Answers Posted By Francis Fanning

Answer to Lawyer needs lawyer.

Wage claim - wrong state

Since you were employed in Illinois, your claim will be governed by Illinois law and your lawsuit will have to be filed in Illinois. There is no basis for Arizona courts to assert personal jurisdiction over your former employer.
Arizona law provides for the possibility of recovering three times the amount of unpaid wages. The statute of limitations for making the claim is one year from when the wages were due. The term "wages" is currently defined to include all forms of compensation, including bonuses and severance pay. The legislature is currently considering a bill that will limit the amount of a wage claim that can be trebled. I suspect that Illinois may have some kind of wage statute similar to Arizona's but you would have to ask an Illinois attorney for advice on this question. You really need to retain an Illinois attorney if you intend to pursue this claim.


posted Apr 2, 2002 7:52 PM [EST]

Answer to Can my boss make me work in an unappropriate and uncomfortable environment

Unwelcome conduct - a tricky question

There are two ways to look at your situation. First, I would assume that your employer has some way of dealing with massage therapist complaints about such unwanted patron problems as body odor, rudeness, refusal to cooperate with general procedures regarding privacy, dress, etc. If your employer allows massage therapists to refuse service to patrons for these reasons, your concern shouldn't be treated less seriously (although I suppose customers can be counseled about undeniable misbehaviors, whereas it would be difficult for your boss to counsel this client about your concern without some evidence).
The second way to look at the situation is to treat it as a complaint of sexual harrassment. An employee is entitled to be protected against sexual harrassment by patrons as well as by other employees. The problem is that the standard of what constitutes unwelcome conduct of a sexual nature is the standard of the "reasonable victim," in this case the "reasonable woman." While you may feel offended and intimidated by the patron's conduct, your reaction has to be measured against what a "reasonable woman" would feel. Since your supervisor is a woman, she is in a position to make her own judgment of the reasonableness of your concern. This doesn't mean you are being unreasonable, but only that reasonable minds can differ.
In calling the patron's conduct "unwanted conduct of a sexual nature," there are several factors to consider. You are operating on the assumption that he ejaculated, and you may be correct. But he apparently did nothing of a sexual nature in your presence, or at least nothing that you perceived as sexual at the time. Further, when you massaged him again, he apparently did nothing at all that you found offensive. For those reasons your supervisor could reasonably conclude that you are not being subjected to
sexual harrassment and take no further action.
Remember also that you have the right to make a complaint of sexual harrassment without being subjected to retaliation. If you are punished in any way for having made the complaint, you may want to file a charge of retaliation with the Equal Employment Opportunity Commission. Keep in mind, however, that you may not refuse to do your job simply because you find it upsetting.

posted Apr 1, 2002 3:43 PM [EST]

Answer to Employer changes terms non-compete contract. Still Enforcable?

Right to Work

To answer your last question first, Arizona is indeed a "right to work" state. This has nothing to do with your questions. A right to work state is a state that has a law prohibiting an employer and a union from entering into an agreement requiring union membership as a condition of employment (what is sometimes referred to as a closed shop agreement).
Your questions involve the interpretation of your bonus agreement and your non-compete agreement. Without seeing the agreement, I cannot give you any competent advice on the issues you have raised.
In general, an employer is required to pay the wages agreed upon when they are earned. Bonuses are included in the definition of wages. But without seeing the bonus plan, I cannot tell whether you would be able to argue that the bonus has been earned.
Non-compete agreements are not favored in the law but will be enforced if they are necessary and if reasonably limited in time and geographic scope. If the consideration (thing of value) given to you when you signed the non-compete agreement was the bonus plan, you may be able to argue that the unilateral change by your employer caused a failure of consideration. You may also have other arguments to make to keep the agreement from being enforceable. I suggest you consult with an attorney who deals with these issues. It is well worth the cost of the consultation.


posted Feb 26, 2002 1:20 PM [EST]

