Answers Posted By Francis Fanning

Answer to My employer is reducing my pay a dollar based on two reasons that are untrue, can she do this?

Let me begin by making an assumption. I assume that your employment is terminable at will. Unless you have a contract that gives you some form of job security, the presumption is that your employment can be terminated at any time, with or without a good reason. It then follows that the terms of your employment, including your pay, can be changed at will. Your employer doesn't need a reason to do this. The fact that the employer gave you a reason that doesn't hold up doesn't give you some legal protection that you didn't have before. Whether this is discrimination depends on whether you are being treated less favorably than some other employees in the same situation. But you need to understand that discrimination is not illegal unless it is based upon a prohibited reason. The civil rights laws prohibit discrimination based upon sex, race, religion, national origin, color, age and disability. There are also laws that prohibit certain discrimination based upon military status. If the reason for the discriminatory treatment doesn't fall into one of these categories, it isn't unlawful.

posted May 2, 2013 10:17 AM [EST]

Answer to teminated for points , one while in hospital other while workmans comp

In answer to your question "Can I file a discrimination charge against them?", yes you can file a charge, but the burden is on you to prove that you were discriminated against on account of the disability. If you did not realize that your condition was a disability and you did not ask for an accommodation, it is unlikely that you would be able to prove that your employer should have accommodated you or that they fired you on account of your disability.
I'm not sure I understand what you meant by "a hospitalization they said wasn't covered." If you were eligible for the protection of the Family and Medical Leave Act, it would seem that most any needed hospitalization would qualify as a serious medical condition. Whether you missed work on account of a work related injury or illness has no bearing on the protections of the FMLA or the Americans with Disabilities Act.
By the way, the definition of a disability is not a medical definition but a functional one. Just because someone with Hashimoto's qualified as disabled doesn't mean that everyone with the condition is disabled. To show that you are disabled you have to show that your condition substantially impairs a major life activity. Under the ADA as recently amended you can consider your condition in its untreated form, so if your condition would be much worse without the medication or other treatment you are receiving, proving that you are disabled would be relatively easy. Walking is a major life activity, so your problem walking across the parking lot would probably be enough to meet the functional definition of disability.

posted Apr 24, 2013 12:07 PM [EST]

Answer to if a supervisor gives you alcohol before your shift are they responsible for your actions?

First of all, you cannot seek to be excused for acting like a fool by saying you were under the influence of alcohol, regardless of how you came to be in that state. Second, the amount of alcohol you would have consumed in that one beverage would not have had such a drastic effect on you that you would go around acting in ways that caused sexual harassment complaints to be made against you unless you chose to behave that way. Third, when an employer seems to discriminate against you as compared to your supervisor, it is difficult to argue that unlawful discrimination occurred because supervisors and subordinates cannot easily be comparators in claims of discrimination. Usually supervisors are held to a higher rather than a lower standard, but I suspect that your supervisor was not forthcoming about her involvement, and employers make decisions on the best information available, so it was your word against hers proving her involvement, while it was the complaining employees' words against yours when it came to the inappropriate behavior. You are right in thinking it was unfair, but fairness is not guaranteed by the law.
You might have a claim against your supervisor for contractual interference, but you would have the same proof problem. Even if you could prove that she gave you a drink heavily spiked with undetectable alcohol (like a Long Island iced tea), you are still responsible for foolish behavior that offends your coworkers.

posted Mar 25, 2013 12:50 PM [EST]

Answer to Can i sue my place of employment if an employer retaliated against me?

