Noncompete Answers: Am I Bound If My Employer Violates FMLA?; Wages Cut Right After Signing; Can They Restrict My Livelihood?

Having received more questions on noncompete agreements than any other issue, I can only assume that more and more employers are imposing these contracts on employees all over the country. There are lots of defenses to them, but defending takes money. I continue to hope that some legislators will wise up and help their constituents escape indentured servitude, or that some attorneys general will start fighting illegal noncompetes with antitrust laws. In the meantime, I'll keep trying to answer your questions. I encourage anyone who is being asked to sign one, or whose ex-employer is trying to enforce one, to contact an employment attorney in your state for advice. Here are my general answers (not legal advice) to some more non-competition agreement questions:

If My Employer Violates FMLA, Am I Still Bound By My Noncompete?

Hi . I am a nurse, licensed in Kentucky. I had worked 6 plus years with a contact agency that was contracted to the state. My question is this - when an agency is contracted to such an entity, do they have to follow the state's policies and protocol for discipline? I had been a very well respected and appreciated employee that had been contracted to the same entity for over 12 years. When I was both working full-time and caring for my dying Father at home, I had periods of tardiness, which was never a past problem. I was ultimately released by both the Vendor and my agency. My question is this - was it not my agency's place to request - on my behalf - FMLA? I did win my unemployment case.Would I still be bound to my former agency's full non-compete ? 

Gloria L.

Hi Gloria. I'm sorry to hear about your father and the loss of your job all at once. As to the noncompete agreement, there's a defense to enforcement called "unclean hands." This defense means that if your employer wants to keep you from working for a competitor, they must have acted ethically and in good faith. If they broke the law or did something wrong to you, then a court might be persuaded not to issue an order that you can't work for a competitor.

As to whether they have to follow your state's policies, that will depend on their contract with the state. Does that get you anywhere in defending against a noncompete agreement? I don't know how, but it's possible maybe you'd have a wrongful termination claim in your state if they were bound by certain procedures.

Now, let's talk about that FMLA claim. You have to notify your employer of your need for FMLA in most cases. That means, when you saw that your productivity was slipping and you couldn't get in on time, you should have asked for FMLA, either regular or intermittent, so you could fulfill your duties as caregiver for your father. They'd have had to grant it based on what you describe. However, you didn't ask. Should they have offered it? It sounds like they were on notice that you were a caregiver and that you were in trouble, so maybe they should have. This might be a FMLA violation. You should talk to a Kentucky employment lawyer. 

Does all of this get you out of the noncompete? Maybe. Good luck!

I Signed, Then My Employer Cut My Wages

I was asked to sign a noncompete, & when I did was informed that my wages were being cut. No wages were specified in the contract, but had I known beforehand, I would not have signed. Also, less than a week after I signed it my hours were cut & have since been cut to zero. I have since signing, been in a hostile work environment & made to feel I'm doing everything wrong. I am now at zero hours. & I also believe I have grounds for a discrimination & sexual harrassment case. 

Tessa M.

Hi Tessa. In some states, continued employment is valid consideration for a noncompete agreement. That means employers in those states can shove an agreement in front of you and say, "Sign or be fired." However, if they knew they were about to cut your wages and then cut your hours to zero, they should have disclosed it before you signed. The defense you may have is fraud.

As I discussed above, discrimination and sexual harassment might also support a defense of "unclean hands." I'd suggest talking to an employment lawyer in your state about these two defenses and any other defenses you have to enforcement of this agreement.

Is It Legal To Restrict My Livelihood?

I work in Texas and I am reviewing a Non-Competition agreement with the following stipulations:

1.3 Non-Solicitation-Non-Competition. Without prior written approval of COMPANY X management, Consultant agrees:
 

(a) For a period of twelve (12) months following the termination of this Agreement or the relationship provided hereunder, Consultant will not, either directly or indirectly, call on, solicit, or induce any Consultant or employee of COMPANY X whom Consultant had contact with, knowledge of, or association with in the course of this relationship to terminate his or her employment with Company X.
(b) For a period of twelve (12) months following the termination of this Agreement or relationship provided hereunder, Consultant will not form or hold an interest in any entity that directly competes with COMPANY X.
(c) During the term of this agreement for a period of twelve months following termination of this agreement with COMPANY X, Consultant shall not solicit or induce, any past or current customer of COMPANY X to cease doing business, in whole or in part, with COMPANY X.

