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Firing Employees and Employment Law

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Instructions:
(1) Review the following case scenario and address the issues outlined in the scenario
(2) Identify and discuss all of the applicable laws and how they apply to each of the individual situations. (See employee descriptions below) You must fire 3

Reduction in Workforce Exercise

More Beer, Inc. is a 25 million dollar a year micro brewing company heavily involved in the direct marketing of its various micro brew products. In order to cash in on the internet selling boom, More Beer, Inc. opened two new marketing and direct distributions channels (www.morebeer.com & www.iamthirstyformorebeernow.com). Soon after these websites went live, technology problems, together with sluggish sales killed the company's profits. As a result, the company has decided to abandon its new direct marketing plan and to reduce its workforce.

You are the Vice President (VP) of HR for More Beer, Inc. The President of the company has asked you to terminate the employment for a number of employees. He has given you a list of people to consider and has charged you with writing a memo describing which employees to terminate, the reasons for each termination, what, if any severance is to be offered and what risks might be inherent with each particular employee in terms of post termination litigation.

Your job as VP of HR:

You must fire 3 of these employees. Two employees may befolded into existing openings in the rest of the company.Here are the employees:

Mike Williams

Mike is a 34 year old Asian male. His overall track record with the company is above average. His productivity is above the median although other employees complain that they have difficulty understanding him because he speaks English with a heavy accent. He has achieved no special honors or awards while employed with the company. He has a BS in IS from a good University. His job duties include maintaining existing computer systems which will be obsolete after the RIF. He has had no absenteeism. Mike recently came to you with questions regarding labor organization and there is a rumor that he is talking to others about joining a service union.

Phillip Price:

Phil is a 32 year old White male. His overall track record with the company is average. His productivity is average. He has been solely responsible for much of the quality programming which took place in the program being abandoned. He holds no advanced degree but his experience in the Navy has given him practice experience that goes beyond the abandoned programs. However, Phil seems to have an absenteeism problem, missing 17 days in the last two months. Phil has recently let you know that he is homosexual and he feels like others in the company have been treating him differently since he "came out."

Sally James:

Sally is a 55 year old White female. She is beloved at the company for her friendliness and willingness to help others. Sally is an administrative assistant assigned to the overall organization of the failed marketing endeavor. Although it failed, it is generally thought that Sally did a great job in her administrative tasks. Sally has been with the company for 20 years and is a single mother with a young son in college.Terminating Sally will cause almost immediate financial hardship for her. Sally has missed 13 days in the last two months.

Margaret Jones:

Margaret is a 28 year old African American female. She is a very dynamic salesperson. Although most of the new division's sales came from Margaret's hard work, she is generally perceived to be a ladder climber and puller and out only for herself. She is not perceived to be a team player although it is widely recognized that she is smart and talented. Margaret is very active in the local chapter of a civil rights group and, on several occasions in the past, has complained on behalf of other employees when she believed they were not being treated fairly. She has missed two months work in the last 12 months.

Jenny Smith:

Jenny is a 30 year old female. She is originally from South America, and is fluent in 3 languages in addition to English, which is very helpful to the company's marketing efforts. She holds a BS in PR and was the public relations person assigned to the team. When at work, Jenny does a very good job but she has missed multiple days
lately because she is early in a pregnancy. Jenny's husband has recently lost his job and she has expressed to you her concerns for her job and continued health care during her pregnancy. She recognizes her attendance problems and has promised to be better in her attendance just as soon as she gets past her morning sickness.

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Mike Williams

Mike would be fired because his services would be obsolete after the RIF. His services as an employee would be dulled following the RIF and this is the precedent for firing him although he has an above average track record as an employee. Because most of the companies in America operate under the banner of at-will employment and distinguish this form of employment from a union or "for cause" employee, the company can legally fire any one of its employees without facing legal problems because most probably Mike wasn't under any contract. Therefore, Mike would be relieved of his duties because he was expandable once his area of expertise would become obsolete.

