Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, February 28, 2014

If Your Contract Says It Isn't A Contract Is It A Contract?

A reader asks this question in the comments to my post Non-Compete Agreements - Top 5 Ways To Get Out of Yours
In 2012 my husband started working for a contractor. As a subcontractor he signed a subcontract agreement. In which case has schedule of payment as 45 days net and the non compete agreement. As he did sign it but in bold letters it states THIS IS NOT A BINDING CONTRACT AND CAN BE TERMINATED ANYTIME FOR ANY REASON. In 2013 he got let go because they butted heads. (not because he did bad work). Its now been over 125 days and yet still no payment. Does that mean the non compete still applies?
 You gotta love a contract that says it isn't a contract and isn't binding. I actually see this all the time in employee handbook acknowledgements that employees have to sign. I like to point to this language when the employer turns around and tries to enforce noncompete language in the handbook. My conversation usually goes something like this: "Hello? You put right here that it wasn't a contract. Are you saying it is now? Because then I think my client has claims for your failure to follow the progressive discipline policy, along with a bunch of other claims for your failure to follow your own policies." That is usually met with a bunch of muttering under the breath and a quick, "I'll get back to you."

I can't say I've ever seen this kind of weaselly language in a document called "contract" or "agreement." This raises an interesting question. If the document's title says it's a contract, but the language in the document says it isn't a contract, then what the heck is it?

The one thing it isn't is a contract. That means, IMHO, that your noncompete obligations in the document are also not a contract that they can enforce. Would a judge agree with me? Maybe. The issue, if they had the nerve to sue over this non-contract contract, would be the intent of the parties. I assume the employer will say something like, "I meant that it was terminable at will, not that the noncompete part wasn't a contract." I don't think this would fly, since any ambiguity is supposed to be construed against the drafter.

The other issue is the failure to pay all sums due. Once they breach a contract (assuming it's a contract) then your obligations should be null and void. Again, I can't guarantee a judge would agree with me, but there's plenty of case law in Florida on this and presumably every other state has similar cases. This is basic contract law - once a party breaches a contract, the other party's obligations vanish.

If you haven't been paid wages due, then you probably also have claims under your state's unpaid wage laws, unjust enrichment, wage theft, breach of verbal contract, or some other legal theory. You should talk to an employment lawyer in your state about what claims you have and let them review your agreement to see if they agree that your noncompete may not be binding

Friday, February 21, 2014

Will The Reason For My Termination Turn Up In A Background Check?

A reader left this question in the comments to my post Loss Prevention is Lying to You.
Hey Donna, would you know if for example LP fired a person from a company, would other companies that person applies for be able to see everything that happened between him and the company he got fired from?
One of the very common statements I hear is, "I know they aren't allowed to say that in a reference." This statement usually comes from someone who is shocked (shocked!) to find out that their former employer gave them a very bad reference. Many people think employers can only give out dates of employment and job titles.

That's dead wrong. At least here in Florida, an employer can say pretty much any darned thing they want in a reference. There's a statute saying that employers can't be sued for giving truthful information in a reference here and in many other states.

What does that mean? It means that employers can trash you at will and may not be breaking the law. Here's what you need to know:

Employers can't defame you. That means they can't give out factually false information to potential employers. While they can probably get away with saying stuff like, "She wasn't a good fit," or "He didn't get along with management," or "Her performance wasn't up to par," they can't say, "He turned out to be a pedophile," or "She embezzled from us." Opinion is okay but false facts aren't. And no, they can't say, "In my opinion, she embezzled from us," and get away with it if that's false.

Truth is always a defense. Saying, "A coworker complained about sexual harassment and we had to let her go," if true, may not cross a line even if you didn't sexually harass anyone, but this is probably borderline and would depend on the situation.

Retaliation may (or may not) be illegal. Sometimes, employees say to me, but I know they're retaliating. I have to ask: "Retaliating for what?" Some people don't seem to understand the concept. Others think if they complain about bullying, unprofessionalism, or bad boss behavior they're protected. They aren't. However, if you report or object to something illegal like discrimination, failure to pay wages, safety violations, FMLA violations, or sexual harassment, then you're probably legally protected against retaliation. This means an employer can't slam you in references just to get back at you for, say, filing with EEOC.

