Pugh v See's Candies

In the case of Pugh v See's Candies, an employee (Pugh) worked for 32 years with an implied contract. He was verbally told by the former company president that as long as he was loyal to the company and did a good job that his future would be secure.
Because Pugh was employed for 32 years, loyalty was not an issue and there were no problems with his job performance due the fact that he had never been disciplined and received bonuses and promotions based on that performance.
The company was wrong by firing him and Pugh had the right to sue for breach of the implied contract. The court should find in favor of Pugh. DB

Privacy Policy

A privacy policy is crucial to any business. Employees need to know that there is no privacy in their workplace when it comes to phone calls, emails, voicemails as well as their computers and the sites they visit during work hours. The policy must advise the employees that their employer has the right to monitor all of the above. In addition, the policy should also inform the employees that their employer has the right to search their desk, office, etc as long as there is reasonable cause to do so related to their job. Private companies can require random drug testing and all employees must comply. Public employers can only require drug testing if there is reasonable suspicion.

Employers must confidentially regarding each employee's employment file particularly their personal information as there is an expectation of privacy by the employee. It should be included in this policy an statement advising any employee with access to these records that confidentiality is imperative and any leak of this information is grounds for immediate termination! No second chances , no warnings!

Employees should be advised that the company is allowed to use surveillance in the workplace if it is needed to ensure workplace and product safety.

A good privacy policy should list the types of offensive behaviors that are forbidden and the fact that any reported behaviors will be investigated. The policy should list how the investigation will take place and include the consequences of the outcome of the investigation. ss

Privacy Policy

If I were drafting a privacy policy for a company, the policy would alert employees to the limits of their privacy rights in the workplace. The policy would state that the employer has the right to listen to phone calls, monitor employee’s conversations, obtain records of phone calls and voice mail and also look at the contents of their computer usage. In the workplace employees have few rights, but if an employee is to be investigated, employees should be informed when they are the subject of monitoring or surveillance. Employees do have the right to privacy and an employer should not use surveillance devises in areas that are regarded as private (locker rooms, bathrooms, etc.). DB

Kidd v Illinois State Police

In the case of Kidd v Illinois State Police, a police department terminated a black male before the completion of his training program. The terminated employee claimed race discrimination due to the fact that the police allowed a white employee to continue with the training program and receive six months of special training
In this case, the court should decide in favor of the employer. Even though Kidd had a learning disability and a training program was being devised, he would not have been able to correct his deficiencies in time to successfully complete his probationary period. DB

"general duty clause"

OSHA's general duty clause places responsibility for workplace safety with employers. The clause can also be used for enforcement purposes in the absence of standards regulating specific hazards involved.
Training employees on equipment and supplying protective gear is important but will not do anything to make unsafe conditions safer. It's in the employer's best interest to have safety policies in place which focus on preventing, eliminating and reducing hazards. These safety rules should be clear, specific and consistent with one another and should be consistently enforced.
If an employer is found to have violated the general duty clause, fines and citations can be issued; not only that, but in cases of workplace injury or illness, the employer will need to deal with workers' compensation cases along with any negative publicity the violation will bring. DB

Wal-Mart v NLRB

The case of Wal-Mart v NLRB is a sticky situation. There are two issues that need to be addressed.

The first is that Wal-Mart removed an off duty employee from the store because he was soliciting for a Union with a tee-shirt that read “Union Teamsters” ‘Sign a card…Ask me how!” Since he was off duty, he was clearly within his rights to wear this tee shirt into the store.

The other issue is that the next day the same employee had conversation with two other employees during work hours about attending a union meeting and signing a union authorization card. This is clearly a violation of the store’s non solicitation policy. Wal-Mart was within its rights to counsel this employee

It seems that the NLRB has two decisions to make. The first should be in favor of the employee, due to the fact he was off duty, and the second decision should be in favor of Wal-Mart. They were well within their rights to counsel the employee because the conversation was during work hours and not during a break. DB

Wal-Mart vs. NLRB

When I first read this case, I saw an easy decision. Wal-Mart was clearly wrong to kick this employee out of the store because he was wearing a t-shirt advertising unions. NLRB regulations allow employees to wear unon buttons, insignas, etc. , and the t-shirts should have been allowed based on this regulation.

