Answers Posted By Phyllis Towzey

Answer to not offered family leave and fired for missing too many days.

There really aren't enough facts here for me to give you a clear answer. In order for you to be eligible for leave under the FMLA, your company must employ at least 50 employees within a 75 mile radius, and you must have worked there for at least one year and have met a minimum hour requirement. If so, you were entitled to 12 weeks of unpaid leave for your own serious health condition, or to care for your husband who was suffering a serious health condition. You question doesn't mention whether you ever requested FMLA leave either for your own hospitalization, or to care for your husband. With respect to unemployment compensation benefits, if you were terminated due to absenteeism for illness, then you would qualify for benefits. If you were terminated for performance issues you would generally qualify as well, unless the work performance issue rose to the level of misconduct as defined by the unemployment compensation statute.

My advice to you is that you consult with an employment law attorney to review the facts of your case. In the meantime, however, you need to file a timely appeal of any denial of unemployment compensation benefits. You can do that easily online. I strongly recommend you have an attorney represent you at the unemployment telephone appeal hearing, since your case involves some complicated issues and your employer is accusing you of poor performance.

posted Apr 11, 2011 4:45 PM [EST]

Answer to Is a Non-Compete enforceable if employee termination occurs within 90 day probationary term?

Unless your non-compete agreement specifically provides that it's not enforceable if you are terminated within the 90-day probationary period, then it is enforceable under Florida law (unless you could show that your employer hired you with the specific intent of getting you to sign a non-compete and then firing you --in other words, the whole thing was a set-up. This scenario, of course, is very unlikely).

Your best approach is to contact the employer and ask if they are willing to release you from the non-compete since you worked there such a short period of time.

This answer is based on the limited information you provided. It is always best to have an attorney specializing in this area review your contract, as there may be other provisions that would change the outcome.

posted Mar 30, 2011 07:46 AM [EST]

Answer to Laid off while others in same position were not

The fact that you were selected for lay off while a newly hired employee, presumably in the same position as you, was not raises serious questions given your age and medical history. A potential problem, however, is that courts have held that it is not discriminatory for an employer to made downsizing selections based on salary -- and unfortunately the older the employee is with more seniority in the company, the more likely it is that that employee is at the top of the salary range. Accordingly, sometimes a younger, newly hired employee is retained while a more seasoned employee is let go, and cost-savings in compensation is the deciding factor.

I strongly advise you to consult an employment attorney. If you have an age discrimination claim, there are deadlines for filing with the EEOC and the Florida Commission on Human Relations, so you should not delay in seeking advice about your legal rights. Also, if the company has offered you severance in exchange for signing a release of claims, you need to consult an attorney BEFORE you sign the document.

posted Mar 17, 2011 07:39 AM [EST]

Answer to Changing vacation after prerequisite worked/absorbing a year's vacation

Neither an employee handbook nor a company policy are considered contracts under Florida law. Accordingly, the company can change its policies at will.

The only argument you would have is if the company had announced this policy mid-year, and then enforced it against people whose employment terminated and who had "overused" their vacation days prior to the announcement of the change in policy. Similarly, if the company had previously allowed employees to "carry over" unused vacation time to the next year, and then discontinued that practice without allowing a grace period for employees to use the vacation time that would otherwise be lost, that would be improper.

However, since the new payback policy for vacation time was announced in advance for the year 2011 (i.e. did not apply to anyone who resigned and had used vacation time prior to the announcement of the policy and was required to pay that time back), in my opinion you have no legal basis to challenge the policy change.

posted Mar 17, 2011 07:31 AM [EST]

Answer to Does a non-compete encompass the entire business entity or just the specific position when signed?

Whether Employer "A" can preclude you from working in this position for Employer "B" depends upon the wording of the non-compete agreement you signed. The question whether trade secrets are involved is not determinative.

Under Florida law an employer can enforce an agreement that stops you from working in any capacity for a direct competitor within the employer's market area, so long as they have a legitimate business interest to protect.

You should consult an employment law attorney to review your non-compete agreement reviewed, and negotiate on your behalf with Employer "A." Right now, you are at risk that Employer "A" will obtain a temporary injunction stopping you from working for Employer "B" in any capacity. The problem is that even if you would ultimately be able to prove in court that the non-compete is overly broad, by the time your case went to trial it's unlikely Employer "B" would still have been in a position to hold your job open for you.

posted Mar 17, 2011 07:21 AM [EST]

Answer to Employer is asking to sign non compete for 1 year thereafter

This would most likely be enforceable under Florida law.

posted Mar 9, 2011 1:50 PM [EST]

Answer to Can an employer install hidden cameras in general work areas to monitor employees?

Generally, an employer may use video surveillance so long as it is for a legitimate business purpose, and the employees are advised that video surveillance is being used.

posted Mar 1, 2011 09:15 AM [EST]

Answer to how can my boss assume i quick my job?

Florida is an "employment at will" state, so your employer can legally let you go without cause. However, in order to prevent you from receiving unemployment compensation benefits, the employer must prove you committed "misconduct" as defined by the unemployment compensation statute. If the initial determination is a denial, you should appeal that (you can do it online) and a telephone hearing will be scheduled. You can represent yourself or hire an attorney. Both sides present evidence, and the appeals referee will make a decision. Any evidence you wish to present in the form of documents, witnesses or your own testimony must be presented at that time. Do not make the mistake of handling the hearing yourself, leaving out important evidence, and then hiring an attorney to appeal the referee's decision, because after the telephone hearing, no new evidence can be presented.

posted Mar 1, 2011 08:54 AM [EST]

Answer to Employee

I recommend you hire an attorney to send a cease and desist letter to this individual and his new employer, demanding return of all copies of your customer list, and putting his new employer on notice that the information he removed from your computer files is proprietary. Unfortunately, if he has destroyed all signed copies of the noncompete/nondisclusure agreement, it will be difficult and expensive for you to enforce it in court. Next time keep a hard copy in a secure location. You may want to check the an IT professional to see if the deleted copy can be recovered. If you routinely back up your office files, it should be electronically stored.

posted Mar 1, 2011 08:47 AM [EST]

Answer to Can a non-compete be enforced if too broad?

Without reviewing your entire noncompete agreement, I can’t give you a definite answer. In general, noncompete agreements are enforceable in Florida. It is possible that a court would find your agreement overly broad, but there is no guarantee of that. There is probably language in the noncompete that you signed stating that you agree it is not overly broad, and that the restrictions imposed are reasonably necessary to protect your employer’s legitimate business interests. Time restrictions of up to 2 years are presumptively reasonable under the Florida noncompete statute. As a practical matter, challenging the noncompete in court would be very expensive for you. If you simply take one of the jobs without contacting your employer, you will be in breach and your employer can obtain an injunction against you, and probably sue you for monetary damages as well. My recommendation is that you contact the HR department of your old employer and request their consent. If they refuse, then you should consider hiring an attorney who specializes in this area of the law to prepare a written opinion letter regarding the enforceability of the restrictions you believe are overly broad. Your lawyer can then contact your former employer directly to negotiate on your behalf. This strategy often works because the employer does not want to have the enforceability of their noncompete challenged in court, and will usually agree to modify the restriction if the job you are interested in is not in direct competition. Good luck!

posted Mar 1, 2011 08:31 AM [EST]