Answers Posted By Francis Fanning

Answer to Fair Pay - Salary vs. Salary (non-exempt) vs. Hourly

Short List is too long

Your attempt to shorten your list of questions seems to have failed. Let me answer the easy question first. There is no law that requires "fair pay." The only laws that govern what must be paid are the minimum wage laws (the Fair Labor Standards Act and Arizona's minimum wage statute), and the Equal Pay Acts (state and federal), which prohibit gender discrimination in pay. What other employers pay comparable employees is irrelevant as long as your employer pays minimum wage, pays overtime when required and does not unlawfully discriminate in pay rates. Although the Equal Pay Act only deals with gender discrimination, other civil rights laws prohibit discrimination on account of race, color, national origin, religion, age and disability.
The overtime question is a bit more complicated. You don't appear to fit the managerial exemption to the FLSA, but you may fall into the exemption for computer professionals or the administrative exemption. Being on call does not count as paid time unless you are called. There is no limit to the number of hours an employer can require of an employee, either to work or to be on call. The issue of being denied the opportunity to use comp time or vacation time is a complicated matter that doesn't have a simple answer. I would suggest that you consult an attorney to discuss this and whatever other questions you have left off your list. Expect to pay for at least an hour of the attorney's time. Experienced employment attorneys in Arizona typically charge $200.00 to $400.00 per hour.

posted Jan 16, 2009 1:15 PM [EST]

Answer to Unemployment questions

No unemployment benefits if you quit

I assume from your question that you are talking about not receiving unemployment benefits. You are correct in your assumption that you do not receive benefits if you voluntarily quit your job. But you should have received a notice explaining why the benefits were denied. You are also correct that Arizona is a right-to-work state, but this has nothing to do with unemployment benefits. A right-to-work state is a state that prohibits employers and unions from agreeing that union membership is required for employees working within the union's bargaining unit. Because employees in right-to-work states cannot be forced to join a union, it is much more difficult for unions to have the kind of bargaining power they have in states where union membership can be required.

posted Jan 5, 2009 2:50 PM [EST]

Answer to Restrict Future Employment w/new Employer

Non-compete is enforceable if reasonably limited

Courts view non-compete agreements with concern because they can often prevent a person from engaging in his or her chosen profession. Unlike most non-competes, which extend to any competitor of the employer, your agreement is limited to one company. I suspect that the courts would enforce it because it is quite limited in scope, and does not prevent you from staying within the industry in which you have been working. I am not sure why your employer finds this provision necessary or helpful, which is a factor that courts consider when considering the enforceability of a non-compete provision. I assume the agreement is merely the employer's way of saying that you don't need severance pay if you go directly from the old company to the spinoff. Since an employer is not obligated to pay severance pay in any event, putting this kind of restriction on the offer of severance is not unreasonable. Nevertheless, it would be prudent to have an attorney review the entire agreement and the circumstances of your layoff before signing it.

posted Dec 1, 2008 5:47 PM [EST]

Answer to Medical Privacy at Work

Medical Privacy rights are limited

Your question seems straightforward enough, but requires a rather long and complicated answer. First, the Americans with Disabilities Act restricts what medical information an employer can request, and employers covered by that law cannot require employees "to complete a thorough medical history questionnaire" at all. See 42 U.S.C. �12112(d). But the ADA only covers employers who employ 15 or more employees, so your "very small firm" probably isn't covered. Likewise, the Family & Medical Leave Act, which allows employers to obtain information related to your need for medical leave, requires that the information be kept separate from personnel or other records, and restricts its use, see 29 C.F.R.�825.500(g). But the FMLA does not apply to employers who have fewer than 50 employees. The Health Insurance Portability and Accountability Act (HIPAA) includes detailed regulations regarding the use and maintenance of medical information to protect its privacy. Unfortunately, HIPAA has no individual remedies for violation of the Act, and it does not apply to employers, only to health care providers, health plans (i.e. insurance companies) and health care clearinghouses (companies that maintain records in databases for use by providers and insurance companies). See 42 U.S.C. �1320d-1(a) and enforcement regulations. So your only recourse in the event your employer violates your privacy by disclosing medical information beyond the "need to know" is to look to state law. HIPAA regulations do not supersede state laws that provide greater privacy protection. See 45 C.F.R. � 160.202. Arizona statutes protecting privacy of medical records and information apply to health care providers and contractors (companies who maintain and copy records for providers), but not to employers. See A.R.S. �12-2291 et seq. So the only protection you have against your employer's inappropriate disclosure of medical information is a common law suit for invasion of privacy. Unfortunately, the standard for proving this kind of claim requires proof of outrageous conduct by the employer. See Valencia v. Duval Corp., 645 P.2d 1262, 132 Ariz. 348 (App., 1982). So the bottom line is that the medical information you provide on the questionnaire may be only as secure as your employer chooses to make it.

