Solicitation?

[katmo7]

What is the name of your state (only U.S. law)? Massachusetts

If a Company does not have a non-compete/non-solicitation agreement with you and it's not a company policy, but they fire you for that reason is it illegal?

Here are the facts: An employee of X agency worked for them for a year and was recently still employed by them before the said incident below. This employee has decided to start their own company (which is in the beginning stages). A client/patient of X agency has a contract with X agency, but the contract is about to expire with the agency and they are aware that the employee of X agency is starting there own business and the client wants to sign a new contract with the employee and go with them versus X agency (the agency they are currently with).

X agency finds out about this employees interest in starting their own Company and their client's interest to sign a contract with this employee. They immediately tell the employee the following:

"Name of Employee, CLIENT is under the impression that you are starting you own business and have contacted her lawyers to transfer care. If this is true, you must cease and desist at once. Return your laptop to the office. Visits with CLIENT and any other patient will be reassigned immediately It is against company policy to solicit patients for any agency. She has been with us under contract for a year."

They state it's against company policy however no non-solicitation/compete contract exists and it's not stated in their employee handbook either......

When someone says cease and desist is that like legally saying you're terminated? I always thought cease and desist meant to stop...it sounds like the email sent said the employee was being terminated, but they didn't exactly use that language...

 

[>Charlotte<]

"Cease and desist" sounds like they are ordering you, as their employee, to stop soliciting clients from their existing client base.

"Turn in your laptop" and "client and other patients will be re-assigned" sounds like they're firing you for contractual interference. Your use of company resources and time to start your own business, in the process of stealing their clients, might also be construed as conversion.

It doesn't have to be spelled out in a handbook for it to be company policy, and in any case, that handbook wouldn't supersede laws pertaining to at-will employment (well, it would in some states, but not Massachusetts).

On the other hand, if you have an employment contract which contradicts the terms under which are you being fired, you might have some recourse. But I seriously doubt you have an employment contract that states you are allowed to siphon off your employer's clients while you are still their employee. If you do have a contract, you'll need to take it to an attorney who can thoroughly review it, but if I were you I'd find one that offers free consultations.

 

[katmo7]

Thank you for the information below.

Clients weren't so called being solicitated. A client caught word that employee was starting their own Company and on their own client told employee that they wanted to go with them and their new company for services. Clients case manager reached out to this employee as well as did client's attorney to initiate a transfer of care or to start the process. Employee's company caught wind of this and "told employee" to cease and desist and turn in laptop..etc..

Company has no at will doctrine stated anywhere either, believe it or not! Also, it's my understanding cease and desist is something only a judge/lawyer would order, not a Company. It's a legal order, so I'm not sure how a Company could order this especially when there is no non-solicitation agreement. Legally don't they have to say you have been "terminated". If employee wanted to file for unemployment but has not been told they have been terminated Company may claim employee was never "terminated". They are avoiding giving employee a termination letter nor have they paid employee due monies. Also, how can a Company prove it was Company policy when there is nothing in writing? If employee was to file for unemployment Company would say fired for violating Company policy but how could they prove it was Company policy when nothing is signed or in writing...

You state that something does not have to be spelled out to be Company policy...I don't understand that..So a company can just create their own policies at the drop of a hat without informing any employees (especially if they don't have an at will employee doctrine?)....

 

[eerelations]

Employers don't have to state they're "at-will" employers to be "at-will" employers. Just because this company hasn't stated that it's an at-will employer doesn't mean that it isn't an at-will employer.

 

[katmo7]

I know that. You're posts doesn't address the main issues of the original posts though nor is it very helpful.

 

[eerelations]

Well, sweetie, you're the one who said that your employer wasn't an at-will employer because it hadn't specifically stated that it was an at-will employer, and because it therefore wasn't an at-will employer it therefore couldn't discipline or fire you for something that wasn't prohibited by a company policy. All I did was point out that your employer may in fact be an at-will employer anyway...if you didn't want us to comment on that, you shouldn't have mentioned at-will in the first place.

To answer your real question, it's perfectly legal for your employer to discipline or fire you for doing something it doesn't want you to do, even if it doesn't have a stated policy prohibiting that activity. Period.

