Answers Posted By Francis Fanning
Answer to Company reloacted, offered severance unless employee agreed to relocate. Agreed but resigned later.
Severance isn't mandatedWhen you decided to take the new job rather than the severance, you made an election. The company had no obligation to offer severance at all, so there is no argument I can think of that would entitle you to expect it after you turned it down in favor of the job.
Some severance plans are set up to meet the requirements of ERISA, the law governing employee retirement and benefit plans. ERISA plans have to be administered in compliance with the terms of the plan, which gives the administrator (most likely the company you worked for) even less discretion than it might otherwise have in handing out benefits.
The fact that some others may have been given benefits after changing their minds about staying with the company would only give you recourse if you could prove that some kind of unlawful discrimination was at work, i.e. race, religion, national origin, sex, disability or age played a role in the decision to treat you differently than the others. That will probably be very difficult to prove.
The "five years of tenure" that you "gave up" means nothing. You were probably an "at will" employee with no promise of job security, so tenure is simply the passage of time. It has no legal significance. Besides, as you say, you gave it up. It wasn't taken from you. You made a choice based upon your personal obligation to your mother and her needs. While that is admirable, it doesn't entitle you to anything more than anyone who quits a job for any personal reason.
posted Jul 3, 2003 4:54 PM [EST]
Answer to Retaliation
Retaliation is a separate claimIf you believe that your demotion was done in retaliation for your having complained to the EEOC, you can file another charge. A charge of retaliation is separate from the original charge of discrimination and must be treated as an entirely new claim. Of course, it is always a good idea to complain internally before going to an outside agency, but if you think that this would not be productive, you can go directly to the EEOC and file your new charge.
The fact that the company has a mandatory arbitration policy does no preclude you from filing a charge, nor does it preclude the EEOC from investigating the charge or taking other action. Even if you are required to use the arbitration process to resolve the dispute, the EEOC investigative process is helpful if not essential to making your case.
Incidentally, the length of time between the filing of your charge and the demotion may make it difficult for you to connect the two events. Usually courts won't draw a connection between a complaint and a subsequent act of retaliation unless the time between the two is quite short. You may need to find other evidence to connect the two events.
posted Jun 20, 2003 2:53 PM [EST]
Answer to Gender discrimination, retaliation (wrongful termination)
equal pay claims raise lots of issuesThe simple answer to your inquiry is that if everything you say is true and there are no other facts that pertain to your termination, you have a very good case. Unfortunately, there is always another side to every termination story.
The Equal Pay Act mandates that men and women be paid comparable wages for comparable work. A violation of this act is also a violation of Title VII of the Civil Rights Act, which prohibits sex discrimination in employment. Both laws also have provisions that prohibit retaliation for complaining about this form of discrimination. Each has somewhat different remedies and time limits, but both laws are enforced by the Equal Employment Opportunity Commission. In some cases is makes sense to file suit as soon as possible, because the two/three year statute of limitations in the Equal Pay Act runs while you are waiting for the EEOC to complete its investigation.
I would recommend that you consult with an attorney and have him or her review the facts in detail. You will need to file a charge of discrimination with the EEOC before you can file suit under Title VII. If the pay discrimination has been going on as long as you have been working for the company, part of your claim under the EPA has already been lost by the passage of time.
The fact that you may be a named defendant in a pending lawsuit may have something to do with the decision to terminate you. But that doesn't give you any recourse. It may prove to be the company's defense against the claim that you were fired for having made the complaint about discrimination. An attorney will need all the information you can provide in order to properly advise you of the strengths and weaknesses of your case.
posted Jun 5, 2003 5:21 PM [EST]
Answer to Out of state non compete agreement
State laws differ on non-competesIf you signed a non-compete agreement in another state, the law of that state will probably govern its enforceability, although that may be an oversimplification. Some states, such as California, have statutes that prohibit non-compete agreements altogether except in very limited circumstances. Other states, like Arizona, require them to be narrowly written. Some state courts will rewrite agreements to make them enforceable, while others, like Arizona, follow the "blue pencil" rule, which only allows the court to strike language from an agreement but not rewrite it.
The bottom line is that you need a lawyer to look at the agreement and the surrounding facts, to research the applicable law and to respond to the lawsuit. You won't find the answer to your problem by surfing the web.
posted May 20, 2003 1:37 PM [EST]
Answer to Salaried Exempt? Maximum hours required to work?
No limit on work hoursTo answer your second question first, there is no law limiting the number of hours an employee can be required to work, whether the employee is exempt or non-exempt. I guess congress has decided that the marketplace and the laws of natural selection and human physical endurance will govern this issue.
The first question requires more information than you have given. There are several exemptions that may apply to your husband, but each has certain requirements that he may or may not meet. I would suggest that you consult with an attorney to determine whether he is an exempt employee. If he isn't he may have a large claim for unpaid overtime.
posted May 16, 2003 4:31 PM [EST]
Answer to AZ non-compete bill becomes law May 29, 2002
Courts will have to decide about media non-competesYour question pits two important legal principles against one another. On the one hand, legislation generally cannot be applied retroactively to impair the obligations of existing contracts. Employers will undoubtedly try to argue that this constitutional provision protects their right to enforce the agreements they made before the statute was passed prohibiting these agreements. On the other hand, the passage of the statute gives employees the argument that such agreements violate the public policy of Arizona and therefore should not be enforced by the courts. This is the classic kind of clash of principles that leads to appeals, which leads to published decisions, which advances the law in small, incremental steps. I'll be interested to see if the issue shows up in the courts.
