My Employer Filed Bankruptcy. Does That Mean They Can't Enforce My Noncompete?

This question was asked on my post Non-Compete Agreements - Top 5 Ways To Get Out of Yours:

My employer has filed for chapter 11 bankruptcy and is reorganizing. Does this also invalidate their employment contracts?

Wayne

This is a good question, Wayne, especially considering how many bankruptcies have been filed in the past few years. I should first say that, being an employment lawyer, what I don't know about bankruptcy law is a whole lot. However, I'll do my best to explain why there's no easy answer to this question. If there are any bankruptcy lawyers out there who want to chime in, I'd love your help answering this.

Executory contracts: Most employment contracts appear to be considered "executory contracts," which are defined as "a contract under which the obligation of both the bankrupt and the other party to the contract are so unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other." If it's in this category, then the contract becomes part of the bankruptcy estate, which means it no longer belongs to your employer, but instead belongs to the trustee or the debtor in possession.

Bankruptcy estate: Once it is considered part of the bankruptcy estate, the trustee or debtor in possession will decide whether to assume the contract or reject it.

Contract is assumed: If they assume it, then it remains intact and the bankruptcy estate assumes responsibility for it. That means if your noncompete is part of an employment contract requiring payment of wages and other benefits, the estate has to take these responsibilities on.

Contract is rejected: If they reject the contract, then you can treat it as if they breached it on the date the bankruptcy was filed. Even if the contract is rejected, that doesn't necessarily mean you're out of the non-competition part of it though. Some courts have allowed employers to seek injunctive relief against employees for breaching a noncompete even when the contract was rejected.

One analysis of the case law on these issues is here. In short, it sounds like there's no easy out of a noncompete agreement just because your employer is in bankruptcy. I'd suggest talking to a bankruptcy lawyer in your state about your rights.

7 Ways To Protect Yourself If Your Boss Is a Bully

Last week, I answered a question from a "used and abused" reader who was facing a workplace bully. I talked about five ways that your workplace bully might be breaking the law. Today, I talk about some things you can do, starting today, to protect yourself if your boss is a bully.

Read my article in AOL Jobs for  seven things you can do, starting today, to protect yourself if your boss is a bully.

Don't Forget About Religious Discrimination When Throwing Your Office Halloween Party

Personally, I love Halloween. Adore it. I have zombies in my courtyard to scare the kiddies, and a graveyard in front of the house with various and sundry body parts poking out. Yes, Halloween is great fun for those who celebrate it. However, there are some religions that ban celebrating Halloween altogether, and some people who have sincerely held beliefs against it.

Halloween is now a pretty secular holiday, but its origins are in the Catholic religion. The Catholic holiday, All Hallow's Eve, is the night before All Saint's Day. I'm not an expert, but I believe the idea was that souls were liberated from Purgatory on that day, so celebrants would pray for the souls of the dead and hold a vigil during the night. The tradition of going door to door came from the UK, when beggars would ask for a "soul cake" in exchange for offering a prayer for the soul of the dead of the household. Earlier Pagans also had a fall holiday featuring bonfires and feasts, called Samhain, that probably influenced the Catholic celebrations, particularly in the UK.

Here are just some of the religions that don't celebrate Halloween:

• Jehovah's Witnesses: They don't celebrate any holidays or even birthdays.
• Some Christians: Some believe the holiday is associated with Satanism or Paganism, so are against celebrating it.
• Orthodox Jews: They don't celebrate Halloween due to its origins as a Christian holiday. Other Jews may or may not celebrate.
• Muslims: Many Muslims don't celebrate Halloween, again due to its origins in other religions.

I'm sure there are others. In researching this article, I came upon this telling comment about people who can't/won't celebrate Halloween: "I hate debbie downers who don't celebrate holidays, seriously they don't have to stand for anything, they're just fun." When you're dealing with Halloween at work, many celebrants treat those who have religious objections as "debbie downers," party poopers who just don't want to have fun. Even worse, I've seen situations where employees were ordered to decorate desks and come in costumes because the workplace had contests for best decorated departments. When they refused, they were criticized and threatened as not being "team players."

