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Brendan Daniel Hennessy
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Brendan Hennessy’s Answers

31 total

  • My FMLA is done Tuesday, Feb. 3. I was just notified that termination proceedings will begin on Monday. Can they do that?

    I have what is called Ramsey/Hunt Syndrome. That is Bell's Palsey along with a viral infection in my ear that comes from the chicken pox virus. I was hospitalized in November for 6 days with severe vertigo. My eyes still does not close and I am...

    Brendan’s Answer

    This is a bit of a complex area of employment law but it looks like there are probably legal remedies for your situation as suggested above. The primary assumption is that if you qualified for FMLA, then your employer has more than 50 employees and therefore would have to comply with the Americans with Disabilities Act and the state law. There is also some question as to whether you can perform the essential functions of your job or if there are reasonable and feasible modifications to your performing your job (such as part-time work). It sounds like you may be able to return to perform the essential functions of your job but you need some additional time off for your needs. If you make that request for additional time off (instead of rushing back to work) it likely will constitute a reasonable accommodation request. Your employer is required to engage in what is referred to as the interactive process under the ADA and the PHRA. If your employer fails to interact with you and fails to provide such a reasonable accommodation, then you have a legal claim which can be filed with the EEOC and ultimately in court if it does not resolve at the agency level. Since it appears your employer is not complying with its ADA obligations as of now (and there does not appear to be justification for non-compliance based on your summary), you should talk to an experienced employment attorney immediately.

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  • Can an employer SELECTIVELY enforce a Non-Compete Clause?

    As a condition of hire, I had to sign an Employment K that, among other provisions, included a non-compete agreement. The agreement purports to bar me, post-termination from working for a competitor or for active clients of the employer for a per...

    Brendan’s Answer

    Enforcement of non-competes is a fairly complex area of employment law. I likewise recommend that if you are thinking of moving to another employer, you contact an attorney focusing in employment law to review the agreement. Selective enforcement may be an issue but there may also be other issues with the agreement that give you some flexibility.

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  • I was wrongfully terminated by my former employer who violated the FMLA regulation. Is it too late to file a claim?

    Terminated during a high risk pregnancy and the employer refused to give me the paperwork for FMLA that my doctor requested. When I asked HR about it I was told their private policy superceeds FMLA and that I was costing the company money while th...

    Brendan’s Answer

    Did your employer have 50 or more employees? If so, they are obligated to provide 12 weeks of FMLA for each year served (assuming you worked there for about a year before requiring leave). The statute of limitations is generally two years for FMLA violations. Given the facts you articulate, there may be a basis for a "willful" violation which extends the statute of limitations to three years from the conduct. However, to make such a determination, an attorney would need to closely examine the facts of your case.

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  • Employer won't contest unemployment? Decision was made in my favor and now they are appealing? Can they?

    I was recently requested to voluntarily resign my employment in lieu of being terminated. Part of the severance agreement was that the company would not contest my unemployment claim (but of course, that the decision was up to the state.) I filed,...

    Brendan’s Answer

    I don't disagree with the other poster but I would not be surprised if the employer's right hand does not know what the left hand is doing. They will probably withdraw the appeal when they realize that the company agreed in writing not to contest benefits in your case. Often, the HR folks involved in U.C. benefits are not aware of severance provisions. Your lawyer should be able to get this resolved easily for you by reaching out to the company ahead of the hearing. If not, then I agree with the above.

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  • Is my non compete agreement valid if fired in pa.

    I was terminated from my job because of an old back injury and could not perform my job duties.

    Brendan’s Answer

    The answer to this question depends on the specific circumstances. While a non-compete may be valid in Pennsylvania if reasonable, there is case law to support that it should not be enforced in equity where an employee is terminated for performance reasons. In brief, appellate courts have reasoned that if an employee is deemed to be "worthless" to the employer, in fairness, it should not keep the employee from obtaining employment elsewhere. As mentioned, however, the outcome is fact specific and you should consult with an employment lawyer on how to proceed, especially given that you state you were terminated due to a back injury and there may be other potential issues for an attorney to explore.

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  • Is this non-compete enforceable?

    My non-compete states I cannot contact any customers or prospects of my employer (regardless if they were my customers or prospects) for 15-months post-employment. Additionally, it says if my employment is terminated for any reason voluntarily or...

    Brendan’s Answer

    This is a really complicated area of law and there are a variety of issues that could be explored, such as, whether the non-compete is enforceable in full or part, what state law governs the agreement, the breadth of the non-compete and whether it expressly includes suppliers or partners in its language. If you are contemplating an employment move or if you are concerned about the future given this non-compete, you should consult in-person with an attorney and go over the provisions of the agreement and the applicable law.

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  • Offer on the table from my prior employer. My lawyer says to take it but I dont want to settle. Would going to mediation help?

    I think my lawyer wants the easy settlement and doesn't want to work with me anymore. I have a second opinion where that lawyer says shouldn't settle for any less then 1 year salary. Problem is, he wants 2K up front which I don't have. If I set...

    Brendan’s Answer

    A settlement is a compromise by its nature. You may be happy moving on and accepting whatever it is, even if it is only 1/10 of a year's salary. Your attorney can always make a counter if you think it is worth more. If the other side will not offer more, hopefully your attorney has appropriately informed you of the risks and costs of moving forward versus the potential award to allow you to make an informed decision. As to the other attorney, telling a prospective client (who is currently represented by another attorney) outright that they should not take less than a year is at best irresponsible. Ask him for a formal opinion in writing based on an analysis of the facts and law that the case is worth at least a year and see what he does. Sounds like you might need a third opinion.

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  • Can my company (hospital) fire me after I have recently returned from achilles surgery?

    After 32 years on the job, I needed surgery on my achilles. I had the surgery returned within the 12 week window they require, under the doctors note that said I cannot be on my feet for 8 consecutive hours and needed 1 hour of seat time. After tw...

    Brendan’s Answer

    Sounds like suspicious timing to me. You might have an FMLA/ADA retaliation claim. You should contact employment counsel immediately.

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  • I was hired by a large multi national company about 10 months ago. I am female. Another female who had formerly been

    the manager of my department occupied a desk near mine and worked in my department. Her exact role was not clear. I'd reported on this woman some odd behavior of a sexual nature to my manager, and she'd gone to higher ups. I was then told by co...

    Brendan’s Answer

    It sounds like you may be suffering retaliation for reporting same sex sexual harassment. You can report this internally to HR or to whatever authority is identified in the reporting procedure which is likely set forth in your employee handbook. If you don't get relief, you may want to retain counsel.

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  • What do i need to do so that i can get my unemployment benefits which were denied?

    i missed work due to carbon monoxide in my home, my children and i were in the hospital, i reported the incident to my job, i was told by my supervisor call the job soonest i felt better, when i called they didnt have any clients at the agency, i ...

    Brendan’s Answer

    You will likely receive a Notice of Determination denying benefits. Notices of Determination typically identify the time by which you must file an appeal and how to file it. After you appeal the denial, you will likely be given a hearing before a Referee. The issue will likely be whether your former employer can establish that willful misconduct supported your discharge. Even if a policy violation (e.g., attendance infraction) is established, you will have an opportunity to establish good cause for your actions. I strongly recommend that individuals hire an attorney at these hearings since they are evidentiary in nature and governed by rules of evidence.

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