Skip to main content
Donna Marie Ballman

Donna Ballman’s Answers

78 total

  • What rights do employees have in an work at will state?

    how do you prove that the employer fired you for an illegal reason? Why aren't we protected if it is just harassment?

    Donna’s Answer

    You’ve been fired or disciplined without justification. You want to sue for wrongful termination. 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.

    See question 
  • Are employers obligated to provide paid vacation time to full time salaried employees in Florida

    I am a salaried full time chef and have worked for my employer for 9 months without taking any time off. I typically work at least 6 days a week and a minimum of 10 hours each day. I need to take 1 week off and have been told that I will not be c...

    Donna’s Answer

    There is no obligation of Florida employers to provide any paid vacation time. If they do provide vacation time, they need to provide it in a non-discriminatory fashion though. If other full-time employees get paid vacation, they can't deny you paid vacation based upon race, age, sex, national origin, etc. and it may also be considered an employee benefit that you're entitled to if you meet the criteria.

    See question 
  • As a teacher I sign a 1 year contract with a 30 day notice period. I still am in my 90 day Probation, can I give 1 week notice?

    If they have a 90 day probation am I an employee at will and either they or I can quit without cause and I would not be held to my 30 day notice?

    Donna’s Answer

    You can quit your job at will. Although, for purposes of goodwill, I'd suggest giving notice. If they terminate you, they need to follow what the contract says. If they fire you with no notice, you'll probably want to have an employment lawyer review your contract to see if you have any rights to be paid for the notice period.

    See question 
  • Should I hire an attorney over my past employments failure to pay me correct minimum wage and under the table?

    I worked at a local restaurant for about 6 months, but for about 4 1/2 months I was never on payroll. I always asked for the paperwork and their answer would always be that they would have it the next day. Server minimum wage is $4.23/hour but i w...

    Donna’s Answer

    I'd suggest contacting a lawyer who handles cases under the Fair Labor Standards Act to see if they think you have potential claims.

    See question 
  • Can a company force my husband to sign a contract for employment?

    My husband lost his job and with the economy the way it is, decided to go back into trucking. A company offered to place him into their refresher course they paid for a ticket up to their facility and he has now been over the road for 2 months wit...

    Donna’s Answer

    Unfortunately, continued employment is valid consideration for an employment contract in Florida. If they gave him a copy, he should try to get an attorney to review it ASAP before he signs it so he understands what he's agreeing to. If he signs, the courts won't take as an excuse that he didn't understand it.

    See question 
  • Non-Compete laws in Florida

    My husband signed a non compete with his previous company. They laid him off 1 and 7mths ago. He has not been called back. The clause was for 2 years. He found a new job and was wondering if he was laid off is this still valid?

    Donna’s Answer

    His employer will say he is 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 you can’t get out of yours if you’re 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.

    You should always, in the future, consult an attorney before signing a non-compete. If he signed without getting advice, he may still have some ways to defeat his non-compete.

    1. Employer breaches the contract: If the 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.

    I'd suggest you get advice from an employment attorney and have them review the contract. If you get sued, you MUST contact an employment attorney immediately to defend yourself.

    See question 
  • I believe my age may have been a factor in not being hired

    I applied for a position at a major luxury retailer despite having a great first interview and almost 20 years of expierience for the job I applied for I was never called back. I accepted the fact that they had found a better candidate(s) but ...

    Donna’s Answer

    Since you can show that you have more experience and are better qualified than the younger employees hired, you might have an age discrimination claim. The employer will have to show that it had a reason other than discrimination for choosing these candidates. If they had experience with different products than you or had a degree that you don't have, the employer might be able to show that discrimination didn't occur. I'd suggest contacting an employment lawyer to discuss your options. If you think you were the victim of discrimination you'll have 300 days from the date of discrimination to file with EEOC, which is a prerequisite to filing a suit, so don't delay in seeking legal advice.

    See question 
  • Is a non compete enforsable, in florida, if employee is terminated prior to 90 days?

    Hired by a company as a marketer. Once company had all my contacts they terminated me. They will benefit from my short term employment and I will not receive bonus as a result of termination.

    Donna’s Answer

    This type of situation could be considered fraud in the inducement, which might be a defense to enforceability. You might also have some potential claims against the employer if they truly hired you just to take your contacts. However, Florida courts tend to be pretty harsh in enforcing noncompete agreements. I'd suggest contacting an employment lawyer to review your contract with you and discuss your options.

    See question 
  • My employer is in direct violation of statute 790.251i and searched all cars in parkinglot

    employer threatened to fire anyone who has a gun in vehicle I carry mine in the glove box and have a concealed weapons license i feel my rights have been violated and he is in direct violation including handing us a paper to sign that we can not ...

    Donna’s Answer

    I'm not sure what happened, but the answer above was by me. Here it is again:

    Assuming your workplace doesn't fall within one of the exceptions to the statute, you have a civil remedy if you are terminated for having a firearm in your vehicle at work. They are not allowed to condition your employment on an agreement not to have a firearm in the vehicle. They aren't even supposed to ask if you have one, and can't fire you for saying you have one in your vehicle.

    You can either complain to the Attorney General or you can bring a lawsuit against the employer if they've violated this statute.

    I hope this helps!

    See question 
  • Do I have any recourse regarding harassment-like conditions with a co-worker?

    I work for a healthcare agency where I work with a nurse due to us sharing the same caseload of patients. (I'm a Social Worker). An incident happened 3 months ago where the nurse wrongly accused me of something she thought I had done behind her ba...

    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, genetic information, 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.
    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 GENDER-BASED 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.

    See question