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Alexia Esq.
Alexia Esq., Managing Attorney
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Experience:  19 Years of Legal Practice Experience in this precise field.
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Potential in detriment a situation where the plaintiff has

Customer Question

Potential in detriment a situation where the plaintiff has and invalid reduction in force, evolves into constructive discharge while under a new non-compete(and believes it is an employment intentional tort(contract/direct hire-collusive). Please advise.
Submitted: 1 year ago.
Category: Legal
Expert:  Legalease replied 1 year ago.

Hello there

-

Can you please tell me what state this is in and clarify your question to us a little bit more? It appears that you are asking about a non compete agreement but that is the only thing that is clear to me from your wording above.

-

THANKS

-

MARY

Customer: replied 1 year ago.

 


 


1) In what ways could an invalid reduction in force(former employment-prior non compete) impact the individual under the new non-compete.(there are contractual relationships/industry connections between the two).


 


2)After the invalid RIF, In what ways could going through behavior that reflects constructive dismissal impact the individual under the non-compete.

Expert:  Legalease replied 1 year ago.

Hello again --

-

I am sorry but I need more of what has happened in this situation to be able to assist you further. This is an online forum and perhaps you are reluctant to write in the entire story. ??

-

Did the person sign a non compete? Did the company reduce the force (layoffs)? If so, did the person who signed the non compete get layed off or were they terminated or did they technically quit the first company? And is the first company now threatening to sue regarding a non compete because the person took a position with the second company? Finally, what does the non compete agreement say about each of these situations (if the non compete addresses the manner of the person leaving the company)?

-

MARY

Customer: replied 1 year ago.

1) The reduction in force is believed to be a single person RIF,layoff - termination. 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).


 


2)The new non-compete was signed by the employee(and reviewed by an attorney).Prior to having the agreement reviewed, foul play had been suspected and confirmed(references, defamation, blacklisting, etc.) and submitted to that attorney .


 


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 (professional and personal impact).


OWBPA and relative laws apply.


 



 


 

Expert:  Legalease replied 1 year ago.

Hello again --

-

I am going to opt out and let another attorney handle this matter. Please do not respond to this message because doing so will only delay further review and response to your question. It will be placed back on the open question list for other attorneys to respond.

-

Best of luck

-

MARY

Expert:  Alexia Esq. replied 1 year ago.
Hi, my name is XXXXX XXXXX I thank you for your inquiry. I have been practicing law for 19+ years and look forward to assisting you.

Please know that we need a specific question as we are unable to provide a full lecture on a broad subject matter and remain within the scope of your chosen transaction. Therefore, if you could ask a specific question about which you provide the pertinent details, we may be able to assist. Also, you indicate you are relying on some illegal sort of RIF. Please provide the link to the specific statute you are relying on, rather than just making a general reference to one you think may apply. If the statutory language is very lengthy, kindly indicate which section.

Thank you, XXXXX XXXXX Independence weekend.

Sincerely,
Alexia Esq.
Customer: replied 1 year ago.

Hi Alexia,



Question 1:


 


1) In what ways could an invalid reduction in force (former employment) impact an individual under a new non-compete?


 


Facts: The reduction in force is believed to be a single person RIF,layoff - termination. 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).


 


OWBPA and the WARN Act specifically.apply and there exists some contractual relationship(s) between the former and new employment.(intentional employment tort interference)


 


Situation/Question 2:


 


2)The new non-compete was signed by the employee(and reviewed by an attorney).Prior to having the agreement reviewed, foul play had been suspected and confirmed(references, defamation, blacklisting, etc.) and submitted to that attorney .


 


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.



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).



3)The individual would like to challenge the RIF in court (at least closing that door).What would be the best way to proceed?


 


 


There is a LOT more information(issues). I am relaying the contractual details only.


 


Thanks.


 


 


 

Expert:  Alexia Esq. replied 1 year ago.
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 --

YOUR POST:

Question 1:



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).



Situation/Question 2:



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.

Sincerely,

Alexia Esq.



Customer: replied 1 year ago.

Alexia,

 

In accordance with the disclaimer, what is not listed is all the effort and events prior, during and post the former and new employment. Contractual details were relayed only. The only details provided were, that there exists a RIF (contract) and a non-compete (contract). The events have previously been issued to attorney(s).