However, the other situations are questionable. If the employee was on the clock when inviting collegues to the union meeting or when asking them to sign the union authorization cards, Wal-Mart is correct. However, if he was on a break or not working, he had the right to do what he did.

Based on the facts I have in the case, I believe that the board must find in favor of the employee/union. Wal-Mart violated this employee's rights by the "coaching session" informing that Wal-Mart was against unions and by trying to prohibit him for sharing information with collegues. Under the NLRB, employers are not allowed to interfere as Wal-Mart did! Once again, Wal-Mart is unfair to their workers. ss

Deguise vs. Sprint

In the case of Deguise vs. Sprint regarding COBRA notification, I see see arguements for both sides.

The court could rule in favor of Sprint because they made an attempt to contact Mr. Deguise by certified mail. The company can't be at fault because the post office could not find the letter when Mr. Deguise went to pick it up. Shouldn't someone from the company have called Mr. Deguise to make should they had the correct address and inform him of the contents of the letter? I do realize the the employee is responsible for notifying the employer of any change in address, but wonder if a follow-up phone call would have been in order.

At the same time, Mr. Deguise did not sign any documents declining his COBRA benefits since he never received the notification so he can't be faulted either. He claims he was unaware that the lost letter was from his former employer. If he had known the letter was from them, perhaps he would have contacted them to find out what was in the letter. Then again, we'll never know whether or not he would have opened or responded to the letter if he had received it.

I believe the court must find in favor of Sprint as they fulfilled their obligation by sending Mr. Deguise the documents. This situation could have been avoided if HR had given him these papers before he left the office on his last day of work!

One final thought.... I read an interesting comment online regarding this case: If Sprint had sent the letter by regular mail, Mr. Deguise would have received it. While this may be true, it still doesn't mean that Mr. Deguise would have responded before he was notified that his insurance claim had been denied. ss

COBRA NOTIFICATION

When COBRA notices are sent to those entitled for the benefits, a company only needs to show that it made a good faith effort when sending the notification. In the case of Degruise v. Sprint Corp, the company could prove that they made a good faith effort when they mailed the notification through certified mail. Even though the letter was returned to the employer because it was undeliverable, and was not mailed a second time, the company met its obligation. The court should rule in favor of Sprint Corp. DB

SHOW ME THE MONEY

Even though Jackson, in the case Jackson v. Go-Tane, had the job title of manager, he had very few managerial responsibilities and should not be considered an exempt employee and is entitled to be paid his OT. Here’s why:

He doesn’t pass the salary test:
His wages need to be at least $455.00 a week to meet the minimum standards necessary to be considered an exempt employee and Jackson's gross pay never exceeded $360.

He also doesn’t pass the duties test:
If he were an exempt employee, his primary duty would be to manage his department. Although Jackson responded to customer complaints and performed basic administrative responsibilities, including scheduling, training and disciplining the car wash attendants, he had little or no independent authority over hiring, firing and setting pay rates. In fact, 95% of his work time was spent performing tasks that his employee’s performed.

Being an exempt employee is more than a job title, and a company needs to make the case for the exemption and it doesn’t in this case. Jackson should be considered an hourly employee. Pay the man his OT! DB

Is the Car Wash Manager entitled to OT?

In the case of the Cash Wash Manager, the court has to look at the duties tests related to his job title to determine whether or not this man is entitled to the overtime pay he is sueing for.

In reading over all the descriptions of possible job titles, I believe this man best fits in the category of holding an Administrative position.

Under the salary test, this car wash manager makes less that the $455 per week minimum so he qualifies as a non exempt employee under the FLSA.

The articles states that his duties include adminstrative jobs such as scheduling, training and discipline. The article also states that he spent 95% of his time working right along side his employees. Since the duties test states that his primary duties must be office work or non manual responsibilities , he clearly fails this test also. In addition, the information in the article tells us that while he could make recommendations regarding hiring and firing, he did not have the authority to make any decisions regarding his staff. Under this test, he also qualifies for as non exempt.

