Answers Posted By Francis Fanning

Answer to FMLA/ restoration not key employee

FMLA question involves other issues

Your question has jumbled together several issues. First, the FMLA form you have described and the information checked by the employer makes no sense. A "key employee" is one whose absence would cause substantial economic harm. An employer's obligation under the FMLA is to restore the employee to his original position or to an equivalent position upon his return from leave. This obligation does not extend to employees whose absence would cause substantial economic harm. To show that reserving your position for you would cause substantial economic harm, the company must show that you are a "key" employee. By saying that you are not a "key" employee, the company has answered the question of substantial economic harm. In any event, you have been restored to your position, so I'm not sure what your problem is with the form language.
The issue of work restriction has nothing to do with the FMLA, except to the extent that it becomes necessary for you to take time off work for a continuing medical condition. A work restriction is normally something you request from the company with the recommendation of your doctor. If your doctor released you to return to work with the restriction that you not work more than 40 hours per week, your employer is granting you that privilege at your request. If you are choosing to ignore your doctor's advice and work more hours than recommended, you are sending a mixed signal to the company. I suggest that you discuss this with your doctor and, if the extra hours are not a problem, have the doctor remove whatever work restrictions were communicated to your employer.
You really should consult an attorney if you cannot get this cleared up. Your employer may be making assumptions about your condition that are not warranted, and the boss is obviously not in sync with HR. But it also sounds like you are exacerbating the problem by disregarding medical advice. As the warden in Cool Hand Luke said, "What we have here is a failure to communicate."

posted Jul 1, 2008 10:40 PM [EST]

Answer to salary owed prior to termination

"On call" doesn't mean on the clock

The Fair Labor Standards Act is a federal law that governs minimum wage and overtime issues. Cases and regulations interpreting the FLSA distinguish between two "on call" situations. The first, sometimes referred to as "waiting to be engaged," means being subject to being called in to work. It is not considered compensable time. The second, sometimes referred to as "engaged to wait," means having to remain on or so near the workplace premises that the employee's free use of the time for the employee's own purposes is lost. In this case an employee is entitled to be paid. Numerous factors go into determining whether the employee's "on call" time is compensable or not.
The question whether you are entitled to be paid in this case is actually a state law question, but the same factors used in FLSA cases would probably be applied by a court. If you had the freedom to use the "on call" time for your own purposes and were free to travel away from home to shop or run errands, you probably do not qualify to be paid.
The argument that the employer knows you don't have the money to take him to court is foolishness. You can make a claim for unpaid wages up to $2,500 by filing a complaint with the Labor Department of the Industrial Commission of Arizona (phone 602-542-4515). You don't need a lawyer and it doesn't cost anything.

posted Jun 26, 2008 3:45 PM [EST]

Answer to Can employers put requirements on FMLA maternity

No FMLA protection for first year

Your employer is not putting a limit on a federal program. The FMLA is not a federal program, it is a federal law. But it does not apply to all employees, nor does it apply to all employers. Before you get the protection of the FMLA you must have worked for the employer for twelve months, and you must have worked at least 1,250 hours during the previous 12 month period. This means full time employees aren't covered during the first year and part time employees (those who work less than 1,250 hours per year, or about 25 hours per week) are never covered.
Applying these two requirements can be tricky. Suppose you worked 40 hours per week for nine months and then took three months of maternity leave. If your employer does not fire you, you will have met the one year requirement as soon as you return to work, and you will have also met the 1,250 hour requirement because you put in that many hours in the nine months before you went on leave. But if you had been working 30 hours per week, your total hours for the first 9 months would have only been about 1,170 hours, so you would have to work until your total hours for the previous 12 months reaches 1,250. Since you would be losing 30 hours from your total each week (your hours for the first week of February, 2008 would not count after the first week of February, 2009), if you continued to work 30 hours per week it would take you nearly 42 weeks after you return to work before you would qualify for coverage.
It seems crazy, but the FMLA was a compromise between those who wanted to protect employees and those who wanted to protect employers from the burden of providing protection to employees who hadn't really earned it.

