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Donna Marie Ballman
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Donna Ballman’s Answers

78 total


  • Do I need an employment contract?

    I have just been offered a great position working for a gentileman that manages a Hedge Fund. The position would require me to sell my home and relocate to another state. It's a big step and the uncertainty of my potential future employer's volit...

    Donna’s Answer

    Since Florida is an at-will state, an employment agreement is a great idea to protect employees. You would want a provision saying you can only be fired for cause, and setting out what cause would be. If you are fired without cause, you would want to be entitled to severance. The agreement should be for a set amount of time and set out all compensation agreed. Other provisions would depend on what you have discussed with your employer about terms and conditions. Many employers won't offer employment agreements in Florida, and those that do frequently have an "at-will" provision confirming that employment can be terminated at will for their protection. If the employer wants you badly enough, they may be willing to give you an agreement. Before leaving a steady position, I'd suggest getting an agreement, especially in this economy.

    If your employer does propose an agreement, I suggest you have an employment attorney review it for you before you sign it.

    I hope this helps!

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  • Is a non-compete agreement voided if my employer changes my pay from salary to straight commission?

    My employer immediately changed my compensation from salary plus commission to straight commission. I had no choice in the matter. My non-compete states that if I leave, I can't go to work for a competitor or one of my present employer's customer....

    Donna’s Answer

    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.

    Some other defenses you might have are:

    1. 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 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. Legitimate interests include:
    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
    2. 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 agreements up to 2 years are reasonable. There is a related statute finding 3 years reasonable when there is a former business owner selling a business.
    3. The so-called confidential information is something readily available to the public: Many companies get their sales leads from public sources. Phone books, the internet, notification services, are sources available to anyone in the industry. An employer will have to show 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.

    I hope this helps!

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  • When you are really sick and have a doctor's note for no work can an employer make you work?

    I am an RN in Florida and was in the hospital on Thursday night. They sent me home Friday morning but said due to the nature of the infection I have (and with surgery not completely ruled out) that I should not work. My boss is suppose to cover my...

    Donna’s Answer

    If you've been employed for at least a year and the employer has 50 or more employees, you are protected by Family and Medical Leave. Get a doctor's note that you can't work due to a serious medical condition. They will have to grant Family and Medical Leave for up to 12 weeks. If you've been employeed less than a year or if you work for a small employer, unfortunately you have few protections under the law.

    The exception would be if your infection relates to a disability, in which case you could ask for an accommodation for your disability under the Americans With Disabilities Act, seeking time off to heal from your infection.

    I hope this helps!

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  • I have been working with my exisitng company for one year and 6 month and I have a non-solicitation agreetment

    During your employment and for the twelve month period following the effective date of your termination, for any reason, from the Company, you agree that you will not, either on your own behalf or on behalf of any person or entity, directly or ind...

    Donna’s Answer

    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, just because an employer forced them to sign the agreement or fired them, they are not bound by a non-compete agreement. That’s just not true. Florida statutes presume 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 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. Legitimate interests include:
    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 agreements up to 2 years are reasonable. There is a related statute finding 3 years reasonable when there is a former business owner selling a business.
    4. The so-called confidential information is something readily available to the public: Many companies get their sales leads from public sources. Phone books, the internet, notification services, are sources available to anyone in the industry. An employer will have to show 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 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 liv

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  • Do my friend have a case

    My best friend has been told that she will be laid off in March and right now she is about 6 month by the time of the lay off she will be about 6 weeks to delivery. There are a few major problems one she is 41 years old with a high risk pregnancy...

    Donna’s Answer

    It sounds like a potential pregnancy discrimination case. She'll want to contact an employment attorney with the details of what reason they've given for the termination and any disciplinary history she has so she can find out her legal rights. If the reason given is job elimination, but they're replacing her, it sure sounds like she potentially has a legal claim against them.

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  • Employment law in Florida

    I am a LPN and due to low census they have cut back on staff. There are 4of us on the same shift that was cut back to 4 days a week, 3 of us has the highest senority and pay. They did not cut back time for the RN'S even tho one was there only 4 mo...

    Donna’s Answer

    It sounds like they are concerned about the age discrimination issue. You should make a formal complaint of age discrimination in writing, and lay out for them how the older employees are being singled out for different treatment. If they retaliate against you after you complain in writing, then you should contact an employment attorney to discuss your rights.

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  • My job was eliminated. I'm 63 and heard my job went to a younger person. If I sign the sev. pkg,; can I still sue for age dis?

    Age 63, diagnosed with prostate cancer. while still employed. Co. based in MN; I live in FL.. Severence offered and need this to pay COBRA medical. If I sign severence pkg, does this release them from any liability if they offer my former job t...

    Donna’s Answer

    If you sign a release, you are releasing them from all claims, including discrimination. It probably says you can revoke within 7 days after signing, which is a legal protection that older employees get for just this reason. I'd suggest you have an employment attorney review it before you sign so you can discuss any potential claims, possible areas to negotiate, and your options.

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  • Non-compete contracts being forced or NO Pay

    Hello, I am a 1099 contractor and the person that I have done lots of work for over the past 4 years has handed out a non-compete contract to everyone for the first time last week. The employer did not even go over it and explain any of it to any...

    Donna’s Answer

    Continued employment is valid consideration for a non-compete agreement in Florida (it shouldn't be, in my opinion, so talk to your legislators about changing this). However, failing to sign an agreement does not mean you are forfeiting your commissions. They can fire you for refusing to sign. But they'll still owe you the money you've earned. You'll want to have an employment attorney review this agreement so you understand what you are agreeing to and what options you have.

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  • Can I be legally fired if I bring a lawsuit on my employer?

    I was injured in a work related accident. I believe my employer was neglagent in preventing the injury. The injury has left permanent damage to my finger to where I can no longer use it. If I bring a lawsuit against my employer do I have protec...

    Donna’s Answer

    In addition to Paul's excellent answer, that you can't be fired for making a worker's compensation claim (you need a worker's comp attorney to do this, and you can't sue - it has to go through the worker's comp procedures), I'd point out that, if you object to something illegal such as a violation of a safety law, you are protected under the Florida Whistleblower Act. After you consult your worker's comp attorney and make your claim, you'll want to talk to an employment attorney if your employer retaliates against you.

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  • Can I sue my ex boss for breaking an employment contract?

    contract stated I could not be fired without an oral,written,suspension and written termination, only received one oral, boss shows up at my home and states that she is terminating me that very day

    Donna’s Answer

    It sounds like a potential breach of contract case. You'll want to have an employment attorney review your contract to advise you of your rights and legal options.

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