Application questions: What is at-will employment Custom Essay

1. What is at-will employment

a. What right does an employer have to fire an employee

b. What right does an employee have to quit his employment

c. How can at-will employment be changed by law, contract, implied contract, or public policy

Facts for Question 1: Sabry works for a small company in Dayton. He has no written contract, but his work is of great importance to the company. He has risen to a high position within the company and has just been given a raise. Sabry is selected to sit on a jury for a murder trial that could last weeks. Sabry’s employer considers this to be a great hardship to the company. He tells Sabry that unless he finds a way to get out of jury duty, the company will have to replace him and he will be out of a job. Sabry tells his boss that he will use his vacation time while he is on jury duty, and that he is willing to put off his raise until he returns to work. Sabry’s boss does not like Sabry’s tone of voice and decides to fire Sabry on the spot for insubordination.

Application Question 1: Fully discuss the implications for Sabry and his employer, by answering the following questions;

a) Is Sabry an at-will employee? (Be sure to define an at-will employee and what facts you used to support your conclusion)

b) Based solely on his employment status, what rights does Sabry have with regard to his continued employment?

c) Based solely on his employment status, what rights does his employer have regarding Sabry’s continued employment?

d) What exceptions exist that may prohibit an employer from firing an at-will employee? Describe whether or not the facts of this case fall under any exception.

e) What consequences does the employer risk if Sabry can establish that he was fired for his failure to get out of jury duty? See: http://codes.ohio.gov/orc/2313.19 and http://codes.ohio.gov/orc/2313.99 (penalty)

Study 2: Prior to answering the application question below, know and understand the following:

1. Why might federal law be considered a “minimum” level of protection for all workers?

2. What is the purpose of Title VII of the Civil Rights Act

a. What are the 5 protected classes of people under Title VII

b. What types of employers are subject to Title VII

3. What is Disparate-Treatment (intentional) Discrimination under Title VII

a. What intentional acts can form the basis of Disparate-Treatment Discrimination

b. What is the three step process of proving Disparate-Treatment Discrimination

Facts for Question 2: Ayana, an African American woman, worked as a server at a coffee shop owned by Paula. The coffee shop manager quit her managerial position to work elsewhere. Ayana took over the managerial position while Paula looked for a new manager. Paula made no complaints regarding Ayana’s work. Ayana applied for the managerial position. However, Rachel, a Caucasian woman, was hired for the job. Paula told Rachel that Ayana was very qualified to train Rachel for the new position.

After receiving her right-to-sue letter from the EEOC, Ayana brought a law suit against Paula claiming disparate-treatment (intentional) discrimination. In the first step of a trial, the Plaintiff, must present enough evidence to establish a prima facie case. Ayana successfully meets this burden of proof, by proving that she is a member of a protected class; that she applied for, and was qualified for the job; that she was not offered the job; and that the job was given to a member of a non-protected class.

If the Plaintiff meets her initial burden of proof, then the trial proceeds to the second step of the process, where the Defendant must prove a nondiscriminatory reason for hiring someone else. Paula met the employer’s r burden of proof by producing evidence that Rachel had held a managerial position for 2 years at a donut shop. Paula stated that Rachel was therefore more qualified than Ayana in the event some unforeseen circumstance arose that Ayana had not yet experienced.

Application Question 2:

a) What is the third step that must be undertaken by Ayana if she is to be successful in her lawsuit against Paula?

b) What facts would Ayana have to produce to support a claim that Paula’s reason for hiring Rachel was merely a “pretext” for discrimination against Ayana?

c) In your opinion, what should be the outcome of this dispute?

d) Would it make any difference if Rachel was Hispanic? Why or why not?

e) What remedies can a jury award Ayana in the event they find in Ayana’s favor by agreeing that Paula did intentionally discriminate against Ayana on the basis of race?

