Unfortunately, we are prohibited from providing the legal advice you seek (you may want to re-read your Terms of Service that you are bound by, as am I) - since we are not and can not be your retained attorney. Also note that we often can not provide lectures or full treatises on such a broad open ended concern. It would take many, many hours to cover every hypothetical possibility (or even several of them) and you simply have not chosen that type of enlarged scope of a transaction. What is typically helpful is if you limit your question to a more narrow particular legal question: Such as, "If OWPBA has been violated, what is/are the remedy?" Once that
question has been answered clearly for you to your satisfaction (and you can always ask for clarification if the answer is not clear to you, at no extra charge - we welcome such follow up because we want you to understand what you asked about), we finish it up, you rate the service provided, and then, if you have another question about your situation, you can put it in a new post, so we maintain the integrity of this job/transaction. You can always (and I welcome it), start your post with "To Alexia Esq. ONLY" - to ensure (usually) that it will be sent to me.
That being said, You did include several concerns rather than one or two, that probably should have been more limited since this is just one transaction, but as I can see this is worrisome to you, I will comment with my thoughts with regard to your concerns, since they may save you some time, effort and money, or at least get you headed in an appropriate direction. (Just remember to put one question (sometimes two) into a given transaction/job, in the future, so the effort needed matches the transaction, OK? (I realize that what may seem like one question to you, is actually several legal questions, from a legal perspective, and requires then several different sessions of confirming research, etc.) Thank you for understanding! Here we go --
1) In what ways could an invalid reduction in force (former employment) impact an individual under a new non-compete? Frankly, I do not see a former Invalid RIF impacting your new agreement with your new employer, in and of itself. What an old employer does or does not comply with does not typically deprive a new employer of the benefits of any contracts he enters into.
Facts: The reduction in force is believed to be a single person RIF,layoff - termination. Which is inconsistent with a WARN violation, since it does not apply to single person lay off/termination. If you were the only person laid off, it was not a "mass" layoff, you do not have WARN rights, unfortunately.
The invalidation of the RIF is based on non compliance to laws governing a reduction in force,the information that should be supplied to employees involved in a RIF and not being knowing and voluntary under those laws(no requirement of review by counsel and 24 hours to sign). There are no employer posting requirements for WARN. Notice about an actual planned mass layoff or plant closing is required to the employees, but not notice of an individual being terminated.
And, if there a WARN violation, that would not generally effect another company's rights to its otherwise valid non-compete. Rather, the penalty would be on the noncomplying employer: "An employer who violates the WARN provisions is liable to each employee for an amount equal to back pay and benefits for the period of the violation, up to 60 days. This may be reduced by the period of any notice that was given, and any voluntary payments that the employer made to the employee." http://www.dol.gov/compliance/guide/layoffs.htm
OWBPA and the WARN Act specifically.apply Not according to the WARN statute, so you may want to re-read that. Now, whether or now OWBPA does or does not apply, would depend on facts not yet shared: OWBPA requires employers to offer older workers (those who are at least 40 years old) benefits that are equal to/cost the employer as much as, the benefits it offers to younger workers, and it sets minimum standards for an employee waiver of the right to sue for age discrimination, designed to ensure that the waiver is knowing and voluntary. Generally, if it is written in plain, understandable English (or the language of the worker), and he is literate, it would be "knowing". Voluntary? Did he volunteer to be bound by it? Did he sign it? Did it advise him to have his attorney review it (it does not REQUIRE he hire an attorney, only that he be advised of it? Was he forced? Gun to head? Any type of extortion or coercion? Also, he gets 21 days to think about it before signing it, plus 7 after the signing to change his mind. If there are MORE than one worker over 40 provided a severance agreement, then additional requirements are included. (But you said it was a single person RIF.) So, if he falls into the covered age, and if his employer is of sufficient size to be bound by OWBPA, then there may be a violation.
and there exists some contractual relationship(s) between the former and new employment.(intentional employment tort interference) OK, that would be a state claim, likely, unrelated to the 2 federal claims noted above. So he can just go ahead and file in state court, in the appropriate county (where the defendant is located, typically).
2)The new non-compete was signed by the employee(and reviewed by an attorney). That is good.Prior to having the agreement reviewed, foul play had been suspected and confirmed(references, defamation, blacklisting, etc.) and submitted to that attorney . Clearly the new employer was not abiding by any black list, right? I presume you are referring to bad behavior of the former employer.
Since signing the agreement, the contractual relationships between the former/new employers have been confirmed and the employee has experienced behavior that would constitute constructive discharge. Sounds like you are saying that the employee was terminated by employer number 1 and then again, by employer #2 (constructively, apparently, implying he is still on the job somehow). Generally, there is no prohibition on two companies having contractual relationships with each other, and they need not terminate such contracts just because they each have had or have an employment relationship with the same individual worker. And, constructive discharge is not illegal, just as a regular discharge it not illegal, all else being even.
Please advise on options/strategy for the individual. The individual is attempting to resolve before it is too late and a significant amount of damage has already been done. (industry wide). Since I don't really know what violations have occured, I don't yet see where the individual has had legal rights violated, so you may have to be more specific. With the exception of course, of being defamed, or if there has been a tortious interference with his other contracts of employment - if that is the case, he can file suit in state court. If he DID mean there was a mass layoff (not single) and WARN was then violated, he'd file that case in US District Court.
3)The individual would like to challenge the RIF in court (at least closing that door). Why does he believe that door is open? He want to get his job back?
What would be the best way to proceed? First, he has to review a law that covers his particular termination, and make sure it applies Like noted above, he hasn't yet specified any. Conclusory statements of "WARN and OWBPA have been violated, don't mean much to me" - however, IF that is so, and the details just were not shared, then, as noted above, he'd use WARN to get paid whatever days of pay, up to 60 days, that his lack of notice resulted in. He'd file that complaint in US District Court. Now, with regard to any OWBPA violation, at least one federal court has ruled that the employer's failure to comply with the release requirements set forth in the OWBPA did not create an independent cause of action for damages. What does the employee get if there is a violation? He gets what he purportedly gave up. He retains the right to sue or make a charge with the EEOC based on age - the right he thought he was giving up in exchange for some severance. As such, if the individual you write about did have a defective agreement, he can file an age discrimination claim. He can go right to the EEOC.gov website to learn how to file that charge.
There is a LOT more information(issues). I am relaying the contractual details only. Actually, you didn't really provide them, you simply said that 2 statutes were broken and some state torts were committed. I have provided as much information as possible, given the limited scope here.
Thanks. Very welcome!
I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions.