Answers Posted By Francis Fanning

Answer to FIRED FOR HAVING AN OPERATION BEING ABSENT FOR 6 DAYS,,,COMPANY POLICY

FMLA is the only protection for medical leave

Unfortunately, the only law that protects you from losing your job when you have to take leave for a medical condition is the Family and Medical Leave Act. This act doesn't protect everyone. In your case, even if some others in the workplace were covered by the act, you weren't. The reason is that you have to be working for the employer for at least one year before coverage begins.
The Arizona Civil Rights Act and the Americans with Disabilities Act require employers to provide reasonable accomodation to persons with disabilities. Sometimes this may include time off for treatment. However, your condition probably doesn't meet the definition of disability. If you want to pursue this as a possible remedy, you can contact the Equal Employment Opportunity Commission to file a charge of discrimination. But be ready to explain how your condition, even after treatment, substantially impairs one or more major life activities ( and the condition must be permanent or long term ).

posted Sep 27, 2004 2:02 PM [EST]

Answer to Related coworkers in supervisory roles

Nepotism isn't unlawful

There are two reasons why you won't be able to get anywhere trying to take legal action against your employer over this issue. First, company policy is not law, and the company is free to (and often does)ignore its own written policies. Second, you probably do not have standing to challenge the company on this issue unless your rights and interests have been adversely affected in some measurable way by the company's deviation from its policy. In other words, the court would want to know why it's any of your business how the company treats some other employee.
Having siad that, you should also know that if you are a rank and file employee (non-management), you and your coworkers are protected by the National Labor Relations Act in protesting this situation, provided you are engaging in concerted activity. This means activity by two or more employees or by one speaking for himself and others regarding terms and conditions of employment. It is an unfair labor practice for an employer to discriminate against an employee who engages in protected concerted activity. This doesn't solve your problem, but gives you some protection as you try to join with coworkers in raising your concerns.

posted Sep 20, 2004 4:11 PM [EST]

Answer to Fired for refusing a longer commute?

At will employee can be fired for anything (almost)

I assume that, like most employees in the private sector, you do not have a written contract or a collective bargaining agreement that protects you from at will termination. This means that your employer doesn't need a reason to terminate your employment. If they did, your refusal to report to work at the new location would probably be adequate cause to terminate you or to consider your refusal a voluntary resignation. You also seem to be laboring under the misconception that an employer must pay severance when laying off employees. This is not the law. It is customary to pay severance to laid off employees in return for a release from liability, but there is no legal entitlement to severance.

posted Sep 13, 2004 12:21 AM [EST]

Answer to WARN letter clarification

WARN Notification means what it says

You have read the letter correctly. The WARN letter is the only notice required by law when layoffs occur, and it only requires the employer to give 60 days notice or 60 days pay in lieu of notice. It only applies when an entire plant or an entire section of a company closes, and in only applies when the total number of employees laid off exceeds 50 employees in a 30 day period. If you had been laid off when the notice went out, you would have been entitled to the pay in lieu of notice. Severance pay is not mandated, and is generally paid only in return for a release from liability. You didn't get laid off, but the notice has given you the opportunity to look for another job while you still have a paycheck coming in. I assume you will be offered severance when your termination comes, but the law doesn't require it.

posted Aug 24, 2004 6:30 PM [EST]

Answer to Anti-Piracy vs Non-Compete

same question

If I remember correctly, this is the same question you asked me earlier.

posted Aug 16, 2004 4:42 PM [EST]

Answer to 2 YEAR NON-COMPETE TERM- Fuzzy

2 years is not a magic number

Your question seems to be referring to a bill that was introduced in the legislature but, as far as I know, did not pass. It would have made non-compete agreements lawful as long as they did not extend more than two years beyond the date of termination of employment. The wording of the agreement dictates how long it runs. Most non-compete agreements run for a period of time that begins at the termination of employment, not at the hire date or date of signing. The question whether the agreement is enforceable depends upon whether the length of time is reasonable, which varies from one industry to another. The courts will usually want to know how long it will take to recruit, hire and train a replacement and how long it will take the replacement to step into your shoes. It is hard to imagine a situation in which an employer could not accomplish that within two years. If you are reluctant to sign, I would suggest that you consult with an attorney and have him or her read the entire agreement.

