Friday, June 17, 2016

My images










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Tuesday, June 14, 2016

Fletcher Cox Signs 6-Year Deal With Eagles and Receives Biggest Guarantee of Any Non-QB In NFL History!

Eagles Sign Fletcher Cox to Six-Year $103 Million Contract With $63 Million in Guaranteed Money! 

According to Reuben Frank of CSNPhily.com, “the only players given more guaranteed money in their contracts in NFL history are Eli Manning ($65 million) and Philip Rivers ($65 million).”  

Buy, Fletcher, Buy
When Does the Eagles’ Fletcher Cox’s New Contract Extension Start, and How Much Per Year Will He Be Paid?

The extension kicks in beginning in 2017, and will pay Fletcher Cox an annual salary of $17.17 Million per year.

As of today, that is will be the second highest annual salary paid to any NFL defensive player, trailing only the Miami Dolphin's Ndamukong Suh, who is paid 19.625 Million a year.  

Philadelphia Eagles' Award Fletcher Cox With New Contract That Includes Most Guaranteed Money ($63 Million!!!) Ever Paid to an NFL Defensive Player 


The deal is worth $103 million with $63 million in guaranteed money, sources told ESPN NFL Insider Adam Schefter. That means the Pro Bowl defensive lineman will have the highest guarantee for a non-quarterback in NFL history.

It makes me wonder....how much would these defenses be worth today?

The Greatest Ever?  Best I've Seen!

The Purple People Eaters

The Best Ever for One Year - the '85 Bears
Willie Lanier, Buddy Bell, Buck Buchanan, Curly Culp, Emmitt Thomas -
Hall of Famers ALL!  


The Fearsome Foursome

The Doomsday Defense













Ahhh, Clyde, Reggie, Jerome, Eric and Seth - 
What Should Have Been...
Who Are the Top 10 Highest Paid NFL Defensive Players by Annual Salary?


Ndamukong Suh, Miami Dolphins -                       $19,625 Million
Fletcher Cox, Philadelphia Eagles-                         17.17 Million
Olivia Vernon NYG -                                                17       
Justin Houston, Kansas City Chiefs -                     16.83
J.J. Watt, Houston Texans -                                     16.67  
Marcell Dareus, Buffalo Bills -                                16.1
Gerald McCoy, Tampa Bay Buccaneers -              15.87
Malik Jackson Jacksonville Jaguars -                    15
Darrell Revis, N.Y. Jets -                                          14.24
Richard Sherman, Seattle Seahawks -                    14

Who Are the Top 10 Highest Paid NFL Defensive Players by Guaranteed Money in Their Contracts


Fletcher Cox, Philadelphia Eagles-                         $63 Million
Marcell Dareus, Buffalo Bills -                                60
Ndamukong Suh, Miami Dolphins -                       59.95  
Richard Sherman, Seattle Seahawks -                    58.8
Olivia Vernon NYG -                                                52.5    
Justin Houston, Kansas City Chiefs -                     52.5
J.J. Watt, Houston Texans -                                     51.8               
Gerald McCoy, Tampa Bay Buccaneers -              51.85
Malik Jackson Jacksonville Jaguars -                    42
Darrell Revis, N.Y. Jets -                                          39


Tuesday, May 24, 2016

What is a "Serious Health Condition" Under the Family and Medical Leave Act (FMLA)? Is the Flu Covered by FMLA?

Qualified Employees Suffering From a Serious Health Condition Are Entitled to Up to 12-Weeks of Unpaid Leave Per Year Under the Family and Medical Leave Act (FMLA)

Generally speaking, the Family and Medical Leave Act provides qualified employees with the right to take time off of work without fear of retaliation if the employee or his/her close family member has a "serious health condition," or if the employee seeks to take time off to care for his/her new-born or adopted child.

FMLA = Job Security via Reinstatement Rights
Here are the basic requirements for FMLA Leave

NOTE:  Although there are some exceptions for certain types of employers, and certain types of employees, the following general rules apply to most American workers):

Employer:  must have more than 50 full-time employees located within 75-miles of applicat employee's workplace 

Employee:  must have been employed by company for at least one-year (employment term need not be consecutive);

Employee:  must have worked at least 1,250 hours during the 52-weeks immediately preceding request for leave;

Employee OR employee's close family member must have a serious health condition;

Employee must not have taken 12-weeks of FMLA leave within 12-months immediately preceding leave request (if less than 12-weeks previously used during immediately preceding 12-months, employee may take remaining number of days/weeks until full 12-week allotment exhausted).


