Answers Posted By Neil Klingshirn

Answer to I have an administrator who has been out for 4 days to care for her husband. She has not submitted any type of documentation from a doctor for this. Our School Board Policy is vague. Is there a certain number before FMLA paper has to be given?

To trigger coverage by the FMLA, an employee only need notify her employer of circumstances from which an employer could surmise that the FMLA might cover the absence. In this case, being out for four days to care for a spouse should be sufficient to put the school district on notice that her absence might be covered by the FMLA.

At that point, the school district should determine whether the FMLA covers it and, if so, whether the employee is eligible (that is, did she work more than a year and more than 1,250 hours during the last year). If so, the school should notify the employee that she may be covered, and it can ask her for a certification from her healthcare provide to find out if the reasons for the leave qualify for FMLA coverage as well.

The form to use is https://www.dol.gov/whd/forms/WH-380-F.pdf />
This is a very general answer and provides only general information. You should not rely on it as legal advice. Every situation is different, and medical conditions affect numerous other workplace laws. If you have further questions, or would like advice specific to you situation, call me at 330.665.5745.

posted May 25, 2017 2:37 PM [EST]

Answer to My employer lost my fmla paperwork then fired me have copy form Dr and appointment summary stating my appointment was for fmla. What should I do

If your employer terminated you because you took FMLA covered leave, it doesn't matter that they lost the paperwork, especially if you have a copy. The important question is whether that was the reason they terminated your employment. If so, you may have a claim.

You should see a lawyer in your area. Go to OELASmart.net and click on the city nearest you. The cities are in the footer of each page.

posted May 22, 2017 07:12 AM [EST]

Answer to Hello, over payment of wages question

I believe you are entitled to at least the minimum wage ($8.15/hour) free of deductions. That is, your employer can probably withhold an amount that will drop your earnings to the minimum wage, but not below that.

posted May 19, 2017 12:32 PM [EST]

Answer to I have worked for my employer for 16 years no write up great work habits this month out of no where I was falsely accused of things i didn't do so my employer decided to push me to 3rd shift which I can not do since I am not at this location they are slan

The long answer to your question involves a discussion of employment at will (they can fire you at any time), defamation (they cannot publish false facts harmful to your reputation) and possibly unlawful discrimination, if it turns out that the manager is falsely accusing you of something to get rid of you, motivated by unlawful discrimination. Finally, the answer also involves "constructive discharge," if you have to quit because you can't work that shift. In a constructive discharge, the law treats the quit as a termination, since you were actually forced to quit.

That is a long answer and a lot of discussion, which is beyond the scope of this forum. Instead, I recommend that you contact employment lawyers in your area from the Ohio Employment Lawyers association for a consultation to discuss these things with an attorney. I think you will be glad that you did.

https://www.oelasmart.net/lawyers/Cincinnati

posted Apr 6, 2017 08:13 AM [EST]

Answer to Ohio- Retroactive Pay Cut

Probably not.

The general rule for employment in Ohio is at-will. That means that an employer or employee can end the at-will employment at any time. At that point, neither party has any obligation to the other, except for the employer to make good on the promise to pay the agreed upon wage up to the termination of the at-will employment.

From this follows the rule that an employer can change an at-will employee's compensation at any time, but again, must pay the agreed upon compensation earned up to the time of the change in pay.

Therefore, an employer's retroactive pay cut is, in the eyes of the law, probably a breach of its agreement to pay at the original wage rate. It is a breach up to the time that the employer announced the pay cut, and the employees had the option to quit working if they chose, but not afterwards. After the announcement, the employees options are to accept the pay cut or else vote with their feet against it, and end the employment altogether.

Two questions:

What was the amount of the cut?

How many employees did it affect?

You can email me at Neil@EKRTLaw.com.

posted Mar 9, 2017 09:55 AM [EST]

Answer to Can I get FMLA for my three month old son?