Study 3: Prior to answering the application question below, know and understand the following (page 514):

1. What constitutes Disparate-Impact (unintentional) Discrimination in violation of Title VII and how does it differ from Disparate-Treatment Discrimination

2. What is meant by “pretext” and “business necessity”

3. When might the requirement of a diploma be a business necessity and when might it be a pretext

Facts for Question 3: Mariah, as well as many other male and female candidates, applied for the position of fire fighter with the city of Cleveland. She knew the job required physical strength and endurance. For that reason she hired a highly recommended fire fighter to train her for the job. Despite the assurance of her trainer that she was capable of fulfilling all of the rigorous physical requirements of the job, she failed the physical strength and endurance tests. When she learned that female candidates failed at a much higher rate than males, she considered bringing an action against the city for sex discrimination based upon disparate-impact (unintentional) discrimination.

Application Question 3:

a) Where must Mariah start her legal proceedings against the city of Cleveland, and what must happen before she can file a lawsuit in court? See pg. 518, then look here: http://www.eeoc.gov/employees/lawsuit.cfm or http://crc.ohio.gov/FilingaCharge/FilingYourCharge.aspx

b) After filing a lawsuit, what must Mariah prove first to proceed with her claim for disparate-impact discrimination?

c) What must the city of Cleveland prove to avoid liability? Does the city have any argument that sex is a bona fide occupational qualification?

d) Given that physical strength and endurance are recognized as important qualifications for a fire fighter, what argument can Mariah make that the test for physical strength and endurance is a type of discrimination?

e) In the Chicago case cited below, what was the outcome of a similar dispute?

http://bolekbesser.com/chicago-settles-firefighter-sex-discrimination-case/

Study 4: Prior to answering the application question below, know and understand the following:

1. What acts constitute Sexual Harassment under Title VII

a. Define terms quid pro quo and hostile work environment

b. Is sexual harassment or hostile work environment limited to certain protected classes

c. Can an employer be held liable for the harassment of an employee by a non-employee

2. How does the Pregnancy Discrimination Act of 1987 amend Title VII?

3. Understand the Bona Fide Occupational Defense, the Merit Defense, and the Seniority System Defense

4. Know the remedies that are available to a plaintiff under Title VII

5. What is the relationship between the Equal Employment Opportunity Commission and Title VII?

Facts for Question 4: http://www.usatoday.com/story/opinion/2013/08/22/mayor-bob-filner-sexual-harassment-editorials-debates/2690225/,

Application Question 4 After reading the story linked above, discuss what an employer should do to minimize sexual harassment in the work place? Identify at least 3 steps that you would take if you were in charge of your own business in order to reduce your risk of liability for the type of conduct discussed in the story.

Study 5: Prior to answering the application question below, know and understand the following:

1. What is the purpose of the Age Discrimination Act (ADA)

2. May an employer discriminate due to obesity, smoking, or sexual orientation

3. What is the purpose of the ADA

a. What 3 elements must a person prove to prevail on a claim based on the ADA

b. Does the ADA apply to physical or mental disabilities

c. Must an employer make every accommodation necessary for employment, or is there a limit

4. What is the purpose of each of the following?

a. Equal Pay Act

b. Fair Labor Standards Act

c. Unemployment Compensation Laws

d. Worker’s Compensation Laws

e. COBRA

f. ERISA

g. OSHA

Facts for Question 5: The Mayo Clinic staff defines “Narcolepsy” as follows: “Narcolepsy is a chronic sleep disorder characterized by overwhelming daytime drowsiness and sudden attacks of sleep. People with narcolepsy often find it difficult to stay awake for long periods of time, regardless of the circumstances. Narcolepsy can cause serious disruptions in your daily routine. Narcolepsy is a chronic condition for which there’s no cure. However, medications and lifestyle changes can help you manage the symptoms. Support from others — family, friends, employer, teachers — can help you cope with narcolepsy.”

After working at a hospital in Columbus, Ohio for approximately 3 years, Laura was diagnosed with narcolepsy. Her doctor restricted Laura to working a day shift position. Laura provided notice of her disability and requested reassignment to one of several vacant day shift positions for which she was qualified. Rather than reassign her, the hospital placed her on medical leave and subsequently fired her, allegedly due to her disability.

http://www.eeoc.gov/eeoc/newsroom/release/8-7-13.cfm

Application Question 5:

a) What must Laura prove to prevail in a claim brought under the American Disabilities Act?

b) What must the hospital prove to successfully defend itself against Laura’s claim?

c) In your opinion, what should be the outcome of this dispute?

d) Does it matter that her doctor is the one who restricted her to the day shift position? Why or why not?

e) Would your answer be different depending on whether she is a doctor, nurse, or administrator?

