The goal of this exam is to see whether you can spot issues and intelligently discuss them in the context of the legal issues presented in class. In many cases there are no “right” or “wrong” answers; there are only more or less convincing arguments. Handout have been attached to use as references to back up points of arguments or defenses.

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Question #1

Jessica has recently graduated with a degree in Human Resources from the School of Human Resource Management. She has applied for a job as the first ever HR director at Stay at Home Safely, Inc. (“SHS”), a company specializing in providing activities such as board games, jigsaw puzzles, etc. for people under stay at home orders. SHS has locations in Orlando, Tampa, and Sanford, Florida, as well as one location in Seattle, Washington, where its business began. The company is incorporated in Delaware, although its principal place of business is in Seattle. The salary for the HR Director job pays $120,000 per year and the position is based out of the Orlando location. SHS has 25 employees in Orlando; 25 employees in Sanford; 15 employees in Tampa; and 10 employees in Seattle. Jessica is originally from Dubai, United Arab Emirates, and she has just turned 55 years old.

The other candidate for the position is Johanna. She is Hispanic and is fluent in Spanish and Creole. She is 41 years old, and although she does not have a degree in human resources, she has a marketing degree and worked as a manager at one of SHS’s main competitors in Tampa. Johanna signed a confidentiality and non-competition agreement with her former employer promising not to disclose confidential information or to compete with it throughout the United States for a five year period.

Ron Rios, the vice-president in charge of SHS’s Orlando location, interviews both Jessica Jessica and Johanna. Ron tells Johanna during the interview that he is very concerned that SHS market itself to the increasing number of Hispanic and Haitian customers, but that of course he plans to hire the most qualified candidate for the HR Director position.

After the interviews, Ron offers Johanna the position. Johanna is a little surprised by one part of her offer letter which explains there is a work rule that prohibits all employees from discussing their wages with each other. Johanna hasn’t mentioned her noncompetition agreement to Ron, but she doesn’t think that her former employer has ever tried to enforce one.

Johanna accepts the job at SHS. It takes her a couple of extra days to get started, because the company requires a social security card, driver’s license, and passport for the I-9, and she had misplaced her passport.

About 8 months later, Johanna is terminated. Although her 90 day evaluation had gone well, Ron told her that she didn’t have the necessary human resources experience. Johanna is suspicious, because the week before she was fired she had told Ron that she believed that SHS was violating some state rules and regulations in connection with its telemarketing techniques to sell its products.  During the same conversation, she had also mentioned that she felt there was generally a male-dominated culture and that women seemed to be having a hard time getting ahead in the company.

In the meantime, Jessica has been unable to find any other employment, which is not surprising given the number of furloughs and the general state of the economy. Of course, she has not looked very hard, because she’s been so angry about not getting the job at SHS. In fact, at a SHRM alumni breakfast she heard through the grapevine about Johanna being hired and then fired only a few months later. This makes Jessica even more irate and she posts on her Facebook page that in her opinion SHS discriminates against older people and Ron is a lying and conniving executive.

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Please answer the following questions based on the above facts. What claims might Johanna be able to bring against SHS? Are there any steps she needs to go through before filing a lawsuit? What evidence will support any claims that she might have, and what SHS would argue in response? Also, does Jessica have any claims against KM? What steps would she need to go through before filing suit, if any? What would the company argue in response? What damages could Johanna and Jessica request? Does SHS or Ron have any claims against Johanna or Jessica? Does the competitor (Johanna’s former employer) have any claims? Are there any other legal issues that you see in this fact pattern? Err on the side of over-inclusiveness, as you think through the legal issues.

Question #2

You are an experienced employee-side lawyer at the Fort Lauderdale-based firm of Bane & Ghul. One day, Rachel Dawes comes into your office seeking your representation. She tearfully proceeds to tell you the following story about what happened to her at her former employer, Wayne Enterprises (“WE” or the “Company”), whose offices are located in Miami (which she calls “Gotham with Palm Trees”):

1. She was hired by WE in      June 2016. Shortly after she      started, her immediate supervisor, Harvey Dent, began touching her breasts      and bottom every couple of weeks, and he on a weekly basis would make      comments like, “I’m not the lover you deserve, but I’m the lover you need      right now.” He also would      constantly lock himself in a room with her and flip a coin, saying that      she could leave if the coin was heads, but that she would have to have sex      with him if it came up tails. (Fortunately, it always came up heads.)
2. Another co-worker, Arthur      Fleck, asked her if she would go out with him. She initially did date him, but she      ultimately decided that he was a mentally unbalanced “joker” and told him      that she was not interested in him romantically. Arthur didn’t take no for an answer and      kept asking her out at work despite her rejection of him.
3. A client of the firm,      Selina Kyle, also expressed interest in Rachel, making comments about her      body and sending pictures of herself in a suggestive cat outfit. Harvey heard about Selina’s interest in      Rachel and about 7 months ago ordered Rachel to “humor” her. Rachel told Harvey that she wasn’t      interested and declined to return Selina’s affections.
4. About 3 months ago, Rachel      converted to a religion known as the “League of Shadows,” which worships      bats. After she was “bat-ized” she      asked Harvey for Thursdays off because that is the day she goes to      services. Harvey said he couldn’t      allow that to happen because he had no coverage and told her no.
5. Rachel was fired by Harvey      about two weeks ago after he gave her several poor reviews over the past 6      months. She couldn’t understand how      Harvey’s evaluations had changed, since he always gave her good      evaluations before. (“He was so      two-faced!”)
6. Rachel brought with her      the Company’s handbook, which said that any complaints should be directed      to the Company’s CEO, Bruce Wayne. Rachel told you that she never went to Bruce because she didn’t      think it would do any good. Besides, he was always out of the office on secret projects –      especially at night.

Advise Rachel what claims she might have based upon the above, as well as what defenses the Company might raise. Also let her know what kind of damages and other relief she might be able to get if she were to go after Wayne Enterprises.

Question #3

You are HR Director for CW, Inc., a recruiting company located in Winter Park. It has 45 employees in one location. The company has a handbook that contains an anti-harassment policy, but you haven’t had a chance to revise it yet (it only mentions sexual harassment, not other types of harassment). It appears that the handbook has not been distributed to employees, and the only copy is in CEO Chip Wingate’s office.

You have only been working at CW for a few months when Steve Melee walks into your office. He tells you that his supervisor, Manny Mann, has been acting like a jerk to everyone in their group (the Accounting Department), and keeps making comments that men lack listening skills that the women in the group have. He also tells you that he told Manny he was starting to feel discriminated against, and the next day received a write up for attendance. He’s sure the two are connected.

Steve also tells you confidentially that he has diabetes, and that the situation is exacerbating his condition. He asks you if he can take some time off as an accommodation. This is a very bad time for him to do this, because it is the height of the recruiting season.

In the meantime, you have become a little concerned as to how the company has been paying its employees, especially with respect to its clerical staff. The company has been paying them salaries because Chip assumed that because they were in administrative roles they were exempt from overtime. Most of them work 45 hours a week (although the company maintains no time records). You personally know that with the exception of one member of the group, who is responsible for HR policy and advice, the rest simply do data input, appointment scheduling, and the like.

You know you need to take action. First, how will you investigate Steve’s complaint? What are the legal issues that you need to consider? What are some possible steps you may have to take after your investigation?  Second, what about Steve’s request for time off? What legal obligations do you have? And finally, what about the pay issue? Is there a problem and what is it? How can you fix it?