Frequently Asked Questions

Charged? Call a DUI Law Firm in Phoenix, AZ Now

If you’ve been charged, don’t wait to call a Phoenix DUI lawyer. You could lose your ability to drive, lose your job, face jail time, and pay hundreds or thousands of dollars in fees by the time it’s all said and done. You’ll also be forced to pay the expense of having an interlock in your vehicle as well as probation fees. Give yourself the best possible chance by hiring a Law firm in Phoenix, AZ.

Divorce Law Firm in Phoenix, AZ

Divorce can make reasonable people act in unreasonable ways. Grief, anger, and shock can make it hard for you to know what to do. If you want to file for divorce or if you’ve been served with divorce papers, call an experienced and compassionate Law firm in Phoenix, AZ right away. While many of the issues that cause a divorce to become contentious can be settled before going to trial, it’s still important that you’re treated fairly. The best way to protect yourself during the process is to hire a Law firm in Phoenix, AZ to represent you through the process.

Arizona Is a Community Property State

Under state law, real and personal property that is purchased or otherwise acquired during the marriage is considered community property. This means that it is owned jointly (50/50) by the husband and wife. This isn’t just limited to the marital home or the family car. It includes, but may not be limited to, the following items if they happened during the marriage:

• Starting a new business.
• Acquiring ownership interests in a business, land, real estate, etc.
• Investing accounts and brokerage accounts.
• Your salary, earnings, bonuses, or income.
• Your retirement accounts; including pensions.
• Dividends paid.
• Real estate or raw land.
• Assets such as boats, cars, motorcycles, four-wheelers, art, furniture, and other property.
• Debts accumulated during the marriage.

Generally, the assets are divided 50/50. In instances where that isn’t possible, such as a home or a car, one spouse may be required to buy out the interest of the other spouse. Equalization payments, a payment made to a spouse to represent 50% ownership, can also be used in business and real estate.

There are many instances, though, where assets or debts are held in just one name. This highlights the importance of a Phoenix divorce lawyer. In situations where one spouse received a substantial gift or inheritance, a Phoenix divorce letter can help you negotiate with your soon-to-be former spouse or represent you in the court room.

The Difference Between Contested and Uncontested Divorce

In Arizona, divorces may be contested or uncontested. When a divorce is uncontested, it means that the spouses both agree that a divorce is in their best interest and they agree to the terms of the divorce. This includes how assets and debts will be divided, whether alimony will be paid, and custody and visitation of any minor children.

When a divorce is contested, it could mean that one of the spouses plans to fight the divorce proceedings. It could also mean that the two spouses cannot agree on any of the matters that must be settled. It could be both. When a divorce is contested, a Phoenix divorce lawyer helps their client skillfully navigate the process to ensure that they end up in the best possible shape at the end of the divorce.

Spousal Support, Child Support, and Child Custody

Three of the most contentious issues that Phoenix divorce lawyers address are spousal support, child support, and child custody. Here’s some basic information about each of those issues.

• Spousal support. Spousal support, also referred to as spousal maintenance or alimony, can be awarded to either the husband or the wife if the requestor can prove to the court that the money is needed for them to meet their financial obligations. Spousal support can also be awarded in legal separations, too. The court will consider several factors before deciding that alimony should be awarded.
• Child support. If you and your spouse have minor children together, child support will be another issue. Child support is a federal right of the minor child(ren). However, if the two of you agree on an amount (or agree to no child support), the judge may consider granting your request. Your Law firm in Phoenix, AZ can walk you through the child support guidelines established by the Arizona Supreme Court.
• Child custody. The court will look at the best interest of the minor child(ren) when determining child custody. It is certainly helpful if you and your spouse can get along and co-parent. Considerations for custody include sole custody, joint legal and physical custody, and primary physical custody being awarded to one parent while both parents get input on decisions. The court will consider many factors when making a decision related to child custody or agreeing to a proposed custody plan developed by both parties.

Collaborative Divorce

In certain situations, a Phoenix divorce attorney may be willing to assist with a collaborative divorce. A collaborative divorce is a form of alternative dispute resolution. It helps Arizona couples end their marriage without having to go to court. However, it does require that the couple work together and agree on how to split up the assets and debts and how child custody, child support, and possible alimony may be handled. It is not an option that works for every couple. Although the court is not involved, a collaborative divorce is a legally binding agreement. You can and should be represented by a divorce attorney.

A Law firm in Phoenix, AZ Can Help with High Net Worth

If you’re considered an individual with a high net worth, you need a divorce lawyer to help you navigate the process and protect your best interest. The more assets there are in a divorce proceeding, the more complicated the process becomes. Think about other factors in your divorce aside from debts and assets. Think about your work and travel schedule. Think about whether you plan to move out. These are factors that affect child custody, child support, spousal support, and how the division of assets and debts are handled.

Legal Separation in Arizona?

In Arizona, couples who wish to separate but do not necessarily want to get a divorce have another option. They can file for a legal separation. This means that you remain married, but that you and your spouse have agreed that separation is best. It can be used as first step to divorce or it can be used as the couple sorts out their problems. If you and your spouse reconcile, the legal separation is easily ended. A Law firm in Phoenix, AZ helps those who are interested in pursuing a legal separation.

Frequently Asked Questions

What Are the Grounds for Divorce?

In Arizona, it’s a no-fault state.  Two people that have entered a marriage can go your separate ways.  That’s the benefit of living in a no-fault state.

While all those things will be, and could be, necessary in dealing with matters as it relates to the divorce, like custody, alimony, fitness to be a parent, and decision-making responsibility with the children, all of those things could weigh in at some other time.  Broadly, to get a divorce, you don’t have to prove that a person cheated on you or that they mismanaged the money or that they abused you because it is a no-fault state.  There’s a very fine line for covenant marriages but most people don’t fit into that category.  After speaking with our Law firm in Phoenix, AZ regarding it, we’d clear up that pathway, so that you understand that just like it was your right to enter a marriage, it’s your right to get out of it.

What is the Cost of Divorce?

One of the first questions that we get from anybody that’s considering a divorce is how much is this going to cost?  That’s a very difficult question; it’s almost impossible for us to know, from the very beginning, how much it’s going to cost.  All divorces are different.  Some divorces, there’s not a lot of property involved.  In some divorces, there’s tons of property involve.  Some divorces have kids, some divorces don’t have kids.  Some divorces, the two parties can get together and they can work out a reasonable agreement.  In some divorces, they fight over everything.  It really depends on your specific situation.

What I recommend that you do is contact an experienced divorce attorney.  Come in for a consult and let us sit down with you and try to discuss what your specific situation is, and maybe we can give you a better assessment of how much it’s going to cost.

What Are the First Steps in Divorce Process?

As you can imagine, divorces are very stressful.  You have financial issues; in some cases, infidelity; in some cases, domestic violence, and so divorces can be very stressful situations.

If you’re considering going that route, or leaning towards going that route, what I would recommend that you do is gather up all your financial information, all of your records. Get your banking records, your bank statements from your checking account, from your savings account.  Find out what’s in your retirement account.  Find out what’s in his or her retirement account.  Find out all the information you can about your investments, any properties that you rent out, the current balance of your home, and whether you have equity in your home. Gather up all those statements and then come and see an experienced attorney to help you determine what course of action you should take.

How Should I Choose a Law firm in Phoenix, AZ?

To the surprise of many, lawyers often get asked what kind of Law firm in Phoenix, AZ someone should look for when they’re contemplating a divorce. I would say to any client, as I’ve said to many of our clients, and to their family members, when you’re selecting a divorce attorney, you’ll find a wide range of divorce lawyers. Should I get that aggressive, bulldog attorney? Or should I get the guy that specializes in fathers’ rights, or that represents females, or abuse victims? You’re going to see folks that profess to have a wide range of experience in all different kinds of law. When in actuality, divorce law, is just divorce law.

What’s more important than any of that stuff, you need someone that has experience in the law. What’s more important is that they understand that this is a family. It’s two people’s lives who have been joined together. They’ve in some cases have had children together. This is not just representing someone and collecting a paycheck. It is trying to piece together the family. Sometimes family lawyers forget that these people still have to be involved with each other, especially those that have children, have to be involved with each other long after the Decree of Dissolution has been issued by an applicable court of competent jurisdiction.

These people still have to get along, their children, their grandchildren, and their family members that don’t go away. You have to have someone who understands the dynamic of the family, that are sensitive and empathetic to the issues, the concerns, and to the needs, but that has the ability to balance, and deal with the emotions that come along. Not only to counsel as it relates to arduous representation but sometimes to counsel the client. It’s a very arduous process. It becomes an emotional process sometimes for even the lawyers. We have families ourselves. We have children ourselves and spouses ourselves. You really want someone that has that great balance, that legal prowess, that professional decorum to themselves, but that empathy that understands that this is the dynamic of a family, and that can meet that client where they are emotionally.

