When can a federal employee appeal a forced retirement to MSPB?

We frequently consult with longtime federal employees who are towards the end of their careers and find themselves dealing with a new and unpleasant supervisor who makes their work life hell.  By the time they get to us the situation at work is bad.  Either the supervisor has issued discipline, rated them unacceptably, or placed them on a PIP.  We are frequently asked if they can claim that they were forced to quit and then pursue a claim against the agency at MSPB.

MSPB rules hold that in order to state a claim for involuntary retirement, also called a forced removal or constructive discharge, the employee must establish that the retirement was the result of intolerable working conditions.

However, MSPB applies this rule narrowly.  It requires that the employee must show that the agency’s efforts to force the employee out were the result of improper acts by the agency and a forced removal will not be found where an employee retires “because he does not like agency decisions such as a new assignment, a transfer, or other measures that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant … that he feels he has no realistic option but to leave.”  Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013).

There are many avenues available to address problems faced by longtime federal employees.  Don’t go it alone or rely on advice you find from the internet.  Call the employment lawyers at Alan Lescht and Associates, P.C. if you face these issues and we will put our many years of experience to work for you.

What to do if you receive a cease and desist letter from your former employer?

On behalf of Alan Lescht & Associates, P.C. posted in Non-Compete Agreements on Friday, May 9, 2014.

Ten years ago very few people were asked to sign contracts that included non compete, non solicitation and confidentiality provisions. Today, that practice seems commonplace. And in today’s economy, we see people nearly every week who, after leaving a job on their own or by firing, receive a letter from their former employer threatening a lawsuit and/or demanding that the person either inform the new employer about the restrictive covenants, quit or stop working in their chosen field.

What to do if you get a letter like this?

First, take a deep breath. It is not the end of the world. Many restrictive covenants are written in such a way that they are so overly broad or unreasonable that they are not enforceable. Courts do not want you unemployed and so will take a very hard look at these agreements before putting you out of a job.

Second, look through your files and locate a copy of the agreement you signed. If you can’t find it, then politely ask your former employer to provide a copy of it to you.

Lastly, contact a lawyer who, like us, handles this type of work BEFORE you respond to your former employer or tell your current employer about the situation. I say this because it is important that you know whether there is any validity to the allegations made in the cease and desist letter and what your potential recourse is before you begin to tell other people about it or respond to the allegations.

The employment lawyers at Alan Lescht and Associates, P.C., provide advice and representation in matters involving non compete, non solicitation and confidentiality.

MSPB Rights Of Federal Employees Who Retire In Lieu Of Removal

Federal employees who are removed from their jobs generally may seek reinstatement and back pay at the MSPB. However, we occasionally encounter people who decide to retire rather than challenge a proposed removal and are asked what impact retirement will have on them. The answer is that federal employees who elect to retire may still pursue their case at MSPB but their decision to retire before removal will cause MSPB to issue a show cause order requiring them to establish jurisdiction. Because MSPB jurisdiction extends only to removal cases where the removal was involuntary, federal employees who retire in lieu of removal will need to establish that they were constructively discharged — forced to quit — in order to continue with their case, and this is not an easy burden to uphold.

Federal employees facing removal should call the employment lawyers at Alan Lescht and Associates, P.C. for advice and counsel before making critical decisions about their employment.

Exploitation of undocumented workers: they still have legal rights

A recent article in The Tennessean looked at the issue of employers’ failure to pay immigrant workers. The article highlighted the protections available to such workers when their employers exploit them.

According to a 2004 study by the Urban Institute, undocumented workers made up about 5 percent of the U.S. workforce. Although it is illegal for employers to hire undocumented workers, they are bound by the Fair Labor Standards Act to provide minimum wages, overtime pay, and other protections once they do. Further, there is no legal residency requirement to file a complaint in American courts, which means that even illegal workers can file complaints against employers failing to comply with the Fair Labor Standards Act.

The Worker’s Dignity Project-a Nashville-based nonprofit-seeks to educate immigrant workers of their rights and assist them in securing those protections.

Many immigrant workers, both legal and illegal, report that some employers neglect to pay them properly for their work and then threaten deportation if they complain. Complaints filed in the U.S. District Court for the Middle District of Tennessee showed a variety of claims, from accusations of failure to pay overtime wages to painters, to exploiting Mexican migrant workers through federal guest worker programs.

According to a Nashville attorney who represents such workers, employers sometimes threaten to call police or immigration authorities and then continue to work immigrants without paying them. Because of the situation of such workers, it is easy for employers to fail to pay full wages and come up with excuses.

