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Donna Marie Ballman
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Donna Ballman’s Answers

78 total


  • I am owed money from a previous employer. what legal action can I take to get the money that is owed to me for services provided

    I was not paid for about 2 months because of economic troubles. In the past, he has not paid me to pay other irate employees and I got paid a few days or weeks after. This time I am owed over $7k. I have tried to contact the employer and no respon...

    Donna’s Answer

    You may want to contact an attorney who handles Fair Labor Standards Act cases. While the amount is too big for small claims court, an attorney who handles this type of claim may be willing to pursue a case for a smaller amount than many other attorneys. That's because they handle lots of these cases and can process them several at a time.

    You can try the Florida Department of Labor and the U.S. Department of Labor, but they're usually pretty overwhelmed.

    Good luck with it!

    Donna

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  • Are non-compete clauses valid in FL due to layoffs?

    I was recently laid off and have a new job offer in a related industry but NOT the same line of products. My new company may be acquired within the next 60 days by a parent company that DOES have a competiting division & line of products. Althou...

    Donna’s Answer

    The answer may well depend on the language of your contract, so you'll want to have an employment attorney review it. If you had no information about this product line, I'd certainly question whether or not they have a legitimate interest to protect. The easiest way to get an answer is to tell your old company, in writing, that you have a job offer from this company and tell them that you don't believe it will be in violation of your non-compete. Tell them that, unless they object within, say, 72 hours from the date of your email or fax, that you'll feel free to accept. They'll either say fine, or say they object. Then you'll know whether or not you have a big decision to make. If they say verbally they don't object, confirm that in writing and say you're accepting relying on this representation. But I'd definitely suggest getting specific legal advice on your contract first.

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  • Non compete agreement

    I have been working in the industry for 17 years; 6 with my present employer. I am a sales person and my employer wants me to sign a non compete agreement now. What are my rights ? can I refuse to sign it ?

    Donna’s Answer

    Continued employment is valid consideration for a non-compete agreement in Florida. I think that's terrible, but our legislature has so far allowed employers to fire employees for refusing to sign. If you think it's wrong, talk to your state representative and state senator about changing the law.

    I'd suggest having an employment attorney review the contract for you so you understand your rights and obligations before you sign. You may be giving up too much to make it worth signing. If the employer wants you to stay badly enough they might be willing to negotiate the terms. But you may have to decide that it's time to move on to another employer. Of course, the new employer can wait until you start, then demand you sign a non-compete too.

    Issues you need to be concerned about include what happens to the book of business you brought with you, how long and what geographic areas the restrictions encompass, is your employer's actual business accurately defined or is it overbroad, and if you're a creative person (software designer, writer, painter) are they going to try to make a grab for non-work related creative works you do on your own time while you're still employed.

    I hope this helps.

    Donna Ballman

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  • Is there any law preventing former employer demanding new employer terminate employment of former employee?

    I filed an EEOC complaint against my former employer after they terminated me. I went to work for their Authorized Contractor. After 3 weeks of employment I was terminated from Authorized Contractor upon receipt of email from former employer. Is t...

    Donna’s Answer

    You may have a case of retaliation against the former and new employer. You can't be fired for filing a charge of discrimination. The former employer may also be liable for tortious interference with your employment. You should contact an employment attorney to discuss your rights and options.

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  • What are my rights if all of a sudden a position at work is taking from you?

    i work for a company for a little over 4 years. got promoted only to find 4 months later am not trained enough. the new guy they hired to replace me doesnt seem all that trained either. what can i do?

    Donna’s Answer

    If you were treated differently than a less qualified male under the same circumstances, you might have a potential sex discrimination claim. You should contact an employment attorney to discuss your rights.

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  • How do I file a lawsuit against an employer in florida that has 15 or fewer employees?

    My boss has been sexually harrassing me verbally and physically, at one point he grabbed my hand and put it on his crotch.

    Donna’s Answer

    I agree. It sounds like battery.

    If the employer has at least 10 employees, then if you object to or refuse to participate in this activity you could also be a whistleblower under the Florida Whistleblower Act. If that's the case, you should put your objection to the repeated sexual battery in writing to whoever handles human resources issues to make sure the company is on notice.

