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  1. #1
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    Nov 2017
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    Default Can You Do Work for Your Former Employer After Starting a New Job

    My question involves labor and employment law for the state of: Michigan
    I got an offer from Company B. I put in my resignation at current company (Company A). Company A dont want me to let go early. They are asking me to stay 2 weeks, company B cant wait for 2 weeks as the guy who is supposed to train me is leaving for vacation for a month in 2 weeks. Company B is asking me to come in for 10 hours in my final week of notice so that they can put me in their system and give me brief representations on what needs to happen for next 2 months.
    Both companies are completely different domain and I wont be using anything from company A for use at Company B and vice versa. Thinking about going to company B after work at company A?
    Is this legal? Are there any legal consequences to this? Please advise?

  2. #2
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    Jun 2006
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    Massachusetts
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    Default Re: Important

    I don't know what you're asking. Is what legal? Any legal consequences to what?

  3. #3
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    Default Re: Important

    Do you have a contract with company a? If not, Michigan is an employment at will state. That means either the employer or employee can terminate the employment relationship at any time.

  4. #4
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    Default Re: Important

    Quote Quoting cbg
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    I don't know what you're asking. Is what legal? Any legal consequences to what?
    I am asking if I go to work at my current company for full 40 hours and do a 10 hour after work at company B, that will not be a cause of concern, correct?

    I understand that employment is at will but they were forcing me to give a 2 week notice and the new company is not able to wait for 2 weeks. So, to resolve this amicably, I came up with a resolution of continuing at current workplace for 2 weeks and going to new place for a week after work for an hour. Both companies are working in different domains and I wont be using each others resources. Will this be ok, legally?

  5. #5
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    Default Re: Important

    Unless you have a contract requiring it, they can’t force you to provide 2 weeks notice.

    I see nothing wrong with your solution.

  6. #6
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    Default Re: Important

    I knew of a company in Michigan who had it written in their employment contract and handbook (that they love to claim was not a real contract) that YOU are AT WILL and can be fired at anytime,,,,, but that it is "courteous" to give your current company 2 weeks notice because it is the right thing to do and makes you look better to the new company. Kinda defeats the purpose of AT will. but.... I wonder if all michigan employers use the same template. I went and dug up the (non) contract to share the language:

    "Employee understands that the company has obligations to xxxxx. IN light of this understanding, Employee hereby agrees to give XXXXX a written notice of 14 days prior to terminating this Agreement. I am confused by this too. What is the point of being AT WILL if you cannot leave. It's not uncommon to hear how people do give 2 weeks notice and then end up getting immediately fired. I don't think anything can happen to you but who knows. Michigan also demands that you inform them of need for an accomodation within 182 days but the ADA says you can ask for one at anytime. Very confused by Michigan.

  7. #7
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    Oct 2014
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    Default Re: Important

    Quote Quoting curiousandskeptical
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    What is the point of being AT WILL if you cannot leave. It's not uncommon to hear how people do give 2 weeks notice and then end up getting immediately fired. I don't think anything can happen to you but who knows.
    The vast majority of private employment in the U.S. is at will; few employees have an employment contract for a definite term (e.g. 1 year, 5 years, etc) and thus either the employer or employee may terminate the employment relationship at anytime for almost any reason. There are a few reasons the employer may not terminate employment, but outside of those few reasons the employer can fire you even if the reason is stupid, illogical, or mean spirited. Unless the employee has a contract to work for some specific period of time he can quit and walk out the door at any time and not be obligated to work even a second more. Now, that may burn bridges with the employer and perhaps the employer may give out a less glowing reference in the future because of it, but that’s about all the fall out the employee would have. Employee handbooks, acceptance letters, or whatever else the employer hands out to the employee very rarely amount to contracts. This is pretty much the case in every state, including Michigan.

    Quote Quoting curiousandskeptical
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    Michigan also demands that you inform them of need for an accomodation within 182 days but the ADA says you can ask for one at anytime. Very confused by Michigan.
    Michigan has its own law regarding discrimination by employers against employees. That law has a number of differences from the ADA. An employer with employees in Michigan needs to comply with both the federal law and the Michigan law with respect to those employees. If the employer violates both statutes the employer may be sued under both laws. If the employee does not qualify under one of those laws but does qualify under the other, he may still sue for the law that he does qualify for. So, for example, if the employee did not make a timely request for accommodation under the Michigan law the employee would not win a lawsuit under the Michigan law but might still win a case under the federal ADA.

