Answers Posted By Francis Fanning

Answer to My company sold to another am I still bound

Sale of company doesn't negate non-compete

The answer to your question depends on the nature of the sale of the business. If you were required to reapply for your job as a result of the sale, you can use this as an argument that the old relationship ended and a new one began with the new owner. But if the new owner kept you on as if nothing had changed, it probably bought all of the old company, including assets such as your non-compete agreement. Whether the agreement is enforceable also depends on how it is written. Non-compete agreements are often too restrictive to be enforced by the courts. In Arizona a non-compete agreement will be enforced if it is necessary to protect legitimate interests of a business, but it must be reasonably limited in its duration and geographic scope. You should probably have an attorney review the agreement if you have any doubts about its enforceability. Unfortunately, the courts' treatment of these agreements can be difficult to predict, and sometimes judges themselves disagree on whether a particular agreement should be enforced.

posted May 6, 2004 12:01 PM [EST]

Answer to Bonus after termination

Make a wage claim for your Bonus

A bonus falls within the definition of wages under Arizona's wage statute. Because it is less than $2,500.00, your claim can be made by going to the labor department of the Industrial Commission of Arizona. This state agency has authority to determine whether wages are due without the need to file a lawsuit. It has jurisdiction to decide claims up to $2,500.00. If the employer doesn't pay in accordance with the labor department's determination, you can seek three times the amount awarded by filing suit in court.
Whether the bonus is due depends on the terms and conditions set by the employer when the bonus plan was established. Sometimes employers have policies that require an employee to still be employed when a bonus or commission become due. This will probably be the issue you will be fighting about. If you know of anyone who left the company and was paid a bonus after leaving, that person's testimony will help prove what the employer has done in the past.
There is also a claim called a breach of the covenant of good faith and fair dealing. If the employer's policy says that you must still be employed at bonus tim to be entitled to a bonus, then the question arises whether the employer terminated you to keep you from receiving the bonus. Although it seems unlikely that an employer would fire a good employee just to save $2,000.00, if you can show that this was the reason for your termination, you can sue for breach of the covenant of good faith and fair dealing. This is not a wage claim, so the information in the first paragraph doesn't apply to this kind of claim.
For information about the Industrial Commission, you can look at the links page on my website, www.workrightsaz.com.

posted Apr 30, 2004 11:00 AM [EST]

Answer to Discrimination for those who know

Wishing it to be won't make it so

Your original question was whether a demand letter from an attorney might get you somewhere. I am not black and so I cannot say I've experienced race discrimination in the ways that you have undoubtedly experienced it. However, I have had years of experience representing people in all kinds of discrimination claims. I know how difficult it is to prove discrimination and how pointless it is to write a demand letter when the EEOC didn't find any reason to issue a cause determination. Without some substantial evidence you cannot hope to convince the employer to offer anything in settlement, nor can you hope to convince a judge or a jury that discrimination occurred. The evidence you have may be somewhat persuasive, but the employer will undoubtedly present it in a much different light. I have seen more than one client invest substantial amounts of time and money pursuing a claim of discrimination only to lose at trial or before the case ever gets to trial. If you think it hurts to be the victim of discrimination, try being on the losing end of a jury verdict. Even if you could afford to pursue a lawsuit, I doubt that I would encourage you to do so unless you can find something more than you have. You might ask the EEOC for a copy of its file to see what reason your employer gave for the decision to let you go.
As for the slander claim, you might try asking the person at the temp agency to put in writing what he said about you. That is the only practical way to evaluate whether the statement was really slander or merely a negative opinion of you. Of course, you probably won't be able to get such a statement, which means the only way you can find out what he actually said will be to file a lawsuit and take depositions of him and the person he made the statement to. If it turns out not to be slander, you lose. Are you beginning to understand why lawyers aren't lining up for the opportunity to take your case?
There are a number of reference checking services that will conduct a reference check for you. They charge about $75 to $100 for this service. Sometimes they get defamatory statements from employers, and their reports can lead to a settlement or become the basis for a lawsuit.
You can google reference check and find more info on line.

posted Apr 27, 2004 8:28 PM [EST]

Answer to Demand Letter ??

