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Course / Session F12 Sachs - Employment Law NA Section All Page 1 of 19


Institution Harvard Law School Printed on December 20, 2012 Course F12 Sachs - Employment Law Instructor NA Exam Mode TAKEHOME

Exam ID 824746

Count(s) Section 1 Section 2 Total

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Char(s) 11484 9356 20840

Char(s) (WS) 13315 11019 24334

0 *824746-F. In Halferty. Gridwell likely need not be paid for time "available". when cannot do anything else. §206(a). and customer representatives aren't administrative/professional (§213). FLSA Claim: FLSA applies as Gridwell does no management.-19-2* 824746-F.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. However. but might need overtime for time actually on phone.Employment Law NA Section All Page 2 of 19 __________________________________________________________________________________________ Answer-to-Question-_1_ (1)Gridwell’s Claims. Armour/Skidmore found “working” if employee stays very close or in employment building. Gridwell paid more than $7. Even in Bright.12. but maybe working longer than forty hours/week without time-and-a-half. This distinguishable as Gridwell could be anywhere. Could not have waived this (Dunlop).-19-2 824746 Course / Session F12 Sachs . and do anything.25. . available for phone calls as ambulance dispatcher wasn't working. Gridwell has case for some overtime--time on phone. §207(a)(1). In Bright. "working" depends on whether employee can use time effectively for own purposes.9. employee compensated whenever called. employee couldn't be more than 20 minutes away to make repairs 24/7 wasn't “working”. In Bright. (But given modern employment--many employees often talk by phone post-work--court may not treat as compensable due to employer burden).

Acme should note he's employmee-at-will (EAW). Gridwell’s Contract Claims: Due to firing. if Ames has California’s UCL. First. Acme could fire for good. could bring under that instead--incorporates FLSA--for 4 years backpay. no firing-only-for-cause promise to the contrary. However. Bahramipour. Skagerberg). Gridwell could argue firing for political views violated implied covenant of good faith (Fortune). Here. Second. Ray Rule complicates this. Acme has two responses.-19-3 824746 Course / Session F12 Sachs . firing would still not be bad faith--firing someone for something about which customers complained unlike firing to reduce commissions. But . Marshall may require ("each employee receive.-19-3* 824746-F. but just district court.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11.9. Ray Rule like Watson Memo--offer personal life freedom.Employment Law NA Section All Page 3 of 19 __________________________________________________________________________________________ Unclear whether he receives check weekly. or bad cause (Wood. Unlikely other courts will follow (biweekly/monthly payment structure so common). Ames Court maybe willing to enforce employment manuals (Woolley) and there is no disclaimer here. as long as doesn’t affect work.0 *824746-F. Ames should not adopt Fortune--inconsistent with traditional/commonly-accepted EAW. no. Gridwell may sue for two years’ backpay given FLSA's SOL. However. each week"). Gridwell can argue employment contract was violated. Most on point is Rulon-Miller--Gridwell could argue freedom from inquiries into personal life by contract rights from policies.12.

and no evidence other customers knew or would react badly (cf. Gridwell’s work was affected--complaints. a free speech concern. But. But Novosel found that distinction unimportant (due to economic power of corporations). but still faces heavy hurdles. Gridwell’s Tort Claims: Rulon-Miller Court held IIED cognizable for firings implicating personal life--to be denied job for conduct unrelated to work is degrading.12. Here. Perhaps his relaince on manual strengthened by strong employee reviews (Pugh). could argue stronger case where customer complained). Wilson--prospective guesses about customer preferences insufficient in TitleVII context). Finally. only one client. like being fired for helping AIDS clinic. In Brunner. and applied the First Amendment to bind private employers--cannot fire employee refusing to lobby.-19-4* 824746-F. Other courts recognize no tort for firings implicating personal life.-19-4 824746 Course / Session F12 Sachs .0 *824746-F. In Rulon-Miller. and employer flaunting power by taking away employee’s choice. no wrongful discharge unless employee fired for not performing illegal act or to reduce pension.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. Instead. Most Courts wouldn't apply Novosel.9. Acme could not fire employee for Occupying. but Acme would probably lose if it does (again. Acme must distinguish RulonMiller--Court was offended by deception. 0 evidence dating rival affected Rulon-Miller’s work. Acme’s a private employer--typically not bound by First Amendment. . Occupy protests become grounds to fire.Employment Law NA Section All Page 4 of 19 __________________________________________________________________________________________ facts differ.