And to answer one of your other questions, yes, it's perfectly legal for your employer - and anyone else! - to use the phrase "cease and desist" any time it wants, in any context whatsoever!

 

[>Charlotte<]

I know that. You're posts doesn't address the main issues of the original posts though nor is it very helpful.

Oh, c'mon. If you "knew" that, you wouldn't have brought up the issue of a company not having an "at-will employee doctrine" in the first place.

You state that something does not have to be spelled out to be Company policy...I don't understand that..So a company can just create their own policies at the drop of a hat

Yep, pretty much. As long as those policies don't violate any laws. Think, for a moment, about the absurdity of requiring all prohibitions to be outlined in a handbook. If you don't mind a rather ridiculous--but still accurate--example, I'll bet your handbook doesn't specifically prohibit you from doing the Hokey Pokey on the conference table at a Board of Director's meeting. Does that mean it's allowed?

Yours is a common trend. Posters often say they know what at-will employment means, and then go on to ask if they can be fired for something that is clearly within the parameters of at-will employment. Key words: anybody, anytime, anything.

At-will employment is pretty clearly defined, and firing you for what you did is apparently covered by that according to what you've posted.

 

[katmo7]

Well, sweetie, you're the one who said that your employer wasn't an at-will employer because it hadn't specifically stated that it was an at-will employer, and because it therefore wasn't an at-will employer it therefore couldn't discipline or fire you for something that wasn't prohibited by a company policy. All I did was point out that your employer may in fact be an at-will employer anyway...if you didn't want us to comment on that, you shouldn't have mentioned at-will in the first place.

So, what you are saying is that if a company doesn't state they are at-will they still may in-fact be at will even if they don't state so? How is that so?

To answer your real question, it's perfectly legal for your employer to discipline or fire you for doing something it doesn't want you to do, even if it doesn't have a stated policy prohibiting that activity. Period.

Gotcha. But what if the employer fires you stating it was a Company policy (even though its not documented -I know you said it doesn't have to be), but disciple of violating this so called policy is not uniformally imposed to all employees in violation...

There are also exceptions to the Employment-at -Will doctrine that hold up in court. I mean courts do limit the employer's rights to terminate employees at will. There are several instances as follows where employees are not able to terminate an employee at will :
-Discharges in violatin of public policy;
-that violate the "good fiath and fair dealing" policy'
-that involve a breach of contract'
-for employees seeking rights under applicable law'
-cooperation with an investigation'
-and testifying or future testimony in any action brought under appropriate law....

And to answer one of your other questions, yes, it's perfectly legal for your employer - and anyone else! - to use the phrase "cease and desist" any time it wants, in any context whatsoever!

I understand anyone can use any phrase they want to in whatever context..but cease and desist doesn't mean you're terminated...legally speaking....Doesn't a company have to tell you that your employment with them has been terminated. If they just tell you to cease and desist on an activity...how do you know if you have been fired or not? Cease and desists means to stop, not you're fired..what do you tell unemployment? That your former employer told you to cease and desist..not that you were terminated?

Also, if you violate Company policy you typically aren't eligible for unemployment..so don't you have to prove that a Company policy existed if that's the reason you give for terminating someone and doesn't a Company have to prove it was a Company policy to the unemployment office. That's kind of hard to do if you don't have anything in writing isn't it?

 

[mlane58]

So, what you are saying is that if a company doesn't state they are at-will they still may in-fact be at will even if they don't state so? How is that so?

No that's not what they are saying. Unless the employee has a bona fide contract or are part of a collective bargaining agreement, they are at-will.

There are also exceptions to the Employment -at - Will doctrine that hold up in court. I mean courts do limit the employer's rights to terminate employees at will.

Yes and that would when it violates state or federal law involving a person's race, gender. age, etc....

There are several instances as follows where employees are not able to terminate an employee at will I was always tought:
Discharges in violatin of public policy;

Again, that would be for filing a worker's comp claim

for employees seeking rights under applicable law'
cooperation with an investigation' and testifying or future testimony in any action brought under appropriate law....