Answer to Breech of Oral Contract

Oral contract not enforceable

There are several reasons why this "oral contract" isn't enforceable. First, a promise to be cross-trained into the position "eventually" is probably too vague to constitute an enforceable contract. More importantly, such a promise would, by implication, require that you perform adequately in the position, which your employer apparently feels you did not, unless the reason you were "not qualified" has to do with something else.
Most importantly, you are probably an "at will" employee, unless you have a written contract that says otherwise. Arizona has a statute that specifically requires that any contract that purports to alter the "at will" nature of your employment be in writing. Since your contract was oral, it cannot alter your "at will" employment status. Thus, your employer does not need a reason to fire you, and therefore does not need a reason to remove you from the position you sought. Sorry to give you the bad news.

posted Feb 18, 2002 1:34 PM [EST]

Answer to Nexus between Arizona telecommuting to Nevada company

Telecommuting nexus

I'm not sure I understand your question. As is often the case for lawyers answering such questions, I have to know what your purpose is in asking the question. The "nexus" you refer to may or may not exist, depending upon the legal issue. For example, if you are asking whether you can bring suit against your company for unpaid wages or wrongful discharge in Arizona, the answer requires an interpretation of Arizona's long-arm jurisdiction provision, which deals with a body of constitutional law interpreting the Arizona Rules of Civil Procedure. To be subject to the jurisdiction of Arizona courts, a defendant must have "caused an event to occur" within the state. The cases interpreting this provision have extended Arizona's jurisdiction "as far as the constitution will allow." By employing someone in Arizona, does a Nevada company "cause an event to occur" within Arizona? I would argue yes. The company would probably say no.
If you are asking whether the law that applies to your employment relationship is the law of Arizona or Nevada, that requires the application of choice of law provisions in the state in which you file suit. My guess is that the law of Nevada would apply, but it's only a guess. If I were giving advice to your employer, I would advise them to insist upon a written agreement stating that the law of Nevada applies. But even then there may be a situation in which Arizona courts would refuse to apply Nevada law if it contravened the public policy of Arizona.
If you are asking whether the income tax laws of Arizona or Nevada would apply to your employment, the answer is that probably both laws would apply, but you would have to look at each law to see what it provides about taxation of income for someone in your situation.
When you ask a legal question, you have to explain what it is you are asking, and why you want to know. Otherwise, you get this kind of gobbledegook for an answer.

posted Feb 15, 2002 1:52 PM [EST]

Answer to Unemployable in a business I 've done for 18 yrs. because of a non compete

Non-compete may be invalid

Your question is three separate questions. First, non-compete agreements between employers and employees are not illegal, but they are not favored by the courts. They will be enforced only if they are necessary to protect legitimate business interests (mere avoidance of competition is not enough of an interest). Second, they must be reasonable in geographic scope and length of time or they will be held unenforceable. There is no set rule about what is reasonable. It depends on the job you did and the industry you are in. Most employers don't bother to enforce these agreements unless they are really being hurt by the competition, because it is hard to predict what a court will do with any particular agreement.
Singling out one employee for enforcement of the agreement is not, by itself, unlawful discrimination unless it is being done for an unlawful reason, such as because of your race, sex, religion or national origin.
Slander is a completely separate question that requires analysis by an attorney. To prove slander you must show that the former employer is publishing (verbally communicating) false factual information about you. Mere opinions won't do. Unless the statements being made are provably false, or the innuendo from the statements is a false fact, you have no claim for slander.

posted Feb 14, 2002 5:23 PM [EST]

Answer to Full time versus part time severence

Severance isn't a right

Unless your employer has a severance plan that is covered by ERISA, you have no enforceable right to receive severance at all. Severance is not paid as some kind of an earned benefit or gratuitous gesture of kindness. It is a payment employers offer in exchange for a release from liability, and rare is the employer who pays severance without requiring a release from any conceivable legal claim the employee might have.
Also, while it may be a form of discrimination to treat part time employees less favorably than full time, it is not an unlawful form of discrimination, but simply one of many forms of workplace discrimination that seem unfair if you're on the receiving end.

posted Feb 14, 2002 5:10 PM [EST]