Public records: Generally, your personnel file or loss prevention file isn't a public record, and your former employer isn't going to part with it or give a copy to a potential employer. Exceptions exist for many government entities that have to make records available to the public. Also, some publicly held corporations may have to disclose certain information to shareholders. In addition to this, if you're applying for a job in law enforcement, many times the police department will investigate by asking for a copy of your personnel file for review (and most employers will cooperate).

Legal proceedings: EEOC filings aren't public record, but lawsuits are. If you sued your former employer and your personnel file or testimony came in about your termination, then your new employer or a potential employer can get this by pulling the court file.

Industry filings: Some industries, like securities, have filings that include reason for termination. Those forms, once filed, can be pulled by potential employers in the industry.

These are all reasons why, if I'm negotiating a severance package or settlement of an employment law case, I ask for either an agreement the employer won't say negative things about you to anyone, or at least for neutral references, which means they can give dates of employment and job title only. If you left on bad terms, you might want to talk to an employment lawyer about getting an agreement that our former employer won't say bad things about you.

Some employers have a policy of only giving out neutral references, but if they violate their own policy you don't necessarily have a lawsuit against them for doing so. Many potential employers will ignore your request that they call a central reference number or HR and will call your former supervisor directly, in which case almost anything could happen.

Tuesday, February 18, 2014

Am I Being Targeted For Layoff Due To My Age?

An AOL Jobs reader asked me:
I work for a large company in Ohio. There are 50 or so employees with my job title working at various locations in the area. The company has decided to eliminate all but 15 of those positions. I am 61 years old. The company first examined our work history, anyone with disciplinary actions were eliminated from the pool. We were informed some positions had been filled and yesterday "group interviews" were conducted. The union negotiated a severance package, one week pay for each year served, the company will continue to pay benefits for three months and they will not contest unemployment benefits. I have been informed by my department head they may offer a lesser paying position if I am not among those chosen. There are 3 people with my title at my store. Should I be permitted to choose between a lesser paying job and the severance package? After the severance package, unemployment, perhaps SSI disability, can I simply accept early retirement? What other options do I have?
Older employees, along with the disabled and pregnant employees, are the most targeted employees in layoffs. There seems to be an assumption that the "old guys" will be retiring soon anyhow so it doesn't matter. It does. Targeting older employees is illegal.

How do you figure out whether you were selected due to your age? My latest article at AOL Jobs tells you what you should consider and when to contact a lawyer.

Friday, February 14, 2014

They Aren't Going To Beg You To Stay (So Don't Quit Unless You Mean It)

One of the things that makes me shake my head in my law practice is when people tell me that they either quit or discussed possibly quitting, then tried to take it back. I shake my head, because they're almost always contacting me because they're suddenly unemployed.

Many employees think they're indispensable. Whether they've been with the company a long time, are high-producing sales people, or just know where the bodies are buried, lots of employees quit or threaten to quit with the secret belief that their employer can't live without them. That the boss will beg them to stay.

That isn't going to happen. Oh, sure, there are rare cases where a top employee puts in a resignation and the boss rips it up and says they aren't accepting it. They may be offered more money. That's rare. You're more likely to get hit by lightning. It isn't going to happen to you. With unemployment what it is, there are probably people younger (or older and more qualified), better educated, and with less attitude just waiting to take your job. Plus, if you've shown your unhappiness then they may celebrate your departure.