Oftentimes, that client being represented by that lawyer is a part of the healing process of them moving forward in their lives. I would always tell someone that’s looking for family law, look at somebody that knows how to aggressively represent you, but that also knows how to walk that fine line and that balance into making sure that they are being holistic in their counsel to you, and they understand the dynamic of the family. Again, you’ll have a spectrum of lawyers out there.

I think you want someone that can occupy that middle space and can represent you arduously, make sure your claims are forwarded, but understand that you at the end of the day are a human. This is your family whether you’re glad to get out or whether you still have some hesitancy in getting out. Each case is different. Have that Law firm in Phoenix, AZ that you can connect with, that you understand, that understands where you are, and what your interests are. They can represent that interest and help you move forward to the next place of your life.

Can I Hire Smith & Green for Divorce on Contingency?

The simple answer to that question is no, we can’t.  There are certain laws in the State of Arizona that prohibit us from doing that, so no we can’t take any cases on a contingency basis.

There are things that we can do, though, to help you with the costs.  We understand that divorces are stressful and it’s very expensive in a lot of cases.  If you have concerns about having money upfront or how much you can afford and all those sorts of things, we can do our best to work with you.

Should I Leave the Marital Home?

The first thing that you must look at is safety.  If there is a situation in the home where there is abuse, be it physical abuse, sexual abuse, mental abuse, those are personal considerations that are personal to the individual.

I would never tell anyone to stay in a marital residence if they’re being abused in any type of way.  Your personal security and safety are of great importance to us as a law firm.  It should be to any lawyer that would be representing you in a family law matter.  If your safety is at risk, I would advise you to consider being elsewhere while the divorce proceeds.

That doesn’t mean that you lose any interest in the house that is owned or anything.  The interest that you’ve acquired in the house would remain, whether you’re living in the house or not.  Most of the time, vacating the marital residence becomes an issue prior to divorce being filed if someone has vacated the marital residence for some period of time.  That’s the thing first thing, is your safety.

The second thing is that if the marriage involves children. In some states they call it custody; in Arizona, we call it decision-making responsibility, as it relates to the children.  Where the children are; they’re safe if the two parties can live in the house together while going through the divorce, for the sake of the children.  Oftentimes, this looks good in front of the court because there are certain factors that the court is going to look at when it comes down to parenting time and decision-making responsibility.  The children, are they safe?  Is there a lot of bickering going back and forth because the well-being of the children takes priority?

The third area I would certainly advise anyone to look at is the financial resources of the parties, based on the standard of living.  If you’re used to living in a mini mansion in Scottsdale and you’re leaving and the other party is the sole breadwinner and you have no resources to move, well you’re not used to living in a Motel 6 or an extended stay.  These are all things that you have to consider.  The financial resources, of course, do not outweigh your safety and security.

Some of it can be addressed with temporary orders from the court, should you have to leave the marital residence and one party is the dominant breadwinner.  The court can issue temporary orders, temporary spousal maintenance, temporary child support, to make sure that you have enough resources to provide for yourself, should you have to leave the marital residence.  This is something that you would certainly want to talk with your Law firm in Phoenix, AZ about.

It’s important that your Law firm in Phoenix, AZ is not only interested in the legal matters and underpinnings of the court, but they have an understanding and a grasp of life, and that this is your life, it’s your family, it’s your children.  This is where you’ve raised your children.  Someone that is empathetic and sympathetic to the entire situation that could counsel you accordingly.  An experienced compassionate attorney that cares about their clients would do just that.

Should I File for Uncontested Divorce?

What one would presume that most divorce cases are arduous, tensions, fighting, there are several divorces that proceed through the courts here in Arizona that are uncontested divorces.

An uncontested divorce is when the petitioner files the claim for a divorce.  You must state what you want and how you want the property divided, it relates to children that are involved, division of property and community property and personal property.  That complaint is served on the respondent party.  If the responding party does not contest any of those issues, virtually that is what becomes an uncontested divorce.  The other party is saying I agree with everything that was filed in the petition; give them what they want.  They sign off on it and it becomes an uncontested divorce.

That divorce sits with the court for the statutorily mandated timeframe, after which the divorce decree is issued, and the divorce becomes final; the two parties go their ways.  That, in a nutshell, is an uncontested divorce.  These are wonderful for parties that are getting divorced because one party walks away with everything that they want, and the other party doesn’t contest it.  Apparently, they even have some agreement to it.

Where uncontested divorces become an issue is later down the line, when the person could possibly have second thoughts about what they did not contest.  In some of those matters, you have to attempt to bring those matters up again, but, again, those are the least expensive divorces and there’s a fine line of that process through courts here in Arizona.

What Should I Know About Children in Divorce?

This is a very tough process for the parents. It’s a very tough process for the children regardless of their age range because things are about to change for those children. Things are about to change for those parents. Arizona has codified, within its revised statute, certain requirements that even attempt to speak to that arduous effect that this would have on children. For example, in Arizona, if there are children involved in a divorce, there’s a mandatory parenting class that you have to take. If you don’t take that parenting class, you could waive your right to parenting time, and/or decision-making authority with your children. That’s how strict Arizona is because it becomes a tough process with the children.

Some people ask, will my children have a say who they stay with? Who’s going to pay child support? Who are the kids going to spend the night with? Who’s going to be the custodial parent? All these are answered during the divorce. There’re several factors that are considered.

Oftentimes, they don’t understand that broadly you cannot delineate out certain things as it relates to the kids in the Prenuptial Agreement. The court decides for what’s in the best interest of the child. What you agree to in a Prenuptial Agreement may not be what’s in the best interest of the child now.

There are certain things that the court will want to see: A Financial Affidavit of Records. They would want to get information with the child. There’s no hardline rule as to what the court would do. The framework is what’s in the best interest of the child, making sure that the child’s life stays as consistent as possible.

You would want to sit down with the Law firm in Phoenix, AZ. They would do a thorough interview with you about the child, about where the child goes to school. Do the parents live in the same neighborhood? Do they live in the same state? There is a myriad of things that must be looked at when deciding about the children. What’s important to the divorcees that are going through the process is that divorce can have a long-lasting, substantial, and negative impact on children if not handled properly. We try to walk our clients through that process with a great decree of sensitively but also representing the interest that our clients want. You want to sit down and discuss all these factors with an attorney and come up with a strategy that’s in the best interest of the child because that is what the court is going to use broadly as a standard in making its decision as it relates to the parenting time, and as it relates to decision-making authority, or what’s commonly known as custody in other jurisdictions.

What is Equitable Distribution?

When it comes down to divorce, Arizona is a community property state.  That virtually means that any property that is acquired during the marriage becomes property to the community, or the two parties.  It belongs to the two parties; it becomes the community property.  That includes things like wages.  If you’re working a job, even though the paycheck comes in your name, your wages during the marriage is considered community property.  If you bought a home, the marital residence or a subsequent property elsewhere, rental property, so as long as that property was purchased with funds that were from the marriage, from employment or some type of asset from the community, it becomes community property.

There’s an exception to that.  Say for instance, you owned a piece of property that’s sold as separate property prior to the marriage.  You sold the property and you intended that money to remain separate property, then there could be some division of property.  Broadly, anything that was acquired during the marriage is going to be considered community property.  That’s income, properties, assets, boats, cars, jet skis, businesses, all that stuff’s going to be considered community property.

This is important because the other party has an interest in community property, whether the other party is a stay-at-home parent, whether it was income that they earned, so it could be a retirement account. That is community property.  It’s a part of the assets of the community and the other party to the divorce has an interest in that, so you would want to keep track of all those things.

Do I Keep Property Purchased Prior to Marriage?

Oftentimes, we see clients that come in for counsel regarding a dissolution of marriage and as it relates to that marriage, one party, or both parties, had property, be it through an inheritance, or they won the lottery or they were just well off before they got married, it’s property that they accumulated prior to the marriage; that’s their persona property.  Then they’re married for whatever period of time and then they go through a divorce.  While they’re married obviously they have some community property; their job, they may buy another marital residence, a house, a boat, motorcycle or whatnot.  The question becomes when one party states a claim against, or claims to have some interest, if you will, in the personal property of the other party that was owned by them prior to the marriage.

