An employee quit and has filed paperwork to get back pay.

I am selling the business so who is responsible for paying the debt? I own a small daycare and have just gotten in over my head. One of my employees quit because she was caught taking money from me. I owe her around $3000.00 in back pay. I am in the process of selling my business and my question is if she files against me who is responsible me or the new owner. I have the intention of paying her but will need time to come up with the amount owed.

I have always had a hard tiime paying my employees because in daycare you can only pay people when you get paid. The employee that I am talking about has worked for me for over a year and this has always been a problem with the payroll but has stayed anyway. I have tried to take out a loan but have not been able to. I have someone who wants to take over the business but I need to see if the ex employee will come after me or the new owner.

A: It depends in part upon how the purchase is structured and how your business is set up. Although it’s complicated, the big picture is that if you sell your entire business to the buyer, then the new buyer will have the liability. If instead you sell only the assets of the business, then the new buyer will not have the liability. There are exceptions to this, and you will want to consult with a lawyer who does these kinds of deals for small businesses. I would think that you will have leverage against her as a result of her taking money from you. You have to be careful to use this leverage in a legal way.

In addition, you will want to talk to a lawyer who is familiar with whether you really have to pay the back pay, as well as (heaven forbid!) additional penalties owed as a result of the delay. You may have an argument that you don’t need to pay some or all of the back pay, depending on how much the former employee took from you or otherwise hurt your business.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by , Arizona Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.

If an employee gives a three week notice, are we obligated to pay him three weeks of pay, if we want him to leave sooner?

If Arizona is an “at-will” state, do we need to pay or honor the three week notice. We do not have a policy yet on how to handle this.

A: Assuming there is no written contract, you can terminate the employee immediately. There are a few exceptions to this rule, and there are some important things to remember about how to terminate someone so as to minimize the risk of a later legal dispute. So I would suggest that you counsel with an employment attorney before pulling the trigger.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by
Re-posted from AVVO Legal Questions & Answers.

I am being denied unemployment benefits for “misconduct – violating company policy”.

I was fired for performing a VOID which caused some problems. I never found out if I did something wrong or if there was a problem in the software. I was denied unemployment benefits for “misconduct – violating company policy” for performing the VOID. I appealed this decision because there were never any company policies in place, plus I had performed VOIDs many times in the past and was never told it was against any policy. I think an employee would have to be made aware of company policy via handbook or signed letter or past consultation. The review board denied my appeal.

Do I have any recourse? I have one last chance to appeal this decision but think that I need some kind of legal example for it to hold any weight.

I have read through the Employment Security Law for Arizona and the Arizona Administrative Code and both either state or suggest that it must be determined that an employee knows, or should know, the company policy in question. This could not be determined (by the employer’s statement alone) since there was no policy notice and I had performed several VOIDS in the past with no objection from the employer. I stated these objections at the hearing, where the employer admitted that there was no policy handbook, and in my appeal but I was still denied benefits based on violating company policy.

Every point the AZDES gives for denial I can rubut, however, I need to know how to appeal in a manner that they cannot just disregard. I think I understand the AZ employment laws, which can be relative to interpretation, but how can I find precedence to argue my case?

A: It’s hard to give a definitive answer without more information about the procedural posture of your case. However, most likely your appeal is going to be “on paper” only, and you will have to make legal arguments based on the evidence that has already been given. You should carefully review the regulations on HOW to file your appeal, since it is frequently the case that non-lawyers get tripped up by procedures. It might not be a bad idea to have a lawyer look at your case to see where it is procedurally and what your strengths and weaknesses are. Since you lost at the lower level, there must be some weaknesses that you will need to be aware of. Our firm does handle these cases, but often the cost for a full representation is too high based upon the possible outcome. A quick review and analysis (which we also do) might be your best option.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by Arizona Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.

Training Sub-Contractors

We hire sub contractors and give them a 2 hour training. Are we required to pay them for the training?

A: Assuming that they are really sub-contractors and not employees, you are authorized to require them to be trained in order to get other work. However, the distinction between sub-contractors and employees is a tricky one, and I find that my clients sometimes think that they can treat someone as a sub-contractor when in fact that person is an employee. If the person is an employee for legal purposes (even if you call them a sub-contractor), then you will be required to follow the law regarding paying employees for work–including probably the requirement to pay minimum wage for their two hours of training.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by Arizona Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.

I have an employee who appears to be a habitual liar. She lies about lying. Do I have a right to ask for her marriage cert.?

This employee lies about lying and it appears to have all begun with her application where she wrote the incorrect last name. All her other personal id’s stated the maiden name and yet she was claiming to be previously divorced and now remarried. There are tall stories daily and I’m completely fed up with it. Do I have the legal right or not to ask/demand proof of marriage?

A: If her marital status is legitimately connected to her employment, then you are authorized to ask her to verify it by some legitimate means. A marriage certificate might be one of those means, but I do not think it would be advisable to demand to see the marriage certificate unless that is the only way to answer whatever legitimate employment-related inquiry you have.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by Arizona Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.

Is it legal for a former employer to tell your current they suspected you of stealing after giving a good reference upon hire?

I’ve always heard employers CANNOT give any info other than Yes/No for rehire. It has come to my attention that an employer I had committed a crime against contacted a former one who had given a good reference before I was hired, then he called again months later and said they informed him they suspected I was stealing, which I had never done before. I haven’t found anything online regarding the law on this specifically, but I am over my head with this…what is legal, and what is not regarding this issue?

A: Former employers can give any information about you they want about your work performance, as long as it is true and not covered by privacy laws. To avoid possible legal troubles with former employees, though, many employers adopt a policy of giving only neutral information.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by Arizona Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.

Is a verbal employment that has been standing for more than three years be arbitrarily changed to include a contingency?