posted Jun 21, 2008 4:01 PM [EST]

Answer to Unreasonable Non-Compete

Non-compete may not be enforceable

Arizona, like most states, views not-compete agreements as anti-competitive and restrictive of an employee's right to pursue his or her chosen occupation. Although the courts will enforce these agreements if they are within certain parameters, there are three things necessary for the agreement to be enforceable. First, the restriction has to be necessary for the protection of the employer's legitimate interests. I don't know why an employee at a payday loan company could pose an undue threat of unfair competition by going to work for another payday loan company. But the employer may have an argument based upon the duties of the position. Second, the agreement must be reasonably restricted as to geographic scope. With the proliferation of payday loan companies, it is unlikely that your friend serviced customers outside the neighborhood where her workplace is located, so a restriction that covers all of Maricopa county would probably be too broad. Finally, the agreement must extend for a reasonable period of time. The courts look at the issue of how long it would take for the employer to find and train a suitable replacement to fill your friend's position. If she learned the job in a matter of weeks, a one year restriction would probably be unreasonably long, since the employer could replace her and have her replacement doing the job much sooner than that.
I would recommend that your friend consult with an attorney and have the attorney read the agreement and discuss these issues with her. These agreements are not self-enforcing, and many employers do not bother to enforce non-compete agreements even if they are breached. On the other hand, prospective employers may withdraw job offers if they fear being dragged into a lawsuit by hiring someone who has signed such an agreement. Your friend has to weigh the risks of whatever decision she makes. It is worth a few hundred dollars to discuss the specifics of the agreement with an experienced employment attorney.

posted Jun 18, 2008 7:42 PM [EST]

Answer to Wrongfull termination

Termination without cause is not wrongful termination

Your recitation of the facts seems to assume two things. First, it assumes that because you may have the authority to allow subordinates to take gratis merchandise you can give yourself permission as well. Second, it assumes that the employer did not have a good reason to terminate you and that therefore your termination was wrongful. But unless you have a written contract that says otherwise, your employment is terminable at will, that is with or without cause. So even if the employer's reason for terminating you was trivial, that does not make it wrongful.
The question of invasion of privacy requires consideration of facts you haven't included. For example, if the merchandise was in a store bag, the invasion is probably not unreasonable. Many retailers subject customers to such examination as they are leaving the premises. The fact that you were in the parking lot rather than in the store does not by itself determine whether the search rose to the level of an invasion of your privacy. Arizona has a statute, ARS �13-1805 that grants merchants a privilege to detain suspected shoplifters under certain conditions. While detention and search are two different issues, it is not likely that your claim of invasion of privacy would survive in court. In Koepnick v. Sears Roebuck & Co., 762 P.2d 609, 158 Ariz. 322 (Ariz. App., 1988), a suspected shoplifter was stopped in the parking lot, detained for forty five minutes and his car was searched. The trial court rejected a claim of invasion of privacy but allowed other claims to go to a jury. After the jury returned a large verdict, the judge granted a new trial because he had erroneously allowed the jury to consider matters that weren't supported by the law and evidence. The Court of Appeals affirmed the trial court's decision. This case illustrates the difficulty of pursuing a claim in this kind of situation.

posted Jun 11, 2008 1:09 PM [EST]

Answer to Wrongfull termination

Termination without cause is not wrongful

Your recitation of the facts seems to assume two things. First, it assumes that because you may have the authority to allow subordinates to take gratis merchandise you can give yourself permission as well. Second, it assumes that the employer did not have a good reason to terminate you and that therefore your termination was wrongful. But unless you have a written contract that says otherwise, your employment is terminable at will, that is with or without cause. So even if the employer's reason for terminating you was trivial, that does not make it wrongful.
The question of invasion of privacy requires consideration of facts you haven't included. For example, if the merchandise was in a store bag, the invasion is probably not unreasonable. Many retailers subject customers to such examination as they are leaving the premises. The fact that you were in the parking lot rather than in the store does not by itself determine whether the search rose to the level of an invasion of your privacy.

