Answers Posted By Neil Klingshirn

Answer to Can I withhold signing bonus from final two pay checks

Ohio law requires employers to pay wages within a certain amount of time (about 30 days). It also says:

"Where wages remain unpaid . . . and no contest court order or dispute of any wage claim including the assertion of a counterclaim exists accounting for nonpayment, the employer, in addition, as liquidated damages, is liable to the employee in an amount equal to six per cent of the amount of the claim still unpaid and not in contest or disputed or two hundred dollars, whichever is greater."

Ohio Revised Code Section 4113.15.

It is not clear whether the "contest, court order or dispute of (the) wage claim" is a defense to non-payment of the employee's wages, or just a defense only to the liquidated damages. In other words, this law may prohibit any deduction of wages. In that event, you should pay this employee his wages and then file a separate lawsuit to compel him to repay the signing bonus.

Totally apart from 4113.15, the Ohio minimum wage is $8.10 per hour, and you must pay at least that much each pay period without deduction. In other words, if 4113.15 allows you to withhold wages because you have a dispute with the employee, you nonetheless must pay at least the minimum wage (and overtime, if applicable) for all hours worked.

posted Nov 29, 2016 10:14 AM [EST]

Answer to I have been employed by my contracting company for 6 months. The company is taking money from my paycheck for my 401k but it is not showing on the 401k site. Also, they have not been proactive with getting my 401k set up properly. In the meantime, I am mi

An employer's failure to deposit employee pension funds, including 410(k) contributions, violates a federal law called ERISA. The US Department of Labor enforces the law. You can file a complaint with the DOL, which should investigate it.

Here is a link to the DOL's ERISA enforcement page:

https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/enforcement/erisa

In some cases, employer conduct like this is criminal. Report it.

posted Nov 16, 2016 07:53 AM [EST]

Answer to I was laid off from a business in Kentucky but I live in Ohio. Which state do I file?

I am not sure which state you should file in, and cannot provide such legal advice. However, I suggest that you contact the Kentucky equivalent to Ohio's Job and Family Services (i.e., unemployment compensation). They should be able to tell you if your employer is covered by their unemployment compensation program.

posted Nov 2, 2016 06:32 AM [EST]

Answer to Can I require employee who told me 4 weeks off for surgery now to use vacation for the extra leave?

Good questions. The answers is, it mainly depends on you leave of absence and paid time off policies or, if you do not have such policies, on what you have done in the past.

Do you have written policies covering paid and unpaid time off? If not, I recommend that you consider putting such policies in place. We can help you with that.

A typical leave of absence policy will permit a leave of absence under certain conditions, and also require employees to use available paid time off when they take such leave. As long as you have a policy and follow it uniformly, you are in good shape.

If you do not have a policy, then I suggest that you give us a call at 216.382.2500, to review your past practice, the options available to you now and how your decision about this situation could affect what you do in the future. This will also be a good opportunity to review other policies and procedures that are being affected by changing laws, like the new overtime rules for white collar, salaried overtime exemptions.

posted Oct 26, 2016 1:10 PM [EST]

Answer to Can my employer use my paid vacation hours without my consent

Vacation, or pay during time off, is an employer created benefit. What the employer creates the employer can take away, so yes, your employer can provide vacation and require you to use it when you are sick. That might turn it into sick pay, but the concept for sick pay is the same. A private Ohio employer does not have to provide any paid time, whether for vacation, sick time, funeral leave or the like.

In Ohio, an employer with fewer than 50 employees has an obligation to provide a reasonable amount of unpaid time off for maternity leave, but that's about it.

posted Oct 20, 2016 08:08 AM [EST]

Answer to Can I receive unemployment during my non compete period?

Chris is correct that a voluntary resignation is a disqualifying reason for unemployment. However, if the unemployment is a result of the termination from the competitor, then a termination resulting from the enforcement of a non-compete is not, I believe, a disqualifying reason.

A separate issue may come up with respect to the how long you were employed by the new employer after your resignation. You have to work enough weeks and earn enough money in covered employment to receive benefits. Here is more information on that:

https://jfs.ohio.gov/unemp_comp_faq/faq_elig_definitions1.stm

posted Sep 22, 2016 07:12 AM [EST]

Answer to May15 th had heart attack ,had stint put in ,two mths later had heart cath,had to have triple bypass ,Fula all used up vacation time gone released to work with restrictions employer says no must be full release what is next they didn't state I was fired y

Employers cannot condition a disabled employee's return to work on a 100% healed or "no restrictions" requirement. The EEOC recently published Guidance explaining why such policies violate the Americans with Disabilities Act.

https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

Employers must engage in the accommodation process with employees who have a disability to see if they can return to work with or without a reasonable accommodation. The employer might decide "no," the employee cannot return to work even with a reasonable accommodation, but the employer has to go through the process first, and then the employee can challenge that decision in court.

I recommend that you consult with an experience employment lawyer to develop a strategy around the accommodation process. If you would like to schedule a consultation with Elfvin, Klingshirn, Royer and Torch, call our Administrative Assistant at 216.382.2500.

posted Sep 13, 2016 07:39 AM [EST]

Answer to Employer is eliminating my job. Will I be eligible for unemployment?

A layoff for lack of work or elimination of your position qualifies you for unemployment compensation benefits. A discharge for failure to reach a desired level of improvement opens the door to a disqualifying reason, discharge for poor performance. Therefore, the two paragraphs conflict as far as unemployment compensation eligibility is concerned.

If they are going to lay you off, ask them to remove the first paragraph (PIP and improvement) before you sign. If they refuse, consider consulting with an employment lawyer regarding the particulars of the PIP and how it could affect your unemployment.

posted Aug 24, 2016 06:54 AM [EST]

Answer to I just want to renew my FMLA leave for the year and was denied because I exhausted my hours

You are entitled to "a total of 12 workweeks of leave during any 12-month period," assuming you are otherwise covered and eligible. https://www.law.cornell.edu/cfr/text/29/825.200 />
Your employer can choose to use a calendar year, anniversary year or rolling year (i.e., 12 months from today) for the 12 month period, as long as evenly and uniformly applied.

If your employer is telling you that you do not have FMLA leave this year because you took 13 weeks of leave last year (however a year is calculated), I believe they may be mistaken. In that case, you would have had 12 weeks of FMLA, and one week of employer provided leave, in that year. This year, you are entitled to a new 12 weeks.

posted Aug 1, 2016 07:04 AM [EST]

Answer to Can an employer force employee to take leave of abscene without pay?

Knowing nothing else, yes, an employer can place at-will employees on an unpaid leave of absence. Employers can terminate at-will employees at any time, and the power to terminate includes the power to place on unpaid leave.

The limits on an employer's right to place an employee on a leave of absence are in the anti-discrimination and other employment laws. For example, if your employer placed you on unpaid leave because you complained of unsafe work conditions, or because you have a disability, then the unpaid leave would likely be unlawful.

posted May 11, 2016 07:08 AM [EST]