Seven Short Q & A’s on Saturday

Question 1: When leaving a company, should I sign a non-solicit agreement? Hi, Alan. I work for a consulting firm. I was never asked to sign a non-solicit agreement, either upon joining this firm eight years ago, or since. I am now planning on joining a different company that provides services to the same client I now do work for here. Now my current employer, who I am planning on leaving, wants me to sign a Non-Solicit Agreement which contains a clause that says I would not work for the clients that I worked for here during the last 18 months. Is this a valid clause, and should I sign it?  

J.S.
San Jose, California 

The Short Answer is “Heavens, NO.” A non-solicit agreement is a loss of important employment freedom. Unless you are applying for a new job, or you will lose a job you love, or you are being paid a lot of money, you should NEVER sign one. If you do, that new employer may just not hire you. And, by the way: your description of what you are being asked to sign sounds a lot more like a disguised non-compete than it sounds like a non-solicit. DO NOT sign anything unless (a) it’s been reviewed by an attorney, and (b) it is in your interests to sign it.   

Glad you wrote in before signing,
Al Sklover

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Question 2: My employer claims my offer letter had a mistake in it; what can I do? I’ve worked for my employer for three years, and recently transitioned into a new position, with a new signed offer letter. The offer letter indicated four weeks vacation, but now they claim that was a mistake: it should have been only three weeks. What is my recourse, if any?  

R.M.
Baltimore, Maryland

The Short Answer is “Probably little.” R.M, if your offer letter included a specified term of employment, such as two years, then technically your employer would be bound by that offer letter to keep your vacation where it is for that two-year period of time. In that case, you would have leverage to insist that it honor its promises regarding vacation. On the other hand, most offer letters do not guarantee employment for any set period of time, but are “at will,” and so your employer would not be bound to keep your vacation amount set for any period of time, and so, it could change your vacation amount any time it wanted to. Most importantly, though, is that if you’ve been there three years, and have been offered what sounds like a promotion, then you seem to be a valued employee, and that is the best leverage there is. Your calmly telling your employer that the increased vacation was a motivator, and is important to you, that leverage – your feeling that you are being treated fairly – may be your best “recourse.”

Wish I had better news,
Al Sklover

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Question 3 – Can a person be forced to resign from a job if it doesn’t work out?                                                                          

Diana
New Haven, Connecticut

The Short Answer is “No.” No employer can force you to resign. And resigning might prevent you from being entitled to severance, unvested stock and stock options, and even unemployment benefits. Unless there is a good reason for resigning, I almost always recommend against it.                                                                      

Don’t be intimidated,
Al Sklover

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Question 4 – While on FMLA leave can I resign and start work elsewhere? Is it legal for an employee who was granted FMLA leave from work to give two weeks notice to a current job and start working a new job?   

Allison
Chatham, New Hampshire

 The Short Answer is “Yes, but . . . ” The FMLA law does not make anything an employee does illegal; all it does is permit an employee to take an unpaid leave of absence if needed for personal or family medical (or psychological) reasons. It does not require (a) that you return to your job, or (b) that you give notice to your employer when you leave. Those kinds of arrangements are entirely between the employee and the employer. If you intend to be “employed” by both employers during those two weeks, that could be viewed as dishonest or deceptive, and could bring about a claim for you to return any amount of benefits you were provided by your present employer during the two-week period.  

Good luck in your transition,
Al Sklover

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Question 5 – If I haven’t signed a non-compete, and don’t take trade secrets, am I free to open a competing business? After being let go from my previous employment, I am taking my experience and knowledge I learned from that employment and putting it to the test. I only signed an employee handbook that contained the rules around the work place, like lunch breaks, days off, etc. I never signed an agreement not to go out on my own, or compete. What if customers come to me, or call me for a meeting? I don’t have any customer lists. I use the saying “It’s a free country.”

Mike
(City and State Not Specified)

The Short Answer is “You Sure Are!” Mike, welcome to Free Enterprise; let the best man or woman win! So long as you are not violating a non-compete agreement, or taking trade secrets with you, such as a customer list, you are “Free As a Bird!” You can solicit customers of your former employer, and you can answer their inquiries, too. Go for it!! 

Congratulations Times Ten,
Al Sklover

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 Question 6 – Can I stop my employer from giving away my sales territory? Hi Alan! I work for a company that has no Human Resources Department. I am a traveling saleswoman who has increased sales by double digits each year since 2005. Recently, the U.S. Peace Corps pulled their personnel out of Guatemala and Honduras due to increased violence there. I cancelled my business trip to those two countries for this reason, and explained that to my boss. Now he is threatening to give away my territory to a new salesman. I can prove I have worked the territory all this time via email and skype, and sales have grown great! What can I do to stop him from making such a harsh decision?  

Sandy
Miami, Florida

The Short Answer is “Probably not.” Sandy, your successful sales work in these countries does not seem enough to have convinced your boss to keep you assigned to the territory. Unless you have a written contract that guarantees your employment and exclusive coverage of the territory, there is no way you can “force” him to keep you on it; you do not “own” it. However, you might consider a respectful, detailed memo that better explains your view of your value to the territory and, thus, to your company and boss. Just between you and me: you might also consider speaking with a competitor about working for them, instead. 

Sorry I don’t have better news,
Al Sklover

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Question 7: Is it legal to fire employees for participating in the political process? Hi, Alan . . . I just encountered this Facebook group where an anonymous employer is boasting about firing people in Wisconsin who signed a Walker recall petition. Is it legal to fire people for participating in the political process?

J.S.C.
Houston, Texas

The Short Answer is “Yes, everywhere except in a few states.” J.S.C., your question is a really interesting one. As you know, many laws prohibit employers from retaliating against employees who engage in “protected activities,” such as objecting to discrimination, or refusing to engage in illegal behavior. However, other than in a few states, including California and New York, and Washington, D.C., there are no federal or state laws that protect employees from retaliation for engaging in the political process. In Colorado and North Dakota, employees are protected from retaliation for engaging in “lawful activities outside of work,” which would probably protect employees who are politically active, too. In my 30 years of this work, I do not recall having seen a company policy that protects employees who do so, either. You would think that, in this respect, there really “ought to be a law.”  

Thanks for writing in,
Al Sklover

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Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering

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