Answers Posted By Francis Fanning

Answer to Delayed Severance

An employer has no obligation to pay severance to a discharged employee regardless of the reason for layoff. There are two basic reasons that an employer pays severance. First, it creates a sense that the discharged employee is being treated fairly, which is important for maintaining the morale of those who remain in the workforce. Second, most severance agreements contain a provision releasing the employer from any of the various legal claims an employee might be inclined to pursue, such as wrongful discharge, unlawful discrimination and so on.
Because the law does not mandate the payment of severance, an employer is free to craft its severance agreement however it chooses. Of course, you are free to reject the severance if you would prefer to pursue a legal claim against the employer. It's your choice.

posted Mar 8, 2012 10:13 AM [EST]

Answer to Can an employer revoke vacation time after it has been earned?

A.R.S.§23-350 defines "wages" to include vacation pay when an employer has a "policy or practice of making such payments." A.R.S. §23-355 allows an employee to recover three times the amount of unpaid wages from an employer. In Schade v. Diethrich, 158 Ariz. 1, 760 P.2d 1050 (1988), the Arizona Supreme Court held that an employee who was promised a severance package and continued working in reliance on that promise was entitled to the severance as "wages." Although the employer can alter its policy at any time, making the alteration retroactive would conflict with the court's analysis in this case.
If your mother's claim is no more than $2,500.00, she can make a wage claim with the Labor Department of the Industrial Commission of Arizona. For a claim that exceeds this amount, I would recommend that she consult with an attorney and make a demand for the unpaid vacation pay or the time off.

posted Jan 21, 2012 5:54 PM [EST]

Answer to Is the non compete clause enforceable to an independent contractor physician in Arizona

In Valley Medical Specialists v. Farber, 982 P.2d 1277, 194 Ariz. 363 (Ariz., 1999), the Arizona Supreme Court held that a similar agreement was void as it was contrary to public policy. The court did not hold that all such agreements involving doctors would be void, so it is important to consider the factors that the court discussed, and how the agreement and the facts of that case compare with yours.

As you have heard, Arizona is a "right to work" state, but that has nothing whatsoever to do with your case. A "right to work" state is a state that prohibits unions and employers from agreeing that union membership be required as a condition of employment.

I suggest that you discuss your specific agreement with an employment attorney to determine the most appropriate way to proceed.

posted Sep 28, 2011 4:25 PM [EST]

Answer to Would there be any legal consequences if I do work for 2 competitors at the same time ?

Arizona courts have held that an employee has a duty of loyalty to the employer while the employment relationship exists. That duty prohibits an employee from acting in a way that contravenes the employer's interests, such as giving information or customers to competitors, making derogatory remarks about the employer that would harm the employer's business, or doing anything else that would undermine the employer's interests. The agreement you signed doesn't seem to prohibit "moonlighting" by holding a second job, but if the second job is working for a competitor of the employer, to do so would be a breach of the terms of the agreement. It doesn't matter that you may think that your second job causes your first employer no harm. While you are employed, your employer dictates the terms of employment as long as those terms do not require you to violate the law. If you don't comply with those terms, expect to get fired.

posted Aug 23, 2011 5:21 PM [EST]

Answer to what is my next step

It sounds like your next step may be to go looking for another job. First of all, human resource employees are not doctors, lawyers, psychologists or father confessors. There is no "privilege" that applies to your communications with them. They have no duty to treat your complaints as confidential, and their function is to provide advice and support to management. It is their duty to advise management officials of problems that require attention, including complaints about employee behavior. Your assumption that you could "trust" your human resource manager was misguided. Second, you have no protected right to make "anonymous" complaints about the behavior of coworkers. If your complaint was about some kind of unlawful discrimination, your employer is not allowed to retaliate against you for making the complaint, but if your coworkers react negatively toward you, this is not something within your employer's control. "Shunning" by coworkers as a result of a complaint of discrimination is not considered unlawful retaliation. Finally, there is no protection against retaliation by your employer if your complaint was merely about conduct that you believed was generally inappropriate. For example, if you complain about being sexually, racially or religiously harassed by fellow employees, these complaints are protected because they involve opposition to unlawful forms of discrimination. But if you complain merely because your fellow employees are mean to you, or because they are violating school policies or behaving in a way you consider unprofessional, there is no law that protects you from retaliation for making these kinds of complaints.

posted May 11, 2011 3:21 PM [EST]

