Answers Posted By Francis Fanning

Answer to Non-Compete regarding staffing services in AZ

Non-competes raise more questions than answers

Your question cannot be answered with a simple yes or no. I don't know what provisions your non-compete agreement contains. Nor do I know whether your earlier work for your family friend was done as part of your former job or whether you were "moonlighting." If it was done through your former employer and you were paid by that employer, the scope of their business may have expanded to include restaurants as well as medical employers. The fact that your former employer is threatening legal action leads me to believe that they want to hang on to that bit of business, so the question turns on whether the non-compet is enforceable and whether it covers that area of business. Bit the bullet, make an appointment with an employment attorney and have him or her review the agreement and the facts, including the answers to the above questions.

posted Mar 12, 2003 12:28 PM [EST]

Answer to Is non compete enforcible even if not offered employment?

Non-compete sounds like a bad deal

Without doing some additional legal research, I cannot give a definitive answer to this question. I am not aware of any Arizona case that addresses this exact situation. But an application of basic concepts regarding non-compete agreements leads me to believe that this agreement would be difficult to enforce. The purpose of a non-compete agreement is to protect the employer against the loss of business contacts or information that an employee developed during employment that may give an advantage to a competitor. Training a prospective employee in a common skill for the industry does not involve trade secrets, confidential company information or the development of customer contacts that are usually the protectible interests of the employer. Most non-compete agreements must be reasonably restricted as to time and geographic scope. While a countywide limit may be reasonable, the time limit is not supposed to exceed the period of time necessary to hire, train and orient a replacement. If your training only took a few weeks, it seems hard to understand why a six month prohibition would be necessary, especially when you never even went to work for the casino. Another interesting question that arises is where the casino will go to enforce the agreement. Violations of such agreements often result in suits against both the employee, for breach of contract, and the new employer , for interference with contract. The casino could probably file suit against you in Superior Court, but another casino on a different reservation would not necessarily be subject to the state court's jurisdiction for activities it conducts on its own land.
Perhaps the most important practical consideration is whether a prospective employer will be willing to hire you in light of the agreement, whether or not it is enforceable. If you fail to advise the prospective employer about it, you may lose the job as quickly as you land it.
Finally, what will casino 1 be able to do if they take you to court over a violation? Without reading the agreement I can't say for sure, but how could they say they have been damaged, when they never even hired you?
As you can see, non-compete agreements as a rule raise more issues than they resolve. I would suggest having a lawyer review the agreement and discuss the specifics, but don't expect any black and white answers.

posted Mar 7, 2003 4:19 PM [EST]

Answer to Non-Compete

Avoiding non-compete is tough

I must begin by making an important assumption. I assume you are an at-will employee. That means that your employer can fire you at any time without a particular reason. If so, your refusal to sign a non-compete agreement may result in termination.
The agreement itself may or may not be enforceable. First, such agreements are only enforceable if they are narrowly written to meet an employer's need for such protection, and if they are reasonably restricted as to time and geographic scope. A one year agreement may be enforceable, but the employer would have to satisfy the court that such a lengthy agreement is necessary. You did not mention the geographic scope. If your territory with your current employer is limited to a certain state or area, expanding the agreement beyond this area may render it unenforceable. Another issue is the question of an element of a contract known as consideration. This is something of value in exchange for your promise to comply with the contract. If you are already employed and your employer is not giving you anything additional, such as a raise, a bonus or a promise of greater job security, the court may find that the agreement is not a binding contract and refuse to enforce it.
Non-compete agreements are among the most unpredictable when presented in court. I would suggest having an attorney review both the original non-compete and the new one. You may have a better chance of avoiding enforcement of the new one than the original.
The provision about keeping your employer informed of who you work for after you leave is, as a practical matter, unenforceable. If you don't comply, what will the company do, sue you? For what? If you aren't competing with them, they won't have any damages. Whoever dreamed up that provision needs to get a grip on reality.

posted Jan 6, 2003 1:45 PM [EST]

Answer to Unfavorable Reference Undocumented

No right to a reference

A former employer has no obligation to give you a reference. Arizona even has a statute that protects an employer who gives a negative reference if it is done in good faith (that is, based upon legitimate facts and not done merely to hurt you). Many companies refuse to give reference information as a matter of policy. If your employer tells friends not to give you a reference, it may be in order to enforce the non-reference policy, if the company has such a policy. Otherwise, you might have a potential claim of interference with prospective advantage, since it would be hard for the supervisor to come up with a legitimate reason for giving employees such a directive. The burden would be on you to prove that the supervisor gave the direction to hurt your chances for future employment and not for any legitimate business reason. Perhaps someone in the human respurces office of your former company can tell you what the company's policy is regarding references.

posted Jan 1, 2003 7:05 PM [EST]

Answer to Is the following a form of discrimination?

