Answers Posted By Neil Klingshirn

Answer to Told them my daughter attempted suicide and was told to take whatever time I needed. Fired a month later. Do I have any recourse?

If your employer has more than 50 employees at the location where you work and you have worked for this employer for over 1 year and at least 1,250 hours during the last year, then you may be covered by the Family & Medical Leave Act (FMLA). Under the FMLA an employer cannot terminate an employee who takes time off to care for a daughter with a serious health condition, which your daughter probably has.

You should consult an employment lawyer in Texas.

posted Apr 26, 2019 06:11 AM [EST]

Answer to I was offered a severence package and have not yet signed it. Now I'm under investigation for workplace theft. This false accusation happened post severence offer. Can they with hold my severence now

I am licensed to practice law in Ohio, so I cannot speak to Oregon law. As general information based on Ohio law, though, I can make a few observations.

First, when one party makes an offer (the Offeror), and the party to whom the offer is made (the Offeree) accepts it, the parties create a contract. The Offeree is then entitled to the benefits of the contract.

Second, the Offeror is the master of its offer and can withdraw it at any time before the Offeree accepts it. Therefore, if the Offeree wants to accept the offer and the Offeror has not withdrawn it, the Offeree should, all other things being equal, accept the offer.

Third, if Party A owes Party B something, like severance, but believes that Party B owes Party A something back, like stolen funds, then Party A can withhold what it owes Party B until the dispute is worked out. This is an example of the saying that possession is nine tenths of the law.

Specific to your situation, consult an attorney quickly to decide if you should accept the severance offer and to make sure you get paid once you accept the offer.

posted Apr 25, 2019 2:15 PM [EST]

Answer to I'm in Ohio and I signed a workman's compensation settlement and release agreement. After going through the EEOC I have found out that I have retaliation charges against my employer. Can I sue my employer even though I signed the workman's comp release?

The answer lies in the workers compensation settlement agreement. It will contain a "Release," which is a release of your claims against this employer. The Release will either be "general" release, meaning it releases all claims you ever had against that employer up to that point in time, or it will be a "Specific" release, meaning it only released a specific claim, like your workers compensation claim. If you signed a general release, it probably bars the workers compensation retaliation claim. If your workers compensation retaliation claim arose after you signed the release, however, then the release would not bar it. A release can only bar a claim that exists at the time of the release.

Finding out whether your release was general or specific is no mystery, as it should be written clearly in the agreement.

If you signed a general release, then your workers compensation retaliation claim is probably barred, even if you only recently discovered it. Unless the employer improperly prevented you from discovering the evidence of retaliation, the fact that you were not aware of a claim probably does not change the effect of the release.

Finally, even if you could get past a release, Ohio law requires you to send a notice to your employer of the alleged retaliation within 90 days of it, or your claim is barred. So unless you did that or you are still within 90 days of the retaliation, you might also be barred by the notice requirement.

Regrets,

Neil Klingshirn

posted Apr 22, 2019 11:24 AM [EST]

Answer to Are there any employment and labor lawyers that offer free consultations?

I am an Ohio lawyer and therefore cannot speak to the pricing policies of Florida lawyers. As a general observation, though, I suggest that your boyfriend search specifically for attorneys who do "wage and hour" or overtime law. They tend to be specialized in that area and might be more inclined to speak to your boyfriend about those topics without charging a full consultation fee.

posted Apr 19, 2019 06:52 AM [EST]

Answer to Non-Compete Clause

I am licensed in Ohio and not Georgia, so I cannot provide a legal answer under Georgia law. If you were in Ohio, though, the answer would generally be no, the fact that a client has left the employer will not nullify the restriction.

The best answer I can provide is that you absolutely must review your non-compete with a Georgia employment lawyer before doing anything outside of its restrictions.

posted Apr 19, 2019 06:14 AM [EST]

Answer to Reduction in pay for employee who never schedule back

You should not reduce your employee's pay for hours that the employee already worked, and you should definitely not lower it below the minimum wage. Doing so would expose your business to claims for breach of contract and claims under Ohio's prompt wage payment act and Ohio and US minimum wage laws. The prompt payment act has penalties, the Ohio and US minimum wage laws require the employer to pay the employee's legal fees if the employee wins, and it is not a defense to any of these claims that the employee performed poorly and had terrible attendance.

Your best response is to cut your losses and end the employment relationship. Holding back her pay could make a bad situation worse.

posted Apr 14, 2019 08:59 AM [EST]

Answer to Can I sue for a breached settlement agreement? The checked bounced.

Yes. You should also sue on the check, since writing a bad check creates its own claim, and you should present the check to the bank again in case the employer puts funds in the account.

posted Mar 13, 2019 3:37 PM [EST]

Answer to unsafe working conditions

I am licensed to practice law in Ohio and therefore cannot answer your question with respect to Minnesota law. However, federal law, specifically the Occupational Safety and Health Act, allows you to report unsafe working conditions to OSHA, which will promptly inspect the hazard and, if unsafe, order work there stopped.

The report can be made anonymously and OSHA prohibits your employer from retaliating against employees who make it. Be aware, though, that the statute of limitations for filing an OSHA retaliation claim is very short - only 30 days.

Here is a publication that may be useful:

https://www.osha.gov/Publications/OSHA3720.html

posted Mar 11, 2019 12:55 PM [EST]

Answer to If an employee has been absent for several weeks, and applied for FMLA but had it denied, can they be held accountable to the attendance policy in place for the time missed?

The FMLA prevents employers from treating an FMLA qualifying absence as a violation of the employer's attendance policy.

In the case you describe, the employee's absence was not covered by the FMLA. Therefore, the FMLA does not apply and the employer is within its rights to apply its normal disciplinary policies. In other words, the FMLA does not prevent discipline for an absence that the FMLA does not cover.

The risk this employer would run is if the absence is in fact covered by the FMLA. Under the FMLA, either the absence is covered or it is not. The employee's good faith belief that the absence is covered, or the employer's good faith belief that it is not, do not change whether it is, in fact, covered. Therefore, this employer should consult its employment lawyer to make sure that this employee's absence was not covered by the FMLA.

posted Mar 8, 2019 07:43 AM [EST]

Answer to How quickly do I have to pay back relocation expenses?

I cannot answer your question without seeing the reimbursement agreement. However, if it is silent as to duration of repayment, the repayment period is probably immediately upon triggering the repayment obligation. In other words, there is no payment plan.

However, you should be able to drive a better bargain than a three month repayment period. If you refused to pay anything and the company had to take you to court, it would take the company at least a few months if the amount is under $6,000, and potentially much longer if the amount is greater than that and the company had to go to municipal or common pleas court. In addition, the company should agree to a repayment plan to avoid the costs of obtaining a judgement.

For these same reasons, if you and the company reach no agreement but you send what you can each month, the company will probably choose not to go to court until you stop paying.

Finally, consider arguing to HR that you have no obligation to repay them at all since the manager from hell is forcing you to quit, which legally speaking would be the same an an involuntary termination. The legal concept is a "constructive discharge." That is, since you were forced to quit, you can claim that you were, legally speaking, terminated and therefore do not owe anything on the tuition agreement. If the company drags you to court, you should argue that as your defense.

posted Mar 1, 2019 12:12 PM [EST]