EMPLOYMENT LAW FOR
HUMAN RESOURCE PRACTICE
7TH EDITION
CHAPTER NO 01: OVERVIEW OF EMPLOYMENT LAW
CHAPTER QUESTIONS & ANSWERS
Beginning on p. 41 of text
1. Would you be inclined to take legal action against your employer if you felt strongly that your
legal rights had been violated? Why or why not?
Answer:
It is critical to the enforcement of employment laws that at least some employees are
willing to take legal action when their rights have been violated. Employment laws are
not self-enforcing. Asking and personalizing this question often causes students to pause,
think about their attitudes toward litigation and consider factors that might influence
whether they would pursue legal action (e.g., length of time on the job, availability of
severance pay, job prospects). It also provides an opportunity to talk about the stages
through which a legal claim proceeds, starting with the need first to recognize that one
has been wronged in a way that potentially implicates the law (“naming”), becoming
convinced that one’s employer is responsible and should be held accountable for this
wrong (“blaming”), initiating a legal claim (“claiming”), and taking that claim through
the legal process (“disputing”).
2. The XYZ Company had twelve employees for the first half of 2014. It signed a contract with a
major retailer in June 2014 and hired an additional eight employees to handle the extra work.
The contract was canceled in January 2015, and the company terminated the eight new hires. In
March 2015, another employee was fired. If the employee believed that the termination was
discriminatory, could the employee have brought a case under Title VII of the Civil Rights Act?
Answer:
Employers must adhere to Title VII of the Civil Rights Act requirements if they had 15 or
more employees for each working day in each of 20 or more calendar weeks during the
current (i.e., the year in which the alleged discrimination occurred) or preceding calendar
year. Because the XYZ Co. had 20 employees for over half a year (at least 26 weeks)
during the preceding calendar year (2014), it can be sued under Title VII. It does not
, matter that the company had only 12 employees when the alleged discrimination
occurred.
3. A teacher was terminated and filed a discrimination charge with the EEOC. While his case was
pending, he moved to another state to care for his mother, who was in the final stages of
Alzheimer’s disease. About six months after he had filed his charge, the EEOC sent him notice of
his right to sue. The notice was sent to his previous address in Washington, D.C. On his EEOC
intake form, the teacher had listed his former Washington, D.C. address, but had also written
“c/o” (“in care of”) with his attorney’s name and contact information. However, the teacher had
not thought to contact the EEOC and provide it with his new out-of-state address. A copy of the
right to sue letter was not sent to the attorney. When the attorney later contacted the EEOC for
an update on the status of the teacher’s case, he was informed that the right to sue letter had been
issued almost seven months earlier. The attorney then promptly filed suit in federal court, but the
suit was dismissed as not timely. The teacher argued that the period for filing a discrimination
suit should have been tolled because he was out of state to care for his mother and he reasonably
believed that the EEOC would notify his attorney. On appeal, what should the court decide?
Why? (Maggio v. Wis. Ave. Psychiatric Ctr., 795 F.3d 57 (D.C. Cir. 2015)).
Answer:
The court declined to use equitable tolling to permit the teacher’s lawsuit to go ahead.
The court cited many previous cases in which the complainant lost his right to sue when
he gave an incorrect address, or neglected to inform the EEOC when he moved. The
court determined that Maggio had come into court without “clean hands.”
4. An employee believed that he had been discriminated against by his employer. He filed a lawsuit
in federal court, but the employer argued that the court should require him to arbitrate the
dispute instead. When the employee was hired, he had signed an arbitration agreement. During
his first week of employment, he had been instructed by the human resources manager to “read it
and sign it.” The document was the standard agreement that the company required all of its
employees to sign, and there was no opportunity to negotiate over the terms. Under the
agreement, employees were required to file grievances within five days of the actions being
challenged. This limitations period did not apply to any claims that the company might have
against employees. The agreement also provided that each party would bear its own attorney’s
fees and expenses. Arbitrators were to be selected from a list of four names provided by the
American Arbitration Association. In the absence of mutual agreement on who would arbitrate
the case, names would be struck from the list until a single name remained. The company would
get the first strike and then the parties would take turns. Should the court compel arbitration of
this dispute? Why or why not?