Is this legal to create this kind of document--affecting a persons livelihood for an entire year? If that company lays me off can they stop me from pursuing my line of work?

Would you suggest a strategy for filling out this paperwork?

Steve C.

Hi Steve. It really depends on what work you are doing and what kind of business this is. If you are a chemical engineer developing the new formula for Coke, then I can see how they wouldn't want you to go straight to work for Pepsi or form your own soda company. You have a vital trade secret that they need to protect. They might have a legitimate interest to protect. However, if you're contracted to do their landscaping or waste removal, it's hard to imagine any possible interest they would have to protect other than preventing competition.

An agreement that is solely for the purpose of preventing competition violates antitrust laws. 

Since you're a contractor, you can always say no. If they want you, then you have the power to negotiate more reasonable terms. The time to negotiate is before you sign.

If you have a question on noncompete agreements, discrimination, whistleblowing, employment contracts or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.

6 Ways To Prove You're A Victim Of Age Discrimination

 This was a question I got from an AOL Jobs reader:

Last year they hired a younger employee and I have been working at this job for over 30 years and have always been in charge of the bookkeeping department. The new girl is head now. I am 53 years old and I feel I have been discriminated against. I got a huge raise because they were paying the new girl a ton more than what I was making. I need help in deciding whether I could win a discrimination suit.

Age discrimination is rampant in this economy. It's not unusual for older employees to be the first selected in layoffs and demotions. If you actually lose your job, getting work when you're over 50 is tough.

If a younger employee is promoted over you, that could be age discrimination. But the question is, how do you prove it? You can read my article about 6 practical ways you can prove that you've been demoted, fired, passed over or penalized at work because of age discrimination here at AOL Jobs.

Answers to Your FMLA Questions: Employer Questioning Medical Information, Second Opinions, Reduced Schedule

In my continuing quest to answer some questions posted in the comments section of some older posts, I'm answering questions today that were posted in Can My Boss Hold My FMLA Against Me?

When Can My Employer Question My Medical Information?

Hello, I found out that I was pregnant on one day, and told my manager on the next day. I found out about the FMLA forms for prenatal care visits and intermittent FMLA that could be taken for complications during pregnancy by a co-worker several days later. I filled out the prenatal care visit form, and was approved for that. I missed a day due to morning sickness that would not allow me to go into work. I called in prior to my shift starting, citing that it was morning sickness, and my midwife filled out the intermittent FMLA form for it. My employer declined it the first time because it was not filled out appropriately. I went in see my midwife a month after that absence and she went over the form with me and filled it out completely, including a referral to a physical therapist for sciatica that has been caused by my pregnancy.

They contacted the day after I turned it in and told me that they couldn't approve it for the following reasons: 1) I had not been seen by a doctor to treat me for severe dehydration due to morning sickness and 2) I had not been prescribed any anti-nausea medication. The physical therapy was also declined because 1) I had not set up any appointments yet (I was waiting until I was approved, so that my job was protected. My company has a very strict attendance policy) and 2) They said that they cannot accept a mere referral from the doctor. My case manager said she would submit it for a peer review. When I hadn't heard anything back from them for a few weeks, I called to see if I could find out the status. I was told that my case manager had made a note in the case (that was not discussed over the phone when we talked a few weeks ago) that the peer review could not take place until I had officially scheduled an appointment for the physical therapy.

I am nervous that if I do schedule the appointment, take the appointment, it may still come back declined, which could potentially leave me with no job. There had been no further contact with me to indicate that they were waiting on action from me. They had also indicated that they could not approve the day I missed for morning sickness because they are unable to approve absence for morning sickness retroactively, and that my doctor would have had to fill out the FMLA form prior to me missing that day and provide a medical statement to prove that the morning sickness was severe enough to warrant FMLA.

I am wondering if this is something employers are able to do? In my reading of the FMLA, incapacity due to severe morning sickness does not have to be confirmed or seen by a doctor. And the fact that my doctor confirmed that I had been having morning sickness for a while before then should have been enough; as well as the fact that the sciatica was placed on the FMLA form as being caused by pregnancy. Are they able to deny my FMLA request due to the reasons that they cited, or am I way off base in my understanding of the FMLA? 

