labor laws

QUESTION  ONE
The job application form for sales clerk positions at Dollar and Dime Stores, Inc. (DDS),
a national retail chain, asks for date of high school graduation, contact information for all
prior employers, arrest record information and proof of U.S. birth. Nicole, the new DDS
Human Resources Manager, is worried that some aspects of the form could be
problematical and is thinking about modifying it.
While she was trying to find time to work on the form, a problem popped up at the DDS
Pittsburgh store, where Bob, a sales clerk, assaulted and seriously injured a customer.
According to witnesses, when the customer questioned whether Bob had given her the
correct change, Bob became enraged and walked around the service counter to
physically confront her. Because there was no doubt that Bob was entirely in the wrong,
he was immediately fired and banned from ever being reemployed by DDS. Nicole has
since learned that DDS was aware of Bob’s history of violence when he was hired.
Today brought two new developments in the Bob saga. DDS received a demand letter
from the customer’s attorney, seeking compensation for the customer’s injuries and
reimbursement for her medical expenses. And DDS got an inquiry from a neighborhood
grocery store, where Bob has apparently applied for a cashier position. Bob’s former
supervisor is worried about a potentially violent reaction to a bad reference and has
asked Nicole to give Bob a glowing review. Nicole’s inclined to do that, if only to avoid
more problems.

Please analyze the legal issues presented by this fact pattern. Be sure to
 Identify each legal issue raised by the facts and identify by name the laws
that govern those issues.
 Identify and describe the rule/test that a court would apply to each issue. If
there is a relevant case in the textbook, please identify it, and briefly state
how the court applied the test or rule in that case.
 Then apply the rule or test to the facts in this question set as to each issue
that you’ve identified.
 If additional information would be helpful to your analysis, identify that
information and how it would impact your analysis.

QUESTION  TWO

Just as Nicole is finally settling in to work on the Dollar and Dime Stores (DDS)
application form, two new problems demand her attention.
The first relates to Lucia, a sales clerk who’s been complaining for some time about an
overly forward customer. Last week she told Nicole that he was getting increasingly
nasty when Lucia declined to give him her personal contact info. Now, there’s a new
wrinkle. Yesterday, he was apparently waiting for Lucia in the parking lot. When she
exited the store after her shift, he was standing by the back door and tried to embrace
and kiss her. Nicole had been hoping the problem would just go away and still wishes it
would.
The second relates to Kim, a new clerk who works the late shift. She called Nicole to
complain that her supervisor touches her unnecessarily and invades her personal
space, for example, by giving her a hug every day when she arrives for work, patting
her on the butt when she walks by, and standing really close to her whenever they have
a conversation. Kim’s not asked him to back off because she’s nervous about raising
the issue and wants Nicole to handle it. Nicole asked Kim whether she had used the
DDS internal complaint procedure. Kim said that she has a copy of it, but doesn’t want
to make a formal complaint or put anything in writing. Nor does Kim want anyone,
including her supervisor or any other employees at the store, to know that she’s raised
these issues because she preferred to stay friends with everyone.
Please respond to these questions related to Lucia:
 What, if anything, should Nicole do about Lucia’s complaints?
 Might Lucia have a legal claim against DDS?
 If so, identify the claim and the law on which it would be based, and describe
what Lucia would have to prove in order to sustain the claim.
 Based on what we know, might she be able to do so? Explain your analysis
based on our facts and the law.
 If additional information would be helpful to your analysis, identify that
information and how it would impact your analysis.
Please respond to these questions related to Kim:
 What, if anything, should Nicole do about Kim’s complaints?
 Might Kim have a legal claim against DDS?
 If so, identify the claim and the law on which it would be based, and describe
what Kim would have to prove in order to sustain the claim.
 Based on what we know, might Kim be able to prevail on that claim? Explain
your analysis based on our facts and the law.
 Assuming that Kim could make out a Title VII claim against DDS and based
on the facts in Question Sets 1 and 2, what would be her maximum recovery,
and what procedure would she have to use to pursue that claim?
 Assuming that Kim could make out a Title VII claim, is there a defense that
DDS could raise?

 If so, identify the defense, describe what DDS would have to establish in
order to sustain it, and analyze whether DDS would likely to prevail on that
defense.
 If additional information would be helpful to your analysis, identify that
information and how it would impact your analysis.

