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Scottsdale Employment Law Blog

Don't allow yourself to be misclassified by an employer

Employers are always looking for ways to save on their bottom line, and in many industries, one of the common solutions is misclassifying employees to avoid certain employer responsibilities or circumvent wage laws. Countless lawsuits have focused on employee misclassification, and the issue has become so widespread that the Internal Revenue Service (IRS) has allocated resources to investigating companies it suspects of large-scale misclassification in recent years.

If you suspect that you are misclassified by your employer, even if they say "this is standard in our industry," you should not hesitate to speak to an attorney to review your rights and the specifics of employment laws that may apply to you. If you have been misclassified, you may be entitled to a number of remedies, like up to three years of retroactive pay and reclassification to give you access to full employee benefits like health insurance.

Non-compete vs. exclusive employment clauses

Employment contracts are a complicated matter and should receive very specific attention before you sign one, regardless of the employer. Often, when a person receives a job offer from a particularly desirable employer, he or she may want to accept a job before fully understanding the contract in from of him or her. Two elements of employment contracts that can lead to litigation later on if not properly understood are non-compete and exclusive employment clauses.

The specifics of non-compete clauses vary from employer to employer, so it is crucial to examine the details of each particular contract to fully understand the scope of the clause your potential employer wants to you to sign on for. In general, non-compete clauses demand that an employee agree to not leave a company to work for another company that does a similar type of business, or found a company that does similar business. In most cases, these clauses entail a certain time fame and have geographical restrictions, such as agreeing to not work for a similar company in the same region for up to two years after leaving the employer.

What can I do about workplace bullying?

When it comes to workplace conflicts, bullying in the workplace exists in a grey area — but that doesn't mean that you should do nothing about it. The laws that govern workplace bullying vary from state to state, but in most cases, behavior that qualifies as bullying does not cross a threshold into discrimination or creating a hostile environment. This behavior is childish and frustrating, but in many cases is not illegal.

So, what can you do about it? Even though there are relatively few methods of legal recourse, you do have options. One proactive step you can take to gain control of the situation is to educate yourself about what constitutes a hostile work environment or discrimination. In broad strokes, if a person is careless enough to be a bully in the first place, there is a good chance that he or she is not always going to keep his or her behavior within the bounds of what is technically legal. Often, bullies believe that they can flirt with the boundaries and get away with things that others cannot, which can be their downfall.

Tip pools: Are you floating in cash or financially drowning?

Most employees hope to make a good impression and work hard while performing their necessary job duties. Often, praise and compensation allow workers to feel a sense of accomplishment that makes it easier to return to work day after day. As a person who receives tips as part of your employment compensation, you may feel a particular sense of pride when a patron leaves a considerable tip for your services.

Unfortunately, you may also feel a bit let down when you have to place your tips into a tip pool intended for distribution among all tipped employees at the restaurant, bar or other facility where you work. Though this type of system may help you on shifts when your own tips fall a little short, you may wonder about the legality of such a system.

Are Arizona licensing boards out of control?

For the past five years, Arizona has been moving toward easing the burden of those who wish to pursue occupations that require licensing. Licensing requirements often make it difficult for people to find work to support their families. You may have dealt with the frustrating -- and often expensive -- prerequisites your chosen profession required before its board would grant you a license.

If you sought an occupational license, you likely paid for hours of course study, intense training, testing and other obligations that may have had little to do with the job you were seeking. Of course, you will probably need to renew that license with more fees, courses or testing every few years. If you let the license expire, you may face civil fines for practicing without a license.

Was my termination technically wrongful?

There are many kinds of wrongful termination, and often they involve an employer who acts discriminatorily toward an employee or wrongfully retaliates against him or her for taking action that may hurt the company. However, some forms of wrongful termination are somewhat less insidious and ethically questionable. Often, a termination may be wrongful because it technically violates some term of your employment contract, even if the termination was not necessarily done with any malice.

Each contract is different, so it is always important to consult with an experienced attorney in your area if you suspect that your termination was wrongful. Many contracts include language that protect the employee from firing except under certain conditions. For instance, if your contract states that you can only be fired for failing to meet certain performance goals, then you may have legal legs to stand on.

Non-disclosure agreements are negotiable, too

Non-disclosure agreements (NDAs) have become commonplace in the business world, but, just like any contract, you should always know exactly what you're signing and why. Many employers may seek to have you sign an unnecessarily strict NDA that goes well beyond protecting their own interests into hampering your career options after you part ways. With some professional legal guidance, you can evaluate and negotiate an NDA before you sign on the dotted line.

Generally, NDAs last for the length of an employee's time with an employer, and then extend for some time after the employee leaves. In broad strokes, NDAs restrict employers from discussing certain information the employer deems confidential and pertinent to the business. The NDA generally seeks to minimize instances where an employee may work for a company long enough to learn industry secrets, then take a position with a competitor and use the proprietary information to harm the original employer or weaken their business.

Summoned by the Arizona Board of Nursing? What next?

Whether you bounce out of bed at the first alarm or drag yourself to work after hitting the snooze button a dozen times, you likely reach a point in most shifts where you remember why you chose nursing as your profession. Those moments of gratification and reward can make the effort worthwhile and renew your commitment to giving quality care to your patients.

Nevertheless, when you received notification that the Arizona State Board of Nursing was initiating an investigation into a complaint against you, you may have felt demoralized and even angry. The biggest question on your mind may be, "What happens now?"

Director of Veterans Affairs hospital firing overturned by court

When it comes to your career, especially if your work involves a professional license of some kind, you should always consider fighting the charges against you, even if you do not have the support of public opinion in your favor. The truth of the matter is that public opinion and professional review boards are not one and the same, and even if you suffer a public relations fiasco, you may still succeed in beating charges and overturning your suspension or termination.

Just such a surprising turn of events recently occurred for the former director of the Veteran Affairs hospital in Phoenix, who was terminated amidst a public scandal in 2015 that involved VA hospitals generating allegedly false data around the wait times for veterans to receive care. Ostensibly, this false data was intended to improve the public image of the floundering VA, but the scandal did just the opposite.

Proving constructive dismissal

In some cases, continuing to work for an employer is simply not a safe or tenable option. This may be because of working conditions or an intolerable work environment. When employees leave the company on their own accord because they have no other reasonable recourse, this may constitute constructive dismissal. In many cases, constructive dismissal can support legal action similar to a traditional wrongful termination.

So, how do you know when you might have a constructive dismissal case? In broad strokes, constructive dismissal occurs when an employee leaves a position because of an employer's conduct. In the eyes of the law, if the conduct is documented, ongoing, and enough of a violation of rights, the employee is essentially involuntarily terminated by the employer's conduct. However, this is usually means meeting a fairly high standard of violation and proof of the violation.