The broad rule is that your personal property prior to the marriage remains your personal property, unless it was transmuted into community property and it was based on that understanding.  That’s the broad rule.  Obviously, sometimes there’s co-mingling of the personal property and the community property.  This is why I encourage people early on to make sure they trace the property.  If the co-mingled property can be traced back to personal property, then broadly it would be separated out and remain personal property.  It’s without controversy in this jurisdiction that what’s community property remains community property.

You would want to list out what is personal, what you believe to be personal property.  If there is an interest that the other party claims in something that you deem to be personal property, then the Law firm in Phoenix, AZ would look at that and then they would go through tracing process and trace that property back, to see if it was transmuted into community property, or if it in fact remained persona property.

This requires the skill of a Law firm in Phoenix, AZ to look at that and determine whether that remains personal property or if it’s been transmuted to community property.  You would want to seek out a skilled family lawyer to help you through that process, to make sure that you don’t lose any interest in property that is actually a personal property and should remain personal property.

Will I Go to Court for Divorce?

The broad answer to it that I tell them when someone asks me am I going to have to go to court, believe it or not, I say it depends.  There have been plenty of divorces that have been resolved without making a single court appearance.  Those are the divorces that are more amicable; those non-contested divorces, or things that could be resolved in mediation.  The court appearances are a whole lot less than those appearances that involve multiple petitions for contempt, evidentiary hearings, status hearings, return hearings, all the various hearings that could be ordered by the court all the way up to trials.  Some divorces go all the way to trial.

You don’t get a jury in a divorce trial; you get a bench trial.  It’s just with the judge because, of course, the sensitive nature of the information that is being shared.  Are you certainly going to have to go to court?  Maybe not, it depends on your divorce, how your divorce proceeds to the court.  Is there a possibility that you will have to go to court?  Absolutely, there’s a possibility, but the beauty of going to court, it’s when you represented.  You’re not representing yourself.  You go in with a skilled Law firm in Phoenix, AZ that does the majority of the talking for you, except in cases where you will have to testify.

Again, in less contentious divorces, or those that are less contested, the probability of that happening is a lot less.  With the highly contestable and contentious divorces, there’s a high probability that you will have to go to court; you will have to testify.  It’s a case-by-case basis.  There’s no definite yes; there’s no definite no.  It depends on your case, but having great representation is necessary either way.  Great representation can alleviate some court appearances, but it also can provide that screen of safety during those court appearances, to make sure that you’re ready when you have to make an appearance before the court.

Can I Get Spousal Maintenance? Call a Law firm in Phoenix, AZ

In the initial discussion with the clients regarding dissolution of marriages, one of the questions that often come up early on is about spousal maintenance.  Spousal maintenance is not to be used for division of property, broadly, as it relates to division of property of community property.  Two separate concepts.

During this marriage, whether it was two years or 20 years, these parties have become accustomed to a certain standard of life, a certain standard of livelihood.  One of the concepts of spousal maintenance is to address that.

Then also if there was a party that was the non-dominant party in the relationship, or not the breadwinning party.  If the person was a stay-at-home mom or stay-at-home dad while the other party worked or went to school and got a doctorate degree.  The court looks at all these things to determine, what does it take to get this party, the non-dominant party, if you will, up to the standard of living that they had become accustomed to for this particular period of time, or to get the, to where they can care for themselves.

What the court’s interest is, is not leaving one party out in the wind while the other party runs away with the bag and runs off.  That’s the concept of spousal maintenance.  What is the maintenance that is needed to ensure that this spouse gets to the place where they can care and provide for themselves?  Sometimes as it relates to spousal maintenance, the parties agree on spousal maintenance for a certain amount of money for a certain term of years.  That could be agreed to in a pre-nuptial agreement, a post-nuptial agreement or in a divorce settlement decreed pursuant to some type of mediation or procedure.  They could come to some agreement as to what the spousal maintenance should be.

Oftentimes, you see spousal maintenance being awarded half the term of the marriage.  If you were married for nine years, by the time you see it for four and a half years or half the term of the marriage, or what’s reasonable.  In some cases, that’s not reasonable and so you see a myriad of things.

Your Law firm in Phoenix, AZ will craft a framework to forward the arguments that you would want to make, as relates to your need for spousal maintenance or the other party’s request for spousal maintenance being unreasonable and being too much.

Can I Change My Last Name?

Most of our female clients that come in for a divorce want their maiden name to be restored to them after the closing of divorce. That’s a very simple process and we don’t see much contention involving that. In fact, you’d be surprised that most men want their spouses to take back on their maiden name and not keep the family name. We don’t necessarily see a lot of contention involving that. It’s a simple request that’s made to the court for the name to be restored. It’s issued as a part of the Divorce Decree. Then, of course, that female client would go through the process with Social Security, and the Motor Vehicles, and the other appropriate government agencies to get the name restored back to the maiden name.

If there becomes a contention involving the name where the husband wants the name removed from the spouse and her name restored to her maiden name, but the female spouse does not want to give up the married name, then that’s a separate analysis. We must determine what interest she has in the name. There’re legal underpinnings that have to be addressed with that you would obviously need a Law firm in Phoenix, AZ for to help you get through those process. Largely, we don’t see a lot of those cases. It’s a simple request that’s made to the court in the process of the divorce. We don’t see a lot of pushback with those. That’s something you want to discuss with your Law firm in Phoenix, AZ to make sure early on that that’s understood that you want your maiden name restored to you.

How is Child Support Calculate?

One of the main questions that we’re often asked by clients regarding divorces involving minor children is how much child support they’re going to have to pay. We are fortunate here in Arizona. The court virtually uses a child support calculator. It’s accessible on the court’s website. It’s the same one that we use as lawyers. It involves inputting some information that is requested regarding the financial status of both parties: how much they paid, who is the child staying with, what’s the division of the parenting time, who’s paying for medical insurance, health insurance, school, extracurricular activities, who’s paying spousal maintenance or not. There are several things put into this formula and it spits out a number of who’s responsible as it relates to paying child support.

If the numbers are greatly skewed or they don’t come out as reasonable as one party thinks they should because of income disparity, sometimes a party can request a deviation from the child support calculator if they figure the amount should be more or should be less. There are some things that must be worked through with that. Again, one of the big factors is parenting time. If you don’t have any parenting time with the child, there’s a high proclivity that you’re going to have a higher child support amount. The more parenting time you have, there’s a great proclivity that the child support amount is going to be less. There are several moving pieces that must be analyzed to determine how child support is calculated.

The incomes of the parties and the like all must be analyzed and determined. There is no blanket number that can be given. It’s not that simple. The factors must be put into the formula and the formula gives an answer. Then arguments are made based on whether that number should be increased or decreased based on external existential circumstances early in the process. Either party can motion the court for temporary orders as it relates to a child support. Again, those are temporary. This is something that the court puts in place for now until the final numbers come out later on with the Divorce Decree. In any case, there would be a number of factors that could be considered. You want to sit with your Law firm in Phoenix, AZ. They will ask you the appropriate questions to determine what information needs to be gathered and input into this formula and give you an idea of what the court would order as it relates to child support.

How Do I Handle Court Order Violations?

After divorces, lawyers are often revisited by former clients because the former spouses in the divorce proceedings have violated the court’s order.  They’re not paying child support.  They’re not paying the required spousal maintenance.  We often have clients ask, what are our remedies?  What do we do?

The broad answer is you file a petition for contempt or if it’s at the end of the divorce, a petition to enforce the court’s order.  That brings the matter before the court, to say that either this person has violated an injunction that the court has issued, or if that’s subsequent to a divorce, that there was an order issued by this court that this party has not abided by, and you want the court’s intervention to force that party to obey the court’s order.  That process would proceed through court on the tracks, as appropriate.

Ultimately, if it’s not able to be resolved or the person doesn’t bring themselves into compliance, would be heard before a judge.  There could be sanctions set in place.  The person could be held in contempt of court.  There could be interest added to whatever fees or process.  They could be required to pay attorney’s fees.  The issue is, is that if the court has issued an order, a preliminary injunction, it should be abided by.  These are courts of law; they can hold you in contempt of court or hold you in violation of the court order.  Of course, it doesn’t look good for that party in front of the court.

If you feel like you have some type of concern, where a court order is not being followed, or an injunction has been violated, you should probably contact your attorney immediately, so that they can look into it, find out if, in fact, that order has been violated, or if that injunction has been violated, so that they could either pursue the other person and tell them to come into compliance or get the court involved in making sure that the court orders are followed or the injunction is kept by the order.

