Answers Posted By Francis Fanning

Answer to Retailiation incidents

Retaliation

The facts you have recited are typical of what often happens in a retaliation case. As in most cases of discrimination, proving that the layoff was motivated by retaliation is difficult, and may be impossible to prove conclusively unless the boss admitted his motive to someone within the company. But the burden of proof in discrimination cases is not proof beyond a reasonable doubt, but merely by a preponderance of evidence. There is a burden shifting analysis that the court applies, and you may be able to prove retaliation indirectly by proving that the supposed reason for your layoff was a pretext. If you want to pursue the claim, I would suggest that you file a charge of discrimination with the EEOC and let the agency investigate. They can at least find out what the company's explanation is for the layoff, and may be able to gather other information from people in the decision making group that may support your suspicion.

posted Nov 26, 2001 1:10 PM [EST]

Answer to Release claim for severance, not previously required, is now required.

Release required

The answer requires a bit of convoluted legal reasoning, but let me see if I can state it as simply as possible. First, if your husband is an "at will" employee, this means he can be terminated at any time for any reason, and therefore anything that the company may have done in the past has no significance. However, an Arizona case decided last year held that some employees may have certain rights (in that case it was layoff by seniority) if the rights were promised in a company policy that can still be enforced as contractually binding. To explain what I mean by that would take a ten page lesson in employment law history since 1983.
Since there is no law that requires the payment of severance pay, the only way your husband would be entitled to it would be by company policy. Unless the company had a policy that could not be modified by the company unilaterally, the company is free to change the policy. Quite frankly, I can't imagine a company paying severance pay without requiring the employee to sign a release. Of course, your husband has no obligation to sign the release. If he thinks he has some kind of claim that he doesn't want to release, he should consult with an attorney before signing. Most people in layoff situations have no legal recourse or they have tenuous claims that are extremely difficult to prove.
To comply with the Older Workers Benefit Protection Act, employers must include language in the release that gives you time (21 days) to consult a lawyer as well as the right to change your mind and rescind the agreement for 7 days after signing it. It is well worth the cost of a consultation with an employment lawyer to have your questions answered and your husband's particular situation evaluated.

posted Nov 16, 2001 5:33 PM [EST]

Answer to Employer grabbed me out of anger

Battery is actionable

Your supervisor commited what is known at common law as battery. Battery is an intentional unwanted physical touching. The problem is that if she did not physically injure you, your chance of recovering any significant amount of damage is slight. You probably won't find a lawyer willing to take such a case without charging more than you would likely recover. You might consider filing a claim on your own in the justice court. The small claims division does not allow lawyers to participate. It's kind of like "Judge Judy." The small claims court can only consider claims up to $2,500.00.
The company that employed you might also be liable, although the damage issue is the same. Normally a supervisor who commits an intentional tort (wrongful act) is presumed to be acting outside the scope of the authority given her by the company, but since she was trying to keep you from deleting information from the computer, you may be able to prove that she was acting within the scope of implied authority given her by the company. If she was told to preserve whatever was on the computer and not let you destroy it, this would certainly strengthen your argument. The only purpose in holding the company liable would be to be sure there was money available to pay whatever judgment you might get. Of course, this would also prevent the supervisor from keeping her behavior a secret from her managers, and might lead to some corrective action that would protect the next person in such a situation.
Good luck.

posted Oct 22, 2001 12:53 PM [EST]

Answer to Potentially fired for telling people they could be potentiallyfired.

Flawed assumption

Your question seems to assume that your employer needs a reason to fire you. Without knowing the specifics of your employment agreement, I cannot evaluate your particular case. But let me explain that the general rule in private sector employment is that if you are employed for an indeterminite period of time, your employment is presumed to be terminable at will, that is at your employer's discretion, with or without cause. Just as you don't need a reason to resign, your employer doesn't need a reason to fire you. There are certain "bad" reasons for termination that can give rise to a cause of action for wrongful discharge. One is what is known as "whistleblowing," or reporting illegal conduct by an employer. Your facts don't fit this concept for two reasons. First, you didn't report anything to a person in a position to take corrective measures. Second, it is doubtful that the conduct in question was illegal, although the possibility of some kind of consumer fraud might potentially arise. Although your employer is not under a legal obligation to discipline you for "harrassment" (unless it falls into a category of unlawful discrimination, such as sexual, racial or religious harrassment), many employers treat generic harrassment as a violation of company policy and impose discipline as a matter of choice. Years ago Arizona law recognized the possibility that the company's policies might form terms of an employment contract that the company could breach by not following policy. This concept, which was an exception to the at-will employment concept, could be avoided (and often was) by the employer including a disclaimer in its policies. The Arizona legislature passed a law in 1996 that further protected employers from this kind of claim. So don't operate under the assumption that your employer needs to justify your termination. The burden is on you to prove that the reason for your termination made it wrongful.

posted Oct 5, 2001 2:00 PM [EST]

Answer to HELLO

How to become a Lawyer

The most common way to become a lawyer is to begin by getting a bachelor's degree with a major that interests you. Most law schools look for variety among the students they admit, so the area of study is not that important. In my law school class, for instance, we had a lot of business majors, but also several music majors, some education majors, some engineers, some accountants, some philosophy majors and so on. Pick something that interests you because that will improve the chances of getting good grades, which is very important if you want to get into law school. Most bachelor's degree programs take four years.
Most law schools require that you take a test called the Law School Admission Test (LSAT). Your undergraduate grades and your score on the LSAT are the two factors that are most heavily weighed by law schools in deciding which applicants will be admitted. Law school itself usually takes three years of full time study. After graduation, you will have to take a bar exam for the state in which you intend to practice. Many states uses an exam called the multistate exam for part of the bar exam. You can take it once and apply to several states for admission. You will also have to provide each state with a lengthy application that tells all kinds of things about your background, and sometimes people who have past problems with honesty or other problems may be rejected.
It takes a long, sustained effort to become a lawyer, but don't be discouraged. It can be a very rewarding profession.

posted Sep 17, 2001 2:12 PM [EST]

Answer to Exempt or non-exepmt? Worked ave.50hs/w without overtime

Translator - exempt?

