Answers Posted By Francis Fanning

Answer to proving retaliation

Your question seems to assume that complaining about unfair treatment is protected activity. It is not. Complaining about unlawful discrimination is protected, but a complaint about generic unfair treatment that does not amount to a complaint of unlawful discrimination based upon sex, race, religion, color, national origin, age or disability is just a complaint.
Assuming you complained about unlawful discrimination, you are protected as long as you had a good faith belief that the events of which you were complaining amounted to unlawful discrimination. You do not have to prove that the treatment actually rose to the level of unlawful discrimination. But your belief has to be reasonable. The mere fact that you believed it to be unlawful discrimination is not enough. For example, I once had a client who complained about her manager's offensive language, that included extensive use of the "f" word, not in a sexual way but as an adjective - e.g. "You guys need to get your f***ing sales up." When she sued after being fired for complaining, the court dismissed her lawsuit, holding that mere vulgarity does not amount to sexual harassment, and no reasonable person could believe that her complaint about vulgar language amounted to a complaint of sexual harassment.
In order to get a more focused answer, you should probably consult with an attorney and give the specific complaints you made, what they were based upon and what the employer did in response. There are other forms of wrongful discharge based upon retaliation for such things as whistleblowing, refusing to engage in unlawful conduct or insisting upon engaging in certain protected conduct such as service on a jury, military service or making a worker compensation claim. There are also unfair labor practices based upon complaints about working conditions that are made by or on behalf of more than just yourself. These kinds of claims have specific requirements and procedures that call for the advice of an experienced employment attorney.

posted Aug 6, 2010 3:17 PM [EST]

Answer to when administrative law judge doesn't recognize constructive discharge and protected conduct?

Constructive discharge requires proof that a reasonable person would feel compelled to quit due to oppressive working conditions. The Arizona statute that recognizes constructive discharge was not enacted to confer rights on employees but to protect employers from a surprise resignation followed by a claim of constructive discharge. The fact that you followed the notice requirements in the statute does not prove that your decision to quit was a constructive discharge. You still must prove that the conditions were so oppressive that a reasonable person would feel compelled to quit. Apparently the judge was not convinced.
You have the right to appeal the decision of the administrative law judge, but you are limited to the fact record you made at the hearing. Perhaps the appeals panel will agree with you that the working conditions were so oppressive that any reasonable person would feel compelled to quit. But appeals judges give a great deal of deference to the judge who heard the testimony and made whatever factual findings the decision was based upon.

posted Aug 1, 2010 2:59 PM [EST]

Answer to I have a gym in Williamsburg, VA and will be adding trainers and need a non compete agreement.

Most states consider non-compete agreements enforceable only if they are necessary, and only if they are reasonably restricted as to time and geographic scope. But these agreements are governed by state law, and each state has its own cases and statutes relating to such matters. Since your employees will be working in Virginia, you should consult with a Virginia attorney.
You may need an anti-piracy agreement rather than a non-compete. Anti-piracy agreements are easier to enforce, because they don't preclude the employee from working in the employee's chosen profession - they simply protect you from having your customers stolen.

posted Jul 26, 2010 12:29 PM [EST]

Answer to hostal workplace

First, you should understand that general rules about workplace discrimination are not a substitute for an attorney evaluating a case by examining all the factual details in a consultation with the client. Your wife's situation is a classic example of why this is true. There are dozens of important details an attorney would want to consider that are not included in your description of the circumstances.
Having said that, I will make a few general observations.
The Americans with Disabilities Act is not intended to protect people who are unable to work due to disability. It only protects a "qualified individual with a disability," that is, an employee who is able to perform all the essential functions of the job with or without an accommodation. By contrast, Social Security Disability is only available to people who are unable to work due to disability. Since the definition of disability is somewhat different in each of these laws, the fact that your wife is seeking SSD does not necessarily mean she is not a qualified individual with a disability, but threading that needle may be very tricky.
If the company opened an investigation because of your wife's complaint, the investigation is to determine if there is any basis for her complaint. It isn't an investigation of her, but of her boss. Whether she has a claim of retaliation depends on what the company does to her as a result of her complaint. The mere fact that the company doesn't find evidence of discrimination by her boss does not mean the company is retaliating against her.
If your wife needs some accommodation on account of her condition, she needs to request an accommodation, which is not the same as complaining about her boss's treatment of her. The company will expect some medical documentation of her need for an accommodation, and may not provide exactly the accommodation she requests.
Given the complexity of the situation, your wife really should consult with an experienced employment attorney. Rather than asking or thinking about a possible lawsuit, she should be trying to address the problem that exists in the workplace. A lawsuit is not a solution to a problem. It is a last resort when other approaches don't solve the problem.

posted Jul 12, 2010 3:02 PM [EST]

Answer to Is it legal to be terminated after giving 2 weeks notice?