So, I wanted to issue this reminder to all workplaces celebrating Halloween: don't force anyone to celebrate, decorate, or dress for Halloween. Don't harass them if they don't want to participate. If someone has a sincerely-held belief, then it's likely protected by Title VII's prohibition against religious discrimination. It doesn't matter if you agree with them, think they're mistaken, or even think their beliefs are stupid. What matters is respect for the beliefs of the person holding them.

HR folks might want to give themselves a refresher on religious discrimination and harassment before the company's Halloween celebration, so they can be ready when things go awry.

5 Ways Your Workplace Bully May Be Breaking The Law

I got this question from a reader at AOL Jobs:

Hi Donna,
What action would you suggest staff take when the Executive Director of a tax funded nonprofit organization, which is overseen by a board, is abusive to staff? Staff does not have access to HR; they report to the ED who reports to the board. Some incidents have been "investigated" by one or two board members and the HR of the employer of a board member. Nothing has improved. Incidents have been the ED slapping the hand, kicking, and yelling at an employee to "go do your f****** job," commenting on how an employee is dressed, yelling at staff, "forgetting" they did or said something, not following policies and procedures consistently and speaking harshly as to show their superiority. We are at a loss as to what to do. We are not permitted to speak to any member of the board without the ED's consent. We are a small staff, under 15 employees. Suggestions would be most welcome.
Thank you.
Used and abused

This reader is dealing with a bully, which is all too common these days. A career counselor or health care professional might view things differently, but I give my perspective as an employee-side employment lawyer in my response.

I've written before about how workplace bullying is not illegal in any state. Although 23 states have tried to pass anti-bullying laws, none have succeeded. Eleven states currently have anti-bullying laws pending, but I'm not optimistic. Still, there's hope for the bullied. Bullies frequently cross the line into illegal behavior at work. Read my article at AOL Jobs for some examples of how workplace bullies may be breaking the law.

HR Says They Lost My Resume But I Think It's Age Discrimination

This was a question on my post I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?

I need some help here. I have worked for a company for 10 years. A position opened up and I applied for it. Soon after, the director said they are looking into it and a few days later a guy i trained who is younger than I am got hired. After that another position became available. I applied for it and was told they are looking into it and almost every day the director came to me and said they are looking into it. Also, HR says they never got my resume. Now mind you, this is the second time he told me HR never got my resume. I never received an email or call for this position. They kept saying.HR dropped the ball on this. I was told twice to apply to the position and.both times HR messed up. There are also 2 other guys in the same race class Ii am that got fired or moved for complaining and one of the guys filed a discrimination case against the director. Now they hired someone for the position I applied for that has no experience and I have to.train him. Is.there something I can do? 

 Roy P.

Roy, it sure sounds like you either have the most incompetent HR department around or someone is deliberately jerking you around.  I'd bet on the latter. If you are more qualified than the person who got the job, and the person hired is younger than you, then you may well have an age discrimination claim. I'd definitely suggest talking to an employment lawyer in your state about it.

Now, let's talk about some practical things you can do the next time you see a promotion you want to apply for. I'd suggest taking some steps to make sure your resume gets where it belongs:

• Send your resume directly to HR: Don't hand it to your boss, who is probably chucking it in the garbage or sending it to HR via turtle. Instead, find out who is in charge of HR and email, fax or hand deliver it to them. 
• Get proof: Make sure you send it in a way that provides proof they got it. If you fax, keep a copy of the transmission receipt. If you email, send it so you get a read receipt and a delivery receipt. If you hand-deliver it, write down the name of the person you handed it to, along with the date and time.
• Send a copy to the boss: If the director is someone who is supposed to be doing the screening, then make sure he gets a copy, again with proof of delivery.
• Follow up in writing: If you haven't heard anything in a week or so, follow up with a brief email asking them to confirm they received it.
• Update your resume: It's possible your resume is outdated or doesn't reflect all your skills and training. Make sure it accurately reflects your qualifications.

