Answers Posted By Francis Fanning

Answer to non compete?

Without a non-compete, competition is what you get

An employee owes a duty of loyalty to her employer while she is employed. But once the employment relationship ends, the former employee is free to compete in the marketplace.
There are several ways employers try to limit the effect of competition from former employees, but none of them guarantees that you will keep business from leaving with an outgoing employee. Anti-piracy agreements are intended to prevent a former employee from soliciting customers of your business. They also may contain language that prevents a former employee from luring away other employees. Non-compete agreements prevent a former employee from engaging in the same business within a certain geographic area for a limited period of time. Without geographic and time limits, noncompete agreements are unenforceable, because they prevent a person from engaging in her profession. The problem with any of these agreements is that they do not bind customers. In a salon business, many customers become loyal to a particular stylist and are likely to leave when that stylist leaves, regardless of the agreement you may have with that employee. Those who come because of location or other factors are more likely to remain customers. A non-compete agreement that is properly written may keep your employees from opening shops across the street, but that's about all you can expect to accomplish.

posted Oct 21, 2005 12:16 PM [EST]

Answer to What does it take to prove Constructive Discharge

Constructive Discharge is Hard to Prove

To prove a constructive discharge, you must show that any reasonable person in your situation would have felt compelled to quit. Because your employer has posted the statutory constructive discharge notice, you also have to give the employer written notice of the conditions that you feel are so oppressive as to constitute a constructive discharge. Because none of the conditions you are complaining about threaten your health or safety, you also have to allow the employer the opportunity to correct the problem before you simply quit.
What is more important, the fact that you succeed in proving a constructive discharge does not mean you will have proven a wrongful discharge. The courts in Arizona have not answered the question whether the constructive discharge statute was intended to create a cause of action for wrongful discharge, or whether it was merely enacted to codify the common law definition of constructive discharge. If the courts decide that constructive discharge is not wrongful in itself, you would still have to prove that your supervisor's reason for forcing you to quit was unlawful, i.e. that it was on account of your race, sex, religion, age, disability, or in retaliation for your having complained about unlawful conduct in the workplace, having refused to engage in illegal conduct or having engaged in some protected activity like filing a worker compensation claim.
Trying to use the constructive discharge statute simply to qualify for unemployment seems a bit extreme. If conditions are so bad that you feel your mental health in in jeopardy, leaving for the sake of your sanity seems more important than getting a few hundred dollars a week in unemployment benefits. If the situation is not that bad, you would probably fare better by staying in the job while you look for another job. In any event, the standard for qualifying for unemployment benefits is similar but not identical to the constructive discharge statute. If you quit for compelling personal reasons, you can still collect unemployment. To prove that your reasons are compelling, you would probably need something like a medical or psychological recommendation that supports the claim that the workplace stress is too extreme for you to remain.

posted Oct 18, 2005 1:32 PM [EST]

Answer to Protection against Retaliation for blowing whistle ?

Whistleblowing protections are limited

Arizona law prohibits retaliation against whistleblowers, but no legal remedy exists for you unless you are fired. Your conduct may not fit the definition of whistleblowing under the Arizona Employment Protection Act, which defines whistleblowing as reporting violations of the Arizona Constitution or state statutes. Violations of federal law are not mentioned in the statute, and it is not clear whether reporting a violation of federal law is whistleblowing under the common law of Arizona.
Arizona also has a statute dealing with the concept of "constructive discharge," which is what happens when an employer makes working conditions so oppressive that any reasonable employee feels compelled to quit. The statute, when it applies, requires that you give written notice to your employer of the intolerable conditions and allow the employer to correct them. If you aren't actually fired, you would have to prove a constructive discharge to have any recourse.
There may also be protection under federal law, although federal whistleblower protections are specific to certain industries and activities. Again, unless you are terminated there may be no practical remedy available.

posted Oct 7, 2005 2:35 PM [EST]

Answer to Does a company have a legal duty to enforce their written policies ?

