Running head: NewCorp Legal Scenarios

NewCorp Legal Scenarios Julio Paul LAW/531 May 7th, 2012 Professor Richie Rich

NewCorp Legal Scenarios Abstract The purpose of this paper is to provide substantive response to the questions at the end of three scenarios, by acting as an attorney and providing advice. Response will include facts, law, and recommendations (University of Phoenix, 2012, p. 1).

NewCorp Legal Scenarios Legal Encounter 1 Liabilities: Liability Number One, Violation of Employment Contract: Dismissal of Pat even though Vermont is an At will state, no prior warning of unsatisfactory performances were provided (State of Vermont, 2012). This is a violation of employment contract, changing Pats status from at will to cause employment. Notice of Unsatisfactory Performance/Corrective Action Plan: If the job performance of an employee is unsatisfactory, the employee will be notified of the deficiency and placed on a corrective action plan. If the employees performance does not improve to a satisfactory level in the specified time period, termination will follow (University of Phoenix, 2012 p. 1). Was a contract created? A contract was created when NewCorp offer Pat a position as manager, Pat accepted the position. This is considered an agreement. Wages were offered to Pat for his service this is considered expressed consideration. Contractual capacity was proven when Pat was interviewed and selected based on his skill set. Managing leases for NewCorp is a legitimate business practice and is considered lawful. All four elements of a contract are present creating an employment contract for cause not an at will employee (Cheeseman, 2010). In the case of 958 F. 2d 1007 - Durtsche v. American Colloid Company courts have held personnel manuals as expressed and implied employee contracts when employers provide employees company handbooks at the start of employment and sign that they are in agreement with the terms (OpenJurist, 2012). Liability Number Two, Violation of First Amendment: Pats dismissal form NewCorp could be construed as senior leadership retaliating against Pat for his opinions expressed at a

NewCorp Legal Scenarios public meeting. This is a violation of the First Amendment and could be supported if taken to court by the Pickering v. Board of Education case (ACLU ProCon.org, 2012). Law: The State of Vermont is an at will state. An employer may terminate an employee for any reason as long as it is not one of the protect classes e.g.: race, color, national origin, religion, sex, age or mental or physical disability. Vermont law also prohibits discrimination based on sexual orientation, HIV status, place of birth, and age over 18. It is also unlawful to retaliate or discriminate against employees or applicants that have alleged employment discrimination (State of Vermont, 2012, p. 1) An employer is not required to provide its employees with paid or unpaid holidays (such as Memorial Day or Thanksgiving), paid or unpaid sick leave (except under the Parental, Family Leave Act), paid or unpaid vacation time or severance pay when an employee leaves the business. However, employers who are parties to written agreements, which can be in the form of an employee handbook, memorandum, correspondence, etc, providing for vacation time, sick leave, holidays and/or severance pay are liable to their employees for these benefits (State of Vermont, 2012, p. 1).

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (Amendments to the Constitution, 2012, p. 1).

NewCorp Legal Scenarios Damages: Pat can sue for breach of the implied employment contract caused by the Notice of Unsatisfactory Performance/Corrective Action Plan of Newcorp's employment handbook. Pat can also sue for wrongful termination in connection with the violation of his First Amendment rights if NewCorp is governing employee activities off the employer's property. Pat can sue for damages, including loss of employment, loss of his wifes employment, and loss of relocating. Advice and Action: NewCorp can circumvent a wrongful termination lawsuit and a court ordering promissory estoppels by hiring Pat back. Ensuring that management follows the policies for unsatisfactory performance by writing a handbook that will not change an employee at will statute to cause employment. Legal Encounter 2 Liabilities: Liability Number One, Sexual Harassment: Sam's behavior is an instance of sexual harassment and can be considered quid pro quo because of his status as a supervisor. Paula may believe that she is required to accept Sams sexual advances to continue her employment, or any future promotion or raise. Liability Number Two, PDA: Sam has also prevented Paula from transferring out of his department stating he is protecting her and any future children from related medical defects. Law: The U.S. Supreme Court has held that sexual harassment that creates a hostile work environment violates Title VII. Conduct such as making lewd remarks, touching, intimidation, posting of indecent materials, and other verbal or physical