Do I Have a Serious Health Condition That Entitles Me to Family Leave?  Does My Close Family Member, Infant or Child Have a Serious Health Condition Under FMLA?

What is a "Serious Health Condition" Under FMLA?

FMLA leave qualification issues seldom arise when the injury or illness at issue involves a serious personal injury such as one suffered in a car accident or a serious event that results in an observable wound or injury, or an in-patient stay at a hospital lasting more than a day.

Similarly, if an employee or his/her close family member is suffering from a serious illness such as a heart condition, cancer or potentially life-threatening malady, the right to FMLA Leave will rarely be called into question.

NOTE: In such situations, the employee's initial entitlement to FMLA Leave will likely not be debatable; nevertheless, it is possible that at some point the employee's right to remain out on FMLA Leave may become an issue of contention.

In addition to the above scenarios, leaves necessitated by a pregnancy, or the birth of a child, are known to be covered by FMLA.

FMLA Leave Always Available to Pregnant Workers
 and Immediately Following Childbirth
Is a Hospital Visit or Stay Required for Me to be Entitled to Family and Medical Leave (FMLA)?  Can My Family Doctor Put Me Out of Medical Leave?


Certification from Your Physician Always Required for FMLA Leave
FMLA entitlement issues most often arise when a medical condition does not require a hospital stay or potentially life sustaining medical care.  Hence, while an employer may (and almost always will) require that your physician complete an FMLA Medical Certification form no matter what the reason for your absence, such Certifications or relatively pro forma when the reason for leave is a serious injury sustained in a car accident, or where the employee has been diagnosed with cancer.

Where a potential serious condition other than significant personal injury, life threatening illness or pregnancy-related condition is involved, however, the medical certification becomes truly essential.

There are two situations involving relatively short-term absences that can lead to dispute - absences due to the onset of symptoms relating to chronic, recurring illnesses and short-term, non-recurring illnesses such as the flu.

While obtaining FMLA Leave in order to treat and recover from acute onset of a chronic illness is often simple, companies detest granting leave for short-term illnesses such as the flu, and the law supports denying leave in such circumstances.

How or Where Can I Find a FMLA Medical Certification Form to be Completed by my Family Doctor?  My Chronic Medical Condition Has Cropped Up and I Need Family Leave

If you need to take time off of work because a previously asymptomatic chronic illness has recently been causing you pain and discomfort, it is essential that you seek medical treatment while out on leave, and that your physician complete a FMLA Leave Medical Certification.

Always Necessary, but Essential
When Seeking Leave for Chronic or Short-Term Illness
Where FMLA qualifications for chronic conditions are concerned, the United States Department of Labor regulation states
Leave Entitlement Carefully Defined
Where Short-Term Illnesses Concerned


"Chronic Conditions: Any period of incapacity or treatment for such incapacity due to a chronic serious health condition that requires periodic visits (at least twice per year) to a health care provider, continues over an extended period of time and may cause episodic rather than a continuing period of incapacity."

Typical recurring chronic conditions include medical conditions such as diabetes, epilepsy, obstructive bowel syndrome and the like.

Thus, if you are suffering from the acute onset of symptoms you know to be associated with a chronic illness from which you suffer, it is imperative that you contact your doctor either immediately before or immediately after you give your employer notice of your need for FMLA Leave.  If your physician is "on board," your application for FMLA Leave due to the onset of symptoms associated with a chronic medical condition will almost always be granted.


Am I Entitled to FMLA Leave If I Miss a Week of Work Due to the Flu, or Bronchitis or an Earache or a Bad Cold?  My Child Has the Flu, and a Virus, May I Take Family and Medical Leave to Care for My Son or Daughter?

Non-recurring, one-time ailments lasting up to a week are among the most difficult FMLA situations.