Answer:
Yes, the arbitration agreement has evidence of unconscionability. Oppression occurs
when a contract involves a lack of negotiation and meaningful choice, and the allegedly
unconscionable provision is hidden within a prolix printed form. It is an adhesive
contract, standardized, on a preprinted form, and offered by the party with superior
bargaining power “on a take-it-or-leave-it basis.” The Labor Commissioner’s Berman
procedures recommend a speedy and informal arbitration to decrease arbitration costs. It
, also recommends companies pay arbitration-related costs. The process should advance
“informality,” “lower costs,” “greater efficiency and speed,” and the use of “expert
adjudicators.” The employer should not control the selection of the arbitrator. The
procedural unconscionability regarding the time allowed to file grievances should not
impose terms that are “overly harsh.” Courts have deemed these as fundamental attributes
of arbitration.
5. A server signed an arbitration agreement when she was hired by a restaurant in September 2009.
She left the job in July 2010 but was subsequently re-hired in March 2011. She was not asked to
sign an arbitration agreement upon being re-hired. The server alleged that she was sexually
harassed following her re-hiring and sued the restaurant. The restaurant moved to compel
arbitration under the agreement she had signed in 2009. That agreement stated, among other
things, that “I will resolve by arbitration all claims and controversies (“claims”), past, present,
or future, whether or not arising out of my employment or termination from employment, that I
may have against [employer] … or that [employer] may have against me.” The agreement
specifically referred to harassment claims. It also stated that “[t]his Agreement shall survive
termination of my employment or expiration of any benefit plan.” Is the employee still bound by
an arbitration agreement signed during a previous stint of employment? Anderson v. Waffle
House, 920 F. Supp. 2d 685 (E.D. La. 2013).
Answer:
The court held that the arbitration agreement still bound the parties. The agreement was
validly formed and, by its terms, applied even after the termination of the plaintiff’s
employment, specifically referenced in the agreement. Further, plaintiff’s claims fell
within the scope of the agreement, which listed claims for “harassment” specifically. The
case was sent to arbitration.
6. At the end of a workplace meeting in which a number of issues were discussed, the company
president mentioned that a new arbitration policy was being instituted. A pamphlet outlining the
new dispute resolution program was available, but it was not read to employees and not all
employees picked it up. Employees who continued to work after the effective date of the new
policy were deemed to have accepted it. When an employee told the president that he would not
sign, he was told “not to worry about it.” Subsequently, a new employee handbook was issued.
The handbook included the arbitration program. The handbook also included an
acknowledgement form, but the employer did not require or receive signed forms. When a group
of employees filed suit for unpaid wages, the employer attempted to compel arbitration of the
issue. Should the court enforce the arbitration agreement? Why or why not? (Moran v. Ceiling
Fans Direct, 239 Fed. Appx. 931 (5th Cir. 2007)).
Answer:
The appeals court affirmed the lower court’s decision not to compel arbitration because
the employer did not give adequate notice of its arbitration policy, the employees did not
understand the terms of the agreement, and the policy did not cover claims under the Fair
Labor Standards Act. Under Texas law, an employer seeking to modify the terms of at
will employment must prove that he unequivocally notified employees of definite
, changes. Employees must have knowledge of those changes, including both the nature of
the changes and certainty as to whether they will be imposed. In this case, the employer’s
failure to convey the policy to employees, to ensure that they read it, and to offer
consistent statements as to whether the policy would be enforced, supported the
conclusion that there was inadequate notice given to employees. The appeals court did
not examine the other grounds on which the district court had ruled.