Employment Law firm in Phoenix, AZ

Do you feel like you work in place where you are no longer safe because of the way others act? No one should have to feel threatened or frightened of going to work every day. Federal and state labor law is supposed to ensure that employees are treated fairly by employers. Sadly, it doesn’t always happen. Many employees are afraid to talk with a Law firm in Phoenix, AZ. They don’t want to lose their job. They want to make sure they can find work in the future. The bills certainly don’t stop coming in if you’re wrongfully terminated or if you’re forced to leave because of unchecked harassment. If you believe that your employer may have violated federal or state law, contact a employment Law firm in Phoenix, AZ to discuss your potential claim.

The 6 Most Common Forms of Employee Mistreatment

Labor and employment law may be handled at both the federal or the state level. It covers a lot of ground including; child labor, FMLA, federal/ government contracts, healthcare plans, retirement, safety standards, and work authorization for immigrants. Of course, that’s a partial list. The 6 most common forms of employee mistreatment include:

1. Not meeting minimum wage requirements
2. Ignoring overtime pay laws
3. Misclassification of employees
4. Workplace discrimination
5. Workplace retaliation
6. Wrongful termination

We’re going to explain the basics of each of the 6 most common forms of employee mistreatment. If you believe that you’ve been mistreated by your employer in one of those ways or in another way covered by federal or state law, contact a Phoenix employment lawyer to discuss your potential claim. These claims must be filed within a certain amount of time after the incident occurs. Missing that window could result in you losing your potential legal rights.

Not Meeting Minimum Wage Requirements

In most of Arizona, the minimum wage that can be paid to an employee is $10.50 an hour. The state is scheduled to increase the minimum wage to $12.00 an hour by 2020. All employees are entitled to earn the full minimum wage set by state or federal law, regardless of whether they are entitled to tips. Federal minimum wage is currently $7.25 per hour. Employees who are paid in tips can make as little as $7.50 an hour provided that they earn enough in tips to receive the state’s minimum wage of $10.50 an hour.

Failure for an employer to pay at least minimum wage is a violation of Arizona’s labor and employment law. Depending on circumstances, the employer may also be in violation of the FLSA. The FLSA sets the federal minimum wage.

Ignoring Overtime Pay Laws

The FLSA has another job besides setting the federal minimum wage. It also creates standards related to overtime pay. Employers are required to provide overtime pay to nonexempt employees who are covered by the FLSA. That includes hourly employees and even some salaried employees. Overtime pay is set at the rate of 1.5 times of an hourly employee’s rate if that employee works more than 40 hours in a week.

Executives, administrators, and other professionals who earn at least $455 per week are exempt from overtime under Arizona law. So are certain salespersons (such as those who set their own hours), certain IT/ computer employees, independent contractors, certain transportation employees, employees of farms, employees in the agricultural industry, and employees who live with their employers (such as a cook, housekeeper, or nanny).

Don’t dismiss your potential claim. Certain types of professional employees, such as nurses, are entitled to overtime pay. To learn more and find out if you should have received overtime pay, contact a Phoenix labor and employment Law firm in Phoenix, AZ to schedule a consultation.

Misclassification of Employees

How your employer classifies you can affect your legal rights. Many employers know this and purposefully misclassify workers to avoid certain responsibilities. There are three classifications used by employers: exempt employees, nonexempt employees, and independent contractors.

An exempt employee isn’t entitled to overtime pay; they’re also not protected by the FLSA. For an employee to truly be exempt, they must fall within a certain category of work or earn more than $455 per week as a salaried employee. Again, though, don’t let the thought of being a salaried professional make you automatically believe that your employer properly classified you. The FLSA doesn’t say all professionals who make salary are automatically exempt. A Phoenix labor and employment lawyer can determine whether you’re properly classified as exempt.

A nonexempt employee is an employee who is entitled to overtime if they work more than 40 hours in a work week. They generally earn less than $455 per week, but they may earn more.

An independent contractor is someone who performs specific tasks as an employee might, but they’re not classified as an employee. As such, they aren’t protected by the FLSA. They are required to handle their own taxes. They’re not entitled to unemployment or workers’ compensation. Under Arizona law, when an employer hires an independent contractor, they must secure the designation of an independent contractor by having the worker sign a declaration of independent business status.

If you believe that you may not be properly classified by your employer, reach out to a Phoenix employment lawyer who focuses their practice on helping employees.

Workplace Discrimination

Workplace discrimination covers a wide set of actions. It can involve hiring or firing (although we’ll talk more about wrongful termination on its own), how job assignments are made, how much employees are paid, how promotions are given or denied, opportunities for training, and available fringe benefits. Discrimination can be a violation of federal and state law.

Under Title VII of the Civil Rights Act, workers are protected from discrimination based on their sex, race, color, national origin, or religion if the employer has 15 or more employees. Employers may not refuse to hire or fire someone or discriminate against them (including their pay, conditions of employment, benefits, and privileges) based on those five protected classes. They also may not segregate or otherwise classify an employee to deny them employment opportunities or to otherwise impact their status as an employee.

Another form of discrimination in the workplace is sexual discrimination. The Equal Pay Act of 1963 is a federal law that says employers may not discriminate against employees (including what they’re paid) based on the employee’s gender.

Age discrimination is also prohibited by law. Employees who are 40 years of age or older are protected from being discriminated against in hiring, firing, or withholding of a job promotion.

Individuals with disabilities are also protected under several federal laws when it comes to employment. It is considered discrimination to create qualifications simply for the purpose of disqualifying someone with a disability. Employees may not deny a disabled employee the opportunity to be a member on a planning or advisory board. There are many other ways that employees and individuals with disabilities may be discriminated against. If you would fall under the umbrella of disability and believe that you were discriminated against, don’t wait to contact a employment Law firm in Phoenix, AZ to learn more about your potential claim.

Workplace Retaliation

Sometimes, employers don’t do the right thing and employees must be brave and speak up. This should be greeted with an open attitude and a desire to change. Yet, many employees are punished via workplace retaliation. This is also common when an employee files a complaint for discrimination or harassment. Retaliation is an act that punishes an employee for enforcing their legal rights. The most common versions of workplace retaliation include immediate termination without an explanation, demotion after filing a complaint, being subjected to a pay decrease, threats, and loss of a rightful promotion.

Arizona state law also protects employees from retaliation. Document the incident or incidents when they happen and contact a Law firm in Phoenix, AZ.

Wrongful Termination

Arizona is an at-will state for employment. So, employers may fire an employee if they have good cause or no cause, but they can’t fire someone for a bad cause. A bad cause would be because they’re acting in a way that is discriminatory, retaliating for whistleblowing by an employee, because an employee refuses to break the law, or for other reasons.

If you believe that you were wrongfully terminated, contact a employment Law firm in Phoenix, AZ to evaluate your potential claim.

Frequently Asked Questions

How Should I Choose an Employment Lawyer?

Unlike with some other areas of law, employment law is such a specific, fine line. It’s such a narrow pathway of law, particularly discrimination law, that you really need someone who is experienced in those laws. Someone that has experience with the government agencies, the EEOC, Department of Justice, Department of Labor, and that are the gatekeepers for these laws. Again, you must have Notices of Right to Sue before you can just march into State or Federal Court and file suits against employers for potential violations of the law. It’s in this particular area of law I believe more than any other of law, you need someone that is experienced with discrimination law, with EEOC law, and with those agencies.

One of the things that we pride ourselves on at Smith & Green is that we have substantial experience in those areas, particularly with the EEOC, with the Department of Justice for Arizona dealing with the US Department of Justice, and other federal agencies. You will definitely need that experience from someone that understands the sensitivity of the matter. This is your livelihood. This is food on the table for your family. When someone has an impact to their employment, it seems like their world goes upside down. You want someone that is experienced, that is assertive, aggressive when need be, but also that understands the compassion behind someone when their life has been upset.

What Should I Bring to an Employment Law Consultation?

One of the things about investigations and a part of the initial process of any legal representation is investigation. It’s no different with employment law. What a client should bring, is all of the information, the evidence that they have gathered, or anything that is related to that cause of action. You’d be surprised how many things clients leave at home that are related to what happened but they don’t think is significant. A trained eye of a skilled lawyer would be able to look at something that you may think is insignificant but because they know the elements and the factors of the law and the case law associated with certain things, what you may consider to be insignificant could be very significant.

I would urge you to bring everything that you could even think might be evidentiary. Let that lawyer work through the information with you. The items, the videos, the recordings, the documents, the write-ups, the doctor’s notes, whatever it may be that’s associated with it so that they can determine what’s evidentiary. What is related to this matter that they would need to help prove your cause of action.

