Answers Posted By Francis Fanning

Answer to Cutting hours after not taking salary offer

No right to a raise

Your wife's situation is unfortunate, but there is probably nothing she can do. Despite the length of her employment and her dedication, her employer has no obligation to continue to her employment, to maintain the level of her earnings or to guarantee her a set number of hours.
There are two anti-retaliation provisions that come close but do not seem to apply in this situation. The first, which is part of the Fair Labor Standards Act, prohibits retaliation against an employee who complains about possible violations of that act. However, this only encompasses claims of unpaid overtime or violations of minimum wage provisions. Your wife's complaint does not fit either of these categories. The other law, part of the National Labor Relations Act, prohibits retaliation against employees who engage in "protected concerted activity." This means employees voicing complaints about working conditions, which includes wages. But concerted activity involves employees joining together to complain. While one employee complaining about working conditions on behalf of herself and other employees is protected, an employee complaining only about her own pay is not engaging in "concerted" activity.
If she believes that her complaints and her "getting the others riled up" was about everyone's treatment, not just her own, she may want to file an unfair labor practice charge with the National Labor Relations Board. That is the only remedy for this kind of unfair labor practice.

posted Jul 19, 2007 8:38 PM [EST]

Answer to Renegotiate Severance?

Choice of Law may not matter

To answer your question, I need a bit more information. If you were hired in Michigan and transferred to Arizona, Michigan may have as many reasons to apply its law as Arizona does to apply Arizona law. If you were hired in Arizona to work in Arizona, there doesn't seem to be any reason to apply Michigan law. But before you get all caught up in this issue, you have to answer the classic lawyer's question - why do you ask? If you are concerned about possible discrimination, federal law is the same in both states. If you believe you may have a claim of breach of contract, the contract on which you are relying is as important as the question which law applies. The applicable law may be the same in both states.
Arizona does not have a provision that requires the payment of severance at all, and I doubt that Michigan law requires severance to be paid. So if you want to negotiate for a higher severance, you need something to negotiate with. Your extensive knowledge should tell you that the only real leverage you have in such a negotiation is the threat of a possible legal claim. But don't assume that your potential claim is better if one state's law applies rather than another. Have an experienced employment attorney review the situation with you to see if you have any legal recourse.

posted Jun 18, 2007 8:18 PM [EST]

Answer to I would like advise on constructive discharge claim

Constructive Discharge is difficult to prove

You haven't asked a question, but I assume you are seeking guidance on constructive discharge. I have three things to offer.
First, constructive discharge is hard to prove. It is not enough that you feel oppressed. You have to prove that a reasonable person (anyone in your situation) would feel compelled to quit.
Second, Arizona has a statute that defines constructive discharge and has certain notice requirements that may apply to your case.
Third, a constructive discharge isn't necessarily a wrongful discharge. The employer's reason is still an important part of the analysis. If it is not an unlawful reason, you may have no recourse even if you prove constructive discharge.
Finally, you state that you would like to speak to an attorney, but you indicated that you were not willing to pay for a consultation. I don't know of any experienced employment attorneys who give free consultations.

posted Jun 1, 2007 1:49 PM [EST]

Answer to Getting out of relocation obligation

Relocation Expenses Repayable

To answer your question I would need to review the agreement by which you are required to repay moving expenses if you leave before the end of two years. It may have some wording that would excuse repayment under certain circumstances. In general, however, there is no guarantee of continued employment when you work in the private sector for an indeterminate period of time. This is what is referred to as "at-will" employment. If your repayment provision requires repayment regardless of the reason for termination, your employer could probably terminate you during the first two years and you would still be required to repay the expenses. Your only hope is an implied covenant in the agreement, known as the implied covenant of good faith and fair dealing. This gives you relief if the company terminates you to deprive you of a benefit that was part of the agreement. But the company has not terminated you. Unless your new working conditions are so oppressive that a reasonable person would feel compelled to quit (known as a "constructive discharge"), your decision to quit would not be a breach of the covenant by the company, and so you would be required to repay the moving expenses.

posted May 26, 2007 1:26 PM [EST]

Answer to non participation in other employee's lawsuit

Employer cannot prevent you from testifying

Your instincts are correct. An agreement that precludes you from testifying as a witness in another case would not be enforced by the courts, because it would usurp the court's subpoena power. An employee who wants your testimony as a witness is entitled to call you. The company's attempt to enforce the agreement would be considered interference with the judicial process.
You should be aware that, as a human resource director, you are the company's representative in any case in which you might be called regarding another employee's claims. This means that the company can preclude the other party's attorney from communicating directly with you regarding the matter. You can expect the company's attorney to try to maintain strict control over your participation in the case. But you are clearly a material witness if you were involved in someone else's employment dispute.

posted Apr 16, 2007 1:49 PM [EST]