7. An employee was subjected to severe national origin and religious harassment over a period of at
least three years. The harassment included numerous death threats, vandalism, and workplace
graffiti. The employee made many complaints to company officials, but the perpetrator(s) were
never identified and disciplined. Actions taken by the employer (a large automaker) included
holding two plant meetings with employees, compiling a list of suspects, analyzing plant entry
and exit data, hiring a forensic document examiner to analyze the handwriting in graffiti and
offensive notes, developing a protocol for handling incidents regarding this employee, increasing
security walkthroughs, and conducting additional diversity training. The employer declined to
interview the individuals on the suspect list or (as suggested by the police) install surveillance
cameras. A jury found the employer liable for harassment, and the trial court awarded the
maximum punitive damages allowable under Title VII ($300,000) to the plaintiff. Was the award
of punitive damages appropriate in this case? Why or why not? (May v. Chrysler Group, 716 F.
3d 963 (7th Cir. 2012)).
Answer:
No, the award of punitive damages is appropriate in a case where the employer acted with
the required malice or reckless indifference. Here, Chrysler took several steps to try to
alleviate the harassment. Although one might argue they could have taken different or
more effective actions, their conduct does not demonstrate a reckless disregard for the
plaintiff’s federally protected rights. While plaintiff is rightfully awarded compensatory
damages, punitive damages are not appropriate in this case.
8. Which legal issues did you identify in the “staff meeting” discussion that opened the chapter?
What should this company be doing differently? What aspects of the situation are you unsure of
and would want to learn more about?
Answer:
a) Employment status of unpaid interns: This has become a significant issue in recent years,
as students are increasingly counseled to obtain job experience through internships and
some employers are tempted to exploit interns as a source of free labor. The Department
of Labor has established criteria for determining whether interns are employees who must
be paid at least the minimum wage. Insofar as these criteria specify that, not to be
considered employment, the relationship should primarily benefit the intern, the employer
should derive no immediate advantage from the presence of the intern, the intern should
be closely supervised, and the intern should not displace regular employees, the company
is likely violating wage and hour laws by not paying the interns for their work.
b) Nondiscrimination in hiring: These practices would likely result in disparate impact
discrimination, since it is a historic fact that minorities are and have been arrested with
more frequency than whites. In addition, eliminating a person from consideration for a
HUMAN RESOURCE PRACTICE
7TH EDITION
CHAPTER NO 01: OVERVIEW OF EMPLOYMENT LAW
CHAPTER QUESTIONS & ANSWERS
Beginning on p. 41 of text
1. Would you be inclined to take legal action against your employer if you felt strongly that your
legal rights had been violated? Why or why not?
Answer:
It is critical to the enforcement of employment laws that at least some employees are
willing to take legal action when their rights have been violated. Employment laws are
not self-enforcing. Asking and personalizing this question often causes students to pause,
think about their attitudes toward litigation and consider factors that might influence
whether they would pursue legal action (e.g., length of time on the job, availability of
severance pay, job prospects). It also provides an opportunity to talk about the stages
through which a legal claim proceeds, starting with the need first to recognize that one
has been wronged in a way that potentially implicates the law (“naming”), becoming
convinced that one’s employer is responsible and should be held accountable for this
wrong (“blaming”), initiating a legal claim (“claiming”), and taking that claim through
the legal process (“disputing”).
2. The XYZ Company had twelve employees for the first half of 2014. It signed a contract with a
major retailer in June 2014 and hired an additional eight employees to handle the extra work.
The contract was canceled in January 2015, and the company terminated the eight new hires. In
March 2015, another employee was fired. If the employee believed that the termination was
discriminatory, could the employee have brought a case under Title VII of the Civil Rights Act?
Answer:
Employers must adhere to Title VII of the Civil Rights Act requirements if they had 15 or
more employees for each working day in each of 20 or more calendar weeks during the
current (i.e., the year in which the alleged discrimination occurred) or preceding calendar
year. Because the XYZ Co. had 20 employees for over half a year (at least 26 weeks)
during the preceding calendar year (2014), it can be sued under Title VII. It does not
, matter that the company had only 12 employees when the alleged discrimination
occurred.