If that investigation invovles the police or a federal agency (i.e. EEOC)

That your former employer told you to cease and desist..not that you were terminated? Also, if you violate Company policy you typically aren't eligible for unemployment..so don't you have to prove that a Company policy existed if that's the reason you give for terminating someone and doesn't a Company have to prove it was a Company policy to the unemployment office. That's kind of hard to do if you don't have anything in writing isn't it?

That all depends on what the policy was and the nature of the infraction and was the employee warned about it prior. Company doesn't have to prove anything unless they believe that the unemployment division of their state beleives everything employers tell them.

 

[eerelations]

Oh for heaven's sake! You said (very snarkily I might add) you understood that a company doesn't have to publicly declare itself to be at-will to actually be at-will...and now you want us to explain it to you again?

This is the last time I'm gonna say it:

A company doesn't have to publicly declare itself to be at-will to actually be at-will. Period. When will you finally get it?

Regarding everything else you're railing on about - get over it. You're fired, and it was a perfectly legal firing. Apply for UI benefits - you may or may not receive them but if you do receive them, don't come back here yelling that this must mean you were wrongfully terminated - because it doesn't. Period.

Every time another question pops into your little head, just read the above for the answer.

 

[cbg]

In all states but Montana, and to a certain extent even in Montana, at-will is the default. You're trying to say that the employer is not at-will unless they say they are, but you've got it backwards. In actual fact, under the law of each and every state (with the single exception already noted) employment is at will unless there is something that says they're not.

 

[>Charlotte<]

So, what you are saying is that if a company doesn't state they are at-will they still may in-fact be at will even if they don't state so? How is that so?

It's not the company that determines its own at-will status. It is or it isn't, whether or not it declares itself so.

Also, be careful using Wiki or Ask.com or whatever that is. Not all exceptions to at-will employment are applicable to all states.

 

[katmo7]

Regarding everything else you're railing on about - get over it. You're fired, and it was a perfectly legal firing. Apply for UI benefits - you may or may not receive them but if you do receive them, don't come back here yelling that this must mean you were wrongfully terminated - because it doesn't. Period.

First off it's not myself I'm speaking about and secondly it may not be a legal firing. There are wrongful terminations. Especially if a so called policy violation is not disciplined uniformally and this person is over the age 40, a women of color and has just recently filed a complaint with a state agency about the employer.

I won't be posting again. I don't appreciate your rudeness and tone. You can take your stinky customer service skills and attitude and reply to other posters who come on here just looking for help. I find it pretty funny you are getting your panties in ruffle over someone just trying to clarify things and asking questions.

 

[mlane58]

First off it's not myself I'm speaking about and secondly it may not be a legal firing. There are wrongful terminations. Especially if a so called policy violation is not disciplined uniformally and this person is over the age 40, a women of color and has just recently filed a complaint with a state agency about the employer.

Give me a break! the policy violation doesn't have to be disciplined evenly and in order for a successful claim with the state or federal EEOC, that person would have to show a prime facia case that they were unjustly disciplined because of their gender, race, age, etc....

I won't be posting again. I don't appreciate your rudeness and tone. You can take your stinky customer service skills and attitude and reply to other posters who come on here just looking for help. I find it pretty funny you are getting your panties in ruffle over someone just trying to clarify things and asking questions.

Thank GOD! to paraphrase Mark Twian

"Providence protects children and idiots. we know because you katmo have tested it."

 

[katmo7]

Oh, c'mon. If you "knew" that, you wouldn't have brought up the issue of a company not having an "at-will employee doctrine" in the first place.

No. I know a company by default, if they don't state they are at-will, can be an at-will employee like you and that OTHER person mentioned. I didn't know if it applied to the state of MA and I'm shocked that Montana (to a certain extent) is the only state that is otherwise. I thought that in most states you had to declare that you are an at will employee and if you didn't than you aren't an at will employee by default so to speak less a binding contract.

What I'm really looking to find out is 1) if a company terminates you don't they have to properly inform you? I mean "turn in your computer and off the schedule" sounds like one is being terminated to any reasonable person, but what if the employer claims they never terminated you and you voluntarily left? Especially since they are unwilling to provide a termination letter or anything in writing stating that your employment has ended and they never really verbally told you that your employment was "terminated".