Perhaps the most common area of dispute arises when an employee misses work for 2-3 days because the employee or his/her close family member (spouse or child) is sick with a "one-time, non-recurring" illness such as the flu, food poisoning or a similarly disabling short-term illness treated without assistance from the family doctor.

The Family and Leave Act generally does not permit an employee to take FMLA Leave because the employee or a close family member has the flu, a cold or a viral infection of some sort.

Flu, Common Cold Not
Serious Health Condition Under FMLA
In this connection the United States Department of Labor has stated the following:

"The legislative history also states that the term [serious health condition] "is not intended to cover short-term conditions for which treatment and recovery are very brief" and "minor illnesses which last only a few days and surgical procedures that typically do not involve hospitalization and require only a brief recovery period. Complications arising out of such procedures that develop into ‘serious health conditions’ will be covered by the act."

How do FMLA, Short-Term Disability Benefits and Unemployment Fit together? 

Helping Pennsylvania Workers With FMLA Issues Since 1991
Philadelphia Area Family and Medical Leave (FMLA) Attorney Helping Employees With Leave Requests and Short-Term Disability Applications

John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania FMLA/Disability Lawyer Provides Free Telephone Consultations and Contingent Fee Representation

If you believe you may require Family and Medical Leave and Short-Term Disability Benefits, and live or work in Philadelphia, Allentown, Reading, Bethlehem, Lancaster,  Levittown,  Abington, Allentown, Auburn, Ambler, Ardmore, Aston, Audubon, Avondale,  Bala Cynwyd, Bensalem, Berwyn, Bethlehem,Bird In Hand, Birdsboro, Birmingham, Boothwyn, Bowmansville, Boyertown, Bridgeport, Bristol,  Brookhaven, Broomall,  Brownfield,  Bryn Athyn,  Bryn Mawr, Buckingham,  Burlington, Caln, Chadds Ford, Chalfont, Charlestown, Cheltenham,  Chester Springs, Chester, Chester Heights,  Cheyney, Coatesville, Collegeville, Concord, Concordville, Conshohocken, Coventry, Cranberry,  Crum Lynne,  Darby, Daylesford, Devault, Devon, Douglassville, Downingtown, Doylestown, Dresher,  Drexel Hill,  Dublin, Eagleville, East Bradford, East Brandywine, East Coventry, East Fallowfield, East Goshen and East Nantmeal or any surrounding areas, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Experienced Lawyer to Help You With a FMLA Leave Issue?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

Thanks for checking in with us.




Are You Owed Money by Your Former Employer? Pennsylvania's Wage Payment and Collection Law is a Powerful Statute

I am Owed Payroll, a Bonus, Vacation Pay, Sick Pay or Severance in Pennsylvania and I Need a Contingent Fee Lawyer

Pennsylvania's legislature does not take kindly to employers who do not pay their employees money that they have earned and/or are entitled.  This is apparent from a review of the provisions of Pennsylvania's Wage Payment and Collection Law of  1961 ("WPCL").

Pennsylvania's Wage Payment and Collection Law Protects You if You Are Suing for Unpaid Wages, Including Fringe Benefits Such as Vacation Pay

The WPCL protects employees who are owed wages such as payroll pay or bonus, as well as those entitled to earned but unpaid fringe benefits such as vacation pay.  If you are owed anything of value by your employer, the WPCL is available to you.

Missing Anything?
Pennsylvania's Wage Payment and Collection Law Entitled Employees to Recover Punitive Damages and Attorney Fees

The WPCL applies if an employee can prove that he/she has not been paid wages, compensation or fringe benefits to which he/she has a contractual right.  How do you prove a contractual right?

There are three common ways that a non-union employee proves such a contract.

How Do I Prove That I Have a Contractual Right to Be Paid Wages, Bonuses, Fringe Benefits or Severance by My  Employer?

One, you have a written employment agreement, usually in the form of a letter or a more detailed written contract, which spells out how much in compensation you will be paid each year, and what type of fringe benefits you will receive.

Two, the company has a written company policy that spells out how much employees are paid, and what fringe benefits employees receive.

If You Have Earned It, You Should be Paid it
Three, the company's course of dealing, with you and other employees like you, creates a contractual arrangement that cannot be avoided at the company's choosing.