3. A teacher was terminated and filed a discrimination charge with the EEOC. While his case was
pending, he moved to another state to care for his mother, who was in the final stages of
Alzheimer’s disease. About six months after he had filed his charge, the EEOC sent him notice of
his right to sue. The notice was sent to his previous address in Washington, D.C. On his EEOC
intake form, the teacher had listed his former Washington, D.C. address, but had also written
“c/o” (“in care of”) with his attorney’s name and contact information. However, the teacher had
not thought to contact the EEOC and provide it with his new out-of-state address. A copy of the
right to sue letter was not sent to the attorney. When the attorney later contacted the EEOC for
an update on the status of the teacher’s case, he was informed that the right to sue letter had been
issued almost seven months earlier. The attorney then promptly filed suit in federal court, but the
suit was dismissed as not timely. The teacher argued that the period for filing a discrimination
suit should have been tolled because he was out of state to care for his mother and he reasonably
believed that the EEOC would notify his attorney. On appeal, what should the court decide?
Why? (Maggio v. Wis. Ave. Psychiatric Ctr., 795 F.3d 57 (D.C. Cir. 2015)).
Answer:
The court declined to use equitable tolling to permit the teacher’s lawsuit to go ahead.
The court cited many previous cases in which the complainant lost his right to sue when
he gave an incorrect address, or neglected to inform the EEOC when he moved. The
court determined that Maggio had come into court without “clean hands.”
4. An employee believed that he had been discriminated against by his employer. He filed a lawsuit
in federal court, but the employer argued that the court should require him to arbitrate the
dispute instead. When the employee was hired, he had signed an arbitration agreement. During
his first week of employment, he had been instructed by the human resources manager to “read it
and sign it.” The document was the standard agreement that the company required all of its
employees to sign, and there was no opportunity to negotiate over the terms. Under the
agreement, employees were required to file grievances within five days of the actions being
challenged. This limitations period did not apply to any claims that the company might have
against employees. The agreement also provided that each party would bear its own attorney’s
fees and expenses. Arbitrators were to be selected from a list of four names provided by the
American Arbitration Association. In the absence of mutual agreement on who would arbitrate
the case, names would be struck from the list until a single name remained. The company would
get the first strike and then the parties would take turns. Should the court compel arbitration of
this dispute? Why or why not?
Answer:
Yes, the arbitration agreement has evidence of unconscionability. Oppression occurs
when a contract involves a lack of negotiation and meaningful choice, and the allegedly
unconscionable provision is hidden within a prolix printed form. It is an adhesive
contract, standardized, on a preprinted form, and offered by the party with superior
bargaining power “on a take-it-or-leave-it basis.” The Labor Commissioner’s Berman
procedures recommend a speedy and informal arbitration to decrease arbitration costs. It
, also recommends companies pay arbitration-related costs. The process should advance
“informality,” “lower costs,” “greater efficiency and speed,” and the use of “expert
adjudicators.” The employer should not control the selection of the arbitrator. The
procedural unconscionability regarding the time allowed to file grievances should not
impose terms that are “overly harsh.” Courts have deemed these as fundamental attributes
of arbitration.
5. A server signed an arbitration agreement when she was hired by a restaurant in September 2009.
She left the job in July 2010 but was subsequently re-hired in March 2011. She was not asked to
sign an arbitration agreement upon being re-hired. The server alleged that she was sexually
harassed following her re-hiring and sued the restaurant. The restaurant moved to compel
arbitration under the agreement she had signed in 2009. That agreement stated, among other
things, that “I will resolve by arbitration all claims and controversies (“claims”), past, present,
or future, whether or not arising out of my employment or termination from employment, that I
may have against [employer] … or that [employer] may have against me.” The agreement
specifically referred to harassment claims. It also stated that “[t]his Agreement shall survive
termination of my employment or expiration of any benefit plan.” Is the employee still bound by
an arbitration agreement signed during a previous stint of employment? Anderson v. Waffle
House, 920 F. Supp. 2d 685 (E.D. La. 2013).