QUESTION  THREE
Vegan Bread & More (VBM), founded in Brooklyn, New York, made its mark as a local
vegan bakery. But thanks to a cash infusion from keen investors, it’s now a national
operation, shipping a wide variety of products all over the US from its Spartanburg
County, South Carolina facility, which employs 500 people. When VBM first set up the
South Carolina operation, it simply hired the truck drivers it needed at that time. A
couple of years ago, though, it decided to get out of the employer role. To accomplish
that goal, it entered into a contract with a regional staffing agency, Carolina Alternative
Staffing (CAS). Pursuant to that contract, VBM terminated all of its drivers; CAS hired
them and then assigned the drivers to VBM, where they continued to perform the same
work they had been doing. To VBM’s delight, the transition was seamless. Per the
contract, CAS is the employer of record and handles all payroll and employment related
reporting and paperwork. VBM sets each driver’s hours and routes, provides training,
and closely supervises their work.
This year, VBM is experimenting with another staffing model. Inspired by Uberst and
Lyftty, it’s now a party to half a dozen independent contractor driver agreements. Under
the terms of those agreements, those drivers aren’t employees of either VBM or CAS.
The drivers are paid a monthly flat fee, a sum based on VBM’s current monthly cost per
driver, minus the fees paid to CAS. For operational reasons, the independent drivers
drive VBM trucks and are supervised by VBM managers who assign their hours and
routes. So far, this model has been a win-win. From VBM’s point of view, the
independent contractor format enables VBM to avoid all employer-related problems and
liability as well as eliminate the fees it used to pay CAS.
To further insulate VBM from the risk of any big money judgements, the independent
contractor agreements also contain mandatory arbitration clauses, which require that
drivers waive the right to file any VBM work-related claim in any federal, state or local
agency, or court. The agreements require that any and all VBM work-related claims be
pursued via the VBM grievance and arbitration procedure, which is the sole, final,
binding, and exclusive remedy for any and all work-related disputes. The agreement
requires that all claims be filed in person in VBM’s Brooklyn, New York business office
within 24 hours of the alleged underlying incident, and that any claims not resolved in
that office be submitted to an arbitrator designated by VBM.
Please analyze each legal issue presented by this fact pattern. Be sure to:
 Identify each legal issue raised by the facts, and identify by name the laws
that govern those issues.

 Identify and describe the rule/test that a court would apply to each issue. If
there is a relevant case in the textbook, please identify it, and briefly state
how the court applied the test or rule in that case.
 Then apply the rule or test to the facts in this question set as to each issue
that you’ve identified.
 If additional information would be helpful to your analysis, identify that
information and how it would impact your analysis.

QUESTION  FOUR
Vegan Bread & More (VBM) pays a $23,000 annual salary to Vanessa, the
Administrative Assistant to the Director of Staffing and Operations at the South Carolina
facility. Vanessa spends most of her work day handling email, other mail and packages;
ordering supplies; answering the phone; filing; typing; and greeting visitors to the office.
She also works on special events, like employee orientation and training. After reading
some HR updates that arrived in the office, Vanessa was inspired to demand overtime
pay for last week, when she worked over 60 hours on a big employee training project.
But she was told that, because she’s salaried, she’s exempt and not entitled to anything
over and above her salary.
Please analyze each legal issue presented by this fact pattern. Be sure to
 Identify each legal issue raised by the facts in this question set, and identify
by name the laws that govern those issues.
 Identify and describe the rule/test that a court would apply to each issue. If
there is a relevant case in the textbook, please identify it, and briefly state
how the court applied the test or rule in that case.
 Then apply that rule or test to the facts in this question set as to each issue
that you’ve identified.
 If additional information would be helpful to your analysis, identify that
information and how it would impact your analysis.

QUESTION  FIVE
Delcan, a Vegan Bread & More (VBM) baker who has never taken a sick day in his
entire 10 years with the company, suffered serious burns while working. After being
released from the hospital, where he was treated for a week, Delcan called VBM and
applied for his accumulated 30 paid sick days (retroactive to the day that he was
injured) and also requested FMLA leave until he was cleared to return to work.
Please respond to the following questions related to this fact pattern:
 What does an employee need to establish to be entitled to leave pursuant to
the Family and Medical Leave Act?

 Using those factors and the facts that we know based on Question Sets 3, 4,
and 5, analyze whether Declan is eligible for FMLA leave.
 Assuming that he is eligible, what is the maximum amount of FMLA leave that
he could be entitled to?
 Assuming that he is eligible for FMLA leave, what are VBM’s obligations to
Declan during that leave?
 Assuming that he is eligible for FMLA leave, how does that leave relate to his
paid sick days?
 Assuming that he is eligible for FMLA leave, what are VBM’s obligations to
Declan at the conclusion of his FMLA leave?
 If additional information would be helpful to your analysis, identify that
information and how it would impact your analysis.