Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Wednesday, October 27, 2010

Non-Compete Agreements - Top 5 Ways To Get Out of Yours

Your employer will tell you that you are bound by your non-compete agreement when you leave. The reality is that most employees don’t have the will or the resources to fight them. Many employees think that, just because an employer forced them to sign the agreement or be fired, that they are not bound by a non-compete agreement. That’s just not true. Continued employment is valid consideration for a non-compete agreement in some states, and almost all will enforce some non-compete provisions. That doesn’t mean you can’t get out of yours if you’re willing to fight.

What usually happens is the employer sends a letter to the employee and the new employer, threatens to sue both, and the employee gets fired from their new job, even where they told the new employer about the non-compete. That’s because, unless you have a contract with the new employer spelling out that you can only be fired for cause, and that the non-compete is known to the employer and is not cause, most states are at-will states. That means any employer can fire any employee for any reason or no reason at all.

Does it stink that companies can force employees to sign non-competes and use them as essentially indentured servitude? Yes. I see cases all the time of bully bosses using non-competes to force employees to stay under terrible conditions. Or worse, cases where an employee quit their great job based on promises, then were presented with a non-compete after they start the new job. They stay a month or so, during which time the new employer uploads all their valuable contacts into the database. When the company gets what they need, they fire the poor employee, then say they can't work in their field for a year or two. Will courts enforce such a despicable scheme? Sometimes.

The laws need to change, so call up your state legislator and complain. Better yet, write them. In the meantime, can your employer enforce your non-compete? Maybe. Can they outlast you financially if they sue you? Almost certainly. Do you have rights? Absolutely.

Smart employees consult an attorney before signing a non-compete to be advised of their rights. Even if you signed without getting advice, you still may have some legal arguments to defeat your non-compete.

1. Employer breaches the contract: If your employer put the non-compete provision in an employment contract spelling out compensation, insurance and other conditions of employment, it is important to have an attorney go through the contract line-by-line. If the employer breached the agreement by failing to pay all compensation due, failing to fulfill the insurance requirements, or failing to meet some other obligation, the employee may be relieved of all obligations under the contract.

2. No legitimate interest to enforce: Many employers attempt to overreach their legitimate business interests, and this is one of the most common mistakes. For instance, an employer has no legitimate interest in enforcing a non-compete against low-level employees such as receptionists and clerical employees. An employer who manufactures computer software for accountants has no legitimate interest in preventing an employee from working on software for doctors. An employer who is phasing out of an area has no legitimate interest in preventing an employee from working in that area. An employer who abandons a particular customer, area of business, or product has no legitimate interest in the area it abandoned. The following are likely to be considered legitimate business interests in most states that allow non-compete agreements:

a. Trade secrets;

b. Valuable confidential business or professional information;

c. Substantial relationships with specific prospective or existing customers, patients, or clients;

d. Goodwill associated with an ongoing business or professional practice, by way of a trademark, geographic location or marketing/trade area;

e. Extraordinary or specialized training.

3. Agreement is for too long a time period: Your state non-compete statutes will determine what time period the courts will consider reasonable. For instance, a period of less than 6 months may be presumed valid, and over 2 years might be presumed invalid. In between, the employer will have to prove that the time period is reasonable. However, courts may assume that agreements up to your state’s maximum number of years are reasonable. Anything over your state’s set maximum is going to be a hurdle for the employer to overcome.

4. The so-called confidential information is something readily available to the public: Many companies get their sales leads from public sources. Phone books, professional directories, the internet, notification services, are all sources that are available to anyone in the industry. So an employer who claims they are protecting their valuable secret client sources is going to have to show that the information was not available to everyone else in the industry. Existing customer lists or unique sources may well be protected, but chamber of commerce directories are probably not.

5. Public health or safety would not be served: This primarily applies to doctors, nurses, and people in specialized scientific and health areas. If there is a shortage of people in a particular specialty, or in a particular geographic area, then the employer probably cannot enforce a non-compete even if all the other requirements are met. If you are one of 10 brain surgeons in the country who can perform a particular procedure, your employer probably can’t prevent you from saving people’s lives.

In general, I tell people to assume their non-compete agreements are enforceable, and not to sign them unless they can live with the restrictions. But an employee with the time, will, and resources to fight can frequently limit or eliminate their non-compete provisions.

And an employer who tries to enforce a non-compete and fails may end up paying the attorney’s fees and costs of the prevailing employee, and will sometimes be paying money damages to the employee for tortious interference with an employment relationship if they cost the employee a job.

If you’re leaving a job and you have a non-compete, the best thing to do is get advice from an employment attorney before you leave. You’ll want to look at the agreement to see which state’s law applies and get a lawyer in that state to take a look. If no state is specified, then it’s probably the state where you work for the employer. A written agreement with the new employer to defend you and to pay you even if you can’t perform particular services if a court issues an injunction will protect you.