assuming substantive rights to privacy flow from the policy (Rulon-Miller). but weaker in that he disclosed the information himself. Rogers could argue firing for being gay violates implied covenant of good faith (Fortune).9.0 *824746-F.-19-5* 824746-F. as compared to evading commissions. Easy to prove discrimination under McDonnell Douglas.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. . Contract Claims: Employment is also clearly at will (Skagerberg). Likely also not "bad faith" to act upon religious convictions against homosexuality. Title VII Claim: If sex discrimination: unlawful to discriminate for compensation/terms/conditions/privileges of employment--§703(a). again.Employment Law NA Section All Page 5 of 19 __________________________________________________________________________________________ (2) Rogers’s Claims. Rogers could meet PFC--qualified and had job until sexuality disclosed. Southwest also hired men in nonemployee-contact positions. Again. Rulon-Miller’s relationship was also no secret. Wilson. Rogers’ claim stronger than Gridwell’s as Gridwell’s private life garnered a complaint. But the Watson memo still applied. While not privacy (Rogers disclosed his sexuality).-19-5 824746 Course / Session F12 Sachs .12. Ray Rule again complicates. May have Rulon-Miller-like claim--however. Acme thus has no defense of offering Rogers administrative position. Ames may not adopt Fortune. Brunner-jurisdictions come out differently. Rogers has potential TitleVII and contract claims.

gender-based. But surprise at learning stereotypical male was gay perhaps belies belief sexuality and genderconformity are intertwined. Regardless. But could be “because of…sex”--protects men and women (Oncale quoting Newport News).824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. First. Ray acting on religious beliefs could strengthen notion of sexual orientation discrimination separate from sex discrimination. and should look for statements demeaning employee’s manhood--none here). and perhaps limited to. antigay sentiments may.9. he never would have been punished for desire to marry man). and rejected. while other states recognize sexual .-19-6* 824746-F. but need not be.Employment Law NA Section All Page 6 of 19 __________________________________________________________________________________________ Unlikely Acme produces legitimate. nondiscriminatory reason (none in facts).-19-6 824746 Course / Session F12 Sachs . Thus grooming policies with differences between sexes wasn't stereotyping. And.0 *824746-F. Congress also considered. Price becomes about Catch-22 for women who must be aggressive to succeed. Price's facts: employer who acts on belief that female employees shouldn't be aggressive acted on gender. Acme’s best argument relies on reading Price narrowly (Jespersen): Sex stereotyping is intertwined with. Because of…sex: Sexual orientation discrimination is not cognizable.12.) Rogers could argue sexual orientation animus is merely sex stereotyping: reflects stereotype relationships with women essential to being a man (and if Rogers were a woman. and then punished. protecting sexual orientation. Rogers’ claim based on broader reading of Price Waterhouse (Congress intended to strike entire spectrum of disparate treatment from sex stereotypes. (As Schultz claims. §703(a). Ray and Todd believe Rogers acts like stereotypical male. Acme has multiple defenses. Second. and prove ultimate issue of discrimination given context (Hicks). Rogers could prove pretextual.

