Review the 10 cases presented for consideration in Question 2 (letters a – j) of the Chapter-End Questions in Chapter 2 (pp. 80-81 of the eBook).
For your first post, prepare a detailed response for one of the ten scenarios, explaining your conclusion regarding whether the scenario constitutes a violation of public policy or a breach of a covenant of good faith and fair dealing. Support your conclusion with legal analysis and reasoning. Explain whether any of the scenarios give rise to potential employer liability and what steps should have been taken to avoid the exposure. Then, comment and expand on the posts of the other class members.
- a. A female child care worker alleges that she was unlawfully terminated from her position as the director of a child care facility after continually refusing to make staff cuts. The staff cuts she was asked to make resulted in violation of state regulations governing the minimum ratios betweens staff and child. After the employee was terminated, the employer’s child care center was in violation of the staff-to-child ratio. [Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 2009 Iowa Sup.]
- b. A machine operator employee with a major depressive disorder intermittently takes leaves under the Family and Medical Leave Act, resulting in alleged harassment by her employer surrounding her FMLA usage as well as a transfer to various difficult machines after her return from leave. Two months after her last FMLA leave, she is terminated for “improper phone usage.” [Hite v. Vermeer Mfg. Co., 361 F. Supp. 2d 935 (S.D. Iowa, 2005).]
- c. A nurse is asked by her employer to sign a backdated Medicare form. She refuses and is terminated that day. As a health care provider, she is required to complete that particular form. [Callantine v. Staff Builders, Inc., 271 F.3d 1124 (8th Cir. 2001).]
- d. A legal secretary to a county commissioner is terminated because of her political beliefs. [Armour v. County of Beaver, 271 F3d 417 (3d Cir. 2001).]
- e. A teacher under contract is terminated after insisting that his superiors report a situation where a student was being physically abused. The teacher refused to commit an illegal act of not reporting the suspected abuse to family services. [Keveney v. Missouri Military Academy, 304 S.W.3d 98 (MO 2010).]
- f. A recent college graduate found a job with an office supply company as a reverse logistics analyst. Soon after being hired, he found that some practices within the department could be deemed unlawful and unethical. Three specific types of practices were written up in a formal complaint to his supervisor: (1) the issuing of monetary credits to customers without proper documentation, thus overpaying customers without returned goods; (2) the department’s knowingly withholding from contract customers by underissuing credits over $25; and (3) the canceling and reissuing of pickup orders that could allow couriers to overbill the company. After his formal complaint and multiple meetings on the procedures of the department, the employee was terminated based on his insubordination and inflexibility. [Day v. Staples Inc., 28 IER Cases 1121 (1st Cir. 2009).]
- g. An employee engaged in protected whistle-blowing activity after filing a complaint against his employer for his termination. The employee, a licensed optician, claimed his employer was violating state statute by allowing unlicensed employees to sell optical products without a licensed optician present. There was also a complaint filed to his supervisor about the promoting and hiring of unlicensed employees. [Dishmon v. Wal-Mart Stores Inc., 28 IER Cases 1393 (M.D. Tenn. 2009).]
- h. A legal secretary was hired by a law firm. The Letter of Employment stated, “In the event of any dispute or claim between you and the firm … including, but not limited to claims arising from or related to your employment or the termination of your employment, we jointly agree to submit all such disputes or claims to confidential binding arbitration, under the Federal Arbitration Act.” On his third day of work, the employee informed his superiors that he would not agree to arbitrate disputes. He was told that the arbitration provision was “not negotiable” and that his continued employment was contingent upon signing the agreement. The employee declined to sign the agreement and was discharged [Lagatree v. Luce, Forward, Hamilton & Scripps, 74 Cal. App. 4th 1005 (Cal. App. 2d Div. 1 1999).]
- i. An employee is licensed to perform certain medical procedures, but he is terminated for refusing to perform a procedure he is not licensed to perform. [O ’Sullivan v. Mallon, 390 A.2d 149 (N.J. Super. Ct. Law Div. 1978).]
- j. An employee was fired from his job as security manager for a medical center because he was suspected of making an obscene phone call to another employee and refused to submit to voice print analysis to confirm or refute the accusation. He sued the employer for wrongful discharge, claiming that the employer’s request violated public policy. A state statute prohibits an employer from requiring an employee to submit to a polygraph examination as a condition or precondition of employment. [Theisen v. Covenant Medical Center, 636 N.W.2d 74 (Iowa 2001).]
- Karen is a human resources consultant at a local utility. Originally, the work requested was project based. Karen was asked to develop training materials for an upcoming session on diversity. Cynthia, the human resources manager, was very happy with the work that Karen did and asked her to work on some additional projects. Before everyone knew it, Karen had been working at the utility for five years.
Karen has been paid a monthly base salary of $10,000 per month. Karen has received a 1099 for her wages over the past five years, but has not received a W-2. Karen was not offered any benefits, but when she was hired, she did not need them, as she was happily married. However, Karen’s husband recently passed away and she asked Cynthia about receiving benefits. Cynthia has denied Karen’s request. Karen’s title, when she started, was Human Resources Temporary, but her new title evolved into Human Resources Consultant to be more consistent with others in the department who are doing work similar to hers. Karen does have a contract with the utility.
Karen has had other limited clients over the years. She had one client for an approximately 40-hour project two years ago, and she currently has another client that keeps her on a retainer basis.
Since she was denied benefits, Karen has contacted the IRS to ask them to determine her status.
Cynthia is the human resources manager at ABC Utility, as well as Karen’s supervisor.
Karen is an individual who has been working at ABC Utility. You will look at her employment relationship to determine if she is an employee or an independent contractor. You decide!
Your role is to decide if Karen is an independent contractor or an employee.
After reading this, please return to the Week 1 Discussion area, and answer the first two questions there about Karen. Your instructor will return with further questions throughout the week.
Over the past 20 years, employers began relying on part-time, temporary, and contract employees to reduce costs, increase flexibility and reduce benefit costs. Employees feel it is discriminatory for employers to exploit the labor market by using part-time workers and temps to keep labor costs down for one segment of the work while paying full value for another segment. In the past few years, numerous laws and tax changes have been proposed to try to regulate this area of the industry better.
Please review the “YouDecide” content which is located under the Week 1. We will begin our discussion by debating whether Karen is an independent contractor, or a full-time employee. Your first post should answer these two questions:
- Do you feel that Karen is an independent contractor or an employee?
- What is your rationale for this decision?
Your instructor will return with additional questions and move you through the law on independent contractors (IC) vs. employees throughout the week. Be ready to engage!