posted Oct 10, 2008 8:19 PM [EST]

Answer to Constructive Discharge

Constructive Discharge isn't necessarily wrongful

There are a number of reasons why a termination of employment is legally actionable. These include retaliation for whistleblowing, retaliation for filing a worker compensation claim, retaliation for refusing to commit an unlawful act and certain other reasons for termination that violate public policy. Arizona's constructive discharge statute is a codification of a common law concept by which courts treat a resignation the same as a termination. The statute was the product of a suggestion by lobbyists for the Chamber of Commerce who were concerned about employees who resigned from employment and then filed wrongful discharge lawsuits for various reasons. In some cases employers were unaware that a problem existed until the suit brought it to their attention. The statute requires an employer who wants the protection of the statute to post a notice informing employees of its provisions. If an employer complies, an employee who believes he or she is being constructively discharged must give written notice of the problem to the employer and give the employer an opportunity to correct it. This requirement is not part of the common law, so the statute provides a degree of protection to employers from surprise lawsuits. Many employers prefer not to post the required notice however, believing that it merely invites employees to claim constructive discharge when they are disgruntled about various working conditions. The definition of constructive discharge in the statute is a bit broader than the common law definition, so the statute provides a little bit of additional protection to employees. But if an actual discharge would not be wrongful, a constructive discharge does not make it wrongful, at least not in my opinion. I know one attorney who believes that the constructive discharge statute itself creates a form of wrongful discharge claim. Perhaps one day the courts will have to decide the question and we will get a definitive interpretation of the full meaning and intent of the statute.

posted Oct 7, 2008 8:32 PM [EST]

Answer to AZ NonCompete Enforceability wrt Considerations

Consideration for noncompete a confusing issue

Consideration is required for any contract to be enforceable. The question is what constitutes adequate consideration. You are correct that when a noncompete is presented at the time employment is offered, the offer of employment itself is sufficient consideration to support the noncompete. The tricky question is whether a noncompete required by an employer after employment has begun requires some additional consideration. There is one Arizona decision that faced this question and gave a rather unsatisfactory answer. The court said that in that case, since the employer continued to employ the employee for several years after the agreement was signed, that adequate consideration was given. The problem with this analysis is that the adequacy of the consideration is supposed to be determined as of the time the contract is made, and there was no promise of continued employment in that case. Another case that did not deal with a noncompete but with a different issue said that continued at-will employment was not sufficient consideration to support a modification of an existing contract.
To answer the question you asked, you are certainly not required to sign a noncompete agreement. On the other hand, you are an at-will employee, so your employer may well decide to terminate you for refusing to sign, and you will have no recourse. If you sign the agreement and later leave, the question whether it is enforceable will depend not only on whether consideration was adequate but on other factors, including whether the agreement was necessary to protect a legitimate interest of the employer, whether it is reasonable as to length of time and geographic scope, and whether your activities actually violated the agreement.

posted Aug 26, 2008 1:16 PM [EST]

