2 discussion questions

FeedbackThanks for your Assignment 3 . You earned a B (87%) grade on your Assignment. This
Assignment is meant to test your understanding of Agency Law and its application in the
workplace when it comes legal liability. More specifically, we are looking for you to
demonstrate how “blame” can be attached to an employer for the actions of their
employee when the employee is acting in, or conducting work, in the “scope of their
employment.” You wrote a good analysis of the legal principles and your opinion was
based on the law – Good effort. Please review my feedback below and rememeber that
it is very important to keep adding to your knowledge on employment law. See the
following government websites: US Department of Labor https://www.dol.gov/ and Labor
Law and Issues https://www.usa.gov/labor-laws.
Always remember that your success is very important to your LEG500 professors.
Question 1 requires you demonstrate an understanding of what agency law is.
Specifically, the “relationship between the parties, specifically employer-employee” and
thus the principal (employer) and agent (employee). This relationship is created through
either an expressed agreement, implied agreement or one that is caused by an
apparent agreement in the mind of a third party. These terms should be explained
simply and then, relate this information as to scenario, specifically Widgets and its
drivers and their actions. For example, Widgets hires drivers to drive people around for
a price. Thus, the drivers are agents of Widgets, the principal. Agents could be deemed
expressed agents or, implied agents. They are expressly given authorization to act as
“Widget drivers.” And certainly, their actions and the way they provide for transportation
is implied in their work performance for the company. This should be included in your
answer. Good effort on question 1. You discussed the main principles of agency law
and liability as to agents deemed employees or independent contractors. However I
would have liked some substantive information on the rights and duties of the principal
and agent and how an agency is created.
Question 2 is asking about liability and testing your notion of liability for the actions of
the drivers (agents) of Widgets. This leads to the question of scope of employment.
What does this term mean? Scope of liability is the range of conduct and activity within
which an employee can reasonably be carrying out the business of his or her employer.
The liability of an employer for an act committed by an employee, depends on whether
the act falls within the scope of employment and whether the agent is an employee or
independent contractor. You should explain liability as to both because, though the
company can claim their drivers are one or the other, we know this would be up to a jury
and is still a question today.
The last part of the question 2 is consideration of the action by the agent. For example,
negligence (a tort) committed while an employee is within the scope of employment
holds a principal liable under the doctrine of respondeat superior (let the master
answer). Why? Because negligence is foreseeable. If an agent is a driver, it is
foreseeable that “accidents will happen.” For intentional torts, like driving drunk, what do
we know? Per the text and our discussion last week, “Generally, intentional torts are
NOT within the scope of employment and not authorized by employers and therefore,
do not result in liability to employers.” There are two exceptions, negligent failure to
supervise and negligent hiring. It could be argued that Widgets is NOT liable if its agent
is driving drunk. Traditionally, drunk driving is wanton, reckless, and intentional, thus, an
intentional tort. Generally, per the text reading and understanding of tort law, “employers
are not liable for the intentional torts of employees.” Why? Because drunk driving, an
intentional tort, is not foreseeable. Ggood effort on question 2. You discussed the
business liability for the actions of its drivers (agents) and specifically if a driver is drunk
based on the law. However I would have liked more details on the legal terms in your
answer.
The last question of the Assignment, Question 3, is really your own thoughts and ideas
of how best to limit liability and exposure to liability for Widgets. Two to three ways is
required for your answer and can include training, a hiring process and credentials,
learning and educating employees about the law, waivers of liability, requiring drivers to
carry a certain amount of insurance, etc.You wrote a good effort proposal of the steps
the business can take to limit its legal exposure for the conduct of its drivers. I would
have liked more substantive information in your answer. How would the independent
contractor relationship affect the company’s exposure?
Excellent – Your reference list exceeds the number of required references; all
references high quality choices and were cited in accordance with SWS requirements.