Answer to Contract language for terminating the agreement

penalty for early termination

I must disagree with the answer given by David Lira. I know of no caselaw that prohibits two parties from freely entering into an employment contract for a set period of time. It is not involuntary servitude at all, but rather voluntary servitude. The "at will" concept in employment contracts is a presumption. A presumption is a legal device to use in interpreting a contract that does not contain an explicit provision about the issue at hand. In a typical employment contract, there is no provision dealing with when the contract will end. In such a case, the presumption is that the parties intended the relationship to be terminable at will by either party. But nothing prevents parties from reaching a different agreement. One exception to the concept of at-will termination is a contract for a specific period of time. There are cases in Arizona and elsewhere that hold that an employer must have good cause to terminate such a contract prior to the end of the period.
The reason this contract does not amount to involuntary servitude is that, as with any contract, you are free to breach it and suffer the consequeces. So, if you quit prior to the end of the agreement, you will be liable for damages, just as the employer would be for terminating you prior to the end of the agreement. This raises all kinds of other issues, such as who breached the contract first (assuming the employer does something that makes you want to quit), how much damage actually results from the agreement, and so forth. But there is no reason I can see for hesitating to agree to these terms. If you are hired as an "at will" employee and move to Arizona from Pennsylvania, what happens if the employer decides to fire you after a month? I would insist on some promise of job security before moving across country, and it's only reasonable for the employer to insist on a similar commitment from you.

posted Jan 18, 2002 7:02 PM [EST]

Answer to Does my severance plan create a disparate impact?

disparate impact

The term "disparate impact" refers to a method of proving unlawful discrimination by showing that a test or condition that appears to be neutral on its face results in a protected group being treated less favorably than others. In your case, I assume that the term you describe is standard language the employer puts in its severance agreements. If it had a greater impact upon a protected class, that would mean that the layoff itself (if that is what happened to you) was having a greater impact on a protected group. The discrimination claim, if it can be proven, would be for the layoff, not the terms of the agreement. If you were simply terminated alone and required to sign the agreement, you cannot make a case for disparate impact. One termination has no statistical significance to prove anything, and disparate impact is proven by the use of statistical data.
The issue of holding your household goods raises separate questions that I cannot answer without more information. Why does your employer have your household goods in the first place? Have they paid to move them and are they now expecting reimbursement for moving expenses? If you just moved, why the termination? What was the agreement regarding moving costs? You need to meet with an attorney and go into detail about these issues.
By the way, although the language in the severance agreement sounds ominous, you cannot be criminally prosecuted for applying for a job. Assuming that the act of applying constitutes a breach of the severance agreement, the only "prosecution" that could occur would be a civil suit for damages for breach of contract. Why any employer would ever go to such lengths escapes me, and the likelihood of proving damages is rather remote (unless the employer spends money on hiring you - such things as moving expenses - and then discovers that you misrepresented yourself to the company by not revealing your status under the severance agreement).

posted Jan 15, 2002 1:34 PM [EST]

Answer to Company says pay raise on signed document is a "mistake."

Phantom Pay Raise Disappears

I'm sorry to tell you that you are probably out of luck. Just because a document is in writing and signed, it doesn't automatically become an enforceable contract. I assume that you have no written contract of employment that protects you from an at will termination. Most people who work in the private sector are "at will" employees. For this reason, the written agreement you have setting your pay is not really enforceable beyond the brief period during which you may have worked under it. I assume that if you press the company to honor it, they will simply terminate your employment, and then perhaps offer you your old job at the rate of pay they intended all along. Of course, being an at-will employee you are free to quit over the employer's refusal to honor the commitment, if in fact they really made the commitment in the first place. If it really was a typographical error or a clerical mistake of some kind, you are the one who is trying to gain an advantage on account of the error. Would you consider it fair for your employer to hold you to a mistake you made if the situation were reversed?
If, on the other hand, you gave up something or committed to some new obligation in return for the promised raise, the legal analysis would be different, and you might have a claim. An attorney would need to know what led to the promise of the raise, how it was determined, how the mistake was made and other facts in order to fully evaluate the case. I suggest you consult with a competent employment attorney (there are a number of them in Tucson).

posted Nov 27, 2001 4:25 PM [EST]