Answers Posted By Christopher Ezold

Answer to Position elimination vs Quitting

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, I agree with the other answers. The primary issue is not whether the employer breached its agreement - it is whether you are eligible for unemployment as determined by the Unemployment Compensation Bureau. Any damages you might obtain from any breach of contract action would likely be the amount of unemployment that was denied to you - and if you don't appeal, the denial might arguably be your fault.

I've never seen a claim for breach of contract against an employer for opposing unemployment; I believe because it would likely be an illegal contract as you cannot contract to avoid providing information in response to a lawful government request.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted May 26, 2010 1:02 PM [EST]

Answer to Is a non-compete still valid if the terms of original contract are changed and I refuse to sign new

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, noncompetition agreements are contracts that have a number of extra requirements for them to be enforceable, such as 'substantial consideration,' whether the employer has a 'legitimate business interest' in enforcing the agreement, etc.

There are a number of variables that aren't clear from your question. The first variable is whether the new contract has a noncompetition agreement in it. Other variable are:

1. Is the change in compensation significant? If so, the original noncompetition agreement may become ineffective for failure of consideration.
2. Is your 'employment' terminated due to your refusal to sign a new agreement? If so, the noncompetition agreement may become ineffective due to the employer's not having a 'legitimate business reason' for enforcing it.
3. Has your employer breached its obligations under the first contract - i.e., have they begun paying you less? If so, the noncompetition agreement may be unenforceable.

Furthermore, if you are truly a contractor, the agreement may not be enforceable in Pennsylvania at all - generally, it has to be ancillary to a valid employment agreement (not contractor agreement) or to a contract for the sale of a business. There is some ambiguity surrounding how narrow this requirement will be construed by the courts, however.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted May 25, 2010 12:13 PM [EST]

Answer to Do I have a chance to fight this?

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, in Pennsylvania you are an 'employee at will' if you do not have a contract. That means that your pay and job duties can be changed at will by your employer (but NOT retroactively). Unless you are being treated differently than other employees due to your race, gender, age, disability, etc., the employer may change your job or pay, or terminate you, without any warning and without good reason. Similarly, you may quit your job or refuse to perform certain tasks without warning or good reason (although the employer can terminate you for such refusal).

It does not appear that you have a legal claim in this matter.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Chair of the Board,
Magellan Leadership Group

Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted May 14, 2010 06:22 AM [EST]

Answer to Is a noncompete valid if a nursing agency is getting rid of home care case to keep nurses away?

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, a noncompetition agreement is only enforceable to the extent that the employer has a 'legitimate business interest' in enforcing the agreement. A legitimate business interest is NOT that the employee may compete - instead, it is that the employee has the employer's trade secrets; or was trained by the employer and introduced into the industry; or that the employee generated and/or maintains the customer relationships of the employer. In this instance, there does not appear to be a 'customer relationship' anymore, as the employer terminated you as a customer. If you are the only customer that the employee serves, then I do not believe, based on the facts in your question, that the noncompete would be enforceable.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted May 11, 2010 07:36 AM [EST]

Answer to Am I owed penalties and dues?

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, generally, in Pennsylvania you must be an 'employee' to be bound by a noncompetition agreement. This may not apply if you were a prior employee that converted to being an indpendent contractor, or sold your business.

That being said, failure to pay you, or pay you in a timely manner may be a breach of the agreement by the employer that would terminate your obligation not to compete. Furthermore, if you did not know you were signing a noncompete, you may not be bound. Finally, even contractors are covered by the wage payment laws in Pennsylvania, so you may be entitled to a 25% penalty for unpaid wages, and your attorneys' fees.

If you were under the control of the employer, you may not have been an independent contractor - which leads to the employer's obligation to pay unemplyoment, certain employment taxes, etc.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted Feb 3, 2010 1:50 PM [EST]

Answer to Can a restrictive convenant prevent me from accepting any work at a customer site?

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, a noncompete, or noncompetition agreement is generally NOT enforceable against a former employee who was terminated without cause. If you were laid off, and not terminated for cause, you may very well not be bound by the noncompete. Furthermore, independent contractors are not generally bound by noncompetition agreements - they are only generally effective against (a) employees and (b) persons who have sold a business. There is some case law applying a noncompete against a contractor that once was an employee, but that area of the law is still developing.

