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Donna Marie Ballman

Donna Ballman’s Answers

78 total

  • Does an employer have to give a reason for demotion and document it in the employee's file?

    I was demoted, there is no documentation in my personnel file, and HR cannot give me a reason for demotion.

    Donna’s Answer

    Unfortunately, Florida is an at-will state. Your employer can demote or fire you for any reason or no reason at all. However, if you were chosen for demotion when others weren't, then you might look to see if the demotion was for an illegal reason. For instance, were others of a different race, age, sex, religion, national origin, marital status, or color chosen to keep their positions when you were demoted? Or had you recently revealed a pregnancy or disability? Had you recently taken FMLA leave or made a worker's comp claim? Had you recently objected to or refused to participate in illegal activity? Had you recently reported sexual harassment or discrimination? If any of these situations had occured, then we'd look to see whether the individuals kept in their positions were less qualified or had less seniority than you; what reason the employer gave (if they won't give a reason, then they'll have a hard time later claiming they had a legitimate reason); and whether there was some disciplinary history.

    If you think you were demoted because of some protected status or activity, then contact an attorney who handles employment law to see if you have potential claims against the employer.

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  • Harrassment?

    I am an administrator at my company.Recently I was upset about dietary staff not taking a lunch and getting ton's of overtime.I tries to make a motivating comment and said "This isn't the cotten field. You get to take a lunch.You need to take a lu...

    Donna’s Answer

    A single incident like this is unlikely to cause your employer to be liable for racial harassment. However, they certainly have the right to discipline you for making a comment, however much you regret it. You probably want to apologize profusely to those investigating, and offer to apologize to those individuals who were offended by your comments. As you probably know, you should be careful in the future about the way you express yourself. As an administrator, you must be very cautious about the words you choose.

    If they fire you, then you should think about others in the same situation who have been treated differently. If other administrators of a different race, age, sex, religion, national origin, etc. made similar comments and were not fired, you may have a potential discrimination claim.

    Good luck!

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  • Employment Retention Contract

    I was recently told that my company would be reorganizing and may sell of some assets. I was asked as a key manager (1 of a few others) to sign an agreement for retention of my services and offered a modest bonus at the time one of the assets sel...

    Donna’s Answer

    If you haven't already, you'll want to have an employment attorney review this agreement with you to discuss your rights and any areas you should negotiate. I would think you would want a specific commitment on their part as to a minimum length of employment, plus a notice period for them to terminate you. Otherwise, they're having you agree not to look for another job, but they can terminate you at any time without notice. You are also going to want to make sure you're not signing an agreement not to compete with them once you leave. If you are, then you will want to be sure they give you a provision that you'll only be fired for cause or, if fired without cause, a severance package to cover the time you're out of work due to the non-compete.

    I hope this helps!

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  • Can i sue a company for lying to avoid paying unemployment

    can i sue a company for lying to avoid paying unemployment?

    Donna’s Answer

    You should appeal the decision within the time frame allowed, and show unemployment the documentation proving that they lied. As to suing them for, say, defamation, under Florida law statements made to unemployment are considered within what's called a "privilege" and the courts are unlikely to allow you to bring such a claim against the employer.

    I hope this helps!

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  • Fired from job

    I worked for a company for 16 years, as a Vice President and district manager. I was courted by a competitor for 6 months. He made me all sorts of promises and I resisted his offer, but finally I told him that my biggest concern was my age (61)....

    Donna’s Answer

    If they have at least 15 employees, there may be potential age discrimination. If they do fire you, and don't fire younger employees who are less qualified, then you may be able to prove discrimination. Same if they replace you with a younger employee. You shouldn't give into their pressure to retire if you're not ready. On the other hand, if they can show that they are in a financial situation that requires them to cut back on positions, and can show that their choice of you is based on considerations other than age (such as seniority, meeting quotas or other factors) then they can fire you for any reason or no reason at all in Florida.

    If they do let you go and offer you a severance package, you should have an employment attorney review it for you. If you feel you are being harassed due to your age, you should file a written, formal, complaint of age discrimination with HR and tell them how you are being pressured to retire. That way, if they fire you, you are protected from retaliation as well as discrimination, and you have preserved your harassment claims.

    I hope this helps!

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  • Verbal Abuse, Stressful Working Conditions, Salaried employee required to compete time sheet

    I work as an account manager for a private company since December 2005. For the past year I have been told numerous times by the owner via email and over the phone. I am the “worst account manager”, my performance is “very weak and needs improve...

    Donna’s Answer

    It sounds like you have some potential overtime claims. It would depend on whether you are classified as exempt from overtime or not. You'll probably want to speak with an attorney who specializes in Fair Labor Standards Act issues to get a definitive answer.

    On the issue of harassment, unfortunately many employees have the mistaken belief that, if they are being harassed by their employer, a supervisor, or a co-worker that they automatically have a claim against the employer. This is simply not the case. The only type of harassment that is illegal in Florida is harassment due to race, age, sex, religion, national origin, color, disability, marital status, pregnancy, having objected to illegal activity, having taken Family and Medical Leave, having made a worker’s compensation claim, because of testimony under subpoena, or having engaged in activity that is otherwise protected by a statute. If your boss is just a jerk or abusive, that is not illegal. And many small employers are not covered by these laws, so you may not be protected at all.

