EMPLOYMENT LAW- FINAL EXAMINATION

Closed Book/Three Hours

INSTRUCTIONS:

PROFESSOR PAULINE KIM SPRING2004

1. The exam consists of 2 parts. The two parts will be weighted equally in determining your score on the exam. You should allocate your time accordingly.

2. Part I consists often "short answer" questions. You should provide brief answers to each question. The questions in Part I will be weighted equally.

Part II contains an essay question with multiple subparts. Take time to read through the question carefully and to organize your thoughts before you start writing. The subparts within each essay question will not necessarily be weighted equally.

3. Give reasons for all of your answers, using both the applicable law and the facts presented. You do not necessarily need to provide the exact case name or statutory section for each legal proposition you discuss, although it may be helpful to do so. What is more important is that you make clear the substance of the statutory command or judicially established precedent in your discussion.

Discuss every issue legitimately raised by a question, even if, in your judgment, one issue is determinative.

If the stated facts are incomplete or ambiguous, explain why you think so and why it matters. If necessary to answer the question, you may make explicit reasonable assumptions about the facts.

4. If you are handwriting your exam, use a new exam book for each Part. Write on only one side of each page. If you are taking the exam on your computer, start your answer to each Part on a new page.

5. You will be given credit only for answers that I can read and understand, so write legibly. use complete sentences and check your spelling.

6. Write your examination number on your exam books, on any scratch paper you use, and on your copy of the exam itself, and turn everything in (the exam and the scratch paper as well as your exam books) at the conclusion of the exam.

[END OF INSTRUCTIONS; EXAM BEGINS ON NEXT PAGE]

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Final Examination in Employment Law Professor Kim

PART I

Please provide brief responses to each of the following questions.

1 . What is the difference between "frictional unemployment" and "structural unemployment"? Which type of unemployment is the Unemployment Insurance system designed to address and how does it do so?

2. What is the difference between a "pension benefit plan" and a "welfare benefit plan" and how does ERISA treat the two types of plans differently in terms of vesting requirements?

3. Emma and William were both fired and both sued their employers. Emma alleges breach of a written contract of employment for a two year period. William alleges that he was fired in retaliation for reporting certain safety violations on the employer's premises. How will the two suits differ in terms of the possible remedies that may be recovered? Why should there be such a difference in remedies?

4. A co-worker accused Joe of falsifying his timecard and his supervisor fired him on the spot. What two additional facts are necessary for Joe to have a claim that his Due Process rights were violated?

5. Janine, an employee in the meat department of a local supermarket, was fired for objecting when her supervisor told her to repackage old meat after the "sell by" date had passed and to display it for sale in new wrappers that indicate a later "sell by" date. After she brought suit challenging her termination, her employer moved to dismiss the suit on the grounds that Janine's complaint failed to allege the existence of any oral or written employment contract containing a promise of job security. Should the court grant the employer's motion to dismiss? Briefly explain your answer.

6. A firm engages a worker to perform services under a written contract that states that the worker is an "independent contractor." Is the firm required to comply with federal minimum wage and overtime laws when compensating the worker? Briefly explain your answer.

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Final Examination in Employment Law Professor Kim

7. In what ways is "breach of the implied covenant of good faith and fair dealing" like a contract cause of action? In what ways is it like a tort cause of action?

8. When an employee has entered into a valid covenant not to compete (i.e. in the absence of fraud, duress, etc.), the agreement is fully enforceable regardless of its tenns. True or false? Briefly explain your answer.

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Final Examination in Employment Law Professor Kim

PART II

Curt and Veronica are colleagues and friends, both having worked at MMI in the accounting department. Curt was hired 12 years ago and Veronica was hired 5 years ago. MMI manufactures lawn mowers and other power equipment for use in lawn and garden care.

When Curt was first hired, he was given an employee handbook that spelled out the company's policies and described the benefits offered to MMI employees. Throughout the handbook, MMI emphasized its commitment to a "fair and open working relationship with its employees." The first page of the handbook described "MMI' s Covenant with its Employees": "The Company expects loyal and honest service from its employees. In return, its employees can expect that they will be dealt with fairly. Employees who work hard and are capable have no reason to worry about job security. MMI makes employment decisions on the merits, with respect for the contributions of each individual to the Company." When Veronica was hired 7 years later, she was also given a copy of the employee handbook. The version Veronica received was identical to the one Curt had received, except that it had a new paragraph added at the end of the 15 page manual that said "Nothing in this manual should be construed to create a contract of any kind." Apparently the revised version of the manual was only distributed to new employees.

