Answers Posted By Francis Fanning

Answer to Merger related job change / elimination - Employer won't agree to severance.

Severance isn't a right

Your question assumes that if your position is eliminated you are entitled to severance. You are not (unless the bank's severance policy is an ERISA qualified benefit plan). The general rule is that an employer can terminate an employee at will, and that rule most likely applies to you. If the bank really wanted to avoid paying severance, it would not have adopted the policy. Severance is generally paid for two reasons - to give remaining employees a reason to believe they will be treated fairly if laid off, and to extract a release from departing employees. None of this is required by law. Likewise, the bank is not required to continue to allow telecommuting simply because they allowed it at one time. You seen to be arguing for a claim for wrongful failure to terminate. There is no such claim. If you don't want the job, start looking for another one.

posted Feb 16, 2005 4:37 PM [EST]

Answer to Was terminated.. Have questions on it.

No reason needed for termination of at-will employment

I am assuming that you do not have a written contract that provides you with any promise of job security. If so, then you are an at-will employee, like most employees in the private sector. This means that your employer doesn't need a reason to fire you.
I am also assuming from your question that you worked for the store where you bought the cigarettes. Not that it matters, but it means that your job involves selling cigarettes to the public, which adds to your employer's justification for its action. Firing you for committing an act that is against the law (contributing to the delinquency of a minor, ARS 13-3613; furnishing tobacco to minor, 13-3622) is not a wrongful discharge. The fact that you did it on your own time makes no difference. If your employer needed a reason to terminate you, this reason will probably be enough.
A claim of defamation requires proof of a false statement published to a third party taht causes injury to your reputation. Had the employer merely said you were terminated for providing cigarettes to a minor, the statement would be true, and truth is a defense to a claim of defamation. The statements attributed to your former manager go beyond this. The statement that you were a horrible employee is probably not capable of being proven true or false, because it is a qualitative opinion, not a factual statement. The cigarette incident alone would probably be enough to sustain the opinion that you were less than satisfactory. The statements about being mean to customers and about his being called in on account of your disruptive behavior are capable of being proven false, if they are false. In most defamation cases, you have the dual problem of proving what was actually said to the prospective problem, and the problem of proving that it was false, which usually means proving a negative - i.e. that something didn't happen. Proof that you were nice to 99 customers does not prove that you didn't insult the 100th guy. Also, if he merely reported the true statement that you were fired for selling cigarettes to a minor, would this have been less damaging to your reputation?
As a practical matter, you aren't likely to find an attorney who would want to take your case, and anyone who took it would charge you a lot more than an unemployed store clerk could likely afford, or that you could hope to recover from a jury. Sorry.

posted Feb 1, 2005 7:06 PM [EST]

Answer to Federal Employee

Defamation claim against federal government is a loser

Your claim for breach of contract is not likely to go anywhere. As a probationary employee, your employment in the federal service is terminable at will, much like most private sector employment.
The defamation claim is a different story. Defamation is what is known as a tort claim. It does not depend on an employment relationship or any particular relationship with the federal government. But to bring a tort claim against the federal government, you must follow the process established in the Federal Tort Claims Act, a law that prescribes how you can sue the federal government for a tort claim and what claims can be brought. My recollection from researching the issue in another context is that defamation claims are not among those that can be pursued against the feds.
Even if you could pursue such a claim, it requires proof of a false statement made to a third party that injures your reputation. The fact that you did not list the arrest is true. Whether this amounts to cause for termination is not the issue. To prevail, you would have to prove that the government's statement made
to a prospective employer, although technically true, created the false impression that you did something far more deceptive. If you haven't even listed this job on your resume, you don't know if or when you will ever be defamed. Maybe the next employer won't think it's that big a problem.

posted Jan 10, 2005 12:01 PM [EST]

