Answers Posted By Phyllis Towzey

Answer to What can I expect from my ex-employer's unemployment appeal?

Under Florida law an employer has no obligation to rehire you, even if they later discover that you did not commit the acts they accused you of when they fired you.

With respect to your unemployment claim, was anyone else present when you were fired? If so, you could list that person as a witness, and notify unemployment that you want them to testify at your hearing. Does the person who wanted to hire you have direct knowledge that you were fired? He could testify for you, if he is willing.

You should be getting notice of a telephone hearing if your employer has appealed your award of unemployment benefits. Conversely, if there was a notice of determination from Unemployment denying you benefits you need to appeal it right away. You can do that online. You only have 20 days from the date of the determination to appeal.

Then a telephone hearing will be set up, and you will have the opportunity to testify and tell your side of the story, present any witnesses, and question the employer's witnesses. You can do this yourself, or you can hire a lawyer to represent you. If you hire a lawyer, make sure you get someone who routinely does these kinds of hearings, and find out up front what they charge because you will be responsible for paying your own legal fees. Since the company is apparently lying and you don't have any documents to use in evidence, I strongly recommend that you do hire an attorney to represent you.

If you lose the telephone hearing, you can appeal but you can't bring in any additional evidence, so it's best to get legal help now.

posted Jul 22, 2011 1:45 PM [EST]

Answer to Employment contract

It's legal UNLESS you previously signed an employment contract with this company for a specific period of time, and the notice was not included.

Before signing this contract, check whether there is a provision that establishes "liquidated damages" if you breach the notice provision.

If not, potentially the employer could sue you (or deduct money from you last paycheck so long as it doesn't put you under minimum wage for a pay period and they've reserved that right in the agreement) for damages for breach of contract. Those damages typically are the cost of recruiting a replacement on short notice, and the difference between what they had to pay a temporary employee for the 90 day period versus what they would have paid you if you had stayed for the 90 days.

I would advise you to have this agreement reviewed by an attorney before you sign it. You might also want to request that there be some exceptions written into the agreement (for example, that this provision would not apply if you had to leave the state due to a family emergency, or if you were medically unable to continue your employment).

posted Jul 15, 2011 2:30 PM [EST]

Answer to Is it legal in this state to just fire someone w/o any real explaination after 10yrs of employment?

Unfortunately it is legal to fire an employee with no explanation of the reason - Florida is what is called an "employment at will" state.

Of course it is NOT legal to fire you based on your race and/or religion. However, to prove a case for discrimination, you need something more than just a lack of explanation from the employer. Think about whether anything else has occurred that suggests your race or your religion were the issue? Have employees of your race or religion been treated unfairly by this employer in the past? Is there a pattern? Did a supervisor ever make a negative comment to you that seemed to be based in race or religious bias?

I would recommend you do done of two things: (1) consult an attorney to write a demand letter to the company raising the discrimination issue (this will cause the company or their counsel to at least identify a reason for your termination; or (2) go to the nearest EEOC office and file a charge of discrimination, which the employer will have to respond to.

The best approach, in my opinion, is to consult an attorney and start with a demand letter before filing formal charges. This will provoke a faster response. However, an attorney will likely charge you a fee, whereas you can file charges through the EEOC at no cost to you.

I'm sorry you find yourself in this situation, and I wish you the best.

posted Jul 15, 2011 2:24 PM [EST]

Answer to Appears to be overly restrictive non-compete, trying to understand the legal limitations

This noncompete restricts you from: (1) competing with the Company (by providing similar services) in any geographic area within 100 miles of any off their offices, employees, job sites or customers; and (2)from allowing a competitor to offer your services to the Company's customers or to customers that the competitor and the Company are both bidding on.

The 2-year time frame is reasonable and enforceable under Florida law. The 100 mile radius may or may not be enforceable -- I would have to know more about how the Company operates within it's service area. My gut reaction is that it's overly broad but, again, I would need more information to advise you.

If you have not signed this agreement yet, try to negotiate a lesser geographic restriction. If you have signed it and are planning to leave the Company, you should consult with an attorney before taking any action which could be a violation.

posted Jun 27, 2011 3:02 PM [EST]

Answer to I work in Florida, what are the laws in regards to PTO payout?

Under Florida law, unless you have a written employment contract entitling you to receive payment for PTO when you leave the company, there is no law that requires a company to pay PTO time to you. They cannot pick and choose who they pay based on discriminatory considerations such as age, race, sex, religion, national origin or disability; however, they can decide to pay no one PTO. They can also decide to pay at a reduced rate, so long, again, as they aren't discriminating. An employee handbook is not treated as an employment contract under Florida law. An employer can change the provisions of its handbook at any time. My advice would be to accept whatever payment they are offering you.

posted Jun 2, 2011 12:54 PM [EST]

Answer to New teacher they want to fire for budget shortfalls. Should I sign the paperwork?

If they are going to lay you off for budgetary reasons, you likely don't have any choice in the matter. Refusing to sign the paperwork could disqualify you from rehire. My advice is to read the paperwork when it's presented to you, and if it makes sense to you, sign it. If you don't understand what it means, then ask for an explanation and if it's still not clear, ask if you can take it with you to have a lawyer review it before signing. The fact that you were laid off based on lack of seniority in a budget cutback won't reflect badly in the future. Good luck!

posted Apr 18, 2011 2:35 PM [EST]

Answer to Can an employeer not pay owed sick time?

Normally the employer could not do this. However, you mention that it was for disciplinary reasons. An employer suspend an employee for a period of time without pay, so that might apply here. (I am assuming that he was not being disciplined for being out sick, but rather for some unrelated infraction.)

posted Apr 18, 2011 07:36 AM [EST]

Answer to What can I do if I was terminated for being unethical but I was fasely accused

You can present the evidence to the company and ask them to reconsider their decision, but you don't have a legal claim unless the accusation of unethical conduct was simply a pretext for firing you in violation of one of the discrimination laws (i.e. firing because of your race, age over 40, sex, national origin, disability, etc., or because you objected to or threatened to report illegal conduct by the company).

Florida is an "employment at will" state, which means the employer can fire you for any reason or no reason at all, unless they violate one of the laws described above. So short answer: it's not fair but it's legal.

posted Apr 15, 2011 1:42 PM [EST]

Answer to Discrimination, Lible, Slander?

Your wife may have a discrimination case, or she may not. The problem is that it sounds like a reasonable person could conclude that she caused the traffic accident - the fact that another vehicle is in the driver's "blind spot" is not an excuse for failing to do a head check before changing lanes. I do not know what the facts were regarding the male driver who tipped his trailer on a customer's property, but it does sound like that incident did not occur on a public road, nor was there any other moving vehicle involved. To show discrimination you would need to identify another moving vehicle accident involving a male driver, who appeared to be at fault but was then not fired.

I agree with the other recommendation that your wife consult an employment law attorney and go over all the facts. Realize, however, that she has a "duty to mitigate damages" under the applicable employment laws (i.e. diligently look for another job) so her lost wages damages may not be significant.

posted Apr 15, 2011 1:38 PM [EST]

Answer to If I am still with the company after being taken over by new employer. Is non compete still valid?

It depends on the language of the noncompete agreement. You should have an employment lawyer review it.

posted Apr 15, 2011 1:29 PM [EST]