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LEOB: BUS AD 2900
Chapters 16-18: Agency/Employment Regulation/ EEO
Instructions: Please read the three following fact patterns. Each one has an assignment attached. You must choose two of them at up to 25 points each to complete the exam for this part of the course. You will be drafting memos to your vice president on each of these, so format counts also. There is one bonus question which, if you answer it, may be done without the memo format – but for all of these, make sure to use LEGAL REASONING to explain the advice/assessment you are giving.
1. Facts: Cold Case Trucking (CCT) specializes in transportation of products that require refrigeration or freezing while being transported from the product’s manufacturer to a wholesaler’s warehouse. In an effort to improve its shipping logistics operations, CCT hired Crusoe, who had experience in operations logistics, as a consultant. CCT and Crusoe agree that Crusoe will study CCT’s operations by conducting interviews with employees and customers, then design a new logistics plan and oversee its implementation. The recommendations are now in. You are a CCT manager and Crusoe has just presented his plan for operations improvement at a management meeting. Part of Crusoe’s plan involves converting the delivery truck drivers from employees to independent contractors. Crusoe claims this will save employment taxes and limit CCT’s liability for driver negligence. Crusoe recommends having the drivers sign Independent Contractor Agreements and paying them based on a monthly fee rather than as hourly employees. After the meeting, you receive the following e-mail from the vice president of operations:
TO: All managers
RE: Crusoe’s Plan
Please give me any feedback or concerns you have about Crusoe’s recommendations presented at today’s management meeting. I will be drafting a summary memorandum for top-level management next week and we will be moving to implementation of some or all of Crusoe’s recommendations shortly.
Your task is to draft a three- to five- paragraph e-mail memo to your vice president concerning the proposal to convert drivers to independent contractors. Using your knowledge of agency law, be sure to raise any pertinent legal issues and discuss potential liability in explaining your concerns. Conclude the e-mail with a brief recommendation on how best to proceed.
2. Facts: More troubles at CCT! Because of the recent decisions by the Supreme Court regarding campaign financing, CCT’s top management has circulated a memorandum requesting the participation of all employees in an effort to lobby the Missouri State Legislature for passage of a certain bill before the body which would immensely reduce taxes and state safety rules for trucking companies. John North who has been a model employee for CCT for 15 years, has privately indicated his disagreement with CCT’s political views, and has refused to lend his support to the lobbying effort. The Vice President of the Claims Division of CCT (where North works) has decided to fire North, but the VP has heard of your study of employment law, and is a little concerned about two issues. First, he is worried about a wrongful discharge claim by North, even though he is an at will employee, if the discharge is based on the lobbying demand. Second, the VP has heard something about possible repercussions of firing North since CCT makes it a point to indicate that as long as job performance is satisfactory, continued employment is all but guaranteed. There is that little problem, since North has been a model employee, with a spotless work record.
Your task is to draft a three- to five- paragraph memo to the VP/Claims Division regarding his proposal to dismiss North. Be sure to address the two separate issues of wrongful discharge and implied contract of employment for North in the memo.
3. Facts: When it rains, it pours! Michelle Vinson, an employee of CCT for four years, began as a trainee in Human Resources, and ultimately advanced to assistant to the Vice President of HR. Her promotions were solely based on merit. Sidney Greenstreet, a vice president of CCT, and the head of HR, was Vinson’s supervisor throughout her employment. CCT has recently fired Vinson for her abusive use of sick leave. Vinson has filed a claim againt Greenstreet and CCT, alleging that during her employment, she had “constantly been subjected to sexual harassment” by Greenstreet in violation of Title VII of the Civil Rights Act of 1964. The trial has taken place and Vinson introduced evidence that Greenstreet repeatedly demanded sexual favors from her, fondled her in front of other emplyees, and forcibly raped her on a number of occasions. Greenstreet has denied this, and CCT has categorically denied that any such acts ever took place. Your direct supervisor has been given the responsibility to assess the possible damage to CCT. Her questions for you to answer are:
1. Does the conduct alleged constitute sexual harassment?
2. Does it make any difference if Greenstreet can show the relationship was voluntary?
3. Is CCT automatically liable for Greenstreet’s actions? If so, under what circumstances? If not, what kind of proof will be needed to separate CCT from Greenstreet? And, if CCT does not wish to face such allegations in future, what policies should it put in place?
Extra Credit: If you are feeling like flexing your legal muscles some more, here is an additional fact pattern for you to analyze regarding tort liability of an employer. (Up to 10 extra points, if you can use them!)
Chris Zulliger was a chef at the Plaza Restaurant in the Snowbird Ski Resort in Utah. The restaurant is located at the base of a mountain. As a chef for the Plaza, Zulliger was instructed by his supervisor and the restaurant manager to make periodic trips to inspect the Mid-Gad Restaurant, which was located halfway up the mountain. Because skiing helped its employees to get to work, Snowbird preferred that its employees know how to ski and gave them ski passes as part of their compensation. Before beginning work at the Plaza on December 5, 2013, Zulliger went skiing. The restaurant manager asked Zulliger to stop at the Mid-Gad before beginning work that day, and Zulliger stopped at the Mid-Gad during his first run and inspected the kitchen. He then skied four runs before heading down the mountain to begin work. On this last run, Zulliger decided to take a route often taken by Snowbird employees. Use of this “short cut” was well known to management at Snowbird. About midway down, Zulliger decided to jump off a crest on the side of an intermediate run. Because of the drop, a skier above the crest cannot see that there are skiers below, and Zulliger ran into Margaret Clover, who was below the crest. The jump was well known to Snowbird; the resort’s ski patrol often instructed people not to jump, and there was a sign instructing skiers to take it slow at that point. Clover sued Zulliger and, under the doctrine of respondeat superior, Snowbird, claiming that Zulliger had been acting within the scope of his employment. Who is liable? Explain.