Answers Posted By Francis Fanning

Answer to Sexual Harrassment, Retaliation, Hositle working environment

Moving the victim is not an appropriate solution to end sexual harrassment

Your case has a lot of details too numerous to discuss, and your former boss undoubtedly has a completely different version of the facts. You should talk to an attorney about evaluating the case in detail.
That being said, the one general rule that the courts have recognized in cases such as yours is that an employer should not transfer the victim of sexual harrassment to solve the problem. If a transfer to a different worksite or department is undesirable, it is considered an act of retaliation by the employer against the one who complained. If some action is needed to correct the problem, the action should be one that does not adversely impact the one who complains. Not every transfer rises to the level of an adverse employment action, however. If your anger is based upon the lack of punishment meted out to your former boss, that won't get you far. The law does not entitle you to demand that he be punished, only that you not be subjected to sexual harrassment or to retailation for complaining.
Your boss's behavior sounds like a combination of two kinds of sexual harrassment. One, called "hostile environment," simply involves unwanted conduct of a sexual nature, such as remarks about your body. The other, called "quid pro quo," involves the use of his power as your boss to obtain sexual favors or tolerance of inappropriate behavior. Although there is something of a distinction between the two, your employer can be held liable for either type of harrassment.
To pursue the matter beyond HR, you should file a charge of discrimination with the EEOC. Before you do, it might be wise to discuss with an attorney the kinds of damages you can recover, and whether the prospect of a satisfactory resolution warrants the expense and additional difficulty involved in pursuing such a claim.

posted Feb 2, 2004 11:13 AM [EST]

Answer to Pattern of retaliation

Not Every Adverse Employment Action is Retaliatory

To prove a claim of retaliation, you must show that you engaged in protected activity (filed a charge, which you did), that the employer took an adverse action against you (demotions) and that there is a causal connection between the two. It is this last element that is hard to prove. Even if the demotion were right on the heels of your charge of discrimination, that does not automatically make it retaliatory. An adverse action immediately after a protected act is suspicious, particularly if you had a history of good performance reviews. But eight months is a long time between events, and unless you have some evidence that the person who demoted you was angry or resentful about your charge, it will be hard to show the connection. Your employer is entitled to judge your performance and take legitimate actions regarding your employment. The fact that you filed a charge does not shield you from legitimate criticism.
If you believe that the actions against you were retaliatory, you should file another charge. A charge of retaliation is a separate charge from the one you originally filed, and the EEOC will not simply include retaliation in its investigation of the original charge. You have 300 days after an unlawful act to file a charge. Your time for filing a charge about the first demotion is almost gone.

posted Feb 2, 2004 10:51 AM [EST]

Answer to Company taking away earned vacation after employee has enjoyed this vacation time for many years

Different State - same answer

I'm not sure why you asked an Arizona lawyer for an answer about Illinois law. Payment of wages (paid vacation is part of the definition of "wages") is governed by state law. Arizona has a statute that merely requires that the employer pay wages that are agreed upon. As in Illinois and Georgia, the employer is free to terminate employment at will, and thus is free to change the terms of the agreement. Those wages that have already been earned must be paid, but wages not yet earned can always be renegotiatied ( a euphemistic term - these things are not really negotiated in most cases, but are unilaterally decided by the employer - i.e. your dad can take it or leave it). To determine what has been earned requires a careful review of the vacation policy and how vacation credit is given. See the other answers to your question. Although the different states have different statutes, the basic concept is the same - it isn't owed until it is earned.

posted Jan 26, 2004 11:38 AM [EST]