-19-7 824746 Course / Session F12 Sachs . As Rogers has been working here already with no complaints.9. essence of customer representative team at least is customer satisfaction. If Rogers wins. gets attorney’s fees (Albemarle). No evidence customer preference is nearly as strong as foreigners’ for male marketers--Fernandez's high bar. Customer preferences unlikely.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. Acme may want to settle Title VII claim.12. employer’s “beforehand belief” does not establish BFOQ (Wilson).Employment Law NA Section All Page 7 of 19 __________________________________________________________________________________________ orientation discrimination. here. does it require only for gender-nonconforming workers]. Vicarious Liability? Since tangible employment actions were taken here--not solely hostile work environment--Acme's definitely liable (noted by Faragher). If Acme wins. However. undermining claims of necessity (Dothard).-19-7* 824746-F. Stronger than Wilson as Southwest's essence was transporting. While Acme's essence arguably manufacturing. customers do not know he is gay and made no complaints--even less evidence than the Wilson survey. . will not--it's a close enough question that claim isn't frivolous (Christianburg). Ames doesn't. Second. Acme must argue discrimination reasonably necessary to normal operation of its business--§703(e)(1). and is that reasonably necessary to “essence” of Acme. If legislature doesn't protect it. Courts conduct a two-part inquiry--does the job require a worker be of only one sex [or.) BFOQ: Assuming because of…sex. Court should not (Rogers would argue orientation discrimination not added as legislature assumed it was covered--tricky intent question.0 *824746-F.

” If Ames follows Skagerberg/Veno probably EAW--even "permanent"/"Retire Together" was EAW. Same approach if following Ohanian.-19-8 824746 Course / Session F12 Sachs .9. Employee At Will? Interpretation: “long career[]. objective good cause requirement (Hetes). No parol evidence problem as no written contract after the oral conversation (at least in facts). If it follows Hetes. Independent Consideration: Assuming promise sufficed for cause protection. Those cases—and Pugh— require no independent consideration. Could be good faith regulated by parties (Pugh). then only fired for cause (very similar language). potential claims from OSHAct/TitleVII.0 *824746-F. and if Ames court does. Statute of Frauds issue can be avoided (and since it is anachronistic. Either way. there's no independent consideration here (giving up other job is insufficient-Skagerberg--and got higher compensation for that anyway). or wilfull and . But Skagerberg/Veno do.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11.-19-8* 824746-F. court may want to avoid) by noting the promise would include an exception for business necessity. court probably rejected Skagerberg/Veno in favor of Hetes/Ohanian.Employment Law NA Section All Page 8 of 19 __________________________________________________________________________________________ (3) Dzundza’s Claims: Dzundza may be EAW. business reasons (Ohanian). cause here? Unclear what suffices. plausible contract-based claim. If not. If so.12.

-19-9* 824746-F. But firing that employee for refusing to work in dangerously hot conditions.9. Acme could argue was fired to make room for brother--slimy. She then still has to prove the ultimate issue (Hicks). But also weaker than Whirlpool as retaliation's less clear. where a reasonable person would see danger of death/serious injury. as heat less concerning than unsafe screen where employees already fell/died. but not violating OSHAct. But Acme has strong defense here —fired her to hire brother. or OSHAct protest. demonstrating a nondiscriminatory reason. §703(a).-19-9 824746 Course / Session F12 Sachs . vicarious liability since tangible employment acts were .Employment Law NA Section All Page 9 of 19 __________________________________________________________________________________________ substantial failure to render honest/faithful/loyal service (Chiodo). Danger smaller than Whirlpool.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. and then someone else filled role—and emphasize anti-Poland comment. If she won. OSHAct/TitleVII Claims: OSHAct: may violate general duty clause §(5)(a)(1)--government could bring complaint-but broken AC for day seems insufficient.12. But heat can kill (ask Hanson!) so probably acted reasonably.0 *824746-F. which is a jury question. Under McDonnell Douglas.12--protecting employee from retaliation if refuses to expose self to dangerous conditions. or to hire brother. TitleVII: Discrimination because of…national original prohibited. but one she'll probably lose. seems unlikely to be good faith—let alone the more restrictive tests. But she has a claim against Acme from 29CFR§1977. Dzundza might make PFC (assuming she is Polish—although possible perception enough like ADA)—she was qualified but fired.

