Answers Posted By Christopher Ezold

Answer to Three year no-compete agreement

This non-compete does not appear to be enforceable.

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 does not appear that the noncompete you were offered is valid. Generally, in Pennsylvania, for a noncompete to be valid, you must be paid for it. For your 'continued employment' to be valid payment, the noncompete must be offered BEFORE you begin working for the employer. The theory is that once you are employed, you cannot be paid with what you already have (employment).
As you did not sign the noncompete until well after you began working, there does not appear to be any payment to you for it, and the noncompete is invalid.

Furthemrore, there is a valid argument that the significant reduction in your compensation and the area in which you worked would prevent enforcement of the noncompete. The employer would only have a legitimate business interest in preventing you from competing in the area that you served. At the very least, even if the noncompete were enforceable, it would most likely only be enforceable in the limited area in which you were working at the end of your employment. The fact that your employer is allowing you to 'complete the season' is also an argument that the employer has no legitimate business interest in preventing you from competing.

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 Sep 28, 2004 1:33 PM [EST]

Answer to commissions owed/non compete valid

The non-compete is probably not enforceable.

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 unlikely that the non-compete would be enforceable if you quit your job due to your employer's failure to pay wages. A non-competition agreement is a contract; your employer's failure to pay your commissions due is likely to be a material breach of that contract (although without reviewing the contract directly, I cannot state this conclusively). If your employer breaches the contract, you are no longer bound by it. There is caselaw holding that when an employer fails to pay its employees, its employees are no longer bound by their non-competition agreements.

Furthermore, it is vastly inequitable to allow an employer to prevent you from working for another entity when that employer won't pay you for your work. Pennsylvania courts do not like noncompetition agreements, and do not like preventing citizens from working for a living.

Based on the facts as you have stated them, I do not believe any court in this Commonwealth would enforce the noncompete against you. The biggest issue you will face, then, is whether you can prove the commissions are due and payable to you, in order to show that the non-compete should not be enforced.

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 Sep 15, 2004 08:22 AM [EST]

Answer to forced on call

You may have a right to pay for on-call duty

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 Pennsylvania employer may require certain employees to be "on call." There is no requirement that the "on call" status be applied evenly to all shifts or employees. However, "on call" status can place a significant burden on employees, and, depending on how onerous the "on call" requirements are, the "on call" employee may be entitled to pay during the "on call" period.

Based on your question, the discipline that you are subject to may indicate you should be paid for your "on call" status. I would need more information to give you a definitive answer on that issue.

You also indicate that 5 CNA's do not have to be "on call;" while an employer may not require all employees to be "on call," the employer may not determine "on call" requirements based on age, gender, race, religion, pregnancy, disability, etc. If you believe your employer is discriminating in its "on call" requirements based on those factors, you may 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 Sep 14, 2004 08:26 AM [EST]

Answer to 2 weeks notice - Vacation Pay

Depends on when you earned your vacation time.

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, whether you are entitled to your vacation pay is generally going to depend on when you "earned" it. Once you've earned your vacation pay, you must be paid it when you leave. As you've indicated that you have "accrued" your vacation pay, it is likely that your employer may not withhold it for failure to give notice. You should file a complaint with the Pennsylvania Department of Labor, via the form at this link:

http://www.dli.state.pa.us/landi/cwp/view.asp?a=142&q=201211


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 Sep 10, 2004 12:52 PM [EST]

Answer to laid off prior to plant closing, do I get severance pay

Your contract likely controls

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, New Jersey or Federal law apply, unless otherwise specified.

That being said, it is likely that your contract controls whether you receive severance pay. While there is no independent legal right to severance pay, your contract may obligate your employer to provide you with severance pay. However, without reading the contract, I cannot give you a reliable opinion.

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 Sep 10, 2004 10:30 AM [EST]

Answer to Does statement in offer letter bound to non-compete agreement

You do not appear bound by the noncompete.

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 be bound by the non-compete agreement. Exactly how this issue would develop depends on (1) the wording of the noncompete and the offer letter, and (2) the circumstances of your receiving and signing the offer letter.

Your employer's failure to get your signature on the noncompete, let alone provide it to you at all, means that there never was a noncompete agreement between you. However, if the noncompete agreement was merely an attachment without a signature line, then I expect they will argue that your signature on the offer letter was effective for the noncompete. The fact that they never provided it to you renders it void; this will be an argument of fact, though, and I expect they would argue that you did, in fact, receive, review and agree with the noncompete.