Study 6: Prior to answering the application question below, know and understand the following:

1. Understand that there is a Common Law Tort of Privacy (remember Chapter 6!)

2. Understand the purpose of the Omnibus Crime Control and Safe Streets Act as it pertains to the private telephone conversations of employees

3. Understand the purpose of the Electronics Communications Privacy Act (ECPA) as it applies to employee’s privacy rights to electronic forms of communication

4. Be able to define the “business-extension exemption” under the ECPA

5. Understand your text on page 524: “Employers are in the strongest position if they have a clear policy establishing that there is no reasonable expectation of privacy.”

Facts for Question 6:

http://blogs.wsj.com/riskandcompliance/2013/08/19/lawsuit-could-sway-use-of-employer-provided-devices/

If you have trouble with the link, you can try to access the article here:

Privacy in the Work Place.docx

Application Question 6:

a) What problems may occur when an employee uses a company issued mobile phone, iPad, computer, etc, for personal use as well as for business use?

b) What criticism did the court make regarding Verizon’s employee privacy policy? According to the article, how can Verizon’s policy be improved?

c) Why is it a good idea for an employee to have separate electronic devices for work communications and for private communications? Why is this unlikely to happen?

Study7: Prior to answering the application question below, know and understand the following:

1. Recognize that after WWII over one-third of American workers were unionized

and by 2005 only 12.5% of workers were unionized.

2. Know the purposes of the 3 major pieces of legislation that govern labor-management relations in the U.S.

a. The Wagner Act

b. The Taft-Hartley Act

c. The Landrum-Griffin Act

4. What is the purpose of the National Labor Relations Board (NLRB)?

5. What is the collective bargaining process and what part does “good faith” play in the process

Facts for Question 7: Cavendish Motors Company was purchased by a new owner. The new owner has made many changes in the way daily operations are run. Employee morale is low and numerous employees have been complaining about the changes. Some employees are airing their complaints on social media such as Facebook and twitter.

Cornelia starts a discussion on Facebook complaining that her overtime hours have been cut and her workload has been increased because she still has to get the same amount of work done in less time. Some of her coworkers join in, agreeing with her complaints, calling management names, and lamenting that they should all look for new jobs because it doesn’t look like life will get better anytime soon.

Anderson posts a similar complaint about the cut in overtime hours. He also expresses his anger at management and his concern that a number of safety issues have arisen due to short cuts that have been implemented in an effort to speed up production. A number of his co-workers join in with their own complaints. Anderson mentions some ideas he has on how they can approach the new management about their safety concerns.

Mark has been reading the other posts with disgust. He posts a warning to management that if things don’t change, employees on the production line may begin to sabotage the equipment, and that the public could get hurt.

Cody does not take part in the online discussions. Instead he complains directly to his boss that other employees were receiving special treatment.

Megan, a supervisor, delivers to her boss a bundle of letters from disgruntled employees. The letters are anonymous. When asked, Megan refuses to divulge the names of employees who wrote the letters protesting top management.

Cavendish Motors Company fires a number of employees for their behavior, including Cornelia, Anderson, Mark, Cody and Megan. The non-supervisory employees have their union contact the National Labor Relations Board (NLRB) and complain that Cavendish Motors Company took part in an unfair labor practice when it fired the employees for taking part in a “protected concerted activity” under the National Labor Relations Act (NLRA.)

Protected concerted activity is discussed in the following link.

http://www.nlrb.gov/rights-we-protect/protected-concerted-activity

Examples of messages on social media that led to firing are discussed in the following link.

http://legalblogwatch.typepad.com/legal_blog_watch/2013/05/when-complaining-about-your-job-on-facebook-can-get-you-fired.html

Application Question 7:

a) Explain fully whether the NLRB is likely to support any of the employees. Include your reasoning and support your answer as to each employee. Be sure to include whether the employee’s comments or actions were a protected activity under the NLRA.

b) If any of the employees are successful, what remedies will most likely be available?

 

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