and no evidence she's upset (Harris). Ames may impose procedural requirements on arbitration involving statutory rights (Armendariz). Discover Bank rule in California would have found §4 unconscionable. and refused to enforce agreement. (Though requirement of not consolidating may be a .824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11.Employment Law NA Section All Page 10 of 19 __________________________________________________________________________________________ taken (Faragher). but could waive courtforum unless Congress evinced intention to preclude waiver of judicial remedies for statute at issue. I would be happy to get back to you about whether any legislative history in OSHAct/VII precludes waivers.12. But Concepcion found FAA prohibits such limitations. (Might claim harassment--TitleVII can cover former employees (Robinson)--but doubt one comment could show hostile environment. The ADEA does not preclude—and if ADEA statutory structure/purpose did not. And §4/§6 limits enforceable if no statutory-based rights are at stake (Armendariz limits based on Gilmer--only statutoryrights).-19-10 824746 Course / Session F12 Sachs .9. Not abusive enough for reasonable person. Contract-Based: due to agreement contract-based claims must be arbitrated-§1 (Gilmer assumes this and was about extending to statutory rights).) Arbitrate? Agreements to arbitrate enforceable in employment contracts (Circuit City).-19-10* 824746-F.0 *824746-F. probably not in OSHAct/Title VII either. So §4 ban cannot be unconscionable. OSHAct/TitleVII: substantive statutory rights cannot be waived.

damage limitations are part of deal between employers and employees to gain efficiency/flexibility.9. reflecting private contract idea of employment. like Armendariz. may read into agreement requirement of neutral arbitrator.-19-11* 824746-F. and agreement to arbitrate would be unenforceable. minimal discovery.Employment Law NA Section All Page 11 of 19 __________________________________________________________________________________________ little broader--but Concepcion probably covers this.12. ------------------------------------------- . §6 is unconscionable. as consolidating reduces informality too). FAA would also preempt limitation of damages.-19-11 824746 Course / Session F12 Sachs . Under Armendariz. Court. and agreement would be enforceable. Under broader reading. On narrower reading of Concepcion—Discover Bank rule's only unacceptable because limitation imposed transformed arbitration in fundamental ways— courts can find §6 unconscionable--damage limitations not transformative.0 *824746-F.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. Remains unclear post-Concepcion. and written award.

" based on another rule that explains MacGregor without supporting Brunner over Rulon-Miller: protecting employee choice. However. the refusal to draw that same distinction can operate to benefit the employee in the unemployment insurance context. in contrast to Rulon-Miller and Missouri’s unemployment system. the answer probably is "maybe. So it is appropriate to break down the work/life spheres model? Although attractive in the unemployment context. by permitting the state to weigh personal reasons to excuse work absenteeism.-19-12 824746 Course / Session F12 Sachs .0 *824746-F.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. By contrast. they operate with markedly different results. it's devastating from a broader workers’ rights view.-19-12* 824746-F. . Brunner and MacGregor stand for one proposition: when evaluating work-based claims. Brunner’s refusal to draw a distinction between work and life harms the employee-allowing the employer to leverage coercive economic power against her for personal acts. By permitting employer to consider employee’s private actions when firing them. Brunner and MacGregor stand for a weak conception of the work/life spheres distinction.9.12. determinations can be made relying on that employee’s personal life. Accordingly.Employment Law NA Section All Page 12 of 19 __________________________________________________________________________________________ ------------------------------------------- Answer-to-Question-_2_ (1) Facially. Ultimately.

Novosel. While they share an approach to the work/life spheres.12. a state must look to her personal life. a private company cannot do the same. While the work/life spheres distinction approach would merit finding Brunner and MacGregor correct. In Novosel.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. based on a view of employment as a fundamentally asymmetrical relationship. To protect MacGregor from choosing between taking care of her child and having access to some money. the Court argues cases applying First Amendment to government employers did not base the decisions on state .9.0 *824746-F. an emphasis on employee choice means that MacGregor is correct. only one seeks to remedy the asymmetrical employment relationship by protecting employee choice. But to protect Brunner from choosing between volunteering and keeping her job.-19-13 824746 Course / Session F12 Sachs . disagrees.Employment Law NA Section All Page 13 of 19 __________________________________________________________________________________________ Courts repeatedly protect employees from making unacceptable choices (Nees and Bodewig immediately come to mind). (2) Should an employee's rights be the same whether she works for a private employer or for the government? In determining if an employee’s privacy rights were violated. the different tests employed by O’Connor (government employer searches must be reasonable at inception and in their scope) and Trotti (private employer’s intrusion on privacy was only actionable if it was of such magnitude as to cause an ordinary individual to feel severely offended) demonstrate that the Trotti Court thinks their rights should be different. while Brunner is inappropriate. in the First Amendment context.-19-13* 824746-F.