Answer to Vacation Accural--Manditory Overtime

Overtime is governed by the law of supply & demand

There is no law that limits the amount of overtime your employer can require you to work. The marketplace law of supply and demand controls abusive employers on this issue. Most people won't continue to work the kind of hours you describe unless they are paid a very generous salary, and even then the physical limits of a person's body and brain will eventually govern. The only law that protects against abusive overtime is the Fair Labor Standards Act, which requires an employer to pay time and a half for hours over 40 per week. The Act exempts certain employees, such as managers, professionals (accountants, attorneys, etc.), administrative employees (e.g., HR people) and certain other categories. Just because you are paid a salary, this does not automatically mean you are exempt from the coverage of the law. For further information about this law, you can contact the U.S.Department of Labor.
Vacation pay is governed by the policies of the employer. The law does not require that it be given at all. When it is given, how it may be used, reimbursed, lost or accrued is a matter of employer policy. If the employer has made a practice of paying departing employees for unused vacation, it cannot simply ignore this in your case. If your accrued vacation amounts to less than $2,500.00 worth of pay, you can make a claim for unpaid wages by contacting the Labor Department of the Industrial Commission of Arizona (this is different from the U.S. Dept. of Labor). You can find more information about these agencies by going to their websites. My website, www.workrightsaz.com, has links to both agencies.

posted Jan 21, 2004 11:15 AM [EST]

Answer to Arizona - "Right to Work" State

right to work often confused with at will employment

People often confuse the concept of "right to work" with "at will" employment. They have nothing to do with one another.
Indeed, Arizona is a right to work state. This means that Arizona has a statute that forbids an employer and a union from agreeing to require union membership as a condition of employment. As a result, unions have a difficult time getting a foothold in many workplaces. Even when a work group (known as a "bargaining unit") votes to have a union as its exclusive bargaining agent, individual members of that unit are not required to belong to the union. As a result, the union does not enjoy the same degree of loyalty among the employees that typically exists in states where union membership can be mandated as part of the collective bargaining agreement. Right to work states like Arizona are often regarded as more friendly to employers, which is easily interpreted as anti-union or anti-employee rights.
Arizona also recognizes the concept of "at will" employment, which means that employees in the private sector can generally be terminated for any reason or no reason, unless the employee has a contract that provides otherwise. Most states recognize this concept in one form or another, but courts have developed numerous exceptions to this presumed understanding between employer and employee. The courts in Arizona began to recognize the idea that employment policies in handbooks or personnel manuals could be used as evidence of an implicit promise by an employer that it would not terminate an employee without a good reason. But then the Chamber of Commerce lobbied the legislature heavily for several years and succeeded in having a law passed that protected employers from such claims. The law, euphemistically named the Employment Protection Act, requires that any contract altering the presumption that employment is terminable at will must be in writing and signed by the employer. The only employees likely to have such protection are high level executives and unionized workers.

posted Jan 10, 2004 5:14 PM [EST]

Answer to hostile work environment

Hostility is not the same as hostile work environment

You seem to have confused workplace hostility with the concept of "hostile work environment." This is a common misconception. The term "hostile work environment" does not mean people in the workplace being mean to you. It refers to a particular type of unlawful discrimination, one in which the employer allows an environment to exist in which unwanted conduct of a sexual, racial, religious or otherwise unlawfully discriminatory nature pervades the workplace. The only law that prohibits employees from being hostile to managers on account of their position is the law of supply and demand, i.e. employees can be fired for insubordination or misconduct. But employees in the private sector have the right to engage in protected concerted activity (joining together in voicing grievances to management regarding the terms and conditions of employment). Drawing the line between protected concerted activity and insubordination or misconduct is often difficult and fraught with risk for managers eager to punish those who speak out. To put it simply, when your employees complain about you, they are protected from retaliation. When you complain about them, you are not. Welcome to the ranks of management.
Your complaints about people falsifying time records falls into the category of "whistleblowing." But you haven't been fired, and in general the only legal remedies for whistleblowers are in the area of wrongful discharge claims.
Your counselor may be right about your boss needing help, but the law doesn't provide you with a remedy for an ineffective boss with poor people skills.

posted Jan 7, 2004 2:35 PM [EST]