Phillip Price:

Phil's ...

Solution Summary

The expert examines the firing employees and employment laws. The applicable laws and how they apply to each individual situations are discussed.

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An "at-will" employee cannot be fired for which of the following?

1. An "at-will" employee cannot be fired for which of the following?

a. absence from work due to bereavement.
b. absence from work due to broken car.
c. absence of work to take his wife to emergency room because of serious illness.
d. absence of work due to job interview

2. Crystal quits her job 6 months ago, and now calls you (the Human Resources manager) demanding a copy of her personnel file in a very unpleasant manner. Do you have to give him her file back?

a. Yes, an employee's personal information is her private property.
b. Yes, Federal law requires an employer to make an employee a copy upon request.
c. No, you never liked Crystal much and she isn't entitled to a copy under either LA or Federal law.
d. No, the doctrine of res ipsa loquitur applies.

3. Which of the following would likely be found actionable under sexual harassment laws?

a. a male supervisor repeatedly tells jokes that are offensive to female subordinates because they make fun of the subordinate's ethnic background.
b. A male supervisor repeatedly makes sexual comments to his female subordinate about one of his female colleagues behind her back.
c. A male supervisor always refuses to travel overnight with female subordinates.
d. A male supervisor mentions confidentially to a female subordinate that he and his wife are having trouble conceiving a child.

4. The Americans with Disability Act (ADA) is only applicable to employers with:
a. 10 employees or more.
b. 15 employees or more.
c. 1 employee.
d. Act applies to all employees.

5. Brandee, a supervisor at XYZ Co. keeps posters of nude men in the corner of her office. The posters:
a. Are her business and no concern to others.
b. Are not a problem unless someone complains.
c. May be a basis for proving sexual harassment.
d. Will likely increase the morale of employees.

6. After being denied a job at Caesar's Palace as a "greeter", Mike Tyson believes that his Title VII rights may have been violated and wants to file a lawsuit. Tyson may:
a. Bite off the supervisor's ear.
b. Exhaust his administrative remedies.
c. Proceed directly to Federal court.
e. None of the above.

7. The most important federal statute concerning employment discrimination is:
a. The Equal Pay Act
b. Fair Labor Standards Act
c. Title VII of the Civil Rights Act.
d. Employment discrimination is covered by common law, not by Federal.

8. John K, a supervisor refers to his Afghan employees in a racially derogatory manner and tells them that the company will not hire Afghan employees in the future. He taunts them with "You're a Taliban, a stinking Taliban!" comments when they walk by during work, and tells other workers that "we should have let those Towel heads stay at home with Osama." The Afghan employees will have a viable national origin claim if the supervisor's actions are motivated by:
a. Their place of origin.
b. Their linguistic characteristics.
c. Their association with the local organization of Afghan people.
d. All of the above.

9. An employer cannot be liable for illegal harassment if it tolerates harassment based on
a. sexual stereotypes
b. ethnic characteristics
c. work duties
d. speech impediments

10. Disparate treatment discrimination occurs when:

a. an employer hires a rational number of protected class employees.
b. An employer intentionally discriminates against members of protected classes.
c. Members of protected classes boycott an innocent employer.
d. Employees subject fellow employees to lewd or suggestive comments.

11. Which of the following is the best definition of a prima facie case?

a. a case that requires a burden of proof beyond a reasonable doubt.
b. A case that requires the plaintiff to exceed her burden of proof.
c. A case that rests on negligence.
d. A case in which the plaintiff produces sufficient evidence of her claim that the case could go directly to the jury unless the Defendant has an affirmative defense.

12. The Americans with Disabilities Act was enacted when?
a. 1964
b. 1973, along with the Rehabilitation Act.
c. 1986
d. 1990

13. If customers sexually harass employees and the employer does not address the problem, what may happen?

a. The employer will not be liable because the harassment was by a non-employee.
b. The employer will be liable only if she can exert control over the customer.
c. The employer will be liable only if she cannot exert control over the customer.
d. The employer may violate rules of etiquette, but not legal rules in this case.