posted Jun 11, 2008 12:35 PM [EST]

Answer to Breach of contract

employment at will leaves employer free to alter compensation

I begin with the assumption that your employment is terminable at will. That is the general rule in private sector employment unless you have a contract that provides some kind of job security. If your employment can be terminated at will, your employer is free to alter the terms of employment at will. The only exceptions to this as far as your pay is concerned are two concepts: First, once you have earned wages under an agreement, you are entitled to those wages regardless of any subsequent change in terms of employment. Second, your employer breaches the implied covenant of good faith and fair dealing if it changes the terms so as to deprive you of something you have essentially earned. For example, having a bonus structure under which you work for a period of time (say a quarter) and then changing it during the last week of the quarter and calculating a quarterly bonus based upon a new formula. From the facts you have described, I cannot tell whether the employer deprived you of money already earned, or whether the employer simply changed the bonus structure for the future to a less adventageous one. If the change only applies to the future, you are probably out of luck and might want to look for a better employer to work for.

posted Mar 18, 2008 4:55 PM [EST]

Answer to Competition without any non-compete clause

Competition is perfectly legal

In the absence of a non-compete agreement you are free to compete with a former employer. Starting your own computer repair business in the same community is perfectly legal.
Employers sometimes have employees sign anti-piracy agreements to keep them from soliciting existing clients while working for a competitor. This is not the same as a non-compete agreement, and in most cases the courts will enforce anti-piracy agreements more readily thean they would enforce a true non-compete agreement. Since you didn't sign such an agreement, your former employer would have to base his claim on some theory of unfair competition. While he may try to argue that he has a proprietary interest in the continuing business of these clients, it will be a weak argument if you were the one who serviced them and he is no longer actively engaged in the business himself. I can't guarantee that he will not try to assert such a claim, but he will bear the burden of proof.

posted Jan 29, 2008 6:43 PM [EST]

Answer to Employee Intellectual Property/Confidentiality/Non-Solicitation Agreement

Non-competes have to be read carefully

Your assumption that you won't be able to get another job in the industry leads me to conclude that either you need to read the agreement again or you need to have a lawyer read it. The title of the agreement suggests that it is not a non-compete agreement, but the text of the agreement is what counts. An "intellectual property" agreement typically says "Don't steal our patents and copyrights, even if you created them while working for us." That shouldn't keep you out of a job. A "confidentiality" agreement typically says "don't reveal our secrets," an obligation that is already in place by virtue of the Uniform Trade Secrets Act, which prohibits the dissemination of trade secrets. That shouldn't keep you out of work. A "non-solicitation" agreement typically says "Don't steal our customers or our employees." Again, that shouldn't keep you from getting a job.
If the agreement contains a non-compete provision, i.e. "You may not go to work for a competitor of ours for a year after you leave," that could keep you out of a job in the industry, but that kind of agreement is only enforceable if it has a limited time and geographic scope.
If you are having trouble understanding what the agreement means and whether it is enforceable, have an attorney review it.

posted Jan 21, 2008 4:01 PM [EST]

Answer to workman's comp / termination / personal injury

Worker comp is exclusive remedy

When you are injured at work, worker compensation is your exclusive remedy unless your injury was caused by someone outside the company. If you file a personal injury claim against a third party, the worker compensation carrier will put a lien against your recovery in that case to recoup benefits paid to you.
Your termination will not disqualify you from receiving worker compensation benefits, but it may impact the benefits you can recover for lost earnings. You should consult with a qualified worker compensation attorney. In Arizona worker compensation is a certified specialty area, and many worker comp attorneys are certified specialists.

posted Jan 15, 2008 1:10 PM [EST]

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