Answers Posted By Francis Fanning

Answer to Did I commit defamation?

Telling the truth is not defamation

Defamation is the publication of false information that injures a person's reputation. When the information that is published is true, it is not defamatory, although it may still cause injury to one's reputation. Another legal claim closely related to defamation is invasion of privacy. There are several forms of invasion of privacy, but the one involved in this instance is the publication of private information about someone that, although true, still causes the person embarassment, humiliation or loss of reputation. The information has to be truly private. A person has an expectation of privacy with respect to such information as medical records, personnel records, family matters and so on. But I doubt that your boss could claim that his inappropriate behavior in front of all those employees could be protected by any reasonable expectation of privacy.
Your concern about possible firing is legitimate. If you are an at-will employee, your employer doesn't need a reason to fire you, so your job security may be in jeopardy because you told others about the incident. There is no public policy that protects you from termination for this unfortunate slip of the tongue. You may have a claim against your boss if he uses his authority to fire you for a purely personal reason unrelated to the employer's legitimate concerns. This claim, called interference with contractual relations, requires proof that the boss's actions caused you to lose your job and that the boss acted "improperly," a term that involves weighing a variety of factors, including his motive, the manner in which he went about it, the social benefit of allowing or prohibiting his acts, and other factors.

posted Aug 8, 2006 5:35 PM [EST]

Answer to Possible mistreatment at work.

No protection for web page, but wage-hour laws may have been violated

Your question raises two very distinct issues. First, the demotion. When you work in the private sector, your employment is presumed to be terminable at will - that is, your employer can fire you at any time for no reason, just as you can quit whenever you choose. Although the publication of web page content is protected by the First Amendment to the U.S. Constitution, the First Amendment is a limitation on government, not private parties. So you are not protected if your employer retaliates against you for what you publish.
The second question involves the application of the Fair Labor Standards Act, a federal law that requires employers to pay minimum wage and overtime. If you are an hourly employee, you are entitled to be paid a minimum of $5.15 per hour for every hour you work. If you work more than 40 hours in a week, you are entitled to time and a half for every hour over 40 that you actually work.
If you are a salaried employee, things become more complicated. Certain jobs are exempt from the Fair Labor Standards Act, leaving you with no protection under federal law. Others are non-exempt, meaning the law still applies, but not necessarily the way you would expect it to. I would recommend that you contact the U.S. Dept. of Labor, Wage & Hours Division, regarding your employer's practices. For more information, go to www.dol.gov or call 602-640-2290.

posted Jul 19, 2006 3:02 PM [EST]

Answer to Non-compete with no copy

Validity of contract does not depend on you getting a copy

It is common for employers to have employees sign contract documents that are then put away in a file and pulled out later when needed. I know of no cases that invalidate a contract simply because the employee didn't get a copy.
A contract entered into under duress can be invalidated. However, signing an agreement with minimal notice, even under threat of termination, is not the same as signing under duress. Legal duress involves something more than disadvantage. If the employer puts a gun to your head, that's duress. Fear of losing your job is not duress because that is what you are bargaining over. You can choose to sign or choose to not work there any more. As unpleasant a choice as that may seem to be, it is still your choice.
The change of management does not change your contractual obligation toward the employer. Nor does the fact the contract was stored off the school premises.
The real issues about enforceability of this contract are 1. Whether it is reasonably limited in geographic scope; 2. whether it is reasonably limited in time; and 3. whether it is necessary to protect the employer's legitimate business interests. I cannot comment on the temporal or geographic scope of the agreement without reading it. But I find it hard to imagine why a sports school would need non-compete agreements for coaches, unless there was a fear that you would leave and draw away students to a competing program.
Another reason the agreement may be unenforceable is lack of consideration. Consideration is something of value given in exchange for a promise. A contract requires consideration to be enforceable. Since your promotion was given to you two months before you signed the agreement, it doesn't seem to qualify as consideration for the promise not to compete. The Arizona courts have not clearly said whether continued employment in a job that is terminable at will is sufficient consideration for a non-compete agreement. A terminable-at-will job isn't something of value that you didn't already have.
I would ask your former employer for a copy of the agreement. Ask in writing and keep a copy of your letter. If the employer doesn't respond, you can at least claim that you weren't certain about the terms of the agreement and assumed the employer wasn't concerned about holding you to it. If the employer responds, you can have an attorney review the agreement to see how reasonable it appears in light of the concerns discussed above.

