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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

Word(s) 1833 1666 3499

Char(s) 11484 9356 20840

Char(s) (WS) 13315 11019 24334

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Answer-to-Question-_1_

(1)Gridwells Claims.

FLSA Claim:

FLSA applies as Gridwell does no management, and customer representatives aren't administrative/professional (213). Gridwell paid more than $7.25, 206(a), but maybe working longer than forty hours/week without time-and-a-half. 207(a)(1). Could not have waived this (Dunlop).

In Bright, "working" depends on whether employee can use time effectively for own purposes. Armour/Skidmore found working if employee stays very close or in employment building. This distinguishable as Gridwell could be anywhere, and do anything. Even in Bright, employee couldn't be more than 20 minutes away to make repairs 24/7 wasn't working. In Halferty, available for phone calls as ambulance dispatcher wasn't working.

However, Gridwell has case for some overtime--time on phone. In Bright, employee compensated whenever called. Gridwell likely need not be paid for time "available", but might need overtime for time actually on phone, when cannot do anything else. (But given modern employment--many employees often talk by phone post-work--court may not treat as compensable due to employer burden).

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Unclear whether he receives check weekly. Marshall may require ("each employee receive, each week"), but just district court. Unlikely other courts will follow (biweekly/monthly payment structure so common).

Gridwell may sue for two years backpay given FLSA's SOL. However, if Ames has Californias UCL, could bring under that instead--incorporates FLSA--for 4 years backpay. Bahramipour.

Gridwells Contract Claims:

Due to firing, Gridwell can argue employment contract was violated. Acme should note he's employmee-at-will (EAW). Acme could fire for good, no, or bad cause (Wood, Skagerberg). Here, no firing-only-for-cause promise to the contrary. However, Gridwell could argue firing for political views violated implied covenant of good faith (Fortune).

Acme has two responses. First, Ames should not adopt Fortune--inconsistent with traditional/commonly-accepted EAW. Second, firing would still not be bad faith--firing someone for something about which customers complained unlike firing to reduce commissions.

Ray Rule complicates this. Ames Court maybe willing to enforce employment manuals (Woolley) and there is no disclaimer here. Most on point is Rulon-Miller--Gridwell could argue freedom from inquiries into personal life by contract rights from policies. Ray Rule like Watson Memo--offer personal life freedom, as long as doesnt affect work. But

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facts differ. In Rulon-Miller, 0 evidence dating rival affected Rulon-Millers work. Gridwells work was affected--complaints. But, only one client, and no evidence other customers knew or would react badly (cf. Wilson--prospective guesses about customer preferences insufficient in TitleVII context). Perhaps his relaince on manual strengthened by strong employee reviews (Pugh), but still faces heavy hurdles.

Gridwells Tort Claims:

Rulon-Miller Court held IIED cognizable for firings implicating personal life--to be denied job for conduct unrelated to work is degrading. Acme must distinguish RulonMiller--Court was offended by deception, and employer flaunting power by taking away employees choice.

Other courts recognize no tort for firings implicating personal life. In Brunner, no wrongful discharge unless employee fired for not performing illegal act or to reduce pension. Instead, like being fired for helping AIDS clinic, Occupy protests become grounds to fire.

Finally, a free speech concern. Acmes a private employer--typically not bound by First Amendment. But Novosel found that distinction unimportant (due to economic power of corporations), and applied the First Amendment to bind private employers--cannot fire employee refusing to lobby. Here, Acme could not fire employee for Occupying. Most Courts wouldn't apply Novosel, but Acme would probably lose if it does (again, could argue stronger case where customer complained).

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(2) Rogerss Claims.

Rogers has potential TitleVII and contract claims.

Contract Claims: Employment is also clearly at will (Skagerberg). Rogers could argue firing for being gay violates implied covenant of good faith (Fortune). Again, Ames may not adopt Fortune. Likely also not "bad faith" to act upon religious convictions against homosexuality, as compared to evading commissions.

