Answers Posted By Phyllis Towzey

Answer to Florida employee. Unemployed now. Received lump sum severance at termination time (RIF) to equal two months' pay, but no current payments or income. Can I receive unemployment now, during 2 months following termination?

You should check with Unemployment, but typically you will have to wait until the 2 months is over before you actually collect benefits. Go ahead and file now, but there will be a place on the online form for you to explain that you received a lump sum severance equal to 2 months pay.

posted Dec 8, 2015 12:03 PM [EST]

Answer to my fmla expired while being treated for breast cancer...my employer now wants me to resign as i still have an open wound that i pack daily and due to the nature of my work (nursing) , i cannot return until the wound is closed...what are my options?

Excellent advice from Mr. Schofield. I would recommend the same.

posted Dec 1, 2015 08:13 AM [EST]

Answer to Can an employer refuse to give you unpaid days off and use the excuse that you do not have enough PTO to take off?

The only thing the employer cannot do is treat you differently with respect to leave because of your membership in a protected class (i.e. age, race, sex, religion, disability, etc.). In other words, they can't deny women unpaid leave after PTO is exhausted but allow it for male employees, etc.

posted Nov 25, 2015 08:21 AM [EST]

Answer to Can i get more than the maximum weeks of severance offered by my employer?

As Mr. Schofield stated, an employer can withdraw the offer of severance at any time. Typically they will not do so - particularly if you do, as you stated, have viable claims against the company - because they want you to sign the release that goes along with the severance. However, it can happen. In 28 years of practice, I have seen it happen only 2 times, both from small, closely held company's whose owners were offended by the employee's attempt to negotiate a better severance.

You should have a lawyer evaluate whether your claims are in fact viable, then make an informed decision about whether to ask for more.

posted Nov 24, 2015 12:55 PM [EST]

Answer to My former employers employees and upper management are falsely stating I was fired. Is this defaming

Here's what the applicable statute in Florida says:

768.095 Employer immunity from liability; disclosure of information regarding former or current employees.—An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

Under the scenario you describe, you do have a claim for defamation against your former employer, particularly since you state that you contacted them in the past when this false information first surfaced - therefore they cannot claim that they made a good faith error.

You also have a potential claim for tortious interference with your relationship with your prospective employer.

In these cases, there generally is not much to be gained by filing suit for several reasons. First, damages are difficult to prove, particularly where the prospective employer does not want to be dragged into a lawsuit. Second, as in most instances of defamation, by filing a lawsuit you publicize the very information you are trying to quiet. People will just remember there was some issue about accusations regarding the termination of your last employment, and that itself can interfere with your career.

My advice is that you hire an attorney to draft a strongly-worded letter to the company threatening litigation it they do not immediately cease and desist. I would also insist that the company provide a written letter stating that you resigned on good terms and are eligible for rehire.

Good luck!

posted Nov 23, 2015 07:50 AM [EST]

Answer to I resigned from my Mortgage position from a bank and on the Compensation agreement, it states that I will get paid for any originated loans that close within 30 days of my exit. Immediately after leaving, my loans were changed to other employees, and they

I can't give you a definite answer without reviewing your actual contract. You need to speak with an attorney to determine whether you do have a breach of contract claim, or whether the language of the agreement allows the company to change it's policy regarding payment of post-termination commissions. Generally, the rule is that the contract will control. If there is no contract, then courts look at the custom in the industry and to what extent any work remains to bring the loans to closing that must be completed by another employee.

posted Nov 20, 2015 10:48 AM [EST]

Answer to Can my employer fire me if I have intermittent FMLA, and I call off for a personal day?. (Other than calling off for my migraines, I show up on time, and do my job )

You really haven't provided enough information for me to answer this completely, but here are some general comments. The FMLA provides two workplace rights to you: (1) the employer must give you intermittent leave if your physician has certified that you require it for your serious health condition (in your case, migraines); and (2) your employer cannot retaliate against you for exercising your right to FMLA leave.

If you have accrued PTO time then you are entitled to take off a personal day under the same conditions as any other employee in the company. If other employees have to schedule a personal day in advance, then so do you. If you violate a company policy by just "taking" a personal day without approval, then the company can discipline you the same way they would any other employee who committed the same infraction. For example, they cannot fire you for that offense when other employees are allowed to commit the same offense with no consequence. IF you ask to take a personal day and you are not approved, then that's only a violation if the company refused permission in retaliation for the fact that you also use intermittent FMLA leave. Hope this helps.

posted Nov 6, 2015 10:39 AM [EST]

Answer to my position was eliminated and I was offered another position at approx. the same pay, but this job is a physical job that I haven't done in over 20 years and have never done for this company, if I refuse this position, and they have nothing else comparab

Because this is a material change in the type of job (administrative work vs. manual labor) you will likely qualify for unemployment. Do not resign - have the company lay you off. When you file for unemployment state that your job was eliminated. If you are asked about whether another job was available, you can truthfully say that no comparable positions were available, and that the only job available was one that involved a different type of work that you are physically not able to do. However, the area where a problem may arise is with the lower-paying administrative job. Whether turning down that position would disqualify you for unemployment depends upon how significant the pay difference is.

posted Nov 5, 2015 09:39 AM [EST]

Answer to I am a home health care assistant working for an agency in PBC. I am very clearly an At-Will employee, as spelled out in every employment agreement I have. My first E.A. included a non-compete that specified, proprietary information, existing clients and

Under Florida law a noncompete must be reasonable and an employer must have a legitimate business interest to protect. Generally, agreements for more than 2 years post-employment are deemed unreasonable, so your employer cannot bar you from working in that area "forever." That being said, you should never sign an agreement in the hopes that if you are ever sued the court would refuse to enforce it as unreasonable. It's much better to negotiate a fair agreement, or, if your employer is unwilling to negotiate, find a job elsewhere. The key to a reasonable agreement is that it restricts you from competing with the company in a reasonable defined area for a reasonable period of time. You can try to negotiate with your employer for terms you feel are fair given your circumstances. Of course, you can hire an attorney to negotiate for you or simply to review the agreement and advise you what changes to request from the employer; Doing so, however, will likely cost you from $250 to $500 and even more if some back and forth negotiations with the company's lawyer are involved.

posted Oct 16, 2015 2:58 PM [EST]

Answer to ive worked for the same company for over 2 years. They are instituting a hold first paycheck policy and advised us that in february we will receive one weeks pay as opposed to our usual 2 which will be held until we leave company. this will cause a financ

Although Florida does not have a law which controls the frequency of pay periods (i.e. weekly, monthly, etc.),still this does not sound right to me. I don't believe your employer can legally withhold one of your paychecks, effectively removing it from the normal payroll intervals, and holding onto it for perhaps even years until you leave the company. I've never researched this particular issue before, because, frankly, I've never heard of a company trying to do this.

Rather than pay a labor attorney to look into this for you, however, I suggest you start by calling the Department of Labor and discussing it with one of their representatives. If they can't help you, send me an email and I'll suggest a labor attorney in your area who might be able to help you.

posted Sep 11, 2015 09:46 AM [EST]