Answers Posted By Francis Fanning
Answer to company paid holidays
Paid holidays are not mandatoryYour question seems to assume that employers are required to give employees paid time off for national holidays. There is no such legal requirement for private sector employers. Most employers do this to keep the employees from rising up en masse to protest.
Under Arizona law, the fact that the employer has a policy or practice of giving paid holidays does not mean the company must continue to follow the policy. Unless the policy was part of a collective bargaining agreement (a union contract), it is not binding on the employer, and even if there were such an agreement, the only employees entitled to benefit from it are the members of the bargaining unit that the union represents. The employer is free to change the policy as long as it is not done retroactively. Since your husband has already been notified and it's not yet July 3rd, the employer is free to deviate from the policy now and in the future.
posted Jun 23, 2009 8:50 PM [EST]
Answer to Age Discrimination Determination, finding an attorney
Contingent fees are rare in discrimination casesUnfortunately, it is very difficult to find an experienced employment attorney who will take a discrimination case on a straight contingent fee. Age Discrimination cases are especially unattractive as contingent fee cases because the recoverable damages are more limited than in other kinds of discrimination cases. You will probably have to pay a fee for an initial consultation to determine if you even have a winnable case. I charge $200.00 for an initial consultation. I believe that is at the lower end of the range employment attorneys charge for initial consultations. These fees are necessary because it is impossible to properly evaluate an employment case in half an hour. My consultations generally last from 90 minutes to 3 hours depending on the facts. I sometimes take cases on a reduced hourly fee plus contingent fee basis, another option that is common in this area of the law. But I don't decide what fee to charge until I have fully reviewed the facts of the case.
The EEOC has a list of attorneys who handle discrimination cases. You may want to get that list and call several attorneys to see if anyone is willing to take the case on a contingent fee.
posted Apr 17, 2009 5:42 PM [EST]
Answer to Forced to sit next to extemely contaigous coworker.
Worker Compensation law preempts most suits for workplace injuriesIn most cases of workplace injury or illness, the worker compensation system provides the only recourse an employee has. You cannot sue your employer for injuries caused by negligence, because worker compensation precludes that kind of claim. Likewise, you cannot sue a coworker for negligence for the same reason. To avoid the preclusive effects of worker compensation, you must prove that your employer or coworker intentionally injured you. It is not enough that the employer intentionally disregarded your request to be moved. You must show that the injury itself was intended or was the direct result of the intentional conduct. Under the worker compensation system, you would be entitled to compensation for the three weeks of missed work and to have your medical bills paid by the worker compensation carrier, but that's about all.
posted Apr 16, 2009 3:46 PM [EST]
Answer to Threat to rescind a Severance Agreement
Offer and acceptance makes contract enforceableWhen you signed the agreement that your employer presented to you, you accepted an offer. This makes the contract enforceable. If the employer tries to back out of the agreement because you didn't provide some information that the contract did not require, you should consult an employment attorney about filing a claim for breach of contract.
posted Apr 7, 2009 6:10 PM [EST]
Answer to Firing employees to not give retention bonus
Termination to avoid paying retention bonus may violate covenant of good faith and fair dealingI hesitate to give you specific advice regarding your situation because the case turns on the wording of the retention bonus agreement you signed. General principles of contract law govern this situation, but the wording of the contract is critical. If, as you suggest, the company is trying to manufacture reasons for termination that result in forfeiture of the retention bonus, you may have a claim for breach of contract if it happens to you. All contracts contain a provision implied by law that is called the covenant of good faith and fair dealing. This provision prohibits both parties to the contract from doing something that deprives the other of the opportunity to enjoy the benefit of the contract. I would suggest that you consult with an employment attorney to review the exact language of the contract to see how far your employer can go to deprive you of the bonus, and whether there might be a breach of the express terms of the contract or a breach of the covenant of good faith and fair dealing.
posted Apr 7, 2009 6:06 PM [EST]
Answer to Am I due backed compensation?
No guarantee of hoursYou have asked two questions that have nothing to do with one another. First, an employer can reduce your work days as your employer has, regardless of whether you are salaried or hourly (I assume you are an "at-will" employee as most private sector employees are). The second question is a bit more complicated. Exempt employees are not limited to managerial employees. There are a number of other categories of exempt employees. Whether your position falls within one of those exemptions requires a review of your job description and your actual duties.
If it turns out you are not an exempt employee, you have two options. You can make a complaint with the U.S. Department of Labor or you can file suit under the Fair Labor Standards Act to recover the unpaid overtime and liquidated damages. The fact that you work in Arizona has nothing to do with your question. The FLSA is a federal law and the U.S. Department of Labor is a federal agency. The law is the same in all states.
Be prepared for a surprise when you go to calculate your overtime pay. Since you are a salaried employee, even if you are non-exempt, your overtime pay has to be based on your salary, which is an annual, monthly or weekly rate of pay. This means that You have already been paid for all the hours you worked, and your claim is only for the extra due for hours over 40 in a given week. For example, if you work 40 hours in a week and are paid a weekly salary of $400, your hourly rate for that week is $10/hr. If you work 50 hours, your salary is still $400, so your hourly rate for that week is $8/hr. You are entitled to an extra $4 per hour for each hour over 40 in that week, so that amounts to 10x4 or $40. Next week's hourly rate depends on how many hours you work for that week. For a 60 hour week, your effective hourly rate is $400/60, or $6.66 per hour. Your overtime claim for that week would be 20 hours x 1/2 of $6.66, or $66.60. Not nearly what you might expect.
posted Mar 18, 2009 7:31 PM [EST]
Answer to Implicit severance policy changed without notice after 10+ years of no changes at all.