I believe that you are entitled to take time off to bond with your child. The FMLA regulations state that:

Both parents are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth. An employee's entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of the birth. 29 CFR 825.120(a)(2).

Once you become eligible for the FMLA, ask your employer to use FMLA for your child. If you get pushed back, consider contacting an employment lawyer for assistance.

posted Feb 27, 2017 3:05 PM [EST]

Answer to Can i be fired for excessive absenteeism when i ha e a doctors note every time and im a diabetic and im missing work due to my diabetes not being under control and employer knows i have medical problems.

The answer to your question depends mainly on whether the Family and Medical Leave Act covers you and your employer.

Does your employer employ more than 50 people? If so, have you worked there for over a year, and for over 1,250 hours during the last year? If so, call my office at 216.832.2500 and explain that I encouraged you to call to explore a potential consultation.

If not, an employer is generally within its rights to discipline for unexcused absences, including those related to medical conditions, at least if such discipline is applied evenhandedly. Absences in excess of those allowed by the employer for medical reasons that do not involve a disability are generally not excused by Ohio or federal law.

Your diabetes may, however, constitute a disability, in which event your employer would have an obligation to provide reasonable accommodations. We would need to schedule a consultation to explore this route.

posted Jan 24, 2017 09:58 AM [EST]

Answer to If my employer never said u r fired but basically stood over me told me took pack my tools or if I didn't they would put my grooming tools 600$ worth I might add outside for ne1 to take then tell me I'm the 1 who said I was quiting when I never said that

It sounds like you were fired. Apply for unemployment.

posted Jan 23, 2017 4:05 PM [EST]

Answer to I'm a project superintendent for a small construction company I am considered salary exempt making 70000 a yrar, however I now am working 60 plus hours a week am I due overtime is yhere anything I can do

You are exempt from overtime if 1) you are paid on a salaried basis, 2) you are paid at least $455 per week, and 3) you perform exempt, supervisory duties.

The amount for test 2 will go up significantly if new Department of Labor rules go into effect. The implementation of those rules were recently stopped by a federal judge, but that could be temporary. Questions remain, however, whether a Trump DOL would change the rule. Even if they go through, though, your salary would satisfy the higher dollar amount. Therefore, it sounds like you meet tests 2 and 3.

You meet the third test, and would therefore be exempt from overtime (i.e., you would not be entitled to overtime pay), if you employer pays you the same amount each week without deduction for days in which you do not work a full week. If you have questions about whether you are paid on a salaried basis, take a look at the Department of Labor regulations and/or consult with an employment attorney. Here is a link to the DOL regulations:

https://www.law.cornell.edu/cfr/text/29/541.602

Although it goes without saying, you can still bargain for a better deal, or you can leave this employer and accept employment with an employer who compensates you more fairly.

posted Dec 4, 2016 09:06 AM [EST]

Answer to Can An Employer Stop Paying Health Benefits Because They Have Decided That You Are Part Time Without Notice?

In theory, you are entitled to health benefits because you qualify for coverage under your employer's health insurance Plan. You therefore need to get and read the Plan. For now, the fact that the employer covered you under the Plan for 20 years implies that you qualified for coverage, per the terms of the Plan, or at least that the employer thought you did.

It sounds like today the employer is no longer covering you under the Plan. You should therefore get the Plan and see if you are, in fact, covered by it. You have a right under a federal law called ERISA to get a copy of the Plan. Ask your employer for it.

If it says you are covered, you should be covered. If it says you are not (for example, you do not work enough hours), then you are not covered. If you and your employer disagree whether the Plan covers you or not, ERISA lets you ask a court to decide.

In addition, under a law called COBRA, most employers must give employees notice of their right to continue the company insurance coverage, but at their expense.

These are complicated areas of the law. I encourage you to seek legal advice, which this is not. I am providing you only with general legal information as I understand it.

posted Dec 2, 2016 10:13 AM [EST]