Was her suit successful, i.e., was Jenner an employee or an independent contractor? Why?

You are to answer 4 of the following 9 questions with responses of at least 200 words. Although APA formatting is NOT required, please ensure you put your name at the top of your answer sheet. Make sure that you provide the rule of law raised by the issue in each question, apply the elements of the law to the facts in the scenario, and conclude with an answer to the question asked.

1. Jenner began working for Encyclopedia Britannica as a part-times sales representative in 1983. Her position required selling Encyclopedia Britannica’s educational products. Until 1995, she worked as a part-times sales representative and then a district manager for Encyclopedia Britannica. In 1995, Encyclopedia Britannica decided to separate the parent division from the school and library division and reorganize its sales force by “outsourcing:” contracting with individual “regional directors” who would in turn contract with individual sales representatives. The same people who had worked for Encyclopedia Britannica under the previous arrangement filled many of the positions under the new structure, in which branch managers became separately incorporated regional directors and district managers while sales representatives took positions with the newly formed companies.

Jenner signed a contract with Lee, a former Encyclopedia Britannica branch manager who had formed her own corporation and gathered a sales force comprised largely of former Encyclopedia Britannica sales representatives. Jenner eventually became a territory coordinator, a position slightly above sales representative but still reporting to Lee. In 1998, Jenner was told that she was losing her territory and would no longer be selling Encyclopedia Britannica products. Jenner sued Encyclopedia Britannica, claiming that the loss of her territory was effectively a termination. Was her suit successful, i.e., was Jenner an employee or an independent contractor? Why?

2. During the interview Gale had with Leslie Accounting Firm, Gale was asked whether she had any children, whether she planned to have any more children, to what church she belonged and what her husband did for a living. Are these questions illegal? Why or why not?

3. An over-forty employee of the New York Transit Authority is denied a promotion to station supervisor after he refuses to submit to an electrocardiogram (EKG) as part of a physical. The NYTA required the physical, and therefore the EKG’s, for all supervisory position candidates who were under forty and who had problematic medical histories, as well all candidates over forty. The NYTA contended that the examination and test were necessary because of the physical demands of the position. It also argued that people over forty have an increased risk of heart disease, hence the EKG requirement. How would you determine whether this employee should be required to undergo the test?

4. Dave comes into the office and says to Sue: “Good morning! You look great today! Oops, I’d better not say that. That’s sexual harassment.” Is Dave correct? Explain.

5. At the end of all her written communications, an employee writes, “have a blessed day.” One of employer’s most important clients requests that employee not do so, and employer asks employee to stop. Employee refuses, saying it is a part of her religion. If employee sues the employer for religious discrimination, then is she likely to win? Why or why not?

6. Betsy was an employee in a bank’s Demand Services Department. She suffered from dysthymia, a form of depression, along with phobia and bouts of more intense depression. Over several years, she was absent from work on a relatively frequent basis. The employer discharged her after continuing absences following two periods of probation for absences from work. She was discharged the day after she had called in that she would be absent because of “depression again.” Should Betsy’s condition be considered a “disability?” If so, what, if any, accommodations could have been made for Betsy? Do you believe her discharge violates the ADA?

7. Answer two of the following questions:

a. Can race or gender be the only factor in an employment decision?

b. If race or gender can be the only factor in an employment decision, how long can it be a factor?

c. What is the difference between an affirmative action goal and a quota, or is there one?

d. What is the proper comparison to determine if there is an underrepresentation of women or minorities in the workplace?

8. Michael Jamison was a police officer with the City of Jamesville, Missouri Police Department. After working there for four years, he was appointed Jamesville’s Acting Chief of Police. One year later, Smith was appointed Mayor and Robinson succeeded Jamison as Permanent Chief of Police. Jamison and Smith did not have a good relationship; Smith instituted disciplinary proceedings against him and fired him on several occasions (but the Jamesville Board overturned the decisions each time). After Smith heard a rumor that Jamison was associating with a reputed drug dealer, she ordered that Jamison undergo urinalysis testing and told him that failure to comply would result in serious disciplinary actions. The Order requiring the testing stated that Smith understood this rumor to mean that Jamison was involved in “some type of illegal drug use and/or abuse.” Jamison complied with her order and all tests were found to be negative. However, Smith’s Order remained in Jamison’s personnel file. When he later left the Department and sought work elsewhere, Jamison was unable to find employment as a result of this Order in his file. Jamison filed suit claiming damages as a result of the City’s wrongful and vengeful testing program. Will he win? Why or why not?

9. Which of the following statements would be acceptable in a performance evaluation? Why or why not?
◾”Even though Jacquie was out on a few religious retreats, she exceeded June sales goals by 10%.”
◾”Although a new, young college graduate, Spiro was very capable in leading the sales meeting.”
◾”Despite time off for medical leaves, Renee was able to surpass productivity of many of her colleagues.”
◾”Though a bit tough to understand, Margeaux has received excellent reviews for her customer service.”

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