Answer to assault in the work place by a department head

Assault can result in both civil and criminal liability

A physical assault is both a crime and a basis for a claim of damages against the wrongdoer. The term "assault" is often misused and misunderstood. The common law definition of assault as a basis for civil damages is "words or action that puts another in reasonable fear of an imminent battery." Battery, the counterpart of assault, is "an unwelcome physical touching by another that causes injury." The criminal code in Arizona merges these two concepts into one, defining assault as intentionally causing physical injury, putting a person in fear of imminent injury or touching with the intent to injure. The key to any claim is not the touching or the fear, however, but the injury that results. Without injury, it generally makes no sense to pursue a legal claim.
When the injury resulting from the incident is not physical but emotional, making the connection between assault and injury is sometimes difficult, and may require expert testimony. Likewise, the extent of the injury may be hard to prove when objective physical evidence is not available. Depression and anger aren't shown on x-rays, and separating emotional problems resulting from a single episode from the results of all of life's other stresses and heartaches cannot be done with precision.
Physical injuries caused by coworkers are generally compensable only as worker compensation claims, and to avoid this limitation, it is necessary to prove that not only was the coworker's action intentional, but that the coworker intended the injury that resulted. Non-physical injuries, such as depression, are generally not covered by worker compensation, but a lawsuit against the perpetrator still requires proof of an intentional assault or battery with the resulting injury being foreseeable. A push or shove in the heat of an argument may constitute a battery, but a long term psychological injury may not be a foreseeable result.
The employer's liability in such a situation is a complicated subject that requires an assessment of whether the perpetrator's action was within the course and scope of his or her employment, or whether it was explicitly or implicitly authorized or condoned.
Sexual harassment is governed by a highly developed body of case law and regulations because it is a form of unlawful sex discrimination. The same is true of racial or religious harassment, or harassment on account of certain disabilities. Physical harassment does not necessarily constitute unlawful discrimination, and so the law that governs the employer's responsibility toward the victim is not always the same.
Finally, either you or your employer can apply to a court for an injunction against harassment if there is reason to fear that a threat of future physical harm exists.
I suggest that you seek immediate attention from a mental health specialist for the depression and anger, and that you consult with an attorney about the appropriate legal steps to take. In discussing the case with the attorney, ask about the appropriateness of using a "notice of constructive discharge." This is a statutory device that forces your employer to attend to the problem and respond to your concerns.

posted Jan 6, 2005 6:29 PM [EST]

Answer to Non-interference in Employment Agreement

Non-interference clauses are generally enforceable

It is difficult to answer a question like this without having the opportunity to review the agreement and the circumstances in which it was signed. In general, a non-interference clause or anti-piracy agreement will be enforced to the same extent as any contract. Unlike non-compete agreements, which must be narrowly tailored in time and geographic scope, non-interference agreements do not prevent you from working in your chosen profession. They merely prevent you from luring away existing clients of the former employer. The fact that you brought the client to the employer probably makes no difference. By signing the agreement and becoming an employee, you were acknowledging that the client was your employer's, not yours.
The last part of your question is actually several questions. The first question is what law applies, that of Massachussetts or Arizona. Second is the forum in which the case would be heard. Whether the arbitration clause is enforceable is yet another question. Ironically, you would probably want the case to be subject to the arbitration clause, while your former employer would want to go into court in Arizona to get a preliminary injunction to enforce the agreement. If you are planning on working for the client, I would strongly suggest that you consult with an attorney before you go any further.

posted Dec 21, 2004 12:33 PM [EST]

Answer to Lump sum severage payment promised on last day not received. Told 6 wks. Unemployment?

severance doesn't preclude unemployment claim

I will begin by answerin the easier of your two questions. You can apply for unemployment benefits immediately, regardless of the status of your severance payment. Severance benefits are not payments for work being currently performed, so you qualify to receive unemployment even if the severance is paid out over time.
The second question is a bit harder to answer. Your question mentions an agreement made five months ago. To fully understand your situation, an attorney would need to review that agreement, since that is the basis for your entitlement to severance. As a practical matter, any legal action you might take probably will not resolve the problem within 45 days. If the delay itself causes you damage, such as a foreclosure or repossession, you may have a claim for consequential damages if they were contemplated at the time the severance agreement was made and if the agreement guaranteed you payment upon layoff. If you haven't received the severance payment within a week or two, you might want to consult an attorney.
You may also want to discuss with the attorney whatever you were required to sign to get your last paycheck.

posted Dec 13, 2004 10:09 PM [EST]

Answer to What can I do if I am working in a Hostile enviorment and am being targeted by my assistant manager?

Hostility is not a hostile environment

Your question seems to assume that the law prohibits an employer from allowing or maintaining a hostile work environment. This is not the case.
The term "hostile environment" was developed by the courts to describe a form of unlawful discrimination that is not based upon one act or decision by an employer, but rather a series of actions, no one of which rises to the level of an adverse employment action, but the sum total of which can alter the terms and conditions of your employment. The key to the concept is that it is a form of unlawful discrimination. It is not unlawful for your employer to dislike you or single you out unless it is done for a prohibited reason. The unlawful forms of discrimination include discrimination on account of race, color, national origin, religion, sex, age and disability.
The missing element in your narrative is why this manager is picking on you. If it is on account of one of the unlawful reasons I have listed, you should complain to someone higher up in the company, or to a human resources person if the employer has one. But it is not enough to complain about your mistreatment. You must identify the unlawful discrimination that you believe is behind it. If you don't have any reason to believe that your race, sex, age, religion or disability is the reason she has singled you out, then you probably have no legal recourse. If you have reason to believe that unlawful discrimination is involved, and if the employer does not resolve the problem, you can file a charge of discrimination with the Equal Employment Opportunity Commission.