If you get sued to enforce a non-compete, you MUST contact an employment attorney in the state where you’re sued immediately to defend yourself or you will lose your new job, you will have a money judgment against you, and you will have no ability to raise any defenses to the non-compete agreement.

Friday, October 15, 2010

When Is A Whistleblower Not a Whistleblower?

I get questions like this and they make me cringe:

I wrote a long letter to the CEO complaining about my boss’s incompetence and lack of ethics. I got fired. Can I sue?

Here's what I'd like to say, but am usually more polite:

Probably not. What on earth made you write a letter like that? No, you don’t get to write emails, memoranda, letters, articles, or Facebook entries attacking your boss or the company unless you want to be fired.

Ethical violations and incompetence are not things you can complain about and be a whistleblower. If the ethical violations are also legal violations, you may be a whistleblower. However, if your boss is ripping the company off or going off on her own and breaking the law, you’re still probably not a whistleblower.

To be a whistleblower, you probably have to object to or refuse to participate in an illegal practice or activity of the company. For instance, if you object to discrimination, mortgage fraud, Medicaid fraud, dumping of pollutants, something that is a violation of a law, government regulation or ordinance, that the company knows about and condones or allows, then you may be a whistleblower.

If you’re a whistleblower and the company fires you or demotes you, then you should contact an employment attorney about your rights.

If your boss is incompetent or unethical, put up with it quietly while you look for another job.

Thursday, October 14, 2010

Should I Quit My Job?

I get asked this question a whole lot. Here's my answer:

In this economy? What, are you nuts? That’s not really a legal question, but unless you have another job lined up, probably not.

I’m being harassed? Should I quit?

See answer above. But now we’re getting closer to a legal question.

In general, at least in most states, harassment isn’t illegal. Bullying isn’t illegal. If you’re being harassed due to race, age, sex, disability, color, national origin, religion, pregnancy, marital status, genetic information, objecting to an illegal practice of the employer, making a worker’s compensation claim, taking Family and Medical Leave, your testimony under subpoena, serving on jury duty, or some other legally-protected category, then, and only then, may the harassment be illegal.

For discrimination, you’re only protected if the employer has 15 or more employees. For Family and Medical Leave, they must have at least 50 employees. For other categories, check your state law to see whether you qualify. So you need to be sure the law protects you. Think you’re protected?

Still, you should not quit.

What you should do is report the harassment to human resources or whoever is named in the company’s harassment policy. I recommend you report it in writing so they can’t deny that you did it. You have to give them time to investigate and take action to stop it.

If they don’t stop it, or if they fire you for reporting it, then contact an employment attorney to discuss your remedies.

The truth is, only under the most extreme circumstances will the courts find that you were "constructively discharged," that is, that your quitting was because no reasonable employee would tolerate the circumstances. Should the law change? Probably. So talk to your legislators and congressional representatives.

In the meantime, the law hates quitters.

Wednesday, October 13, 2010

Why Do I Need An Employment Lawyer? Do I have A Case?

In general, there is no such thing as wrongful termination/discipline in most states if you don’t have a contract saying you can only be fired for cause. So why on earth would you ever need an employment lawyer? How do you figure out if you have a case?

Why Do I Need An Employment Lawyer?

There are some times in your employment that you may definitely need an attorney. Here are some reasons you might need a lawyer.

Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.

Confusing claims: There are some employment laws on the books that you might not know about, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.

Being taken seriously: Some employers don’t take you seriously unless you have representation.

Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.

When you absolutely, positively need a lawyer

If any of these happen to you, you should contact a lawyer immediately:

Your employer or former lawyer sues or threatens to sue you;

You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a noncompete, confidentiality, arbitration, or employment agreement;

You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).

When you might want a lawyer

If you think your employer or former employer has broken employment laws;

If you have been retaliated against for complaining about discrimination or something illegal the employer has done;

If you’re not being paid all the wages you’re owed;

If you think you’re misclassified as exempt from overtime or as an independent contractor.

When you probably don’t need a lawyer

To make a written complaint of discrimination to the human resources department, as long as you follow the policy;

To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);

To sign documents you understand, like applications, insurance forms, and tax documents.

To file a union grievance if you’re a union member (use your union rep – they’re free).

Do I Have A Case?

Here is a checklist to help you figure out if you might have a case against your employer. It’s not exhaustive, since every state has different laws, but this will give you a start.

Cases involving termination, demotion, or suspension without pay

If you answer yes to any of these questions, you may have potential claims. You’ll want to contact an employment lawyer in your state to find out if you have a case if any of these occurred shortly before your termination, demotion, suspension without pay or other discipline.