Demand letter won't do much

The facts you describe make out what is called a "prima facie" case of race discrimination. You, being black, are performing the job satisfactorily. You are terminated and replaced by a white person. Your task is to prove that the decision was motivated by racial considerations. Without any direct evidence of racial animus (such as your boss berating blacks, making racial slurs or comments that suggest a racial bias), your only hope of getting anywhere is to prove that the reason given for your termination is a pretext. The comments your boss made sound like a subjective judgment of your attitude, something that cannot be proven true or false. It is not enough to prove that you were motivated to work. You have to prove that your boss really did not believe that you had lost your enthusiasm for the job. Unless he admits that it was a lie, there is no way to prove what was going on in his head. The fact that he treats your replacement better and that she had a poorer work record does not prove that racial bias was what governed his actions. He may eventually develop the same impression of her attitude and fire her. While you were working two jobs, you may have shown signs of fatigue that he interpreted as a loss of enthusiasm. Your mother might consider it admirable to see you working two jobs, but your boss might feel that your loyalty was divided, since he got no benefit from it.
A demand letter from a lawyer will probably get nothing but a curt reply from the company's lawyer. Unless you are prepared to pursue a lawsuit, the letter will have no credibility.
Telling the agency how he felt about your attitude is not defamatory. His opinion that you had lost your enthusiasm is no more a lie than your feeling that he was biased against you because of your race. If you accused him of being racist and he said "that's a lie!" you would probably answer by saying that it is just your opinion, gut feeling or impression, not a statement of fact. And you would be right.

posted Apr 23, 2004 8:51 PM [EST]

Answer to non-compete prior to sale

Sale of Business probably doesn't negate non-compete

The answer to your question is "probably yes." When a franchise is sold, it would ordinarily involve the sale of all of the assets of the business, from the furniture to the accounts receivable. Your non-compete agreement is an asset of the business. It has no value to the old owner, so there is no reason for him to keep it. On the other hand, the buyer would want it for the same reason he wants the rest of the business assets. It is part of what gives the business value as an ongoing business. If you want to find out whether it has been included in the sale, ask the old owner. He wouldn't have any reason to keep you from going to work for a competitor now that he is no longer in the business. Or you could simply violate the agreement and find out when the new owner sues you.

posted Apr 15, 2004 1:05 PM [EST]

Answer to breach of contract in the midst of a buyout

Answers lie in the terms of the contract

In order to evaluate your case, an attorney will first need to review the terms of the employment contract carefully. Whatever rights your husband has come from the promises made in the contract itself. Assuming that the premature termination was a breach of the contract terms, you should be able to pursue a claim. Unless the university simply sold its assets to the new owners and dissolved the entity that previously existed, it remains the same employer despite a change in ownership, and its contractual obligations still exist.
It appears that it would be worthwhile to pursue a claim against the university. But you need to understand the nature of the claim as well. Claims for breach of contract are limited to recovery of what was promised in the contract and possibly attorney fees. No consequential damages such as emotional distress and reputational injury are allowed in most breach of contract claims. Also, mitigation of damages may well reduce the claim. Your husband must make a good faith effort to find other employment, and whatever earnings he is able to make during the remainder of the contract period will reduce the amount of his recovery. Is the chance of recovering a little over two years' earnings minus what he is able to make in those same two years worth the risk and expense of a lawsuit? It's probably worth pursuing a bit further. Perhaps another letter from your lawyer to the employer might flesh out the "lie" your husband supposedly told or the "gross incompetency" he is supposedly guilty of.

posted Apr 1, 2004 10:55 AM [EST]

