Answers Posted By Phyllis Towzey

Answer to Can this be justified as a reason to be written up?

Getting written up is unlikely to ruin your future professional career. Understand, however, that Florida is an "employment at will" state, which means you can be fired, demoted, or written up for any reason or for no reason at all (so long as illegal discrimination is not involved - i.e. not treating you differently because of your sex, race, etc.). Also, the HR file belongs to the employer and they can put whatever they want in it. If you are written up and asked to sign the write up, sign you name to acknowledge that you saw the write-up, but also add "I do not agree with this write-up" under your signature. Ask if you can provide a written response to be kept with the write-up in your HR file. (If they say yes, great, if they say no, then just drop it). IF you do write a response, make it calm, reasonable and brief. And stick to the facts.

The write-ups will only really hurt you in one context -- if you are fired and apply for unemployment benefits and they claim you are disqualified because of misconduct. If this happens, contact an attorney who handles unemployment hearings to represent you.

Meanwhile, my best advice to you is do whatever you can to avoid a confrontation with this co-worker. Find a way to get your work done without touching her stuff, or, if necessary, approach her nicely and ask her to move her stuff a few inches. Nicely. Not sarcastically or rolling your eyes. You have to go the extra distance here, because you are dealing with a coworker who is super-sensitive, unreasonable, and likes to cause trouble. You take the high road.

Is this fair? No, of course not. But fair doesn't have anything to do with it. It's like the person who walks across the street into the path of the oncoming car as says "But I was in the right! The light was green!" The person still go hit by the car, so what good did it do them to be right?

Florida has very few laws that protect employees in the workplace (compare to Calif, where an employer must have 'good cause' to fire you). You need to go out of the way to avoid any further confrontations with this co-worker, because if one occurs your employer won't care who was right or wrong -- you will get written up. So stop worrying about what's fair, and just trust karma to catch up with your nemesis one day.

Good luck!

posted Jun 2, 2013 07:52 AM [EST]

Answer to Can I be forced to sign a Non-compete / confidentiality agreement?

Under Florida law, a noncompete is enforceable if it protects a company's "legitimate business interest" and is for a reasonable time period, and a reasonable geographic area. Anything 2 years or less is deemed reasonable under Florida law. The 3 years your company is demanding is NOT reasonable - but a court would likely reduce it to 2 years, not throw it out. A reasonable geographic area can be anything from 5 miles to worldwide, depending on the business. The issue is whether they have a legitimate business interest to protect in the area claimed - in other words, do that have customers and do business throughout that area. Also, they need to reasonably define the competitive activity that is being restrained. For example, if you company sells one particular specialized surgical device, then then could not restrict you from the broader area of selling any products that a medically related.

Your status of independent contractor vs employee is irrelevant to this question UNLESS as an independent contractor you signed a contact with the company for a specific period of time that cannot be earlier terminated without cause. Then, by trying to impose a noncompete now, they would be changing a term of your contract without your consent. Most people in Florida do not have such contracts, though.

If you don't have a contract as described above, then the company can say sign this or you're fired - that's perfectly legal.

You have several choices:
(1) Refuse to sign and see if they fire you
(2) Sign it as is and hope that a court wouldn't enforce if this broadly in the future
(3) Try to negotiate terms that are more palatable to you (shorter term, smaller geographic area, more narrowing described restricted activity)
(4) Have an attorney send them a letter pointing out that the scope exceeds what is permitted under the noncompete statute.

Consulting with an attorney is probably a good idea for you because an attorney may be able to come up with other options based on additional information you would provide during a consultation.

Good luck, and don't hesitate to contact me if the above is not clear, or you have other information that might affect my answer.

- Phyllis

posted Mar 25, 2013 08:18 AM [EST]

Answer to employee didn't call or show up for work for 2 days

Yes, unless you have a signed contract with the employee that provides otherwise, or a handbook that provides otherwise.

posted Jan 18, 2013 08:50 AM [EST]

Answer to If I give notice and it is accepted, can I be let go before the agreed date?

You will, however, be eligible for unemployment benefits during the gap period between when they let you go and the effective date of your notice of resignation.

posted Dec 21, 2012 10:39 PM [EST]

Answer to Can an employer in FL withhold a weeks severance pay for items that believe that I possess?