Remember, after the EEOC process, there’s always a great possibility that the matter will be filled in court and you will need that kind of evidence. You’ll also need information, names, addresses for your potential witnesses; your dates of employment; paycheck stubs if it involves some depreciation in pay or exclusion of pay. If it was an ADA issue that involves some type of medical issue, you’ll need medical records then, and doctor’s notes, and contact information. After that initial consultation and meeting with that lawyer, they’ll also be other things they will instruct you to bring. That’s to make sure that your claim is pursued holistically and you have all of the information you need to make your claim successful with the EEOC and subsequently with the court should that become necessary.

Questions About the EEOC

What is the EEOC?

The EEOC stands for the Equal Employment Opportunity Commission. It is a government entity that is run by a group of commissioners. It’s established under the laws of the United States of America. It’s a federal agency.

They are charged with the responsibility of monitoring. They are the gatekeepers for lawsuits against employers that meet certain criteria that is based on a very few specific set of laws. In fact the set of laws and statutes that the EEOC is responsible for being the gatekeepers over is really only five laws. It’s the Title 7 of the Civil Rights Act of 1964; the Americans with Disabilities Act of 1990; the Age Discrimination in Employment Act, and the Equal Pay Act; also the Genetic Information Act, which is commonly referred to as GINA. Out of those five set of laws, predominantly is where we derive what we call equal employment law.

The EEOC is a third-party neutral agency that is charged with the responsibility of investigating claims against employers, and/or receiving these claims from employees that feel like they have been discriminated against or treated unfairly, based on those five sets of laws. It’s out of those laws where you get equal pay issues, where males maybe being paid more than females, where you get sexual harassment claims that fall under Title 7, disability.

Virtually what happens, as those claims are brought before the EEOC and there are certain statutory limitations that apply, they’re charged with investigating those crimes. They have a team of investigators that will investigate those claims and see if there was actually a violation of the law. If there’s a violation of the law, they’ll issue what they call a cause finding on those laws and then they pursue – if the claim has that type of merit, they pursue the employer for the employee. If they’re not able to mediate or conciliate the case, they’ll issue a notice of right to sue, which gives you the right to go sue the employer in state of federal court on your own.

One of the reasons why the EEOC is important is that based on one of those five laws, you cannot just walk into court and sue an employer based on one of those five laws. You would have to get a notice of right to sue, as it’s called, from the EEOC. Once a notice of right to sue is issued, you would have 90 days from that time to file a lawsuit against the employer in a federal or a state court.

How Do I Bring a Claim to EEOC?

If you feel like you’ve been subjected to some form of discrimination and you have a claim against your employer for harassment or discrimination, rather than going to EEOC yourself, we suggest that you see an experienced employment attorney. If you come to our office, one thing that we will do is sit down with you. We will interview you, gather all the facts related to your case, determine whether you have a good case, and counsel you as to whether we think you should pursue that matter with EEOC. Then on top of that, we will draft the charge for you. We will submit the charge to EEOC personally. Then we will follow through with EEOC and all the steps that take place after that. Our recommendation to you is not to go to EEOC and let them draft the charge in the way that they think is best for you, but to come to an experienced employment attorney that can help you with that.

What is the EEOC Claim Process?

The EEOC’s process is a very distinct process that must be followed, and it’s important that the process is followed because once the matter is filed in court, one of the reasons the case could be dismissed is if all of the administrative proceedings have not been adhered to. Understanding the EEOC process is critical. A lot of lawyers that are not experienced in that area don’t understand the EEOC process. We’re fortunate here at Smith & Green that our managing partners were former EEOC investigators, so this is the world that we lived in for some time, understanding the process.

Virtually what happens with the EEOC is, once you’ve voiced your concerns with the employer, you file a claim with the EEOC. That could be done either by walking in or online. You schedule an interview with an investigator. This is when you lay out your concerns as to why you feel you have been discriminated against, based on one of those five laws.

It’s important to note that some of the claims have a 300-day statute of limitation on them, other claims have 180-day statute of limitation on them, which literally means you must have that claim filed with the EEOC or it’s a fair agency, which is a state agency that’s charged to collect those types of claims or address those claims. In Arizona, it happens to be the Arizona Department of Justice.

Not all employers qualify under the statute of the EEOC. If you’re going to file a race discrimination claim because you feel like you are being treated differently than people who are of a different race, sex, religion, or skin color than you, that employer has to have at least 15 employees. That’s the broad rule, at least 15 employees to qualify, to be subject to the rules or the requirements of Title 7. If that employer only has six employees, they wouldn’t qualify under Title 7.

Now there may be some other local codes that could hold that employer accountable, or state codes that could hold that employer accountable. Under the federal statute, Title 7, they would have to have 15 employees. If the employer only has one employee and has only had one employee for an entire year, Title 7 is not going to be your statute of choice to pursue under. That’s just an example of how the EEOC works. They would look at this to make sure that that employer is actually subject to the law of Title 7 or some of the other laws.

You would go down to the EEOC, schedule it over the phone or you could do a phone interview, or you can come to a lawyer’s office that has all the information. They would draft up a charge for you, referred to as a Form 5. That is the charge of discrimination. It is a plain and simple statement of what has happened to you.

Once that charge is filed with the EEOC, the tolling time stops at that time. In other words, time is tolled at that point; the statute of limitation, if you’re within that 300 or 180 days, is suspended. Some of these cases go on for years and years. It’s suspended at that point. You are safe. At some point, you will be able to file in court, once you receive a notice of right to sue from the EEOC. At that point, the EEOC generally has about ten days to make sure that that claim is served on the employer.

If that investigator determines that the claim has merit to it, then that employer will be required to submit a response, or what the EEOC refers to as a position statement. A lot of times, especially with bigger employers, they will hire outside counsel; some of them have inside counsel.

This information is submitted to the investigator and the investigative staff at the EEOC, to either conduct interviews or analyze the evidence submitted by both parties. They can conduct fact-finding conferences where they bring the parties together, sort out the facts and then that yields their determination. They can interview managers. They can interview your witnesses. They can request information from the employer like records and different things, pursuance to the Freedom of Information Act.

Prior to investigation, there is something that can happen, which is called mediation. The case is referred up to mediation, depending on how it is. Not all cases qualify for mediation, but some cases do qualify for mediation. This is where the case goes to another division of the EEOC, the non-investigative division. They try to resolve those claims. They bring the two sides together with a EEOC mediator. Some EEOC offices have contract mediators they bring in to sit down with the parties, to try to mediate those claims.

If a resolution is met in mediation, then the EEOC can enforce the mediation agreement. Oftentimes, this is preferred because litigating these employment law cases could be quite lengthy and could be quite expensive. It’s like David versus Goliath. You have this big company who has deep pockets, and this employee who has legitimately been treated differently. Mediation is always something that I would recommend employees and employers to look into because it’s a chance for you to resolve the issue. Nobody is going to leave the mediation feeling like they necessarily won, but again, it’s that middle of the road.

If the case is unsuccessful in mediation, then it pursues in the investigative track. The EEOC oftentimes gets behind because of staffing issues, so it could take a case a couple of years to resolve or to get to some type of conclusion. At the conclusion of that case, the EEOC investigator, or the director of that particular office, will sign off on the decision. They will determine that there was a cause finding, that the law was violated or there was a no-cause finding. In either case, they can issue you a notice of right to sue.

If they have a cause finding, then they take the case into conciliation. Again, it’s similar to mediation but once the EEOC determines that the law has been violated, at that point is when they lose their neutrality. Throughout the entire process, remember that the EEOC is a third-party neutral agency; they’re not for you, they’re not for the employer. They’re just gathering the facts and making a determination.

Again, they are a third-party neutral agency. That is the big misconception with most employees. That you’re going down to the EEOC and they’re going to fix it. Well, that’s not true. They will look into it but it’s not until they find that the law has been violated where they shed their neutrality and then they tell the employer, we believe that you have broken the law in this case. We want you to come to conciliation with us and try to resolve that.

Again, there are caps and statutory requirements to things that they can ask for and things that they can’t ask for. It’s all controlled by the law. If conciliation is successful, then the charge of discrimination is resolved, no lawsuit is filed. If the conciliation is unsuccessful, then the EEOC can opt to sue the employer on the employee’s behalf. Those are the great minority of cases. Nine times out of ten that does not happen, unless there is a class of people or it’s some specific segment, element of law that needs to be more defined. Then the EEOC will have some of its attorneys pursue on behalf of that employee, if it’s egregious.

I’ve seen several occasions where the fine attorneys over at the EEOC will pursue a matter for the employee. If they’re not able to resolve it in conciliation, then the EEOC will issue that notice of right to sue and the cause finding, to the employee, instruct the employee that they have 90 days to file the matter in court and they have a finding from the EEOC that the EEOC believe that the employer has broken the law.