Answer:
The court held that the arbitration agreement still bound the parties. The agreement was
validly formed and, by its terms, applied even after the termination of the plaintiff’s
employment, specifically referenced in the agreement. Further, plaintiff’s claims fell
within the scope of the agreement, which listed claims for “harassment” specifically. The
case was sent to arbitration.
6. At the end of a workplace meeting in which a number of issues were discussed, the company
president mentioned that a new arbitration policy was being instituted. A pamphlet outlining the
new dispute resolution program was available, but it was not read to employees and not all
employees picked it up. Employees who continued to work after the effective date of the new
policy were deemed to have accepted it. When an employee told the president that he would not
sign, he was told “not to worry about it.” Subsequently, a new employee handbook was issued.
The handbook included the arbitration program. The handbook also included an
acknowledgement form, but the employer did not require or receive signed forms. When a group
of employees filed suit for unpaid wages, the employer attempted to compel arbitration of the
issue. Should the court enforce the arbitration agreement? Why or why not? (Moran v. Ceiling
Fans Direct, 239 Fed. Appx. 931 (5th Cir. 2007)).
Answer:
The appeals court affirmed the lower court’s decision not to compel arbitration because
the employer did not give adequate notice of its arbitration policy, the employees did not
understand the terms of the agreement, and the policy did not cover claims under the Fair
Labor Standards Act. Under Texas law, an employer seeking to modify the terms of at
will employment must prove that he unequivocally notified employees of definite
, changes. Employees must have knowledge of those changes, including both the nature of
the changes and certainty as to whether they will be imposed. In this case, the employer’s
failure to convey the policy to employees, to ensure that they read it, and to offer
consistent statements as to whether the policy would be enforced, supported the
conclusion that there was inadequate notice given to employees. The appeals court did
not examine the other grounds on which the district court had ruled.
7. An employee was subjected to severe national origin and religious harassment over a period of at
least three years. The harassment included numerous death threats, vandalism, and workplace
graffiti. The employee made many complaints to company officials, but the perpetrator(s) were
never identified and disciplined. Actions taken by the employer (a large automaker) included
holding two plant meetings with employees, compiling a list of suspects, analyzing plant entry
and exit data, hiring a forensic document examiner to analyze the handwriting in graffiti and
offensive notes, developing a protocol for handling incidents regarding this employee, increasing
security walkthroughs, and conducting additional diversity training. The employer declined to
interview the individuals on the suspect list or (as suggested by the police) install surveillance
cameras. A jury found the employer liable for harassment, and the trial court awarded the
maximum punitive damages allowable under Title VII ($300,000) to the plaintiff. Was the award
of punitive damages appropriate in this case? Why or why not? (May v. Chrysler Group, 716 F.
3d 963 (7th Cir. 2012)).
Answer:
No, the award of punitive damages is appropriate in a case where the employer acted with
the required malice or reckless indifference. Here, Chrysler took several steps to try to
alleviate the harassment. Although one might argue they could have taken different or
more effective actions, their conduct does not demonstrate a reckless disregard for the
plaintiff’s federally protected rights. While plaintiff is rightfully awarded compensatory
damages, punitive damages are not appropriate in this case.
8. Which legal issues did you identify in the “staff meeting” discussion that opened the chapter?
What should this company be doing differently? What aspects of the situation are you unsure of
and would want to learn more about?
Answer:
a) Employment status of unpaid interns: This has become a significant issue in recent years,
as students are increasingly counseled to obtain job experience through internships and
some employers are tempted to exploit interns as a source of free labor. The Department
of Labor has established criteria for determining whether interns are employees who must
be paid at least the minimum wage. Insofar as these criteria specify that, not to be
considered employment, the relationship should primarily benefit the intern, the employer
should derive no immediate advantage from the presence of the intern, the intern should
be closely supervised, and the intern should not displace regular employees, the company
is likely violating wage and hour laws by not paying the interns for their work.
b) Nondiscrimination in hiring: These practices would likely result in disparate impact
discrimination, since it is a historic fact that minorities are and have been arrested with
more frequency than whites. In addition, eliminating a person from consideration for a
