she probably violated your right to privacy. In that event, your strongest right to privacy arises under Ohio common law, and less so from HIPPA or the FMLA. On the other hand, if she said only that she thought you were able to work, the question is a lot closer, especially if the manager can claim that the co-worker had a need to know whether or not you were able to work.

The bigger takeaway, though, is that you should not disclose your diagnosis to your supervisor. It is not necessary to do so to qualify for the FMLA. Moreover, under the Americans with Disabilities Act, employers cannot let supervisors see your medical records, like from health insurance, workers compensation, paid leave programs and so on. Supervisors are only allowed to know your restrictions and necessary accommodations.

My real concern, though, is that your supervisor's curiosity, "research" and opinion reflects a negative bias towards your condition. Consider whether you need to make a complaint about this. Do not do that rashly, and evaluate the ramifications before you do so. But if you are still working for her, this is something that you need to monitor and potentially address. When you do so, make sure you enlist the help of a good employment lawyer.

posted Oct 14, 2013 2:45 PM [EST]

Answer to What can you do if an employer says they have video evidence?

Disclaimer: I am an Ohio lawyer and I am not licensed to practice in Texas, so all I can offer is general information.

You may be able to get the video through the Texas unemployment compensation proceedings. If Texas is like Ohio and if your employer contests your unemployment compensation claim, you have the right to a hearing. With the hearing in Ohio you have the right to subpoena company records.

It may not hurt to email the company with a request for the video and a request that the company not delete it. Even if the company does not give you a copy now, it probably has a duty not to destroy whatever it has.

posted Oct 8, 2013 07:09 AM [EST]

Answer to Company merged with another now goes by different name

Whether your current employer can enforce a non-compete that you entered into with a former employer, and whether the compensation changes offer a way out of the non-compete, are issues of state law. I only know Ohio law. This answer will be helpful only to the extent that Indiana law is similar to Ohio law.

In a merger, the surviving company (your current employer) steps into the shoes of the merged company (old employer) as a matter of law, and acquires all of the rights of the old employer. Therefore, current employer would have the right to enforce your non-compete with merged employer, if you were in Ohio.

As to compensation changes, if your employer (current or old) changed it in a material, adverse way, like cut it in half, you would have a choice of two remedies. One is known as the antecedent breach by the employer (e.g., a compensation change), which excuses your subsequent breach of the non-compete. The other remedy is rescission, where the law treats the entire agreement as though it never existed. However, both the employer's promise as to pay and your non-compete need to in the same agreement for either of these defenses to apply.

Before you go far in reliance on any of these ideas, get particularized advice from an Indiana attorney. If you are talking about a contract defense, it assumes a breach, which can be big legal trouble.

posted Sep 23, 2013 06:59 AM [EST]

Answer to Employer's right to information from physician

Generally speaking, under the FMLA, an employer cannot require a "doctors excuse." Rather, an employer can require a medical certification from your doctor of your need for leave, its duration and expected timing. Search the web for a form called WH-380, which contains the information that an employer is entitled to get.

An employer can require a medical certification once, at the beginning of your leave, and then after that, no more employer can require a new certification no more frequently than every 30 days, unless:

(1) You request an extension of leave;

(2) Circumstances described by the previous certification have changed significantly ( e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). or

(3) Your employer receives information that casts doubt upon your stated reason for the absence or the continuing validity of the certification.

For more on certification and recertification, search for 29 cfr 825.305 to 825.308.

If your employer offers paid time off or similar benefits in connection with your leave, then the employer can require a doctor's excuse or other information as a condition of your receipt of that benefit. If you choose not to apply for or accept that benefit, though, then you would not need to comply with the employer's requirements for medical excuses (apart from permissible certifications), and the employer could not deny or interfere with your FMLA leave because of such refusal.

Finally, your employer can only contact your physician to authenticate your certification (that is, verify that the doctor provided it) or to clarify what the doctor wrote (e.g., to explain illegible handwriting or a medical term). If your employer is calling your doctor and obtaining personal medical information, consider consulting an employment lawyer in Illinois regarding your FMLA rights and your rights to privacy.

posted Aug 19, 2013 06:47 AM [EST]

Answer to Is there a law in Illinois regarding what jobs can be salary or hourly?