Answer to Compensation

Mediation requires reality check

To answer your question, I believe you first need to understand what mediation is and what it isn't. Mediation is simply a structured form of settlement negotiation, one that uses a neutral mediator to keep the discussion focused and moving forward. It is completely voluntary, and either party can end it simply by refusing to negotiate further. The fact that the EEOC offered it to you means nothing about the strength or weakness of your case. Your former employer's representatives may have agreed to mediate because they genuinely want to resolve the dispute, or they may simply want to use the process to find out more about your complaint before they have to answer it.
Race discrimination cases are covered by two statutes, Title VII of the Civil Rights Act of 1964 (which is what the EEOC enforces through its investigative process) and 42 USC �1981 (which does not require the filing of an EEOC charge prior to a lawsuit). Title VII permits recovery of back pay, reinstatement or front pay, and compensatory and/or punitive damages up to a statutory maximum that varies depending upon the size of the employer. Section 1981 has no limitation on damages. What you should ask for depends upon two factors: first, how strong is your case; second, how much have you been damaged?
The fact that you were fired and replaced by a person of another race is at best a prima facie case of race discrimination. The company will undoubtedly have an allegedly legitimate reason for its decision. To have any chance of winning, you must either have some direct evidence that the decisionmaker was motivated by a racially discriminatory motive or you must be able to show that the so-called "legitimate" reason for the termination was a pretext.
How much you were damaged depends in part upon how much you were making and whether you can find another job that pays what you used to make.
Keep in mind that the people you need to convince in mediation are the employer's representatives. The mediator has no power to force them to agree to anything, so you have to persuade them that it makes sense to settle. Whatever you ask for, be prepared to compromise or the mediation will go nowhere.

posted Mar 29, 2004 11:23 AM [EST]

Answer to Hired for wrong job, fired for lack of experience?!?

No damage = no recourse

As you correctly noted, Arizona's recognitiion of "at will" employment means that an employer doesn't need a reason to fire you. If the employer needed a reason, your inability to perform the job would probably be enough. But you have to ask a more fundamental question. How have you been harmed and who harmed you? You might be able to argue that the agency was negligent in evaluating you for the job, and never should have placed you there. But if it hadn't, where would you be? Did you give up another opportunity to take this job? Is that opportunity now gone? If so, perhaps the agency owes you an explanation, if not compensation for having improperly placed you in a position for which you were not suited. Did you pay the agency a fee for placing you? Or did the employer? It may be the employer who has the claim against the agency for its mistake. If the agency told the employer of your lack of experience and the employer was willing to give you a chance anyhow, it doesn't sound like anyone has done you a disservice, despite the fact that the job proved more difficult than you might have been led to believe. It was the hiring, not the termination, that was wrongful, but there is no such thing as a claim for damages for wrongful hiring.

posted Mar 9, 2004 12:58 PM [EST]

Answer to Temp employee discrimination complaint

A temp is an employee

Yes, you can file a charge against the company. When you work through a temp agency, the agency and the employer for whom you perform services are generally treated as joint employers. As long as the company employs 15 or more employees (20 for age discrimination claims), the civil rights laws apply. You can also file a charge against the agency through which you work if that agency engages in discriminatory practices. For more information about the specifics of filing charges, go to www.eeoc.gov.

posted Mar 5, 2004 4:56 PM [EST]

Answer to Discrimination, Retaliation?

Discrimination claims begin with a charge

Before you can file a lawsuit to remedy discrimination, you must first exhaust your administrative remedies. For employees who don't work for the federal government or the State, this means filing a charge of discrimination with the Equal Employment Opportunity Commission. This agency enforces most of the federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 (which prohibits discrimination based on race, color, sex, religion and national origin), The Age Discrimination in Employment Act (protects employees over 40 from age discrimination), the Americans with Disabilities Act (protects qualified individuals with a disability from discrimination) and the Equal Pay Act (prohibits pay discrimination based on sex). Your claims, both for discrimination and for retaliation, come under Title VII. The Arizona Civil Rights Division of the Attorney General's office works in conjunction with the EEOC to investigate claims of discrimination and to enforce the Arizona Civil Rights Act, which prohibits all the same forms of discrimination as the federal laws described above. When you file a charge with one of these agencies, they share it with the other agency.
It's usually a good idea to make a complaint within the company before going to an outside agency, but it sounds like your prior complaints have fallen on deaf ears. Don't wait too long to file a charge. Your complaint about the 2002 discrimination is already too old to form the basis of a charge.

posted Feb 3, 2004 11:38 AM [EST]

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