Ray Rule again complicates, assuming substantive rights to privacy flow from the policy (Rulon-Miller). While not privacy (Rogers disclosed his sexuality), Rulon-Millers relationship was also no secret. But the Watson memo still applied. Rogers claim stronger than Gridwells as Gridwells private life garnered a complaint, but weaker in that he disclosed the information himself. May have Rulon-Miller-like claim--however, again, Brunner-jurisdictions come out differently.

Title VII Claim:

If sex discrimination: unlawful to discriminate for compensation/terms/conditions/privileges of employment--703(a). Acme thus has no defense of offering Rogers administrative position. Southwest also hired men in nonemployee-contact positions. Wilson. Easy to prove discrimination under McDonnell Douglas. Rogers could meet PFC--qualified and had job until sexuality disclosed.

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Unlikely Acme produces legitimate, nondiscriminatory reason (none in facts). Regardless, Rogers could prove pretextual, and prove ultimate issue of discrimination given context (Hicks).

Because ofsex: Sexual orientation discrimination is not cognizable. 703(a). But could be because ofsex--protects men and women (Oncale quoting Newport News). Rogers claim based on broader reading of Price Waterhouse (Congress intended to strike entire spectrum of disparate treatment from sex stereotypes.) 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, he never would have been punished for desire to marry man).

Acme has multiple defenses. First, Ray and Todd believe Rogers acts like stereotypical male. (As Schultz claims, antigay sentiments may, but need not be, gender-based, and should look for statements demeaning employees manhood--none here). But surprise at learning stereotypical male was gay perhaps belies belief sexuality and genderconformity are intertwined. Second, Ray acting on religious beliefs could strengthen notion of sexual orientation discrimination separate from sex discrimination. Acmes best argument relies on reading Price narrowly (Jespersen): Sex stereotyping is intertwined with, and perhaps limited to, Price's facts: employer who acts on belief that female employees shouldn't be aggressive acted on gender. Price becomes about Catch-22 for women who must be aggressive to succeed, and then punished. Thus grooming policies with differences between sexes wasn't stereotyping. Congress also considered, and rejected, protecting sexual orientation. And, while other states recognize sexual

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orientation discrimination, Ames doesn't. If legislature doesn't protect it, Court should not (Rogers would argue orientation discrimination not added as legislature assumed it was covered--tricky intent question.)

BFOQ: Assuming because ofsex, Acme must argue discrimination reasonably necessary to normal operation of its business--703(e)(1). Courts conduct a two-part inquiry--does the job require a worker be of only one sex [or, here, does it require only for gender-nonconforming workers], and is that reasonably necessary to essence of Acme. As Rogers has been working here already with no complaints, undermining claims of necessity (Dothard). Customer preferences unlikely. Stronger than Wilson as Southwest's essence was transporting. While Acme's essence arguably manufacturing, essence of customer representative team at least is customer satisfaction. However, customers do not know he is gay and made no complaints--even less evidence than the Wilson survey. Second, employers beforehand belief does not establish BFOQ (Wilson). No evidence customer preference is nearly as strong as foreigners for male marketers--Fernandez's high bar.

Vicarious Liability? Since tangible employment actions were taken here--not solely hostile work environment--Acme's definitely liable (noted by Faragher).

Acme may want to settle Title VII claim. If Rogers wins, gets attorneys fees (Albemarle). If Acme wins, will not--it's a close enough question that claim isn't frivolous (Christianburg).

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(3) Dzundzas Claims:

Dzundza may be EAW. If not, plausible contract-based claim. Either way, potential claims from OSHAct/TitleVII.

Employee At Will?

Interpretation: long career[]. If Ames follows Skagerberg/Veno probably EAW--even "permanent"/"Retire Together" was EAW. If it follows Hetes, then only fired for cause (very similar language). Same approach if following Ohanian. No parol evidence problem as no written contract after the oral conversation (at least in facts). Statute of Frauds issue can be avoided (and since it is anachronistic, court may want to avoid) by noting the promise would include an exception for business necessity.

