Answers Posted By Christina Royer

Answer to Hidden Non-solicitation Clause

Fair competition after non-solicitation agreement expires

As a preliminary matter, any attorney would have to read the actual agreement you signed to be able to give you specific advice about your rights and obligations relating to it.

Nonetheless, your question raises valid concerns about what is acceptable competition in the marketplace, whether there is a non-compete or non-solicitation agreement in place.

There are laws that prevent businesses and individuals from stealing and improperly using another business's trade secrets. This is so regardless of whether the company has its employees sign non-compete/non-solicitation agreements.

There are also laws that prohibit businesses and individuals from engaging in behavior that wrongfully interferes with another businesses relationships with its own employees and customers. Likewise, these laws are in place regardless of a non-compete/non-solicitation agreement.

In your case, even when your non-solicitation agreement expires, these laws will continue to protect your former employer.

This means that anything you do to pursue this particular customer (or any other of your former customers) must fall into the category of normal business activities that are designed to promote reasonable competition.

For example, you may not use confidential information or trade secrets (such as pricing structures, sales data, etc.) from your former employer to try to procure this customer's business.

Also, you should not disclose confidential information or trade secrets to your new employer in order to procure a competitive advantage that the new company wouldn't already have in the marketplace.

You should also refrain from "bad-mouthing" your former employer, or saying false and defamatory things about the company, in order to induce its clients or employees to sever their relationships with your former employer.

All of that said, if this customer likes you and wants to continue doing business with you, and is comfortable with your new employer, then it is not unreasonable to try to foster a business relationship after the six-month period expires.

This does not mean that your former employer could not try to enforce rights it believes it has under the non-solicitation agreement or under the legal priniciples discussed above. There is always this risk. But, if you conduct yourself in a manner that is consistent with good business ethics, and make sure that you are engaging only in fair competition, it would be more difficult for the former employer to prevail.







posted Oct 18, 2007 2:19 PM [EST]

Answer to Salaried Employee docked pay for 1 day off.

Possible FMLA Issue

In addition to Neil Klingshirn's comments about the overtime issues, I believe this question may implicate the FMLA.

When employers approve an employee's FMLA leave, they must allow the employee up to 12 weeks of leave each year.

FMLA leave may be taken intermittently (i.e., a day off at a time over a period of time) or it may be taken consecutively (i.e., 2 straight weeks off, or 12 stratight weeks off).

The catch is that FMLA leave is unpaid. Although employers cannot deny eligible employees the time off, they are not obligated to pay employees for that time away from work.

Many employers have policies where certain amounts of leave are paid, whether through accrued vacation time or through short- or long-term disability programs. But, these programs are voluntary, and the law does not require employers who do not have these programs to pay employees for FMLA leave taken.

It is not clear from the question whether you exhausted FMLA leave in connection with your surgery, or whether the FMLA leave was granted for the medical condition that necessitated the surgery.

If you had remaining FMLA leave after returning from surgery, and missed the day for reasons relating to the medical condition, then the employer may elect not to pay you for the day missed. This is because it is counting that day towards your FMLA leave.

If you missed work for a reason that is unrelated to your medical condition, then the employer should not treat it as FMLA leave, and should neither dock your pay, nor charge that day against any remaining FMLA leave that you may have.


posted Oct 18, 2007 1:56 PM [EST]

Answer to Dose my work place have to make accomadations for pregnancy restrictions?

Pregnancy Accommodation

From the information you provided, my first question is whether Wal-Mart would allow another worker who is not pregnant, but has a similar medical restriction, sit down at the register, as an accommodation for that restriction.

If yes, that would suggest that Wal-Mart is treating you differently because you are pregnant, which is unlawful.

Ohio law requires that employers treat pregnant employees the same as other employees. So if they accommodate other employees with a restriction like yours, then they must accommodate you, as well.

But, if they don't accommodate those kinds of restrictions for anyone, whether pregnant or not, then you might be out of luck.

As a matter of your and your baby's health, it does not sound like a good idea to have your restrictions lifted. Keep trying to pursue a change in position that would allow you to sit every four hours. If there is some compromise you can reach that will allow you to keep working, and to stick to your doctor's restrictions, then try to go that route.

If Wal-Mart is treating you differently because of your pregnancy, you could consider filing a charge of discrimination with the Ohio Civil Rights Commission nearest you (http://www.crc.ohio.gov).

You could use the mediation process to try to reach a compromise and get your employer to work with you on this.


posted Oct 15, 2007 10:32 AM [EST]