Here are 9 things you need to know about quitting:

  • Notice: While you're expected to give notice, 2 weeks or more depending on your industry, your boss may well say you should leave now. While this isn't very classy, unless you have a contract saying otherwise, they can boot you the second you hand in your notice. Be ready for it. If this happens, ask your new employer (because I know you're not dumb enough to quit without having a job lined up, right?) if you can start earlier. Or take a much-needed vacation.
  • Vacation: Speaking of vacation, don't put in notice and expect to take your paid vacation during the notice period. It isn't going to happen. Either take the vacation before you quit or consider it lost. Some employers pay it out when you leave if you didn't take it but many do not. Your state law may or may not help you.
  • Eligible for rehire: If you quit without notice, you're probably listed as ineligible for rehire. That can come back to bite you years later. Let's say you work for a company that gets a big contract. Surprise! It's your former employer or a company that ate your former employer. They may check you out and say you aren't allowed to work on their contract. You can lose your job even though you've been working for years with no problems. Give notice unless you're in physical danger from staying.
  • References: Know what the company policy is on references before you go. If they only give neutral references (dates of employment, job title) then you may want to ask for a reference letter from a supervisor or two. That's all the more reason to leave on good terms. If you left on bad terms, you'd better hope they only give neutral references. Otherwise, assume they'll trash you. There are reference checking companies you can hire to find out what they're saying about you if you think they're giving out false information. Don't ask me to recommend any, since I've gotten complaints about every one I've recommended over the years, along with reports of extreme satisfaction, so I don't recommend anyone anymore.
  • Quitting without quitting: If you ask your employer to talk about severance, they think you quit. If you no-show, they think you quit. If you clear out your office right before a vacation or medical leave, they think you quit. If you say that, unless they do x, y or z, you will have to quit, they think you quit. If they catch you looking at Monster.com, sending out resumes or get a call about a reference, they think you quit. If you say that you can no longer concentrate or do any work until they meet your demands, they think you quit. Once they think you quit, you're gone. Don't make them think you quit if you don't intend to quit.
  • Forced quitting: If your employer tells you that you have to quit, they're lying. Don't quit unless you are ready to quit, or are offered something like severance that makes quitting worth your while. Your employer can't make you quit.
  • Promises, promises: If your employer does beg you to stay, making promises that things will be better, more money will be earned or whatever, make them put it in writing. Get a contract. If they won't put it in writing, take the other job. Bosses are like spouses - they rarely change.
  • Do I have a case?: Don't assume you have a lawsuit against an employer just because it was so awful you quit. Do your homework. Gather your evidence of discrimination, FMLA interference, whistleblower retaliation or whatever claim you think you have. Make sure you document everything and talk to an employment lawyer in your state before you decide.
  • No take-backs: If you quit and then try to take it back, they don't have to let you (and they probably won't). If they let you stay, it will only be until they find a replacement. Don't quit unless you're sure. In rare cases, people who resign for another job that falls through are taken back with open arms. More likely, once they know you're looking, you're gone.

Discrimination against the unemployed is legal in most states, so don't quit unless you have something else lined up. No matter how stressful it is at work, it's probably going to be more stressful to be unemployed for months (or years). Unless you're so wealthy you can live without your work income for at least a year, then wait until you have a safe landing before you quit.

They aren't going to beg you to stay. Trust me on this.

Tuesday, February 11, 2014

Do I Have To Disclose My Medical Condition To A Potential Employer?

An AOL Jobs reader asked me:
Your columns are extremely educational and full of information. Thank you from an appreciative reader. I may have missed this, but when applying for a job, is it necessary to disclose any medical conditions? I am a Diabetic Type 1, and use a pump, which could bulge through my clothes, though I take care to avoid that.

I was hired by a high-end jewelry store one month ago, and after working for 10 days, was told by HR, that I was "not a good fit." No other explanation. Needless to say, I was devastated. I am a University graduate with a B.A. and have always worked diligently. Does this business have a right to dismiss me?
This question addresses an important issue about disabilities. In general, you should not disclose any disabilities when applying for a job. The potential employer is not supposed to ask about any disability until it makes what is called a "conditional" job offer. For details on how the Americans With Disabilities Act works and who is covered, read my article 15 Things You Need To Know About Disability Discrimination.

I answer my reader's question and explain how a conditional job offer works and what questions a potential employer can ask in interviews in my latest AOL Jobs column.