    The other thing that I hear way too much of is, “I was harassed, so I quit and then I told them why.” This is a frequent mistake. The United States Supreme Court says that, where an employer has a published sexual harassment/discriminatory harassment policy, the employee must report it under that policy and give the employer the opportunity to fix the situation. Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. If you did not avail yourself of the employer’s policy before quitting, you are giving up your right to sue for a violation.

    Many employees simply refuse to go back to work, even where the employer has warned or disciplined the harasser. Sometimes, the fear is justified. But it is the employer’s duty to create a safe workplace. If you return and are retaliated against or continue to be harassed, report it again. If the employer allows retaliation or continued harassment, that is the time to get an attorney involved.

    Employers will usually take accusations of this type of conduct seriously. Once they are on notice, they will be held liable if they allow it to continue, and they know it. And most employers know that this behavior is disruptive, has nothing to do with making money, and can adversely affect morale. Even if the employer takes no action, by reporting their inaction to EEOC or the Florida Commission on Human Relations, you have put these agencies on notice that this behavior is occurring. The employer will have no excuse when the harasser does it to the next employee. And in some cases, you may have a remedy.

    General harassment, bullying, and other disruptive behavior that is not addressed to an employee for a protected status or activity is not illegal. So before you write the long letter airing all your grievances against your boss, you should make sure you are addressing your protected status. If you do complain, put it in writing and call it, “FORMAL COMPLAINT OF SEXUAL HARASSMENT,” or “FORMAL COMPLAINT OF RACIAL HARASSMENT” or whatever category you fit into. Set forth the harassment due to your protected status, and be businesslike. This is not the time to air all your complaints about the business or your boss, only to air the specific complaint about the illegal behavior.

    While a long letter stating that your supervisor is incompetent or a jerk can and should get you fired, the formal complaint addressing illegal behavior should get a serious response.

    If you are harassed, make sure you understand your rights and responsibilities. Report it to the employer and give them a chance to address the situation. If they allow the harassment to continue, or if they retaliate, contact an attorney to discuss your potential claims.

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  • Salaried employee plus commission.

    I was hired as a sales rep with a base salary plus commission. The employer and I had an agreement that I would come to FL to train, then foster relationships with companies in my home state for one month, and permanently move to FL. The owner ...

    Donna’s Answer

    If you have a written offer letter which you accepted, then it is a contract. If the employer breached that contract, you may well have a potential lawsuit. If the employer unilaterally changed the terms of the contract after you started, then they may or may not be permitted to do that, depending on what the contract says about how it can be modified.

    You'll probably want to have an employment attorney review the contract with you to discuss your options.

    Other potential claims you have are unpaid wages if money is still owed to you; fraud if you were lured into the position based upon false representations; and whistleblower claims if you were fired for objecting to the failure to pay wages owed.

    I would suggest contacting an employment attorney to discuss any potential claims you have.

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  • What do I need to prove to bring a wrongful termination lawsuit against my employer in state of Fl

    What do I need to prove to bring a wrongful termination lawsuit against my employer in state of Fl

    Donna’s Answer

    Florida is an at-will state, which means an employer may fire, demote, hire, promote and discipline employees for pretty much any reason, or no reason at all. The only way to change that is to urge your state legislators to pass more protections for employees.

    That doesn’t mean there are no protections for employees. You should ask yourself the following questions to see if you might be covered under some employment law:

    Did my supervisors make any comments indicating bias? If your supervisor made racist or sexist jokes, said they thought you were too old or your disability made you unable to do the job, required you to work on religious holidays, or made other comments that would indicate a bias, you may have direct evidence of discrimination.

    Was I treated differently than others of a different race, age, sex, religion, national origin, color, or who weren't pregnant or disabled in the same situation? If you don’t have direct evidence of discrimination, you may be able demonstrate you were treated differently than those of a different race, sex, religion, national origin, age, or other protected status under the same circumstances. Try to think of people who are of a different race/age/sex, etc. and were treated differently from you. Find out if there are people who have also been the victims of similar discrimination.

    Why was I really fired? Most employees have a pretty good idea why they were fired. If you made a worker’s compensation claim and were fired a week later, that’s a good indication you were fired in retaliation for making the claim. If you reported your supervisor for Medicare fraud, and then the supervisor fires you, you may have a whistleblower claim.

    Is my employer saying something false about me? If potential employers tell you are going to be hired if your references check out, and then the job is mysteriously filled when you call back, your employer may be giving false or damaging information about you. There are professional reference-checking companies who will call for you and see what an employer is saying about you. If you can prove it’s false, you may be able to sue for defamation.

    Am I in some protected category? If you were fired after you took some protected action, you may be able to sue for retaliation. Think about whether you recently made a worker’s compensation claim, performed jury duty, served in the military, took family/medical leave, served as a witness in a lawsuit, provided testimony or evidence to EEOC, refused to participate in illegal activity, reported illegal activity, or engaged in protected free speech.

    If you believe something illegal has happened, contact an attorney to discuss the possibility that you may have a case.

    What if I don’t think something illegal happened? Even if nothing illegal happened, many employers will discuss a severance agreement with an employment attorney hired to negotiate with them. As an attorney who has been practicing since 1986 in employment law, I find that sometimes an amicable transition is the best way for both employer and employee to move on in a positive direction. If you are offered a severance package, it is best to have an attorney review it prior to signing. Many employment attorneys will work to negotiate a better package for you.

    The best course of action when terminated, particularly where you believe there was no just cause, is to contact an attorney who handles employment law to discuss your options.

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