The problem you are facing may be more political than legal - if your employer wants to scare you off and/or scare the customer into not retaining you, the mere threat of a lawsuit, even unfounded, might work. There are steps you can take to prevent this, but what they are depends on the terms of your agreement and the facts surrounding your employment.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted Jan 11, 2010 2:03 PM [EST]

Answer to Can an employer withhold wages, if I refuse to sign a contractor agreement?

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, your employer must pay you for work performed, but does not have to continue to employ you if you don't want to sign a noncompetition or nonsolicitation agreement. If your employer doesn't pay you, then you have a right to (a) your wages, (b) a 25% penalty, and (c) attorneys' fees.

You have a bit of a complicated situation. Your employer can refuse to contiue to employ you without your signature on a noncompetition or nonsolicitation agreement - but must pay all back wages. A general requirement of restrictive covenants like a noncompetition agreement is that it be related to employment OR the sale of a business. Since you are classified as an independent contractor, the restrictive covenant may not bind you at all, regardless of whether you sign it. However, you may be an employee - just being called an 'independent contractor' does not determine whether you really are one.

If you don't have real control over your employment, and can't essentially make a profit (as opposed to wages), then you may be an 'employee' - that is, you may have a right to unemployment, worker's compensation, and your employer would have to pay 1/2 of your FICA/FUTA taxes (resulting in a lower tax burden for you unless you take significant business expense deductions). I can't tell if you truly are an employee or independent contractor from the facts in your question.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted Jan 11, 2010 1:57 PM [EST]

Answer to Can my employer issue paycheck but insist it not be cashed or deposited yet?

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, the answers below are good ones. Based on the facts as you present them, you are likely to prevail on a claim for wages. However, you may be facing an issue regarding whether you 'earned' monies on the old paychecks if you returned them. Under the Wage Payment and Collection Law, an employee may not waive their right to wages, so this issue may be moot - again, depending on the facts. I would need to know more facts relating to that issue before I could give you my opinion on it.

If you are in Philadelphia, you can bring a claim in magisterial district court - i.e. 'small claims court' - if the amount is less than $12,000. Small claims courts in the rest of the Commonwealth have an $8,000 limit.

The bad checks can also lead to potential fraud claims and criminal charges against the employer and/or the person that signed or authorized them to be issued.

You should send your boss a letter, Federal Express, stating that if you are not paid within 10 days that you will file a claim against him. If the matter is more than $8,000, or $12,000 in Philadelphia, you should call an attorney. If it is less than those amounts, and since the Wage Payment and Collection Law allows you to collect attorneys' fees AND a 25% penalty on unpaid wages, you likely can find an attorney to assist you in small claims court.

The biggest issue will be whether there is any money to collect, or whether your employer AND the person who didn't pay you (likely your old boss) have any money.

If you don't want to go that route, you can file a complaint with the Bureau of Labor Law Compliance, at http://www.portal.state.pa.us/portal/server.pt?open=514&objID=553573&mode=2. There is no attorney fee associated with this process, but the Bureau's job is to enforce the law, not to make you whole, and when you get the Bureau involved, you give up your rights to them - they can settle your claim for less than you like without your input. They may also just kick it back to you.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted Jan 7, 2010 12:30 PM [EST]

Answer to I want to know if I have a case?

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, I cannot determine exactly what your question is; however, if you were harassed due to your race, gender, age (over 40), religion, disability, ethnic background or other protected class, then you may have a claim for employment discrimination. You must bring this claim before the Pennsylvania Human Relations Commission within 180 days of the discrimination, or before the federal Equal Employment Opportunity Commission within 300days of the discrimination.

However, the events you describe may also be assault, battery or tortious infliction of emotional distress. If so, you may have claims that you can bring for personal injury within two years of each event.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted Nov 2, 2009 2:44 PM [EST]

Answer to Can my boss make days of work mandatory?

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, an employer can set mandatory days of work; in fact, overtime can be mandatory (as long as it is paid in accordance with the law). The economy's current state adds negotiating power to your employer's side, as few employees are willing to risk the loss of a job.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted Nov 2, 2009 10:06 AM [EST]