NewCorp Legal Scenarios conduct of a sexual nature constitute sexual harassment (Cheeseman, 2012, p. 516). In 1978, the Pregnancy Discrimination Act was enacted as an amendment to Title VII.6 This amendment forbids employment discrimination because of pregnancy, childbirth, orrelated medical conditions (Cheeseman, 2012, p. 516). Damages: NewCorp can be held vicariously liable for not keeping Paula safe and keeping her in a hostile work environment similar to the Pennsylvania State Police v. Suders (Cheeseman, 2010, p. 516). Paulas damages can entitle her to lost wages as punitive damages (Webster's New World Law Dictionary, 2010). Advice and Action: NewCorps first action is to ensure that reasonable care is in place to prevent and promptly correct any harassing behavior. Follow the policies and procedure for writing Sam up and placing him on a disciplinary leave. Approve Paulas transfer in the requested department. To protect NewCorp from future harassment lawsuit ensure that an affirmative defense plan is in place by: (1) Whether the employer has an anti-harassment policy, (2) whether the employer had a complaint mechanism in place, (3) whether employees were informed of the anti-harassment policy and complaint procedure, and (4) other factors that the court deems relevant (Cheeseman, 2010, p. 517).

NewCorp Legal Scenarios Legal Encounter 3 Liabilities: Liability Number One, Injured Employee in Confined Space: NewCorp had an employee injured when repairing a pulp shredder in a confined space. The nature of the building will not permit equipment relocation because of nearby support beam. Liability Number Two, Claustrophobia as Disability: Paul a maintenance technician is stating the confined work environment has caused him to become claustrophobic rendering him disabled. Law: In 1970, Congress enacted the Occupational Safety and Health Act to promote safety in the workplace. The act also established the Occupational Safety and Health Administration (OSHA), a federal administrative agency within the Department of Labor that is empowered to enforce the act. The act imposes record-keeping and reporting requirements on employers and requires them to post notices in the workplace, informing employees of their rights under the act (Cheeseman, 2010, p. 489).

The Americans with Disabilities Act (ADA), which was signed into law July 26, 1990, is the most comprehensive piece of civil rights legislation since the Civil Rights Act of 1964.The ADA imposes obligations on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities (Cheeseman, 2010, p. 522)

NewCorp Legal Scenarios Damages: If NewCorps work environment is found unsafe OSHA has the right to cite NewCorps and potentially shut down the plant, causing a loss of thousands of dollars. Because Paul called OSHA to file a complaint against NewCorp suggesting that he is required to work in a dangerous situation, Paul will be protected from retaliation under the whistleblower protection program (OSHA, 2012). If OSHA finds Pauls claims to be true NewCorp will be required to payout damages covering medical cost, lost wages, and recovery. However, Pauls claustrophobic claim as a disability will not be supported because the ADA does not consider claustrophobia a disability as supported by the case Rodriguez v. City of New York, No. 05-CV-5117, ED NY, 2008 (Business Management Daily, 2012) Advice and Action: First action for NewCorp would be to reassign Paul to a new work area where he would feel safe. This will avoid any further potential harm to Paul. Because the NewCorps safety manager has judged the area safe, NewCorp needs to request an independent OSHA audit of the work area. If Paul pursues a lawsuit against NewCorp, NewCorp must move quickly to mediation to avoid unfavorable publicity.

NewCorp Legal Scenarios References ACLU ProCon.org. (2012). Pickering v. Board of Education Decided on June 3, 1968; 391 US 563. Retrieved from http://http://aclu.procon.org/view.resource.php? resourceID=3149#CaseSummary Amendments to the Constitution. (2012). THE UNITED STATES CONSTITUTION. Retrieved from http://http://www.house.gov/house/Constitution/Amend.html Business Management Daily. (2012). Not a close call: Claustrophobia isnt an ADA disability. Retrieved from http://http://www.businessmanagementdaily.com/4513/not-a-close-callclaustrophobia-isnt-an-ada-disability Cheeseman, H. R. (2010). BUSINESS LAW (7th ed.). Upper Saddle River,, NJ: Pearson Prentice Hall. OpenJurist. (2012). 958 F. 2d 1007 - Durtsche v. American Colloid Company. Retrieved from http://http://openjurist.org/958/f2d/1007/durtsche-v-american-colloid-company OSHA. (2012). The Whistleblower Protection Program. Retrieved from http://www.whistleblowers.gov/ State of Vermont. (2012). Department of Labor State of Vermont. Retrieved from http://http://www.labor.vermont.gov/Workers/Employed/CanmyEmployerdoThat/tabid/2 53/Default.aspx University of Phoenix (2012). Nontraditional and Traditional Litigation Paper. Phoenix, AZ: University of Phoenix. Webster's New World Law Dictionary (2010). Websters New World Law Dictionary. New Jersey, NJ: Author.