Answers Posted By Neil Klingshirn

Answer to ?

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posted Nov 9, 2015 09:09 AM [EST]

Answer to Does federal/state law require employers to deduct employee's new job salary from their severance?

You are correct. No law requires an employer to offer severance pay. The terms and conditions of any severance pay plan are controlled by the employer offering it. Therefore, the company is within its rights to offer a reduced severance amount upon you finding new employment, but that is something that the company decides, not the law.

I suggest that you ask the employer for a copy of the severance pay plan or terms.

posted Nov 2, 2015 2:48 PM [EST]

Answer to Is it legal for my general manager and manager to discuss my mental health in front of my coworker /guests

The Americans with Disabilities Act requires an employer to treat information obtained through medical inquiries or examinations of an employee as confidential medical records. The ADA also prohibits an employer from giving such information to an employee's supervisor. Therefore, if the learned of your medical condition from an employer medical exam, you may have claims under the ADA.

Also, the common law of privacy of most states prohibits the intentional disclosure of medical information absent the patient's consent. You need to talk to a Pennsylvania employment lawyer to learn the specifics of PA privacy law, however.

posted Oct 21, 2015 3:26 PM [EST]

Answer to Can I take legal action if I'm getting bullyed and my HR/Supervisors don't do anything??

The answer to your question depends on state law. I am licensed only in the state of Ohio and do not know Washington law. The laws of the 50 states tend to be similar, so this answer, which is based on Ohio law, is offered to provide a general idea of the law. Consult with a Washington employment lawyer for your specific employment rights.

First, bullying is generally not prohibited by law. Crazy, right? I think there is one exception (Oregon?), but unless the perpetrator bullies the victim because of the victims race, age, sex or other protected class, it is not unlawful. If the bullying is because of the victim's membership in a protected class, it is a form of unlawful employment discrimination. Otherwise, equal opportunity bullying is not unlawful.

The perp's physical, offensive contact is called a battery in Ohio. Your claim would be against the co-worker, and the claim would be worth something less than if you were punched in the nose in a bar fight. Battery claims are aimed at compensating you for the physical and emotional injury from offensive contact.

The co-worker physical contact has additional significance, at least in Ohio, because it creates a safety issue. Employers have an obligation to provide a safe workplace. If the workplace is not safe, especially after you put the employer on notice of the dangerous condition, then you may have claims against the employer should any further injury occur. In addition, you would have a claim for retaliation if punished for raising the safety concern.

Seriously consider contacting a Washington employment lawyer. Look at:

- the directory on this site,
- the directory on the Washington Employment Lawyers Association's site http://www.welaweb.org/Directory.aspx and
- the attorney directory at the National Employment Lawyer's Association's Find A Lawyer service: http://exchange.nela.org/network/findalawyer.

posted Oct 21, 2015 07:07 AM [EST]

Answer to Intermittent fmla family member. Employer not providing correct forms yet.

You do not have to fill out forms to be eligible for FMLA leave, including intermittent leave to care for a family member. However, if you ask for FMLA leave, your employer has the right to obtain from you to a Certification of Health Care Provider. If the employer cannot give you the proper forms for this purpose, then the employer arguably waives its right to that form.

However, it is easier and safer to get the form yourself. It is located at https://www.dol.gov/whd/forms/WH-380-F.pdf.

posted Oct 9, 2015 06:56 AM [EST]

Answer to My wife has been sexually harassed at work but is scared to file a complaint. what can I do as her husband?

I suggest that you help your wife find medical, emotional and legal help, in that order. Suicidal thinking is dangerous. Get to a psychologist or psychiatrist who has experience in harassment and domestic violence. Emotionally, be there for her. She is going through a very hard time and can use your support.

For legal help, call employment lawyers from Indiana who are 1) listed on this site, or 2) are members of the National Employment Lawyers Association (check the attorney directory on NELA.org,). Look up those lawyers on AVVO.com and Lawyers.com to see how their clients and other lawyers rate them. Get as close to a 10 on AVVO as you can. An "AV" is the best rating on Lawyers.com. If they are Super Lawyers, that is a good sign too. Check their websites to make sure they represent individuals.