Some advocates say the problem is more widespread than is readily visible, since many undocumented workers do not come forward.

According to an Immigration and Customs Enforcement spokesman, the primary focus of the agency is not to find and deport illegal workers, but to prevent employers from knowingly hiring, exploiting and trafficking illegal workers.

Programs similar to the Workers’ Dignity Project exist in other cities, such as Austin, Texas and Long Island, New York.

Advocates for immigrant workers say that such exploitation is not only contrary to basic human rights, but that it also depresses wages, benefits and working conditions for all workers.

Source: The Tennessean, “Immigrants turn to courts when wages aren’t paid: legal, illegal workers are protected from threats, exploitation,” Brandon Gee, 25 Jan 2011.

Non-compete Agreement Prevents CVS from Hiring Former Wal-Mart VP

Most are familiar with Wal-Mart’s success as a company, and its uncanny ability to drive smaller competing businesses into the ground. But people are not necessarily aware of the legal battles Wal-Mart engages in to protect its marketing strategy.

On December 15th, Wal-Mart won a court order preventing CVS Caremark Corp. from hiring the man who formerly served as Wal-Mart’s executive vice president. Wal-Mart claims that its former VP is bound by a non-compete agreement.

Wal-Mart hired its former executive VP in 2006 and formed a non-compete agreement with him in 2009 upon appointing him president of Northern U.S. division of Wal-Mart. The agreement prevents the former VP from working for competitors retailing more than $5 billion in revenue for two years after leaving Wal-Mart.

The agreement was reportedly made to prevent the former VP from disseminating confidential information concerning Wal-Mart’s pilot program involving small-format markets. The former VP had been the executive sponsor of Wal-Mart’s small-format plan, and had oversight of 1,312 stores in 19 states during his time with the company.

In a hearing concerning the contract dispute, CVS argued that Wal-Mart brought the former VP on because of his expertise in management rather than for his knowledge about Wal-Mart growth strategy, and that any knowledge he may have is outdated. But the judge ruled that the non-compete agreement was reasonable. Wal-Mart’s request was granted as a preliminary injunction, which will prevent CVS from making the hire until the issue is tried in early March.

In the area of pharmacy retail, Wal-Mart has established itself as a competitor with companies like CVS, Walgreens, and Supervalu. The company currently has over 4,000 pharmacies.

Wal-Mart announced its plans last October to open 30 to 40 small-format markets in 2012. Its small-format strategy will place it in direct competition with companies CVS.

Source: Bloomberg, “CVS Can’t Hire Ex-Wal-Mart Vice President, Judge Says,” Sophia Pearson; Phil Milford, 15 Dec 2010.

Non-compete Agreement Prevents CVS from Hiring Former Wal-Mart VP

Most are familiar with Wal-Mart’s success as a company, and its uncanny ability to drive smaller competing businesses into the ground. But people are not necessarily aware of the legal battles Wal-Mart engages in to protect its marketing strategy.

On December 15th, Wal-Mart won a court order preventing CVS Caremark Corp. from hiring the man who formerly served as Wal-Mart’s executive vice president. Wal-Mart claims that its former VP is bound by a non-compete agreement.

Wal-Mart hired its former executive VP in 2006 and formed a non-compete agreement with him in 2009 upon appointing him president of Northern U.S. division of Wal-Mart. The agreement prevents the former VP from working for competitors retailing more than $5 billion in revenue for two years after leaving Wal-Mart.

The agreement was reportedly made to prevent the former VP from disseminating confidential information concerning Wal-Mart’s pilot program involving small-format markets. The former VP had been the executive sponsor of Wal-Mart’s small-format plan, and had oversight of 1,312 stores in 19 states during his time with the company.

In a hearing concerning the contract dispute, CVS argued that Wal-Mart brought the former VP on because of his expertise in management rather than for his knowledge about Wal-Mart growth strategy, and that any knowledge he may have is outdated. But the judge ruled that the non-compete agreement was reasonable. Wal-Mart’s request was granted as a preliminary injunction, which will prevent CVS from making the hire until the issue is tried in early March.

In the area of pharmacy retail, Wal-Mart has established itself as a competitor with companies like CVS, Walgreens, and Supervalu. The company currently has over 4,000 pharmacies.

Wal-Mart announced its plans last October to open 30 to 40 small-format markets in 2012. Its small-format strategy will place it in direct competition with companies CVS.

Source: Bloomberg, “CVS Can’t Hire Ex-Wal-Mart Vice President, Judge Says,” Sophia Pearson; Phil Milford, 15 Dec 2010.