Answers Posted By Phyllis Towzey

Answer to Boss says that I quit, and I never quit! Can I get unemployment? Help please!

Yes, you should file for unemployment. You can do that online. State that you needed to take a few weeks off work for personal reasons and your boss agreed and said you would be able to return to your job, but now apparently your boss has replaced you and is telling third parties that you quit.

Do not claim the weeks that you did not intend to work anyway (i.e. the weeks you requested off work to make daycare arrangements), but do claim the weeks from when you were able to go back to work.

State that you did not intent to quit and had you known you would lose your job from taking a few weeks off you never would have taken the time off. You only took the time of because your boss said it was okay.

If you are denied unemployment, appeal it, and at the hearing when you testify make sure you say all of the above and also that you say as soon as you found out you apparently didn't have a job anymore, you made multiple attempts to contact you boss to find out what happened.

Good luck!

posted Feb 14, 2012 10:22 AM [EST]

Answer to wrongfully terminated

You may be able to get unemployment benefits by arguing that this was an isolated incident and that there was provocation. However, Florida is an "employment at will" state which means that your employer can fire you at any time, just as you can quit at any time. The employer is not obligated to treat all employees the same, so the fact that another employee was not fired as a result of a physical fight at work does not help you UNLESS you believe that you were treated differently than that employee because of your age (over 40), race, sex, national origin, disability, or religion. Then you might have a case for discrimination. Otherwise, the employer had the right to fire you, even though it does not seem fair to you. Also, realize that most companies have a violence in the workplace policy that would prohibit you from verbally threatening another employee, so you could have been fired simply for making the threat.

posted Jan 31, 2012 08:33 AM [EST]

Answer to Can a non comp agreement signed with a TN or OH company be enforced in FL?

Yes, in general, a noncompete agreement signed with an out-of-state company can be enforced in Florida. You need to have a Florida employment law attorney review the agreement you signed to determine to what extent it restricts your ability to work for another company.

posted Jan 20, 2012 11:06 AM [EST]

Answer to I was let go after 18 years with a company

If you believe you were the victim of workplace harassment based on your age, sex, race, national origin, marital status, disability or religion, you need to contact an attorney immediately. You indicated that it was "almost a year ago" that you were fired. You have 300 days from the date of the last discriminatory act (i.e. your termination) to file discrimination charges with the EEOC, and 365 days to file with the Florida Commission on Human Relations. Your time to file an EEOC charge may already have passed. If you fail to file charges within these time periods, you lose the right to file a lawsuit based on discrimination.

That being said, unless you were the victim of illegal discrimination (being treated unfairly is NOT the same thing as illegal discrimination), you don't have a right to your job (Florida is an employment at will state) nor do you have a right to receive severance pay (no federal or state law requires it). An employer can fire you for no reason at all - they just can't fire you because of your membership in one of the protected classes mentioned above, or in retaliation for you complaining about discrimination or illegal harassment (again, illegal harassment is different from someone just being mean to you at work) or objecting to illegal activities by the company (i.e. a Whistleblower case). They can also fire you because someone accused you of doing something you didn't do, and the employer chose to believe the accuser.

Whether you have a case here is something you need to discuss with an attorney, as it depends upon the facts.

posted Jan 19, 2012 09:34 AM [EST]

Answer to Is it discrimination to passed over for a promotion based on your availability?

Sorry, it may not be fair, but it's not discrimination. You only have a case for discrimination if you are treated differently based upon your membership in a "protected class." Neither college attendance nor your youth put you in a protected class. (Age discrimination only protect workers over age 40.)

The company has the right to make a requirement such as availability at all hours.

posted Jan 16, 2012 09:25 AM [EST]

Answer to are non compete agreements for indipendent contractors inforceable?

Yes, it's enforceable under Florida law, so long as the national company has a legitimate business interest to protect, and the restrictions are not overly broad. Fla.Stat. Section 542,335. See:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0500-0599/0542/Sections/0542.335.html

Under Florida law it's irrelevant whether the independent contractor was already in business at the time the agreement was signed. Florida law also doesn't not require separate "consideration" (i.e. payment) in exchange for signing a noncompete -- the ability to continue to do business with them under the national name is consideration enough.

However, in some states, those factors would make a difference as to whether the agreement is enforceable. If you are doing business in states other than Florida, you need to check the laws in those jurisdictions as well.

posted Jan 13, 2012 08:01 AM [EST]

Answer to Restaurant Scheduling

If you file for unemployment, one of the questions that will come up is what attempts you made to find out if you still had a job. So, you should call the owner/manager and ask if you are being put back on the schedule, or if you've been let go. Make several attempts to get an answer before filing for unemployment.

posted Jan 9, 2012 05:57 AM [EST]

Answer to Florida non-compete for only working there 45 days- was still in prob. period

It is difficult to advise you without seeing the agreement itself. However, if in fact factual misrepresentations about the compensation were made to you by the employer to induce you to accept this position, then you may have a defense of "fraud in the inducement." You have three options, since you can't afford an attorney:

Option 1: You could try sending a letter in response to the attorney's letter stating that you believe the noncompete is unenforceable because the company fraudulently induced you to accept the position and sign the agreement by making material misrepresentations about what your compensation would be. Then see what the response is -- they may back down, or they may not.

Option 2: Contact the company and ask if you can work something out with them. You were only there 45 days, and presumably did not have all that much access to their customers. Mention the fraudulent inducement angle, but say that you are willing to compromise and stay away from specific customers if they will release you from the noncompete agreement. If you reach an agreement, get it in writing.

Option 3: Comply with the noncompete. Get a different kind of job in this geographic area (one that is not prohibited by the noncompete agreement) or relocate outside the area of the noncompete. Chalk it up to a bad experience and move on.

posted Jan 3, 2012 2:27 PM [EST]

Answer to exempt employee: not allowed to make doctor appointments. Is it legal?

I'm sorry, there is not enough information for me to answer this question. If your employer has 50 or more employees within a 75 mile radius and you have worked there more than one year, then if you have a serious health condition you would be entitled to intermittent FMLA leave for doctor's appointments, and could not be fired for exercising that right.

If you are an exempt employee, then your pay cannot be docked for missing time during the day for a doctor's appointment, but that does NOT mean your employer couldn't fire you for taking unauthorized time away from your job duties if, in fact, the FMLA does not apply in your case.

posted Jan 3, 2012 2:17 PM [EST]

Answer to Can an employer give away employee services, without compensating them?

The answer, as in many legal matters, is, it depends. Since you did not say you are an independent contractor, I am assuming you are an employee who receives a form W-2. As an employee, you are subject to federal and state minimum wage requirements, and federal overtime laws. There is an exemption for commissioned employees in retail service establishments which would apply so long as more than half of your pay is by commission, and your regular hourly rate for any week in which you work over 40 hours is one and one half times minimum wage. To find you regular rate, you take the total amount you earned during the week (excluding tips) and divide it by the total number of hours you worked that week (add in the time you spent on ALL work, such as free sessions, miscellaneous duties, etc.).

Assuming the resulting rate is at least one and one half times minimum wage, then your employer has complied with the wage and hour laws, regardless of whether they have required you to perform other duties including participating in marketing activities such as free sessions.

There is no other law in Florida or under federal law which would prohibit your employer from assigning you these additional duties. You can complain to the employer that it is unfair, but so long as you are being compensated as described above, it is not illegal.

posted Dec 28, 2011 08:35 AM [EST]