Sunday, April 20, 2014

Massachusetts Moves to Eliminate Non-Competition Agreements.

Massachusetts is on the move to eliminate non-competition agreements.  Non-competition agreements are used by employers supposedly to prevent competition from former employees who might use information gained during employment.  The purpose of a non-competition agreement is to prevent unfair competition. More often, it prevents the former employee from earning a living.  In Ohio, courts have the power to rewrite such agreements.  The general rule in Ohio is that an agreement that prevents former employee competition for two years within a reasonable geographic area will be upheld.

Massachusetts Governor Deval Patrick has submitted legislation to get rid of non-compete agreements in favor of adoption of the Uniform Trade Secrets Act (UTSA).  In essence, the UTSA forbids former employees use of information developed by a company that is unavailable to other companies. Classic examples of a trade secret  include the Coca-Cola formula and Colonel Sanders' secret herbs and spices. Allowing employees with access to such trade secrets to leave the company, set up shop and use the secret is and should be unlawful.  But when it comes to things such as a customer list that can be duplicated by searching for customers on the internet or a business-to-business phone book, the the non-compete restriction tends to prevent legitimate competition.  

It's about time for other states to take the same action as Governor Patrick has in Massachusetts.  

Saturday, April 19, 2014

MetLife Settles with Employees for $1.97 Million.

Cleveland Employment Lawyer David W. Neel

Employment Law – MetLife Settles with Employees for $1.97 Million.

A plaintiff’s class has submitted a request for preliminary approval of a settlement with MetLife for $1,970,000.  In a case before the United State District Court for the Central District of California, a class representing MetLife financial service representatives alleged that MetlIfe made improper withholdings for office expenses and forfeiture of earned commissions upon termination from employment.  The court must approve the settlement before it becomes final and enforceable. Johnson v. MetLife Inc., Case No. 8:13-cv-00128 (Plaintiff’s Memorandum filed Apr. 11, 2014)

David W. Neel, Attorney at Law

Company Shareholder-Director Not an Employee Entitled to Employment Law Protections.

Casa Marshall and her four brothers inherited a trucking company from their father.   Casa had started working for her father as a driver.  After his death she became the company’s office manager and human resources officer.  Casa and her brothers were directors of the company and had equal voting rights.  Casa later became the company’s vice-president. 

Casa became ill and took time off for surgery.  Following her return to work her brothers became dissatisfied with Casa’s job performance and eventually terminated her employment.  Casa filed a complaint with the Equal Employment Opportunity Commission (EEOC), which declined to prosecute her case.  She filed suit in federal court claiming that the company had retaliated against her for exercising her rights under the Family & Medical Leave Act (FMLA), and for gender and disability discrimination under Title VII, the federal anti-discrimination law.

The district court granted the company’s motion for summary judgment because Casa was not an “employee” within the meaning of the FMLA and Title VII, which defines an “employee” as an individual employed by an employer.  The court stated that an employer “is the person, or group of persons, who owns and manages the enterprise [who] can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed [and] are those whose authority and interests are so aligned with the business as to render them the legal personification of the business, i.e., principals rather than agents.”  Because Casa fell within the definition of employer, the court decided that she was not an employer and, therefore, not protected under Title VII or the FMLA. (Marshall v. G.E. Marshall, Inc. Case No. 2:09-cv-198 APR (N.D. Ind., April 14, 2014).

Employment Law - Employees have rights too.

AVPreeminent labor and Employment
Were you wrongfully terminated from your employment? Have you been discriminated against or harassed at work? Are you supposed to get paid overtime but you're not? Is your employer giving you a hard time about taking time off to deal with a personal or family medical issue?  Have you been denied unemployment compensation benefits? Do you think that your civil rights have been violated?
Is so, you've come to the right place.

Employment Law Experience

Wrongful Employment Practices Attorney David W. Neel
I am an employee and civil rights attorney with 28 years of legal experience. I am a dedicated, passionate advocate for people whose employment and civil rights have been violated. I believe that people need a lawyer who will level the playing field in disputes with their employer and the government.

About Employment Lawyer David W. Neel

David W. Neel is an AV-Preeminent* attorney in Cleveland, Ohio, with 28 years experience as a civil trial lawyer. In addition to his practice, Mr. Neel is an adjunct Professor Law at Cleveland State University.  Mr. Neel received a Bachelor of Arts with honors from Kenyon College, his law degree with honors from Cleveland-Marshall College of Law and a Masters Degree in Law from Columbia University. After serving as a federal judicial clerk, Mr. Neel represented Fortune 500 companies in complex commercial and employment litigation. In 2003, Mr. Neel began focusing his practice on helping people, not corporations. Mr. Neel has wide-ranging experience in the trial and appellate divisions in both federal and state courts and before numerous administrative agencies.
Legal Leader
*CV, BV and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies. For more information please visit
Unpaid Overtime Attorney David W. Neel- AV Preeminent Attorney

Recover Unpaid Overtime Now

Not getting paid overtime
Get paid overtime for your hard work - David W. Neel, Esq. 216-522-0011/
A maximum of generally 40 hours per week has been set by various state and federal laws on the amount of work that an employer may obtain from an employee without paying overtime.  This ceiling is generally designed to assure employees a reasonable amount of time off, to provide a stimulus for the creation of additional jobs, and to place limits on the ways firms compete with each other.  When an employee works beyond the number of hours set as the ceiling, those laws generally require a payment of one and one-half times the employee’s regular hourly rate for the extra hours of work.  The Fair Labor Standards Act (FLSA) contains the basic federal law on overtime pay.  Its rules are the model for overtime pay rules under the laws of various states, including Ohio.
  • In sum, employers are required to pay employees overtime for hours over 40 worked during a week. Overtime pay is 1-1/5 times an employee’s regular wage rate. For example, if you are paid $10 per hour and work 60 hours in a week, then you are entitled to be paid $15 per hour for the 20 hours above your normal 40 hours.
The FLSA does not limit the number of hours the employee may work during a week, but simply designates those hours that must be paid at the overtime rate.  An employee may work as many hours a week as the employee and the employer see fit, as long as overtime is paid.  There are certain exceptions to this rule. For example, federal law and the laws of various states limit the number of hours that can be worked in certain jobs, such as mining, driving, and manufacturing.