Independent Consideration: Assuming promise sufficed for cause protection, court probably rejected Skagerberg/Veno in favor of Hetes/Ohanian. Those casesand Pugh require no independent consideration. But Skagerberg/Veno do, and if Ames court does, there's no independent consideration here (giving up other job is insufficient-Skagerberg--and got higher compensation for that anyway).

If so, cause here? Unclear what suffices. Could be good faith regulated by parties (Pugh), objective good cause requirement (Hetes), business reasons (Ohanian), or wilfull and

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substantial failure to render honest/faithful/loyal service (Chiodo). But firing that employee for refusing to work in dangerously hot conditions, or to hire brother, seems unlikely to be good faithlet alone the more restrictive tests.

OSHAct/TitleVII Claims:

OSHAct: may violate general duty clause (5)(a)(1)--government could bring complaint-but broken AC for day seems insufficient. But she has a claim against Acme from 29CFR1977.12--protecting employee from retaliation if refuses to expose self to dangerous conditions, where a reasonable person would see danger of death/serious injury. Danger smaller than Whirlpool, as heat less concerning than unsafe screen where employees already fell/died. But heat can kill (ask Hanson!) so probably acted reasonably. But also weaker than Whirlpool as retaliation's less clear. Acme could argue was fired to make room for brother--slimy, but not violating OSHAct.

TitleVII: Discrimination because ofnational original prohibited. 703(a). Under McDonnell Douglas, Dzundza might make PFC (assuming she is Polishalthough possible perception enough like ADA)she was qualified but fired, and then someone else filled roleand emphasize anti-Poland comment. But Acme has strong defense here fired her to hire brother, or OSHAct protest, demonstrating a nondiscriminatory reason. She then still has to prove the ultimate issue (Hicks), which is a jury question, but one she'll probably lose. If she won, vicarious liability since tangible employment acts were

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taken (Faragher).

(Might claim harassment--TitleVII can cover former employees (Robinson)--but doubt one comment could show hostile environment. Not abusive enough for reasonable person, and no evidence she's upset (Harris).)

Arbitrate? Agreements to arbitrate enforceable in employment contracts (Circuit City).

Contract-Based: due to agreement contract-based claims must be arbitrated-1 (Gilmer assumes this and was about extending to statutory rights). And 4/6 limits enforceable if no statutory-based rights are at stake (Armendariz limits based on Gilmer--only statutoryrights).

OSHAct/TitleVII: substantive statutory rights cannot be waived, but could waive courtforum unless Congress evinced intention to preclude waiver of judicial remedies for statute at issue. The ADEA does not precludeand if ADEA statutory structure/purpose did not, probably not in OSHAct/Title VII either. I would be happy to get back to you about whether any legislative history in OSHAct/VII precludes waivers.

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. But Concepcion found FAA prohibits such limitations. So 4 ban cannot be unconscionable. (Though requirement of not consolidating may be a

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little broader--but Concepcion probably covers this, as consolidating reduces informality too).

Under Armendariz, 6 is unconscionable, and agreement to arbitrate would be unenforceable. On narrower reading of ConcepcionDiscover Bank rule's only unacceptable because limitation imposed transformed arbitration in fundamental ways courts can find 6 unconscionable--damage limitations not transformative. Under broader reading, damage limitations are part of deal between employers and employees to gain efficiency/flexibility, reflecting private contract idea of employment, FAA would also preempt limitation of damages, and agreement would be enforceable. Remains unclear post-Concepcion.

Court, like Armendariz, may read into agreement requirement of neutral arbitrator, minimal discovery, and written award.

