Answers Posted By Scott Leah

Answer to What is indirect competition?

There is a lot to your question, and I would have to review your actual non-compete agreement, and discuss in much more detail the nature of the business and the job you did, to answer your questions.

The enforceability of a non-compete involves many factors, including (a) whether it was supported by adequate consideration, (b) whether it is reasonable in its geographic scope, (c) whether it is reasonable in its length of time, (d) whether it is reasonable in its scope, i.e. what it bars you from doing, (e) whether the employer has a legitimate business interest in enforcing the non-compete, (f) whether the new position violations the exact terms of the non-compete, etc.

Give me a call if you would like me to review your non-compete and discuss this further.

posted Apr 12, 2011 05:51 AM [EST]

Answer to Please Help

There are several issues raised in your question.

1. Is the non-compete assignable? If not, it will not be enforceable.

2. Does the old company, or the new company, do business in Oklahoma? If not, they may not have a legitimate business interest in stopping you from working there.

3. What is the geographic scope and is it reasonable under the circumstances.

4. What is th scope of what it bars? Any employment by a competitor? Or does it bar you from doing certain jobs for a competitor?

If you would like me to look at your non-compete, please give me a call. 412-594-5551.

Scott Leah

posted Mar 23, 2011 05:25 AM [EST]

Answer to Rests and Meal periods

Based on the facts as set forth in your question, my answers would be:

1. There is no law requiring employees to take a 30 minute meal period. Your employer is incorrect. However, an employer may have a policy requiring 30 minute meal periods. Your employer may therefore require that meal break even though the law does not.

2. Yes, breaks under 20 minutes are considered hours worked and must be paid.

posted Mar 18, 2011 05:07 AM [EST]

Answer to Is my non-compete valid if I only worked at a company for less than a month?

I agree with Christopher. While this non-compete is, on its face, most likely valid, there are a lot of facts that you bring up that could either make it not enforceable or limit its application.

As he noted, there is some case law that holds that where an employer considers an employee to be worthless (and thus terminates him or her for poor performance), the employer would not have a legitimate business interest in that employee not competing with it.

Additionally, an employer must always have a legitimate business interest in order to enforce a non-compete. A strong argument can be made that an employer has little or no business interest in preventing someone whom it employed for just 1 month from competing with it.

You should give a lot of thought before you refuse to take a new job out of fear that your old employer will try to enforce the non-compete. There is a possibility that they will not even try to enforce it, for the above reasons. Even if they do, you may have strong defenses to any attempt to enforce it.

posted Mar 15, 2011 05:54 AM [EST]

Answer to Do We Have The Possibility Of A Case In Which To Negotiate/Sue For Severance Pay?

You do not say on what you base your belief that you are entitled to severance pay in the first place.

Pennsylvania law does not require an employer to pay severance pay to an employee who is laid off or terminated. Therefore, to have a right to severance pay, there must be a contractual right to the same. Those are often found in employment contracts or collective bargaining agreements. There may also be an enforceable right to severance pay if the same is provided for in an employee handbook or other employment policy.

If you have such a contractual right to severance pay upon termination, then you may be able to pursue that claim through the bankrputcy court. The bankrputcy of the company may complicate receiving the money, but does not necessarily mean you will not receive it. You may need to retain an attorney to represent your interests in the bankruptcy.

However, if you don't have a contractual right to severance pay, the bankrputcy is irrelevant. Without a contractual right to severance pay, you have no claim regardless of the bankruptcy.

It also does not matter that some employees received severance pay. If there is no contractual right to severance pay, the fact that the employer chose to give severance to some employees does not create a right to severance in other employees. Just as an employer can give a raise to some employees and not to others. So long as the employer does not discriminate against someoone on the basis of age, gender, national origin, etc., it can treat employees differently.

Finally, there is a possibility that the closing of your location may fall under the WARN Act, which requires employers to give 60 days advance notice of a plant closing or mass layoff in certain circumstances.

posted Mar 10, 2011 06:20 AM [EST]

Answer to Terminated, was not paid for last day

If you worked until the end of the day, you are owed wages for that day. If your day ended early, and you were an hourly employee (and it sounds like you were), you are owed wages for the hours worked that day.

You have two choices regarding your last day's pay. First, you can contact the Pennsyvlania Department of Labor and Industry and file a wage claim. They will investigate and try to get the employer to pay you if you are owed for that day. Second, you can file a claim in magistrate court under the Wage Payment and Collection Law. Under it, you can collect your days wage, plus attorney fees (if you incur any) and liquidated damages of 25% of the wage due or $500, whichever is greater if the wages were due for more than 30 days.

posted Feb 25, 2011 06:11 AM [EST]

Answer to Can I collect unemployment if my employer repeatedly did not pay me in full on the regular payday?

The general rule is that when you voluntarily quit, you are not entitled to unemployment compensationa. However, you can still receive unemployment compensation if you quit for a necessitous and compelling reason.

You have a decent argument that you had such a reason. Your employer is obligated under the law to pay you for all of your time worked, and to do so on time. You cannot be expected to work and not get paid the full amount you are due, and your quitting because you were not may well be found to be a necessitous and compelling reason.

Do not be afraid to "appeal." If the UC office finds that you are not eligible, you should file an appeal. You will get a hearing in front of a UC Referee, who is trained in unemployment law. You can attend with or without a lawyer, but will have an opportunity to explain to the Referee why you felt you had to quit. Any evidence you have that you were not paid in full should be submitted to the Referee at the hearing, such as pay stubs, any emails or documents wherein your employer admitted not being able to pay you, etc. The employer may also fail to appear at the hearing, in which case your chances of winning increase dramatically.

Finally, if you are still owed money by your employer, you should consider filing an action in court (you can file before a magistrate if your claim is under $8,000) for the same. Because you can get attorney fees, you may want to hire an attorney to file the claim for you.

Alternatively, you can file a complaint with the state Department of Labor and Industry or the federal Department of Labor (Wage and Hour Division). They can investigate and try to get your employer to pay you any back wages you are owed.

posted Feb 16, 2011 12:57 PM [EST]

Answer to Relocation expenses repayment

If the agreement states that you only have to repay for voluntariy termination, and you were involuntarily terminated, you should not have to repay those expenses. There are two important things here.

First, the language of the contract. If it is clear that repayment is only for voluntary termination, then that is the only circumstance where they can require repayment.

However, you need to read the contract carefully. Such relocation agreements typically also require repayment where termination was for willful misconduct (or similar language).

Second, what the circumstances of your termination were. Is is clear that the termiantion was involuntary? Can they make a willful misconduct argument (if the contract provides for that)?

posted Dec 1, 2010 2:53 PM [EST]