Company Policies aren't enforceable

When you work in the private sector, there is a presumption that your employment is terminable at the will of either you or the employer. No particular reason need be given. A corrolary to this concept is the principle that the company's policies are generally not part of an enforceable contract of employment. This was driven home by the Arizona legislature when it passed a law known as the "Employment Protection Act" in 1996. The company's failure to follow its own non-retaliation policy does not give you a legal cause of action to pursue. Certain kinds of complaints, such as complaints of unlawful discrimination or reports of unlawful conduct by or within the company, carry protections against retaliation. But generic complaints about work assignments, evaluations, goal setting and so on do not give rise to any legal protection against retaliation.
Another practical problem you should understand is the issue of what is "appropriate disciplinary action" to be taken against your supervisor. This decision is almost universally treated by the courts as a judgment that is within the discretion of the employer. There is no cause of action that would entitle you to obtain a court order mandating discipline against another employee. All remedies available to employees to correct unlawful retaliation involve recovery of lost earnings, reinstatement in an appropriate position, compensatory and punitive damages if warranted and injunctive relief to prevent future retaliation. I have never seen a case in which a court, as part of its grant of injunctive relief, mandated a particular disciplinary action against an employee.
You referred to your boss's retaliation as creating a "hostile work environment." While that may be an accurate description of the situation using the dictionary meaning of the term "hostile work environment," that term has a very specific legal meaning that simply does not fit the facts of your case. It refers to a form of unlawful harassment on account of race, color, sex, religion, national origin, age or disability. Generic hostility in the workplace is not unlawful, except when it is shown to be a form of retaliation for making complaints protected by the civil rights laws.

posted Oct 6, 2005 12:38 PM [EST]

Answer to 2-week notice Pay

You only get paid for the time you work.

I am assuming that you worked in the private sector without a written contract that protected you against an at-will termination. If so, your employer has the right to terminate you at any time, with or without cause. So when you give your notice (which, by the way, is a very decent thing to do although not required by law), your employer can choose to terminate you immediately and not have any obligation to continue paying you.
As for the vacation pay, if you were paid for the time you were on vacation and had not accrued paid vacation credit, you were overpaid. Your employer may correct the overpayment by deducting the amount of overpayment from your last check.
The fact that you were an exempt employee does not prevent your employer from prorating your weekly or monthly salary to reflect less than a full pay period. The only restriction on prorating an exempt employee's pay involves docking an employee for less than a full day's pay, which effectively converts the employee into an hourly employee and therefore not exempt.


posted Sep 7, 2005 4:18 PM [EST]

Answer to Concialiation in a discrimination case

Conciliation is a Key part of EEOC Process

The EEOC makes cause determinations in a very small fraction of the charges they receive. When they do, it is because they believe the evidence presented is enough to cause them to believe that discrimination has occurred. This determination triggers the process known as "conciliation." It is much like mediation, except that the EEOC is no longer a neutral mediator. The agency has its own agenda, which involves requiring the employer to take steps to protect its workforce from further discriminatory treatment. This may include posting notices, changing human resource policies or practices, perhaps even providing some kind of relief to other employees. In the process the EEOC will want to know what relief you believe you are entitled to recover. If you can justify your request, the agency will try to get the employer to agree to it. If you submit a list of demands that reads like a letter to Santa Claus, you probably won't get much backing from the EEOC. The one thing the agency does not want to do is to become your legal advisor, so you are well advised to consult with an attorney in the process. This assures that your demands are reasonably related to what you could prove if the case went to court, and also assures that you don't overlook something that should be included.
Like mediation, the conciliation process is voluntary, and the EEOC has no power to force an employer to offer anything to settle your case. Although the EEOC's cause determination is admissible evidence in most cases, it is not a ticket to victory in court, and some lawsuits have even been dismissed on the employer's motion in spite of an EEOC cause determination. So it is important to be realistic and flexible in trying to settle your case at the conciliation stage.
The conciliation process usually involves some active engagement by the EEOC. It may include one or more face-to-face meetings, and often includes negotiation by telephone to iron out details. I would recommend having an attorney for this. If you succeed in reaching a settlement in principle, the employer will typically draft a settlement agreement that requires the terms of settlement to remain confidential. Other provisions in the agreement may have to be tweaked to satisfy all parties. There will usually be a separate agreement resolving the EEOC charge. This enables the EEOC to have a written record of anything the employer has agreed to do to satisfy the agency's expectations while allowing the terms of your settlement (especially the amount of any monetary settlement) to remain confidential, since the EEOC agreement is a matter of public record.
If you case involves other claims, such as state law claims of wrongful discharge, defamation, interference with contract, unpaid wages or overtime, the EEOC does not involve itself in these matters, but the employer usually will insist that all claims be settled at the same time. This is another reason why having a lawyer represent you in the process can be important.

posted Aug 22, 2005 12:56 PM [EST]

Answer to Unused Vacation TIme Arizona

Vacation pay is governed by employer's policy

Your question seems to assume that Arizona law dictates whether earned but unused vacation pay is or is not owed to a departing employee. The law is not that specific. Arizona's wage statute defines wages to include vacation pay "when the employer has a policy or a practice of making such payments." This means that the employer's policy governs the issue. Some employers have a policy that unused vacation cannot accumulate beyond a certain number of hours or a certain time limit, and can be forfeited if not used. Some treat accrued vacation as earned pay which is paid eventually regardless of whether it is taken as vacation or not. Some pay accrued unused vacation upon termination only if the employee gives notice before leaving. Some have a policy that it is paid only if the termination is voluntary. Some consider it simply lost if not used during a person's time with the employer. The answer to your question turns upon what your employer's policy is. If there is no written policy, the employer's past practice is evidence of its policy. I hope this explains the apparently conflicting information you have found in your search for a simple answer.

posted Mar 17, 2005 3:17 PM [EST]

Answer to Assault by employee bad enough for IIED?