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Answer-to-Question-_2_

(1)

Facially, Brunner and MacGregor stand for one proposition: when evaluating work-based claims, determinations can be made relying on that employees personal life. Accordingly, in contrast to Rulon-Miller and Missouris unemployment system, Brunner and MacGregor stand for a weak conception of the work/life spheres distinction. However, they operate with markedly different results.

By permitting employer to consider employees private actions when firing them, Brunners 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 contrast, by permitting the state to weigh personal reasons to excuse work absenteeism, the refusal to draw that same distinction can operate to benefit the employee in the unemployment insurance context.

So it is appropriate to break down the work/life spheres model? Although attractive in the unemployment context, it's devastating from a broader workers rights view. Ultimately, the answer probably is "maybe," based on another rule that explains MacGregor without supporting Brunner over Rulon-Miller: protecting employee choice.

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Courts repeatedly protect employees from making unacceptable choices (Nees and Bodewig immediately come to mind), based on a view of employment as a fundamentally asymmetrical relationship. While the work/life spheres distinction approach would merit finding Brunner and MacGregor correct, an emphasis on employee choice means that MacGregor is correct, while Brunner is inappropriate. To protect MacGregor from choosing between taking care of her child and having access to some money, a state must look to her personal life. But to protect Brunner from choosing between volunteering and keeping her job, a private company cannot do the same. While they share an approach to the work/life spheres, only one seeks to remedy the asymmetrical employment relationship by protecting employee choice.

(2)

Should an employee's rights be the same whether she works for a private employer or for the government? In determining if an employees privacy rights were violated, the different tests employed by OConnor (government employer searches must be reasonable at inception and in their scope) and Trotti (private employers 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.

Novosel, in the First Amendment context, disagrees. In Novosel, the Court argues cases applying First Amendment to government employers did not base the decisions on state

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action doctrine, but instead on protecting the political process. Incorporating the First Amendment through the tort of wrongful discharge in violation of public policy, Novosel argues private employers has vast amounts of economic power to irremediably distort the political process.

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), and Trotti was wrong to employ a lesser standard than OConnor. This claim reflects an agnostic theory of the differences between public/private employment.

Judge Becker, on the other hand, would argue for Trottis approach instead of Novosel. There are multiple strong arguments for the government being treated differently: government actions have a major symbolic effect, and the government has far more coercive power because it holds a monopoly in many fields. Moreover, the government acts as one wholeso one agency free from Fourth Amendment restrictions in dealing with a certain person could work with others who should be bound by them. Finally, the government is more knowledgeable of individual rights and should follow them closely.

(3)

While enabling fired employees to win tort claims against their former employers, the torts that Agis and Nees apply reflect a sharply different view of the employment relationship and the resultant justification for judicial intervention. While both could

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plausibly be understood as an effort to remedy asymmetries in the employment relationship, Nees is better understood as an effort to protect the third party public.

In Agis, the reasons why this might be an IIEDarbitrariness, use of power for the unrelated goal of leveraging confession from someone else, public humiliation, and degradation of another person by imposing feelings of powerlessness on themreflect use of employer power to harm employee. The Court stepped in to remedy the employees relative weaknesspreventing an employer from using that relationship to particularly harmful ends.

Nees can, arguably, be understood in the same light. If employee is forced to choose between legal duty to serve on a jury and her job, she will feel similarly powerless, and degraded as a person. But theres a better way to read Neesas an attempt by Court to protect the third party public from externalities of a private contract. If Nees had not found this wrongful, jury system would be adversely affected and will of the community would be thwarted. Employment may be between two private parties, but their private agreement could harm others.

Perhaps that explains a sense Nees is a wrongful discharge, while Agis is something of a stretch. Given our general contract principles to enforce deals between individuals barring fraud/unconscionability/duress (Posner in Outsource), there's a sense Courts should not go too far in remedying asymmetries. But the third party public had no role in shaping contract, and so the public should not be held responsible for its result.

