Phyllis Towzey
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Answers Posted By Phyllis Towzey
Answer to I work in Florida and my employer is telling me I cannot take unpaid vacation. Is this allowed?
Most employers would refuse your request. The allotment of vacation time is based not only on how much paid leave an employer believes is appropriate, but also how much time away from work the employer believes is appropriate. The employer has the right to ensure workplace productivity by refusing to grant unpaid leave in addition to the PTO that has already been allocated.posted Feb 16, 2016 07:31 AM [EST]
Answer to Am I required to repay sign-on bonus and relocation expenses based on upcoming job loss?
Since you are not resigning and are not being terminated for misconduct, so long as any other documents you signed (like an employment agreement) are consistent with the language in the offer letter you have no obligation to repay any amounts.posted Feb 8, 2016 3:48 PM [EST]
Several issues here.
First, as to the verbally abusive work environment, there's nothing you can do legally unless (a) you are physically threatened, or (b) they are singling people out for abuse based on gender, race, age over 40, disability, or religion. For example, if you are female and you are being called sexist or sexual names and insults, then you could have a claim for sexual harassment or sex discrimination, or hostile work environment. Same thing if you are being singled out due to your ethnicity, etc. But if it's just overall nastiness, then that what we refer to as "an equal opportunity offender" and the courts do not step in to ensure civility in the workplace.
Second, as to your termination, it is not illegal for her to fire you because the found out you were looking for another job. Florida is an "employment at will" state, and you can be fired for no reason or any reason at all, so long as it isn't based on your membership in a "protected class" (sex, race, etc.).
Third, although firing you in front of other employees was rude and uncalled for, it's not illegal.
Fourth, she has already made a statement indicating she has malice toward you. If she maliciously makes false factual statements about you to your new employer, you can sue for defamation and possibly tortious interference with a business relationship. But it has to be a false factual statement, not just her expressing her opinion. For example, telling someone she fired you for theft would be a lie, and you would have a claim against her and/or her business. Telling someone that, in her opinion, you were a lousy employee is her opinion, not a fact, and would not be defamation. You could hire an attorney to send a letter to her advising her that if she interferes with your new position or makes false statements about you, legal action will be taken. But from what you have told us above, it doesn't seem like she is bothered by threats of legal action.
One final thought. Restaurants are notorious violators of the wage and hour laws, and such violations result in unpaid wages and overtime due to the employee, and potential penalties to the business from the Department of Labor. Violations include improper tip pools, failure to pay overtime, making people do side jobs off the clock, not properly handling the tip credit. If you think there may be issues with how you were paid, seek legal advice. I do not provide free consultations, but if you email me I can tell you the names of some law firms who do, if you want to explore the wage and hour issue.
Sorry that all of this happened to you - I hope your next job is a healthier work environment.
posted Feb 7, 2016 11:02 AM [EST]
First, as to the verbally abusive work environment, there's nothing you can do legally unless (a) you are physically threatened, or (b) they are singling people out for abuse based on gender, race, age over 40, disability, or religion. For example, if you are female and you are being called sexist or sexual names and insults, then you could have a claim for sexual harassment or sex discrimination, or hostile work environment. Same thing if you are being singled out due to your ethnicity, etc. But if it's just overall nastiness, then that what we refer to as "an equal opportunity offender" and the courts do not step in to ensure civility in the workplace.
Second, as to your termination, it is not illegal for her to fire you because the found out you were looking for another job. Florida is an "employment at will" state, and you can be fired for no reason or any reason at all, so long as it isn't based on your membership in a "protected class" (sex, race, etc.).
Third, although firing you in front of other employees was rude and uncalled for, it's not illegal.
Fourth, she has already made a statement indicating she has malice toward you. If she maliciously makes false factual statements about you to your new employer, you can sue for defamation and possibly tortious interference with a business relationship. But it has to be a false factual statement, not just her expressing her opinion. For example, telling someone she fired you for theft would be a lie, and you would have a claim against her and/or her business. Telling someone that, in her opinion, you were a lousy employee is her opinion, not a fact, and would not be defamation. You could hire an attorney to send a letter to her advising her that if she interferes with your new position or makes false statements about you, legal action will be taken. But from what you have told us above, it doesn't seem like she is bothered by threats of legal action.
One final thought. Restaurants are notorious violators of the wage and hour laws, and such violations result in unpaid wages and overtime due to the employee, and potential penalties to the business from the Department of Labor. Violations include improper tip pools, failure to pay overtime, making people do side jobs off the clock, not properly handling the tip credit. If you think there may be issues with how you were paid, seek legal advice. I do not provide free consultations, but if you email me I can tell you the names of some law firms who do, if you want to explore the wage and hour issue.
