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FAQ

Frequently Asked Questions 

  • Why Do Companies Use These Agreements?
    They are used and misused. They are frequently used to ensure loyalty preventing an employee from joining a competitor, which is a misuse of the agreement as agreements should not be used simply to prevent competition. A proper use is to prevent unfair competition.
  • How Can Noncompete Agreements Be Misused?
    Whether or not the agreement is ultimately enforceable, companies use the threat of litigation to compel compliance. Whether to comply or resist is therefore a business decision.
  • What Should I Not Do Before I Leave?
    A duty of loyalty is still owed to your employer until you resign. This means that you cannot compete against your employer while you are still employed. Remember that if litigation is commenced, electronic discovery is both intrusive and revealing.
  • What Does An Employer Need to Show to Enforce a Noncompete Agreement?
    The employer needs to show that the agreement must be enforced to prevent the misuse of confidential information. The employer has the burden of proof in showing not only that the information is proprietary, but also that adequate steps have been taken to protect its confidentiality.
  • Is an Agreement Enforceable If Signed after Employment Has Commenced?
    The short answer is yes. For more specific information, you should speak to an experienced employment law lawyer.
  • Do I Have a Claim If My Termination Was Unfair?
    In the absence of a contract, an employee is an employee at will and can be terminated even if it was unfair to do so. The function of an employment attorney is to find another basis to challenge the employer’s action.
  • What Is Employment At Will?
    It means that either party may terminate the employment without notice and for any reason, unless doing so would violate law or public policy.
  • Are Noncompete Agreements Enforceable?
    Agreements that simply prevent competition are not enforceable; however, most agreements are not so blatant. A properly drawn agreement that can be shown to be reasonable and necessary will be enforced. These unique factors, however, in almost every situation govern the enforceability of the contract in issue.
  • What Is Sexual Harassment?
    It is conduct that occurred because harassing behavior that was severe or pervasive made a reasonable woman believe that the conditions of employment were altered. This in turn made the working environment intimidating, hostile or abusive.
  • Are There Statues That Provide for Employee Medical Leave?
    There is a New Jersey statute and a federal statute. The state statute does not however permit an employee to take personal leave for his or her own physical condition except for the birth or adoption of a child.
  • Who Is a Whistle Blower?
    Under the New Jersey Conscientious Employee Protection Act, to be protected an employee must disclose or threaten to disclose to a supervisor or to a public body an activity or practice that the employee reasonably believes is a violation of law, or object or refuse to participate in such activity. There are of course other requirements.
  • If My Claim Is Denied Will There Be a Jury Trial?
    If your long-term disability coverage was part of a group policy, it is governed by ERISA which does not provide for a jury trial.
  • Should I Handle the Appeal Myself and If Unsuccessful Then Hire a Lawyer?
    This is not advisable as there is no opportunity to introduce any additional evidence once the final decision is made and suit is filed, and if you are not experienced in this area, it is unlikely that you will know what information is needed.
  • What Is the Legal Standard of Review under ERISA Covered Claim?
    It is necessary to show that the denial was arbitrary and capricious meaning that it lacked a reasonable basis, which is a difficult burden of proof for any litigant to overcome.
  • Do the Applicable Statutes Provide for the Payment of Attorney’s Fees?
    Fees are awarded if you prevail, however, a number of factors must be satisfied the most difficult of which is proving bad faith, which requires more than a showing that there was an improper denial of the claim. Further, no fees are awarded for any work performed prior to the filing of the complaint.
  • How Can My Claim Be Barred or Reduced?
    A claim can be barred by a preexisting condition, or reduced by the payment of Social Security or workers' compensation benefit payments. Also, many policies limit payment or psychological claims to only 24 months.
  • Is There Governmental Disability Insurance?
    The state of New Jersey provides disability income insurance for a period of six months, and if you are a state employee, disability pension coverage may be available. Social Security Disability Income coverage may also be available.
  • If I've Been Awarded Social Security Disability Income Insurance Does This Mean That I Will Receive Disability Income Benefits?
    Regrettably, no. It is simply part of the mix of information to be considered.
  • What Types of Acts Are Protected from Employer Retaliation?
    The CEPA statute, N.J.S.A. 34:19-1 et seq., protects employees who disclose or threaten to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, which the employee reasonably believes is a violation of law. It also protects employees who object to, or refuse to participate in any activity, policy, or practice that the employee reasonably believes is a violation of law.
  • What Types of Information May I Disclose to Be Covered by This Law?
    1) A policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes that the administered practice constitutes improper quality of patient care; or 2) A policy or practice that is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation that the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity.
  • Am I Protected If I Participate in an Investigation?
    The statute also protects persons who testify before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care.
  • Am I Protected If I Only Object or Refuse to Participate?
    Yes. (Please speak to an employment law attorney about any concerns.)
  • Does the Statute Protect Employees Who Object to an Activity That the Employee Reasonably Believes Is Incompatible with a Clear
    Yes.

DISCLAIMER: This material is simply a generalized discussion of this statute and is not intended to be legal advice. Legal advice requires a reading of the statute as interpreted by the courts with that knowledge then applied to the facts of each case.

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