So, if the company always pays its employees 3 weeks of bonus each March, that proves a contract. If it always pays employees one week of severance per year of employment, that is a contract.

Pennsylvania's Wage Payment and Collection Law Provides for Punitive Damages, Individual Liability and a Mandatory Award of Attorney Fees to Victorious Employees

WPCL contains three provisions that make it a somewhat unusual, and very powerful, vehicle of recovery for disenfranchised employees.  

First, WPCL provides that any employee prevailing on a claim is entitled to a mandatory award of attorney's fees and costs.  The reverse is NOT true if the employer wins.

Are They Claiming "Good Cause" for Your Termination
When None Exists?
Two, the WPCL entitles a victorious plaintiff to a penalty equal to up to 25% of the unpaid compensation, and this penalty can be avoided only if the employer can prove that it had a "good faith" reason for withholding the monies in question.

Three, the WPCL provides that any individuals who are involved in the decision to withhold the earned compensation can be sued on an individual basis, even if the company is a corporation.

Click Here to jump to our Post concerning how misclassified workers can win overtime payments.  


Overtime Claims Can Add Up Quickly!
If You Have Been Misclassified as a Self-Employed Independent Contractor, You May Recover Compensation Under Pennsylvania's Wage Payment and Collection Law

I frequently am contacted by workers who had signed independent contractor agreements, and are paid as if they are self-employed, but in fact do the same job as co-workers who are paid on a w-2 basis.  This is called "misclassification," and it is all too common.

Misclassification Common, but a Remedy Does Exist
An individual who can prove that he/she has been misclassified can win unpaid overtime, along with, in many cases, wages and fringe benefits that he/she would have received absent misclassification.  In such situations, the remedies provided by WPCL add a cherry to the top of what can be a very satisfying victory.

It is for these reasons that I routinely handle claims for unpaid compensation on a contingent fee basis.  Don't le the company get away with not paying you your hard earned wages and fringe benefits!

Representing Pennsylvania's Workforce Since 1991
CLICK HERE TO JUMP TO JOHN'S YOUTUBE CHANNEL
Philadelphia Area Wage and Hour Attorney Helping Employees Collect Wages, Compensation, Bonuses and Severance on a Contingent Fee Basis Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Wage and Hour Lawyer Provides Free Telephone Consultations and Contingent Fee Representation

If you are owed money by your employer, are looking for a contingent fee lawyer who is experienced in collecting wages, compensation, bonuses and severance from corporations that withhold payment from their employees and live or work in Lower Pottsgrove, Lower Providence, Lower Salford, Malvern, Marcus Hook, Marlborough, Media, Merion, Merion Station, Methacton, Middletown, Montgomeryville, Morgantown,  Morton, Nether Providence, New Hope, Newtown, Newtown Square, Norristown, Northampton, North Wales, Norwood,  Nottingham, Oakmont, Oaks, Oxford, Paoli, Philadelphia, Pennsbury, Perkasie, Perkiomenville, Phoenixville, Plymouth, Plymouth Meeting, Plymouth Whitemarsh, Pocopson,  Pottstown, Prospect Park, Quakertown, Reading, Philadelphia, Allentown, Reading, Bethlehem, Lancaster,  Levittown,  Abington, Allentown, Auburn, Ambler, Ardmore, Aston, Audubon, Avondale,  Bala Cynwyd, Bensalem, Berwyn, Bethlehem, Bird In Hand, Birdsboro, Birmingham, Boothwyn, Bowmansville, Boyertown, Bridgeport, Bristol,  Brookhaven, Broomall,  Brownfield,  Bryn Athyn,  Bryn Mawr, Buckingham,  Burlington, Caln, Chadds Ford, Chalfont, Charlestown, or any of their surrounding neighborhood, consider giving us a call to discuss your matter.

Need an Experienced Contingent Fee Lawyer to Collect Money You Are Owed by Your Former Employer?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

Thanks for checking in with us.


Saturday, May 21, 2016

Misclassification - Am I Really a Self-Employed Independent Contractor? How Do I Know if I am Self-Employed?