Patron's conduct is not employer's conduct

Your question is whether the patron's offensive conduct you described reaches the level of intentional infliction of emotional distress. Before answering this question, I have to point out that your employer is not vicariously liable for a patron's conduct. While your employer may have a duty to protect you from abuse by patrons, that does not make your employer responsible for unforeseeable conduct that the patron may engage in. If the employer negligently fails to protect you from his conduct and you are injured as a result, the claim would probably be preempted by worker compensation. For a discussion of this, see Ford v. Revlon, a case in which an employer's callous disregard for an employee's repeated complaints of sexual harassment led to liability for IIED.
If you wanted to sue the patron himself, you could possibly pursue a claim of assault. A civil claim for assault requires proof of an unwelcome threat of physical harm. One of the problems with the case is that reasonable people might not all agree that the statements he made could be taken as a serious threat if he was intoxicated at the time. But proving assault is much easier than proving IIED, which requires outrageous conduct intended to cause severe emotional distress.
The fact that the patron has been engaging in illegal conduct is not really relevant unless your employer fires you in retaliation for reporting it.

posted Mar 14, 2005 1:14 PM [EST]

Answer to Can I consider Constructive Discharge when terminated wrongly in an At Will state?

A discharge is a discharge

You seem to be laboring under the illusion that the constructive discharge statute gives you some recourse. First of all, you were actually discharged. The constructive discharge statute applies in situations in which a person is not actually discharged but is forced to quit because of intolerable working conditions. Since you were actually discharged, the statute doesn't apply.
The lawyers you spoke to undoubtedly told you that Arizona (like most states) considers employment in the private sector to be terminable at will unless you have a contract that states otherwise. This means that your employer doesn't need a reason to fire you, just as you don't need a reason to quit. So if their reason doesn't hold water, it doesn't matter.
Unlike those other lawyers, I will be happy to take your money. Unfortunately, it won't change the advice I give you, nor will it give you a case when you don't have one. Unless you have some way to prove that the employer's true reason for firing you was something that would be considered wrongful (like unlawful discrimination, whistleblowing or other reason involving a violation of public policy), you don't have a case of wrongful discharge. Unfair discharge is not the same as wrongful discharge, and there is no legal remedy for mere unfair discharge.
You should also keep in mind that courts are very reluctant to second-guess an employer on an issue like the quality of your performance. In most cases there is no way to prove that the employer's evaluation of poor performance is provably false, because it is not a factual issue but a qualitative opinion. Your opinion and the opinions of your coworkers do not negate or disprove that of your boss. So even if your employer needed a reason to fire you, the court would probably consider the performance evaluation legitimate unless you could show that it was based upon provably false facts that the employer knew were false.

posted Mar 11, 2005 2:33 PM [EST]

Answer to Do I have a case for wrongful termination/discharge?

Wrongful Termination requires violation of public policy

Your facts do not suggest a basis for a claim of wrongful discharge. Your employment in the private sector is presumed to be terminable at will, that is, whenever your employer decides to let you go, with or without a good reason. To prove a wrongful discharge, you must show that the reason for the termination violates public policy, which has been rather narrowly defined by our legislature to include only certain things. Your argument would be that you were a "whistleblower," someone who reported unlawful conduct and was fired in retaliation. The problem is that the employee's false claim of having an ivy league degree is not unlawful. Your only hope of claiming wrongful discharge would require proof that publishing this false claim online constituted some form of fraudulent conduct. A person who fraudulently held himself out to be licensed to practice law or medicine, or who falsely claimed expertise in some specific area in order to induce people to use his or her services might be violating consumer fraud laws. But most consumer fraud statutes prohibit particular, narrowly defined kinds of misrepresentations. Falsely claiming to have a degree from a particular school doesn't quite reach the level needed to show consumer fraud. While the employer could have used the employee's lie as a basis to terminate the employee, it chose not to. A violation of an employer's policies is not a matter of interest to the public, so reporting such a violation is not "whistleblowing."

posted Feb 17, 2005 1:57 PM [EST]