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Employment Law Exam - EMPLOYMENT LAW SUMMER 2005 PROFESSOR...

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Unformatted text preview: EMPLOYMENT LAW SUMMER, 2005 PROFESSOR JASON HAMM FINAL EXAMINATION — JUNE 20, 2005 TIME: 2 HOURS This is an open book, open note exam. There are 3 sections. Answer all of the questions in Sections I and II, and choose two out of the three questions to answer in Section 111. Each section has a suggested approximate amount of time to spend on it, although you are free to allocate your time however you wish. There are 100 points possible. There are 5 pages total, including this cover page. Do not put your name on your answers. Use your identification number instead. Good Luck! Page 1 of 5 Section I (approx. 60 minutes) Read the following fact scenario and answer the questions below. Cindy works in sales for a large company in California. When she was hired, she signed a compensation agreement that provided for a bonus in addition to her base pay if her sales exceeded a certain amount in any year. The bonus would be calculated according to a set formula, and would be paid 90 days after the end of the year, provided that she was still employed by the company. There was no specific written agreement regarding the length or termination of Cindy’s employment. However, Cindy read the company’s personnel manual which listed the following ways in which an employment could end: layoffs due to economic downturn, poor employee performance, serious employee misconduct, or voluntary retirement. When she was hired, Cindy was told by the company’s president that if she were good at selling, she had a bright future and secure place with the company. Cindy received good performance reviews and steady increases in base pay for her first nine years with the company. She was never disciplined during that time. She observed that the company rarely fired its salespeople. Instead, the company had a practice of using “progressive discipline” — meaning that salespeople were only terminated for serious misconduct, or where they had received prior discipline and failed to correct the problem. In the middle of her tenth year, Cindy attended her company’s annual seminar for salespeople. At the seminar, the salespeople were divided into teams and assigned to create and put on humorous skits for the entire group. Cindy’s team, which otherwise consisted of all male coworkers, convinced her to dress up in a skimpy “fairy” outfit and take part in a sexually suggestive scene. The skit drew loud laughter and catcalls from many of her male coworkers in the audience. Following the seminar, a group of Cindy’s male coworkers began referring to her as “Tinker Bell,” and making lewd remarks to her on a daily basis. Some of them even pinched her buttocks a few times. Cindy also found out that one of them posted a sexually explicit cartoon with her name on it in the male bathroom. Cindy was extremely disturbed by all of this behavior, and told them to stop on several occasions, but she did not complain to anyone else at the company. This behavior went on for several weeks, but it eventually stopped when some of her other coworkers began to notice and confront the group about their inappropriate actions. Towards the end of that year, Cindy received a revised personnel manual which deleted the previous language about termination and stated that notwithstanding any previous representations, all employees are “at will.” The following week, Cindy completed several large sales just before the end of the year. She Page 2 of 5 was due to receive a $100,000 bonus, the largest in company history. Word of Cindy’s sales quickly spread, and the next day a jealous coworker sent an e-mail to the company president accusing Cindy of defrauding customers in order to boost her sales. (The accusations against Cindy were false — she had not defrauded anyone.) Nonetheless, the company president directed an immediate investigation into the allegations, which led to several witnesses being interviewed. Two days later, the company president called Cindy into his office and told her that the investigation led him to conclude that she was guilty of defrauding customers. He told her she was being terminated for this offense, effective immediately. She was not given her bonus. The president was not aware of the fairy and Tinker Bell episodes, so Cindy’s termination does not appear to involve any retaliation or quid pro quo issues. Analyze Cindy’s potential claims against the company, and any defenses the company may plausibly raise. If your analysis depends on facts that are not yet known, then identify what facts are needed and how they would affect the analysis. Assume California law governs all claims. You do not need to discuss the amount or types of available damages in any way. Page 3 of 5 Section II (approx. 45 minutes) Answer BOTH of the following questions. 1. You are representing a defendant-employer in an intentional discrimination case under the Fair Employment and Housing Act in Fresno County Superior Court. The plaintiff is alleging that she was wrongfirlly terminated on the basis of her sex. You want a jury instruction that would allow your client to raise a mixed-motive defense. The judge looks confused as though he knows nothing about a mixed-motive defense. Your opposing counsel makes the following statement to the judge: “Your honor, the defendant cannot offer a mixed-motive defense, because that defense does not exist under the Fair Employment and Housing Act. That defense was created by the United States Supreme Court in Price Waterhouse v. Hopkins, which was a case under Title VII and not the Fair Employment and Housing Act. Moreover, Congress amended Title VII after Price Waterhouse v. Hopkins to do away with its holding. So for those reasons, there is no basis for this defense in California.” The judge then says that he knows nothing about a mixed-motive defense, however, he is willing to hear your explanation and rebuttal. Therefore, please do the following: A. Explain the mixed-motive defense. (You need not discuss the McDonnell Douglas framework in any way). B. Give a rebuttal to your opponent’s statements. 2. Company A is a large corporation with branches nationwide and has over 100,000 employees. Company B is a small business in Fresno that employs only 6 people. There are two employees, one who works for Company A and one who works for Company B, that have identical physical ailments. Each employee could perform the essential functions of the job if she had an accommodation. Each employee makes a request for an accommodation from her respective employer. Based on these facts, is there any basis to suspect that the obligation to accommodate its respective employee might differ for these two companies? Why or why not? Page 4 of 5 SECTION III (approx. 15 minutes) Please choose TWO of the following three questions to answer. 1. Mike works for a company in Fresno that has more than 5 employees. He recently found out that he was denied a promotion, and that his race played a motivating factor in the decision not to promote him. This decision was in violation of the Fair Employment and Housing Act, and there does not appear to be any justification or defense. Mike was extremely upset over being discriminated against, and quit his job. Is Mike likely to be disqualified from receiving unemployment insurance benefits? Why or why not? 2. Chris works as an entry-level cashier for a large grocery store in Fresno making $10 per hour. He occasionally works more than 8 hours per day and more than 40 hours per week, but he only receives his normal hourly rate for this extra time. When Chris was hired, he signed a contract that expressly states that he will not be entitled to any overtime compensation. Chris thought it was a good deal since his normal hourly rate was much higher than the minimum wage. Is Chris likely to prevail in an overtime claim? Why or why not? 3. Kyle works for a construction company in Fresno. One day while on the job, Kyle loses his temper at a coworker over a work-related dispute and punches him in the face. In the ensuing physical altercation, Kyle suffers an injury that will cause him to incur medical expenses as well as 4 weeks of unpaid recovery time before his injury heals and he is able to work again. Is Kyle’s injury likely to be covered by the workers compensation system? Why or why not? 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