EXAM

EMPLOYMENT LAW SURVEY - Professor M. Dobbins

Spring 2005

            Question 1 [20 percent]:   Your client is a hotel company.  It is in the process of hiring a night manager for its hotel.  That person will be “in charge” of the hotel during the overnight hours.  The duties for the position include supervising the few staff members who are on duty, handling front desk duties and preparing several daily reports, including financial reports.  The manager will have access to all hotel rooms, company records and customer payments, including credit card information and, on occasion, cash.  Please recommend a hiring process for this position, and include an explanation for your recommendation.

            Question 2 [20 percent]:   Your client is a large warehouse-style home improvement store.  A long-time employee was very seriously wounded last year when her ex-husband shot her in the head.  She has now returned to work.  As a result of the head injury, she has some minor memory problems and suffers occasional seizures.  She has presented documentation from her physician stating that she is able to return to work, but that she should not lift items over her head, climb ladders or scaffolding to retrieve merchandise, or drive a forklift.  She also has requested that she be allowed to leave the workplace to attend physical therapy and counseling appointments.  The employer has received a complaint from a customer who complained that when he asked the employee for help reaching merchandise stored overhead, she told him that she would find another employee to help him, rather than doing it herself.  The customer claimed that he was unreasonably delayed as a result.  The company has also received complaints from a few of the employee’s co-workers, claiming that they do not think that it is “fair” that they must “do her work”, particularly in retrieving merchandise from overhead storage. In addition, the employee’s locker was vandalized by unknown persons, and she has reported that her car was ‘keyed’ in the parking lot. Please advise the company regarding this situation, including the rationale for your advice.

            Question 3 [10 percent]:   Your client is a veterinary clinic.  It employs an after-hours assistant to monitor the hospitalized animals and provide any necessary care.  The veterinarian has become concerned about the disappearance of certain controlled substances; while the assistant claims that the drugs have been administered to the appropriate animals, the animals’ behavior appears to indicate that they have not been medicated as claimed.  In addition, some owners have expressed concern that their pets appear to be traumatized when they leave the clinic, leading the veterinarian to be concerned about possible mistreatment of the animals in her care.  She has asked for your advice regarding this situation.  What should she do?   If she terminates the employee, she believes that she would be ethically obligated to discuss her suspicions regarding the employee if any future employer called seeking an employment reference.  What is your advice?

            Question 4 [20 percent]:   Your client is a nursing home.  In accordance with her prior written direction, the family of a patient suffering from ALS has decided to remove her from a respirator and to allow her to die.   Information regarding the decision was somehow communicated to the media, and the situation has become controversial.  Two nurses who have been caring for the patient have raised issues regarding this decision.  One of them met with the director of nurses and stated that her religious beliefs do not permit her to participate in the action that the family intends to take.  She has asked to be removed from the team caring for the patient.  The second nurse is suspected of being the person who contacted the media. He has also joined the protesters outside the nursing home at the end of his shift.  In a television interview, he has stated that he will not participate in such a “travesty”, which he describes as murder. As a result of the media attention, inspectors from the state Health Department have visited the facility to investigate whether a vulnerable adult is being neglected.  What actions, if any, would you advise the employer to take with respect to these employees?  Why?

            Question 5 [30 percent]:   Your client is a City.  In the most recent election, a new mayor was elected on a platform promising fiscal responsibility and budget-cutting.  This has resulted in reduced funding for City departments.  A number of employees have been laid off.  In addition, several positions have not been filled following the resignation of the employee holding the position.  Jack Hunter is the head of the inspections department, as well as a resident of the City.  Hunter is African-American and one of only two minorities employed by the City.  He has been very vocal in response to the budget cuts, appearing at City Council meetings to lobby for more funding, and discussing the matter in an interview with the local newspaper.  In addition, he has frequently expressed his opinion regarding the budget issues in the workplace, including at staff meetings and in discussions with other employees.  At times, the discussions have taken place within the hearing of members of the public who are conducting business with the inspections department.

            The mayor is extremely angry about Hunter’s activities.  He has complained repeatedly to the City Manager about what he considers to be “insubordination”.   Recently he has claimed that he is getting complaints from members of the public regarding delays in completion of inspections, particularly those necessary to continue construction projects.  He claims that contractors and property owners are outraged about resulting delays in construction while waiting for an inspector.  He also asserts that he has been told that when citizens complain about the delay, Hunter has responded that they should “talk to the mayor because it is his fault”.  The mayor has refused to identify the sources of the complaints, stating that they are afraid of retaliation by the inspections department.

            The mayor has also stated that he has “heard” that Hunter is an alcoholic who comes back to work after drinking at lunch some days.  Because Hunter drives a City vehicle when he conducts inspections, the mayor wants him to be tested for alcohol use on a regular basis by the City’s police department.   

            In light of the current situation, the City Manager has reviewed Hunter’s personnel file.  He has been a City employee for 15 years.  While he generally has received good performance evaluations, he was disciplined two years ago for excessive absenteeism.   Following that discipline, Hunter voluntarily entered an alcohol treatment program which he successfully completed.

            The mayor has “suggested” to the City Manager that he terminate Hunter.  What is your advice?  Why?  If Hunter is terminated, what claims, if any, may be available to him?