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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6692
Experience:  Significant experience in all areas of employment law.
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Hello--I would like to make a possible job recommendation to

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Hello--I would like to make a possible job recommendation to a former boss. I signed a separation agreement at my former job (where I worked for him) a year or so ago (june 29 2012). Is it possible for me to send him a brief email giving him a link to a possible place of employment w/o risking a breach of this agreement or effecting him adversely regarding it? Is there a time limit for the period *after* I have signed it on the conditions of this agreement? He left the company in March 2013 but is now a "former employee" The agreement(signed a year ago) includes this clause:

6. You agree that you will not provide consulting advice or counsel to or otherwise cooperate with or assist employees, agents or independent contractors, or former employees, agents or independent contractors of the Company to pursue legal actions against the Company or its owners, stockholders, agents, directors, officers, employees, representatives, attorneys,divisions, parents, subsidiaries, trustees, predecessors, successors or assigns (together, "the Releases") on or in connection with any matters relating to their employment or the termination thereof. You further agree that you will not participate, directly or indirectly, as a party, witness or otherwise, in any action at law, proceeding in equity, or in any administrative proceeding in which Releases or Releases' personnel are parties or attempt to offer into evidence against Releases or Releases' personnel any fact of or concerning any act or motion of Releases or
Releases' personnel prior to the date of this Agreement, unless compelled to do so by force of law.
Submitted: 9 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 9 months ago.
Good afternoon and thank you for entrusting me to assist you. My name is XXXXX XXXXX X will do everything I can to answer your question.

To be clear, are you requesting a recommendation from your former boss for a job you are applying to and you are both former employees of the company at which you signed your separation agreement? Or are you wanting to provide a recommendation FOR your boss?

I very much look forward to helping you on this matter.
Customer: replied 9 months ago.

I want to provide a link to a possible place of employment FOR my boss. I am also interested in whatever way it would be OK and appropriate to be in touch with him professionally. Yes- we are both former employees for the company at which I signed the agreement.


 


Thank you

Expert:  Patrick, Esq. replied 9 months ago.
Thank you very much for your clarification.

First, unless the agreement specifies a term of duration, it does not expire and exists in full force and effect without limitation indefinitely.

That said, the terms you have quoted would not impose any limitation on the ability of a former employee such as you to aid another former employee in finding or securing a job. The provision you have quoted relates strictly to limiting your ability to participate in any fashion in legal actions brought by other emloyees against the company. The agreement would not prevent you from communicating with other former employees regarding non-legal issues, such as applying to other jobs, or communicating for any personal non work-related reasons.

Thus, there would not typically be anything wrong with you providing the sort of assistance to your former boss that you have described insofar as the prohibitions and limitations set forth in your separation agreement.

I hope this assuages your concerns and helps you proceeding forward. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.
Customer: replied 9 months ago.

Hi Patrick-


 


Thanks for your answer. An incident occured about 2 months after I signed that agreement in which a former employee called me about the company and I tried to "warn" my boss by sending him an email about the call. Obviously this was a huge mistake because the interpretation was that I might be participating in the former employees legal actions (which I was not). My boss at the time-the gentleman I refer to above--sent me a warning on behalf of the company. I have gotten messages that I am not allowed -per the agreement--to communicate *at all* w former and current employees in matters of "employment" and "termination". Here is my former boss's warning to me:


The email was Titled:


Communication with Current and Former [company] Employees


Mary, through your recent voicemail communication and email, where you confirmed contact with both current and former employees relating to their employment and termination.


We consider this a serious breach of the Separation Agreement which you signed on your release from [company]. (I have cut and paste section 6 of agreement which specifically addresses this)


Should any further incidences of this behavior come to our notice we will seek the legal recourse available to us under the law.


 


Look forward to your answer--your first one suggests something different than I have understood until now.


Thank you!


Mary

Expert:  Patrick, Esq. replied 9 months ago.
Thanks for your reply.

Your employer can interpret your separation agreement in any unreasonable or overbroad manner that they want--that doesn't make their interpretation legally enforceable.

From my perspective (and I would imagine the perspective of any reasonable judge), the agreement clearly restricts you only from participating (in any manner) in "legal actions against the Company...on or in connection with any matters relating to their employment or the termination thereof."

It sounds like your employer may be misreading that last part ("in connection with any matters relating to their employment or the termination thereof") as operating independently from everything else. In other words, that you cannot communicate with other employees in connection to ANY matter regarding their employment or termination. But such reading is out of context as it fails to take into account the beginning of that same sentence.

The beginning of that very same sentence makes it clear that the prohibition is on assisting other employees in LEGAL ACTIONS. Looking for or applying to a new job is not a "legal action," and as the provision clearly relates only to prohibitons on assisting employees in LEGAL ACTIONS related to "their employment or the termination thereof," simply helping an employee find a job is not a breach of the agreement.