14.Compliance with Title VII is monitored by which Federal agency?
a. O.S.H.A.
b. E.E.O.C.
c. Dept. of Labor
d F.T.C.

15. A full-time employee is entitled to how many hours of FMLA leave?
a. 340 hours
b.480 hours
c. 600 hours
d. 980 hours

16. Which of the following is NOT a necessary characteristic of a "disability" under the ADA?

a. it must be a physical or mental impairment that substantially limits on or more major life activities.
b. It must be an impairment that has lasted for more than one year.
c. The disabled person must be regarded as being disabled.
d. There must be a record of disability.

17. If a qualified job applicant has a disability but is suited for a job, what must the employer do?

a. not hire the applicant because she will probably cost more in terms of medical insurance premiums than will other employees.
b. not hire the applicant because the disability will be distracting.
c. Make reasonable accommodations for the employee, including flexible hours, different or modified training, ramps or elevators, or other changes.
d. Arrange reimbursement from the disabled employee to cover the cost of modifying the workplace or work procedures.

18. Renee works as a bookkeeper for Jamie's Tire Shop. She is often late for work and many days performs listlessly and without enthusiasm. Jamie is upset with the performance and wants to fire her so he can hire a more competent bookkeeper. However, when Jamie brings Renee to his office to let her go, she tells him that if he fires her, she'll sue under the ADA. "On what grounds?" Jamie asks. "Hey, I'm a drug addict, and I get high sometimes." Renee admits. What will happen if Jamie fires her?

a. Renee will be covered by the ADA.
b. She will not be covered by the ADA.
c. Jamie has violated Title VII
d. Jamie has violated Title VII, but Renee cannot collect because she contributed to her termination by poor work performance.

19. A few years ago, two men filed a gender discrimination claim with the EEOC against Hooters Restaurant, claiming that when Hooters failed to hire them, it violated Title VII of the Civil Rights Act. Hooters was not held liable by the EEOC. (Of course, the case settled after plaintiffs sued in Federal court after receiving a "right to sue" letter) What defense did Hooters probably rely on?

a. a diversity claim
b. that its waitresses worked on a permissible seniority system.
c. that gender was a bona fide occupational qualification at Hooters.
d. That the men were too ugly to work at Hooters.

20. Which of the following statements about labor union membership in the U.S. is correct.
a. It covered about 6% of the labor force in 1910.
b. It doubled to about 12% of the labor force by 1920.
c. It peaked at over 40% of the labor force in the early 50's.
d. It is down to below 13% today.
e. All of the above

21. Normally when you fire or discharge an employee, you must pay them on which of the following.
a. Immediately at the time of discharge pursuant to the FLSA.
b. At the next regular pay day.
c. By the 15th of the month pursuant to the FLSA.
d. Within one week pursuant to the FLSA.

21. After graduating from UOP, Renee takes a job with XYZ Widget Company in Baton Rouge for a salary of $75,000 plus 30% commission on all widgets sold. As part of her employment contract, XYZ requires Renee to sign a non-compete clause, that states in part "...employee, in consideration of the training received, company car and other benefits......does hereby agree, upon discharge from this company........ not to work for either a direct competitor of XYZ or other company in the widget industry within a distance of 100 miles of Baton Rouge, Louisiana for a period of two years from said date of discharge". Renee quits four months after joining XYZ to take a job for higher salary and commission at ABC widget in Lafayette. When XYZ sues Renee and ABC to enjoin her from working in the widget industry, who will win?

a. Renee, because a company can't lawfully restrain you from working under the 14th Amendment.
b. Renee, because of the Supreme Court ruling in Snow v Butler.
c. XYZ, because the non-compete clause is reasonable in distance and scope.
d. XYZ, because of the doctrine of sui generis.