Koifishy 

Hi Koifishy. Incapacity due to morning sickness is definitely a FMLA-protected medical condition. A nurse-midwife is a "health care providers" whose medical certification should be accepted under FMLA. The employer can't demand that it be done by a specific type of provider. Here's what the Department of Labor says about acceptable health care providers:

Health care providers who may provide certification of a serious health condition include:

• doctors of medicine or osteopathy authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
• podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice under State law;
• nurse practitioners, nurse-midwives, and clinical social workers authorized to practice under State law and performing within the scope of their practice as defined under State law;
• Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
• any health care provider recognized by the employer or the employer's group health plan's benefits manager; and,
• a health care provider listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.

If your employer requests a certification, you are generally supposed to provide it within 15 days of their request. It has to be complete and sufficient and turned in on time. As to the "retroactive" certification, most FMLA certifications have some retroactive aspects. If you're hospitalized for a medical emergency, you obviously can't get a certification in advance of the hospitalization. Same with most illnesses. Normally, the medical practitioner will issue a certification that says the condition started before the certification. Otherwise, how would a certification ever get done? Their claim makes no sense. However, you did wait a month to get the certification. They are supposed to request the certification, so if you didn't get it done within 15 calendar days, that may be what they are talking about.

They're also contradicting themselves. With the referral to a specialist, they're complaining you haven't gone yet. Since you're supposed to give advance notice of the need for FMLA if you can, giving advance notice of a specialist appointment is exactly what you are supposed to do. It sounds like this employer is doing everything they can to interfere with your FMLA rights. FMLA interference is illegal. I suggest talking to an employment lawyer in your state about your rights.

My Company Wants To Send Me To a Doctor For a Second Opinion

My doc just filled out my FMLA paperwork and I received the paperwork back from my company saying I was approved for FMLA and I just received a phone call today saying I have to see a independent evaluation. Can they do that if I have already been approved? Also they said my doc did not give enough information

Peepers 

Hi Peepers. I'm sorry to say that your employer is allowed to ask for a second (and third) opinion. Here's what the Department of Labor says about second opinions:

An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee.

Do I Need FMLA To Get a Reduced Schedule?

I have chronic insomnia and am on FMLA. Where I work we are on 10 hr. days (5am-3:30pm) 5 days a week. My doctor wants me on 8 hr.days (6:30am-3pm) for several months to see if this different work schedule works. My question, do I have to have accumulative FMLA time to be approved?

Cathy H.

Hi Cathy. You might be able to use FMLA intermittent leave to get a reduced schedule. The other thing you might want to do is ask for an accommodation for your disability under the Americans With Disabilities Act. A reduced schedule could be something your employer would have to accommodate. In order to deny the accommodation, they'd need to show that accommodating you would be an undue hardship. That would depend on your job, but in a big enough company they'd have a hard time showing such a hardship.


If you have a question on FMLA, discrimination, whistleblowing, employment contracts, non-competition agreements or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.

Can An Employer Force You To Quit? 5 things to think about before signing a forced resignation letter

One question I'm surprised I've never gotten at AOL Jobs is one of the most common questions I get in my law practice. That is, whether your boss can force you to quit. Sometimes, a supervisor will try to make you so miserable you'll quit, but some will come right out and say it's time to turn in your resignation.

What are your rights if your employer shoves a resignation letter in front of you and tells you to sign? Should you resign when asked?

In my latest AOL Jobs article, I talk about the top 5 things to think about before you sign a forced resignation. You can read it here.

Noncompete Answers - Company Lost The Customer Contract; Employer Owes Me Wages

On the ever-popular topic of non-competition agreements, I continue to get tons of questions. I'm answering some more today.

Is My Noncompete Agreement Enforceable If My Employer Owes Me Wages?

Q: My former employer wrote such an ambiguous non-compete that it virtually eliminates any chance of me finding any employment in my field. Plus they owe me $9500 and say they won't pay unless I provide them with proof I'm not competing.

They made exceptions to the non-compete during my employment and now say that I'm violating the agreement by continuing to do the exceptions that they allowed.

They are in Illinois - I am in Florida. 

Mr. High School

Hi Mr. High School. You raise several interesting issues, so I'll touch on all of them quickly. The one that I hear most often is whether a noncompete agreement is enforceable if your employer owes you wages. The answer is a whopping, clear-as-mud, maybe. If your noncompete agreement is part of an employment agreement that sets out your wage rate and other terms and conditions of employment, then the failure to pay those wages is a breach of the agreement. If they breached before you started working for a competitor, then the breach should eliminate your obligations. However, this may vary from state to state (and judge to judge) so I can't predict how a judge in the state where it ends up in court would see it.