There is a form of compensation for the two weeks you are unemployed. It's called unemployment compensation.
Unfortunately, your courtesy in giving the employer your two week notice does not require your employer to reciprocate. I assume you don't have a contract that protects you from an arbitrary termination. If so, unless your employer's reason for terminating you was unlawful in some way, you don't have any recourse against the employer.
For more information about unemployment benefits, you can go to www.azdes.gov.

posted Jun 23, 2010 6:01 PM [EST]

Answer to first step with wrongful termination when less than 15 employees

You have conflated three different concepts that overlap to some degree but have to be analyzed separately.
First, the concept of wrongful discharge is both broader and narrower than the concept of employment discrimination. Let me explain.
The civil rights laws prohibit certain kinds of discrimination in the workplace, but not all forms of discrimination. Discrimination based on race, sex, religion, color, national origin, age and disability are unlawful. Nepotism, which is a form of discrimination that favors relatives over others, is not unlawful. Any adverse action by an employer can become the basis of a claim of discrimination. A discharge is not the only kind of adverse action that is covered by the civil rights laws, so in that sense the anti-discrimination laws go beyond wrongful discharge. However, these laws generally apply only to employers with 15 or more employees, because smaller employers could be put out of business by one or two discrimination lawsuits. Congress and the Arizona legislature struck a balance that may have left you out in the cold (assuming that your employer actually has only 13 employees, which may or may not be true, depending on how employees are counted).
Wrongful discharge requires a discharge, of course. A demotion or pay cut won't meet that requirement. But there are other reasons besides unlawful discrimination that can make a discharge wrongful. So in that sense the concept of wrongful discharge goes beyond unlawful discrimination. It includes discharge in retaliation for whistle blowing (reporting unlawful conduct), refusing to engage in unlawful conduct and insisting upon exercising certain rights protected by law, such as the right to make a worker compensation claim, serve on jury duty and other specific protected rights.
One way to prove you were discharged is what is known as a constructive discharge. You apparently came across Arizona's constructive discharge statute, which requires an employee to give an employer fifteen days after written notice of intolerable working conditions to correct a problem before the employee can claim a constructive discharge. But there are two things about constructive discharge that are very important to keep in mind. First, the working conditions must be intolerable to a reasonable person. The mere fact that you found them intolerable does not mean that a jury would agree with you that conditions were bad enough to force you to quit. Second, a constructive discharge is just a form of discharge. It is not automatically wrongful. You must prove that the reason for the discharge was something unlawful, like retaliation for whistle blowing or refusing to engage in unlawful conduct. If you were discharged in retaliation for complaining about a form of unlawful discrimination, this would only be a wrongful discharge if the employer was prohibited from discriminating in the first place. So if the employer didn't have fifteen or more employees, it would not be prohibited by the civil rights laws from discriminating, and you would not be protected by those laws. There are two exceptions to this requirement. The Arizona Civil Rights Act prohibits sexual harassment (a form of sex discrimination) regardless of the number of employees an employer has. And the Rehabilitation Act, which prohibits disability discrimination, applies to federal contractors with contracts in excess of $10,000.00, without regard to the number of employees.

posted Jun 15, 2010 11:12 AM [EST]

Answer to Can an employee be demoted after they asked for an accommodation based on their disability?

It sounds like your mother may have a claim for disability discrimination. She should begin by complaining internally to the HR department of her employer. If she can't get the problem resolved, the next step would be to file a charge of discrimination with the Equal Employment Opportunity Commission. This is a necessary step before a lawsuit can be filed. The Americans with Disabilities Act requires employers to make reasonable accommodations of an employee's disability, which this employer apparently has done. However, the ADA also prohibits adverse employment actions either because the employee has a disability or because the employee requested an accommodation.
Proving disability discrimination is not always easy. Your mother's record seems to show her to be a qualified individual. But the mere fact that she has MS does not mean she has a disability under the ADA. She must be able to show that her condition substantially impairs one or more major life activities, which means things like eating, sleeping, walking, caring for oneself . . . things that most everyone does on a regular basis.

posted Jun 4, 2010 12:15 PM [EST]

Answer to Can I be fired after coming back from a FMLA and the boss say things that are not true?

Your use of FMLA cannot be the basis of an adverse action by your employer, but your employer can dictate the hours that you and your carpool mate are required to work.

Although you are characterizing the boss's statement as wrongfully accusing you, I think it was more a matter of poor communication. What he seemed to be saying to your friend is that if he wants to keep his job he needs to comply with the company's expectations regarding work hours rather than refuse in order to accommodate you by protecting your carpooling arrangement. To the extent that your friend was assuming that you would want him to continue carpooling with you, you weren't wrongfully accused, because his decision to carpool rather than work the hours dictated by the boss appeared to be just what the boss said it was - letting you dictate the hours he works. It was unfair of the boss to assume that you knew he wanted your friend to change his hours, but I'm not sure why your friend didn't tell you. At any rate, the unfair accusation by itself is not an adverse action that gives you any kind of remedy. On the other hand, if you can prove that you were made next in line for layoff because of your use of FMLA, and if you get laid off, you would have a claim under the FMLA.

posted May 27, 2010 11:31 AM [EST]

Answer to I was terminated with an employment contract, no reprimands in file, possible in an at will state?

To answer your question properly, I would need to review the written contract, but it sounds like the employer may have given up the right to terminate you at will by having a written contract that says something different.

I would contact an experienced employment attorney for a review of the contract. I charge $200.00 for an initial consultation, which is typical for employment matters.

posted May 27, 2010 11:10 AM [EST]

Answer to what if there are fewer than 15 employees?

If your notice made specific reference to unlawful discrimination, such as sex or age discrimination, you probably have a good retaliation claim. An employer may not take adverse action against an employee who complains of unlawful discrimination, and the timing of your termination is obviously related to your notice. But be aware of two important things. First, not all discrimination is unlawful, so complaining about generic unfair treatment is not protected. Second, the two forms of discrimination you mentioned, age and sex, are governed by two very different laws with different remedies and somewhat different methods of proof.

Don't be surprised if your employer claims you quit. The problem with the constructive discharge statute is that it doesn't provide specific remedies or a guarantee that your notice and the employer's lack of response will be deemed a discharge. The statute was written to protect employers, not employees.

Your first step should be to file a charge of retaliation with the Equal Employment Opportunity Commission. You can find more information about that process at www.eeoc.gov.

posted May 27, 2010 11:05 AM [EST]