22. The American Federation of Labor-Congress of Industrial Organization (AFL-CIO) performs all following functions except
a. engage in collective bargaining with employers
b. ensure enactment of pro-labor legislation
c. improve the image of the labor movement.
d. Reduce and resolve conflicts among various national unions.

23. There are 100 production employees in an appropriate bargaining unit. Sixty of those employees signed a petition to join a union. The NLRB held a secret ballot election. On the day of the election, only 50 employees voted. Of those 50, 26 voted for the union. Who is represented by the union?

a. The 60 employees who signed the petition
b. The 50 who voted in the election
c. The 26 who voted in favor of the union
d. All 100 employees.

24. A private employer with 50 employees institutes a reduction in force (RIF)in which eight positions are eliminated. Employee A's job as an estimator is eliminated and his job duties are redistributed between Employee B, a designer, and Employee C, a sales person. At the time of the RIF, Employee A was 55, Employee B was 39 and Employee C was 49. Can Employee A make out a prima facie case under the Age Discrimination in Employment Act (ADEA)?

a. No, because he was not replaced by anyone.
b. No, because he was not replaced by anyone in a protected class.
c. Yes, if other similarly situated, substantially younger employees were retained.
d. Yes, because the job duties previously performed by the estimator are still being performed by others at the company.

25. Four months after the Department schedule was adopted, Lakesha says that she has converted to a new religion, World Church of Lunarology, that prohibits her from working on Tuesdays or during a full moon. Under Title VII, must Lakesha's company accommodate her new beliefs?

a. No, because Lakesha's religious beliefs changed after she was hired.
b. As long as the company does not try to control her beliefs, she may be required to work as scheduled and fired if she cannot or refuse.
c. Yes, the company must accommodate her new religious beliefs as long as it does not cause an "undue hardship".
d. No, under the doctrine of sui juris.

26. After only 11 months on the job, Juanita must go to Mexico to care for her ailing mother. If your company is covered by the Family and Medical Leave Act (FMLA), must Juanita be given time off?
a. No, because the FMLA does not apply if the employee's relatives live outside the U.S., Guam, or the Northern Mariana Islands.
b. Yes, as long as Juanita has worked at least 1250 hours for your company and is assigned to a location with 50 other employees.
c. Not right now, but Juanita may be eligible to take time off to care for her mother next month when she reaches her anniversary date.

27. The two basic types of sexual harassment under Title VII are:
a. hostile environment and due diligence.
b. quid pro quo and demeaning attitude
c. hostile environment and quid pro quo
d. exclusionary harassment and hostile work environment.

28. XYZ Automotive employs 20 mechanics who are not represented by a union. Hector and Brandon are both mechanics at XYZ and have been friends since grade school. On Friday morning, a customer whose car Hector had repaired returned to complain that repairs were negligently made. Shortly thereafter, the supervisor calls Hector into the office to meet with him. Hector refuses to meet with him unless Brandon is present. The supervisor does not allow Brandon into the meeting and fires Hector when he refuses to meet without him. Is XYZ in violation of the National Labor Relations Act (NLRA)?

a. No, because XYZ Automotive is a non-union workplace.
b. No, because the other mechanics did not elect Brandon as their representative.
c. Yes, if Hector reasonably believed that the meeting could result in disciplinary action.
d. Yes, because XYZ Automotive did not have a rule prohibiting Brandon from attending the meeting with Hector.

29. In order to bring a lawsuit under the ADEA, how old must the plaintiff be?

a. 50 or older
b. 40 or older
c. 65 or older
d. Whatever the definition of "senior citizen" is in his/her jurisdiction

31. Why was the Norris-LaGuardia Act so important to the growth of labor unions?
a. it exempted labor unions from anti-trust laws.
b. it severely restricted the use of court injunctions to stop labor disputes.
c. it provided for the National Labor Relations Board
d. it provided that a company must bargain in good faith.