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(4)

Chicago and Byrne grapple with the question of when to recognize employee mental illness for the purposes of statutory employment laws. But Byrnes treatment of the mentally ill employee is as deferential as Chicagos is dismissive. In Chicago, workers comp applicant suffered severe stress, but Court refused to grant compensation, noting prior emotional issues. Most dismissively, it contended the severe burdens teacher faced were no greater than any other teacher might.

In Byrne, employee was granted FMLA leave due to depression. Bending over backwards to support him, Court noted his unusual behavior might have been constructive notice of a condition, or could be excused if was unable to give notice. Whereas Chicago raises obstacles, Byrne knocks them down.

There are two ways to understand this. First, most simply, they reflect different court approaches to the problem of mental illness. Perhaps Chicago Court is more attuned to concerns of mentally ill, or perhaps depression is more troubling to courts than serious stress.

But this could also underscore different conceptions of the roles Workers Compensation and FMLA play. WC could be understood alongside a strong work/life sphere distinction. Thus, WC system does not look to personal life in making these determinations--the damage done in the work sphere alone is compensable. But FMLA is clear attempt to break that distinction down, forcing work sphere to bend to accommodate the life sphere.

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Thus, the very obstacles (whether illness is caused by the work itself) raised in Chicago are irrelevant under the FMLA, where the origins of the mental illness do not matter. As with (a), this shows the work/life distinction can, but need not, operate to benefit employees.

(5)

Dunlop, in finding statutory rights in the FLSA cannot be waived, clearly opposes a private contract conception of employment. 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.

But Gilmer, finding agreements to arbitrate statutory rights enforceable, relies on private contract conception instead. Gilmer explicitly rejects asymmetrical relationship claim (mere inequality in bargaining poweris not sufficient reason). Moreover, by allowing waivers, Gilmer implicitly rejects third party public or public views, because the public would have no role in a waiver decisionand thus would face externalities from that private choice.

Dunlop and Gilmer create a dichotomy: substantive rights cannot be waived but rights to judicial remedies can be. But though Gilmer states these can coexist, this is inaccurate.

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Concepcion and David Weils Collective Agents underscore incompatibility. Concepcion found FAA preempted state attempts to require class actionswhich is seemingly remedy-based. But Weil argues, because attempts to use statutory rights tends to benefit many, while only exposing those seeking the right to the risks , there's collective action issue to enforcement. Class action isnt just remedy--ensures substantive rights are actually enforced. A waiver of a remedy is not just a waiver of a forum, but a waiver of an important way to enforce that right at all. Thus, following the private conception approach in Gilmer undermines the asymmetry/third-party approach adopted in Dunlop.

(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. To Wood, the only way to avoid that presumption is to contract around it (and given Skagerberg, thats a high bar). 4316(c), USERRAs cause provisionreturning soldier cannot be fired except for cause for yearshows Woods statement is no longer correct (other exceptions include Title VII, Valerio, etc.)

However, that USERRA alone has a one-year for-cause provision (and not those who seek leave (FMLA) or complain about safety (OSHA)), demonstrates Woods claim hasnt lost all its force. Indeed, makes little sense not to have such protections in many statutes--FLSA, OSHAct, etc. But because of desire to avoid interfering with EAW managerial discretion, legislature is loath to add cause protections except where strongly

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supports the policy goal. The rule may not be inflexible, but it remains a rule.

Which is preferable? This relies on whether one subscribes to private idea of employment, or public. For those who believe employment contracts are between the parties, influencing choices to support service is invasive. But those who recognize harm employment contracts can impose on the public (if not for protection, could punish employees for joining military to defend public), 4316(c) is appropriate. However, from administrability perspective, 4316(c) also poses problemsas Pugh noted, difficult to define what constitutes sufficient cause with any precision. In EAW, that decision is left to managerial discretion. Whether one trusts private employers, or courts, to make correct employment decisions further influences ones normative choice between Wood and 4316(c).