Answers Posted By Francis Fanning

Answer to Written up for smoking on my break? Is this legal?

No right to smoke

Your question seems to assume that your employer cannot regulate your conduct in the workplace. First, I assume your employment can be terminated at any time, with or without cause. This is called "at will" employment, and it applies to most employees in the private sector unless you are covered by a union contract or you have an employment contract that gives you some kind of job security. That being the case, your employer is free to "write you up" for anything the employer considers undesirable conduct. The only protections against adverse actions by an employer that do not amount to a termination are found in the civil rights laws, and these laws only protect against discrimination on account of race, sex, religion, color, national origin, age and disability. There is no law protecting your "right" to smoke. Smoking is not a Constitutionally protected right, and even if it were, a private employer's decisions are not regulated by the Constitution. On the contrary, many laws and ordinances have recently been enacted all over the country restricting smoking. The fact that the law does not prohibit smoking outdoors does not turn it into a protected right.

posted Jan 9, 2008 4:05 PM [EST]

Answer to Laid off 1 year ago with a noncompete contract. Want to start my own business in the same field

Noncompete agreement requires time limit

A noncompete agreement will not be enforceable unless is reasonably necessary for the protection of legitimate business interests, has a reasonable time limit and a reasonable geographic limit. If your agreement has no time limit, it is not enforceable. Even if it had a time limit, a limit of more than a year or two would likely be considered unreasonable, and the court will not rewrite the agreement to make it reasonable. You do not have to have the contract "dismissed" by a court. The burden of enforcing a contract is on your former employer, who must convince the court that the contract is valid and enforceable and is being breached.

posted Dec 6, 2007 12:08 PM [EST]

Answer to vacation time

Vacation issue raises complicated question

Unfortunately, your question, which involves a relatively small amount of money, raises a difficult and complex series of questions regarding the nature of your agreement with the current employer, and whether the sale of the company in each case invloved the creation of a new employer or merely involved a transfer of stock. If the company has continued to exist all along, with only the stock ownership changing hands, then the sales have no impact on the question. Since you were continuously employed by the company, you met the one year requirement for 2001. On the other hand, if a new company was formed using the same name as the old company, your old employment relationship ended and a new one was established when the new company was formed. I suspect that this may be what happened, and the new company established a one year requirement for accruing vacation. However, if they didn't announce it at the time, you may be able to argue that you were misled into working for the new company under circumstance in which you were led to believe that the original employer's policy was still in effect and that you were entitled to vacation each year. The same question arises with the 2004 purchase of the company.
I would ask for a written explanation of the company's position regarding the vacation policy as it was then and is now. The decision to go back and assert a policy from 2001 that apparently was not followed by the owners at that time smacks of overreaching. Unfortunately, if you were to bring an action in court to collect the vacation you were denied, the attorney's fees would quickly exceed the amount in controversy.
Arizona has an agency, the Labor Division of the Industrial Commission of Arizona, that handles wage claims up to $2,500.00. If the value of the vacation time in question does not exceed that amount, you may be able to make a wage claim and have the Labor Division investigate it. Their phone number is (602)542-4515.

posted Dec 5, 2007 1:35 PM [EST]

Answer to transportation Fees

Collecting mileage expense puts you in a tough spot

With a written promise to reimburse you for mileage at $200 per month, you would have little difficulty proving in court that your employer shortchanged you. The employer could not quibble about whether you drove a certain number of miles, because the agreement is not based upon miles actually driven. The problem is that you may not want to take your employer to court over a few hundred dollars and risk losing your job. It is not clear whether your employer would be liable for wrongful discharge if it fired you for filing such a claim.
If I were in your situation, I would make my request for the unpaid reimbursement in writing to the person responsible for cutting the check. I would attach a copy of the written promise and a calculation of how many months' worth of reimbursement are involved. I would make the communication polite and deferential, but I would copy someone higher up in the food chain who might be unhappy that the person responsible was not paying in accordance with the agreement. If your boss is too busy to fix the problem, an email to the payroll clerk with copy to the boss may be the answer. It takes the burden off the boss to fix the problem without simply letting it go ignored.


posted Oct 29, 2007 2:05 PM [EST]

