

Friday, February 22, 2019

Can My Employer Enforce A Noncompete Agreement I Never Signed?

Many times, employees ask me if their employer can enforce a noncompete or nonsolicitation agreement they never signed. The short answer is no, at least in Florida. The Florida noncompete statute says:
(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:
(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.

So that's that, right? End of post.

Nah. It isn't that simple. Because probably 90% of the people who swear up and down to me that they never signed one, actually did. If you're the kind of person who signs that stack of paperwork HR put in front of you on your first day without reading, you very likely signed a noncompete or nonsolicitation agreement.

Plus, the noncompete provision might have been hidden in something that seemed innocuous like a "confidentiality agreement," "bonus agreement," or "stock option agreement." You wouldn't think something with those titles would restrict your ability to work, but trust me, they do. You need to read every single thing your employer asks you to sign, before you sign it, and keep a copy.

You'll notice that the statute doesn't require the employer to sign. Even if there's a blank signature line for the employer to sign, that isn't necessarily a magic wand to get you out of the agreement. Odds are, the employer has a copy they signed after you sent your signed version back. Or they'll sign it speedy quick before they sue.

The other issue is electronic signatures. Many employers have employees do their initial paperwork online, so they click something and it says they've signed. That doesn't necessarily get you out of it either. Florida has a whole set of laws on electronic signatures. Bottom line, "Unless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature." Florida has also passed the Uniform Electronic Transaction Act," which allows electronic transactions, with some exceptions. So maybe if the company messed up the electronic signature or you didn't actually check the box to sign, you have a defense.

In general, if you didn't sign a noncompete or nonsolicitation agreement in Florida, it can't be enforced. But odds are, you may well have signed and not even realized it. I'll say it again: You need to read every single thing your employer asks you to sign, before you sign it, and keep a copy.

Friday, February 15, 2019

How To Tell If You Were Targeted For Layoff Due To Age

Layoffs seem to come in waves, and I'm seeing more of them right after the holidays, and there have been some big layoff announcements. If another recession kicks in, we'll see even more. Older employees, along with the disabled and pregnant employees, are the most targeted employees in layoffs. There seems to be an assumption that the "old guys" will be retiring soon anyhow so it doesn't matter. It does. Targeting older employees is illegal.

How do you figure out whether you were selected due to your age? Here are some factors to consider:
  • Comments: If your boss makes comments about age, that's direct evidence of age discrimination. Referring to older employees as, "geezer," "old man," or "pops," may indicate age discrimination. It can be more subtle. Saying the company wants a "young image," asking questions about your energy level or saying you may not be able to keep up with the new changes can all be evidence of age discrimination.
  • Different treatment: If you are selected as one of the employees to be laid off but younger, less qualified employees are kept on, then that is also evidence of age discrimination. Let's say the position requires a certification. You have it but the younger employee is working to get it. You're more qualified. Seniority can also be a measure of your qualifications. If you've been in the position for 20 years with all good reviews and the younger employee has only held the job for a year, that's a good indication that age discrimination is occurring.
  • Different options: If you are told you have to take the severance, where younger employees are given the option of stepping down to a lower paying position, then that could also be age discrimination.
  • Disparate discipline: Since the company is looking at disciplinary history, if you are suddenly targeted for discipline for picky things that younger employees also do and aren't disciplined for, then that is another sign that you are being targeted due to age.
Sometimes, you're given the option of taking a demotion rather than a layoff. If others are offered this option but the older employees aren't, that could be age discrimination in itself. On the issue of stepping down versus taking the severance package, that's a decision you need to weigh carefully. If your retirement benefit (assuming you work for the rare company that still has one) is measured by your last year or several years' pay, then you may want to go for the severance package if offered. On the other hand, if you aren't vested or can't retire yet and only have a few years left, stepping down may be the best option. This might be a good time to meet with your accountant or a financial planner to discuss the best options for you.

If you think you're being targeted due to your age, talk to an employment lawyer in your state. Sometimes age discrimination can give you leverage to negotiate a better severance package.

Friday, February 8, 2019

Age Discrimination In Hiring Is (Mostly) Illegal. Here Are 3 Ways To Prove It

The 7th Circuit Court of Appeals says it is not illegal to refuse to hire older employees. They followed the 11th Circuit in this. Fortunately for those of you not living in Illinois, Indiana, Wisconsin, Florida, Georgia or Alabama, age discrimination in hiring is still illegal under Federal law, until the Supreme Court says otherwise. It's also still illegal here in Florida and other states that have their own anti-discrimination laws that include coverage for applicants.

So you weren’t hired for the job and suspect age discrimination. But how do you prove it? Here are three ways you can prove you weren’t hired due to age discrimination:

Direct evidence: The interviewer made comments about your age indicating bias. Maybe they asked, “Aren’t you getting close to retirement?” or “How much longer do you plan to work?” Or your age wasn’t disclosed in your resume but when they see you they ask, “How old are you?” or “What year did you graduate?” Or maybe they said something really dumb like what EEOC says happened at Seasons 52: "Unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees and telling applicants that Seasons 52 'wasn't looking for old white guys.'' That stuff cost Seasons 52 $2.8 million. While direct evidence is rare, it’s great stuff.

Disparate treatment: You are clearly the best qualified candidate. The ad calls for a Master’s Degree in Finance and you have a Doctorate in Finance. The person hired has a B.A. in Psychology. If you can prove that you were the more qualified candidate and that the person who was hired was younger, then you have what’s called a prima facie case of age discrimination. It would be up to the employer to prove that they had a legitimate reason other than age. That doesn’t mean they couldn’t prove there was another reason besides age discrimination, but it’s certainly enough to talk to a lawyer about.

Disparate impact: Even if you don’t have evidence that the employer intended to discriminate against you based on age, there could be hiring requirements that have a disparate impact on older employees and that don’t have a real relationship to the job. For instance, if you’re applying for a legal secretary position, a requirement that you have 20-20 vision without glasses or be able to run a mile would have a disparate impact on older employees (and the disabled, but I won’t get into that). The requirement wouldn’t be justifiable by any business necessity. However, if the requirement is that you be able to type 60 words a minute, that could be a legitimate job prerequisite.

If you can prove any of these three things, then it’s time to either file a charge of discrimination with EEOC (yes, you can do this unrepresented, just like you can file a lawsuit pro se or do surgery on yourself if you want), which is a prerequisite to filing a lawsuit for age discrimination or, better yet, to contact an employee-side employment lawyer in your state about your rights. I'd suggest filing even if you live in one of the six states covered by these terrible decisions, just in case the Supreme Court decides otherwise. You can also check out your state law and file with your state agency if your state law covers applicants.

Friday, February 1, 2019

If My Office Is Closed Due To Snow Or Ice, Do I Get Paid?

It's that time of year again. With 75% of the country getting hit by the polar vortex, I thought I'd better re-run this ever-popular and necessary piece.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in in an area declared a disaster area, you may qualify for disaster unemployment assistance. I don't think any areas have been declared yet, but here's where to start searchingto see if you can get disaster unemployment assistance.

If you’re hit or have already been hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

In the meantime, here in South Florida, I've had to drive with my convertible top up due to temperatures in the 50s. Sad.