Based on the above information, I believe the court should rule in favor of the cash wash manager, he is non-exempt under the FLSA and is entitled to the overtime pay he is asking for. ss

EMORY V ASTRAZENECA PHARMACEUTICALS

In the court case of Emory v. AstraZeneca the Circuit Court decided in favor of Emory against his employer. The Judge pointed out that even though Emory overcame his disability and performed his job responsibilities through sheer force of will, Emory should still be considered disabled because of the obstacles that his disability caused.

Emory, who was born with cerebral palsy, has the I.Q. of 77, along with a 50% permanent impairment to his upper body and 25% impairment to his lower body, needs assistance when answering questions and learning new skills, overcame his disability by graduating from high school, becoming a volunteer firefighter, started a cleaning service with a partner, worked for AstraZeneca for over 20 years and was temporarily assigned as a second shift supervisor. AstraZeneca used the facts of his life to try and prove that Emory overcame his disability and could function as a worker because of these accomplishments.

The District Court concluded: “The question is not whether a handicapped person accomplishes (his) goals, but whether (he) encounters significant handicap-related obstacles in doing so. Further, when compared to others, his learning impairments are clearly severe.”

It’s amazing that the company would try to use Emory’s accomplishments against him. The fact remains, because of his limitations, both physically and mentally, he is protected by the Americans with Disabilities Act (ADA).

By supplying Emory a calculator and voice activated software to assist him with writing, spelling and grammar, Emory would be able to successfully perform his job. These tools would not cause an undo hardship to AstraZeneca. DB

Car Dealership Harassment

In the case of the female employee vs. the unwanted touching by the supervisor, the court should have found the car dealership guilty of Enviromental Sexual Harassment.

She had reported actions of this manager on each of the four times this unwanted touching had occurred and was told to document it. She did that but no action was ever taken. The car dealership did not provide this employee with a safe working enviroment. In addition, when looking over the Elements of a Sexual Harrassment Claim, I feel that 3 of the 4 things we discussed apply to this case: 1. pervasive and severe behavior - I believe putting his hand up her skirt qualifies as pervasive; 2. documentation - she did that; 3. the harasee is a member of a protected class since she is a woman. I don't know whether or not, these incidents affected her job performance, I would imagine it probably did.

When this case got to court, if the lawyer for the car dealership was any good at his job, he could have asked her why she continued to sit next to this guy if she viewed his touching as unwanted and possibily could have saved his company some money.

Harassment in the Workplace

In the case of Parrish v. Sollecito the questions are:
Should the plaintiff have sued the car dealership that she worked at because of on going harassment by a manager? Why?
The obvious answer is of course. Every employee has the right to work in a safe environment, free from harassment, and when the employee reports multiple incidents to supervisors and the harassment continues, the only recourse is to sue.
In reading additional information about this case, it is documented this harassment also dealt with behavior outside the workplace at a function that was not entirely an off-duty event.
Because the outside behavior was similar to the workplace harassment, the judge in the case ruled that if the behavior had been addressed by management the harassment would not have continued.
A final thought: What ever happened to people taking care of themselves? At the first instance of harassment, I feel you need to make it known that you find this behavior unacceptable and will not tolerate it. If it’s not addressed, it gives that harasser ammunition to continue. It seems that in society today, people don’t stand up for themselves and want others to solve their problems. It’s almost like your still a child and running to Mommy for help.
Once, I had a coworker touch me in an inappropriate manner. I immediately told him to get his hand off of me, and I've never had a problem again. It might have been an innocent gesture on his part, or it might have been him testing me to see if he could get away with it. I obviously can't say what he was thinking, but I can tell you that he very clearly understood what I was thinking, and unless he was willing to deal with a pretty severe fall out, he never tried anything like that with me again. I reported it to my superiors just to have it documented in case there was any further trouble, but I didn't depend on them to take care of it for me. DB

