Answers Posted By Phyllis Towzey

Answer to what action can we take if we hired a employee who broke a non-compete, and were informed after hire

I would need to see the contract between you and your new employee to advise you regarding your specific rights under that agreement, but since the employee did not tell you about the noncompete, likely he would have no recourse against you for terminating his employment. Further, since you hired him without any knowledge about the noncompete, his former employer would not have any basis to hold you liable for tortious interference. If you contact my office and email a copy of your employment contract, I would be happy to advise you further as to how you can best handle this matter, and whether you should contact the former employer.

posted Aug 11, 2014 2:39 PM [EST]

Answer to Should I have received a W-2 and reimbursement of FICA and Medicare taxes?

It sounds like there's much more to this that what you were able to share in your question - I can only answer based on the information provided. That being said, although you state that you did not know you were classified as an independent contractor, you also state that you never received a W-2 and that you paid self-employment taxes. That sounds like you did know you were an independent contractor, and that you certainly knew your employer wasn't withholding taxes. Since you were paying the full 15% for Social Security yourself, it's unclear why you now say the earnings reported on your 1099 each year were incorrect, as you would have used that information to pay your taxes each year. Typically, an individual who is misclassified as an independent contractor is not able to recover the 7 1/2 percent of employer SSI as a reimbursement from the employer. You may have had a claim against your former employer under the Fair Labor Standards Act (if you should have been earning overtime as an employee working in excess of 40 hours per week), but if the job ended in 2010 you are already beyond the statute of limitations. If you believe the accountant who filed your taxes made errors, then you could look into that issue for potential liability - however, I assume you reviewed and signed your tax returns at the time they were filed. Since all of this occurred four years ago, I would advise you to seek legal and tax advice immediately if you want to pursue any possible remedy. I suspect, however, that there really isn't much you can do about this situation other than to consider it a lesson learned, and move forward.

posted Aug 11, 2014 10:32 AM [EST]

Answer to Can I be denied severance pay if I accept a position that is not comparable with my current package?

Unless you previously signed an employment agreement, a retention agreement, or some other contract with the company that defines under what circumstances you are entitled to severance, then there's not much you can do about this. There is no law that requires an employer in Florida to pay severance when employees are let go due to a reduction in force (RIF) or reorganization. (There are some laws, like the WARN Act, that relate to the amount of notice employees must be given in certain RIFs, but I don't have enough information to know if that applies in this case). Therefore, the company can set the rules - for example, deciding that employees who resign and take a position elsewhere prior to the actual job termination date are not eligible, or that employees lose the right to receive severance once they they do obtain other employment. The only prohibition would be that they can't discriminate between employees based on one of the protected classes, such as race, gender, religion, age, etc. (In other words, they can't offer the severance package to all employees under age 40 and deny it to all employees over age 40.)

The best thing for you to do is contact an employment lawyer to discuss the specifics of your situation, and have any contracts, policies, etc. that have been provided by the company reviewed.

What the company is doing here may strike you as unfair; however, that does not mean that it violates any law.

posted Jul 8, 2014 08:01 AM [EST]

Answer to Can I be terminated from a company I worked at for 3 years for taking a second job

Because Florida is an "employment at will" state, you can be fired at any time for any reason (except unlawful discrimination based on age, race, sex, religion, marital status, disability etc.) or for no reason at all, so your employer can fire you for working for a competitor.

posted Feb 3, 2014 3:45 PM [EST]

Answer to Non-compete

Typically it would be enforceable, but you should have an attorney review your noncompete contract to make sure.

posted Feb 3, 2014 12:09 PM [EST]

Answer to Are there any exceptions for long term employment to receive severance pay?

As you note, there is no law in Florida that requires an employer to provide severance pay. From the information you've provided, the only possibilities would be: (1) if the company had a policy of providing severance, but excluded you based on your age, race, sex or other protected class status; or (2) if there is a discriminatory pattern based on who receives severance and who does not (you mentioned another employee did receive a package. I would suggest you contact an employment law attorney to discuss the specific facts surrounding your termination, and any company policy or practice.

posted Jan 23, 2014 10:11 AM [EST]

Answer to employment defamation

First, whether the CEO can terminate the contract with the provider depends upon the terms of the contract between the company and the provider. As far as whether the individual contract worker has a claim for defamation, the answer is likely no. Defamation requires false factual statements, not simply an expression of opinion (i.e. the CEO says he/she thinks the worker's actions or statements were rude) or a personal preference (the CEO simply doesn't like the worker). In order to tell you more, I would have to know specifically what the CEO said, and the context of the conversation.

posted Nov 1, 2013 3:12 PM [EST]

Answer to can i get fired

Although your boss may have violated a company policy by allowing or even encouraging an employee to drink and drive, you are still responsible for your own actions. Legally the company is within its right to terminate your employment for driving a company car while under the influence of alcohol. You may be eligible for unemployment compensation; however, based on the information you have provided you do not appear to have a claim against the company based on your termination.

posted Sep 10, 2013 08:50 AM [EST]

Answer to If former company does not respond to counteroffer; what are your options?

Sorry, this is not nearly enough information for me to answer, other than to say, it depends on the circumstances.

posted Aug 13, 2013 1:22 PM [EST]

Answer to Is it retaliation if I reported harrassment against a manager & now he is trying to get me fired?

From what you describe, this appears to be both retaliation and also a hostile work environment under Title VII, since it is unlawful to discriminate against an employee based on their marital status. You should consult with an employment lawyer to determine the next step. Meanwhile, keep notes of everything that happens at work (incident or comment, date, time, was anyone else present) and check your HR manual to see if there is a reporting procedure in place. It may be appropriate to file charges with the EEOC.

posted Jul 31, 2013 07:51 AM [EST]