If the noncompete agreement is separate and doesn't include any promises about wages, then the issue is less clear. I'd still argue that the failure to pay the wages owed negates your obligations, but the question would really depend on the specific facts and contract language. I'd suggest talking to an employment lawyer in your state about this to be sure.

If they've made exceptions to the noncompete and allowed you (or coworkers) to compete in specific circumstances or with specific companies, it will be really tough for them to argue that they have a legitimate interest to protect in enforcing the restrictions against you alone (or you now, when you've previously been allowed).

You also mention that they're in a different state than you. If the agreement says which state's law applies, then that's probably which state law you'll be dealing with. If the agreement is silent on which state's law applies, it's probably the state where you executed the agreement. Frankly, Florida law is so horrid on noncompetes that you're probably better off if you can apply Illinois law (but I'll defer to any Illinois lawyers out there who disagree.)

My Company Lost It's Contract - Can I Stay?

I got two questions on this topic. Here they are:

Hi I signed a contract with a company that states I cannot work for myself, or any other company in my line of profession for 1 yr.. My contract is up in may and my boss has moved to South America. Since being over there he has messed my wages up and hardly replies to my emails. The customers are not contracted with this company and I would like to take them on myself. If my company has gone elsewhere and I took over the duties for the customers they left behind, where do I stand?

Lee B.

Hi Lee. I answered the issue about the unpaid wages above. I'll answer your question about your company moving after the question below.

Sounds like this is more of a hot topic than I knew. I am a victim also--I started working for company x in March 2004. A while after I started, the manager's position came open and they offered it to me. I am pretty sure it was at this time they made me sign a non-compete. (I am contract labor). The company that owned the building I was working in then was purchased by another company. In 2008 this building closed down and I transferred to another building. About 6 months later I was again asked to sign a non-compete. Now the company "x" that I work has lost their contract in the building so I am being told because of the non-compete I cannot stay and do the same type of work for the new company.

I applied and was going to be hired by the company that owns the building for a totally different type of job, but they are now saying they have a "policy" that states I cannot work for them for 12 mos. then have to reapply, when I was originally told by my supervisor that I could do any other job in the building other than the services they provide. Now that has changed. So, now am waiting for an answer from the new company as to whether or not they can get me out of the non compete--which is slim to nothing chance. If not I will be looking for a new job and am restricted can't do the three jobs listed above, OR work in any of the buildings owned by current building I'm in.

I live in a rural area where there are virtually NO JOBS so I may be in the unemployment line because of this stupid non compete! I will never sign one again. 

Tired of This

Hi Tired of This. I'm tired of ridiculous noncompete restrictions too, which is why I enjoy fighting them when I can. To answer Lee and you, if your company has either abandoned a geographic area of business or lost the customer through someone's fault other than yours, such as through competitive bidding, then I think it will be really tough for them to prove there is any legitimate interest to protect in enforcing a noncompete agreement against you.

Remember, agreements that are for the sole purpose of preventing competition are illegal. They violate antitrust laws. Noncompete laws are an exception to antitrust laws. Your employer must show a legitimate interest to protect. Legitimate interests might be things like trade secrets, confidential information that's truly confidential and not available from public sources, and customer goodwill. If they can't show a legitimate interest other than preventing competition (or spite) then they should lose in court.

The problem is, most employees don't have the resources to fight if they're sued, and most new employers will just fire you if they get a nastygram from your former employer because they don't want to be in the middle of a lawsuit. I'm hoping that the Department of Justice and some state Attorney's General will start stepping up for the common man and enforcing antitrust laws against bullying employers.

In the meantime, you should contact an employment lawyer in your state about your rights.


If you have a question on noncompete agreements, discrimination, whistleblowing, employment contracts or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.

You Say Let's Talk Severance/Your Employer Hears I Quit (Or, Employees Are From Pluto, Employers Are From Uranus)

As sometimes happens when you've been practicing as long as I have (hint - I may have had a pet with a name ending in -saurus), you find yourself chatting with an opposing counsel with whom you've had many encounters over the years. These conversations can sometimes lead to some frank exchanges. I had one of these conversations a few days ago.

The topic was what it means when an employee says they want to talk about a severance package. He insisted it meant the employee had resigned. I hear this all the time from management-side lawyers, and I understand where they're coming from.