To answer your question I have to make some assumptions. First, I assume that you do not have a written contract of employment and that your employer is not a government agency. If these assumptions are correct, this means you are an at-will employee and your employer does not need a reason to terminate you. You would have to show that the reason for your termination was something that violates the public policy of Arizona. If the auditor was asking you to do something unlawful and, after complaining, you were fired in retaliation for your complaiant, that could amount to a wrongful discharge for "whistleblowing." However, if she merely asked you to do something that you disagreed with, even something contrary to company policy, you would not qualify as a "whistleblower" and your termination would not be wrongful. There is no law that prohibits retaliation generally. The laws that prohibit retaliation are narrow and specific. For example, complaining about unlawful discrimination (i.e. discrimination on account of race, sex, religion, color, national origin, age or disability) is protected conduct, and retaliation for such complaints is prohibited by the same laws that prohibit those forms of discrimination. But generic complaints are usually not protected conduct. If you think your complaint was a complaint of some kind of unlawful conduct and if you actually get terminated, you may want to consult with an attorney for a more in-depth evaluation of your case.

posted Feb 6, 2013 2:22 PM [EST]

Answer to Do i qualify for unemployment if my hours got reduced by 90%

DES can consider a substantial adverse change in your job duties or a substantial reduction in pay to be a constructive discharge. If you quit the job because of these changes, you may be able to qualify for unemployment by proving a constructive discharge. If you continue to work for the employer, you would have difficulty arguing that you were constructively discharged. The only way to know if you qualify for unemployment benefits under these circumstances is to apply for them. The worst that can happen in that you will lose.

posted Oct 11, 2012 1:38 PM [EST]

Answer to My co worker called me gay, do I have a lawsuit against him?

While the law on this subject is rather complex, the answer to your question is simple - you do not have a claim. First of all, there is no federal or state law that prohibits discrimination on the basis of sexual orientation or sexual preference, real or perceived. Second, while there are some circumstances in which an employer can be liable for discrimination based on sex related characteristics, your co-worker is not your employer. Third, while an employer can be liable for permitting sexual harassment in the workplace, you were not harassed. Comments made about you outside your presence are not harassment. In any event, the employer's duty in the face of a report of sexual harassment is to take appropriate action to eliminate further harassment, which the employer apparently did.

The only conceivable claim you might have against your coworker would be a claim of defamation. The problems with pursuing this claim are many. First, defamation requires the publication of a false statement that causes injury to your reputation. Although the statement was false and was published to another coworker, it did not damage your reputation for two reasons. First, the person to whom it was published told you about it, suggesting that he or she did not think less of you on account of the statement. Second, while calling someone gay might have been considered damaging to that person's reputation in the twentieth century, in recent years the stigma has diminished to the point where you would be hard pressed to prove any real damage to your reputation even if someone believed it. Finally, you would have to prove that the statement that was made was perceived as a factual statement, which means the speaker would have reason to know your true sexual identity. If the statement was "He's so gay," or "I think he's gay" or "I'll bet he's gay," these are not factual statements.

Bottom line - get over it.

posted Oct 11, 2012 1:32 PM [EST]

Answer to Are my travel hours included in my 40 hour work week?

First of all, if you were an exempt employee, you would not be paid by the hour and would not be entitled to overtime. The term "exempt" refers to employees who are exempt from the general requirements mandated by the Fair Labor Standards Act. Since your company appears to be paying you on an hourly basis, I will assume that you are a non-exempt employee, since most exemptions require that the employee be paid a salary rather than an hourly wage.
Because of the Portal to Portal Pay Act, travel time to and from work is not compensable. I am attaching a 9th circuit case that discusses this concept. Traveling to a customer's location in the middle of a work day would be a different situation, because it would not constitute commuting to or from work. I would suggest that you take a look at the U.S. Department of Labor website for further information about the Fair Labor Standards Act. www.usdol.gov.

posted Aug 6, 2012 12:26 PM [EST]

Answer to I was discharged from my managment position and offered a minimum wage job. How do I not accept the

If you refuse the position offered, you may still collect benefits if your refusal was reasonable because the work was unsuitable. Here are a couple of regulations that address the issue.