_____ Did you make a worker’s compensation claim shortly before being fired?

_____ Had you recently objected to, refused to participate in, or reported illegal activity or discrimination by the company? (as opposed to something unethical or a violation of company policy)

_____ Had you recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy?

_____ Has the employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer?

_____ Had you recently performed jury duty?

_____ Had you recently served in the military?

_____ Had you recently taken family or medical leave?

_____ Had you recently served as a witness in a lawsuit or provided testimony or evidence to EEOC?

_____ Had you recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment?

_____ Did your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week? Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It’s not illegal to discriminate against you for being you. If the discrimination or harassment fits in one of the categories below, you should contact an attorney or EEOC to find out more about your rights and your responsibility to report it before you make a claim.

___ Race ___ Sex ___ Sexual harassment ___ Religion ___ Ethnicity ____ Disability ____ Age___ Pregnancy ____ National origin ____ Color (same race) ___ Genetic information ____ Retaliation for objecting to discrimination

Ask yourself how you were treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color under the same circumstances. Some states, counties or municipalities have more categories, like marital status and sexual orientation. If you can’t point to someone else who was treated differently under the same circumstances, or to instances where you were singled out for different treatment than others, you may not be able to show discrimination.

Does the employer have 15 or more employees? If not, discrimination laws may well not apply. Some states, counties and municipalities have laws that apply to smaller employers.

Why Isn’t My Case On Your List?

Many people are quite certain that some employer actions are illegal, based on bad TV dramas and misconceptions. Here are some examples of things that aren’t illegal, even though you might assume they are:


No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority.

Hostile environment/harassment

Hostile work environment is not illegal. General harassment is not illegal. Bullying is not illegal. Only hostile environment/harassment due to race, age, sex, disability, or another legally-protected status is illegal.

Free speech
Only government employees have free speech protections, and those are very limited.

There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You have some privacy rights in your medical information. There is no federal law protecting your social security number, but two states offer limited protection against employers displaying your number.

Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a non-compete agreement is meaningless or that it won’t be enforced, they are lying to you.


There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, lack of professionalism, ethical violations, bullying, or jerkish behavior.

If you think you have claims to make against your employer or former employer, then the best course of action is to contact an employment lawyer in your state to discuss potential claims.

Monday, October 11, 2010

Overview of Employee Rights

           Many employees are confused about their rights in the workplace. You may have rights you didn’t even know about, or think you have rights that don’t exist. This post will cover some basic employee rights, and try to clear up some misconceptions.

·         Discrimination

            You DO have the right to not be discriminated against based on race, age, sex, national origin, disability, pregnancy, religion, genetic information, color, objecting to discrimination, or association with a person in one of these categories. But this right only applies if your employer is large enough. In most cases, your employer has to have at least 15 employees (for age, 20 employees). However, some states and local governments protect employees of smaller employers.

            You DON’T have the right to be of discrimination against you for being you. There are no protections for personality conflicts, weight, appearance, political beliefs (except if you work for government), non-religious beliefs, and other non-protected categories.

            You MIGHT have the right to be free of discrimination based upon sexual orientation, marital status, or other categories if your state or local government provide additional protections.

·         Harassment

You DO have the right not to be harassed due to your race, age, sex, national origin, disability, pregnancy, religion, genetic information, color, objecting to discrimination, or association with a person in one of these categories, if your employer is big enough (see above).

You DO have the right not to be harassed if you’re a covered whistleblower, took covered Family and Medical Leave, made a worker’s compensation claim, or took some other legally protected action.

You DON’T have the right to be free of a hostile work environment that isn’t based on one of the above categories.

You DON’T have the right to be free of bullying or general harassment in the workplace.

If you complain about harassment, you DON’T have the right to be free of retaliation unless what you complained about was legally-protected harassment in one of the categories above.

·         Breaks

You DO have the right to be paid if you work through your lunch break or if your breaks last less than 20 minutes. This only applies if you are not exempt from the requirements of the Fair Labor Standards Act.

You DON’T have any federally-protected right to any rest or meal breaks. A few states do have some rest and meal break requirements, and the links are below. This is one of the most common misconceptions.

You PROBABLY have the right to take reasonable bathroom breaks. OSHA covers workplace safety and has requirements that restroom facilities be available. There’s no specific OSHA regulation about bathroom breaks, but if your employer won’t allow them, you might report them to OSHA.

·         Right to Work

If you live in a “right to work” state, you probably think you have rights you don’t. Be careful about this.

If your state is “right to work” that means you DO have the right to work in most industries without joining a union.

You DON’T necessarily have the right to work for a competitor. If you’re being asked to sign a noncompete agreement, get legal advice from a lawyer in your state. Don’t believe anyone other than a lawyer who practices employment law in your state who claims you can go ahead and sign because they won’t be enforced. Right to work simply has no effect on noncompete agreements.