posted Jul 13, 2006 6:05 PM [EST]

Answer to Non-compete release or compensation

Ex-employer is not obligated to offer job

The purpose of a non-compete agreement is to prevent you from going to work for a competitor. If the non-compete is valid, your former employer is entitled to the benefit of the agreement, even though it means you cannot accept a desirable job offer from a competitor. If the employer were required to release you, the agreement would be meaningless.
Having said that, I would add several things for your consideration. First, non-compete agreements are only valid and enforceable if they are necessary to protect legitimate interests of the former employer. Second, they must be reasonably restricted as to time and geographic scope. Third, they are strictly construed by courts, and you should not assume that the terms of the agreement apply to anyone who appears at first blush to be a competitor. In deciding such questions, courts will construe the agreement narrowly, so that the agreement doesn't unnecessarily prevent you from working within your profession. Finally, it is not a crime to breach a non-compete agreement. The ex-employer has the burden of taking whatever steps are necessary to enforce the agreement, and often employers choose not to incur the expense of a lawsuit if you don't present a true competitive threat.
I would suggest that you have an employment attorney review the agreement before you assume either that it is enforceable or that it applies to your prospective employer. Predicting what a court will do with such an agreement is very difficult, but there may be sound legal reasons to assume that the agreement is not enforceable.
Finally, be sure to inform your prospective employer about the agreement. You don't want to take the new job only to lose it when your former employer threatens your new employer with a lawsuit because of an undisclosed non-compete agreement. This is often the most effective and least expensive way such agreements are enforced, even though it seems like a dirty trick to the guy who loses his job.

posted Jun 26, 2006 3:26 PM [EST]

Answer to Non compete contractor (non employee) situation

Complex relationship creates complex questions

I cannot answer your question regarding the application of your non-compete agreement without reviewing the agreement. Its wording will determine how and to whom it applies. Having said that, my guess is that the non-compete was written to protect company "A"'s interest, which means keeping you from going directly to company "B" or another placement agency. That's just a guess.
As far as your pay is concerned, company "A" is your employer. Employers are required to pay employees at least twice per month, and are allowed to hold back no more than five days of pay (this is to give the employer a week to complete its payroll accounting). Overtime must be calculated and paid within 15 days of when it is earned. If company "A" is an out of state company whose payroll is processed out of state, paydays may be once a month instead of twice. From what you have described, your employer is not complying with these requirements, which are found in Ariz. Rev. Stats. �23-351.

posted Jun 12, 2006 3:45 PM [EST]

Answer to Who's shift is it?

At will Employment means Fairness is Optional

Your question seems to assume that employers have an obligation to treat employees fairly. When you work in the private sector, you employment can be terminated at will, with or without a reason. Hence, discipline for a reason you believe is unfair does not give you any legal recourse.
The fact that your coworker was not suspended is an act of discrimination, but not unlawful discrimination. You and your coworker are not in the same position. Your employer apparently operates on the premise that your shift is your responsibility, and that when you take it upon yourself to cover it by switching with another employee, you are still the one responsible for coverage. While some may think it fairer to blame the employee who agreed to work and then failed to show up, this is not a legal principle upon which you have any claim. Your employer may take the position that in return for the privilege of allowing employees to switch shifts with others, the employee who was originally scheduled to work bears the risk. Courts do not interfere with an employer's operation of its business or writing of its rules, except in certain limited situations in which an action is illegal because of specific laws, such as civil rights laws and wage and hour laws. You have no recourse against generic unfairness. That's what unions are for.