For others who may be reading this answer, please note that the statute only deals with broadcast employers. For any other employer in arizona, non-compete agreements are still allowed if they meet the other requirements the courts have put on them.
posted May 16, 2003 3:30 PM [EST]
Answer to Children and contracts
Child labor is okay - other questions ariseThe simple answer to your question is, yes, it's okay for your son to sign the "independent contractor" agreement. But that's not the end of the answer. A contract between an adult and a minor is generally unenforceable against the minor unless it is for the necessities of life. This contract is probably going to be terminable at will anyhow, so I'm not sure what difference it makes. If your son quits after two months, do you really think the condo association is going to sue him for breach of contract?
Child labor restrictions do not prohibit younger children from working, but exclude them from certain dangerous occupations. For example, your son can certainly sweep the floor and probably change the video tape, but if he were to start repairing washing machines he might have crossed the line. You can contact the Industrial Commission of Arizona for specific regulations regarding restricted work.
I question why the arrangement would be deemed an "independent contract" rather than an employment contract. Is your son in the business of providing janitorial services? The condo association may be trying to avoid the obligations normally imposed on employers, such as withholding taxes, social security and medicare. Also, an employer is required to pay wages on at least two paydays per month, not more than 15 days apart. There is also the issue of worker compensation coverage. If your son the "independent contractor" falls and breaks his back while changing the video tape, he will want to be covered by worker comp insurance. I would suggest that you have a little talk with the association about treating him as an employee rather than an independent contractor. The association's lawyer may agree. Most government agencies (like the IRS, the Industrial Commission and the Department of Labor)look beyond the "independent contractor" label to decide what's really going on. They often find such arrangements to be employment relationships, and the employer is usually the one who pays the price.
Finally, there is the question of salary. Your son is not likely to be exempt from the Fair Labor Standards Act. Even if he is paid a salary, it must meet the minimum wage requirement ($5.15 per hour). Tell him to keep track of his time working.
posted May 5, 2003 4:51 PM [EST]
Answer to non compete as an independent contractor
non-compete is not an employment contractA non-compete agreement is not an employment contract but a separate agreement that extends beyond employment. Such agreements are often used in connection with the sale of a business, even though the seller never has an employment relationship with the buyer. There is no law that prohibits such an agreement between an employer and an independent contractor. I have my doubts as to whether you are an independent contractor, however. Independent contractor arrangements are often used by employers who want to avoid the obligations imposed by law on employers, such as providing worker compensation insurance, income tax withholding and protection against workplace discrimination. The IRS, the EEOC, the Industrial Commission and the U.S. Department of Labor all scrutinize such arrangements carefully, and often conclude that what is called an independent contractor relationship is actually employment. If you were truly an independent contractor with a "franchise," your customers would belong to you, not to the "franchisor." Further, you would not be forced to engage in unscrupulous practices because you would be running your own business already. I suggest that you spend the money to have an attorney review your non-compete agreement as well as your "franchise" or "independent contractor" agreement and advise you on the specifics of each. You may want to consult with an attorney who deals with franchises rather than an employment attorney. He or she would have greater knowledge of the use and enforceability of non-compete provisions in connection with franchises.
posted Apr 30, 2003 4:44 PM [EST]
Answer to Former client contacted me.
Piracy is not illegalWhen you work for an employer, you have a duty of loyalty to that employer that prohibits you from acting in ways that would be detrimental to the employer's interest. When you no longer work for the employer, that duty ends. Employers often use non-compete or anti-piracy agreements to protect against loss of clients to former employers now working for a competitor. In the absence of such an agreement, you are free to compete, including taking on clients that used to do business with your former employer. If you have signed a non-compete or anti-piracy agreement, you should have it reviewed by an attorney to see if it is enforceable and if it prohibits the specific conduct in question. Most anti-piracy agreements are written to cover doing business with the former employer's clients, whether you solicit them or they come to you.
posted Apr 14, 2003 5:09 PM [EST]
Answer to staffing non-compete
Non-compete is not an employment agreementThis answer is based upon general principles and is not specific to your situation, because I cannot advise you regarding your individual case without reviewing the agreement in question.
As a general rule, a non-compete agreement is written to stand alone as a contract separate and apart from an employment agreement. Although the agreement may recite that a pay increase is the consideration for signing the agreement, if your employment relationship is terminable at will, a promise of a pay increase is not the equivalent of a guarantee of continued employment for any particular period of time. For this reason, it would be difficult to argue that a subsequent pay reduction breaches the non-compete agreement, although it probably excuses you from any further obligation to honor the agreement. I would need to review the actual language of the agreement to see if these general comments follow from the actual terms of this particular agreement.
posted Apr 14, 2003 4:58 PM [EST]