Answer to Exempt Status

Exempt status should be obvious

I assume that your question refers to whether you are considered exempt from the overtime provisions of the Fair Labor Standards Act. That is the common understanding of the use of the terms exempt and non-exempt.
The question whether your employer is treating you as exempt should be obvious from your paycheck. To be an exempt employee, in most cases you must be paid a salary rather than an hourly wage. If your employer pays you time and a half after 40 hours per week, you are obviously considered non-exempt. If you are being required to work more than 40 hours per week without being paid any premium for the extra time, your employer is treating you as exempt. Refusing to tell you how they view you is being less than cooperative, but it is how they pay you that matters.
Non-exempt salaried employees are entitled to overtime, but not at an hourly rate based upon a forty hour workweek. For example, if your salary is $400 per week, that is not the equivalent of $10 per hour. On that salary, if you work 50 hours in a particular week, your hourly rate for that week is $400 divided by fifty hours, or $8
per hour. You would be entitled to an additional $4 for each of the last ten hours worked in that week. This is obviously a lot less than the $15 per hour you might have expected.
Certain exemptions involving computer programming work do not require that you be paid a salary, but have a higher minimum wage requirement. You may want to go to the U.S. Department of Labor for more information.


posted Oct 29, 2007 1:49 PM [EST]

Answer to mileage reimbursement

No quick remedy for unreimbursed expenses

When an employer fails to pay an employee's final pay, there is an administrative remedy available. You can make a wage claim with the Labor Department of the Industrial Commission of Arizona. Unfortunately, expense reimbursement is not wages, so your only remedy is to file a claim in the Justice Court. Because the amount is so small, it isn'n practical to hire an attorney. The justice court in the precinct in which your employer does business should have forms for you to use to file your suit. Although it qualifies for the informal procedures of the small claims division, the employer will probably be represented by an attorney, which means the court will treat it like a regular civil suit.

posted Oct 11, 2007 3:20 PM [EST]

Answer to EMPLOYEE AUTO LOANS

Neither a borrower nor a lender be

My first word of advice to an employer intending to make auto loans to employees is this: DON'T DO IT! If you insist on doing it, my advice would be to think again. Then don't do it.
When you get into the business of making auto loans to your employees, you face all the problems any lender would face, plus myriad problems that employers face.
First, are you going to check people's credit reports as part of the process? You'd better know the details of the Fair Credit Reporting and Disclosure Act. It's constraints on employers are different from the rules governing lenders, and you would be wearing both hats.
Next, how are you going to collect the payments? You must have a written authorization to withhold funds from your employee's paycheck, and if the employee quits, you don't have any authority to attempt to collect the balance from the employee's last check. And you'd better know all you can about the Fair Debt Collection Practices Act, as well as the provisions of the Uniform Commercial Code that deal with secured transactions.
What if you loan money to one employee and not another? You may be asking for a complaint of discrimination, even if you think you have a good reason for favoring one over the other.
Rather than loaning to employees, perhaps you could find a suitable credit union that would give your employees favorable terms if you make it the official credit union of your company.


posted Oct 3, 2007 1:17 PM [EST]

Answer to Illegal Discrimination or not?

Proving Discrimination is Seldom Easy

Your question assumes that there is an easy to reach, yes-or-no answer to a question that requires looking into a person's thought processes. You could argue that the managers intentionally chose a measurement that would guarantee that you would fare worse than the other two, and so they purposely chose to get rid of you despite performance measures in which you excelled. But the question remains whether they did this because of your color or because they wanted to keep their own company people. Whenever two companies merge, there tends to be a rivalry in which people align themselves with people from their former company and against those from the other company. It's discrimination, but not unlawful discrimination.
If you want to pursue a claim of race or color discrimination, I would suggest that you file a charge of discrimination with the Equal Employment Opportunity Commission. This is the first step in pursuing a federal employment discrimination claim. But you will probably have to pass up whatever severance package the company is offering, since it will undoubtedly require you to release the company from all claims.

posted Oct 2, 2007 12:40 PM [EST]

Answer to Discrimination.

File a Charge of Discrimination

I assume from your question that you are not caucasian. What you have is probably a prima facie case of race discrimination. If you want to pursue it, you can either complain to human resources within your company or you can file a charge of discrimination. There are two agencies that work together in handling such charges. One is the Equal Employment Opportunity Commission and the other is the Civil Rights Division of the Arizona Attorney General's office. When you file a charge with one agency, they advise the other agency and a file is opened there as well. The agency will send your charge to the employer for a response, and then will decide whether or not to investigate it further. When the agency is finished with whatever it intends to do, it will give you a notice of right to sue, after which you can file suit if you wish. Both agencies offer mediation services, but mediation is purely voluntary, so the employer must be willing to participate or mediation won't be available.

posted Aug 23, 2007 12:44 PM [EST]

Answer to Concerns before giving two weeks' notice

No job security without a contract

Under Arizona law, employment in the private sector is presumed to be terminable at will unless you have a written contract that provides otherwise. To be completely safe, you need a written employment contract that has some kind of provision for job security. This means either the contract must be for a specific term, e.g. one year, or it must expressly state that you will not be terminated without good cause. Anything else does not give you any assurance that your employer will not terminate you whenever the employer wants to.

posted Jul 30, 2007 1:33 PM [EST]