 

A non-compete may have existed with the former employer; the RIF is invalid and HE was essentially out of work for almost two years. Upon request for all such documentation, prior to the release from his former employer; he was sent an application (not the documents he signed upon hire).

 

Upon being hired for the new employment, the contractual relationships were discovered under the two entities (and were directly related to HIS new employment duties and the constructive discharge behavior is most relative under that relationship. The industry blackballing, defamation, harassment and the blatant attempt to redirect his career had been ongoing (and still are).

 

As you previously stated, there is no prohibition of employers having contractual relationships with each other, however, if those contractual relationships are utilized in an effort to interfere with the employment or potential employment of a third party (individual), there is. (Tortious Interference)

 

 

He did not ‘volunteer’ to be bound by it, was given 24 hours to sign it and yes; there was a lot of ‘coercion’(term does not even scratch the surface of what this individual has endured as it relates to the proverbial-‘gun to the head’ ).These items were discussed with the HR representative.

 

Literate or not, it did not comply with the written request to have it reviewed by counsel which is governed by OWBPA. Sign within 24 hours or lose severance (it was signed), it could not have been reviewed by counsel. Any individual could certainly not adequately make that determination (in addition to coercion and under the duress of losing a job) in 24 hours that is not a legal professional. See the EEOC website’ Understanding waivers and claims in Reduction in Force agreements’ and terms of ‘Ongoing Harassment’.

 

Conversely, I too have found cases where federal courts have ruled that the employer's failure to comply with the release requirements set forth in the OWBPA created a cause of action for damages as it relates to requesting the individual to seek counsel and requiring the appropriate review period to evaluate these terms. This agreement did neither.( and typically is a mass layoff decision)

 

This law is important because it not only gives the individual (over 40) the opportunity to address if discrimination is a factor in their release; but retraining for their next career (the individual is being forced out of a career), and properly address the events leading up to the release, with an advocate for the individual.

 

Also, this may help hinder any additional defamatory, harassing, constructively dismissive behavior from employment in the future.

 

Note: This individual’s professional work had been exemplary and has provided a significant amount of intellectual property for the company/industry. The individual, in this capacity, has been known to accurately provide technical and fiscal work evaluations and finds himself out of a 25 year well-earned career in less than 7 months.

 

Now, that individual finds himself, in the very position, that law(OWBPA) is created to prevent.

 

In summary:

 

1) The former employer used the law inappropriately. They gave the perception of a reduction in force (when clearly it was not). That employer now has a contractual presence today in and within the individuals direct employment duties of which constructively dismissive behavior is being endured. (Whether intended or not the former employer(s) information, is being used against the individual. Today).

 

2) What does the employee get? As stated, restitution for what he gave up as it applies to future employment opportunities (any capacity) and so he can move on. This individual could truly end up in very dire circumstances.

 

3) Assessment of the current circumstances, as they are and moving forward is the goal. Again, closure in some capacity is needed so it does not continue to hinder the individual in the future.(as it has already done)

 

4) Is it probable, included in the new employment, was the opportunity to take the trail off(and spotlight) the old employer's actions, since he is constantly reminded of it and the signing of that document?

 

5) The associated timeline is informative as well.

 

The laws which apply (all supportive information is not included in the above):

 

Tortious Interference with elements of:

Defamation

Human Rights Violations

Invasion of Privacy

Retaliation

Constructive dismissal ( underlying behavior)

Title VII - Gender

OWBPA – Professional Experience

Harassment

 

 

Counsel outside of the state of jurisdiction or pro se litigation may be warranted due to the conflicts of interest and entities involved.

 

Thank you for providing, reference only, the proper courts of filing.

 

If I have further questions; I hope I can contact you.I understand financial obligations apply.

 

Best Regards.


Expert:  Alexia Esq. replied 1 year ago.
I think we covered all these, and you are simply reiterating, yes? I see:

1) The former employer used the law inappropriately. They gave the perception of a reduction in force (when clearly it was not). OK, but you must find a law that says it is illegal to imply RIF. And, reduction in force is not a legal term of any real meaning.