No promise of severanceThe answer to your question is probably no. You must begin with the understanding that an employer is never under an obligation to pay severance unless there is an agreement between employer and employee that it will be paid. Back in the eighties the courts in Arizona began to follow a trend seen in many states at that time. Cases were brought to court in which company handbooks, personnel policies and other such documents were used as evidence of a contractual understanding between the employer and employee. Usually these cases involved termination of employment, but other policies could be found to be part of the employment contract. In 1996 the Arizona legislature passed the Arizona Employment Protection Act, A.R.S. §23-1501. That law essentially precluded arguments that employer policies could form a part of the employment contract so as to give rise to a claim for breach of contract unless the policies stated in writing that they were intended to be contractually binding. This eliminated most claims of breach of employment contract where the alleged contract was based on company policies, whether in writing or otherwise.
There is a provision in Arizona's wage statute, A.R.S. §23-350, that defines wages to include "severance pay . . . and other amounts promised when the employer has a policy or a practice of making such payments." An argument could be made that your facts fit this definition. I strongly suspect that a court reviewing your case would be inclined to read the two statutes together and conclude that, at least with respect to severance pay, there must be a written policy. The mere fact that others were routinely paid by a particular formula was not a promise to you that you would be offered severance by that same formula.
posted Mar 17, 2009 12:16 PM [EST]
Answer to Unused Vacation Pay in Arizona
Vacation must be paid if that is the employer's practiceFrom the language of the handbook you quoted, it seems the employer's policy is to pay for unused vacation either at the end of the year or in the event of a termination. There is no law in Arizona that requires an employer to give paid vacation or to pay for unused vacation. It is considered a matter of contract, and the evidence of the terms of your contract that the employer has put in its handbook appears to support your position. If the amount owed is less than $2,500.00, you can contact the Labor Department of the Industrial Commission of Arizona to make a wage claim. The number is (602)542-4515. If your claim is for more than that amount, you will need to file suit if the employer refuses to pay.
posted Feb 16, 2009 3:33 PM [EST]
Answer to Acceptance and Delivery of Severance Package for the State of Arizona
No law regarding payment of severanceArizona law does not require the payment of any severance benefits. I doubt that California law does either. I'm not sure where you got the information that California law requires that severance be paid within 23 days or that salary continue. My brief research turned up nothing that suggests that California has such a law.
Severance pay is something that an employer typically offers to an employee when the employee is being laid off, and the employer typically requires the employee to sign an agreement releasing the employer from liability in return for the severance pay. Because it is not required by law, the terms under which it is paid are governed by the severance agreement itself. Some employers pay a single lump sum, and some pay periodic payments in the form of a continuation of salary.
Arizona statutes require that wages be paid at least twice monthly, that no more than five days' wages be withheld (which means, in effect, that wages must be paid within five days of the end of the pay period), and that when an employee is involuntarily terminated, all wages due are to be paid within three days. Although the definition of "wages" includes severance pay "when the employer has a policy or practice of making such payments," most employers don't pay severance pursuant to an ongoing policy. They typically decide whether to pay and in what amount when they decide that they need to lay people off. If the severance agreement states when the payment is to be made, the agreement governs. If it does not state specifically, then a court would infer a reasonable time for payment to be due, which would typically be not more than what is necessary to complete the administrative requirements.
Severance agreements often contain provisions necessary to conform to the Older Worker Benefit Protection Act, which include a 21 or 45 day period for the employee to consider the agreement and a 7 day period after signing during which the employee can rescind the agreement. Such agreements usually provide that the severance benefit will not be paid until the seven day period has expired.
I would suggest that you read the agreement carefully to see if it makes any reference to time for payment. If you have not yet received it, you may want to contact the employer about whether it has been sent out. Since severance pay is not required, you have no recourse if the employer decides not to offer it.
posted Feb 3, 2009 3:29 PM [EST]
Answer to Severance
More information needed re: severance offerI am assuming from your question that the severance offer that was made in writing was less beneficial than the offer the company made verbally. The fact that it is effective 1/1/09 rather than 2/2/09 doesn't tell me anything without additional information, such as whether you lose other pay or benefits you would have received for the month of January. Generally speaking, severance pay is at the discretion of the employer, and the fact that the company had a history of paying a more generous severance benefit means nothing. There are two exceptions. First, some severance plans are written as ERISA benefit plans, in which case the payment to any individual must be in accordance with the terms of the plan. The second involves the possibility of some form of unlawful discrimination. For example, if the last several layoffs involved men and this one only involves laying off women, changing the benefit may constitute sex discrimination if gender was considered in the decision to pay less.
There is a kind of claim known as promissory estoppel, in which a party is liable for damages when another party acts to her detriment in reliance on a promise that does not amount to a contract. Damages in such a case are limited to what you lost in reliance on the promise that was not kept. You must show that you gave up the chance to take the lesser paying job in reliance on the promise of a greater severance benefit. If the company would allow you to reconsider that decision, you haven't lost anything. The promise of the original severance package is probably not enforceable as a contract, although an argument can be made that all the essential elements of a contract were contained in the negotiations you had with the company. In order to pursue this claim you would have to reject the written severance offer, because I assume it contains a provision releasing the company from any claims as a condition of payment of the severance.
The question about your having had twins and not being chosen over a male counterpart is a completely separate issue. There may be gender discrimination involved in that decision. Again, if you accept the severance, you will probably have to release the company from any claim of discrimination.
posted Jan 26, 2009 2:52 PM [EST]