  8. #8
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    Default Re: Important

    Oh Tax, you are brilliant and put what I have in my head into actual words remarkably. My obessive mind has come across some cases and my reading of the laws really make me wonder if the whole "AT Will" employment is a false security for some employers. As you already know, I live in the 3rd Circuit. NJ is within the 3rd circuit. and you mention handbooks. I believe the State I have my issue in recognizes the breach of implied faith and covenant (not saying that right). but my lexis doesn't let me shepardize but if this is still good case law, then Nicosia v. Wakefern Food Corp. is a case that would probably put Michigan to tears as the company handbook essentially became a "contract".

  9. #9
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    Oct 2014
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    Default Re: Important

    Quote Quoting curiousandskeptical
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    but my lexis doesn't let me shepardize but if this is still good case law, then Nicosia v. Wakefern Food Corp. is a case that would probably put Michigan to tears as the company handbook essentially became a "contract".
    That case is indeed good law. But while the case stands for the proposition that an employee handbook may become a contract between employer and employee, one must examine the entire preparation and distribution of the handbook to determine if it will have that effect. The key to it is the following:

    In sum, under Woolley, the basic test for determining whether a contract of employment can be implied turns on the reasonable expectations of employees. A number of factors bear on whether an employee may reasonably understand that an employment manual is intended to provide enforceable employment obligations, including the definiteness and comprehensiveness of the termination policy and the context of the manual's preparation and distribution.

    Nicosia v. Wakefern Food Corp., 136 N.J. 401, 408, 643 A.2d 554, 557 (1994), quoting Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 643 A.2d 546 (1994). In that regard, an important part of whether an employee can reasonably expect the manual to be treated as a contract is whether the manual itself clearly states that it is not a contract in language the typical worker can understand. As the NJ Supreme Court stated:

    An effective disclaimer by the employer may overcome the implication that its employment manual constitutes an enforceable contract of employment. Woolley, supra, 99 N.J. at 309, 491 A.2d 1257. The purpose of such a disclaimer is to provide adequate notice to an employee that she or he is employed only at will and is subject to termination without cause. “It would be unfair to allow an employer to distribute a policy manual that makes the workforce believe that certain promises have been made and then to allow the employer to renege on those promises.” Ibid. An employer can make such a disclaimer by

    the inclusion in a very prominent position of an appropriate statement that there is no promise of any kind by the employer contained in the manual; that regardless of what the manual says or provides, the employer promises nothing and remains free to change wages and all other working conditions without having to consult anyone and without anyone's agreement; and that the employer continues to have the absolute power to fire anyone with or without good cause.

    Nicosia at 412; 559–60 (1994). And indeed, since the Nicosia case there have been several cases in which the court found the employer had included an effective disclaimer and thus the handbook was not treated as a contract. As that case was more than 20 years ago, most employers that have employee handbooks likely include such disclaimers and thus avoid the problem of having their handbooks used against them.

    A majority of states do provide that an employee handbook or manual may amount to a contract in certain circumstances, though the details vary from state to state. In Michigan, an employee handbook or other statement of employer policy form a contract “either by express agreement, oral or written, or as a result of an employee's legitimate expectations grounded in an employer's policy statements.” In re Certified Question, 432 Mich. 438, 444, 443 N.W.2d 112, 114–15 (1989). But the Michigan Supreme Court noted that the employer is generally free to change the manual or policy statement at any time, and thus change the provisions of the agreement. “We answer the certified question in the affirmative. An employer may, consistent with Toussaint, unilaterally change a written discharge-for-cause policy to an employment-at-will policy even though the right to make such a change was not expressly reserved from the outset.” Id at 457; 121 (1989). And, of course, like in NJ, an effective disclaimer will work to prevent a handbook or manual from becoming a contract. “The Heurtebise Court explained that the general disclaimer demonstrated that the employer did not intend to be bound by any part of the handbook. Id. at 414. The same logic applies to defendant's employee handbook which contains a similar disclaimer. A reasonable person would not interpret the words and acts of the parties as manifesting an intent to be bound to a just-cause employment contract.”McKimmy v. Dapco Indus., No. 190958, 1997 WL 33344668, at *3 (Mich. Ct. App. July 1, 1997).

    Most small employers don’t go to the trouble of creating employee handbooks in the first place. For the larger employers that do, most should be well advised enough to ensure they include proper disclaimers to ensure that their handbooks will not be used against them later.

  10. #10
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    Massachusetts
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    Default Re: Important

    I understand that employment is at will but they were forcing me to give a 2 week notice and the new company is not able to wait for 2 weeks. So, to resolve this amicably, I came up with a resolution of continuing at current workplace for 2 weeks and going to new place for a week after work for an hour. Both companies are working in different domains and I wont be using each others resources. Will this be ok, legally?

    Of course it would. Why on earth wouldn't it be?

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