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Dwayne B.
Dwayne B., Lawyer
Category: Employment Law
Satisfied Customers: 32306
Experience:  Employment Law Expert
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I am a new small business owner. I bought a property

Customer Question

Hello,
I am a new small business owner. I bought a property management franchise a year ago and have begun hitting a stride for fantastic growth. I hired my first full time employee for a sales position about 4 months ago. I paid to have her trained in all facets of our operation with our franchise sales consultant teams. She knows our secret sauce that has allowed us to break into the market a a fast pace. She started her first month hot and we had a record month. The next month her and her daughter got sick and she was out 12 of 21 working days in March sick. I had a conversation with her at that time about how she needed to come up with backup plans for when her daughter gets sick. I allowed her to work from home and gave her other leeway in regards ***** ***** as her daughter and her got sick several more times through the next several months but she was able to recover. I think she missed 5 or so more days of appointments over the next two months.
Four months in her results for the first month were great, second month poor, third month average, and this month excellent. She has built great relationships in the community and now we are starting to get referral business and lots of leads closing. She stole a big account from one of our direct competitors that day and had direct contact with them to transfer over the business. Then all of a sudden after a great day last Thursday I call her on Friday morning and she said she wasn't feeling well. She needed to go to the doctor due to a headache. Long story short later that night she says she was admitted into the hospital for Meningitis and would be out for awhile. I obtained her work phone and received access to her email and have been responding to inquiries on her behalf the last several days. The last I heard from her this morning she said she was out of the hospital and would give me an update on the status Wednesday. Now this evening I see that she has deleted me off of all social and professional media. However all the business contacts she made through working for my company remain. I fear she may be leaving or even worse leaving for the direct competitor with all of our trade secrets. She still has a bunch of pending commission still outstanding (she is paid a base salary plus commission). I feel some kind of scheme is being played out on her part. I cannot fire her as she would definitely be able to file an unemployment claim against us and I do not know what is actually going on. I did not put a no compete Claus in her employment contract. However I do not want to get sued for not paying her commissions due or have her working again if she is planning on leaving. Obviously I need to talk with her but must be very careful. Do you have any advice?
Submitted: 5 months ago.
Category: Employment Law
Customer: replied 5 months ago.
Concerns,
1. She continues to claim being sick in-order to claim more commissions as business she brought in finally closes. (she gets the property owner but then the house needs to rent in-order to get a commission) She then leaves after collecting the money.
2. She tries to bait me into firing her so that she can get unemployment which will happen if I fire her while "sick"
3. She the does one or two or both and then leaves for the competition after taking as much money as she can while not working.
Expert:  Dwayne B. replied 5 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I've read through your extensive facts. Is there a specific question with which I could assist?

Customer: replied 5 months ago.
Concerns,
There are my concerns
1. She continues to claim being sick in-order to claim more commissions as business she brought in finally closes. (she gets the property owner but then the house needs to rent in-order to get a commission) She then leaves after collecting the money.
2. She tries to bait me into firing her so that she can get unemployment which will happen if I fire her while "sick"
3. She the does one or two or both and then leaves for the competition after taking as much money as she can while not working.
Expert:  Dwayne B. replied 5 months ago.

I understand those are you concerns since those are the ones listed above as well.

However, I still need to know what specific questions you have?

Customer: replied 5 months ago.
What is a good plan of action to mitigate the concerns above without putting myself in a legal situation where she could sue, file an unemployment claim, or continue to try and collect pay? What do I do if she continues to claim to be sick, can I request proof? She is not approved for FMLA and has been out a substantial amount of time probably 20 days in the last 3 months for different illnesses? She is salaried do I have to pay her for the time she is out and am I still required to pay her for any commissions that have not fully closed even if she is out when they close, according to her working agreement she does not have any paid time off until 6 months with the company? Do I have any recourse if she takes my company information and provides it to the competition if she starts working for them (customer list, trade secrets, lead data, proprietary information)? Is she allowed to forward my lead data to a competitor? What is the best way from a legal standpoint to have a conversation with her about these concerns to avoid liability? I pretty much need to know what is the best way to handle this entire situation if the worst case scenario of her leaving and taking my customers and information with her is the case? I need to start mitigating the damage that she can cause to my operation and need to make sure I make the correct moves to avoid litigation from her. What is a plan I can use to mitigate the concerns listed above? What do I do if it comes out weeks later that she left for a direct competitor and the entire illness was a lie? What do I do if it is found she was working for someone else while out sick? How do I structure a conversation about all of this?
Expert:  Dwayne B. replied 5 months ago.

