Answers Posted By Donna Ballman

Answer to Defamation in workplace


You may be able to sue your former employer for defamation of character. Defamation is where someone makes knowingly false statements, or makes false statements with reckless disregard as to their truth. The statements must be factual statements as opposed to opinion. Saying you were fired when they know you quit probably falls in this category.

Under Florida law, a statement is libelous per se when it accuses another of a criminal offense amounting to a felony, or conduct, characteristics, or conditions incompatible with the proper exercise of one's lawful business, trade, profession, or office. This means you will not have to show that the statements were made with malice.

Statements made only to you, in court, or to unemployment are never defamation. Statements to people have a direct or legitimate interest in the matter (such as to the human resources investigator or named witnesses during a disciplinary investigation) are usually privileged, which means you can't sue based on them. If the statements are made with reckless disregard as to their truth, are made outside the circle of those who have a legitimate interest (in other words, are known throughout the workplace or outside the workplace), or are knowingly false, the privilege may be waived and you may be able to sue. An example would be where a co-worker accuses you of assault, all the witnesses and the videotape confirm that it didn't happen, but you are fired for assault anyhow.

True statements are never defamatory. While truth is a defense that the person making the statements will have to prove, it is a good idea to have some proof that the statements are untrue before you file suit. Witnesses, videotapes, invoices, telephone messages, and other documents should be gathered as soon as possible.

Some people think they can repeat false information as long as they say it is a rumor or they can't swear it's true. That doesn't protect them from a defamation suit. For instance, where a corporate chairman notified the board of rumors circulating about the corporate president, to the effect that he was rumored to have engaged in an insurance kickback scheme, and the rumors eventually left the workplace and were heard at a credit union convention, the corporation was held to be liable for defamation. Where a competitor spread rumors about a businessman that he suspected the businessman was bankrupt, he was liable for defamation.

Even the implication that a person left under a cloud can be defamatory. In one case, where a lawyer was described as having "suddenly resigned," the terminology implied that he had left under a cloud of suspicion or scandal which harmed his professional reputation, and was determined to be defamatory.

If a corporation knows its employees are spreading false information and takes no action to stop them, it may be liable. If corporate officers are the ones making defamatory statements, the corporation will almost certainly be liable.

If you're not sure what the employer is saying about you, hire a professional reference checking company, preferably one that uses court reporters since it's illegal to tape conversations without permission in Florida. Once you find out what they are saying, you can decide what to do.

If you think your employer is defaming you, contact an employment attorney to discuss what you can do to protect yourself.

Donna Ballman

posted Aug 10, 2006 1:30 PM [EST]

Answer to I never received my raise from my promotion

Fraud/breach of contract

I think you have a potential claim, not only for the wages owed, but for fraud and breach of contract. The problem, of course, is that you still work there. If you tell them you don't accept the pay reduction and insist upon being paid the amount promised, they may fire you and Florida law doesn't give you much protection.

I would suggest first gently reminding them that you accepted the position based upon the letter, and ask them to live up to their obligation. If they refuse, you have some choices.

a. Ask to be put back in your old position;

b. Tell them you don't accept the pay reduction and let them fire you (at which point you are probably in a position to negotiate an exit package, maybe with the help of an attorney);

c. Re-negotiate and try to resolve the situation, and when you get the best offer, accept it and move on.

So, yes you do have potential claims. But proceed with caution where it is a current employer. Now, if they fire you or you leave, there is certainly room to go after them to get those wages paid.

Donna Ballman

posted Jul 18, 2006 08:05 AM [EST]

Answer to Cancelled contract: non-compete affecting many.

Non-compete - no legitimate interest

I had a very similar case where an employer had lost its contract and tried to enforce the non-compete. We successfully convinced the former employer that they had no real chance of enforcing the restriction where they could not find alternate employment for the employees. Because they were thrown out of work through no fault of their own, there was simply no legitimate interest to protect. Many employers are willing to either negotiate away or negotiate limitations on non-compete agreements.

Of course, you still can't use confidential trade secret information belonging to ABC.

If they really want to enforce the restriction, they ought to offer you a severance package to give you an incentive not to jump to XYZ. It certainly gives you some leverage to negotiate.