posted Aug 11, 2004 5:13 PM [EST]

Answer to Loan Officers marketing Realtors

No simple answer to questions about non-competes

The reason you haven't found a simple answer to your question is because your question is not simple. Just because a question is clear and concise, that does not make it simple. "What is the meaning of life?" is a clear and concise question. But a clear and concise answer would be meaningless. Any simple answer you get off the internet may or may not apply to your situation.
First, the agreement you describe sounds like an anti-piracy agreement, not a non-compete. Without having the opportunity to review the entire agreement, I cannot give a very reliable answer to your question. Generally, anti-piracy agreements are not contrary to public policy and will be enforced according to their terms. Non-compete agreements are only enforceable if they are necessary to protect legitimate business interests and are reasonably restricted in length and geographic scope. The agreement you describe is not limited to a specific geographic area because it is not trying to keep you from working for any competitor of the bank, but only to keep you away from the bank's customers. The reason that non-compete agreements are sometimes unenforceable is because they prevent a person from being employed in an entire industry in which the person has experience. If your agreement does not prohibit you from leaving and going to work for the bank down the street, it doesn't have this undesirable effect. As a bank employee, you have no ownership interest in the customers you did business with, so an anti-piracy provision doesn't deprive you of anything, at least as far as the courts are concerned. Whether the agreement is fair for your industry depends upon which side of the agreement you are on, but fairness is not a legal test of the agreement's enforceability.

posted Aug 11, 2004 4:57 PM [EST]

Answer to disciplinary actions on FMLA covered days

Using FMLA covered leave as basis for discipline violates FMLA

You are right in your assumption that a disciplinary action that is based in part upon the use of approved FMLA leave violates the antiretaliation provision of the law. The most practical remedy is to bring it to the attention of HR. If that fails, contact the U.S. Department of Labor and make a complaint. Keep in mind that this does not protect you from legitimate disciplinary action for unexcused absences.

posted Jul 1, 2004 12:25 PM [EST]

Answer to Reverse descrimination suit.

You can't have reverse discrimination without discrimination

Your question is whether you have a "reverse discrimination" lawsuit. I guess you are laboring under the assumption that there is a law that protects homosexuals from discrimination on account of sexual orientation. There is no such law. Some cases have held that sexual harrassment of a gay person violates the Civil Rights Act's prohibition of discrimination on account of sex, but that's as far as the courts have gone on this issue.
More importantly, your assumption that because your boss and the other teachers are gay, they must be singling you out because you are straight is not evidence of discrimination. The reasons given for your termination are legitimate unless you can prove they are a pretext. For example, if one of the other teachers doesn't have a bachelor's degree, that may show that your lack of a degree doesn't make you less qualified than the other teacher. But until Congress amends the civil rights laws to prohibit sexual orientation discrimination, it really doesn't matter what you can prove.
By the way, the term "reverse discrimination" is based upon the erroneous assumption that the Civil Rights Act protects only minorities and women. Race and sex discrimination are illegal, regardless of the race or sex of the victim.


posted Jun 28, 2004 3:38 PM [EST]

Answer to Wrrongful termination

Pregnancy Discrimination equals sex discrimination

The Civil Rights Act prohibits discrimination on the basis of sex. The definition of "on the basis of sex" includes on the basis of pregnancy. So if you can prove that your employer's true motive for firing you was your pregnancy, you can recover for unlawful discrimination. You should file a charge with the Equal Employment Opportunity Commission as soon as possible. This is the first step in pursuing your case.
Although it is not unlawful to fire someone for a theft she did not commit, you may find that your employer is telling others of the reason for the termination. If so, you may want to consider pursuing a claim of defamation. There are numerous issues in such a case, and you need to consult with an attorney for information about such issues as privilege, compelled self-publication, blacklisting and other related matters.

posted May 31, 2004 6:37 PM [EST]