This is the point where most people go looking for a Law firm in Phoenix, AZ and say, I got 90 days to file this in court. It’s beneficial to have a lawyer early in the process; especially lawyers who are experienced with dealing with the EEOC. Many attorneys will turn you away.

What is the EEOC Conciliation Process?

The EEOC conciliation process is very similar to the mediation process. The conciliation process happens after the EEOC has determined that the employer has violated one of the laws. Before issuing a notice of right to sue, the EEOC will invite the employer again to conciliation, which is very similar to a mediation. The only difference really is that the EEOC starts requesting specific things.

If the employee is not represented by counsel, they’ll start requesting specific things because they have determined that that employer has broken the law. It’s at that point, where the EEOC, who in its normal course of business, is a third-party neutral agency. Once they determine a cause finding, they lose their neutrality and they become, for the employee, once they determine the law has been broken and they enter the conciliation process.

If the conciliation process is successful, then the case is resolved. Whatever damages or relief that they come to an agreement on, they’re awarded to the employee. If it’s unsuccessful in conciliation, then the notice of right to sue is issued and the employer hires their own attorney, which, hopefully at that point, they’ve already had an experienced attorney in that area and they proceed to court on the matter. Or in some cases, the EEOC chooses to take the matter to court on behalf of the employee. If the employee already has counsel, the EEOC sometimes co-counsels with the employee’s private attorney.

Again, this is something that you as an employee, shouldn’t try on your own. You need an experienced Law firm in Phoenix, AZ that understands the EEOC process, the law, and the conciliation process because at that point, it’s been determined that the law has been broken and you are due some relief. An experienced Law firm in Phoenix, AZ will make sure that you leave that conciliation process with everything that is due you, based on the damages that you have been subjected to by that employer.

Why Are There EEOC Delays?

Many of our clients are frustrated by the EEOC process. A lot of it is not necessarily EEOC’s fault. Currently, staffing levels at EEOC are at historic lows. They currently have 11 investigators in the Phoenix district office. They’re supposed to have about 33. They currently have two mediators in the EEOC office. They typically have four or more. They also don’t even have their supervisor.

Right now, a lot of investigations are taking a lot longer than they typically would take and that frustrates a lot of people. It’s frustrating to us as well because we want EEOC to wrap up the investigation and make a cause finding so that we can pursue it. These investigations typically take anywhere from six months to as long as four or even five years for EEOC to complete. That’s a long time. Again, it’s frustrating for everybody.

What we prefer to do is have the EEOC finish that process because we want EEOC to make a cause finding. If the EEOC makes a cause finding, then they will be issued a letter of determination. This letter of determination is something that we can use in court as evidence that the company committed some form of wrong.

One benefit that we have here at this law firm that others don’t is that we know many of the EEOC investigators that are former co-workers. Many of them are our friends. That won’t necessarily help you with getting a cause finding, but it is helpful when we can call them and say what’s taking so long? What can we do to speed this up? What information can I provide you? Do you need a list of witnesses’ phone numbers? I can provide you with affidavits. There are certain things that we can do to help speed up that process and make it easier for them to reach a decision in your case.

Another thing that we do is when the company responds to a charge of discrimination, it’s something that’s called the position statement. A position statement can be anywhere from five to ten pages long, and it’s the company’s response to the allegations in the charge of discrimination. What we do is we ask EEOC for a copy of that position statement and then we work with our clients to draft a rebuttal to the position statement. Then we send that rebuttal to EEOC. We will also send a copy of it to the employer and ask that they pay a certain demand for the harm that they have caused our client.

This helps speed up the process because EEOC’s investigator can look at our response and see what witnesses need to be interviewed.  It can help them in their analysis when they’re drafting their memorandum to their supervisors, to make a determination in their case.

What is EEOC Mediation?

EEOC mediation is an opportunity that is offered to some charging parties, or persons that are bringing charges against employers early on in the administrative process that the EEOC is responsible for taking care of. Normally how it happens is immediately after a charge is filed with the EEOC, if it’s not dismissed because there’s a lack of merit, the charge is routed up to the alternative dispute resolution department, that houses the mediation section of the EEOC. They determine whether the case is worthy for mediation. If it fits certain criteria, it would warrant mediation.

If it’s selected by the EEOC for mediation, then the parties are contacted and they’re invited to mediation. Mediation is a voluntary process and both sides and the EEOC must agree to the mediation for the mediation to go forward. If one side decides not to participate or declines EEOC mediation, then the case will enter back into the investigative track.

Before accepting an offer to mediate, which if you haven’t been represented by an attorney at this point in your EEOC charge, I would highly recommend that you contact an experienced attorney that is familiar with EEOC law. This is a great opportunity for you as the employee to cut down some of the time that could be associated with the investigation, to get similar remedies upfront with less cost to you. Oftentimes, it’s similar or better than what could be achieved at the end of an EEOC investigation, or after the matter has been filed in court. It’s an opportunity that you really should look at, based on the strength of the charge and the facts.

Again, it’s a case-by-case scenario so there’s not one blanket answer. I always refer employees to mediation when the case and the facts warrant such. The beauty of having an experienced employment Law firm in Phoenix, AZ that is experienced with EEOC law is you don’t go to those mediations unrepresented. One of our attorneys, not a paralegal, not legal staff, an attorney, will actually sit there with you; make sure that your claims are forwarded. Oftentimes, the employers will show up with high powered lawyers, and they’re representing their interests and their job. Their interest is to walk away from the table with as little damage to them as possible.

With an experienced Law firm in Phoenix, AZ, you can make sure that that EEOC mediation process is fruitful for you and successful; to make sure that your claims have been addressed and that some of the remedies that you’re seeking has been made whole. Again, if you’re at that point where you’ve been invited to EEOC mediation, or you feel that it may be pending soon, I would highly recommend you contact a lawyer experienced in that area so that they can walk you through that process. It can be very fruitful for you and speed up the process of your charge of discrimination.

Questions About Discrimination

What Can I Do If I’m Being Discriminated Against at Work?

We recently had a client come to us who felt that they had been subjected to discrimination at work. It can be confusing sometimes whether what happened to you is discrimination first of all. Then secondly, whether that particular type of discrimination is protected under one of the laws that are enforced, either a federal law or a state law. If you believe that you’ve been subjected to discrimination, we recommend that you contact an experienced employment attorney.

If you come to our office, we will sit down with you. We will go through the facts of everything that’s going on with you at work. We will listen to you tell your story, what you believe is discriminatory, what’s happening to you. We will determine whether or not what is happening to you is something that we can do something about. If so, we can put you on the path to filing a charge of discrimination with the EEOC if that’s necessary or pursuing it through some other means. We recommend that if you feel like you’ve been discriminated against at work, don’t do that legal research on your own.

Can I File for Age Discrimination?

We recently had somebody contact our office who wanted help because they felt like they were being discriminated against on the basis of their age. The problem was that this particular person was only 23 years old. One thing to keep in mind is that the Age Discrimination in Employment Act only protects individuals that are age 40 years and older, what we refer to as the protected age group. The Age Discrimination in Employment Act is still a very important law. There are a lot of people who have been at work for a long time and are facing discriminatory comments, or making a mockery of their age, or making jokes about them. Harassment is a big issue with the Age Discrimination in Employment Act.

Another issue that people that are in that particular age group have is applying for positions. Some individuals go to apply for positions and the job posting is asking for somebody who is young, somebody who’s energetic, a digital native. All of those terms design to bring in somebody who is younger. If you’re applying for a position, and you can’t get that position, and they have something like that in their job posting, please contact us so that we can help you.

What is the Americans with Disabilities Act?

The other day, we had a client come in. He had several questions about the Americans with Disabilities Act. Whether or not that law provided protections to him due to his particular condition, and whether or not his condition constituted a disability. Those questions can be very complicated and can require a detailed legal analysis. We recommend that if you have any questions regarding whether or not your condition meets the legal standard of a disability under the law, we recommend that you come to an experienced employment attorney.

What we would do if you come to us is sit down with you, gather all of the facts and details related to your medical condition, help you determine whether or not your condition meets the definition of a disability under the law. Some people may have conditions that they think are not disabilities. There is a high probability that your condition is, in fact, a disability under the law and that you are afforded certain protections. The employer may be required to provide you with a reasonable accommodation to help you perform the essential functions of your position.

What is Constructive Discharge?

Constructive discharge is when the work environment becomes so hostile, so intolerable, that a reasonable person of reasonable sensibilities under the same set of conditions would find that environment so objectionable that they would not continue in their pattern of employment. We call it constructive discharge because the employer has allowed something, tolerated something, or been in fact the actor in something that has caused that environment to become intolerable to the reasonable person.

