Answers Posted By Harold Goldner

Answer to Wrongful Termination

zoy

posted Oct 29, 2007 07:11 AM [EST]

Answer to Do Pay Rate Issues Invalidate Non-Compete Agreements?

Can't interpret a contract without the contract

I'd like to answer your question, but, of course, I don't have the contract, so I can't tell you what the consequences are of the employer failing to pay the contract rate.

It is true that under certain circumstances, breach of a contract containing a restrictive covenant will void the covenant. That's not true in every instance, and a particular analysis of the facts and the contract (and covenant) are required.

If it's worth it to you to recover the difference in wages --- or worth it to determine whether you're free to ignore the noncompete, it ought to be worth it to see a lawyer in person.

Harold

posted Oct 11, 2007 11:01 AM [EST]

Answer to how to break non compete, that is very restricting

Non-compete Covenants

Please note that I can only answer this inquiry under Pennsylvania law, and I have not reviewed your contract, so you should not rely upon my response as legal advice any more than you should take medicine from a doctor who has never examined you.

Non-compete covenants are only enforceable to the extent they are reasonable as to scope and calculated to protect a reasonable interest of the former employer.

Some industries forbid non-competes altogether in certain jurisdictions. For instance, a non-compete upon a doctor is invalid in Delaware.

I do not know whether as an allied medical professional you would be exempt from non-competes under NY law. The best thing for you to do is consult with an employment lawyer with contract in hand.

An attorney can do a proper analysis of the former employer and the industry in which you practice in determining whether the non-compete is reasonable.

Harold

posted Oct 3, 2007 5:13 PM [EST]

Answer to Documentation of job perfomance

References

Regardless of your rights to access to your personnel file, most employers will NOT provide any references other than: (1) dates of employment and (2) position held.

The reason is that employers are afraid of the costs associated with any claims that they somehow defamed a departing employee. While there is limited privilege in checking references, most employers do not want to worry about what former supervisors are saying so they keep them on a short leash.

In other words, in this particular instance, that policy, which is usually for the best, is working to your detriment.

Please recognize (as Chris says) that we are only reviewing your brief post, and cannot provide you legal advice upon which you should rely without a formal consultation, any more than you should take medication prescribed by a doctor who does not examine you.

Harold

posted Oct 3, 2007 1:54 PM [EST]

Answer to Is this Harassment?

Harassment v. Unlawful Harassment

Life is full of harassment. Getting to work on SEPTA is harassment. Driving on the Schuylkill Expressway is harassment. It's just not unlawful harassment.

Unlawful harassment is harassment based upon protected classifications such as age, race, sex, national origin or disability. It is conduct which another employee finds offensive.

When Don Imus made his ill-fated quote last winter, some thought it was funny, but others believed it was offensive, and it was the response of those finding it offensive which resulted in his going off the air.

So, to bring this home, you certainly aren't the victim of unlawful harassment, and your comment, if made, *was* conceivably offensive to someone, and was tinged with racial overtones.

Being tolerant means all the time, not just when you're not with those just like you, because you can never tell what's offensive to another co-worker.

Harold

posted Aug 22, 2007 11:42 AM [EST]

Answer to possible wronful termination

FMLA rights may have been violated

The Family and Medical Leave Act may provide you up to 12 weeks unpaid leave, and security for your job, but it is impossible to determine whether you qualified for FMLA leave, or your employer violated FMLA rights without more details.

I encourage you to contact an attorney familiar with the FMLA to explore whether your rights have been violated.

Harold M. Goldner
hgoldner@goldnerlaw.com

posted Aug 15, 2007 4:27 PM [EST]

Answer to medical

Not Ready, Willing & Able To Work

Unemployment compensation is for those who are unemployed due to no fault of their own (including incompetence, but NOT including 'wilfull misconduct') but are otherwise able to work.

If you are disabled, however, you are not ready, willing, and able to work, and thus, not eligible for UC.

posted Aug 2, 2007 6:22 PM [EST]

Answer to Asked to resign when I give birth

FMLA definition of "Employee"

I cannot determine from your brief paragraph what the difference is between being a 'consultant' and being an 'employee' to your employer.

The Family and Medical Leave Act (FMLA) does not necessarily define 'employee' the way your employer does. Qualified 'employees' are eligible for up to 12 weeks unpaid leave for childbirth with a complete restoration to the position they held prior to childbirth if the employer is a qualified employer (more than 50 employees within a 75 mile radius).

If your employer does not have 50 employees, then it will not make a difference, because the FMLA does not apply. Note that this is under Pennsylvania law; some states have pregnancy leave statutes.

Your best bet, since I cannot give you real 'legal advice' via a web site, is to contact an employment lawyer and find out what your rights are.

Harold

posted Jun 20, 2007 09:36 AM [EST]

Answer to Non-Solicitation Employment Question

Non-Compete Covenants

The problem, as you can well imagine, is that I don't have the full contract/covenant in front of me, just the portion which YOU have decided is pertinent. That's not unlike trying to get an orthopaedic surgeon to assess your elbow over the phone, and not permit an examination of the rest of your body.

Generally, and I am speaking about Pennsylvania law, courts will permit an employer to preserve valuable trade assets with a covenent. Restrictions on the use of customer lists, and access to prior clients is generally upheld so long as the duration and geographical scope is reasonable.

Here you're dealing with only 6 months, and it appears to be limited to clients, both existing and prior. On its face, it appears you cannot do what you want to do --- but again, I wouldn't count that 'legal advice' until you actually sit down with a lawyer and the complete language.

Harold

posted Jun 7, 2007 10:33 AM [EST]

Answer to Wrongful termination

The rough side of "Employment at Will"

Assuming that your situation occurred in Pennsylvania, or another at-will state, the answer is probably 'none.'

In at-will states, provided you are not civil service (or a union member where the collective bargaining agreement provides for a grievance procedure upon discipline), you can be terminated at any time for a good reason, bad reason, or no reason at all. You can be fired if your employer thinks you engaged in improper conduct even if: (1) you didn't engage in the conduct and (2) the employer doesn't get the investigation right.

You cannot be disciplined differently than other workers on account of your age, sex, religion, national ancestry, race or disability ---- but since you haven't raised any of those issues, it does not appear to be a case of employment discrimination.

Note, please, that an answer on a web site can only give you a broad brush picture of the landscape. Just like you shouldn't get medical advice without a physical examination, your legal advice should come from speaking to an attorney.

posted May 8, 2007 09:01 AM [EST]