Answer to Non-Competition After Hiring

Arizona enforces non-compete agreements, but only if they meet three conditions: First, they must be reasonably necessary to protect a legitimate interest of the employer (mere avoidance of competition is not a legitimate interest, but protection of customer relationships is); Second they must be reasonably restricted in geographic scope (if you never did any work for the employer outside the Phoenix metropolitan area, then a non-compete that covers the entire state of Arizona would probably be too broad); Third, the agreement must be reasonably limited in time ( a ten year agreement would undoubtedly be too long to be enforced).
I would recommend that you have an attorney review the agreement and the circumstances of your employment to determine whether it would be enforceable.

posted Apr 12, 2011 1:08 PM [EST]

Answer to Will the non-compete clause be enforceable in my situation?

My first thought about your dilemma is that it is too complex to answer in this forum. You may have an argument that company C was not a client of company A, since A's client was B. Once B ended its relationship with A, A no longer had a protectible interest in having its employees placed by B with anyone. Also, whatever interest A had in protecting a relationship with C was also gone, since C looks to B for employees and B won't use A as a source. Also, it appears that A couldn't establish a link to C by going through D. However, non-compete agreements generally cover an entire industry, not just established business relationships between companies.

Since you have already gone with E, your question is academic. If A does nothing, you have no concern. If A threatens you with a lawsuit, it may also threaten C and E, and that threat may cost you your job regardless of whether the contract is enforceable. If A takes any action at all, you need to immediately consult an experienced employment attorney to have him or her review the agreement and the circumstances. A court might find the agreement unenforceable because two years is too long a time limit, or because A didn't have an interest to protect, or because you didn't violate the contract as written. In any event, if you need legal advice on this issue, you can't depend on simple, one paragraph answers from a forum like this one, any more than you could go on line to find out if you have lung cancer.

posted Jan 9, 2011 3:29 PM [EST]

Answer to AM I PROTECTED?

Filing a charge of discrimination is protected conduct under both the Arizona Civil Rights Act and Title VII of the Civil Rights Act of 1964. You should note that filing a charge of discrimination and then suffering retaliation does not make the retaliation part of the charge. It is a separate violation of the law. This means that you need to file a new charge of retaliation or amend your earlier charge to include the new act of retaliation. Note also that when you file with the attorney general, you are also filing with the EEOC. The two offices have a work sharing agreement that eliminates the need to file separate charges with each agency.

posted Nov 4, 2010 12:02 PM [EST]

Answer to Can consensual relationships create a hostile work environment?

First, a consensual relationship cannot be the basis of a claim of hostile environment sexual harassment because it is not unwelcome. Once the relationship ends, however, things change.
There are cases in which courts have held that the termination of a subordinate on account of interpersonal conflict following a consensual relationship is not discrimination on account of sex, but rather on account of personal conflict.
Obviously, if one party wants to end the relationship and the other does not, continuing advances would be unwelcome and could constitute hostile environment sexual harassment. However, if your boss terminated the sexual relationship, you cannot call her subsequent general hostility sexual harassment, since it is not unwelcome conduct of a sexual nature.
The fact that you were terminated shortly after complaining of discrimination may give you a claim of retaliation under Title VII. An adverse action that occurs shortly after protected conduct is prima facie evidence of retaliation. The problem here involves whether your complaint was protected conduct. If you reasonably believed that your boss's treatment of you involved unlawful discrimination, and if you complained of sex discrimination or sexual harassment, your complaint should be protected. But if you merely complained of bad treatment and did not characterize it as unlawful discrimination, a court might rule that your complaint did not constitute protected conduct under Title VII, since the conduct of which you complained was not sexual harassment.
To pursue either a claim of sex discrimination or retaliation, you must begin by filing a charge of discrimination. I would file the charge with the Equal Employment Opportunity Commission. For more information, go to www.eeoc.gov.

posted Oct 13, 2010 1:25 PM [EST]

Answer to K-1 as wage basis for unemployment compensation?

First of all, the State Compensation Fund has nothing to do with unemployment benefits. It is a worker compensation insurance carrier.
If your LLC paid unemployment insurance premiums into the Department of Economic Security, and if you took a salary from the LLC for work performed when it was operating, you may be eligible for unemployment benefits, assuming the loss of your active employment with the LLC was not voluntary on your part. If your LLC income was always K-1 income, then you were never a wage earner and haven't lost your employment, so you would not be eligible. For more information on unemployment benefits, go to www.azdes.gov

posted Aug 30, 2010 3:07 PM [EST]