32. Patricia, your employee, has broken her leg. She brings in a note from a Christian Science practitioner stating she is under her treatment and that she should be released from work for at least five days. Does this qualify for FMLA protection?

a. No, the note must be a medical certification from a medical doctor and not a religious practitioner
b. No, the note is sufficient, but a broken leg is not covered by the FMLA.
c. Yes, a note from a Christian Science practitioner is OK, and the broken leg is a "serious health" condition.

33. What would be a correct statement about the "employment at-will" doctrine in the U.S.?

a. As an employer, you can hire or fire anyone you please, for whatever reason.
b. It is a common law doctrine that, although still valid, has been diminished by court rulings as well as federal legislative enactments.
c. Was explicitly overturned by the U.S. Supreme Court in U.S. v Weingarten.
d. Protects the employee from arbitrary action by an employer.

34. Pub-N-Prime Restaurant is a chain of eight restaurants, all located within 50 miles of each other. Each restaurant employs a minimum of 25 full-time employees. Pub-N-Prime #4 has a total of 34 employees. Is this covered by the FMLA?

a. No, you must have 50 employees in one location in order to be covered by the FMLA.
b. Yes, because there are more than 50 employees within 75 miles of each Pub-N-Prime Restaurant.
c. No, the "business necessity" rule of the FMLA exempts coverage.
d. No because the food industry is specifically exempted from the FMLA.

35. David H works as a branch manager at Union Planters Bank after graduating from UOP. Other employees are amazed to see David pull up in a 2003 Jaguar XJS convertible one day. "It's just a lease", he explains. "I couldn't afford to buy one of these". Private investigators appear at the bank one morning and tell David that they are there to investigate the disappearance of $100,000 on behalf of the Bank. As part of the investigation, they tell David they want to give him a polygraph examination. David remembers the Employment Law course he took at UOP and tells investigators he is invoking his rights under the Employee Polygraph Protection Act (EPPA). "I know my rights, Dude", he defiantly tells them. He further informs the Bank president that he can't be fired for refusing to submit to a polygraph exam pursuant to the Act. After the Bank fires David, does he have any grounds to sue?

a. Yes, the EPPA expressly prohibits employee polygraph examinations.
b. No, the Bank has the right to test him pursuant to EPPA.
c. Yes, this is a clear violation of the 4th Amendment and he will get big $.
d. No, the Omnibus Bank Crime Act of 1994 allows this testing.

36. The first Equal Pay Act was passed in
a. 1864
b. 1910
c. 1938
d. 1963
e. 1991

37. Employers in Louisiana have the right to require drug testing of applicants provided
a. that the applicant knows that it is part of the screening process
b. the employer has already offered the applicant the job
c. all applicants are tested
d. there are no restrictions as long as DHHS approved lab is used and medically reliable tests are utilized.
e. a and b
f. a, b, and c

38. Examples of disabilities that qualify under ADA are:
a. Muscular dystrophy
b. Broken arm
c. Gambling addiction
d. All of the above
39. An example of a reasonable accommodation might be:
a. Telephone equipment designed to help the hearing impaired
b. Allowing a cancer patient to start later and leave earlier
c. Changing workstation height and placement to make room for a wheelchair
d. All of the above.

40. The ADEA prohibits employers from
a. specifying an age preference in a job posting
b. asking an applicant their age or date of birth
c. refusing to hire an applicant on the basis of age
d. a and c
e. a, b, and c

41. OSHA was formed in
a. 1948
b. 1970
c. 1988
d. 1936
42. OSHA is an administrative agency under which Department
a. Department of State
b. Department of Homeland Security
c. Department of Labor
d. Department of Treasury

ESSAY QUESTIONS:
1. Discuss the evolution of the "Employment At Will" Doctrine in the United States and what it means within the employment law context today.

2. Discuss the steps an employer can take to minimize its exposure to possible employment litigation.

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