My thoughts on Affirmative Action

Affirmative Action was to ensure that all people were given an equal opportunity for employment, schooling, etc. While it may allow some minorities to achieve goals they may never have been able to without this plan, I don't think it is fair to people in the unprotected classes. Yes, I am aware that I am member of the protected class , a woman over age 40. That being said, I started discussing this topic with my 17 year old son who has applied to a variety of colleges. He asked me the questions, "What if I don't get into the college of my choice and some girl gets in instead to fill a quota? Would that really be fair?" When I look at it from this prospective, I have to agree with him that it wouldn't be fair. In addition, I think of the Bakke vs. University of California case, we talked about in class. Yes, it is wonderful that minority students are getting an opportunity to achieve their dreams of becoming doctors, but at who's expense? Our children. To be quite honest, I don't consider myself to be prejudice but when I go the the doctor, I want to be assured that not only is he/she the best to be making decisions on my life, I also need to be able to understand him/her (does the doctor speak English clearly enough so I understand my options?) I realize that the demographics of our country are changing and therefore, doctors and other professionals will come from more diverse backgrounds, but why should my son or daughters be passed over for a college or job because someone from a monority also applies for that positions. If this is what has become of Affirmative Action, then I think it's time to make some serious changes to the program.

When Affirmative Action Plans first started, I think it helped people of diverse background get a break. I'd like to think that in this day and age, those doing the hiring are looking to fill the positions with the candidate best suited for the job and not the one that has to be hired for Affirmative Action purposes. This is a tough issue and as far as our country has come, I realize I am being naive thinking that everyone will get a fair chance without Affirmative Action Plans .
I guess the questions remains, however, is it a Plan that is fair to everyone regardless of demographics? I don't think so. ss

Affirmative Action

Affirmative Action Affirmative action came about as a result of the civil rights movement as a way help the protected classes of people gain access to jobs and education that they had previously been excluded, for the most part. In many ways this was a necessary initiative because how else could a person gain access into a system dominated by people that weren't willing to share the access that they enjoy? Affirmitive action had many positive results because it has given people hope and brought different perspectives into the business and educational communities that might not have otherwise been included.

However, the idea that the best possible candidate doesn't always get the position doesn't seem fair. In some ways, it's a double standard because when someone is more qualified but is passed over so that an institution can meet a "quota", it means that an individual is being discriminated against to try to remedy discrimination against a larger group of people. In other words, an injustice is being commited to try to correct an injustice. Also, the achievements of a person from a minority community might be second guessed because people might think that person couldn't have accomplished whatever they did without an advantage. Finally, doesn't everyone want to deal with the best person available when they are seeking someone's expertise. Would anyone want surgeon who was about to cut into their body to actually be the second or third best candidate for that job?

Affirmative action has had many positve results in helping the protected class achieve a piece of the "American Dream." But, it's time to eliminate these programs in all of their forms and depend on the fact that the people with the power to make the decisions regarding someone's acceptance into a school, or a job, or a promotion, will see that it only makes their organization stronger to have the best possible people in place. The fact that a black man and a woman are two front runners for the most powerful position in this country, is a reflection of the fact that to a large extent this is happening in our country today. DB

IRS vs. Fedex 's use of indepedent contractors

After reading this article and thinking about what we've learned about employees vs. independent contractors, my question becomes: what took the IRS so long to take action against Fedex? In my opinion, it is quite clear that the drivers were employees of Fedex and not independent contractors. They had to display the Fedex company colors and logo on their trucks. Seems to me that implies that he is an employee of the company regardless of who owns the truck. I doubt that he could go out and solicit business from other companies when his truck has the logo of a competitor on it, which an independent contractor is permitted to do. I think these truck drivers have been taken advantage of by Fedex and Fedex deserves to be penalitized by IRS. ss

IRS Deals Blow To Fedex On Use Of Contractors

It seems that independent contractors will now be reclassified
as employees by Fedex due to a preliminary finding by the IRS.
Even though the drivers own their own vehicles, Fedex has set a
series of requirements that govern their work and the Fedex colors
and logo is displayed on their trucks.
Because these drivers are subject to Fedex rules, can't choose
their own work hours and their services are part of the day to
day operations of Fedex, it seems the IRS made the proper decision by
classifying thesedrivers as Fedex employees. DB

IRS Deals Blow To Fedex On Use Of Contractors