Attorneys who represent individuals should be interested in taking this company to task. If you were in Ohio, we would meet and map out goals and a strategy. The status quo is unacceptable, so something has to change. Your wife has some legal tools available for changing how the company treats her, like a complaint of unlawful harassment, and she will have legal rights against the company if it terminates her for making the complaint. Your wife also controls where she works, so if work is killing her, she should seriously consider not going there anymore. However, that has its own set of legal and financial consequences.

Finally, recognize that, as the husband, you have an emotional stake in what happened to her at work. Do your best to not let it interfere with her making the medical, emotional and work decisions that are best for her. Support her in whatever course she charts and things will get better.

posted Sep 29, 2015 1:33 PM [EST]

Answer to Can I receive unemployment if my current employer dissolves or do I have to take a job with the new?

Good question. I can give you a partial answer.

Your reason for separation qualifies for benefits, since you are being separated in connection with the dissolution of your current employer. You must also show, though, that you are able and willing to accept new employment, are actively searching for it, and do not unreasonably fail to accept comparable employment offered to you.

While this means that you do not have to take a minimum wage job on an undesirable shift, it may mean that you lose eligibility for benefits if the new position is comparable. The facts that it pays less and involves more work cut against a finding that it is comparable, but I just cannot tell.

Whether or not the position offered to you is sufficiently comparable that you have to take it or lose benefits is a factual question that the Ohio Dept. of Jobs and Family Services must answer. Therefore, if you choose not to take that position, apply for benefits and get an answer to your question that way. For making that decision, though, you would be wise to assume the worst, being that ODJFS will find that the new position is comparable, and then make your decision accordingly.

posted Sep 8, 2015 1:08 PM [EST]

Answer to My son works construction in ky he works 50 to 80 hours a week he tried talking to his employer telling them he couldn't keep up with being a full time online student and ask for help arranging hours or not working so many they told him education wasn't a

Hours of work are governed by both federal and sate law. I do not know Kentucky law and cannot comment on whether the employer's insistence on 80 plus hours a week would violate any Kentucky law.

As for federal law, there is no limit on the number of hours that an employer can require employees to work. In theory, that could be 24/7/364. Obviously, no one could or would work those hours, but it would not be as a result of a law. However, federal law requires employers to pay 1.5 times the rate that they pay for the first 40 hours for any hours worked over 40 in a week.

If you are not receiving overtime pay for the 40 plus hours of overtime that you are working each week, then you will probably have a claim for overtime and should consult an employment attorney near you about it and/or file a claim with the U.S. Department of Labor. If you are receiving overtime but need to devote more time to your classes, you may have to find an employer who is willing to provide you that balance.

posted Aug 31, 2015 08:47 AM [EST]

Answer to i have been working for the same company for 7 years. Just recently a new company came in and bought them out, and is demanding that I sign a non-compete. My old employer never had me sign one. If I refuse to sign and they say that I must or I can't work

For what it's worth, which is not a lot, Ohio employees who lose their job because they refuse to sign a non-compete are eligible for unemployment compensation benefits.

posted Aug 31, 2015 08:41 AM [EST]

Answer to I saw my personnel file and I'm horrified to what was in it. I didn't know some of those things were in there. Too much time has passed so I've lost an opportunity to rebuttal. What can I do?

As a general rule, your personnel file is the property of your employer or former employer. You only have the right to add to it, detract from it or rebut what's to the extent your employer allows it. As an exception to that rule, union employees covered by a collective bargaining agreement (CBA) may have rights negotiated in the CBA.

I suggest that you write your rebuttal, give to your employer and ask your employer to put it in your personnel file. You might also ask to remove the horrifying documents. Either way, keep a copy of your rebuttal and request. That way, even if the employer does not put it in, you can provide your rebuttal.

posted Aug 28, 2015 07:51 AM [EST]