Hmmmm.

I am licensed in Ohio, but not Illinois, so I cannot speak to Illinois law. However the federal overtime law, the Fair Labor Standards Act (FLSA), applies to most employers in Illinois. If it does, you may have rights under the FLSA, as well as Illinois law.

The FLSA says that employees are entitled to overtime for any hours worked over 40 in a week, unless their job is exempt from overtime. The FLSA allows employers to exempt professional, executive and administrative jobs from overtime, but only if the employer pays the employee on a salaried basis. Payment on a salaried basis means that you get the same amount of money every week, even if you work fewer than 40 hours.

If your pay goes up and down each week with the number of hours that you work, then consider going to the US Department of Labor in Illinois and making an overtime complaint. You could also go to an experienced employment lawyer in Illinois, who could advise you as to any rights you may have under Illinois law as well.

posted Jul 31, 2013 07:25 AM [EST]

Answer to Should I Pursue A Retaliation Claim ?

Aloha.

I am an Ohio attorney, so I cannot speak to employment laws created by the state of Hawaii. I can, however, speak to retaliation claims, generally, and to your rights under federal law.

To prove a retaliation claim, you must prove:

1. You engaged in protected conduct;
2. You had an adverse employment action (e.g., were demoted, hours cut or fired) and
3. The adverse employment action is causally connected to your protected conduct.

Under federal anti-discrimination law, "causally connected" means that, but for engaging in the protected conduct, you would not have suffered the adverse action.

In your case, you suffered several adverse employment actions. I will assume for purposes of this question that you can show they were causally connected to your complaints about OSHA conditions, overtime, child labor, and discrimination and unequal pay. The issue is whether your complaints about those issues were protected and, if so, what you need to do to pursue a remedy.

If you have a good faith belief that your employer violated the rights of you or others to safety, overtime pay, child labor or equal pay, then you probably engaged in protected conduct. If you believe that your employer discriminated based on prohibited classifications, you probably also engaged in protected conduct. The reason is that each of the laws that created rights to safe work conditions, overtime pay, restrictions on child labor, freedom from discrimination and equal pay contain an additional right to be free from retaliation for asserting those rights or, in some cases, for opposing employer conduct that violates those rights.

The important point for your question, though, is what to do to enforce those rights. This is important because the retaliation rights under the various employment laws (FLSA for Overtime, Title VII of 1964 Civil Rights for discrimination, etc.), each have their own anti-retaliation provision, and they are all different to some degree or other. They also have different time limits and procedures for asserting them.

Under Title VII (discrimination), you must go to the EEOC within 180 (or in some states, 300 days) and file a charge of discrimination. A safety complaint under OSHA has to be filed with OSHA within, I believe, 30 days. And a complaint for unpaid overtime has to be filed with the Department of Labor within 2 years.

In some cases, you can go directly to federal court without filing with an administrative agency, as with unpaid overtime. However, with most federal rights, you need to file with the appropriate agency (EEOC, OSHA) or lose your right to be free from retaliation.

Given the complexity of this area, I highly recommend that you find an experienced employment lawyer who can, at a minimum, provide a road map based on your specific claims. I believe that Hawaii has important, additional rights, so obviously your lawyer should be licensed to practice law there.

posted Jul 24, 2013 06:59 AM [EST]

Answer to If an employer changes a bonus structure offered as an agreement of employment, have they breached

First, I am not answering your question based on Virginia law. I am licensed in Ohio, not Virginia, so you will need to consult with a VA lawyer for specific legal advice.

That said, the issue that I see in your question is whether or not the employer made an agreement to pay a specific amount, or whether the employer kept enough wiggle room on the promise to try to get out of it. For example, if the promise was "a generous bonus," then the employer has a lot of room to interpret "generous." If, on the other hand, the bonus was "50% of salary paid at year's end," then the court has a specific promise that it can order the employer to keep.

As for how a breach affects other parts of the contract, an employer breach in some states can relieve the employee of its obligations in the same agreement. So, if your employment agreement contains a bonus provision and a non-compete, and the employer breaches the bonus, then, in Ohio at least, you have a potential defense to the non-compete.

If any of these issues apply, I encourage you to contact a Virginia employment lawyer.

posted Jun 11, 2013 06:50 AM [EST]