Answer to Enforcing a Non-Compete Agreement

Non-compete requires protectible interest

It sounds like the non-compete you signed would not extend to Job B, because they aren't in the business of selling building materials. But if your bids include both labor and materials and job B buys from A's competitor, job A may have an argument to make.
To be valid, a non-compete agreement must be necessary to protect a legitimate interest of the employer, and must be reasonably restricted in time and geographic scope. What is reasonable depends upon the facts regarding how business is conducted and what your duties are. The length of time considered reasonable is the time necessary for your replacement to be hired, trained and acquainted with your job and customers to protect the goodwill of the employer.
One of the problems with trying to answer your question is lack of information. What you call a non-compete agreement may be an anti-piracy agreement, which is altogether different. Such agreements are generally enforced by the courts.
If you are uncertain where you stand, I would suggest that you either ask job A for assurance that your new job won't violate the agreement, or consult with a lawyer who can review the agreement in detail.

posted Feb 1, 2007 5:08 PM [EST]

Answer to Offer letter rescinded

No contract, but perhaps a remedy

When you are offered a position, but the offer is not for a set period of time (such as a one year contract), the presumption is that the job being offered is terminable at will at any time without cause or notice. So in your situation, you have no recourse by way of a claim of breach of contract. However, when someone induces you to act to your detriment by a promise that turns out not to be legally enforceable, you may have a claim for what is called "promissory estoppel." The measure of damages is not the benefit of the offer made to you but the loss you suffered in relying on the promise. In your case this means the loss of the job you quit. I would try to get your old job back. If you cannot, you may want to talk to an attorney about making a claim for lost income using this legal theory.

posted Dec 5, 2006 1:18 PM [EST]

Answer to Can I be fired due to mental health issues?

mental health issues are difficult to analyze

There are two laws that must be considered in answering your question. The Family & Medical Leave Act protects your employment for up to 12 weeks while you are off work due to a "serious health condition." This law only protects your right to take leave without jeopardizing your job. It does not protect you from discrimination on account of the condition itself. Another law, the Americans with Disabilities Act, prohibits discrimination on account of a disability, whether mental or physical, and requires a reasonable accommodation of a disability. However, this law only protects an employee who is qualified to perform the essential functions of the job with the accommodation. Further, the definition of "disability" is much narrower than you might think, and your mental health problem may not meet the definition. Finally, you may be terminated for inappropriate workplace behavior, even if the behavior is a symptom of the disability, if the behavior is too disruptive to be tolerated as an accommodation. You should probably consult an employment attorney to discuss the specifics of your condition and the reasons given for the termination or threat of termination.
There is no law that requires your employer to share employee records with you.

posted Oct 26, 2006 6:05 PM [EST]

Answer to Non-compete, same client, two temp agencies

Non-competes have to be carefully scrutinized

Your question combines a number of legal and practical issues. The general rule in Arizona permits non-compete agreements, but only if they are necessary for the protection of legitimate interests of the employer, and only if they are reasonably restricted as to duration and geographic scope. Assuming the non-compete you signed is reasonably restricted, it may still be unenforceable because of the agency's loss of any protectible interest. The answer to this is not clear, and is the kind of issue that lawsuits are made of.
You are free to breach a contract and risk being sued for the breach. The agency has the burden of proving that its agreement is enforceable, so they might decide not to file suit. So if you have a choice, it may be worth the risk to ignore the non-compete and proceed to take the job through the first agency. But I doubt that the choice is yours. From the text of your question it appears that both agencies are aware of the situation. The first agency may not want to risk being dragged into a lawsuit, and may agree to the proposed arrangement that you dislike. In that case, the only leverage you might have would come either from the client objecting or from you threatening a suit based on Arizona's blacklisting statute. That statute prohibits two or more persons from entering into an agreement whereby a worker is kept from being employed. There is no Arizona caselaw interpreting the statute to say whether it even applies to a situation like this one, and the courts may not allow it to be used to defeat non-compete agreements.
Non-compete agreements are impossible to interpret without examining the exact language of the agreement, since they sometimes mean something other than what you may assume. I would recommend that you have an attorney review the agreement to be sure you understand it before trying to negotiate with either agency.

posted Oct 2, 2006 2:21 PM [EST]

Answer to Salary pay deduction

Right to overtime depends on job

The right to overtime is governed by the Fair Labor Standards Act. Normally, it entitles an employee to overtime pay for any hours worked in excess of 40 hours per week. Certain classes of jobs are exempt from this requirement, but only if the employee is paid a salary. The mere fact that you are salaried does not make you exempt unless you fit into one of the recognized exemptions. There are a number of exempt categories. The most common are managers, administrative employees (such as human resource people), and professionals (accountants, lawyers, etc.).
If an employer deducts pay from the salary of an exempt employee for less than a full day (e.g. 2 hours for being late), this effectively makes the employee hourly rather than salaried, and defeats the exemption. Deducting a full day's pay for a day missed is permissible under certain circumstances.
The U.S. Department of Labor, Wage & Hours Division, investigates claims of unpaid overtime. You can contact them if you believe you have been denied overtime. Check out their website, www.dol.gov for more information.

posted Sep 15, 2006 2:15 PM [EST]