You DON’T have the right to be fired only for good cause. Most states are at-will, meaning you can be fired for any reason or no reason at all unless you have a contract saying otherwise.

  • Benefits
You DO have the right to get a description of your health insurance, pension, and other benefit plans.

You DO have the right to enforce the duty of the people managing your benefit plans to administer them without fraud, self-dealing or kickbacks.

You DON’T have the right to any specific benefits from your employer. Your employer doesn’t have to provide health insurance, vacation pay, sick pay, severance pay, pension or other benefits unless they have an existing plan.

You DON’T have the right to keep your insurance if the company cancels the health insurance plan.

  • Contracts
            You DO have the right to understand contracts you’re being asked to sign before you sign. If you don’t understand, get advice from a lawyer before you sign.

            In some states, you DON’T have the right to refuse to sign a contract. Some states allow an employer to require you to sign away your rights to work for a competitor, get a trial if you’re a discrimination victim, or get a jury trial, and they are allowed to fire you if you refuse.

            You DON’T have the right to a jury trial, to try your case in court instead of arbitration, to work for a competitor, or to bring claims against your employer if you’ve signed away your rights, so make sure you understand what you’re agreeing to before you sign.

  • Hours
            You DO have the right to be paid for all hours worked and to be paid overtime for hours worked over 40 hours if you aren’t exempt.

            You DON’T have the right to a specific schedule, to not work extra hours, or to come in late.

  • Illness
            You DO have the right to take Family and Medical Leave if you’ve worked at least a year, if you work enough hours, and if your employer has 50 or more employees. But there are lots of hoops to jump through, so read your handbook and know the employer’s requirements.

            You DON’T have the right to sick leave, excessive absenteeism, take care of a sick kid, or miss work due to illness (even with a doctor’s note) unless you are covered by Family and Medical Leave.

  • Disability
You DO have the right to seek reasonable accommodations for your disability that allow you to perform all the duties of your job, if your employer has at least 15 employees.

You DON’T have the right to be excused from any essential duties of your job, to light duty, or to accommodations that create an undue hardship for your employer.

  • Whistleblower
            You DO have the right to report illegal activities of the employer to specific government entities, to object to or refuse to participate in certain illegal activities of the employer, and to not be retaliated against for doing so. Whistleblower laws are diverse and have lots of requirements, so make sure you’re doing what is required before you report or object to the illegal activity.

            You DON’T have the right to complain about incompetence, coworkers ripping off the company, ethical violations, unprofessionalism, or general harassment without rising retaliation. Make sure you’re protected before you complain.

  • Privacy
            You DO have the right to privacy in your phone calls unless your employer meets certain legal requirements. If you think you’re being illegally recorded, contact an employment lawyer to find out your rights.

            You DO have some rights to privacy of your medical information.

            You DO have the right to not be subjected to a polygraph (except certain professions like law enforcement).

            You MAY have the right to privacy of your credit information. While many employers use credit history in their employment decisions, more states and EEOC are finding this practice to be a legal violation. It’s illegal to discriminate against you based upon a bankruptcy.

            You DON’T have the right to keep your criminal record a secret unless it’s expunged.

            You DON’T currently have the right to refuse to allow your employer to seek a credit report, but there are lots of laws in the works on this issue.

            You DON’T have the right to dress any way you want.

            You DON’T have the right to privacy in you off-duty behavior. You can be fired for things you do outside of work.

            You DON’T have the right not to be videotaped (without audio).

            You probably DON’T have the right not to have your belongings searched. Very few states provide protections. If you work for government, you are protected from being searched.

            You DON’T have the right to privacy in your workplace internet use or email.

            You probably DON’T have the right not to be drug tested. No states prohibit employment drug testing, but some do require cause for the test if it’s done while you’re employed, as opposed to pre-employment.

            You DON’T have the right to free speech. Your postings on Facebook, Twitter, your blog and other websites can get you fired. If you work for government, you have some free speech protections but they’re not unlimited.


            There are entire sections of law libraries devoted to employment laws. When in doubt, consult an employment attorney before you complain, quit, sign contracts, or sue. The laws are confusing and sometimes have short deadlines and prerequisites to suit. If you think your employer or former employer is breaking the law, make sure you get legal advice.

Department of Labor fact sheets on exemptions from the Fair Labor Standards Act http://www.dol.gov/whd/regs/compliance/fairpay/
Department of Labor fact sheet on most common exemptions: http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.htm
List of states that have required rest periods for adults, and their requirements: http://www.dol.gov/whd/state/rest.htm
List of states that have required meal breaks for adults, and their requirements: