Answers Posted By Christopher Ezold

Answer to Non-compete/Restricted Activities

You may be able to accept the job offer from the client.

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, you may be able to accept the job offer from the client. I cannot say for sure, as there are a number of facts that are unknown at this time. The agreement on its face seems to prohibit you from taking the job offer, HOWEVER, about 50% of the noncompetition agreements that I review are invalid. Yours may be invalid due to consideration issues, dates of signature, etc. Without a great deal more information, your question cannot be evaluated.

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


posted Feb 27, 2008 09:14 AM [EST]

Answer to Retaliation claim

You may have claims for age and/or disability discrimination, or for violation of the FMLA

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, you may have claims for age and/or disability discrimination, or for violation of the FMLA. Having been replaced by a younger, potentially less experienced, employee, you may have a claim for age discrimination. Furthermore, if your employer terminated you because of concerns about a recurrence of your cancer, you may have a claim for disability discrimination. Finally, you may have a claim for violation of the Family Medical Leave Act, depending on the amount of leave you took in the past year and whether you and your employer meet certain requirements.

If you've signed a release or waiver of claims, you may have waived any claims you have. You should have an attorney review any such release or waiver before investigating your potential claim(s).

You do not appear to have a retaliation claim, unless you complained of discrimination and were fired for the complaint.

Finally, you have up to 300 days to bring a claim for age or disability discrimination; therefore, depending on when you were terminated, and when the younger woman was promoted, your claims for discrimination may be evaporating quickly. If you wish to pursue them, you should contact an attorney quickly.

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


posted Feb 27, 2008 09:01 AM [EST]

Answer to changed non-compete contract. Still valid?

The noncompetition agreement is likely invalidated by the failure to pay the full commission owed.

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 noncompetition agreement is likely invalidated by the failure to pay the full commission owed. A noncompetition agreement is a contract; if one side fails to abide by its promise, the other side generally is not required to abide by theirs. Therefore, it is unlikely that the agreement is enforceable.

You can make a claim for the 1% unpaid commission owed you; that commission is wages, and a successful wage claim will provide you with the unpaid wages, a 25% penalty and your attorneys' fees. If you do make a claim and get paid, however, the agreement might still be enforceable. You need to decide what you want; the extra 1% or to get out of the noncompetition agreement.

There may be other reasons that the noncompetition agreement is invalid; they may or may not affect your right to the 1% of unpaid commissions.

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


posted Feb 21, 2008 3:01 PM [EST]

Answer to Forced 401k plan

CORRECTION: You may have to 'opt out' of the 401(k) offered.

To follow up on my answer, above, there is a new form of retirement plan that automatically enrolls ALL employees. You may 'opt out' of these plans, however; you should contact your employer or the plan administrator to do so.

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

posted Feb 14, 2008 11:04 AM [EST]

Answer to Wrongful Termination

A rash is unlikely to be a 'disability' under the law.

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 rash like the one you describe is unlikely to be 'disability' under the law, so you likely do not have a disability discrimination claim. If you filed, or were going to file, a worker's compensation claim, you may have a wrongful discharge claim as it is illegal to fire an employee merely for applying for worker's comp.

Otherwise, Pennsylvania is an "employment-at-will" state, that is, either you or the employer can terminate the employment relationship at any time for any reason or nor reason. Therefore, unless you have applied for worker's comp and were fired because of it, you likely have no legal recourse.

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


posted Feb 13, 2008 12:18 PM [EST]

Answer to No-hire provision; not a non-compete situation.

The client-employer no-hire contract limits the rights of the client, not you.

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 client-employer no-hire contract limits the rights of the client, not you. This means that the client may not hire any employee of your employer in violation of the agreement, but that you may choose to leave your employer's employment for the next two months, and have no obligation to work for them. The problem is, even though you can leave, the client cannot hire you until the two months are up, leaving you without a job for about six weeks.

In a nutshell, while this does affect you, the employee, the agreement between the client and your employer is not prohibited under the law. Pennsylvania is not a 'right-to-work' state; you don't have a right to work for either your employer or the client without a contract creating that right.

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


posted Feb 12, 2008 5:16 PM [EST]

Answer to fired on comp or filing for comp

It is illegal to fire an employee for applying for Worker's Comp in PA.

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, it is illegal in Pennsylvania to fire an employee for applying for Worker's Compensation. If you have been fired for that reason, then you have a claim for wrongful discharge.

In determining whether you have such a claim, there are complicating factors that need to be considered, such as whether the employer had any other reason for the termination (justified or not), whether you were out for over twelve weeks, whether you are a returning member of the armed services, 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


posted Feb 8, 2008 10:52 AM [EST]

Answer to Truth-in-Hiring what are my rights?

In Pennsylvania, it is difficult to bring a claim for misrepresentation in hiring.

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, it is difficult to bring a claim for misrepresentation in hiring. Generally, to bring a claim, the employee would have had to incurred substantial harm in reliance on the employer's misrepresentation; i.e. selling your house in another state and moving to Pennsylvania for the job, only to be fired within weeks for no reason. Under the current caselaw, having the call queue issue change and having foregone another job is likely not sufficient to give rise to a claim. This may seem unfair, but it does not appear illegal.

You are, however, entitled to vacation pay that you earned. If you were told that you had 15 days of vacation, you are entitled to the portion of the 15 days that you earned so far. The employer can only cahnge your pay and benefits prospectively (looking forward) and not retroactively.

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


posted Jan 30, 2008 4:05 PM [EST]

Answer to Forced 401k plan

Generally, you cannot be forced to contribute to a 401(k) plan.

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, you cannot be forced to contribute to a 401(k) plan. If you do not contribute, you won't receive any matching funds from your employer.

Unfortunately, if the buyout resulted in a large pay cut and a lack of benefits, the writing is likely on the wall; your best resort is almost certainly to get a better job elsewhere.

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


posted Jan 23, 2008 08:40 AM [EST]

Answer to Breach or try to get fired?

You may not be bound by the noncompetition 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, you may not be bound by the noncompetition agreement. The 'buy-outs' of your employer may negate the noncompete, depending on whether a valid assignment clause is in the agreement. Furthermore, all noncompetition agreements require a 'legitimate business interest' under the law. If you are in AR/Purchasing, there may be no 'legitimate business reason' for enforcing a noncompetition agreement, such as trade secrets, investment in your training, your relationship with customers or your knowledge of their secret future business plans.

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


posted Jan 11, 2008 08:28 AM [EST]