If You Have Been Paid as an Independent Contractor, But Are Really an Employee, You Can Make a Claim for Overtime, Benefits and Unemployment Compensation

Nowadays, it is very common for companies to intentionally misclassify workers who should be paid as w-2 employees as self-employed independent contractors paid on a 1099 basis.

You Are Right to Question Your "True" Status
Independent Contractors Do Not Receive Company Benefits or Overtime

That is so because a company is not obligated to provide benefits such as vacation pay and medical coverage to independent contractors, nor is it required to pay them overtime.

Misclassified Workers Excluded
From Company Benefits
Self-Employed Workers Must Make Social Security and Medicare Contributions Ordinarily Paid by Employers

Moreover, a company is not required to make social security and medicare contributions, or pay federal, state or local income tax on behalf of workers who it deems to be self-employed.  

Misclassification Hurts You -
and All Americans


If a company gets away with misclassifying a worker, it avoids obligations such as FICA, Social Security and Medicare contributions, which are then passed along to the misclassified individual.

The federal government mitigates the losses that would be sustained by the Social Security and Medicare funds by imposing a self-employment tax of roughly 14% on the self-employed worker.  This is twice the amount that a w-2 employee pays into these funds each year via weekly payroll contributions, the other half being made up by matching employer contributions.

If you have worked overtime, and are misclassified as an independent contractor, you may have an excellent claim for unpaid overtime compensation.

You Deserve to be Paid for ALL of the Hours You Work
Independent Contractors Are Not Entitled to Workers' Compensation or Unemployment Benefits 

In addition, companies are not obligated to make contributions into state workers' compensation and unemployment funds on behalf of independent contractors they employ, and self-employed workers are not entitled to receive such benefits UNLESS they can prove they were misclassified.

How Do I Know If I Have Been Misclassified?

There are a number of factors, called a "legal test," that are considered in determining whether an individual is an employee, as opposed to a self-employed independent contractor.

I have even a simpler test:  compare the way that the company treats you versus the way it treats true third-party companies that it deals with, such as its vendors and suppliers.  In doing so, ask yourself:

Are You the Master of Your Own Domain?
If so, You are Likely Self-Employed
*  Where does the vendor go to work each day?  Where do I?

*  How many businesses does the vendor provide services to?  How many do I work for?

*  To what extent is the vendor required to follow company policies such as those relating to dress code, attendance and schedule?  To what extent am I?

*  How many employees does the vendor have?  How many do I have?

*  Does the vendor have its own website?  Do I?

*  Is the vendor incorporated? Am I?

Are You Required to
Follow Company Policies?
The Company's Paper Supplier Isn't
*  Where does the vendor get its supplies, business forms and equipment?  Where do I?

*  Who provides the vendor with instructions as to what to do each day?  Who tells me my assignments?

*  Is the vendor required to attend your company's meetings?  Am I?

*  Is the vendor ever subject to discipline under your company's policies? Am I?

*  Who provided training to the vendor?  Did I receive training and, if so, about what and from whom?

*  Does the vendor have an e-Mail address registered to your company, a company business card or a company telephone extension? Do I have any of these thing?

Can I Get Unemployment in Pennsylvania if I Have Been Misclassified as an Independent 
Contractor?

Well-Aware of Misclassification Issue

 Yes, you may be entitled to unemployment compensation in Pennsylvania even if you were misclassified as an independent contractor.

Apply for benefits. In about 7-10 days, you will receive a Notice of Financial Determination stating that you are not qualified for benefits because you have no earnings.

You have 15 days to appeal that Notice of Financial Determination.  Do so, and when asked why you are appealing, simply say, "I disagree with the Determination."  You will then receive a Notice of Hearing before an Unemployment Compensation Hearing Referee.

In Pennsylvania, every worker is presumed to be an employee, and at a Referee Hearing, the burden of proof is on the employer to prove otherwise where you are concerned.  However, employers know this and, due to the risks they face if they lose (fines, taxes and the like), and the fact that the Referee Hearing is the only opportunity to make a record in the matter (appeals from Referee Decisions are limited to the review of the record established at the Hearing), they usually come well-prepared, and often accompanied by counsel.

You Only Get
 One Bite at the Apple...
To Score a Victory
You certainly want to consider hiring an attorney to represent you at that Referee Hearing.