Answer to Job Elimination

Elimination of job is legal in most cases

Your question has two parts: is the elimination of your job fair or legal. Whether it is fair is a question that has no legal significance. The law does not require employers to be fair.Whether it is legal is a more complicated question.
I would begin by saying that the elimination of a job does not necessarily require the elimination of job tasks. Downsizing or reorganization often involves the combining of old tasks from several positions into fewer positions or positions that pay less. There is nothing illegal about this.
The only way that you can prove that an employer acted illegally in removing you from your old job is to show that it was motivated by some unlawful reason, such as race, sex, age or religious discrimination. Certain kinds of terminations are wrongful, such as termination in retaliation for whistleblowing or for refusing to engage in illegal activity. But you were not terminated, so these kinds of claims do not apply to your situation.
The fact that the company was willing to keep you on as an employee makes it difficult to assume, much less prove, that the company's actions were motivated by considerations of unlawful discrimination or retaliation. The fact that you chose to stay means that the company's action could not be considered a constructive discharge, since you didn't find the change in working conditions intolerable.
I assume that your employer is a private company, not a government agency. That being the case, unless you have a written contract that protects your job security, you are an at-will employee. This means the company is free to terminate you for any reason or no reason (other than an unlawful one). So even if you could prove the job elimination was a lie and even if you had been fired with no offer of another job and no severance, you would not have a claim without proof that the true motive was something unlawful.

posted Aug 15, 2008 11:59 AM [EST]

Answer to Discrimination or Favoritism?

Not all discrimination is unlawful

Favoritism is just another word for discrimination. Both words describe a situation in which one person or a group is treated less favorably than another. Certain forms of discrimination are unlawful. They include sex, race, color, national origin, age, disability and religious discrimination. If the reason for your counterpart being given more favorable treatment than you is because of one of these unlawful reasons, you may have a claim. Otherwise, you have no claim.
Even if you can prove that the reason for your less favorable treatment was some form of unlawful discrimination, you may not have any provable damages. Before proceeding with a complaint, you may want to think through the costs and benefits of making an issue out of this.

posted Aug 11, 2008 11:59 AM [EST]

Answer to Running my name through the mud running me out of Town.

Slander is defamation.

The short answer to your question is yes. There are two forms of defamation. Slander is verbal and libel is written. There are slight differences in the law between the two, but for the most part they are defined the same. Slander is the publication of a false statement of fact that injures a person's reputation. If your employer published (which just means communicating to a third person) that you were fired for smoking pot, and if the statement is false, that is slander per se. Some forms of slander require actual proof of injury to reputation, but a false accusation that someone committed a crime is presumed to cause injury to reputation, so even if you cannot prove actual damage, a jury can still award damages for the presumed injury.
Unfortunately, statements to police reporting suspected criminal behavior are protected by a privilege, which means that even if you prove the statement was false you cannot recover damages. If you can prove that the employer made such a statement to someone other than the police, the privilege doesn't apply and you may have a claim.
Truth is a defense to a claim of slander, so you can expect your employer to try to prove that the statement was true or that the employer had reason to believe it was true. Also, it is difficult to prove exactly what one person said to another unless you have some kind of recording, so the employer may try to characterize the statement as something other than a simple statement of fact. Something like "we suspected him of smoking pot" is much different than "we caught him smoking pot."
You should talk to a lawyer in your community about whether the facts in your case are enough to prove a claim of slander and whether your reputation has been damaged in a way that might persuade a jury to award you damages.

posted Aug 7, 2008 5:42 PM [EST]

Answer to Being penalized for not signing or being aware of a non-compete contract

Contract requires signature

If you truly did not sign the non-compete, there is no way the employer can enforce it. The problem is that you may have signed it along with other documents at the time you were hired, which is when these things are typically presented to you. I would demand a copy of the signed agreement, jsut to see if they have one.
Your former employer has two ways to try to enforce this agreement. It can file a lawsuit seeking an injunction, in which case it will have to prove that you agreed to not compete. This also raises numerous other issues regarding the enforceability of the agreement. The employer can also attempt to enforce the agreement by telling your new employer, in which case the new employer may refuse to hire you or terminate your employment if you are already working. As I understand your question, this has apparently happened. If there is no agreement, the action by the former employer would be interference with contract or interference with prospective advantage, and you could sue for damages. Even if you signed such an agreement, there are several reasons why the agreement may be unenforceable. If your patients wouldn't be following you to the new employer, the old employer has no real interest that needs to be protected. Also, the agreement may be overbroad in its geographic scope.
I would encourage you to seek the advice of an experienced employment attorney to discuss the situation. If the employer refuses to give you a signed copy of the agreement, perhaps a letter from a lawyer will discourage the employer from interfering with your future employment prospects.

posted Jul 9, 2008 12:18 PM [EST]

Displaying answers 51 - 60 of 200 << Previous Page Next Page >>