978-0078023866 Chapter 12 Internet Exercise and Supplements Part 2

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Chapter 12 – Employment Law I: Employee Rights

Answers to Chapter Questions (p. 543)

a. Of course, under the ancient notion of respondeat superior, it is believed that employers

should bear responsibility because they hired the employees: They, in effect, decided that

b. This can be discussion-based question for the students. Since the students are now updated

2. Abplanalp won. The court held that Com-Co. had no protectable interest in clients Abplanalp

knew personally before he began work for Com-Co. A protectable interest is not recognized when

a. This can be a discussion-based question for students. Many employee-testing experts doubt

b. Under the Fair Credit Reporting Act, credit agencies normally need not tell job applicants that

their files are being investigated. However, they must do so if their files hold public

4. The nurses lost. The court held that an employee’s time is “work” subject to the FLSA only if it is

5. The circuit court held that there was no improper search and seizure: The employer had the right

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Chapter 12 – Employment Law I: Employee Rights

6. On appeal, Bechtel won. Guz was an at-will employee. The employer had an absolute right to

7. The court agreed with the RSRs that the RSR job did not meet the exemption requirements. The

a. This can be a discussion-based question for the students. It may be useful to survey the

b. Students can have a discussion on this question. Likely, it has caused a decrease. A

c. This can be a discussion-based question. High unemployment rates and decreases in hiring

a. The incident did not happen at work and Lewis’ attempt to fix the grill was not part of his

b. The defense is weak as the employee was asked by a manager at the employer-sponsored

10. The students could have a discussion based on this question. Consider the situations in which

11. The court rejected Mitchell’s claims when he tried suing the university on the grounds of wrongful

12. No. Federal law prohibits firing an employee for serving on a jury. Even threatening to do so is

illegal.

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Chapter 12 – Employment Law I: Employee Rights

13. Plaintiffs would have to show some evidence of a public policy (e.g., in a statute or the

14. The dancers were employees at Club Orleans rather than independent contractors because the

15.

a. The issue in Vail’s case is whether she was abusing her leave or whether Raybestos

b. While the court did not view the surveillance as commendable, it noted that other employers

c. The court rejected the employee’s claims because she was fraudulent in the use of FMLA

16.

a. Public policies at stake include safety and free speech.

b. This is a discussion/opinion-based question for the students. Triple B did not seem to act

c. If employees fear retaliation in exercising their rights, then it may be expected that

Supplementary Materials

I. Scope of Employment

A. McDonald’s

Certain cases where employers have been held liable have heightened the concern that employers have

become dangerously vulnerable to lawsuits for injuries involving employees. For example, in March of

1991 a Portland, Oregon jury found McDonald’s to be negligent when a 19-year-old employee was

involved in an automobile accident after work. The employee had worked a 12-hour split shift after

having worked 8 hours the night before. He fell asleep at the wheel after leaving work. His car crossed

the center line and struck the plaintiff’s car causing the death of the McDonald‘s employee and injuring

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Chapter 12 – Employment Law I: Employee Rights

the plaintiff. The jury awarded $400,000 to the plaintiff. The family of the deceased employee is suing

McDonald’s for $10 million. The decision is particularly striking because the plaintiff did not allege a

violation of labor law or company policy. Rather, McDonald’s was found to be negligent for allowing its

employee to drive after working for an extended period. McDonald‘s had not compelled the employee to

work the extra hours. However, the supervisor was aware of the employee‘s work and school schedule.

For its part, McDonald’s wonders how it is to identify workers who are too tired to drive. See Amy

Stevens, “Bosses Fret They May Be Liable for Tired Workers on Road Home,” The Wall Street Journal,

April 16, 1991, p. B1.

B. McDonald’s Again

McDonald’s was likewise the defendant in a California case attempting to hold the company responsible

for an auto accident involving a McDonald‘s employee who struck a motorcycle while driving home. The

employee had spent part of the evening with other employees cleaning up the restaurant playground. He

then went to another employee‘s home for socializing and discussion of the “Spring Blitz” cleanup.

Thereafter, he was involved in the accident. A lower court found for McDonald’s. However, an appeals

court sent the case back saying that the lower court had to decide whether the employee had fully

abandoned his “special errand.” The appeals court took note that the five employees gathering after work

and talking about the “Blitz” and the performance of other McDonald’s stores was consistent with the

“family” feeling that the fast food chain encourages. See Albert R. Karr, “Labor Letter,” The Wall Street

Journal, January 22, 1991, p. A1.