Moreover, "employment" arguably means employment with your former employer, not ALL conceivable employment by any other company for the rest of the employee's professional career. This is another reason why your former employer's interpretation of your agreement is so unreasonable.

Does this means your former employer won't sue? It does not. People bring unsupported and baseless legal actions all the time. They are almost always dismissed early on in litigation, but the defendant has to file an answer to the complaint and a motion to dismiss, and those things cost money. While defendants who successfully dismiss "frivolous" lawsuits may be entitled to attorney fees and costs, there is no guarantee of that, and so the risk of even a meritless lawsuit is still something you should consider when deciding how to proceed forward.

While I cannot predict the likelihood that you will be sued for a baseless reason, I can tell you that the provision you have quoted clearly prohibits assisting employees in lawsuits regarding their employment or termination, it does not generally prohibit contact with employees regarding "employment."

I hope this helps. Please let me know if I can be of any further assistance.
Patrick, Esq., Lawyer
Satisfied Customers: 6692
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 9 months ago.

Hi Patrick--


If ok -- I would like to ask one more thing --part of where my confusion is:


 


Quoting you from above:


" the agreement clearly restricts you only from participating (in any manner) in 'legal actions against the Company...on or in connection with any matters relating to their employment or the termination thereof.'"


 


Is "any manner" receiving a phone call from a former employee who asked about how he was let go? Is "any manner" receiving the call at all/ or answering his question?


 


I think this is where my mistake night have been--in the interpretation of "assisting" stated in the clause....


But I'm not sure.?


 


Thank you!


Mary

Expert:  Patrick, Esq. replied 9 months ago.
Mary,

It's my pleasure to address your followup question. I think this is much more borderline than assisting an employee in finding another job.

In telling an employee the reason why they were let go, you are conceivably giving them information they can use in connection with a lawsuit for unlawful termination. That's what your agreement is seeking to prevent--any assistance in bringing a lawsuit relating to employment or termination.

Obviously, you are not actually assisting in litigation, testifying as a witness, or anything like that, but since your answer to this question may conceivably still help a former employee in taking legal action against the company, a very broad reading of your severance agreement would support the argument that this constitutes a breach.

Again, this is distinguishable from helping an employee find another job. That has nothing to do with taking legal action against the company and so is permissible.

I hope this makes sense.
Patrick, Esq., Lawyer
Satisfied Customers: 6692
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 9 months ago.

Yes-- thanks Patrick-- this is what prompted my former boss' email.


 


Actually-- I did receive a call from a very unhappy former employee and he wanted to know what paperwork he was supposed to get upon termination. I did answer his question and now see how he could use my answer as partial support for legal action. What was interesting is that he had already researched and learned the answer through the labor board and declared the mis-informed processing of his termination (leaving out two mandatory forms) a misdemeanor (!).


I reported the information to my former boss as a loyal and supportive act > albeit naively< and nonetheless--through email (!).


I see where I went horribly wrong though my intentions were (horribly?) right! Thanks for making the distinction, though--it helped me a lot. I was a loyal employee of 3+ years and still loyal when I was layed off (!). The owner of the company in question is known for his bullying.. sadly..it seems he bullied my boss, too.


FYI-- if I ever need this type of legal assistance-- I hope you are around.


Kindest regards,


Mary

Expert:  Patrick, Esq. replied 9 months ago.

Mary,

Please feel free to request me to answer any future legal questions you may have.

To perhaps assuage some of your concerns with regard to the present matter, your employer most likely could not assert a damages claim against you because, as you note, the "assistance" you provided was of no material support to this former employee. In other words, you did not positively influence their ability to sue your former employer, and so your former employer did not sustain any "damage" as a result of your (arguable) breach. Without damages there can be no claim (otherwise what are you suing for?). Thus, absent further and more involved "assistance" there would be no plausible basis for legal action against you.

I don't think a jury would take much pit on an employer in this circumstance, either, as it is plainly apparent you were trying to be honest and loyal and he is resorting to bullying and legal threats.

Best wishes to you moving forward.

Customer: replied 9 months ago.

Hi Patrick,


 


Thanks for your patience. I realize this discussion is really teaching me about this unfortunate but probably common experience with corporate and it is an area in which I am very naive. I believe a full understanding of this incident--such as you are helping with- is very valuable for me going forward. I hope you don't indulging me and don;t feel as if you need to assuage. What I'm realizing is that I bought the intimidation tactic completely and, finally, I believe this will help finally purge me of it.


 


The next item I would like to share is the email I sent to my boss after I received the call from the upset employee. I can see my approach might have scared the living daylights out of him(direct) if he has encountered legal troubles before--but I wrote it from a very sincere intention and don't understand what I consider the over reaction to it. Possibly he just shifted into Risk Prevention mode, But what I don't understand is does this really sound so threatening? Do you smell lawsuit in this? Here it is:


"Hi (Boss), I heard from (employee) this evening and wanted to check in to review proper separation forms w you--it seems there are 2 you are leaving out. As it is a compliance matter I thought it would be good if we could speak briefly afternoon or evening. I have an appointment at 11 this morning. I can be available from 2:30 pm on. If you prefer email--that's fine,too."