Did she file a non-compete with your company? A non-disclosure? Any kind of a written contract?

I will be going offline about 10:40 for about two hours but then will be back and be online for the rest of the day.

Customer: replied 5 months ago.
there was a contract stating the commission working hours pay benefits and other information. However nothing about no compete. I heard that these non compete clauses are hard to enforce as is.
Expert:  Dwayne B. replied 5 months ago.

They are a little hard to enforce but not too bad as long as they are reasonable and you definitely need an NDA if yo uhave trade secrets so you want to get wit a local lawyer that does Employment Law and have them draft it.

You first need to find out what is going on with her health and her child's health because you don't want to be accused of violating the FMLA or the ADA.

However, you can likely prevent the taking of customer lists, revelation of trad secrets, etc. through an injunction. Injunctions are extremely difficult so you need a lawyer to assist you (and if you're a corporation you are required to have a lawyer).

The steps to an injunction are:

1) An Application for TRO (Temporary Restraining Order) is filed along with supporting evidence such as affidavits. Usually the Application for Injunction is made at the same time. The TRO is a temporary measure and is not absolutely required before you get an injunction.
2) An Ex Parte (without the other side present) Hearing is conducted and the judge either issues the TRO or denies it. If the TRO is issued the judge orders a bond set in a sufficient amount to compensate the other side for any damages accumulated while the TRO is in place if the applicant fails to prove their right to an injunction.
3) A hearing on the TRO is set.
4) The TRO and notice of Hearing is served on the defendant.
5) The defendant should immediately begin following the judge's orders.
6) The TRO hearing is held and each side has an opportunity to present evidence and question witnesses.
7) The judge makes the decision on whether to convert the TRO to a Temporary Injunction or not.
8) If the TRO is converted to a Temporary Injunction then the judge sets a new bond to be in place.
9) Discovery is conducted by both sides.
10) A request for hearing date is made on the matter of converting the Temporary Injunction into a Permanent Injunction.
11) The hearing/trial is held on the Permanent Injunction and the judge issues a ruling.

These are what are known as extraordinary remedies and the procedural rules for these as well as the case law are EXTREMELY specific and difficult. If ANY mistakes are made the judge has no choice but to deny the relief and will not likely reconsider it in the future.

Just as an example, getting injunctive relief, both temporary and permanent, requires that evidence be offered of:
1) An immediate need,
2) Which, if not granted, will result in irreparable harm,
3) With no adequate remedy at law, and
4) (on temporary order) The person requesting the injunction is likely to succeed at a full trial on the merits.

If evidence is not offered to meet these four requirements, in a manner that the judge knows this is what the evidence shows, then the petition will be denied.

There are more requirements than this depending on the exact facts of the case but it is very, very easy to mess up one of these and end up having to pay damages to the other side just because your paperwork wasn't done properly.

The injunction is the only real answer to your issues although you can sue her for damages. That will be harder to prove and without a NDA I'm not sure you can get there without putting an injunction in place.

I really can't tell you how to structure a conversation about this because it woudl depend on exactly what was said. You may even want to turn it over to the lawyer and let them handle it all. They will know how to draft letters, emails, etc. in such a way that if you have to sue then the letters will be admissible in court and work in your favor.

Although there is not a NDA in place you can still sue for and possibly get an injuncion

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