Answer to deducting taken paid vacation from wages

Vacation is governed by company policy

To understand the answer to this question, you must keep in mind that the basic rule of law is that vacation is a form of compensation, and that the employer is obligated to pay the compensation agreed upon in return for work performed. So the question becomes "What was agreed upon?" When a policy is stated in writing and you work for the employer with the understanding that the policy says what it says, the company cannot unilaterally change the policy retroactively. Because you are an at will employee, the company can always change policies for the future, but once you have performed the work that entitles you to the vacation, it has been earned just like your paycheck. So the policy governs. If there is some misunderstanding about how the policy is interpreted, the company may have an argument to make, but it cannot simply say that the written policy is wrong. The spreadsheet is a different matter. If there is a clerical error in the spreadsheet, the company can probably go back and make the correction. You need to have an attorney review the written policy to advise you fully on your rights in this situation.

posted Dec 4, 2003 12:14 PM [EST]

Answer to

Assault at work raises two separate questions

To advise you on your rights in this situation, a lawyer would need more information. There are two questions involved in your query - first, what recourse do I have against the person who assaulted me? Second, what recourse do I have against my employer?
Assault is what is known as an intentional tort, which allows you to sue the person who assaulted you for damages. However, what people often describe as an assault is actually a battery. You need to consult with an attorney, give him or her the facts and evaluate the damages caused by the incident. There may also be a claim against this person for interference with your employment relationship if the incident was the reason for your termination.
Your recourse against your employer raises a whole different set of issues. A lawyer would need to know what kind of assault occurred and why, by whom, whether the employer was responsible for it or condoned it, whether it was an isolated incident or part of a bigger problem, and why the employer chose to terminate you. There are numerous possible claims to consider, from sexual harrassment to worker compensation, to negligent hiring or retention to wrongful discharge. You really need to consult with an attorney and lay out all the facts. But don't expect any easy or clear-cut answers.


posted Nov 17, 2003 5:00 PM [EST]

Answer to Replacing a laid off employee

Simple question -two answers

The simple answer to your question is yes. There is no law that restricts an employer's freedom to hire someone to replace you, and you have no legal right to be recalled, unless it is contained in a collective bargaining agreement.
The question you really need to ask is "why did they lay me off?" Assuming that you were an "at will" employee, your employer can let you go whenever they want to. They don't need a reason. But people don't do things without a reason. So if they refilled your position as soon as they laid you off, the layoff apparently wasn't to reduce costs or eliminate the position. So why did they do it? An employer can discharge an "at will" employee without a particular reason, but if the reason was unlawful, the termination may be wrongful. Was it because of race, or sex, or religion, or national origin? Was it because of age or a disability? Was it because you reported unsafe working conditions or made a worker compensation claim? These are examples of unlawful reasons for terminating someone's employment. The burden is on you to prove what the real reason was if you want to seek legal relief for a wrongful discharge.

posted Nov 11, 2003 12:09 PM [EST]

Answer to How to figure what a non-compete should be worth for 3 yrs.

Non-compete is worth whatever you decide it is

From the facts you described, it appears that your employer has terminated you and now has no ability to keep you from competing with them. If you intend to compete with them, why would you sign a non-compete agreement? On the other hand, if you do not intend to compete with them, you should ask for as much as they are willing to give in return for a promise that costs you nothing. There is no magic formula to determine what such an agreement is worth. I suppose you could argue that since you were making $100k working in the industry for them, your agreement to leave the industry for three years should be worth $300k, but of course that can easily be refuted by the argument that you can earn some salary doing something else. What will you make if you compete with them? Probably nothing initially, but in three years you could be making much more than they were paying you. And will you succeed in getting the franchise? Your question is asking for information that can only come from a crystal ball. I would make your former employer tell you what it is worth to get you out of their hair.
As for your wife, I assume she was an at-will employee, so the employer could fire her without a reason. If they needed a reason, I assume they would say they didn't want the wife of a potential competitor working for them. There doesn't seem to be anything illegal in that.

posted Oct 30, 2003 3:44 PM [EST]