9.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. on the other hand. Judge Becker. Novosel argues private employers has vast amounts of economic power to irremediably distort the political process. would argue for Trotti’s approach instead of Novosel. and Trotti was wrong to employ a lesser standard than O’Connor. Which is right? One could argue that the same vast power in Novosel could irremediably eliminate individuals’ rights to privacy in the modern world (think of how much time employees spend at work). This claim reflects an agnostic theory of the differences between public/private employment. Moreover.-19-14* 824746-F. Incorporating the First Amendment through the tort of wrongful discharge in violation of public policy.12.0 *824746-F. There are multiple strong arguments for the government being treated differently: government actions have a major symbolic effect. the government is more knowledgeable of individual rights and should follow them closely. Finally. the government acts as one whole—so one agency free from Fourth Amendment restrictions in dealing with a certain person could work with others who should be bound by them. (3) While enabling fired employees to win tort claims against their former employers. but instead on protecting the political process. and the government has far more coercive power because it holds a monopoly in many fields. the torts that Agis and Nees apply reflect a sharply different view of the employment relationship and the resultant justification for judicial intervention.-19-14 824746 Course / Session F12 Sachs .Employment Law NA Section All Page 14 of 19 __________________________________________________________________________________________ action doctrine. While both could .

be understood in the same light. but their private agreement could harm others. In Agis. Given our general contract principles to enforce deals between individuals barring fraud/unconscionability/duress (Posner in Outsource). public humiliation. there's a sense Courts should not go too far in remedying asymmetries.0 *824746-F. Nees can.-19-15* 824746-F. The Court stepped in to remedy the employees’ relative weakness—preventing an employer from using that relationship to particularly harmful ends.12. Nees is better understood as an effort to protect the third party public.Employment Law NA Section All Page 15 of 19 __________________________________________________________________________________________ plausibly be understood as an effort to remedy asymmetries in the employment relationship. Perhaps that explains a sense Nees is a wrongful discharge. the reasons why this might be an IIED—arbitrariness. and degradation of another person by imposing feelings of powerlessness on them—reflect use of employer power to harm employee. “jury system would be adversely affected” and “will of the community would be thwarted. But the third party public had no role in shaping contract. and degraded as a person. while Agis is something of a stretch.-19-15 824746 Course / Session F12 Sachs . she will feel similarly powerless. If employee is forced to choose between legal duty to serve on a jury and her job. If Nees had not found this wrongful.” Employment may be between two private parties.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. But there’s a better way to read Nees—as an attempt by Court to protect the third party public from externalities of a private contract. . arguably.9. and so the public should not be held responsible for its result. use of power for the unrelated goal of leveraging confession from someone else.

In Byrne. Most dismissively. In Chicago. most simply.-19-16 824746 Course / Session F12 Sachs . Perhaps Chicago Court is more attuned to concerns of mentally ill. or perhaps depression is more troubling to courts than serious stress.-19-16* 824746-F.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. noting prior emotional issues. forcing work sphere to bend to accommodate the life sphere. But this could also underscore different conceptions of the roles Worker’s Compensation and FMLA play. But Byrne’s treatment of the mentally ill employee is as deferential as Chicago’s is dismissive. First. but Court refused to grant compensation. Byrne knocks them down. worker’s comp applicant suffered severe stress. WC could be understood alongside a strong work/life sphere distinction.12. employee was granted FMLA leave due to depression. Thus. Bending over backwards to support him. Court noted his unusual behavior might have been constructive notice of a condition. they reflect different court approaches to the problem of mental illness. Whereas Chicago raises obstacles. There are two ways to understand this.0 *824746-F. WC system does not look to personal life in making these determinations--the damage done in the work sphere alone is compensable.Employment Law NA Section All Page 16 of 19 __________________________________________________________________________________________ (4) Chicago and Byrne grapple with the question of when to recognize employee mental illness for the purposes of statutory employment laws. or could be excused if was unable to give notice. it contended the severe burdens teacher faced were no greater than any other teacher might. . But FMLA is clear attempt to break that distinction down.9.