However, my clients never see it that way. I told this fellow attorney-saurus that I've never had a single client who meant they were quitting when they said to their boss or HR that they wanted to discuss severance. My colleague seemed shocked by this. "Then what did they mean?" he asked.

I had to explain that employees who say they want to discuss severance are usually making a cry for help. They've gone to the boss or HR with some dire problem. Maybe they've been sexually harassed or discriminated against. Maybe it's a bullying situation. Sometimes they've blown the whistle and are suffering retaliation. They've reported it and gotten no relief. So they say, "Fine. Let's talk severance."

What they probably mean is, "If you won't help me, you risk losing me as an employee." They're usually hoping that this final cry for help will result in some action being taken. They sometimes mean, "Rather than torture me into making me quit, let's just part ways amicably now." They're still hoping the employer will come to their senses.

I'm not sure why there's such a large communication disconnect between employer and employee on this, but my management-side colleague seemed genuinely surprised by my analysis. So I thought I'd share it.

Employers use any mention of a severance package to get rid of a complaining employee. They'll claim you quit before you can finish your sentence. And guess what? If you quit, you usually don't get severance. To an employer, severance goes to employees who have been laid off or fired with little or no cause. Quitters get squat.

So I'll say this to employers: Listen more carefully. If you like this employee, you may be able to salvage things if you act quickly. Plus, if they've just reported sexual harassment, discrimination or blown the whistle on something illegal, you might have handed them a lawsuit by escorting them quickly to the door.

To employees everywhere, be warned: If you even mention a severance package, your employer will claim you quit. Wait for them to bring it up. Then you might actually get some money to tide you over while you're looking for something else. If you were the victim of discrimination, illegal retaliation or sexual harassment, you might also have leverage to negotiate a better package if the employer fires you for reporting it.

I'm sure there are other things that employees and employers hear differently. Do you have any other examples where employees are from Pluto and employers are from Uranus? I'd love to hear them.

Old Workers Rule! (Age Discrimination Drools) - Guest Post

By Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Lawyers

Do you remember walking down the beach and seeing an older gentlemen wearing one of those delightfully tacky, yet funny, t-shirts stating, “Old Guys Rule!” You look at the shirt, then the man, and you smile thinking, “Yeah! That old guy does rule! More power to the old people!” Okay, maybe your thoughts weren't that dramatic, but you probably at least know someone over the age of 40 who still needs and/or wants to work, and who you are fond of. Or maybe, you are one of those 40+ workers declaring your own awesomeness. Since when did 40 become “old” anyway? Isn’t 40 the new 30? [Donna’s note: And here I thought 50 was the new 30.]

As a result of improving healthcare and standards of living, the number of people over the age of 60 is expected to increase to 2 billion by the year 2050. In the year 2000 there were only about 600 million people over the age of 60 worldwide. Our government has the responsibility of ensuring that older Americans are able to enjoy a decent standard of living, while contributing to society, as long as they want and are able to. The first step towards ensuring older Americans’ ability to make a living is to modify current laws that make it easy to discriminate against workers over the age of 40.

Currently, Federal Courts do not treat discrimination based on age the same as discrimination based on other categories of protected workers, such as race, sex, national origin and religion. An employee bringing suit based on one of these other protected categories only needs to demonstrate that the protected category was a contributing factor in the adverse employment decision. In such cases, the burden of proof then shifts back to the employer to show that it would have made the same decision regardless of the discrimination.

On the other hand, employees who claim that they were discriminated against due to their age must demonstrate to the Court that age was the “but for” cause of the adverse employment action.

This unequal treatment under discrimination laws appears to be changing. Just a few weeks ago, the Protecting Older Workers Against Discrimination Act (POWADA), a bi-partisan bill, was reintroduced to the House and Senate. This bill appears to have strong support from both parties and in both houses. Perhaps, this is because there are no Senators under the age of 40 and only a handful of Congressmen and Congresswomen under 40. Whatever the case may be, under POWADA, when an employee demonstrates discrimination was a “motivating factor” behind an adverse employment decision, the burden would then shift back to the employer to show that it would have made the same decision regardless of the unlawful discrimination.

POWADA would be a win for older employees who have been unfairly discriminated against in the workplace. All forms of workplace discrimination should be treated equally under the law, and POWADA would be a positive step towards making that a reality. If POWADA is enacted into law, the old guy on the beach will become that much cooler. He will now be able to keep his job, make more money, allowing him to buy a matching hat for his t-shirt! Perhaps it would read, “Old Guys Rule the Workplace.”