Review the nine scenarios presented for consideration in the document found in Doc Sharing titled "Week 1 Thread 2 Questions". Prepare a detailed response for each of the nine 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. Comment and expand on the posts of the other class members.
a. An employee was suspended pending discharge for sleeping and "loafing" on the job. The employer offered to change the penalty to suspension without pay if the plaintiff would sign a "last chance agreement" under which he waived and released "any claims, suits, or causes of action" against the defendant. The employee refused to sign because he was unwilling to waive his rights to state unemployment benefits or workers' compensation. Under state statute, agreements to waive such rights are invalid. The employee is discharged. (Edelberg v. Leco Corp., 236 Mich. App. 177 (1999).
b. 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).
c. A legal secretary to a county commissioner is terminated because of her political beliefs. (Armour v. County of Beaver, 271 F.3d 417 3rd. Cir. 2001).
d. A company's lawyer is terminated when he refuses to remove from the company's files, documents which would be harmful to the company if they were given to opposing counsel under a discovery order in litigation the company is involved in. (Herbster v. North American Co. for Life and Health Ins., 501 N.E.2d 343 (Ill. 1986), cert. denied, 484 U.S. 850 (1987)).
e. Employee is terminated because she married a co-worker. (MCluskey v. Clark Oil & Refining Corp., 498 N.E.2d 559 (1986)).
f. Employee discovers that his supervisor is involved in wrongdoing. The supervisor terminates the employee to prevent the employee from disclosing her wrongdoing to higher-level management. (Adler v. American Standard Corp., 830 F.2d 1303 (4th Cir. 1987)).
g. A legal secretary is hired by a law firm. The Letter of Employment stated that "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 informs 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 1105 (Cal. App. 2nd Dist., Div. 1 1999).
h. Employee is licensed to perform certain medical procedures, but is terminated for refusing to perform a procedure he is not licensed to perform. (O'Sullivan v. Mallon, 390 A. 2d 149 (1978)).
i. An employee was fired from his job as security manager for a medical center because, after 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 pre-condition of employment. (Theisen v. Covenant Medical Center, 636 NW2d 74 (Iowa 2001).
YouDecide Scenario
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.
Do you feel that Karen is an independent contractor or an employee?
What is your rationale for this decision?