C. Death on a Company Outing

The following article details yet another expansion of our conventional sense of employer liability.

Jury’s Verdict in Raft Death Clouds Outings

By Thomas R. King and John B. Hinge

A federal jury’s verdict holding DDB Needham responsible for the drowning death of a retired

employee on a company-sponsored rafting trip will force businesses to reassess the risks of

giving employees and clients a good time.

Late last week, a U.S. District Court jury in Chicago ordered DDB Needham to pay $1.1 million

to the family of James Fasules, one of five men who drowned on a white-water rafting

expedition on Canada’s Chilko River in 1987. The jury held the Omnicom Group unit partly

responsible for the accident. Mr. Fasules was held partly responsible himself. The rafting

company, which ran the trip, wasn’t held responsible at all.

The jury award sends a clear message that companies can be held responsible for events

they sponsor—even those outings in which the lines between business and social activity are

blurred. Two more lawsuits arising out of the drownings still are to be decided—one of which

concerns the death of a would-be client, Procter & Gamble executive Robert Goldstein.

Lawyers and ad officials quizzed yesterday said the decision will make it nearly impossible for

businesses to justify outings that can in any way be viewed as potentially dangerous. Events

such as wilderness hiking expeditions and rock climbing, for example, will likely be substituted

with tamer outings, such as picnicking and rounds of golf.

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Chapter 12 – Employment Law I: Employee Rights

“We think it’s a very important jury decision, not only for this case but for all future cases

where businesses are using marketing tools that are dangerous,” said Stanley M. Chesley, a

Cincinnati attorney for the family of Mr. Goldstein.

The Fasules case is believed to be the first time a federal jury has decided that companies

can be held liable for off-work outings, said Brian Crowe, the attorney for the Fasules family.

But he doesn’t expect the ruling to apply to mishaps in milder celebrations.

“The whole message is that if you’re going to take someone on a risky venture, you have to let

him know what he’s getting involved with,” said Mr. Crowe of the Chicago law firm Henslee

Monek & Henslee. In this instance, Mr. Fasules was a raw rookie at rafting while other

participants were veterans who knew what to expect, the attorney explained.

But DDB Needham’s attorney, William Swindal of the Chicago law firm Hinshaw & Culbertson,

maintained the agency’s innocence. “Our argument was that there was no duty owed to Mr.

Fasules,” he said. “We did nothing wrong. We didn‘t run or operate the raft.” He wouldn’t

comment on whether the agency plans to appeal the verdict.

If there was any good news for DDB Needham, it was the fact that the jury award fell short of

the $5 million that Mr. Fasules’s family had originally sought.

The jury decided on the $1.1 million award after determining Mr. Fasules was partly

responsible. One guide who was aboard the raft testified that he pulled Mr. Fasules to a safe

place after the accident, but that the retired executive apparently left that place and then

drowned.

The Wall Street Journal, December 4, 1990, p. B1. Reprinted by permission of The Wall Street Journal.

Supplemental Cases

I. Capitol City Foods, Inc. V. Superior Court Of Sacramento County, 7 Cal. Rptr.

2d 418 (3d Dist. Cal. 1992) (See Scope of Employment, p. 508)

Syllabus

An employee (Mary T.) of Capitol City Foods, sued Capitol for, among other things, the sexual

harassment committed by a supervisor (Vernon Johnson). The harassment was committed

while both parties were off duty and away from the workplace. The Superior Court of

Sacramento County denied Capitol’s motion for summary judgment on the sexual harassment

claim and Capitol petitioned for a writ of mandate ordering the trial court to grant its summary

judgment motion.

A California appellate court issued the writ directing the Superior Court to grant Capitol’s

motion for summary judgment. The court found that Johnson was not acting within the scope

of his employment when the alleged harassment occurred and pointed to the following: Mary

T. and Johnson were off-duty during the incident, they had agreed to the date, and there was

no evidence that “Johnson used his authority as supervisor to compel Mary’s presence. The

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Chapter 12 – Employment Law I: Employee Rights

mere facts that the parties were in Johnson’s office when the date was arranged and that Mary

was wearing her uniform when Johnson picked her up were insufficient to establish that

Johnson was acting within the scope of his employment when the alleged harassment

occurred.