If you have been placed in a situation where you feel like you’ve had no other choice but to quit, there could be some action under the law. If you are in that place and you have not quit yet, I would certainly urge you before you quit your job to contact an experienced employment Law firm in Phoenix, AZ because they can look at the law based on that environment and help guide you up the road concerning that. However, if you’re on the other side of that, you already made it, you couldn’t take anymore, you need to get on the phone and contact an experienced employment lawyer that can point you up the road and let you know what your rights are. Maybe there was some cause of action before that misstep by the employer.

Again, there’s no one rule that’s a clear answer; it’s a case by case scenario as to whether quitting your job would qualify as constructive discharge. There’s certainly coverage for that under the law if that working environment has become so terse, so difficult, so intolerable that a reasonable person would no longer feel it wise to work there. You see a lot of that in sexual harassment cases, or cases where racial expletives have been used to the point where you’ve reported it several times and it’s continued. These are cases that fall within that framework of constructive discharge. You need to talk to a Law firm in Phoenix, AZ sooner than later because again, on the day that you quit, that’s when the clock starts ticking and the statute of limitations starts to run.

I was Denied Promotion for Person with Less Experience

We recently had a client contact us because they were denied a promotion. They were clearly the most qualified person for that position or at least they felt they were. They had the most experience for that position. Yet, the employer chose somebody who was younger than them who hadn’t worked for the company nearly as long. If you’re in that situation, I recommend that you contact an employment Law firm in Phoenix, AZ to find out what you can do because it’s possible that you were discriminated against on the basis of your age. It’s possible you were discriminated against on the basis of a number of other protected categories. Please contact an employment Law firm in Phoenix, AZ to help you determine whether or not you were subjected to some type of discrimination and what actions that you should take.

What Are Discrimination Damages?

One of the questions that we most often get is what can someone recover? What are the damages and what can they get? Now that they’ve been discriminated against, what is the value of their case? What I would tell you is that those values are all across the board. In some cases, you’re not seeking a monetary reward. You’re seeking some type of injunctive relief. For example, you want job reinstatement, or you want your employer to do antiharassment training or something like that to correct the behavior that’s going on.

Again, the ranges are very broad. What I would encourage you to do is go see an experienced employment Law firm in Phoenix, AZ. Sit down with a lawyer, let them go through the facts of your case, and help them determine what the proper value of that case may be. In some cases, you have to wait and see what a jury decides.

Can I Make My Employer Give a Reference?

I recently had a client contact me because they wanted an employment reference. They were applying for a position and the job that they were applying for, was trying to contact their former employer to find out information about whether or not they worked there, what their position was, and whether or not they were a good employee. They were upset that that employer didn’t provide those details.

One thing that I will tell you, as an employment Law firm in Phoenix, AZ, is that we often recommend that employers don’t provide all of those details. Employers are concerned that they could face defamation charges or something like that, if they provide too much information or negative information that could cause problems down the road for that employee.

Employers are not required to provide references. What most employers do, they will confirm the dates of employment and the position held, and sometimes they will confirm whether or not you’re eligible for re-hire. Other than that, most employers won’t provide more detail than that.

What Are the Employment Damage Limits?

Recently, on talking to a client, he had spoken with a Law firm in Phoenix, AZ previously that on a basic Title 7 claim (race discrimination claim) was going to go sue an employer for $2.5 million because someone called him an expletive and he was still employed there. I immediately looked at the client, and of course without bad-mouthing another attorney, I advised him quickly that he had come to the right place. Any experienced lawyer in that type of law would know you’re probably not going to sue someone for $2.5 million for just an expletive you’ve been called based on race.

In fact, the law restricts it. They have what we called caps. You can only pursue claims up to a certain amount. Generally, the threshold for most EEOC claims is $300,000 generally if that person has the max number of employees under the law; the fewer the employees, the lower the caps. Again, there’s an analysis that goes into that but generally the cap is $300,000 for compensatory damages.

Now of course, there are special damages and punitive damages and other things that weigh into it, but in most cases when you EEOC sues an employer and gets $4.5 million, nine times out of ten that wasn’t for one person; it was for a class of people. Whatever those damages were, were split up between numerous parties. There are caps that are on every case that comes before the EEOC.

A Law firm in Phoenix, AZ will sit down with you, discover with you what those caps are, where they feel your case fit within those caps, how much damage you can get. Remember, it’s compensatory damage. It’s make-whole relief; it’s not get-rich relief. If the matter proceeds to court, the jury can award punitive damages considering on the egregiousness of the crime.

What If I’m Fired for Reporting Harassment or Discrimination?

One of the biggest concerns that our clients have is what happens after they make a complaint of harassment or discrimination. Our clients are concerned that the employer is going to turn around and take some type of action against them; they’re going to discipline them; they’re going to write them up. They could ultimately fire them for reporting some type of discriminatory conduct.

What I would say to you and what I say to our clients is that there are provisions in the law, anti-retaliation provisions in the law that prevent employers from taking retaliatory action against an employee for engaging in any type of protected activity. Protected activity can be opposition conduct, like opposing discrimination, or it can be participation conduct. For example, you participate in some type of internal or external investigation.

Hostile Work Environment

I recently had a client contact me and tell me that they felt like they were in a hostile work environment. Now, a hostile work environment is a term that is often misused. People don’t understand what that means. For example, if you’re called a bad name one time, or your supervisor picks on you because you’re not getting your work done on time, or even a couple of one-off comments here and there. That’s not necessarily a hostile work environment. To be a hostile work environment, there has to be conduct that, defined by the law, is substantially severe or pervasive, to alter the terms and conditions of your employment. That is a very high standard to reach.

What If HR Ignored Your Complaint?

In most cases, when we have contact with clients who bring claims of employment discrimination, more often than not, there’s a thread in that claim that says they reported this claim to Human Resources, supervisor, or lead representative and nothing was done. This is very important to understand because oftentimes ( if you don’t have a grasp of the law) you don’t understand who’s in that chain of command, that can enact liability upon the employer. Can reporting the information to a lead result in liability for the employer, or a front-line supervisor, or a manager, or does it have to be HR? Does it have to be some upper-level executive?

These are all questions that an experienced Law firm in Phoenix, AZ could answer for you concerning the EEOC law. The broad answer to that is that notice is duty to act. Once the employer has notice of some claim of discrimination, once they have notice of it, there is a duty to act to protect, and prevent further discriminatory acts. That’s the broad standard. They have to act appropriately and immediately to prevent further discriminatory acts, whatever that is.

Again, that’s why you need to sit with a Law firm in Phoenix, AZ to determine if it was immediate corrective action to prevent such discrimination. Your front-line supervisor would certainly meet that qualification. They’re an agent of the employer. Your manager would meet that definition. Human Resources obviously would. Sometimes even a coach on the front line. Do they have input in your evaluations? Can they tell you when to go to lunch and when to come back? If they have that level of authority, reporting it to a senior representative or a coach could enact that notice as a duty to act requirement.

Again, you would want to sit with an attorney that would look at that and determine if there’s enough involvement by that particular individual. One thing that you must make sure that you do is follow the company’s processes. Not following the company’s processes could literally blow the bottom out of your claim because you didn’t follow the process. If it could be proven that if you would have followed the process, you would have prevented all of the harm, it could take the merit away from your claim. If you’re in the process of that, of course, I would always urge you to contact a Law firm in Phoenix, AZ before things go badly. If you’re already through that process and you’re not working there anymore, but you just want someone to look at the facts of that case and determine where the claims are, or you’re ready to file that charge of discrimination, I would certainly urge you to contact a Law firm in Phoenix, AZ, so that we can make sure that your charge is drafted the way it needs to be drafted.

If you put them on notice about it, and things keep happening, then that increases the chance that they’ll be held liable for that particular conduct. They have to act. They must take immediate corrective and appropriate action to prevent further discrimination and to look into your claims regardless of the merit that they think they may have. They have an obligation to do so. That’s not only Human Resources; that is everyone in the management chain or that has control over the work. Again, that’s a broad answer, but an experienced attorney will really dig down into it and make sure that your claim is handled properly.

What If the Male Employees Are Being Paid More?