If you think your boss is the one who is tossing your resume, then you might want to report him to HR in writing. Call it a "Formal Complaint of Age Discrimination" and tell them why you think you are the most qualified, how your boss claimed HR lost the resume and you couldn't be considered, and ask them to investigate.

It does sound like the company has a history of retaliation. If they retaliate against you, it might be time to contact an employment lawyer or EEOC.

The Last Group Openly Insulted: 7 Ways to Prove Weight Discrimination

I wrote a piece in AOL Jobs called 7 Ways to Prove Weight Discrimination, which I'll excerpt below. But what I really want to talk about are the comments that showed up within a couple hours of the piece going up:

From jmasiulewicz:
"The only category of the ADA that can be voluntarily acquired. A disability by choice. Disgusting."

From rkeeeballs
"If it looks like a fat slob....it is !"

From mckdarren
"Yeah, let's encourage more lawsuits, Donna, instead of encouraging fat people to get control of their lives and health. You're a disgrace."

These jerks prove my point exactly. Overweight people are one of the last groups that Americans feel free to insult openly. Obesity has officially been declared a disease by the medical community. When will we stop treating the overweight like they are less than human?

Anyhow, rant over. Here is the beginning of the article.

In June, the American Medical Association declared that obesity is officially a disease. I've written in the past about weight discrimination and whether it's covered under the Americans With Disabilities Act. The big question is whether, now that disability has been declared a disease, the overweight will find more legal protection under discrimination laws.

Well, the lawsuits are already flying. One law firm reports that a client has been sued for weight discrimination, using the AMA's declaration in support of the claim that weight discrimination is now covered under the Americans With Disabilities Act. I'm sure there are others being filed around the country. 

So, how do you prove illegal weight discrimination? Here are 7 things you'll need to be able to prove if you want to sue for weight discrimination: 

You can read how at AOL Jobs.

Help! I'm Falsely Accused By My Supervisor. Can EEOC Help?

Hello. I was wrongfully terminated with wild accusations by new management on his first day of working. The assistant manager had said I was getting a verbal warning and that the GM had agreed. The next day on my day off I was let go. It took HR 2 weeks to even answer my calls or emails very rudely. Finally, once they contacted me, they said they were conducting an investigation. This was a month ago. I have yet to hear from them again. I have been leaving all sorts of messages not bombarding but at least one weekly. Please help. Can EEOC do anything? I understand they only seek discrimination cases but I do not know who else to turn to.

Cindy R.

Hi Cindy. I'm so sorry to hear you are being kept in limbo by HR. They probably aren't responding because they don't think the company broke any laws when you were fired. You're right, that EEOC only handles cases involving race, age, sex, national origin, color, genetic information, pregnancy, disability and religious discrimination. They don't handle discrimination based on you being treated unfairly by your boss or falsely accused of something for no reason.

However, before you give up and decide you don't have any claims against your former employer, I'd suggest asking yourself why you think the supervisor singled you out. Are you of a different race, age, sex, national origin or some other legally protected category from your coworkers who weren't singled out? If so, it's possible he was picking on you because of discrimination.

Were you accused of something that other coworkers also did? If so, were they also fired? If not, were they of a different race, sex, national origin, etc. from you? This could also be evidence of discrimination.

Discrimination isn't the only thing to think about in this situation. If you recently made a worker's compensation claim, took Family and Medical Leave, discussed working conditions with coworkers, or objected to something the company is doing that is illegal (examples could be failing to pay overtime, safety violations, anything that is a violation of a law or government regulation), then you might also have been targeted due to a legally protected status. There are all kinds of legally-protected statuses that might apply to your situation (bankruptcy, garnishment, association with a protected person, to name a few).

Other legal protections you might have, depending on your state, could be jury duty, being a witness, domestic violence victim, having a gun in your car, legal marijuana use, marital status, bad credit, and many others.

If your dispute with the manager is purely a personality conflict, then you may be out of luck. But it might be worth talking to an employment lawyer in your state if you think you might fit into a protected category.