Five Short Q & A’s on Saturday

Question 1 – Employer Misconduct after Employee Leaves: Is it legal for a former employer to continue sending emails from former employees work accounts, pretending that the former employees are still working for the company?

Grand Rapids, Michigan

The Short Answer is “Basically, No.” State laws regarding false communications vary a great deal. What I can say with confidence is that the practice you describe (a) is a false, deceptive and fraudulent misrepresentation to its recipients, (b) a misrepresentation that is potentially damaging to the employees whose names are being used without their consent, and (c) potentially criminal. I’m also pretty confident that a letter sent to the employer telling them that what they are doing is going to be reported to the recipients and the local district attorney would likely put an end to it.

Always protect your name,
Al Sklover

Question 2 – Reason for Employment Termination: Dear Alan, My employment was terminated due to a delay in my employer getting an industrial security clearance for me. My employer told me that it just could not wait any longer, and that my job responsibilities required this clearance. The security clearance is in process. Can my employer terminate my employment on this ground? What can I tell prospective employers about why I left? Thank you in advance for your help and consideration.

San Diego, California

The Short Answer is “Yes,” and “The truth.” There is nothing illegal or improper with an employer terminating an employee because a security clearance had not yet come through. As you didn’t do any wrong – it was neither poor performance nor misconduct – I suggest you tell prospective employers the truth: there was a delay, and it had nothing to do with you. I might suggest you ask your former employer to vouch for that being the truth, and also ask whether the security clearance process can be completed, so if a position opens up, you could fill it immediately. Remember: You did nothing wrong, so you have nothing to fear from the truth.

Hope you get back to work soon,
Al Sklover

Question 3 – Negotiation Limits: My employer tried to terminate me without good reason. Instead it used false reports of errors in my work, and used information that was not accurate. I’ve reported this to the federal Equal Employment Opportunity Commission (EEOC), and the Louisiana Office of Human Rights, to protect my rights. I never signed a separation agreement. Financially, what can I negotiate if they offer me my job back?

Denham Springs, Louisiana

The Short Answer is “Generally, what you have lost.” In a negotiation, if you have sufficient leverage, there’s no limit to what you may be able to receive. However, when employees submit complaints to federal or state discrimination agencies employers usually limit what they offer in settlement to what they believe they may be directed to pay. In your matter that means that you could negotiate for (a) the pay you lost before being reinstated, (b) the benefits you lost before you were reinstated, (c) expenses you incurred in seeking new employment, and (d) expenses you incurred connected with filing the complaint (including legal fees and filing fees, if any.)

Hope your case goes well,
Al Sklover

Question 4 - Job Offer Withdrawn: I was offered a job for six months as an independent contractor, but that offer was rescinded for no reason. I did not take another job offer from a different employer that was offered to me because of this six-month opportunity. Is there anything that I can do?

City and State Not Listed

The Short Answer is “Perhaps, depending on more facts.” (a) Your email did not mention what state you live in, (b) Nor did you mention whether you accepted the six-month job offer, or (c) If you had started the job (although it suggests that you had not.) You do have legal recourse for breach of contract, and have a good chance of collecting the six months pay, but only if (a) your state law recognizes such breach of contract, which most do, (b) you accepted the offer, and (c) you had started the job. If any of (a), (b) and (c) is “no,” then you don’t have legal recourse.

Hope that helps,
Al Sklover

Question 5 - “Breaking” a  Non-Compete: I am an insurance broker in Delaware, trying to “break” a non-compete agreement. My question is this: can I break it if the owner has done some questionable things regarding comingling of money from his real estate company with money from the insurance company. Also, he has not paid commissions, is a willing partner in allowing an employee to forge a W-2 statement and other problems, too. 

Middletown, Delaware

The Short Answers are “Yes, you can, if he had ‘unclean hands’ with you.” To enforce a non-compete agreement, a person has to go to Court and ask that the Court issue an Order stopping you from continuing to violate the non-compete agreement. However, if the person has not been “fair,” “equitable,” or “proper” with you – in law, that is called “The Doctrine of Unclean Hands” – then the Court will not help him. In effect, the Court will say this, “Don’t come to me claiming you demand the other person be fair to you, if you have “unclean hands” yourself. [I’m not licensed to practice law in Delaware, but I believe it is likely Delaware recognizes and follows this doctrine.] You just might remind the owner of this legal doctrine. It is among the most effective ways to “break” a non-compete agreement.

Good Luck in your efforts,
Al Sklover

Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. 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.”

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© 2011 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.