Recent times have led to an increase of female employees voicing concerns regarding differences not only in treatment but particularly differences in pay. Many female employees who have like and/or similar qualifications to their male counterparts are being paid less than people who are doing the same job who happen to be male. We run into that quite often here. There is a law that protects you: The Equal Pay Act, and even some provisions under Title VII that could particularly protect women, the Lilly Ledbetter Act, and other acts that have recently been passed by our legislature and presidents. You would want to sit and talk with a Law firm in Phoenix, AZ about this because there is a detailed analysis. There’s a lot of forensic evidence and data that needs to be compiled because it could not only be you, it could be a history that employer has. I’ve seen it more than once where an employer has a history of paying women less.

Of course, this is violative of our laws. It should not be so and you would want to pursue that in these United States of America under the laws that have been provided to us. It is wholly against the law to pay a woman less simply because she’s a woman when she has like, similar, equal qualifications, and experience. You would want an experienced Law firm in Phoenix, AZ to look at that with you. Oftentimes, there are claims of actions. It’s not something that you should turn a blind eye to

Can I Get a Medical Condition Accommodation?

We often get calls from potential clients about their disability and whether or not their employer was obligated to accommodate them under the Americans with Disabilities Act. Under the Americans with Disabilities Act, your employer is required to provide a reasonable accommodation so long as it does not create an undue hardship on that employer. The type of accommodation that they have to provide often depends on a large number of factors. One can be the size of the company and how much money the company has. Another can be the type of position. If you’re in one of those positions where you feel like you need a reasonable accommodation, ask for it. If they decline to provide it, then contact an employment Law firm in Phoenix, AZ.

What Do I Do About Pregnancy Discrimination?

We recently had a client come to us in regards to issues involving her employment and her being pregnant. This on its face really is one of those areas of employment’s law and coverage that really needs a watchful eye and an experienced hand of an attorney that’s familiar with this kind of law. Some of the questions that she began to ask was, “Well, is this covered under my disability? I have pre-eclampsia.” Of course, ladies know that’s high blood pressure that’s associated with a pregnancy. She was asking about a disability claim. What you’ll understand about the Pregnancy Discrimination Act is it’s not a product of the Americans with Disability Act, the ADA. It’s a product of Title VII of the Civil Rights Act of 1964, which is discrimination based on sex. That’s because males can’t get pregnant, so there’s a certain set of criteria out of the Pregnancy Discrimination Act that requires that employers handle women who are with child a certain way.

There are claims that can arise under the ADA if there are complications with the pregnancy as of such that would warrant and/or meet the Americans with Disabilities Act. Again, it’s a very detailed analysis. There are questions that have to be answered as it relates to pregnancy. What happens when you need time off? What about doctors’ appointments after you birth the child? What if the child has issues after birth? What if you have issues after the birth of the child? Where does Family Medical Leave Act play a role in the whole process? These are all questions that need to be answered by an attorney who’s experienced in that area that would represent your interests that would look into things.

Oftentimes, employers aren’t as forthright as they should be in that area because of course, they want people at work. Then again, the EEOC is a third-party neutral agency. They can only look at the facts from a neutral perspective that is submitted to them. If you are dealing with pregnancy issues and you have some concerns about your appointments, about some of the conditions that are associated with your pregnancy, and what your rights are under the appropriate laws, I would highly advise that you contact an experienced Phoenix attorney that deals and that has dealt in the area of Title VII and the Pregnancy Discrimination Act to make sure that your rights are adequately pursued.

Can I Sue for Workplace Discipline?

Recently, in speaking with a client, they began to express to me how they felt like the discipline standards were different between them and other employees. How they felt like the employer didn’t follow the employment manual as it relates to them. They happen to be a different race than the other employees who were treated differently from them. Oftentimes, this results in a cause of action under Title VII. It could be one of the other laws that are covered by the EEOC. Broadly speaking, when there is an employment manual, a standard practice, a procedure that is set in place, the law calls it progressive disciplinary policy, it must be followed. There should not be any difference or abatement of that policy, or discriminatory if you will, or disparate impact, or treatment concerning that policy as it relates to people who are outside of that protected group.

In other words, for example, I can’t take all of the Latinos and skip the steps to firing them. If they’re Latinos, they cannot go straight from a written warning to direct termination. Whereas, all the other employees, they get a verbal warning, a written warning, a final written warning, a second final written warning, and then termination. Where there is inequity in the policy, there’s been disparate treatment there. If there is a policy in place, a progressive disciplinary policy that has been put in place by the employer, an experienced attorney would look at that policy, analyze that policy, and make sure that the application of that policy has been for lack of better words, even-handed, implemented on persons within your protected category, your protected race, and outside, and making sure that there was no difference in the implication or the application, of this particular policy.

Causes of action I should say, often arise out of that implementing those policies in different ways. You will need to talk to a Law firm in Phoenix, AZ, so they can analyze the policy, get the necessary information. From the Freedom of Information Act, request the files from the employer. Look at all of the employees and determine that maybe you were treated differently. Again, that is the bedrock. It is that subjective treatment that is the bedrock of discriminatory action. You would want to talk to a lawyer and express those concerns to the EEOC to make sure that those claims are addressed under the applicable law.

Questions About Sexual Harassment | Contact a Law firm in Phoenix, AZ

What Should I Do About Unwanted Sexual Advances?

One of our clients contacted us recently because she was subjected to unwelcome sexual remarks in the workplace. Some of the comments were being made by her general manager. The comments were very inappropriate. They were very sexual in nature. She didn’t know what to do. She recorded some of those conversations, which is very helpful when we’re pursuing the case in court, but it didn’t put an end to it. She went to HR. She complained. HR didn’t act because of the high level of this particular employee. What I would recommend, if you experience any unwelcome sexual remarks, or sexual comments, or even sexual advances at work, is to contact an experienced Law firm in Phoenix, AZ to help.

What If I Was Sexually Harassment by a Manager?

Recently, I was speaking with an individual that felt like they had been harassed by their manager in their place of employment. One of the things that I began to explain to them is that harassment in all of its forms, harassment comes from a manager it has a little different analysis than it does when it comes from a coworker; whether it’s sexual harassment, or religious harassment, or harassment based on race, or even someone teasing you about a disability you may have. Again, the coworker harassment requires that the employer know or should have known that the harassment was taking place. If the employer knew or should have known that the harassment was taking place and they did not take immediate and appropriate corrective action to cure it, then it could result in a cause finding and that employer could be held liable for that harassment.

When it comes down to supervisors and managers, there must be what the law refers to as tangible employment action. Again, this is where you would need the hands of a skilled Law firm in Phoenix, AZ that’s skilled in this particular law to look at this. Tangible employment action requires that there was some alteration, something shifted about your employment. They cut your pay. They cut your hours. They moved you to another place in the building. Something happened as a result of your claim of discrimination or harassment by a particular manager. If that tangible employment action is causally linked to the harassment then there would generally be a finding, a cause finding at the EEOC or there would be a violation of the law.

Again, if you have a tangible employment action and that action is causally linked to that tangible employment action, to that harassment, then there would generally be cause finding under the law. If there is no connection, then the question would be, did the employer, human resources, or whomever, take a care to correct the harassment to prevent that manager from harassing you again? If they did so, and the person that has been harassed followed the processes did everything that they were supposed to do, and all of the harm would have been avoided if they followed the processes, then generally there wouldn’t be a finding under the law. If the employer did not take the proper care, then generally there would be a finding under the law.

What If I Was Sexually Harassed by the Owner of the Company?

Recently, I was dealing with a case where a young lady had been harassed by the owner of a corporation. She wanted to know what her remedies were. As she began to tell me the story, she became nervous. She said, “Well, I feel nervous because I didn’t report it to Human Resources. I didn’t tell my manager about it because this was the owner of the corporation that was sexually harassing me.” She waited an extended period of time. Luckily, she was still within the statute of limitations, but she felt like she had no option. She felt like she had no recourse.

After sitting with our legal team here at Smith & Green, we were able to point out to her that the analysis is different. It’s not the same as it is with a coworker. It’s not the same as it is with a supervisor. When it’s someone that’s that high up on the food chain, where you feel like there is no reasonable opportunity or there’s no one else to report it to, it starts to fall into what we call an alter ego analysis. In other words, where you’re so high up on the food chain for lack of better words, that there really is no one else to go to. There feels like there is no reasonable means of supporting it.

With that particular young lady and many others that feel like they’ve been harassed by owners or by people that are so high up to where there’s nowhere else to go, then it could fall under an alter ego analysis. There’s some analysis under the law that the attorney will look at with you to qualify that as alter ego analysis and harassment, which is liability per say. The employer’s always liable for alter ego, president, owner, someone that high up on the food chain. It’s a little easier to get there because there was no reasonable recourse. You would want to sit and talk with a Law firm in Phoenix, AZ about that so they could analyze the facts of your case regarding that analysis.