Exempt Employees

The overtime compensation rules do not apply in like manner to all employees.  Some workers are completely exempt from the rules, while others are exempt or partially exempt from some of the rules.  The most widely used and recognized exemptions from federal and state overtime requirements are the exemptions for “white collar” employees, such as executives, administrators and professionals.
  • An executive employee is generally one whose primary duty is management, who supervises the work of at least two other employees on a regular basis, and who has the power to hire or fire, or who has a say as to the employment status of other employees.
  • An administrative employee is generally one whose primary duty is office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, including the exercise of discretion and independent judgment with respect to matters of significance.  For example, employees working in a tax, labor relations, human resources or IT department can be exempt administrative employees, if they regularly make important business judgments.
  • “Professional employee” refers generally to the traditional professions, including teaching, as opposed to the mechanical arts or skilled trades
  • While technically not exempted by the white collar exemptions, skilled computer employees and outside salespersons may also be classified as exempt employees.
Whether an employee is exempt is determined by the employee’s actual work activities, not by an employer’s characterization of those activities through a job title, job description or by the nature of the employer’s business.

Salary Requirements For Exempt Employees

No employee may be considered an exempt “white collar” employee unless his or her wages meet the minimum compensation requirements.  Currently, the minimum compensation requirement is $455 per week on a salary basis; however, this pay requirement does not apply to teachers, doctors, medical residents and interns, and lawyers.  For computer employees, the pay requirement is met by compensation of at least $27.63 per hour. President Obama has called for an increase to the minimum salary requirement so that millions more Americans can get overtime.

Penalties for Employers

Unpaid overtime carries stiff penalties for employers. In addition to paying the amount of unpaid overtime, employees can collect an additional 2 to 5 times that amount in damages. Unpaid overtime can also result in employer liability for the employee’s attorney’s fees and litigation costs and expenses. Not only that, an employee can sue on behalf of other employees who were the victim of unpaid overtime. In such cases, the employee who sues can collect an additional amount as the representative for class of employees with unpaid overtime claims.

Who Is An Employer?

Moreover, the legal definition of “employer” includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.” This means that business owners and others can be personally liable for unpaid overtime and additional damages.

More information about your rights can be found at the DOL website and, more generally, at Wikipedia. The DOL also provides an overtime calculator that you can use to calculate what you might be owed.

The above statements are general and are not intended to be relied upon as legal advice. The overtime laws are complicated. If you have questions please feel free to contact me at 216-522-0011.

Employment Law - Unlawful Discrimination Based on Pregnancy, Race, Gender, Religion, Age, Disability, National Origin & Ancestry

Discrimination in employment is unlawful.  Employers cannot base decisions on race, color, religion, sex, military status, national origin, disability, age, or ancestry.  Legislation is pending in Congress and Ohio’s General Assembly to prohibit employment discrimination on the basis of sexual orientation and gender identity.  If passed into law members of the LGBT community will be protected against discrimination by employers.

Employment Law - Who Are Considered "Employers"?

Federal anti-discrimination law (Title VII) applies to employers with at least 15 employees. Ohio anti-discrimination law covers employers with 4 or more employees.  Under Ohio law supervisors are considered employers.  This means that supervisors can be held liable for employment discrimination along with the company.

Employment Law - How is Discrimination Proved?

The question to be asked in a discrimination case is always “why” – Why did the employer make the employment decision?  The successful discrimination plaintiff is able to prove that the employer made its decision because of the protected characteristic (race, religion, sex, etc.)
Proving the reason for an employer’s decision is difficult because it requires getting into the mind of the employer. For example, most employers are not so dumb that they will tell an employee they are being let go because of their race.  The employer (or its supervisors) rarely makes comments that show a discriminatory motive.  Most discrimination cases are, therefore, based on circumstantial evidence. Recognizing the difficulty employees have in proving discrimination circumstantially, the U.S. Supreme Court in 1973 set forth the basic elements of a circumstantial case.   We lawyers call this the prima facie (Latin for “at first sight”) case.  Proof of these elements eliminates most non-discriminatory reasons for the employer’s decision.  The elements are (1) the employee is a member of one of the protected classes (e.g., race, religion, gender, etc.); (2) the employee was qualified for the job; (3) the employee suffered an “adverse employment action”; and (4) a “similarly-situated” (comparable) employee who is not a member of the same protected class was treated more favorably.  This forces the employer to state the reason for its decision.  The plaintiff-employee must then offer evidence that the employer’s stated reason is not worthy of belief.

Experience Matters in Employment Law

Success in an employment law discrimination case requires an experienced litigation attorney with knowledge of applicable laws, rules and regulations.  If you have any questions you should feel free to call me at 216-522-0011.  I offer a no-charge consultation and will tell you whether, in my opinion, you have a case.
Discrimination Litigation AV Preeminent attorney David W. Neel

The above statements are quite general and should not be relied upon as legal advice.  The intent is to paint a picture of the legal landscape.  Again, just give me a call to get more information about your situation.