According to the handbook, one of the biggest advantages of working at MMI is its generous health benefits. The "Benefits" section of the handbook states, "MMI provides full coverage for its employees for all types of medical and surgical care, as well as rehabilitative therapy, so long as the care is recommended and approved by the employee's physician." This language is consistent with the terms ofMMI's Employee Health Plan. Also consistent with the terms of the Plan, the handbook makes clear that health benefits are only available to full-time employees of MMI.

Last summer, Curt purchased an MMI lawn mower for use on his lawn at home at a store maintained on company property for employees. Curt went to the store after he had finished working for the day. After he had paid for the mower, he was loading it in his car when the blade spun loose and hit his ankle, severing a tendon and badly injuring him. Veronica, who happened to be walking by on her way to her car, helped him over to the sidewalk, and ran inside to call for medical help.

Curt required medical care for his injured ankle, and submitted claims for benefits to MMI's employee health plan to cover the costs of that care. After several weeks, the injury had healed sufficiently to permit Curt to return to work; however, his doctor had informed him that he would require surgery sometime in the next 6 months, as well as on-going physical therapy before he regained the full use of his ankle and foot.

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Final Examination in Employment Law Professor Kim

MMI's general manager, Jonah, initially welcomed Curt back to work, saying "I'm glad that's all behind us." Curt then explained his doctor's recommendations and said that he hoped to get the surgery done during a scheduled vacation he had planned for the following month. Jonah said, "we'll see about that" and abruptly terminated the conversation.

Two days later, Jonah informed Curt that he was "no longer happy" with the quality of Curt's work in the accounting department, and that he was being demoted to a part-time receptionist position, effective immediately. Curt was extremely upset, not only because he felt the demotion was unjustified, but also because he knew that it would result in the loss of his health benefits. He did not say anything in response to Jonah at that time, but the next day he called and told the accounting department manager that he was quitting. He insists that he has always been a careful and conscientious employee and that there was no change in the quality of his work over the years he has been with MMI, except perhaps an improvement as he became more familiar with the company's procedures and policies.

A week later, because he was out of work anyway, Curt arranged to have the surgery performed on his ankle. The doctor told him that the post-operative recuperation would require that he stay off his foot for at least one month.

Several weeks after he left MMI, Curt sent an email to Veronica at her work email account, telling her that he had contacted a lawyer and was planning to file a suit against MMI. His email also indicated that she might be subpoenaed to testify about his injuries. Veronica replied that although she didn't much like being involved with lawyers or legal proceedings, she would "testify if I have to." Several days later, Jonah retrieved the two emails from the company email system. He confronted Veronica with printouts of the two emails, asking her "Are you still associating with that slacker Curt?" When she said that the two were still friends, Jonah said "lfl were you, I wouldn't be involved!" The following week, Veronica was terminated by Jonah. No reason was given for her discharge.

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Final Examination in Employment Law Professor Kim

B. Assume that Curt has sued MMI for the injuries caused by the mower blade on a products liability theory, and that MMI seeks dismissal of the suit on grounds that Workers' Compensation provides the exclusive remedy. How would you argue on behalf ofMMI that Curt's product liability suit should be barred? How would you argue on behalf of Curt that his suit should not be barred?

C. Curt' s suit also includes a claim for wrongful termination in violation of public policy, alleging that MMI's decision to demote him was motivated by a desire to deprive him of the benefits available under MMI's Employee Health Plan. Assuming that he can prove the facts he alleges, describe any and all legal problems with allowing Curt to proceed with this claim.

D. In addition to the claims discussed above, identify and analyze any other potential common law claims Curt or Veronica might have against MMI.

E. After quitting, Curt applied for unemployment insurance benefits. Should Curt be disqualified because he quit at MMI? Is there any other basis on which MMI could protest his right to receive benefits?

End of Examination

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