 

That employer now has a contractual presence today in and within the individuals direct employment duties of which constructively dismissive behavior is being endured. (Whether intended or not the former employer(s) information, is being used against the individual. Today). You may be overgeneralizing when you explain these things. I think you'd better serve your needs if you focused on DETAILS of what has transpired with specificity. You are sharing your conclusions, which mean there is nothing for me to clarify - as you indicate you know your facts well produce the conclusions - if that is so, then you are done, no? Just need to file your complaint(s) in your chosen courts.



2) What does the employee get? As stated, restitution for what he gave up Remember, OWBPA means his alleged waiver of his right to sue for age discrmination, in order to secure a severance pay, is NO LONGER WAIVED. He can sue for age descrimination if he sees fit.

 

as it applies to future employment opportunities (any capacity) and so he can move on. No, your federal laws you are interested in do not do that. However, remedies for defamation/tortious interference CAN include such "lost future wages", etc., that were caused by these torts. This is what I mean in that I think you'd do better to not mix everything together. Focus on your first causing of action, and describe the course of events related to it and only it. Put it concisely and factually in writing. Then, focus on your second cause of action... related the facts that pretain to THAT one, but not other facts that are legally irrelevent, and don't jump back and forth between causes of action. Then do your third, fourth, fifth.... Do not explain with conclusions or generalities - you must provide the details that go from fact to violation.

 

This individual could truly end up in very dire circumstances. Which is unfortunate, but that alone does not make a case. I think you need to focus on details and admissible evidence that can get you from point A (event(s)) to point B (established convincing violations).



3) Assessment of the current circumstances, as they are and moving forward is the goal. But again, I believe you need to establish your 'wrongs' as described above, in a methodical fashion, so that it is understandable by those that did not live it.

 

Again, closure in some capacity is needed so it does not continue to hinder the individual in the future.(as it has already done) That is not really a legal issue, just a desire.



4) Is it probable, included in the new employment, was the opportunity to take the trail off(and spotlight) the old employer's actions, since I am constantly reminded of it and the signing of that document? There is no law against someone reminding you of something. But again, if you believe OWBPA makes your signing of that old document invalid, yippee! Then you ignore it and go file your complaint for age discrimination and whatever else you want. If they believe they complied with OWBPA, they will sue you for breach of contract but you will win because you say they created an invalid contract. If you'd rather not do that by way of them suing you and you defending, you COULD, I think, file for a Declaratory Judgment - where you show the court the contract and ask for a ruling that is does not comply with OWBPA and therefore is not valid and binding on you.



5) The associated timeline is informative as well. OK

 

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.

Sincerely,

Alexia Esq.


Alexia Esq., Managing Attorney
Category: Legal
Satisfied Customers: 11738
Experience: 19 Years of Legal Practice Experience in this precise field.
Alexia Esq. and other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Not really.Clarifying and trying to give a broader understanding of the issues, without going into too much detail.


 


1)Understand. RIF is not a legal term(there are legal requirements under its use in employment agreements) In this case, its a single person RIF.


 


2/3)Understand defamation/tort remedies and sequential clarification of the facts.


 


4)There is no law against reminding, as you stated, how that information is used in the employ of the individual, I believe, has some relevance. (falls under the tort). Declaratory Judgement sounds like an option.


 


5)Which statute would the former employer fall under, employment contract (breach/invalid) or EEOC statutes or both?


 


Thanks for the clarifications Alexia Esq.


 


 

Expert:  Alexia Esq. replied 1 year ago.



1)Understand. RIF is not a legal term(there are legal requirements under its use in employment agreements) In this case, its a single person RIF. Do you agree that WARN does not apply? If so, any questions with regard to any of the above dialogue? Anything I am not being clear on.

5)Which statute would the former employer fall under, employment contract (breach/invalid) or EEOC statutes or both? Could be both. EEOC only deals with the Discrimination related issues, while those that are breach of contract (I don't know what Contract term was breached) but not "We the employer promise not to discriminate", would be contract claims. You will want to review sample contact claim complaints as well as EEOC complaints, ideally.

Customer: replied 1 year ago.

Tried to close this out yesterday; Thanks for your help.