Q: I answered a job ad specifying a salary of $40,000 per year, accepted the job at that salary and now 3-1/2 years later the employer wishes to change the compensation to match whatever amount we receive through a contract with another party, which is less than $40,000. Can I challenge that? Is a verbal employment agreement a valid contract?

A: In Arizona a verbal employment contract is “at will,” which means that either party can terminate it at any time. Most likely the employer can therefore lower your pay if the employer wants to. Your only recourse would be to quit and find another job.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by
Re-posted from AVVO Legal Questions & Answers.

Questions Employers May and May Not ask Potential Employees in an Interview

Employment anti-discrimination laws prohibit employers from asking interview questions that discriminate illegally. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, disability, age or national origin. The EEOC (U.S. Equal Employment Opportunity Commission), created by the Civil Rights Act of 1964, enforces these laws. This protection against discrimination extends to hiring, firing, promoting, setting wages, testing, training, and all other terms of employment. Accordingly, certain questions asked during interviewing may be discriminatory, and consequently, the interviewing employer may be vulnerable to discrimination suits. To interview effectively, employers should know these discriminating questions and possible alternatives to avoid such liability.

Questions to Avoid
Employment anti-discrimination laws prohibit employers from asking direct questions about race, color, sex, religion, national origin, birthplace, age, disability, and marital or family status. Some examples of questions employers should not ask are:

Race, Color, Religion, National Origin:

  • Are you a U.S. Citizen?
  • Where did you grow up?
  • Will you need personal time for particular religious holidays?

 

Age:

  • When did you graduate from high school?
  • Are you comfortable working with co-workers older/younger than you?
  • How long do you plan to work before you retire?

 

Gender & Family Status:

  • How many children do yo have? How old are your children?
  • What arrangements are you able to make for childcare while you are at work?
  • Do you have plans to have children soon?
  • What does your spouse do for a living?
  • Are you comfortable working for a female boss?

 

Disability:

  • Do you have any visual, speech, or hearing disabilities?
  • Are you planning to have a family and when?
  • Have you ever filed a workers’ compensation claim?
  • Have you had any serious illnesses in the past year?
  • How many days of work did you miss last year due to illness?

 

Possible Legal Alternative Questions:
Rather than asking directly about race, color, religion, national origin, age, gender, family status or disability, the focus of the questions should be on behaviors, skills and experience needed for the position. The questions should be used to discover and predict job-related performance of the potential employee, rather than discovering personal information. Some examples of possible legal alternative questions are:

Race, Color, Religion, National Origin:

  • Are you authorized to work in the United States?
  • Do you have any language abilities that will benefit you in this job?
  • Are you part of any professional or trade groups or other organizations that you consider relevant to your ability to perform this job?
  • Are you available to work on Saturdays or Sundays?

 

Age:

  • Are you over the age of 18?
  • Can you provide proof of age after employment?

 

Gender & Family Status:

  • Would you be willing to relocate if necessary?
  • Do you have any restrictions in your ability to travel?
  • Do you have any responsibilities or commitments that will prevent you from meeting your specified work schedules?

 

Disability:

  • Are you able to lift 40 lbs and carry it 100 yards, as that is part of the job?
  • Are you able to perform the essential functions of this job with reasonable accommodations?

 

Employers should know what questions may and may not be asked according to employment laws. Rather that direct questions regarding race, color, religion, national origin, age, gender, family status, or disability, the questions should focus on skills, behavior and experience needed for the position. Our Arizona employment attorneys at Gunderson, Denton & Peterson, PC can assist you with employment and other business related matters.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Re-Posted from: http://gundersondenton.com/employment/questions-employers-potential-clients-interview/

How Can an Employee Handbook affect the Employment Relationship?

Ensuring that the employee handbook does not create unnecessary restrictions

Employers have expectations of their employees, just as employees have expectations of their employer.  An employee handbook is one of the most effective ways for these expectations to be communicated.  When creating an employee handbook, employers do not usually expect the handbook to become a binding document, but some courts have bound employers to provisions within their employee handbook. Arizona employment lawyers are experienced in working with employers on their legal issues.

Employment at Will and the Implied-Contract Exception

As a general rule, both employer and employee are able to terminate the employment relationship at any time without giving prior notice, unless the duration of employment is previously agreed to in writing.  This is known as employment at will.  However, most states have exceptions limiting at-will employment.  One of the most common exceptions that are accepted in thirty-eight of the fifty states is the implied-contract exception.  A common application of this exception occurs when a court determines that the employee handbook becomes a contract between the employer and employee.  This can be a problem when the employee handbook has statements that appear to limit an employer’s actions.  For example, employee handbooks often state that employees can only be terminated for certain actions or that before an employee can be terminated, certain procedures must be followed.

Employee Handbook Disclaimer

Employers can take certain steps to ensure that their employee handbook does not become a binding document.  One of the most important actions an employer should take is to include a disclaimer stating that the handbook is does not create contractual obligations.  This disclaimer should be in a conspicuous location and be signed by the employee.  It is also important that an experienced attorney look over your employee handbook to ensure that it does not create any liabilities or obligations for you or your business. Attorneys at Gunderson, Denton & Peterson, PC, are available to review and analyze your employee handbook or address any other employment law concerns that you may have.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Re-Posted from: http://gundersondenton.com/employment/employee-handbook-affect-employment-relationship/

I’ve been getting unemployment now the company is appealing

I now how a phone appointment for the appeal, do I need a lawyer?

A: Probably not. Although it would be nice to have one, the cost relative to the amount at issue will probably be prohibitive. But I have met with people like you to discuss the issues that are likely to come up–so that you don’t get tripped up by procedural issues and you know what is likely to happen at the hearing. It usually lasts about an hour and prior clients have said that it’s well worth it.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Arizona Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.