There is a category of exempt employees known as "professional" employees. This includes doctors, lawyers, accounts and so on. But it also includes artistic professionals, such as actors and musicians. The key to the category is that the "professional" is one whose skill is some specialized knowledge based upon prolonged study. Whether a translator fits within this category is a question that would have to be decided by a court based upon a variety of facts and circumstances regarding the job duties, the training required and so forth. Even if a court at some time examined the issue and made a ruling, the decision is not necessarily binding in every jurisdiction, and other courts might disagree with the analysis. It is questions like these that keep lawyers in business.

posted Sep 7, 2001 8:10 PM [EST]

Answer to severance pay

Severance Pay

To understand the answer to your question, you need to understand first that the law does not require the payment of severance pay. Therefore, when an employer chooses to offer severance pay, the employer can pay it in any amount and on any schedule the employer chooses.
When an employer keeps an employee working while it "closes up shop," the employee is being paid wages for work. This is not severance pay, it's just pay. Since the employer isn't required to pay severance pay, the distinction probably doesn't matter, except in a few particular cases.
Employers sometimes pay severance as part of an ERISA benefit plan. In such a case, the employer would be required to follow the terms of the plan in paying out severance. To make you work and call your pay severance may violate the terms of the plan. Also, if some employees are paid more severance because they aren't required to keep working but receive the same amount overall as those who are required to "close up shop," there is the possibility of some form of unlawful discrimination. For example, if the women are laid off immediately and the men are kept working, there may be a claim of sex discrimination.
There is one law that may apply to this situation, depending upon the number of employees laid off and the number kept. The WARN Act, (Workere Adjustment and Retraining Notification Act) 29 U.S.C. �2101 et seq., only applies when an employer employs 100 or more employees and closes all or a substantial portion of a single worksite resulting in 50 or more employees being laid off. If the act applies, the employer must give 60 days notice of the closure. Some employers pay 60 days severance pay in lieu of notice, but the law does not require this or any severance pay. Giving notice to some employees and severance pay in lieu of notice to others does not violate this law.

posted Aug 29, 2001 2:16 PM [EST]

Answer to Illegaly took my bonus

Statute of Limitations on Bonus Claim

Your claim for the unpaid bonus could be brought either as a statutory wage claim or as a claim of breach of contract. In either case, the statute of limitations for the claim would be one year, based
upon Ariz. Rev. Stats. �12-541(3)(employment contract) or (5)(liability created by statute). Since you have a written agreement regarding your bonus
and it was not modified in writing as the agreement
requires, it would appear that you have a strong
claim. The wage claim statute may even entitle you
to three times the amount wrongfully denied you.
Although an at-will employment relationship can be
modified at will by the employer, it cannot be
modified retroactively so as to deprive you of
compensation you have already earned. Further, if
the employer were to fire you in retaliation for
seeking the wages due you , you might have a claim
of wrongful discharge in violation of public policy,
although Arizona's wrongful discharge statute, Ariz.
Rev. Stats. �23-1501, was written in such a way that
many claims of wrongful discharge that would have
been recognized at common law are now
unavailable. The one year time limit for your bonus
claim would begin to run from the day you were told
you would not receive it, but to be on the safe side, I
would count the days from the day the bonus was
due if that was earlier.
The choice of law question is a bit complex. Ordinarily the law of the state in which you are employed would govern the issue unless your agreement provides otherwise. Even if the agreement provides for the application of New York law, it might be rejected if the result would violate Arizona's public policy regarding the payment of wages. Depending upon what the law of New York provides, it might not make any difference. And regardless of which law applies, your claim can be brought in the Arizona courts.

posted Aug 23, 2001 2:55 PM [EST]

Answer to Bonus/Relocation cost agreements

Relocation payback

To determine whether you would be obligated to return the relocation costs or bonus, I would need to review the entire package of documents involved. In order to be excused from your obligation under the agreement, you would need to argue that the company breached its obligation to you. If it did not promise you continued employment for a given period of time in the position you were offered, the company may not be in breach, and you would not have an excuse for leaving. Other issues might arise from a review of the documents or the circumstances. Have an attorney discuss the entire situation with you before making a decision to leave.

posted Jul 26, 2001 2:55 PM [EST]

Answer to Defamation

Defamation

Arizona has a "privilege" statute that protects employers who give reference information in good faith to prospective employers. Because of the statute, you will not only have to prove that the remarks made were false and defamatory, but you will have to prove "malice." This does not mean hatred or an intent to harm you, but it is more than mere carelessness in the publication of the defamatory remarks. If anything was conveyed in writing to a prospective employer, your former employer will have to provide you with a copy of the reference or the privilege statute does not apply.
In order to determine whether the remarks made were defamatory, an attorney would have to examine them to see if anything factually false was said, or anything that would suggest false facts by innuendo. Mere opinions are not enough to make a case of defamation. On the other hand, true information of a personal nature that does not fall within the scope of employment reference information (such as medical information) might form the basis of a claim of invasion of privacy. There are several forms of invasion of privacy, but the two forms that an employer is most likely to commit are the public disclosure of private facts and "false light" invasion of privacy, or revealing true information that places you in a false light in the eyes of others.

posted Jul 18, 2001 1:09 PM [EST]

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