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Donna Marie Ballman

Donna Ballman’s Answers

78 total

  • Is it legal in the state of Florida to have employees sign a 2 year no compete clause?

    My husband used to work for a lawn service company that sold lawn maintanance plans. He was asked to sign a no-compete contract that was for 2 years. But I was told that a 2 year contract wasnt legal. Is this true? And is there anything we can do ...

    Donna’s Answer

    Two years is possibly legal in Florida. However, there are lots of defenses to enforcement of non-compete agreements. His employer will say he's bound by his non-compete agreement . Most employees don’t have the will or resources to fight. Many think, if employers forced them to sign or fired them, they are not bound by a non-compete agreement. That’s not true. Florida statutes presume non-compete agreements are valid.

    That doesn’t mean he can’t get out of his if he's willing to fight.

    Usually the employer sends a letter threatening to sue the employee and the new employer, and the employee gets fired from the new job, even if the new employer knew about the non-compete. Unless you have a contract with the new employer saying you can only be fired for cause, and that the non-compete with the former employer is not cause, Florida is an at-will state. That means an employer can fire you for any reason or no reason at all.

    Here are some ways to defeat a 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, your attorney should go through it line-by-line. If the employer breached the agreement by not paying all compensation and benefits due, or failing to meet some other obligation, the employee is relieved of the contract.

    2. No interest to enforce: It is common for employers to overreach their legitimate business interests. An employer has no legitimate interest in enforcing a non-compete against receptionists and clerical employees. An employer who manufactures software for accountants has no interest in preventing an employee from working on software for doctors. An employer phasing out of an area has no interest in preventing an employee from working in that area. An employer who abandons a customer, area of business, or product has no 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: 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. 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 available to the public: Many companies get their 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. 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/health areas.

    I tell people to assume their non-compete agreements are enforceable, and not to sign them unless they can live with the restrictions. But an employee with the time, will, and resources to fight can frequently limit or eliminate their non-compete provisions.

    An employer who loses a non-compete suit will pay the employee’s attorney’s fees and costs, and may be liable for tortious interference if they cost the employee a job.

    If he is sued, he MUST contact an employment attorney immediately to defend him. He may want to have an employment attorney review his agreement for him and discuss his options.

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  • Can i sue my previous employer for wrongful termination?

    i was fired from my job as a customer service rep at a large video rental store back in december. i was taken into the back room and threatened with jail time unless i signed a paper saying i stole some energy bars. i signed it because i was scare...

    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 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.

    I hope this helps!

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  • If i was bullied and berated during my training period on a new job, and was eventually fired by this bully, do i have a case

    during training, my manager screamed and used profanity at a customer in front of a store full of customers. i made a comment to another employee who had been there for 2 years, asking if this was a common practice for this manager to do this. Th...

    Donna’s Answer

    If she bullied you due to your race, age, sex, religion, national origin, disability or other protected status, you might have claims. However, Florida is an at-will state, meaning you can be fired for any reason or no reason at all. And bullying, unfortunately, is not illegal here. You may want to contact an attorney if you think you're in a protected category. I hope this helps!

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  • If a company goes bankrupt and becomes a new LLC can they hold previous employees to a non-compete agreement?

    I don't think the company is very scrupulous and does shoddy work so I think I would prefer to work for myself.

    Donna’s Answer

    If the new company is a successor, in other words, bought out the old company, they may be able to enforce it. If the old company is simply out of business, and the owners opened up a new company doing the same thing, they probably can't enforce it. There are lots of defenses to non-compete agreements in Florida. You will probably want to have an attorney review your contract for you to advise of your options.

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  • Problem on my job.

    A employee at my job is trying to get me fired, because she does not like me. What can I do about it. She tell lies on me

    Donna’s Answer

    If she doesn't like you due to your race, age, sex, national origin, disability, age or other protected status, then you should complain to HR about being harassed due to that protected status. Otherwise, bullying isn't illegal in Florida. The only thing you can do is report her behavior to HR to get it on record. In Florida, anyone can be fired for any reason or no reason at all.

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  • Can my company fire me for leaving on a vacation that they were aware of upon hire?

    I began working at a company here in Florida 2.5 weeks ago. On my first day I explained to the supervisor that I had arranged a trip to NY for 5 days for my anniversary and a trip to Central America for another 5 days . These were planned much in ...

    Donna’s Answer

    If others of a different race, age, sex, national origin, marital status, religion or other protected category were allowed to take vacations and not fired, then you may have a discrimination claim. If you left another job in reliance upon the representation that you would be allowed to take the vacation, there may be a fraud claim.

    I would suggest contacting a Florida employment attorney to discuss the matter further.

    I hope this helps!

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  • Is it legal in Florida to only cut some employees pay and not all employees?

    Because of the downturn in the economy we are looking at ways to save money. One way has been to cut salaries but they are only looking at cutting the female employees in the office not the rest of the company. I understand Florida is a right to...

    Donna’s Answer

    It depends on whose salaries they are cutting. You say it is only the females. Are there men in the same position as the women who aren't being cut? If so, then you may have a sex discrimination claim. What's harder is if only women are in that particular job classification. I'd suggest running the facts past an employment law attorney.

    I hope this helps!

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  • While on FMLA, can an employer terminate an individuals citing workforce reduction? F

    While I was on FMLA, my employer asked me to come in. I was advised that due to workforce reduction that my salary position would be reduced to a hourly position, and would I be interested in the position? I advised them no, and thereafter; termin...

    Donna’s Answer

    If others who are in the same position with less seniority or less qualification than you were retained, then this may be illegal. I would find a one person layoff particularly suspicious. However, an employer can do a bona fide layoff during a FMLA leave. If the position remains and all they did was cut your pay, that may also be illegal unless they did it across the board.

    I hope this helps!

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  • What are my rights as a parochial school teacher regarding verbal harassment and e-mail insults and threats.

    I work for a parochial school system and for the last several months a verbal harassment situation has escalated . I have been confronted by a few other teachers ( who asked to be anonymous ) with their concerns regarding the situation. A week ag...

    Donna’s Answer

    General harassment and bullying aren't illegal in Florida. If they are singling you out due to your race, age, sex, national origin, disability, marital status, religion, whistleblowing, worker's comp claim or other protected status, you have to report the illegal harassment to HR. I suggest you report it in writing so you have proof you reported something other than just "harassment." Call it "FORMAL COMPLAINT OF RACIAL (or whatever category) HARASSMENT" and make sure you keep a copy. Ask them to investigate and take prompt action to correct the situation.

    If you report general harassment, you aren't protected under the law from retaliation, including being fired. If you report illegal harassment, then you are protected from retaliation as a general rule, assuming the employer has at least 10 employees (15 if you are reporting discrimination).

    I hope this helps!

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  • Is it illegal to fire someone because of their background even though they did a full background check.

    I was working for this company for a year and a half and they fired me saying it was because of my background but they did a full background check out and said it came back good. I didn't get into any trouble prior or after the application.

    Donna’s Answer

    I guess it depends on what they mean by background. If they fired you because of your race, age, sex, disability, national origin, association with a person with a disability, whistleblowing, testimony under subpoena, worker's comp claim, or other protected status, you may have a remedy. Otherwise, in Florida they can fire you for any reason or no reason at all.

    If it is because of an expunged crime, then I would want to know how they got the information. While it's not illegal for them to fire you for an expunged crime, it is illegal for them to obtain expunged records.

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