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Employment Law Sample Answer

Employment Law Sample Answer - Sample Answers for...

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Unformatted text preview: Sample Answers for Employment Law Final Exam Summer, 2005 Prof. Jason Hamm SECTION I Cindy’s Claims Against the Company (California law applies to all) A. Cindy ’s Emploment Contract. Cindy was hired for an indefinite length of time. While the default rule is that an employment of no specified length may be terminated by either party at will for any reason or no reason (Lab. Code § 2922), parties may agree otherwise, either expressly or impliedly. In this case, there was no express agreement that Cindy could not be terminated except for good cause. However, there are facts to suggest that Cindy received an implied promise not to be terminated except for good cause. The facts which support an implied promise are: (1) the original personnel manual, which lists instances of terminating employment that would be consistent with a good cause contract (Woolley case); (2) the president’s statements to her that if she performed well, she had a “secure place in the company” (Hetes case); (3) longevity and steady increases in pay (Pugh v. See’s Candy); and (4) a progressive discipline practice (also Pugh). Although the 3rd and 4th factors standing alone would probably not be enough (see Guz v. Bechtel), combined with the first two there is significant evidence of an implied contract not to be dismissed except for good cause. Although it is a jury question, assuming Cindy reasonably relied on these factors, her claim that she had such a contract is strong. Even with an implied contract, however, the employer is free to unilaterally modify it, since it was unilaterally created in the first place. Here, the company revised its employment manual towards the end of Cindy’s tenth year to provide for at will employment. The California rule is that an employer may due so after a reasonable time, with reasonable notice and so long as it does not interfere with vested employee benefits. (Asmus v. Pacific Bell). Here, the termination occurred roughly a week after the change, so it probably did not give Cindy suflicient notice. (Note that the rule in some other jurisdictions is more strict, which is the case with Demasse v. ITT Corp in the book, requiring actual consent by the employee, though the outcome under these particular facts would be the same.) 1. Breach of Contract By Terminating Without Good Cause Given that Cindy probably had an implied contract not to be dismissed except for good cause, she may have a breach of contract claim stemming fiom her termination. “Good cause” in this context means a fair and honest (legitimate business) reason, regulated by good faith. (Pugh, Khajavz' cases.) As was discussed in the Cotran and Khajavz' cases, an employer may satisfy this standard when it makes a reasonable investigation and comes to a reasonable conclusion, even if it is ultimately wrong about the alleged behavior. Here, unfortunately for Cindy, this means it is possible that her contract was not breached even though she is innocent. The outcome would depend on whether the investigation and conclusion were reasonable. Notably, Cindy may not have had notice of the investigation and the opportunity to respond, which would suggest that the investigation may not have been reasonable. Also, since the coworker’s e-mail was motivated by jealousy rather than facts, it would seem odd that an investigation could produce enough evidence to find Cindy guilty. The facts are otherwise limited so that we do not know how reasonable the investigation or the president’s conclusion truly were. The more evidence that the investigation and conclusion were reasonable, the safer the company would be. 2. Breach of the Duty of Good Faith and Fair Dealing. Aside from the good cause issue, Cindy may have a claim for breach of the duty of good faith and fair dealing. This is implied in every contract to create the duty to refiain fiom doing things that would injure the other party’s right to receive the actual benefits of the contract. In this case, the benefit would be the bonus that Cindy had earned. If she was fired to prevent her fiom receiving that bonus, it would violate the duty of good faith and fair dealing. Although the president said he was firing her because of the investigation, he may not have been speaking truthfully about his motives. Again, the facts are insufficient to conclude one way or the other about this. If the investigation and evidence were really insufiicient to conclude that Cindy was guilty of the allegations, then she would seem to have a good claim here. Why else would the president so hastily terminate her after 10 years? The fact that it was the largest bonus in company history is also compelling. The key is that the employer’s motive must be to thwart the expected benefit. B. Sexual Harassment. Cindy may have a sexual harassment claim against the company based on a hostile work environment. A hostile work environment occurs where the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufliciently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. (Harris v. Forklift.) It must be on the basis of a protected characteristic, which in this case is her sex. In other words, this probably would not have happened if she were a man. It also must be “unwelcome.” The conduct must meet the above “severe and pervasive” standard both objectively and subjectively. Here, it seems like Cindy subjectively perceived her environment as hostile since she was “extremely upset” by it (though some may argue that her failure to complain to the company suggests otherwise). She need not suffer an actual psychological injury. (Harris v. Forklift.) As to whether the conduct was objectively hostile, the facts are sufiicient to allow a reasonable jury to find in Cindy’s favor. Notably, factors which aid in the consideration are (l) the frequency of the conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance, and (4) whether it unreasonably interferes with the employee’s work performance. (See Harris v. Forklift.) Here, several of these standards are most likely met, since she was pinched on the buttocks, and the initial skit and subsequent behavior were humiliating and rather severe. We don’t know whether it interfered with her work performance, but not all factors need to be met in every case. Instead, the court