His first response was:


"I'm confused I used the exact same documentation used when you and (another employee) exited. Can you clarify?"


And I replied, trying to be of service:


"Yes-- I recall printing these to out for myself when you laid me off so it is understandable if you've missed them: Please print the entire EDD booklet called "Caifornia's Programs for the Unemployed"--about 20 or so pages. Not sure what folder that was in--perhaps the "Employee" folder on my desktop at the time. If you need to get it from (Payrollcompany)--see the compliance number below. Also this HIPP notice is required: that should be in that folder also. If you can't find it: http://www.dhcs.ca.gov/formsandpubs/forms/Forms/DHCS%209061%20(Notice%20to%20Terminating%20Employees)%2007-09.pdf Please also make use of Paychex in this regard--they are helpful. You have access to the Federal and State Employment law telephone assistance line as part of the Handbook service (Company) pays for (something like 30 dollars per month). Phone number: 1-800-XXX-XXXX option Z then -option 1 for any compliance questions you may have about anything. -option 2 for Handbook questions. Best Mary


Does this really sound scary?

Expert:  Patrick, Esq. replied 9 months ago.
Thank for your followup, Mary.

I think any time an employee or ex-employee mentions "compliance" and demonstrates detailed knowledge of the legal requirements and procedure for separation of employment, it will trigger a defensive reaction from the employer. In that sense, it does not surprise me that they shifted into "risk prevention" mode.

Truthfully, while these requirements regarding documentation and information to provide departing employees upon separation of employment do exist, "violation" is rarely enforced and does not give rise to any sort of lucrative claim for damages, so the employer really shouldn't be "worried." Still, as noted above, any time an employee seems knowledgeable about the law and mentions "compliance" the employer's reaction will invariably wind up being defensive.

I hope this clarifies your concerns. Have a great evening.
Patrick, Esq., Lawyer
Satisfied Customers: 6692
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 9 months ago.

Hi Patrick-


 


Thanks for this.


Given what you know-would there be a true legal reason my former boss would want to stop all communication with me? I know he no longer works for the company we worked for and it has been over a year since my email and his reply above (Aug 29).


 


Thank you


 


Mary


 


 

Expert:  Patrick, Esq. replied 9 months ago.
Mary,

Thanks for your reply. No legal reasons come to mind, I'm afraid. I wish I could provide some insight here but I am drawing a blank.
Customer: replied 9 months ago.

Thank you.


 


Given that the former CEO was extreme, could he have threatened my former boss with a lawsuit of any kind? If the CEO had access to company email he would have found periodic emails I exchanged with my boss helping him with his job (the one I was let go from) which was HR.


All emails were sent as tutorial as I knew he was not comfortable in an administrative capacity total--probably 5--one of them comprehensive. Over the phone on one occasion he mentioned that they were helpful. I did notice he gave very short answers -if any- through email but was rather winded when we spoke on the phone. I mention this because I wonder- if the CEO saw all of these communiques--perhaps he could have threatened him (which is his particular language of choice) with a viable legal threat by the time my email crossed into company territory..


 


Thanks.


Mary

Expert:  Patrick, Esq. replied 9 months ago.
Thanks for clarifying.

The contract language you initially provided indicated that an employe in your circumstance is prohibited from assisting another employee or former employee in bringing legal action against the company.

Communication for the purpose of helping someone with their job has nothing to do with "legal action" and thus would not constitute a violation. Perhaps your employer made a threat based on these communications, but it would not have been a threat supported by the language of the contract.

I hope that makes sense.
Patrick, Esq., Lawyer
Satisfied Customers: 6692
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 9 months ago.

Patrick-- thank you.


 


This has helped me with understanding wether or not there is real substance of legal threat or if this has in large part been a smoke screen generated by the paranoia of the CEO--which I think the latter is the case.


 


What I'm seeing is quite sad, however, is that my former boss either believes what he wrote to me or, finally, is perfectly pissed that I sent that email in the first place which showed him two things-- he has no email privacy ( foolishly I was assuming he did as a COO--you would think!) and--the CEO's fears brought out the bully and he got beat up...


(psychologically).


 


I no longer feel in the dark about the legal ramifications of all this and so I can now trust that my former boss' feelings are hurt, he will not breach the subject and it's time for me to move on..


It's nice to have the two issues separated.


 


Thanks so much for your good help.


Mary


 

Expert:  Patrick, Esq. replied 9 months ago.
You are very welcome, Mary. I am so glad that I could provide you with helpful information and ease your concerns.

If you receive a customer satisfaction survey from Just Answer, I hope that you will take a moment to provide high marks. Very best wishes and please do not hestiate to come back to the site if you ever find your self with new questions!
Customer: replied 9 months ago.

Will do on both counts.


 


Best,


Mary

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