Braid discrimination not unlawful

The short answer to your question is that discrimination based upon hairstyle is not unlawful. An employer can impose reasonable dress and grooming standards, even if those standards differentiate between men and women. There have been some cases in which black men have complained about standards prohibiting facial hair because a significant percentage of black men grow beards to avoid problems caused by ingrown hairs causing follicle infections. But there seems to be no compelling reason for you to have to braid your hair. It isn't race discrimination if the employer prohibits both black and white women from wearing braids. And there is no law that prevents an employer from insisting that employees not look too "different" from the norm. I'm not sure what you meant by the comment about your manager's motives. Even if he has some prejudice against blacks or women or black women, he hasn't done anything that discriminates on the basis of race or sex (unless he's letting the men braid their hair, which I suspect is not the case). To have a case of unlawful discrimination you must show that you have been treated less favorably than other employees in the terms and conditions of employment, and that the less favorable treatment was on account of an unlawful criterion (i.e., sex, race, religion, national origin, disability or age). You don't seem to have either of these elements.

posted Dec 23, 2002 8:17 PM [EST]

Answer to Servance agreement

distress is not duress

You are undoubtedly distressed about being laid off, but that does not entitle you to sign a severance agreement and then claim you did not agree to its terms. Legal duress, which sometimes excuses one from a contractual obligation, requires proof that your free will was taken away, such as when one signs an agreement under threat that by not signing he will be injured in some way. Your employer does not have a legal obligation to pay severance to you, and most employers only pay severance in return for a release from liability. You are free to accept the severance or reject it and pursue your legal claim. You are not entitled to both. I suggest that you consult with an attorney to see whether you have any kind of viable claim of discrimination. Chances are your claim will be too weak and too expensive to pursue. In that case, you might as well accept the severance and move on. You can certainly ask for more, but if your layoff is part of a large reduction in force, I doubt that the company will want to set a precedent by paying you more than others are receiving.

posted Aug 15, 2002 12:52 PM [EST]

Answer to Retaliation?

Retaliation can be a complicated question

To answer your question, I would need more information. It is really several questions in one. First, I would want to know if the two agencies are both state agencies, and whether the information about your charge was "leaked," or whether it was simply information available to any state agency. You seem to be suggesting by your question that the agency you work for was retaliating by "leaking" the information, but you would have to prove that such "leaking" constitutes an adverse employment action. If your employer is the state, and if the prospective employer is also the state, the sharing of such information is not exactly the same as giving it out to some other prospective employer.
A more important question is whether the reason you didn't get an interview is because the second agency found out about your complaint. If so, it is the agency to which you applied that is retaliating against you, and your complaint should focus on that agency's use of your protected conduct (complaint) as a reason to treat you less favorably than other applicants.
You should also be aware that the U.S. Supreme Court has ruled in several recent cases that the 11th Amendment to the Constitution precludes suits against states based upon a variety of federal laws, including the Age Discrimination in Employment Act and the Americans with Disabilities Act. Most people assume that the same rule would apply to a Title VII discrimination claim. The Arizona Civil Rights Act is still available, but it has fewer remedies and a shorter statute of limitations. If you plan to pursue your claim, I suggest you discuss it with an attorney soon.

posted Jul 5, 2002 5:51 PM [EST]

Answer to Taxes on severance package and evaluation of severance agreement.

Taxing Severance Pay

You can find the answer to this and other questions in the IRS Publication 15, Circular E, the Employer's Tax Guide. Severance pay falls into the category of supplemental wages. The employer has the option of withholding at a straight 27% rate or recalculating your pay and withholding for the entire year. The important thing to remember is that this is simply withholding. It has nothing to do with the amount of tax you will ultimately have to pay. Also, this deals only with income tax. Social Security and Medicare taxes are in addition to income tax.

MEL Moderator note: Here is an article on tax issues in employment settlement agreements that applies to severance agreements:

http://www.myemploymentlawyer.com/Tax-Issues-in-Settlement-C-Royer-10-5-2007-1.htm

posted Jun 17, 2002 12:51 PM [EST]

Answer to Termination- Company policy and state law

No remedy for violation of company policy

To answer the question "What legal options do I have?" I would need more infromation about the circumstances of your termination. But if you were thinking the company's policy gives you some recourse, think again. Look in the introductory part of the policy book and you will probably find some language that says something like "This handbook is not intended to constitute a binding contract of employment. Employer reserves the right to terminate your employment with or without cause or notice." Even if this language is not in the policy, Arizona has gone one step further to protect employers (yes, I said employers). In order to have any recourse under the terms of a company policy, the policy must state that it is intended to be a binding contract of employment. I have yet to see such a policy, except in the case of one mining company that desperately wants to keep the union from getting a foothold.
Of course, your employer cannot exempt itself from the antidiscrimination laws that protect employees, and there are a few situations in which an employer's decision to terminate an employee is wrongful because it violates some public policy ( such a terminating an employee for refusing to commit a crime or for blowing the whistle on criminal conduct). Violation of company policy is not a violation of public policy, however. Sorry to have to give you the bad news.

posted May 28, 2002 02:30 AM [EST]

Answer to Pay Cut for No Reason

Pay cut doesn't give you recourse

I'm afraid there isn't much you can do about the pay cut. I assume that you are an "at will" employee, which most private sector employees are. Unless you have a written contract that says otherwise, you can be terminated at any time with or without cause. Thus, your employer can reduce your pay, since that is nothing more than terminating you and employing you with different terms. Your only recourse would have to be based upon something that would amount to a wrongful termination or some form of unlawful discrimination. For example, if you were the only male and your pay was reduced to match that of your female counterparts, that action would violate the Equal Pay Act, because that law, while it requires pay equity between men and women, does not allow an employer to reduce an employee's pay to eliminate the disparity.
A one third pay cut might amount to a constructive discharge. A constructive discharge is an action against an employee that would cause a reasonable person to feel compelled to quit. The problem is that a constructive discharge gives you no more recourse than an actual discharge. So if you can be terminated at will, you can be constructively discharged without any particular reason being proven.
Sorry for the bad news.

posted Apr 17, 2002 7:31 PM [EST]