Answers Posted By Neil Klingshirn

Answer to Former Employer Not Adhering to Their Non-Compete Agreement

You need to consult an Illinois employment attorney to answer you question, but I recommend that you do so. If you were in Ohio and your non-compete was governed by Ohio law, a material breach by the employer of a term contained in your non-compete agreement can act as a defense to a suit for breaching the non-compete, or it can give you the option to rescind the contract.

The laws of various states are generally similar, but not identical. Therefore, while I believe it is likely that Illinois law would have a similar result, you need to talk to an Illinois employment lawyer to learn that for certain.

posted Aug 26, 2015 2:45 PM [EST]

Answer to Am I eligible for unemployment?

If you were separated from your full time job for no fault of your own, and you are able and willing to work, then you should be entitled to unemployment compensation benefits for any week of unemployment in which you sought work but did not obtain it.

During the weeks of unemployment in which you receive compensation from some other source, Ohio Department of Jobs (and Family Services) will reduce you unemployment compensation benefits, more or less dollar for dollar, Therefore, ODJFS may reduce your benefits as low as $0 during the weeks you receive severance pay.

Whatever the case, don't take it from me. This is not legal advice. You should go to the ODJFS unemployment compensation website and file a claim. Pay close attention to the information that you receive about decisions made by ODJFS. If you disagree with decisions, you can appeal.

posted Aug 24, 2015 07:36 AM [EST]

Answer to Please help with assault , workplace violence, & bullying by management

Your daughter may have battery claims against the supervisor who hit her, and possibly the employer who hired her as a manager, especially if the employer knew that the manager had a violent streak. A battery claim can compensate your daughter for the harm done to her by being struck. The amount of compensation will depend on the extent of the harm.

If your daughter reasonably concludes that she cannot work there without risking her safety, and that is a conclusion that reasonable people in her shoes would reach, she may be able to resign and treat her resignation as though she were terminated. That is know as a "constructive discharge," which could let her pursue a claim for a wrongful discharge in violation of public policy, and a "resignation for good cause," which would allow her to pursue unemployment compensation benefits.

While your daughter may have legal claims for the harm done to her at the workplace, especially if it happens again, you are almost always better off if she can avoid the harm in the first place. If she thinks that she is in danger by staying there, the job is probably not worth it, even if she is later able to recover money damages in a lawsuit.

posted Jul 7, 2015 1:08 PM [EST]

Answer to Possible Class Action.

100% non-disabled policies typically violate the ADA. There might be something different about your company's policy, but it would be blazing a new trail. As for cutting off network access, that depends on other factors.

Call me at 330.665.5445, ext. 2 on Tuesday (I'm out on Monday) if you want to talk about this. It's probably not a class action, but its probably not right, either. Your call will probably go to voice mail at first, but mention MEL in your message and I will know to call you back.

Neil Klingshirn

posted Jun 27, 2015 6:16 PM [EST]

Answer to Can a fired employee then be rehired by me without violating nocompete clause?

If you were in Ohio, the answer would depend on the language of the agreement between the home health care company and the caregiver. If it states that the restrictions on caring for former home health care company patients exist for a period of time following the caregiver's termination of employment, without specifying that they exist only following a termination of employment by the company, then the restrictions likely apply even though the company fired the caregiver.

The law in Missouri may be different from that in Ohio, so consult with an employment attorney licensed to practice there.

posted Jun 22, 2015 12:53 PM [EST]

Answer to I was approved for my FMLA, now my employer is requesting me to release my medical records. Can they do this? In New York.

If your employer informed you at the time that you asked for leave that you would have to provide a return to work certification from your doctor, then your employer can require you to provide that certification. Your employer cannot, however, require you to provide a medical release giving it access to your medical records as a condition to return to work from an approved FMLA leave.

Your employer is better off for a variety of reasons not asking for your medical records. If your employer continues to insist on them, consult an employment lawyer from your state about educating your employer how to save it from itself.

posted Jun 10, 2015 11:25 AM [EST]

Answer to Can a non compete be enforced if your former employer is in a lawsuit for its own breach?

If Ohio law applied to your non-compete (I am an Ohio lawyer), the fact that the other party to your non-compete agreement (Y) violated a separate agreement that it has with a third party (X) would not, in theory, alter how a court would enforce your non-compete with (Y). If Washington law is similar to Ohio law in that respect, then a Washington court would enforce the non-compete to the extent reasonable to protect Y's legitimate business interest.

The answer changes if Y breached its non-compete agreement with you. That could be the case, for example, if your non-compete agreement included a bonus payment that your employer failed to make. In that event, the other party's breach of its agreement with you could excuse your performance of your non-compete obligations under that agreement.

Legal theory aside, if Y is thumbing its nose at its agreement with X, a court will probably notice the hypocrisy and will give any argument that you have for not enforcing your non-compete a listen.

posted Jun 8, 2015 07:07 AM [EST]

Answer to Is this a violation of FMLA

There are two issues here. The first is whether you and your employer are covered by the FMLA. Your employer has to have 50 or more employees in the area where you work for the FMLA to cover it. You have to have worked for the employer for at least a year, and worked at least 1,250 hours during the last 12 months, for you to be covered.

The second issue is, if you and your employer are covered, whether the employer violated the FMLA. The statement, that you need to be at work and have been away from work more than you were there, indicate a bias against taking leave. However, a bias, by itself, is not unlawful. The employer has to act on the bias in a way that has a tangible, adverse impact on you.

Finally, you only get 12 weeks of FMLA leave a year. If you have taken more than 12 weeks, then you would be subject to your employer's normal attendance rules.

posted Jun 8, 2015 06:56 AM [EST]

Answer to Am I being retaliated against by my employer for taking FMLA leave to care for a sick parent?

The test for whether you are being retaliated against because you took FMLA is whether you exercised rights under the FMLA, suffered a tangible, adverse job action, and the adverse job action is causally connected to exercising your rights under the FMLA.

According to your question, you exercised rights under the FMLA. So far, so good.

You may not have suffered a tangible, adverse job action, though, because denial of vacation may not be enough to be tangible. Usually, although not always, an employee has to suffer a loss of pay, like from a demotion, suspension or termination, before there is a tangible, adverse job action.

If denial of vacation amounts to a tangible, adverse job action, then your employer's comments about optics and working on his/her own vacation could support a causal connection. However, the fact that your employer did not retaliate against another employee who exercised FMLA rights undercuts a causal connection to the exercise of FMLA rights.

Discrimination claims are similar to, but different from, retaliation claims. In discrimination cases, you have to prove that you were treated differently, in a tangible way, from someone else, because of your race, gender, age or other protected characteristic. In your situation, if your employer treated you and the other employee differently from people who did not take FMLA, then taking FMLA might be the reason for the differing treatment (i.e., discrimination). But since the employer treated two protected people differently, the reason is probably not because you both took FMLA.

I hope this helps.

posted Jun 4, 2015 10:04 AM [EST]

Answer to Do my unemployment benefits freeze during an employer appeal of benefits.

If ODJFS initially found you eligible for benefits, and your employer is appealing from that finding, ODJFS will not freeze your benefits during the appeal. ODJFS will cut off benefits if it sides with the employer on the appeal.

Also, if on appeal, it is ultimately found that you were not eligible for benefits, you may be responsible for paying back those that you received.

posted May 28, 2015 11:12 AM [EST]