Answers Posted By Christopher Ezold

Answer to Working with no-pay because of changing from exempt to non-exempt

An employer generally cannot withhold pay.

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 generally cannot withhold pay from an employee. There are some limited circumstances, such as when an employee owes the employer money, in which such withholding is not illegal. However, those circumstances do not include a change from exempt to non-exempt. I suspect there are more facts to this story, however, based solely on what is in your inquiry, I do not believe that your employer can withhold the wages of the employees who are now non-exempt.

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com


posted Mar 2, 2005 08:14 AM [EST]

Answer to i do not want meal time

Your employer can require you to 'clock out' for lunch.

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, unless you have an employment contract or collective bargaining agreement, you are an 'employee at will' - that means that your employer can set the terms of your employment at their discretion, including your work times.

From the facts in your question, you appear to be currently working a 40-hour week (5 days from 8-4 each day); your employer is most likely requiring you to take the lunch time off so that you do not work a 1/2 hour of overtime each day. Without a contract, your employer has the right to limit your work hours in this manner.

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com


posted Feb 28, 2005 07:30 AM [EST]

Answer to Can I be forced to take a wage cut?

Generally, your employer can cut your wages.

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, unless you have a contract specifying your wages, you are an employee at will in Pennsylvania. That means that your employer can reduce your wages, discipline your or fire you at any time for any reason or for no reason. Your employer cannot cut your wages after you have done the work, however; you must be informed at the beginning of the pay period or job that your wages are being cut. Otherwise, you have no recourse.

However, you indicated that you are the only person being asked to take a wage cut. If you are being singled out for this treatment because of your gender, race, age, disability, religion or other protected characteristic, then you have recourse. An employer may not alter your wages based on discriminatory motivations. However, based on the information in your question, I cannot determine whether you have a discrimination claim.

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com


posted Feb 24, 2005 07:45 AM [EST]

Answer to Wrongfully Fired

This appears to be an unemployment issue.

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 appear to have an unemployment issue. Unless you had a contract of employment, you were an employee at will, which means that your employer can fire you at any time, for any reason. The employer's reason can be unfair or downright stupid (i.e. firing you because you are their biggest revenue-generator). Your only defense against being fired in Pennsylvania is that you cannot be fired based on your gender, age, race, disability, religion, etc., and you cannot be terminated for refusing to engage in illegal conduct.

That being said, there are clearly facts missing from your question that may impact my response. The 'suggestion' that you move is odd, and terminating you for telling your landlord is odder still. It appears to be, at first glance, an attempt to get you fired for 'wilful misconduct' which would prevent you from collecting unemployment compensation.

It does not appear, however, that their stated reason for your termination would be considered 'wilful misconduct' by the Unemployment Board. If your landlord is willing to testify on your behalf, you should be able to collect.

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com


posted Feb 14, 2005 08:06 AM [EST]

Answer to Non-Compete Question

You likely have a valid defense against the non-competition 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 likely have a valid defense against the non-competition agreement. In Pennsylvania, non-competition agreements must be reasonable in time, geographic or substantial scope, and must be reasonably related to a legitimate business interest of the employer. To give you a reliable opinion, I would need to review the agreement and a more detailed understanding of your job and your industry. However, based solely on the facts in your question, it would appear that, under the current case law, your former employer does not have a 'legitimate business interest' in preventing you from working as a manufacturer's representative. Recouping an investment in 'training' employees is not a legitimate business interest; if it were, employees would become akin to indentured servants.

Furthermore, you appear to be outside of the terms of the noncompete, as you do not promote, buy or sell.

Finally, a non-competition agreement is a contract; in Pennsylvania, a party claiming that a written contract was breached must sue within four years. I am not aware, however, of any non-competition agreements being enforced after the employer has let the issue languish for four years. In all practicality, if they do not sue you within the first 6-9 months after they have discovered your new employment, I do not expect that they will sue at all. Waiting for four years may also provide you with other defenses, as well (i.e., how important a business interest do they have in preventing your employment if they don't act immediately?).

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com


posted Feb 9, 2005 08:19 AM [EST]

Answer to Overtime for orientation meeting

You most likely have to pay OT.

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 most likely have to pay time-and-a-half for the three hours, and possibly for the six hours, of overtime.