 


1) I understand your position of it not applying; Since It appears to be a single person RIF.However, the applicable laws in a RIF require a list of all positions impacted be distributed, otherwise, why release one individual through a RIF and only give them 24 hours to review? Knowing that law, would definitely cause a closer evaluation.


 


WARN applies to companies with over 100 employees(the company released from, had that) and the parent company, far more. Since he was given 24 hours to review, and not being a familiar with employment law, he would not know. That industry and corporation could absolutely have a mass layoff.


 


5) See your point here; the difference between being invalid and breached; considering the level of invalidity(the laws not adhered to; just the basic review period (21 days) and requirement to see counsel;certainly an attorney would not just review the waivers alone; but how they apply to that clients circumstances.


 


EEOC statutes, as they apply to the circumstances here, is interesting.


 


Tried to close this out yesterday; Thanks for your help..


 


 


 

Expert:  Alexia Esq. replied 1 year ago.

Hi again,


1) I understand your position of it not applying; Since It appears to be a single person RIF.However, the applicable laws in a RIF You would need to cite me that rule, because when a person gets let go, as far as I know, there is no such requirement.

 

require a list of all positions impacted be distributed, otherwise, why release one individual through a RIF It is a lay off, I don't know why you use the term RIF.

 

and only give them 24 hours to review? Because they possibly wanted to intimidate him into signing, knowing that it would be insufficient time to get attorney review or his own clear understanding of the ramifications. Plenty of motive to be unethical :)

 

Knowing that law, would definitely cause a closer evaluation.



WARN applies to companies with over 100 employees(the company released from, had that) and the parent company, far more. Since he was given 24 hours to review, and not being a familiar with employment law, he would not know. Don't mix up OWBPA with WARN.

 

That industry and corporation could absolutely have a mass layoff.Could, but could doesn't count.



5) See your point here; the difference between being invalid and breached; considering the level of invalidity(the laws not adhered to; just the basic review period (21 days) and requirement to see counsel;certainly an attorney would not just review the waivers alone; but how they apply to that clients circumstances. Actually, I believe the invalidity alone does not require him being impacted - he can still get excused from the waiver. Breach, is different - you can get MORE than just not being bound by your waiver - you can sue for any specific damages from the breach, if there was a breach of a term.



EEOC statutes, as they apply to the circumstances here, is interesting. Check it out!



Tried to close this out yesterday; Thanks for your help.. You bet, and thank you. Have a great week.

Customer: replied 1 year ago.

1) It was a single person RIF(the severance agreement verbiage read ' reduction in force'). An excerpt from the labor employment law blog(http://www.laboremploymentlawblog.com)


 


"There are additional OWBPA requirements for group layoffs. If you offer severance and a release to two or more employees, and any of the employees are 40 years old or older, the release must also comply with additional special requirements under the OWBPA, including: a 45-day review period, instead of 21 days(not 24 hrs); and the release must contain a list of all employees in the affected departments, their ages, and whether they were laid off."




  • I've developed a pretty good understanding of OWBPA and WARN and have no idea what they did or did not do in 24 hrs.But have a pretty good idea of whats transpired since then.


 


5)No, the invalidity does not require impact;but remember, this evolves from an invalid waiver(plenty of motive to be unethical:) to the issues previously discussed.(and some prior, that did not get resolved in 24 hrs)


 



  • EEOC? Was only interested if whether you had an opinion.


Take Care and have a great week too!


 

Expert:  Alexia Esq. replied 1 year ago.
1. But if you are the only one laid off because it is NOT a mass layoff - then this all wouldn't apply (WARN). You are left with OWBPA it would appear. I think you are agreeing with me on that?

5. If you believe that there is discrimination, yes, EEOC. And because you say that OWBPA was violated, you now have the ability to file with the EEOC. You had given up that right, but OWBPA brings is back, possibly. But, do it soon as there tends to be a short statute of limitations.

Customer: replied 1 year ago.

1) I agree with you on that definition of the WARN act.


 


 


 


 


5) I believe the defamation and intentional employment tort(s) are far more prevalent and impactful; however, in this case; would not exist if those factors( and the laws that apply) were not a component.


 


Thanks.

Expert:  Alexia Esq. replied 1 year ago.
Sounds like you have a plan then. Good luck!

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