This is the second blog offering five points which most employers and employees do not know which might keep them out of the court if they do.

“In my interviewing, as long as I’m asking the same questions of the white guy and the black guy and the Asian guy, it does not matter what I ask about.”  Wrong.  The general rule of thumb should be “If you don’t need to know, don’t ask.”  For instance, if you ask about present or past illnesses or disabilities, you may be engaging in disability discrimination.

“I know that if I fire an employee, I have to pay her what I owe her in 3 days.”  Not anymore.  If she was fired, you have 7 days to pay her.  If she quit, you can wait until her next paycheck.  But remember that the pay must include any non-discretionary benefits (like vacation or bonuses, as long as they were expected by the employee and not discretionary to the owner).

“Under the Constitution, what I have on my work computer is my business, not the employer’s.”  Wrong.  All communications and stored matter on and through your computer belong to the employer, not the employee, not matter how sensitive and personal.

“If an employee needs to care for a family member, I have no choice but to give them unpaid leave under the Family Medical Leave Act.”  Not true.  First, it is not just any family member: cannot be an in-law or even a step parent.  Also, the FMLA only applies to your company under certain situations, including over 50 employees.  The Act also applies to employees only under certain circumstances, including the requirement that the employee have worked 1250 hours of actual time (i.e., not PTO) during a prior 12-month period.  And the employer can require medical documentation of the condition’s seriousness before granting the leave.

I don’t have to put up with an employee who is constantly complaining outside of the company about discrimination.”  Think hard before letting that person go.  Both Arizona and federal law make retaliation against a whistleblower illegal.  For instance, the EEOC reports that almost 40% of its cases are brought against employers who retaliated against their whistleblowing employees.



The Civil Rights Act of 1964 provided protection against discrimination on the basis of sex.  But it turned out that that category was too general to protect one group of people, namely, pregnant women.  So in 1978, the Civil Rights Act was amended by the passage of the Pregnancy Discrimination Act to include pregnancy in the prohibition against sexual discrimination.


What does that mean for pregnant women?  Basically, they are entitled to the same protections that apply with respect to age and disablement discrimination.


Pregnant women cannot be denied what they would be entitled to if not pregnant with respect to hiring, firing, pay, job assignments, promotion, layoffs, training, fringe benefits (like leave and health insurance), or any other term of condition of employment.  If she experiences any medical condition related to pregnancy or childbirth, she is entitled to the same special dispensations that any other temporarily disabled employee would get, like light duty, alternative assignments, or disability leave.  The PDA also makes it illegal to harass a woman about her pregnancy to the point that the work environment becomes hostile or offensive.  It is also illegal to make an adverse employment decision (e.g., demotion or termination) on the basis of the pregnant condition.


Pregnant women are also protected under the Americans with Disabilities Act, which requires that the employer make reasonable accommodations for the pregnant woman, unless this puts the employer to an undue burden.  Also, the Family & Medical Leave Act permits the pregnant woman to take a 12 week (unpaid) leave of absence to have her baby (provided the employer has more than 50 workers and the woman has 12 months tenure).


You cannot file an action in court for pregnancy discrimination until you have first made a claim to the Equal Employment Opportunity Commission, and it has rejected your claim (which it almost always does).


This is not an action you’re going to be able to handle yourself.  You need to seek counsel from an employment lawyer.  The best advice is to seek counsel at the first sign of the discrimination.






There are many forms of illegal discrimination.  But the one that is popular today among employers is age discrimination (and its cousin, disability discrimination).  Why?  A store manager who has been on the job for 40 years is, by virtue of his tenure, making more money than a younger store manager, and if the older manager is nearing retirement age, the company may also be paying her a pension soon.  Replacing the older manager with a younger one represents a substantial savings for the company.  (In recent years, Walmart has shown a profit in most quarters not because revenue has been increasing but because it has laid off so many employees.)

But the company which is trying to get rid of its older employees is never going to admit that it is doing so.  The reason given might be insubordination, which upon closer scrutiny amounts to no more than the supervisor’s dislike for the older employee.  The claim might be one of incompetence even though the employee’s record was, until recently, spotless.  The employee, who over time has probably developed a strong loyalty to the company, may be slow to recognize what is happening to her.  But when she does see it, she is sometimes shocked, hurt and degraded so that it is difficult to stand up for herself.

But for the employee that wants to fight what is happening, she does have some weapons.  (At this very moment, we have a client who is testifying in binding arbitration after being made the victim of age discrimination, and he stands a decent chance of winning.)