R6-3-50138. Disciplinary action (V L 138)

A. A worker may leave because of disciplinary action taken against him by his employer. He leaves without good cause in connection with the work if:

1. The event which resulted in the disciplinary action was within his control, or

2. He was responsible for the event.

B. He leaves with good cause in connection with the work if he makes a reasonable attempt to adjust his grievance prior to leaving and the disciplinary action was:

1. Discriminatory, or

2. Unreasonable, or

3. Unduly severe.

H. Reduction in wages (V L 500.75)

1. General (V L 500.751). Under the ordinary employment relationship, there is neither an express nor implied agreement that the employer will not reduce wages.

2. A claimant who quits solely because his wages were reduced shall be disqualified for leaving work voluntarily unless he attempted to adjust his grievance prior to leaving and:

a. The wage rate is reduced to an amount which is below the legal minimum, or which would make the work unsuitable in accordance with the refusal of work portion of these rules; or

b. The employer arbitrarily reduced the wages as a means of discriminating against the worker, even though the reduced wage is not below the prevailing rate. Arbitrarily reduced means the reduction was substantial or disproportionate and not generally applied.

R6-3-53365. Prospect of other work (Refusal of Work 365)

A. A claimant who has reasonable prospects of employment in the near future may refuse other less suitable work with good cause. In general, the more definite the prospect, the more reasonable is the decision to wait for the more acceptable job.

B. Prospect of obtaining future work may include:

1. A definite offer and acceptance of a job to begin at a definite time; or

2. A definite promise of a job although the starting date is an estimate by the employer; or

3. An indefinite statement by the employer that he may have work for the claimant; or

4. Statement by Job Service personnel; or

5. General knowledge that jobs will soon be available in a particular industry.
R6-3-53510. Work, nature of (Refusal of Work 510)

A. Customary (Refusal of Work 510.1)

1. Occupation refers to the type of work a claimant was performing and not the industry in which he worked.

2. Customary occupation may be defined as follows:

a. The occupation in which an individual has developed his highest skill either through experience, training, or education; or

b. The occupation in which he has developed a skill through progressive steps of advancement, even though he has worked in such occupation for a relatively short period of time; or

c. The occupation in which he was engaged the longest period of time, when his work history indicates experience in a number of occupations involving related skills; or

d. The only occupation in which the claimant has engaged.

3. If during the adjustment period (Refer to R6-3-53295) a claimant has a good prospect of obtaining work in his customary occupation, he would have good cause for refusing other work. Conversely, if it is apparent there is little opportunity of obtaining work in his customary occupation he would not have good cause for refusing suitable work outside his customary occupation.

B. Light or heavy work (Refusal of Work 510.35). To be suitable, the offered work must be within the claimant's physical limitation.

posted Jul 27, 2012 5:47 PM [EST]

Answer to Layoff

The answer to your question is yes.

Your question did not indicate how old you are or how old your fellow warehouse workers are. But age alone won't prove a claim of age discrimination. You have to prove that age was the reason for the decision. It is not enough to prove that age was a factor along with other factors. (Congress is working on fixing that problem following a recent Supreme Court decision that treats age discrimination different from other forms of discrimination in that regard.) The fact that you are the supervisor means that you probably make more than the others. Choosing you for layoff so as to maximize the savings to the company is a legitimate basis for choosing you over the others.

Better dust off your resume.

posted Apr 25, 2012 2:40 PM [EST]

Answer to If an employment contract expires, is the non-competition agreement still valid?

Generally, a non-competition agreement is intended to survive the end of employment, so the fact that your old employment contract expired does not necessarily mean that the non-compete is no longer enforceable. However, it is important to examine the terms of both agreements to determine how the law would apply in your specific case. Specific language in either agreement may answer your question differently, and not all non-competition agreements are enforceable. If the non-compete is enforceable, there may also be a question regarding how the term of the agreement is calculated. I would suggest that you consult an experienced employment attorney for a review of your agreements and the circumstances in which they were negotiated and performed.

posted Mar 15, 2012 11:40 AM [EST]

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