    You should contact an attorney to discuss potential claims. And for heaven's sake, find another job. No potential case is worth subjecting yourself to a dangerous situation. Harassers tend to escalate their behavior over time if they get away with it.

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  • My job gave me a 1st and final warning without any previous issues for over 2 years,do I have any rights?

    On 02/01/2010 I was called into a meeting with the coo where she had her own assistant sit in to "bare witness" to what I quickly realized was an all out assault on my entire performance from A-Z . I just received a monetary merit award 2 months ...

    Donna’s Answer

    If you lived in New Jersey, California, or some other states, your employer would need to have cause to fire you. Not so in Florida. 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 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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  • Was termed was not told a reason why? No Rep from HR was there. Is that legal even in a At Will state?

    We Are legal Collectors we have a monthly goal I was the only one that hit my goal for Jan 2010. They conviently termed me so My goal would be null and void 2 days before the month ended

    Donna’s Answer

    They do not have to give a reason. If you lived in New Jersey, California, or some other states, your employer would need to have cause to fire you. Not so in Florida. 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 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.

    If you are working on commission, they will still have to pay you for collections. If they fired you to avoid paying you they may have some liability.

    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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  • Do I have Legal recourse for being terminated do to an emergency in the family?

    I was terminated for missing a day of work because my sister had a stroke and needed to have a brain biopsy and could have died. I spoke with the manager the night before and he said it would be okay to miss the day. He also asked me to call and...

    Donna’s Answer

    I agree. I would just add that FMLA doesn't provide leave for illness of siblings, except where you acted as the primary caregiver for the sibling (if you raised your sister or had custody of her as an example) or if she is in the military on active duty. From a non-legal standpoint, your former boss sounds like a heartless jerk. I wish that were illegal, but it's not. You should probably qualify for unemployment though, if that's a consolation.

    I hope your sister is making a full recovery.

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  • Im employed with a retail company as a manager. My supervisor came out of his office and began to yell and use profanity to me.

    He has also been caught in several lies that he told on me to our corp. office and admitted to me that he had lied to me. He also made the statment that he knew how to get someone to quit if he couldnt fire them.Do I have grounds to file a hostil...

    Donna’s Answer

    Many employees have the mistaken belief that, if they are being harassed by their employer, a supervisor, or a co-worker that they have a claim against the employer. 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 a jerk or abusive, that is not illegal. And many small employers are not covered by these laws at all.
    The other thing that I hear is, “I was harassed, so I quit and then I told them why.” This is a frequent mistake. The Supreme Court says that, where an employer has a published sexual harassment/discriminatory harassment policy, the employee must report it under that policy and so the employer can fix the situation. Remedies may be to discipline or warn, move the harasser, sometimes moving the victim, do training, or in extreme cases, terminate the harasser. If you didn’t use the employer’s policy before quitting, you’re 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. 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.
    The harasser who gets away with small violations will usually accelerate the behavior until stopped. If the employer turns their head to this type of behavior, they run the risk, once being placed on notice of the harasser’s propensity, of being held strictly liable for their behavior or even incurring punitive damages.
    The sad truth in Florida is that sexual harassment is becoming difficult to win in court. Behavior that courts have rejected as not being sexual harassment has included calling at home asking for dates, looking down a blouse, lifting up a skirt, one or two instances of groping, single instances of disgusting comments, rubbing, and all types of extreme behavior. Does the law need to be strengthened? Absolutely.
    Does this mean you should give up? Absolutely not. Employers will usually take accusations of this type of conduct seriously. 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.
    General harassment, bullying, and other disruptive behavior that is not addressed to an employee for a protected status or activity is not illegal. Before you write the long letter airing all your grievances against your boss, you may want to have an attorney look at it, or just make sure you are addressing your protected status. If you do complain, put it in writing and call it, “FORMAL COMPLAINT OF SEXUAL HARASSMENT,” o “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 illegally harassed, make sure you understand your rights and responsibilities. Report it to the employer and give them a chance to address it. If they allow the harassment to continue, or if they retaliate, contact an attorney to discuss your legal options.

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