If your business had over $500,000 in revenues last year, you must pay overtime under the Federal Fair Labor Standards Act. Overtime pay is for all hours over the normal work week; if 37 hours is your normal work week, you may have to pay for all 6 hours on Saturday. Overtime pay must be paid to all non-exempt employees; if the employees at the Saturday meeting are certain types of executives or creative, learned, computer or other professionals, or if they make over $100,000 per year, you may not have to pay them overtime.

The penalties for failure to pay overtime can be steep; double damages, 25% liquidated damages, attorneys' fees, fines and even jail time might be assessed under Federal and Pennsylvania law. If you have questions about the eligibility of your employees for overtime and would prefer not to pay overtime, you should consult an attorney.

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com


posted Jan 20, 2005 3:01 PM [EST]

Answer to Employer refusing to pay for overtime wages earned

You should consult an attorney.

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 do not appear to have a question on the law, but one about the practical aspects of how to proceed. First, although your employer classified you as "exempt" for a time, their classification does not control. The fact that they are now classifying you as "non-exempt" tells me that you were likely "non-exempt" the entire time you have been employed, and are owed overtime pay for that period. If your claim for overtime pay succeeds, you will be owed double the unpaid overtime wages plus your attorneys' fees. While the DOL will process your complaint within a few months, the focus of state agencies is on enforcing the law and not on making sure you are fully compensated for your work. They do not always see the full spectrum of your claims and are more willing to settle for less than an attorney would be. Therefore, if you believe that you would receive at least a few thousand dollars from an overtime claim, you may want to consult an attorney prior to filing.

Furthermore, you should also consider the political results of suing your employer; you may subsequently encounter a hostile work atmosphere or other problems. An attorney experienced in this area of the law will be able to advise you on whether it would be worth the 'hassle' to proceed, and how to minimize the political fallout.

Finally, you say that you are losing sleep and have a sneaky boss; this tells me that more than a little unpaid overtime is at stake here. Again, an attorney experienced in this area of the law would be able to determine whether any other legal issues are implicated by your current situation and give you advice accordingly.

If you only want to resolve a few weeks of overtime, or if the emotional burden of a claim is more than you want to deal with, you should go directly to the DOL. However, if you want advice on the entire spectrum of your claims, and if you want advice on how to handle your claims legally, practically and policically within your company, you should consult an attorney.

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com

posted Jan 18, 2005 08:04 AM [EST]

Answer to Employer compliance with personnel policies

An employer is generally not required to follow its own policies.

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, Pennsylvania is an "at-will" employment state, meaning that an employer may discipline or terminate its employees at any time for any reason or no reason at all. This means that an employer is generally not required by law to follow its own policies.

Furthermore, an employer's failure to provide the tools to do your job is not illegal, even if you are disciplined or terminated for job performance. These employment behaviors are unfair and wrong, but not illegal.

This does not mean that you have no recourse whatsoever. Although an employer does not have to follow its own policies, it must not treat employees differently because of their age, race, sex, religion or disability. Giving your co-worker the tools to do the job, but denying them to you because you are a woman is illegal. Giving your co-worker the benefit of policies but denying them to you because you are over 40 is illegal.

Unfortunately, these analyses are fact-specific, and there are not enough facts in your question to allow me to speculate further. If you would like to discuss this matter, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com


posted Jan 6, 2005 08:32 AM [EST]

Answer to How is my time calculated? Am I entitled to know?

You have a right to know your rate of pay.

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 have a right to know the rate at which you are being paid, including the 'rounding' of minutes on or off the clock and any other factors that impact your pay. The Pennsylvania Wage Payment and Collection Law specifically requires such disclosure by your employer at the time you are hired, and at any time the rate changes.

If you are not provided the rates at which you are being paid, including the overtime or rounding of clocked time, you should demand the calculation in writing, delivered via FedEx, UPS or some other service that obtains a signature upon delivery.

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com

posted Jan 4, 2005 10:31 AM [EST]

Answer to Reneging on job offer

No.

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 cannot sue a potential employer for the emotional distress resulting from a withdrawn job offer. Had you relied upon their offer and dramatically changed your circumstances (i.e. sold your house, moved here from another state, refused other job offers, etc.), you might have a claim for misrepresentation. Such claims are unusual and very hard to win. However, the facts as you set them forth do not indicate the basis for such a claim.

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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com

posted Jan 4, 2005 07:58 AM [EST]