posted Jan 10, 2006 4:25 PM [EST]

Answer to Pregnancy discrimination, Arizona

Pregnancy discrimination warrants investigation

You may have a good case of pregnancy discrimination. Discrimination on account of pregnancy is the same as discrimination on account of sex. Your performance evaluation and raise in recent months seems to contradict whatever reason the employer had for "taking the position in another direction." The first step in pursuing a pregnancy discrimination claim is to file a charge of discrimination with the Equal Employment Opportunity Commission. This may give you additional leverage to negotiate a better severance package.

posted Jan 5, 2006 12:11 PM [EST]

Answer to Having it both ways....

Docking pay may defeat salaried classification

Your question raises some tricky issues. First, there is a general rule that docking an exempt employee's pay for less than a full day on account of absence defeats the "salaried" requirement of the exemption from overtime. However, in a fairly recent case, WEBSTER v. PUBLIC SCHOOL EMPLOYEES OF WA, 247 F.3d 910 (9th Cir. 2001), the Ninth Circuit held that requiring an employee to have the missed time deducted from sick or annual leave benefits did not defeat the exemption because it did not result in a loss of salary. The employee in that case was not a professional teacher, however, and there are some unique rules for public school teachers. I suggest you contact the U.S. Department of Labor, Wage and Hours Division, for further information about this issue. They know the peculiar regulations governing these issues, and can investigate a claim of unpaid overtime. Be sure to explain whether your pay was simply docked or whether you were required to use sick leave or vacation time.

posted Jan 4, 2006 12:46 PM [EST]

Answer to Wrongful termination for sexual harassment

Boss may be the victim

Although it is not an easy case to make, your husband may have a claim of sex discrimination. The law at issue, Title VII of the Civil Rights Act, does not specifically mention sexual harassment. It prohibits "discrimination on account of sex." Court decisions have interpreted this to extend to sexual harassment in the workplace. When an employee complains about sexual harassment, an employer has a duty to conduct a fair and complete investigation and take appropriate action to prevent sexual harassment. It is important to keep in mind that the law prohibits discrimination by the employer. In the woman's case, your husband is the "employer." For this reason, it is not enough to compare the way she was treated with the way he was. However, the decision to terminate his employment was the "employer" acting with respect to your husband as an employee. If he can show that the company simply took the word of the woman who complained without fully investigating, or if he can show that the company would not have fired a woman manager accused of sexual harassment, he can show that he has been discriminated against "on account of sex."
Without any information about the woman's specific complaint or the result of the investigation, it is difficult to evaluate the company's actions. I would suggest that your husband file a charge of discrimination with the Equal Employment Opportunity Commission if he believes that the company has not handled the matter in a gender-neutral way.

posted Nov 28, 2005 11:45 AM [EST]

Answer to Wrongful termination due to appropriate use of computer

Unfair discharge is not wrongful discharge

Unfortunately, the fact that your termination was very unfair does not make it wrongful. To prove a wrongful discharge, you must prove that the reason for your termination violated public policy. "Public policy" includes specific laws prohibiting certain kinds of discrimination (race, sex, religion, age, national origin, color, disability). It also includes laws specifically intended to protect employees in taking certain actions (worker compensation protections, the right to vote, jury service, membership in the National Guard, demanding minimum wage & overtime). Finally, a discharge can violate public policy if it is done in retaliation for refusing to engage in criminal conduct or reporting unlawful conduct (whistleblowing). Your situation doesn't appear to fit any of these categories, and does not appear to raise any issue of public concern. Internet pornography is not unlawful, so reporting someone's viewing it is not "whistleblowing." A company's policies regarding such activities are purely private and internal rules that do not involve issues of public policy.

posted Nov 28, 2005 11:28 AM [EST]

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