CONCERNS FOR THE EMPLOYER AND EMPLOYEE IN THE STATE OF ARIZONAPRE-HIRING CONCERNSThere is no specific law in Arizona regulating the area of background checks on prospective and current employees. As a result, some employers may decide not to do a background check of any sort for fear of potential legal liability. However, that may open the employer up to liability because employers have a duty to their customers to hire employees that will not harm those customers. This is especially true in some industries, such as childcare, in which employees will have access to children and it would matter whether the employee has a past record of child molestation. It appears, and common sense would dictate, that employers might check references, motor vehicle records, court records, credit reports, and any other public record. This should be done with care and with an eye for the information an employer actually needs to meet its standard of care to its customers. If an employer, decides to not hire an employee on the basis of a credit report, in whole or in part, the employer must inform the prospective employee what credit report the employer reviewed and comply with other statutes and regulations regarding the use of credit reports in hiring decisions. Also, employers should tailor pre-offer interviews to comply with the American with Disabilities Act and other federal statutes regarding discrimination. TERMINATION/DURATION EMPLOYMENTArizona law mandates that employees and employers have an "at-will" relationship, which means that either party may terminate the relationship at any time. This is a recent development in Arizona law and has effectively eliminated wrongful termination lawsuits filed by employees in Arizona. However, this does not mean that employers are free from liability. Employers can still be sued for firing an employee for a reason prohibited by law. Generally, the law protects employees from wrongful termination when an employer: breaches an employment contract (either written or sometimes implied by the employer in an employee handbook); violates an employee’s civil rights; or violates Arizona public policy. If an employee feels that he or she has been terminated for an improper reason, the employee should file a complaint with the Equal Employment Opportunity Commission or the Arizona Civil Rights Division. Each of these agencies handles discrimination in the workplace, but the case will be assigned based on what law the employee’s complaint falls under or the total number of employees that the employer has. UNEMPLOYMENT BENEFITSIf you are an employee that has been fired or laid off, you may qualify for unemployment compensation. There are some instances where an employee has resigned from employment and will still qualify for unemployment compensation. Employees may contact the Department of Economic Security to file a claim. Employers will then be allowed to dispute the employee’s claim. DISPUTESIf an employee has a wage dispute with a former employer for under $2,000, that employee may file a complaint with the Industrial Commission of Arizona, and the Commission will investigate. The employee may also choose to hire an attorney without involving the Commission. Under Arizona law, employers must pay a discharged employee his or her wages within three days of discharge or at the end of the next pay period whichever is sooner. If an employee resigns, the employee is owed his or her wages at the end of the regular pay period. If employers do not follow these rules, employees may be entitled to triple the amount he or she was originally owed. RECOMMENDATIONS FROM FORMER EMPLOYERSIn Arizona, employers are given a "qualified" privilege for revealing information to prospective employers about their former employees. This privilege covers any statement regarding the former employee’s education, training, experience, qualifications and job performance. Employers must use their privilege with great care or they may be subject to liability for slander, libel, or for violation of the "blacklist" statute if they communicate information that is false or have a reckless disregard for the truth or falsity of their statements to the prospective employer. Also, employers must remember that any time written information is given out about a former employee it must be sent to the former employee’s last known address. OTHER CONCERNS REGARDING EMPLOYMENTThere are several federal and state statutes that employers and employees need to be aware of and comply with:
DisclaimerThis fact sheet is meant only as a general description of the current laws as of the date of the writing. They are not exhaustive and are intended to be only an overview. Many issues may appear simpler than they are, and one should always contact an attorney to obtain a complete, accurate interpretation of the law given the individual circumstances. Thompson Klausner Law Group, p.c. makes no representations as to how the law would affect a particular situation and intends only to illustrate areas of concern and give information. ©2000, Thompson Law Group, P.C. Lisa C. Thompson, Esq. |