II. Medina V. Graham’s Cowboys, Inc., 827 P. 2d 859 (N.M. Ct. App. 1992) (See

Negligence, p. 509)

Syllabus

Steven Trujillo assaulted “Rocky” Medina (a patron of Cowboys) in the parking lot of Graham’s

Cowboys, Inc. (Cowboys). Medina sued Cowboys for negligently hiring and supervising

Trujillo. The trial court found for Medina, Cowboys appealed and the appellate court affirmed.

The appellate court sustained the lower court’s decision based on the facts that Trujillo was

employed by Cowboys as a doorman; his job included assisting in maintaining peace in

Cowboys, using force if necessary; Cowboys’ doormen were necessarily in constant contact

with members of the public, most of whom would have been drinking and many of whom might

tend to be argumentative; and Cowboys knew or should have known that Trujillo was unfit to

be employed as a doorman in that he had been involved in several fights at Cowboys and in

its parking lot as a Cowboys patron. The court held that Trujillo was unsuitable to for the

position considering the risk he posed to those with whom he would foreseeably come into

contact during his employment; that his attack on Medina was foreseeable; and that Cowboys

was negligent in the hiring and training of Trujillo, which negligence was the proximate cause

of Medina’s injuries.

Cowboys challenged the ruling on the ground that Trujillo was not on duty on the night of the

assault and therefore the hiring of Trujillo could not have been the proximate cause of

Medina’s injuries. However, there was ample evidence that Trujillo was present on the

premises at Cowboy’s request, that he had come to work and been told by a Cowboys

employee to remain in case he was needed later and that he did remain. Therefore, Trujillo

encountered Medina as a direct result of Trujillo’s employment relationship with Cowboys.

Held for Medina.

III. Miedema v. Dial Corp., 551 N.W. 2d 309 (Iowa 1996) (See Workers’

Compensation, p. 518)

Syllabus

James Miedema filed a workers’ compensation claim after experiencing severe pain in his

lower back while in the restroom at work. The court held that workers’ compensation claims

must satisfy both parts of a two-part analysis in order to be compensable: (1) The injury must

arise in the course of employment, and (2) it must arise out of that employment. Miedema

satisfied the first part in that the injury occurred after he had clocked in for work and while he

was on the work premises. However, he did not meet the second part of the analysis because

there was no causal connection between the conditions of his employment and the injury to

his back. “The injury must not have coincidentally occurred while at work, but must in some

way be caused by or related to the working environment or the conditions of his employment.

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Chapter 12 – Employment Law I: Employee Rights

There is no indication that the design of the restroom or of the toilet Dial provided for its

employees contributed to Miedema’s injury.” Found for Dial Corp.

IV. Dray v. New Market Poultry Products, Inc., 518 S.E. 2d 312 (Va. S. Ct. 1999)

(See Judicial Limitations on At-Will Principles, p. 536)

Syllabus

Plaintiff was a quality control inspector whose job was to assure that no adulterated poultry

products were sold. Two months before her termination, after failing to get management to

enforce proper sanitary rules, she informed the plant’s on-site governmental inspectors of the

problem, who then saw the condition corrected. Her supervisor then told her she would be

fired if she went to the government inspectors again. A week prior to her discharge, she and

other quality control inspectors reported another problem to management. The day of her

discharge, a government inspector required a large quantity of poultry to be reprocessed.

Management believed plaintiff had informed the government inspector and she was

discharged.

Plaintiff claimed her termination was against public policy, relying on the public policy

represented by the Virginia Meat and Poultry Products Inspection Act. The court found that

plaintiff was asking for the court to establish a common law “whistle-blower” retaliatory

discharge claim as an exception to Virginia’s employment at will doctrine. The court refused to

do so. Plaintiff lost.

V. Wagenseller v. Scottsdale Memorial Hospital, 710 P. 2d 1025 (Ariz. S. Ct.

1985) (See Judicial Limitations on At-Will Principles, p. 536)

Syllabus

The plaintiff, an at-will employee who was discharged by the defendant hospital, brought a

number of causes of action under both tort and contract theories alleging that her termination

violated public policy. She contended that she was discharge for refusing to take part in

certain activities (e.g., drinking, spitting, and performing “Moon River” literally) on a camping

trip with her supervisor (who was also female). The trial court dismissed all of the causes of

action on the defendants’ motion for summary judgment and Wagenseller appealed.