Need Help Completing a Self-Employment Claimant Questionnaire From Pennsylvania Unemployment?

Pennsylvania's Claimant Questionnaire for Self-Employed Independent Contractors is designed for a variety of situations, and thus can be very confusing. However, anything you say on there may be used against you by the Service Center, and at any Referee Hearing, so it is very important that you get it right.

If You Have Been Misclassified as a Self-Employed Independent Contractor In Pennsylvania, You Can Win Unpaid Wages and Fringe Benefits in a Lawsuit Under Pennsylvania's Wage Payment and Collection Law

If your "co-workers" have received bonuses, fringe benefits such as vacation pay, overtime and severance, while you have been deprived of same due to misclassification, you can file a lawsuit and win a claim for such benefits, along with attorneys' fees and punitive damages, under Pennsylvania's Wage Payment and Collection Law.

I charge a relatively modest fee to help claimants make sure they properly complete the Questionnaire and accurately state their position in an attached Memorandum.

Can I Get Paid Overtime if I Was Misclassified as an Independent Contractor?

Yes, you certainly can.  I routinely collect overtime compensation on behalf of misclassified workers.

Helping Misclassified Workers Since 1991
CLICK HERE TO JUMP TO JOHN'S YOUTUBE CHANNEL
Philadelphia Area Attorney Representing Misclassified Workers

John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Unemployment Employment Attorney Provides Free Telephone Consultations (15 Minutes in Duration)

If you are looking for an unemployment lawyer, and live in Paoli, Exton, Phoenixville, Downingtown, Coatesville, West Chester, Newtown Square, Nether Providence, Springfield, Aston, Broomall, Marple, Villanova, Lansdowne, Wayne, Ardmore, Bryn Mawr, Glenolden, Havertown, Haverford, Limerick, Oaks,  Lower Merion or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Have you Been Misclassified as a Self-Employed Independent Contractor?  

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly; Mr. Gallagher has handled hundreds of Referee Hearings throughout Pennsylvania.

Thanks for checking in with us.





Thursday, May 19, 2016

The Truth About Non-Competition Agreements That Your Employer Does Not Want You to Know - Mere Breach of Non-Compete Not Enough for Injunction

Non-Compete Clauses in Employment Contracts Generally Not Enforceable Where the Average Employee is Concerned 

A typical Employment Agreement contains three "Restrictive Covenants": 1) Confidentiality; 2) Non-Competition; and, 3) Non-Solicitation.  


Three Separate Contracts in One
Hence, while many folks collectively refer to such contracts as "my Non-Compete Agreement," that is not the case.  Moreover, in some situations only 1 or 2 of these Covenants are found to be enforceable, while the other two are not. 

For example, Pennsylvania law holds that an employee who is fired due to alleged poor performance is not bound by a Non-Competition covenant the employee signed at the outset of his/her employment.  In such cases, however, the employee is still bound by the Confidentiality and Non-Solicitation clauses.

Click Here to read our in-depth analysis of Confidentiality clauses.

Moreover, the law makes relatively clear that an employee's mere violation of a Non-Compete covenant, will not, absent aggravating circumstances, result in an injunction in favor of the employee's former employer, much less a judgment for money damages.  

The most significant aggravating factor is, by far, soliciting former customers away from your former employer, and securing new business from them on behalf of your new employer.  


However, if while working for a competitor you violate the Confidentiality and/or Non-Solicitation clauses in your Employment Agreement, problems will almost certainly arise.
  
If I Violate My Non-Compete Clause by Going to Work for a Competitor, but do not Use My Former Employer's Confidential Information at My New Job, and I Do Not Solicit Customers Away From My Former Employer, Will I get in Trouble?

That is the magic question and the answer is "No, unless you know a true Trade Secret owned by your former employer."  Trade Secrets are very rare, and odds are you do not know any. 

However, if you are one of 7 people who work for Bimbo Bakeries that know the recipe that results in those amazing nooks and crannies, you may want to rethink your departure to a competitor such as Hostess!

That's One Delicious Trade Secret!
A scenario that is much more common than the English Muffin matter arises when an employee goes to work for a competitor (or starts a new business), and thereafter uses Confidential Information taken from the former employer, and begins to solicit clients the employee used to service while employed with the former employer.

