Answers Posted By Neil Klingshirn

Answer to Is an employers non-compete agreement enforcable if that employer knowingly and intentionally competes unfairly in the market place.

Non-competes are enforced to the extent necessary to protect the employer's legitimate business interests. If the business interest that the employer is trying to protect is illegitimate, such as the sale of drugs or dangerous products, a court would almost certainly not enforce it. Whether or not the misrepresentations made by your former employer arise to that level is a factual question.

If you are a defendant in a lawsuit, you need an attorney to protect rights. Here is an article on how to do that:

http://www.myemploymentlawyer.com/wiki/How-to-Find-and-Select-Good-Employment-Lawyers.htm

posted Aug 6, 2009 08:09 AM [EST]

Answer to I want to know if I was wrongfully terminated?

The more accurate question is whether you were terminated because you were taking FMLA leave. You are in the best position to gather evidence showing the real reason for your termination. For example, if your employer became hostile to you after, but not before you began taking FMLA leave, that would suggest that your leave motivated your discharge.

One key will be whether your employer's stated reason is true or not. If you were insubordinate or had poor work performance,then your employer may have had legitimate grounds for terminating your employment. On the other hand, if those reasons are phony and made up to cover up, then by proving that the reasons are false, you can prove that the real reason is unlawful FMLA retaliation.

posted Aug 5, 2009 7:21 PM [EST]

Answer to Is my employer required to honor promises made in writing on job offer letters?

The first issue is whether the offer letter and all of its terms, once accepted, became a binding contract. If so, the next question is the duration of the agreement. Unless otherwise stated, the agreement is at-will, meaning either party could change its terms at any time. Thus, if the offer and acceptance created a contract, it was probably at-will such that the employer could change any of its terms.

If the employer entered into an agreement to which it is still bound (i.e., the agreement is not at-will), then the next question is whether that breach will excuse you from your performance of obligations. This is an issue of state law for which you will need the opinion of a Massachusetts attorney. As a general rule, however, a breach by on party must be "material", meaning that it goes to the essence of the bargain, before the non-breaching party can elect to rescind the agreement. In this case, a two week or even longer delay in delivering a performance review is probably not a material breach of an employment agreement. That is, check with Massachusetts counsel before you disregard your non-compete based on this breach.

posted Aug 4, 2009 1:56 PM [EST]

Answer to Can employers deduct vacation time for snow days?

Vacation is pay for time that you do not work. An employer generally has no obligation to provide vacation and, when it does, it can set the terms and conditions for it's use. Therefore, an employer can generally require employees to use vacation during furloughs, shut downs or times other than those chosen by the employee.

An employer who changes an exempt, salaried employee's salary runs the risk of losing the professional, executive or administrative exemption for overtime purposes. However, requiring an employee to use up vacation due to lack of work will probably not jeopardize the salaried exemption.

posted Aug 4, 2009 08:42 AM [EST]

Answer to Overtime Question

Chris is right to be concerned about a possible exemption. Here is a wiki article on the computer professional's exemptions:

http://www.myemploymentlawyer.com/wiki/Overtime-exemption-for-Computer-Professionals.htm

posted Aug 3, 2009 09:55 AM [EST]

Answer to Can my employer pay severance to my coworker but not to me?

If the co-worker received severance because your employer had a severance plan, then you would be entitled to the severance plan benefits unless the employer modified or terminated the plan prior to the decision to lay you off.

If there is no severance plan, then the fact that your employer treated you differently from your co-worker is the very first piece of evidence in a potential discrimination claim. You have a great deal more to prove, though. Here is an article on what you need to prove unlawful discrimination:

http://www.myemploymentlawyer.com/wiki?article=58

To preview, you have to prove that the differing treatment is unlawful discrimination or retaliation. That is because of your age, race, gender, disability, religion or other protected class standard, or because you engaged in protected conduct and he or she did not.

posted Jul 27, 2009 07:21 AM [EST]

Answer to FMLA once laid off

In most cases, once your employment relationship ends, so do your rights as an employee. Thus, if your layoff results in the termination of your employment before your FMLA leave began, you will not have any right to take an FMLA leave or to return to work at the end of that leave.

Short term disability is a creature of contract and not federal law. Therefore, you need to look at your employer's short term disability plan, or a summary of that plan, to see if it is available to employees who have been laid off. You have the right to see a copy of the summary plan description and, if that does not answer your question, the plan as well.

If the reason for your layoff is the fact that you are pregnant, then the layoff itself is unlawful. In that case, you could file a gender/pregnancy discrimination claim and ask the court to order your employer to pay lost wages and reinstate you.

posted Jul 23, 2009 10:05 AM [EST]

Answer to Nepotism

I am not entirely clear on the facts. My reading of the policy is that it prohibits a relative from supervising another relative. It sounds like the step mother may be in the supervisory chain of command with respect to the step daughter and son in-law who report to you.

From a legal perspective, however, the bigger question is whether the policy is binding on the college with the force of a contract. Unless the facts and circumstances show that the college intended to be bound to this policy as though it were a contract, it may have no more force than a mere guideline. In other words, the college may aspire to live up to this policy but, if they do not, you cannot go to court and sue for breach of contract.

posted Jul 10, 2009 4:59 PM [EST]

Answer to Docking salary pay due to doctor's note

If you are an at-will employee, which means you do not have a contract for a specific period of time, your employer could change the terms of your employment on a day to day basis. So, your employer can reduce your pay or change your hours. Your option is to find a better employer.

If you are working more than 40 hours in a week without overtime, though, you may be entitled to overtime.

posted Jul 10, 2009 4:50 PM [EST]

Answer to Unemployment Questions

You will probably be eligible for benefits

You are entitled to unemployment compensation benefits if you are separated from your job, unless the reason for your separation is "disqualifying." A voluntary quit or a separation for cause are two disqualifying reasons.

Failing to meet an employer's sales or production goals in a declining economy is probably not a disqualifying reason, unless your employer can show that the goal was achievable but you no longer put in the effort to achieve it. Given your circumstances, it does not sound as though your employer would be able to prove that.



posted Jul 1, 2009 12:10 PM [EST]