The fact that your former employer is only demanding a nondisclosure agreement may indicate that they do not believe they have a strong argument in support of the noncompete. Of course, no attorney will be able to provide you with a definitive answer without reviewing your documents.

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) 660-6686
CEzold@Ezoldlaw.com


posted Aug 11, 2004 08:49 AM [EST]

Answer to Wrongful termination

You have between 180 and 300 days to file a discrimination/sexual harassment complaint.

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.

Sexual harassment and employment discrimination are illegal under both Pennsylvania and Federal law. In Pennsylvania, you cannot take your Federal OR State claims directly to court, but must file with the appropriate agency first. In New Jersey, you may proceed directly to court OR go to a state agency.

You have 180 days to file any Pennsylvania state claims with the Pennsylvania Human Relations Commission before they expire, and 300 days to file your Federal claims with the Equal Employment Opportunity Commission before they expire.

These time periods do not necessarily run from the date you were terminated; they may begin much earlier depending on the facts in your case. If you believe you have a claim, you should speak with an attorney at once to determine the exact dates by which you must file.

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


posted Aug 9, 2004 1:09 PM [EST]

Answer to whistle blower then fired

Your noncompete may be invalid

Before I reply to your question, I must note that we have not met, I do not represent you, I have not reviewed your noncompete or all the facts relevant to your inquiry, and therefore, any response I provide is for informational purposes only, and is not legal advice upon which you can rely.

That being said, it appears from your question that your noncompete may be invalid because (a) it may be void as against Pennsylvania public policy, and (b) your employer may have breached the contract first by terminating you.

If you reported your employer's fraudulent behavior to a governmental entity, and you were subsequently terminated, you may have a claim for wrongful termination in violation of public policy. Such a termination is therefore arguably a violation of the contract. In either instance, a court would not enforce the noncompete.

Furthermore, you may have a claim for violations of the Sarbanes-0xley whistleblower protection law if you reported the fraud internally. However, that claim has a 90-day statute of limitations, and you should see a lawyer IMMEDIATELY if you believe you have such a claim.

Finally, not all noncompetes are valid, and even if you have no claims or there was no breach of contract, you may still not be bound by the noncompete. Without reviewing the document, however, I could not speculate any further.

If you wish to discuss the matter further, please feel free to contact me at the addresses or number below.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
CEzold@Ezoldlaw.com



posted Aug 9, 2004 08:42 AM [EST]

Answer to Public Bids

You may be violating the agreement.

Initially, I must note that we have not met, I have not reviewed your contract or the specific facts of your problem, I do not represent you and therefore, any response I give to your question is for informational purposes only, and is not a legal opinion on which you can rely.

That being said, without reviewing your non-compete contract with your previous employer, and without understanding why your current employer is only a "pseudo" competitor, no attorney can give you a reliable response to your question.

The fact that the client has a public bid out will likely have little impact on your case; instead, the issue will be whether the client would ever do business with your former employer, and whether the bid is for services that your employer provided while you were there, whether you were involved with that client on behalf your your former employer, the terms of the noncompete and the facts surrounding your employment and signature on the agreement.

If you wish to discuss this issue further, feel free to contact me at the number or address below.

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

posted Jul 29, 2004 08:38 AM [EST]

Answer to Non-Compete

It may not be valid

Initially, I must note that we have not spoken, you have not retained me, I have not reviewed your documents and any response I give to your question is therefore informational and not a legal opinion on which you can rely.

That being said, although I cannot give you a reliable response without reviewing the contract, the contract may not be valid for the two reasons you state in your question.

First, in Pennsylvania, a non-compete is generally not valid if signed after employment and without additional compensation.

Second, in Pennsylvania, a non-compete must protect a legitimate business interest of the employer; if you are working in a job that does not compete with the employer, and which would not require you to divulge confidential information you gained while with the employer, there is likely no protectible business interest to underly the non-compete.

Again, for a reliable answer, an attorney must review your non-compete and speak with you about your employment. If you wish to discuss this issue further, please contact me to discuss.

/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 Jul 21, 2004 2:50 PM [EST]