(5) Dunlop.-19-17 824746 Course / Session F12 Sachs . Gilmer explicitly rejects asymmetrical relationship claim (“mere inequality in bargaining power…is not sufficient reason”). this is inaccurate. But though Gilmer states these can coexist. where the origins of the mental illness do not matter. in finding statutory rights in the FLSA cannot be waived. But Gilmer. clearly opposes a private contract conception of employment. finding agreements to arbitrate statutory rights enforceable.0 *824746-F. Dunlop and Gilmer create a dichotomy: substantive rights cannot be waived but rights to judicial remedies can be. operate to benefit employees. but need not. relies on private contract conception instead. Moreover. Whether because it seeks to protect weaker employees (those receiving the lowest wages)--the asymmetrical relationship view--or because it seeks to protect the public from providing for those who receive insufficient salaries--third party public view--Dunlop/FLSA see contracting as more than between two equal and free parties. the very obstacles (whether illness is caused by the work itself) raised in Chicago are irrelevant under the FMLA. because the public would have no role in a waiver decision—and thus would face externalities from that private choice. .12. this shows the work/life distinction can.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. Gilmer implicitly rejects third party public or public views. As with (a).9. by allowing waivers.-19-17* 824746-F.Employment Law NA Section All Page 17 of 19 __________________________________________________________________________________________ Thus.

824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. §4316(c). demonstrates Wood’s claim hasn’t lost all its force. etc. But Weil argues. legislature is loath to add cause protections except where strongly . but a waiver of an important way to enforce that right at all.-19-18* 824746-F. while only exposing those seeking the right to the risks . USERRA’s cause provision—returning soldier cannot be fired except for cause for year—shows Wood’s statement is no longer correct (other exceptions include Title VII. etc. Class action isn’t just remedy--ensures substantive rights are actually enforced. But because of desire to avoid interfering with EAW managerial discretion. the only way to avoid that presumption is to contract around it (and given Skagerberg.9. Valerio.) However. that’s a high bar). makes little sense not to have such protections in many statutes--FLSA. that USERRA alone has a one-year for-cause provision (and not those who seek leave (FMLA) or complain about safety (OSHA)). there's collective action issue to enforcement. (6) Wood makes a descriptive claim regarding the US employment system: that an “inflexible” rule is that “hiring is prima facie a hiring at will. Indeed. A waiver of a remedy is not just a waiver of a forum.12. OSHAct.” To Wood. because attempts to use statutory rights tends to benefit many. Thus. following the private conception approach in Gilmer undermines the asymmetry/third-party approach adopted in Dunlop. Concepcion found FAA preempted state attempts to require class actions—which is seemingly remedy-based.-19-18 824746 Course / Session F12 Sachs .0 *824746-F.Employment Law NA Section All Page 18 of 19 __________________________________________________________________________________________ Concepcion and David Weil’s Collective Agents underscore incompatibility.

influencing choices to support service is invasive. could punish employees for joining military to defend public).0 *824746-F. For those who believe employment contracts are between the parties.9. In EAW. from administrability perspective.-19-19 824746 Course / Session F12 Sachs . that decision is left to managerial discretion.Employment Law NA Section All Page 19 of 19 __________________________________________________________________________________________ supports the policy goal. or courts. But those who recognize harm employment contracts can impose on the public (if not for protection. but it remains a rule. The rule may not be inflexible. difficult to define what constitutes sufficient cause with any precision.-19-19* 824746-F.824746 Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11. §4316(c) also poses problems—as Pugh noted. Whether one trusts private employers. §4316(c) is appropriate.12. . to make correct employment decisions further influences one’s normative choice between Wood and §4316(c). or public. However. Which is preferable? This relies on whether one subscribes to private idea of employment.

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