Sorry that all of this happened to you - I hope your next job is a healthier work environment.
posted Feb 7, 2016 11:02 AM [EST]
Another option for you is to report this matter to the Department of Labor. It appears from the information provided that you should have been an employee, not an independent contractor - but, as Mr. Schofield noted, this is a fact-specific inquiry.
If you contact the Department of Labor, an investigator will look into this matter for your protection and the protection of any other misclassified employees. If you were working more than 40 hours per week, you may be entitled to receive unpaid overtime.
The Department of Labor has recently been working hand in hand with the IRS to to after employers who are misclassifying workers as independent contractors, and failing to pay proper withholdings. .
posted Jan 28, 2016 09:50 AM [EST]
If you contact the Department of Labor, an investigator will look into this matter for your protection and the protection of any other misclassified employees. If you were working more than 40 hours per week, you may be entitled to receive unpaid overtime.
The Department of Labor has recently been working hand in hand with the IRS to to after employers who are misclassifying workers as independent contractors, and failing to pay proper withholdings. .
posted Jan 28, 2016 09:50 AM [EST]
Answer to Can my husband be fired for being at the birth of his daughter?
Yes, they can fire him. Since he has worked for the company for less than 12 months, he is not eligible for FMLA leave.posted Jan 26, 2016 1:21 PM [EST]
If the essential functions of the job have changed and you can no longer perform those functions, even with a reasonable accommodation, then your employer could let you go without violating the ADA (Americans with Disabilities Act).
You are entitled to a reasonable accommodation if one can be made, without undue hardship to the employer, that would allow you to perform the essential functions of the job. However, if the physical work is now an essential function of the job, you cannot demand that that part of the job be eliminated.
Of course, if you have any reason to believe that the change in the job description was made specifically for the purpose of targeting you because of your disability, then you could have a claim under the ADA.
The issues here are very fact-specific and you may want to consult an attorney to discuss in detail.
posted Jan 26, 2016 1:12 PM [EST]
You are entitled to a reasonable accommodation if one can be made, without undue hardship to the employer, that would allow you to perform the essential functions of the job. However, if the physical work is now an essential function of the job, you cannot demand that that part of the job be eliminated.
Of course, if you have any reason to believe that the change in the job description was made specifically for the purpose of targeting you because of your disability, then you could have a claim under the ADA.
The issues here are very fact-specific and you may want to consult an attorney to discuss in detail.
posted Jan 26, 2016 1:12 PM [EST]
Answer to Can my husband be fired for being at the birth of his daughter?
Yes, they can fire him. Since he has worked for the company for less than 12 months, he is not eligible for FMLA leave.posted Jan 26, 2016 12:30 PM [EST]
Answer to Can a release letter of all contracts release me from a non-compete?
If the letter mentions the noncompete in the list of contracts, then you are fine. If not, you need an attorney to take a look at it.posted Jan 20, 2016 09:00 AM [EST]
Probably Florida, but you can call the out of state payroll company and just ask them where to file.
posted Jan 18, 2016 2:46 PM [EST]
posted Jan 18, 2016 2:46 PM [EST]
It sounds like you are not happy with the advice your current attorney is providing. Understand that sometimes things that seem important to you are not legally relevant, and that may be why your attorney is dismissing those points.
If you are concerned t hat the case is not being handled properly, then you should contact a labor and employment attorney for a second opinion. You will likely have to pay a consultation fee, however, to have another attorney review the case and your noncompete agreement and discuss with you.
Noncompete agreements are enforceable in Florida so long as the time and geographic restrictions are reasonable, and the company has a legitimate business interest to protect. Typically a time period up to 2 years is presumed reasonable. The reasonableness of the geographic restriction is fact specific in each case. They are not required to enforce the agreement against all employees to leave, and can choose to do only against an employee who, like you, is a top producer. It is an economic decision for the employer whether to spend the costs of enforcement.
posted Jan 10, 2016 1:29 PM [EST]
If you are concerned t hat the case is not being handled properly, then you should contact a labor and employment attorney for a second opinion. You will likely have to pay a consultation fee, however, to have another attorney review the case and your noncompete agreement and discuss with you.
Noncompete agreements are enforceable in Florida so long as the time and geographic restrictions are reasonable, and the company has a legitimate business interest to protect. Typically a time period up to 2 years is presumed reasonable. The reasonableness of the geographic restriction is fact specific in each case. They are not required to enforce the agreement against all employees to leave, and can choose to do only against an employee who, like you, is a top producer. It is an economic decision for the employer whether to spend the costs of enforcement.
posted Jan 10, 2016 1:29 PM [EST]