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.

Non-Solitation Term Added When Resign

I am resigning from a not-for-profit academic position A for another position in the similar not-for-profit orginzation B. On the resignation letter, I didn’t notice they quietly added one sentence “we are requesting no solicit of our empolyee for other empolyment” and mistakenly signed it. They didn’t offer anything for exchange, actually they didn’t even mention there was this term when they asked me to sign and finish the resignation process.

My questions:

1) Since my organiztion is pretty shaking, many people are leaving, organization B is a good target! some of them will go there (they hread from me that B is recruiting). They will be offered position by the organization, not by me, but they will probably working with or under me, is that a problem for me?

2) One of the employees here has already recived the offer BEFORE I signed my resignation letter today, will it make any difference?

A: This question raises a lot of issues. Nonsolicitation provisions are usually enforceable if they are reasonable. In your case, I see at least the following issues:

  • You could argue that they snuck the provision in. That’s usually an argument that is not very strong. Courts say you have the duty to read what you sign.
  • You could argue that their agreement only says they are “requesting” that you not solicit. You could argue that you are denying their request and soliciting anyway–without breaking any language in the agreement. How this would be seen by the court probably depends on the other language in the contract, and other facts leading up to the agreement.
  • You could argue that they didn’t give you anything in exchange for the nonsolicitation agreement. This is called “lack of consideration.” Depending on other factors this could be a strong argument for you.
  • You could argue that if someone approaches you because Academic Institution A is failing, that’s not solicitation by you. This seems like it would be a good argument, but again depends on the facts of the situation.

It is probably a good idea to speak with an Arizona employment lawyer and have him or her review the contract to give you definitive answers on the above issues. I have handled many such cases.

* 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, Mesa Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.

Whats next step after eeoc RTS?

Filed internal complaint with documentation of sexual harassment/hostile work environment that had been allowed to go on for years. Dept. head knew it was happening due to prior employee turning over documents detailing the abuse years before. Dept. head made documents disappear enabling the the abuser to continue.I Went over Dept. heads position to H.R. to file my documentation and was fired 8 mos later after much retaliation that included one bad performance review where I was told by Dept. head that I had to many requests (am a server) and the other employees I work with (all much younger) were upset. In this economy how is bringing in repeat business a bad thing. Dept. head also claims to have had repeated employee meeting to address my performance ” issues ” but never names me.

A: Probably the most important thing to know is the deadline to file your lawsuit. I note also that you referred to younger employees. If you are over age 40, it is conceivable that you will want to explore a possible age discrimination claim when you consult with an employment attorney.

* 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, Mesa Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.

Arizona Telephonic Employment Hearing

Q: I am scheduled for a tel. hearing requested by my last employer. I honestly dont want to go against a large company who’s willing do anything to keep me from getting benefits. I’m willing to give up my rights for it. What should I do or say before or at the hearing in order to end this soon?
A:If you don’t want to appear, you don’t have to. If you don’t call in, your employer will prevail and you will be required to return any unemployment benefits you have received.If you decide to fight after all, you can expect to pay about $1,500 to an Arizona employment attorney to help handle it. I have handled many of these types of cases.

* 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 attorney.
Re-posted from AVVO Legal Questions & Answers.