posted Dec 7, 2004 5:40 PM [EST]

Answer to pregnancy and benefits

possible pregnancy raises 2 questions, 3 answers

Although you only asked two questions, there are three answers. First, what is covered by group health insurance is, to a large extent, governed by the terms of the particular policy. Policies sometimes exclude preexisting conditions for a period of time. However, 29 U.S.C. �1181(d)3 prohibits a group health insurer from treating pregnancy as a preexisting condition. So you will be entitled to whatever coverage the policy has for pregnancy and childbirth.
Second, you are correct that FMLA coverage doesn't begin until you have worked for a year, and there are a number of other circumstances in which FMLA does not protect certain employees.
This does not mean, however, that the employer may simply fire you with impunity. Although you will probably be an "at will" employee, and have no more job security than anyone else (in other words, none), an employer may not fire you because of your pregnancy. Pregnancy discrimination is treated the same as sex discrimination, which is unlawful for any employer with 15 or more employees. Both the Arizona Civil Rights Act and Title VII of the Civil Rights Act of 1964 prohibit it.

posted Nov 2, 2004 3:50 PM [EST]

Answer to Former employer giving info to 3rd party

Old employer's remarks may cross the line

Your query doesn't have enough information for me to tell you anything very definitive. In general, an employer can talk to whomever he, she or it wants to about you, just as you can about them. Certain information, such as medical records, are protected from disclosure by statutes, and some information may give rise to a claim of invasion of privacy if the widespread publication of true information places you in a false light or if the employer discloses private very personal information not generally known to the people to whom it is disclosed (such as a drinking problem, an affair or a skeleton in your family closet). Also, a claim for defamation might arise if false factual information is published that damages your reputation.
The information you listed doesn't seem to fit into any of these categories. Your gross income and commission splits might be considered private, but it isn't the kind of information that would cause embarassment like disclosing personal secrets would. The statement that you took too much of his time is not a false statement at all, but an opinion, not subject to being proven true or false. The statement about the appraiser having recommended you, although false, is not defamatory, unless the appraiser believed that you said it, in which case he might think you were lying to your old boss for some nefarious reason. As it turns out, any doubt he may have had was probably dispelled by your denial, so you have no provable damages.
Certain false statements are automatically defamatory and do not require proof of actual damages. They include the commission of a crime, unchastity or loathsome disease (like telling someone you have AIDS). False statements regarding your ability in your chosen profession also fit this category, but the statement must be provably false, not mere opinion.
The practical problems of trying to stop old employers from talking about you are many: proving exactly what was said, to whom it was said, and how it was false or otherwise injurious. Unless you are really hurt (losing a potential job opportunity, for example), there isn't much point in worrying about it. After all, would you want your old employer to be able to sue you for the negative things you have said about him to your appraiser friend? Or for accusing him on a public website of telling "many personal lies" about you?

posted Oct 26, 2004 7:35 PM [EST]

Answer to Arizona's - "Right to Work" vs "Non-Compete"

Right to Work has nothing to do with non-competes

Your situation raises issues too numerous to address. You should consult with an employment attorney about signing the non-compete agreement. But the simple answer to your final question is a definite "no."
Arizona, like nine other states, has laws protecting the "right to work." This term refers to a law that prohibits an employer and a union from agreeing that union membership will be required as a condition of employment. It distinguishes these states from others which allow such agreements. The law has nothing to do with non-compete agreements, which are individual agreements between an employer and an employee whereby the employee agrees not to go to work for a competitor after leaving the employer. Arizona courts will uphold such agreements, but only if they are necessary to protect legitimate interests of the employer, and only if they are reasonably limited both in length of time and geographic scope.
When you talk to the attorney, you need to discuss several issues. First, is the agreement really a non-compete, or is it something else, like an anti-piracy agreement? Second, is it governed by Arizona law or Missouri law? Third, what consideration is being given by the employer in return for the agreement? Fourth, is your employment terminable at will? If so, does the agreement apply regardless of how your termination comes about? The time to get answers to these questions is before you sign the agreement.

posted Oct 22, 2004 6:52 PM [EST]

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