Donna Ballman

posted Jul 17, 2006 2:27 PM [EST]

Answer to Withdrawn offer

Withdrawn offer

Depending on the offer, you may have a breach of contract claim, fraud in the inducement, or promissory estoppel. Unfortunately, this type of unscrupulous behavior happens frequently in Florida. Because you have the offer in writing, I think you are in a good position to have an attorney negotiate with this employer to either live up to their promise or pay some severance to tide you over.

In the meantime, do contact the old employer and see if they will take you back. I know it hurts, and you could be told that they don't want you back, but many employers will understand and welcome a good employee back into the fold.

And there may be other factors, such as discrimination, that come into play. If it turns out the job was really open after all, and they hired someone of a different race, age, sex, religion, national origin, etc., you may have a discrimination claim.

Donna Ballman

posted Jul 12, 2006 10:02 AM [EST]

Answer to Merger nightmare - legacy employees terminated after severace package expires


The bad news is, unless you are being treated differently than others of a different race, age, sex, national origin, etc.; recently took Family and Medical Leave; objected to or refused to participate in something illegal; made a worker's comp claim; or did some other protected activity, they can terminate you for any reason or no reason at all.

The good news is that, even in a termination situation, many employers will negotiate a severance package where none was offered; or negotiate a better package if one is presented. If you are terminated, contact an attorney to see if they may help you negotiate a package that allows you to have a cushion while you are looking elsewhere.

Donna Ballman

posted Jun 24, 2006 3:06 PM [EST]

Answer to Non-compete

Non-compete issue

They can probably enforce as to the oxygen business, but not as to the sleep lab. Once they close it down, they have no interest to protect (unless they still have another one close by).

Most non-compete agreements say that they are assignable to a successor company. If it expired or is not assignable, that may be another defense.

However, the sad reality of non-compete agreements is they could still sue, and most people can't afford to fight the suit.

I suggest the best course of action is to try to work out an agreement with them to allow you to work in the sleep lab business as long as you don't solicit their customers. Many businesses will limit the restriction if they obtain advice from their counsel that the restriction is overbroad.

posted May 22, 2006 09:23 AM [EST]

Answer to Non-Compete Confidentiality Agreement

Non-compete agreement in Florida

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 Florida. Florida statutes presume that non-compete agreements are valid. 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, Florida is an at-will state. That means any employer can fire any employee for any reason or no reason at all.

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 is 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 statute allowing non-compete agreements assumes that the following are legitimate business interests:

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: For employees, a period of less than 6 months is presumed valid, and over 2 years is presumed invalid. In between, the employer will have to prove that the time period is reasonable. However, most courts will assume that agreements up to 2 years are reasonable. Some judges will find agreements under 3 years reasonable because there is a related statute finding 3 years reasonable when there is a former business owner selling a business. But anything over 2 years 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 are protected, but chamber of commerce directories are 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 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 will 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. 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 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.

Donna Ballman

posted Oct 3, 2005 12:05 PM [EST]

Answer to retaliation or whistle blowing ?

Whistleblowing in Florida

I can't vouch for other states, but in Florida you are a protected whistleblower if you object to or refuse to participate in illegal activity, which would include discrimination and sexual harassment.

There are also protections under Title VII and state law to protect people who object to discrimination and sexual harassment.

You should check with a lawyer who practices in your state to see if there are similar protections.

Donna Ballman

posted Feb 15, 2005 5:11 PM [EST]

Answer to found recording in the boss's desk

Recording employee conversations in Florida

I can't vouch for Pennsylvania, but in Florida both parties must consent to the taping of a phone conversation. Even if the recording is of a business line, the employees must be made aware that they are being recorded.

As to firing you for objecting to the illegal recording, Florida would protect you as a whistleblower if you object to or refuse to participate in illegal activity.

You should check with a lawyer to find out if your state offers similar protection.

Donna Ballman

posted Feb 15, 2005 5:08 PM [EST]


Defamation in Florida

Generally, an employer is immune from suits based upon information given in references. That doesnt mean that an employer may knowingly give false information. An employer may be sued for defamation if they make knowingly false statements, or with reckless disregard as to their truth, on matters such as theft, dishonesty, termination, criminal behavior, or discrimination. Employers may also be liable for making false statements within the corporation if made beyond the circle of those who need to know, such as during an investigation of sexual harassment.

While I practice only in Florida, the law is similar throughout the U.S.

Donna Ballman

posted Feb 15, 2005 5:00 PM [EST]

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