Answers Posted By Harold Goldner

Answer to I was approved for FML in May for my pregnancy (due in DEC)

You have been approved for FMLA due to your impending childbirth beginning in December, not beginning NOW. Your leave request now is not the same thing, and your employer is within its rights seeking an explanation.Also, keep in mind that the entitlement to FMLA requires that you (1) be employed for at least a year; and (2) work at least 1250 hours during that year, so if the time you are missing now takes you under 1250 hours in the prior year, you may jeopardize that previously approved leave. That assumes, of course that your employer has at least 50 employees.By the way, absence and attendance issues are frequently the #1 reason people lose their jobs. Just because you have been approved for FMLA for one issue (childbirth) does not mean you have a license to miss as much time as needed due to pregnancy.

posted Aug 26, 2009 2:15 PM [EST]

Answer to Aren't employers required to provide ages and positions of employees left behind?

Following up on Chris' comment, the demographic information to which you refer is only required when:

1. The employer is subject to the Age Discrimination in Employment Act and

2. The lay-off is part of a reduction in force (i.e., more than one lay-off).

If just you are being laid off, there is no obligation on the part of the employer to provide that information.

Harold M. Goldner

posted Aug 11, 2009 12:53 PM [EST]

Answer to How enforceable is this non-compete in PA?

Non-compete covenants are generally enforceable in Pennsylvania but must be reasonable as to scope, meaning geographic location and time, and they must be reasonably related to the issues the employer is seeking to protect.

Different industries have far ranging differences in what time periods are appropriate. For instance, web design changes so rapidly, that a non-compete any longer than a year would probably be deemed excessive. On the other hand, barber shops often have periods of up to 5 years.

It's impossible to determine from your inquiry what kind of work you're doing, but a global non-compete for 18 months is a little hard to fathom. I suggest you review the entire situation, and contract, with a Pennsylvania employment lawyer.

posted Jul 27, 2009 08:26 AM [EST]

Answer to Retaliation by declining vacation and Issuing warning for asking a question..

Not sure whether this is the kind of 'retaliation' the law prohibits

If you believe you are being discriminated against because of being a member of a protected classification, i.e. age (over 40), gender, race, national origin, or disability, then you should complain to HR about this unlawful discrimination.

That is the only kind of 'discrimination' which is generally prohibited. Other types of discrimination (weight, smoker, etc.) or simple personality conflicts are not protected by law.

If your complaint to HR was simply that the supervisor was 'picking on you' or playing favorites, and you did not raise any issues of unlawful discrimination with HR, then you cannot be said to have had a 'good faith belief' that you were the victim of unlawful discrimination, and no, your employer would NOT be retaliating against you.

If, however, your complaint was of unlawful discrimination, and then you were retaliated against, yes, you would have a claim.

In short, don't rely upon websites for legal information, talk to a lawyer to clarify both your question, and the answer you require.

posted Jul 1, 2009 10:51 AM [EST]

Answer to fmla

Description fo FMLA benefits

FMLA provides for 12 weeks of leave for a serious health condition of you or an immediate family member (which also includes pregnancy) without the risk of losing your position.

Once the twelve weeks is up, you must be able to return to your position and perform all of its essential functions or the employer is no longer required to hold your position.

If you are going to require more than twelve weeks of leave, then, yes, you may lose your job.

posted May 20, 2009 12:05 PM [EST]

Answer to Wrongful termimation

That's what employment at will means

Pennsylvania is an employment at will state. You can be fired at any time for a good reason, a bad reason, or no reason at all.

If the reason for their terminating you is that the new ownership wants somebody else, or because you make too much money, or because they don't like the way your mix drinks, that's the end of the inquiry.

So long as the decision is not based principally upon your age, sex, race, religion, national origin, or qualified disability, the termination cannot be challenged at law.

posted Apr 21, 2009 3:02 PM [EST]

Answer to Severance, at will and non-compete

No free lunches

There are really two questions here, and you probably don't realize it.

If you don't sign anything at all, the non-compete is probably not enforceable for a 2 year period (and possibly not even at all). There is some case law suggesting that where an employer discharges an employee they do not value that employee's services highly enough to warrant prohibiting that employee from working for someone else.

Non-competes have to be reasonable as to scope (activities covered, geographical area, and length of time) and have to be designed to protect the employer.

Now the flip side. The employer doesn't have to pay you severence at all. My guess is the documents you need to sign to get the severence will contain a new non-compete covenent which may well be enforceable.

So, you might want to have that paperwork and your entire situation reviewed by an employment lawyer before you sign on any dotted lines.

Harold
hgoldner@goldnerlaw.com


posted Jan 19, 2009 4:23 PM [EST]

Answer to Scope of geographic limits in non-compete

Covenants have to be reasonable as to scope

Your non-compete agreement may be enforceable but it has to be reasonable as to scope. What is reasonable as to scope varies upon what the business is, what the activity is, etc.

I cannot assess a contract or clause I've never seen, and it would also be helpful to know whether you have already left, are contemplating leaving, have already secured a new job, etc.

In other words, if you want to know your full rights under the circumstances, why not actually do some face time with an employment lawyer?

Harold

posted Nov 25, 2008 4:49 PM [EST]

Answer to Non competition valid after 11yrs service?

It depends...

I cannot make any assessment of the enforceability of a contract I have never seen.

It is not unusual for non-compete covenants to have clauses which extend them to 'successor entities' of hte employer with which the covenant was originally signed.

You haven't mentioned whether there were other employment contracts signed, and a number of other issues which would bear upon the enforceability of the covenant.

If it is important enough to you to know definitively what you can and cannot do with your non-compete, you need to get to a lawyer and let him or her look at your entire employment situation, any other contracts or documents, and spend 'quality time' with you to fully assess your situation.

Harold

posted Oct 21, 2008 4:58 PM [EST]

Answer to Position eliminated in merger - Am I entitled to severance?

It's possible, but we have to see the agreement

I think it's wonderful that this website is available to help folks like you answer questions you may have about your employment situation.

But whenever a question involves a particular contract, it is critical that a lawyer actually see the contract to be able to give you a definitive answer.

The best I can say is 'it depends.' Typically, in Pennsylvania, if an employer FIRES an employee, the non-compete is no longer enforceable, but there are exceptions. When an employee behaves unethically or criminally, they can expect to get fired, and in those instances, they may well be held to their covenants not to compete.

The bottom line is, if it is important enough to you to know definitively what you can and cannot do with your non-compete, you need to get to a lawyer and let him or her look at your entire employment situation, any other contracts or documents, and spend 'quality time' with you to fully assess your situation.

Harold

posted Oct 21, 2008 4:56 PM [EST]