The Arizona Supreme Court identified the relevant issues as: (1) Is an employer’s right to

terminate an at-will employee limited by any rules which, if breached, give rise to a cause of

action for wrongful terminations; and (2) if the “public policy” doctrine or some other doctrine

does form the basis for such an action, how is it determined?

In remanding the case to the trial court, the Arizona Supreme Court stated: “It is difficult to

justify this court’s further adherence to a rule which permits an employer to fire someone for

‘cause morally wrong [.]’ We hold that an employer may fire for good cause or for no cause.

He may not fire for bad cause—that which violates public policy.” Thus, the Arizona Supreme

Court adopted the public policy exception to the employment-at-will doctrine for Arizona.

Selected Bibliography

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any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

Chapter 12 – Employment Law I: Employee Rights

Gil A. Abramson and Elisabeth J. Lyons, “Protection of Employers’ Records from Disclosure to

Employees, Government Agencies, and Third Parties,” Labor Law Journal 41, No. 6, June 1990, p.

353.

David A. Allen, “Less Stress, Less Litigation,” Personnel 67, No. 1, January 1990, p. 32.

Steve Bergsman, “Employee Conduct Outside the Workplace,” HR Magazine 36, No. 3, March 1991,

p. 62.

Arthur Caplan, “Genetic Screening May Decide Jobs,” Des Moines Register, November 11, 1990. p.

2C.

Anne Carothers-Kay, “Vulgarity Now Grounds for Job Firing,” Des Moines Register, September 27,

1990, p. 2A.

Shari Caudron, “Angry Employees Bite Back in Court,” Personnel Journal 75, no. 12, Dec. 1996, p. 33.

Laurie P. Cohen and Wade Lambert, “Firms’ Right to Fire `At Will’ is Bolstered,” The Wall Street

Journal, January 8, 1990, p. B2.

Laurie P. Cohen and Ann Hagedorn, “Sweatshop Conditions Described by Witnesses in

Workplace-Injury Case,” The Wall Street Journal, October 24, 1990, p. B8.

Jeffrey L. Cross, “The Employee Polygraph Protection Act of 1988: Background and Implications,”

Labor Law Journal 40, No. 10, October 1989, p. 663.

Sonni Efron, “Targets Get Bigger in Sweatshop War,” Los Angeles Times, February 5, 1990, p. A3.

David Everett and Michael Mehle, “U.S. Finds Thousands Working in Violation of Child Labor Laws,”

Des Moines Register, March 16, 1990, p. 1A.

James Fenton, “Negligent Hiring/Retention Adds to Human Resources Woes,” Personnel Journal 69,

No. 4, April 1990, p. 62.

Gilbert Fuchsberg, “Prominent Psychologists Group Gives Qualified Support to Integrity Tests,” The

Wall Street Journal, March 7, 1991, p. B8.

William Fulmer and Ann Wallace Casey, “Employment at Will: Options for Managers,” Academy of

Management Executive 4, No. 2, 1990, p. 102.

Kirsten Grimsley, “Maternity Benefits Lag in U.S.,” Des Moines Register, February 16, 1998, p. 1A.

Arthur S. Hayes, “Layoffs Take Careful Planning to Avoid Losing the Suits that Are Apt to Follow,” The

Wall Street Journal, November 2, 1990, p. B1.

Tom Juravich, “Here Are the 10 Worst Jobs in America,” Des Moines Register, March 18, 1991, p. 4A.

Mark J. Keppler, “Halting Traffic on the Road to Wrongful Discharge,” Personnel 67, No. 3, March

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Chapter 12 – Employment Law I: Employee Rights

1990, p. 48.

Amy Dockser Marcus, “Courts Uphold Oral Pledges of Lifetime Employment,” The Wall Street Journal,

December 12, 1989, p. B1.

Ellen Neuborne, “Workers in Pain: Employers Up In Arms,” USA Today, Jan. 9, 1997, p. 1B.

OSHA, “Improper Excavation Procedures Contribute to Death of Construction Worker: OSHA Cites

Texas Firm Following Trenching Fatality at Alba, Tex.,”

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