looks at the totality of the circumstances. Of course, whether a trier of fact would conclude it is a ho stile work environment is difficult to predict, and thus reasonable minds can differ on the conclusion. Some may conclude that since it did not last for a long period of time, it was not severe or pervasive. One defense that could be raised by the company is that Cindy initially agreed to partake in the sexually suggestive skit, and hence the behavior might not have been “unwelcome.” The degree to which Cindy’s participation was voluntary as opposed to coerced would suggest that the behavior was not in fact unwelcome. On the whole, this argument is weak, and at best it would only extend to the skit itself. It appears that the subsequent treatment was in fact unwelcome, since Cindy told them to stop on several occasions. The better defense for the company is that the harassment appears to have been exclusively conducted by coworkers rather than supervisors. In that circumstance, the company is only liable if it knew or should have known of the conduct and failed to prevent it (negligence standard). Here, reasonable minds can differ. On the one hand, Cindy never complained, and there are no facts to suggest that anyone in higher authority actually knew about this. On the other hand, perhaps they should have known. The skit which drew the initial reaction was presumably witnessed by at least some people in authority, and the fact that coworkers observed the behavior to the point where they stepped in to address it suggests that it was open and obvious. The cartoon in the men’s room suggests the same. [Note that the Faragher defense and its California counterpart, the “avoidable consequences doctrine” were only discussed in the context of harassment by supervisors. The cases thus far have only applied it as such. However, if a student raised these defenses instead of discussing the negligence standard, partial credit was given since one can argue that the defenses should apply to coworker harassment as well] SECTION II 1. The Mixed Motive Defense: A. A mixed-motive defense is proven when an employer shows that notwithstanding its use of an unlawfill criterion as a motivating factor in the termination, it would have made the same decision anyway based on a non-discriminatory factor. If this is proven, the employer’s damages are limited under Title VII to injunctive relief and reimbursement of attorneys fees [also declaratory relief but we did not really discuss that and students were not penalized for failing to mention it]. B. The opponent’s comments are incorrect in a few ways. First, the implication that Title VII is separate and distinct from the F EHA is misleading, since California will follow federal case law where the two statutes are similar. BAJI 12.26 demonstrates that it is anticipated that a California court would follow and apply this defense, but no appellate court has considered this issue. Second, it is untrue that Congress did away with the defense after Price Waterhouse v. Hopkins. That case created an absolute aflirmative defense, which Congress merely scaled back, and still allowed the above-mentioned relief (see “A’ above). Arguably California would apply the absolute aflirmative defense under Price Waterhouse and bar all damages, since California has not likewise amended the FEHA in the manner that Congress did with Title VII. That is the result presumed by BAJI 12.26. (However, that would mean that employees would have less rights in California, which is almost never true in the discrimination context.) 2. Company A and Company B Accommodations Issues Yes, there are at least two reasons to suspect that the obligations might differ for these companies. First, we do not know where the employee from Company A is located. If he is not located in California and hence just subject to the ADA, and not the FEHA, then a more restrictive definition of “disability” may apply. 1.6., (1) California only requires a limitation on major life activity instead of a substantial limitation; (2) an ailment is considered in California before any corrective measures, whereas under the ADA it is after corrective measures; and (3) to the extent that working is a major life activity, being eliminated fi'om just one job is adequate in California as opposed to an entire class or broad range of jobs under the ADA in showing that the ailment places a limitation on a major life activity. Thus, because of the differences in defining “disability,” its possible that Company B might have a duty to accommodate, while Company A might not have a duty at all. On the other hand, Company B is much smaller, and thus it is more likely to be able to claim an undue burden defense. One part of the undue burden defense is that the costs of the accommodation might threaten the employer’s financial survival or health. (Vande Zande case.) This element is more likely to be met by a small company with 6 employees than with a nationwide company with 100,000 employees. SECTION III (choose 2 out of 3 to answer) 1. Mike’s Unemploment Benefits No, Mike is not likely to be disqualified fiom receiving unemployment benefits. An employee who voluntarily leaves his employment is not disqualified from receiving unemployment if he does so with “good cause.” Good cause is met where a reasonable worker under similar circumstances would choose to be unemployed. Leaving a job in response to a deprivation of equal opportunities under the F EHA is considered “good cause” by statute, and will not preclude a claim for benefits. (Unemp. Ins. Code § 1256.2.) 2. Chris’s Overtime Claim Yes, Chris is likely to prevail in an overtime claim. He has worked over 8 hours a day and 40 hours a week, both of which require overtime pay. His job duties could not match any of the exemptions to the overtime requirements (Administrative, Executive or Professional employees). Although he has signed a contract saying he will not get overtime, such contracts are unenforceable. (Dunlap v. Gray-Goto, Inc.) 3. Kyle’s Workers Compensation Claim No, Kyle’s injury is not likely to be covered by the workers compensation system. Although Kyle’ s injury occurred in the course of employment and arguably arose out of employment (connected with the job), it arose out of an altercation in which Kyle was the initial physical aggressor. This is an express exclusion from the scope of the workers compensation system. ...
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