If You Avoid Soliciting,
You Avoid Trouble
Violations of a Confidentiality Clauses and Non-Solicitation Clauses Contained in Employment Agreements Spark Lawsuits, and Preliminary Injunctions are Often the Result

Typically, if an employee bound by a restrictive covenant goes to work for a competitor and starts to solicit clients from his/her old employer, the old employer will file suit immediately, and will ask the court to immediately grant a preliminary  injunction.  In these situations, the former employer will
not necessarily delay filing suit until it starts to lose clients; mere evidence of the former employee's efforts to solicit such business will be enough to spur a legal action. 

What Can Happen at a Preliminary Injunction Hearing Relating to a Claim That an Employee Has Violated a Non-Compete Employment Agreement?

An employer seeking a Preliminary Injunction against an employee who had signed an Employment Agreement containing the aforementioned Restrictive Covenants wants to prove 3 things: 

1) the former employee is working for a competitor; 

2) the former employee absconded with the the employer's Confidential Information; and, 

3) the former employee used the Confidential Information in the course of successfully soliciting clients away from the employer and to the employee's new employer.

Click Here to e-mail John directly.

Injunctions Come in Various Shapes and Sizes 
What Are the Possible Outcomes at a Preliminary Hearing for Breach of a Non-Compete Agreement?

There are many, but here are some permutations.

*  If the employer can prove only that its former employee is now working for a competitor, it is unlikely that an injunction will issue.

*  If the employer proves the former employee is now working for a competitor and possesses Confidential Information - but cannot prove that the employee has  engaged in solicitation -- it is possible that an injunction will issue, but if so it will likely only order the employee to destroy all of the Confidential Information he/she has.

*  If the employer proves the former employee is now working for a competitor and  that the former employee has solicited clients without success -- but cannot prove the employee has misappropriated Confidential Information -- it is possible that an injunction will issue, but it will likely only order the employee to stop soliciting the employer's clients.

Making a Sale to a Former Client in Violation of Non-Solicitation Covenant
 in Your Employment Agreement is Death Knell to Your Future Employment
What is the Worst Thing That Can Happen If I Take My Employer's Confidential Information and Violate My Non-Solicitation or Non-Competition Agreement?

In many such situations, evidence of aggravating factors often results in an injunction that also orders the former employee to immediately cease employment with his/her new employer. The two most common aggravating factors are:

1)         Evidence introduced at the Preliminary Injunction Hearing proves that the former employee had not only solicited business from his/her former clients, but had actually secured new business from these clients at the expense of the former employer, and to the benefit of the new employer; and/or, 


Evidence That Employee Misappropriated Confidential Information
and Used it at New Job in Course of Soliciting Former Customers
Will Almost Always Lead to Injunction 
2)         Evidence introduced at the Preliminary Injunction Hearing shows that, as the employee’s employment was winding down, the employee engaged in a scheme to misappropriate the employer’s Confidential Information, and used that Confidential Information in the course of successfully ferrying customers away from the former employer, and into the waiting arms of the new employer.

Injunctions are the most common relief sought when a former employee is caught soliciting clients of his/her former employer.  Obtaining an injunction (i.e. “equitable relief”) is the “holy grail” of non-compete litigation. That is so because a plaintiff does not need to prove financial loss in order to get an injunction.  Rather, it need only show that the former employee engaged in wrongdoing in violation of the Restrictive Covenants found in his/her Employment Agreement.

By comparison, in order to recover damages in a breach of contract case, a plaintiff must show that it suffered actual economic damages. Proof of bad intent or malfeasance by the former employee, while helpful, is not necessary.  
Malfeasance = Injunction
The mere fact that an employee violated restrictive covenants does not prove that a former employee had bad intent or engaged in malfeasance, so an injunction ordinarily will not issue absent some evidence of same. Toss in evidence that the former employee violated the Confidential Information and/or Non-Solicitation clauses in the Employment Agreement, however, and the "malfeasance" requirement is satisfied, and injunctive relief will most assuredly follow.   



Prosecuting and Defending
Confidentiality Clause Cases Since 1991
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         Philadelphia Area Non-Compete Lawyer

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.
  
Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

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