Friday, February 7, 2014

Don’t Make These 10 Easily Avoidable Mistakes That Can Get You Fired

One of my greatest frustrations as an employee-side employment lawyer is that many people come to me after being fired because they made mistakes they could have easily avoided. Don’t lose your job over a stupid mistake. In raising children, my husband and I periodically note, “Things we shouldn’t have to say, but apparently do.” We’ve put, “Don’t eat the snail you found on the porch,” “Don’t cut a chunk out of your sister’s hair,” “Don’t put the cat in the clothes hamper,” and “Don’t write on your feet” in this category. (I understand silly product warnings more clearly since I’ve had kids).

Since I’ve seen these situations over and over again, even though they should be obvious, clearly some things don’t go without saying, even to working adults.

Here are 10 things you should not (emphasize, NOT) do if you don’t want to be fired:

1. Cursing: I’ve met dozens of employees who were fired over using the f-bomb or other curse words at work. Don’t assume that, just because supervisors curse like sailors, you can get away with having a potty mouth. Avoid curse words at work, especially with supervisors and customers.

2. Arguments With Customers: The customer is always right. If you have a customer who is being rude or abusive, get a supervisor involved. Don’t argue, curse, yell or be abusive to any customer.

3. Arguments With Supervisors: No, you can’t call your supervisor stupid or unprofessional and expect not to be fired. You can’t curse, threaten or throw things at your supervisor. Did I really have to say this? Apparently I did.

4. No-Show: If you’re sick, going to be late, or need medical leave, follow the company’s policy on calling it in. Do it within the required time and call or contact the person you’re required to call. Don’t just no-show. Don’t leave a message with a coworker. Don’t leave voice mail or email and assume it’s okay. Follow up and make sure the message was received if you can’t get the person on the phone the first time. If you’re so sick you can’t call, make sure a family member or friend calls. Check your schedule. Find out when you're supposed to return from a suspension or medical leave. 90% of life is showing up (loosely quoting Woody Allen).

5. Failing To Take Calls From A Supervisor: If your supervisor is calling you, especially if you’re out sick, don’t fail to pick up and answer. Why would anyone do this? I can’t even fathom, but it happens all the time. If your supervisor is interfering with your FMLA leave, take the call and then report them to HR. But take the call.

6. Failing To Respond To Email: If you have a company email address, check your messages. If a customer or a supervisor emails you, respond right away. Don’t let them pile up and fail to respond.

7. Failing To Respond To Voice Mail: Same as email, don’t let your voice mailbox fill up. Check your messages regularly and respond.

8. Guns At Work: Yes, Florida has a take-your-guns-to-work law. So do other states. The law says you can have a legally-permitted concealed weapon locked in your vehicle. That doesn’t mean you can take your gun onto work premises. Lock it up before you leave the house. Better yet, don’t take it. Employers are still squirrelly about guns, and I don’t particularly blame them. The law has lots of hoops and limitations. Why risk it?

9. Moonlighting: Many employers consider getting a second job (or getting a second job with a customer or competitor) to be a conflict of interest. Make sure you review the company’s policies carefully before accepting a second job.

10. Not Taking Responsibility: You have a responsibility to take care of your own stuff. That means knowing the rules, keeping track of your hours, calling in when required, and finding out when you’re expected to return from a suspension or medical leave. You are responsible for making sure you’ve provided any medical documentation needed, filled out FMLA forms and jumped through the employer’s hoops in any situation. You are responsible for understand how you are being paid. That means understanding any hourly rate, commission structure, salary, draw, or other pay plan. I can’t tell you how many people I encounter who have no idea how much they are owed or how they were being paid. That’s completely irresponsible.

I can probably think up dozens more after 27 years of practice, but these are the ones that come to mind as frequent problems. Don’t make my colleagues or me shake my head and ask, “What were you thinking?” Be responsible. Be an adult. This is your life we’re talking about. It’s important.

For more on easily avoidable mistakes, take a look at my article 10 Workplace Rights You Think You Have – But Don’t.