If the worker is over 40, she is eligible to make an age discrimination claim.  She must satisfy certain requirements.  She must show that she is an employee rather than an independent contractor.  The employer must have 15 employees or more.  And she must show that a younger person replaced her.  And the employer can defend by showing that youth is a “bona fide occupational qualification” for the job.  (This is a fuzzy area that generates a fair amount of litigation.)

If you think you are a target, there are some things you should do.  As with all imminent litigation, stop communicating orally, but rather do everything in writing to the extent possible.  Otherwise, the court action becomes a “he said, she said” battle.  Save evidence that suggests you “more likely than not” are being run out because of your age: for instance, time cards that show you arrived to work on time, positive employee performance reviews, indications that the company is not following its own procedures for disciplinary action, or recorded testimony from co-workers explaining how you were a good worker. Get these things now rather than later.  Memories fade and documents tend to disappear.

And most important, get to an Arizona contract lawyer or business litigation lawyer as soon as possible.



Do You Have Any Protection…


          It is happening to a lot of people.  They have worked for their employer for a long time, and maybe because we like to feel good about whatever we have committed to, most of us believe in our company and work hard for it.

But the unavoidable truth is that many, if not most, companies, faced with the need to cut costs wherever possible, have found that the most effective way to do that is to cut employees.  So many who have worked for their companies are finding themselves out of work, or perhaps are still employed but see the dark cloud on the horizon. And who will these companies look to cut?  Mostly, it is those who for one reason or another are not as productive as others, or those who because of their time on the job, are making more than others in a similar position or are headed for a pension.  Sometimes, it is just the people whom the supervisor does not like.

Is there any protection?  Here are three possible areas that could provide you with some defense:

1.   The company violates an employment contract with you.  A few upper level employees may have actual contracts.  More often, the contract may be the company’s employee manual, which you are deemed to have agreed to by virtue of working at the company.  We are in a hotly-contested employment arbitration right now where the breach of contract claim is based on such a manual.

2.   Sometimes, the termination can be challenged because the company has failed to comply with its own published policies and procedure for discipline.  In most instances, the procedure is an oral warning for the first infraction, followed by a written warning for the second infraction, followed by termination after the third infraction. Companies have various ways of arguing that they are not subject to their own procedures.  Does that make sense?

3.   The company cannot discriminate on the basis of gender, religion, sexual orientation, national origin, race, disability or age.  It is the last two that show up in our office most often for the reason described above.  Companies will try to get rid of the senior manager who because of his tenure is getting paid more than a younger worker doing the same work.  And the company, by getting rid of the older worker, can also avoid the upcoming pension.  This sort of motivation is not always easy to prove, but it is illegal.

There is no question that it is tough going for employees in Arizona in the best of circumstances, and the situation is often made worse by the fact that the termination has put the employee in a difficult financial situation.  This is why most employment lawyers work for employers, not employees.

But you do have rights, and you need to see an Arizona Contract Lawyer or Business Litigation lawyer to get a clear picture of your options.



Let me tell you about two of my past clients.

Romero was a legal immigrant who had pulled himself up by his bootstraps to a place where he was ready to buy his first apartment house.  But he had three problems.  First, he spoke a little English, but not a lot.  Second, because he had done well, he thought he was smarter than his problems and the people he was dealing with.  Third, as a result of number two, he negotiated the contract himself.  Three  months later, the deal fell through because the other side had defrauded him and the language of the contract had taken away his protection. Within another month, he was involved in litigation which lasted two years and forced him to pay the firm I worked at over $200,000.


George was an astute businessman and a veteran of past litigation. He wanted to buy a struggling company and turn it around, but he had to deal with an ornery seller who, it seemed, would rather see the company go down than make a deal which would fill his pockets. George did not try to handle the problem himself.  He knew he needed an Arizona Business Litigation lawyer, so he came to us.  We developed a number of strategies to determine just how difficult the seller would be. We found out that there could be no deal without George making sacrifices that destroyed the attraction of the company.  So he walked away, probably saving himself hundreds of thousands of dollars chasing after the company, and paying us less than $10,000.

The first scenario brought the firm a lot of money. The second was far more satisfying for the client and for us.

The message is clear. When you sense a problem ahead, see an Arizona Contract Lawyer or Business Litigation Lawyer. You don’t have to commit. You can take the time to decide what is best for you . But at least you will know your options and, perhaps, avoid a much larger problem.