I'm a little confused about the facts here. You say you ordered $200 worth of aprons on your credit card, but the company is taking the position the aprons belong to them. If the company never reimbursed you for the aprons, then in order to get reimbursed you will have to return them. If the company paid for the aprons, then the aprons are their property and you should tell your friend to return them and, if she refused, just send a letter to the company giving them her contact information.

Regarding the severance pay, as I understand you were offered 2 weeks, one of which you were to work (and did work) and the second you did not work. The company has no obligation to pay you for the second week, and you have no legal recourse since you did not work that seek and you don't have a written contract providing for severance.

As far as whether the company could sue you for the aprons, that depends, as noted above, on who paid for them - you or the company. If the co mpany paid for them, they could sue you in small claims court, but it's unlikely a company will file a lawsuit over $200. Hope this helps.

posted Dec 1, 2012 08:46 AM [EST]

Answer to Breach of Severance Agreement

You have a breach of contract action against your former employer for violating the severance agreement. Your damages are: (1) any out of pocket medical expenses you paid during the time you were uninsured that otherwise would have been covered under the employer's group policy; (2) the cost, if any, that you actually paid to get your own insurance policy during the gap period; and (3) If there is a prevailing party attorney's fee provision in the severance agreement, then you would be entitled to recover your attorney's fees - if not, you can only recover your court costs. You can sue in small claims court yourself unless your damages exceed the jurisdictional limit. Or, you can have a lawyer represent you, which makes more sense if there's a prevailing party attorney's fee provision. You are not, however, entitled to recover the premiums that weren't paid simply because they weren't paid.

posted Nov 29, 2012 10:00 AM [EST]

Answer to I'm going out on FMLA for possibly 2 reasons...can I do that?

Yes, you can go out on FMLA leave for two separate and unrelated conditions, so long as your physician certifies that both are serious health conditions. Typically it makes sense to list both, as your recovery and ability to return to work based on one condition may not coincide with your recovery and ability to return to work based on the other condition. If you feel you are the victim of harassment or discrimination based on your sex, you should seek legal advice. Typically, the first step is to make a complaint internally. If your employer fails to investigate and take appropriate remedial action, your next step would be to file charges with the EEOC. Specific advise from a lawyer would be helpful to you, however, because you have multiple issues and a variety of options to consider.

posted Sep 6, 2012 2:18 PM [EST]

Answer to Am I eligible?

Regarding unemployment, it depends upon whether the company had a policy against using a firearm on company property, and whether your use of the firearm was related to your employment. There's certainly no harm in applying for unemployment benefits and seeing what happens. Regarding whether your injury is covered by workers comp (I'm assuming that's the point of your question?), that's out of my area and you would need to consult with a workers comp attorney. I do know, however, that there are strict deadlines in the workers comp area, so you should not delay.

posted Sep 5, 2012 09:04 AM [EST]

Answer to Can my employer make me sign a no compete agreement that breaches the terms of my contract

As in often the case in legal matters, the answer is, it depends. If you did not have a written contract, then the answer would be yes, the employer can make you sign the noncompete (or fire you if you refuse). However, if you have a written employment contract that sets forth what the employer can and cannot do and guarantees you a specific term of employment (i.e. a number of years), then the employer cannot arbitrarily change the terms and conditions of your employment (including adding a noncompete) UNLESS the original contract allowed the company to do so. However, it sounds from your question like you may already have signed the noncompete. If that's the case, then you will likely be bound by it. Bottom line -- there are two many variable here for a lawyer to give you any meaningful answer without actually reviewing the two contracts. I suggest you consult with an attorney before doing anything drastic, like leaving your job and joining a competitor.

posted Aug 26, 2012 4:00 PM [EST]

Answer to Do I have a case if terminated almost 3 years ago?

You should consult a labor attorney immediately about a possible claim for unpaid overtime under the Fair Labor Standards Act (FLSA), and retaliatory discharge under the FLSA. Because the statute of limitations for a willful violation goes back 3 years, it's possible you still have a claim. But every day that goes by without you failing suit is another day that drops off the back end of your claim.

posted Jul 30, 2012 12:38 PM [EST]