I urge you to start researching and writing your final paper due in week 10. You can
watch the move Philadelphia https://www.youtube.com/watch?v=cl4B9AU45P4 staring Tom
Hanks and Denzel Washington when you are writing your paper. Thanks for reviewing
my feedback with an open mind to learning something new. I hope it was helpful. If you
have any questions or concerns, please email me at Petagaye.fancy@strayer.edu, or call or
text me.
•
•
Question 1
WEEK 10 ASSIGNMENT – THE VALUE OF FAIR TREATMENT IN THE
WORKPLACE
Week 10 Assignment – The Value of Fair Treatment in the Workplace
Overview
In this assignment, you evaluate and assess workplace protection legislation,
identify the law pursuant to the employment-at-will (EAW) doctrine and legal
exceptions and apply this understanding to a business scenario, and explain legal
requirements for hiring new employees and your own home state laws as to
workers’ compensation and immigration.
Instructions
Respond to the following in 4–6-pages:
1.
Cite two federal laws that you believe are the most important for protecting employees from
workplace discrimination. Provide a compelling argument for the effectiveness of the
legislation in protecting employees and two case law examples to support your assessment.
2. Explain the actions that employers must take to verify legal employment in the United States.
3. Some states do not allow undocumented workers, or those not legally allowed to work in the
United States, to receive workers’ compensation benefits. Provide the law in your home state
and a compelling and supported (with research) argument advocating for or against your
state’s practice of allowing or denying workers’ compensation benefits to undocumented or
illegal workers.
4. Provide a comprehensive summary of the employment-at-will (EAW) doctrine that includes
all possible legal exceptions designed to fight wrongful termination.
5. Cite and support (with research) an appropriate EAW exception that the employee in each of
the following scenarios could reasonably argue to save their job.
• Scenario 1: JoAnn, a manager, started a blog on the company website for employee
grievances and problems. She noticed that a worker was protesting that allegedly no
Asian American employees had gotten a raise in two years at the company. Christine,
the employee, also criticized how much CEO Elon had made last year and how he was
“out of touch” with the realities of his employees. JoAnn reminded Christine that she
was an employee-at-will. The next day, Christine talked to her fellow co-workers about
forming a union. JoAnn fired Christine and Christine is suing for wrongful termination.
• Scenario 2: Steven, a department supervisor, fired his secretary, Ann. Ann, a devout
Christian, had been putting Right-to-Life flyers in the employee breakroom. Steven
talked to Ann twice and reiterated her actions were not appropriate. Ann continued to
leave the pamphlets and was also taking time away from work to pray at her desk
during the busiest times of the morning. Ann is suing for wrongful termination.
Requirements
6.
7.
4–6 pages, double-spaced, Times New Roman font (size 12), with 1-inch margins on all sides.
Include a cover page containing the title of the assignment, the student’s name, the
professor’s name, the course title, and the date. The cover page and the Sources list are not
included in the required assignment page length.
Resources
8. Use the Strayer Library to conduct your research.
9. Include at least three quality references.
10. The textbook for this class is a required source for this assignment.
This course requires the use of Strayer Writing Standards (SWS). The library is your
home for SWS assistance, including citations and formatting. Please refer to
the Library site for all support. Check with your professor for any additional
instructions.
The specific course learning outcome associated with this assignment is as follows:
11. Evaluate federal law relative to workplace discrimination, employment-at-will, or worker’s
compensation eligibility.
•
Question 2 Read Chapter 20 – Management: Employee Discrimination
Answer and discuss the following and please, define terms and the law for
thorough answers:
1. John, age 63, applied for a car sales position with FASTCARS, Inc. The
company’s usual clientele are young, professionals in their 30’s. John has
numerous years of experience and was asked to take a math test and a
general aptitude test. He was disqualified from consideration for the sales
position.
1.
a.
Per the chapter reading, what is required for employers when
giving these tests to potential applicants and, what are some
arguments John could allege as to discrimination against
him? facts John would need to know in order to argue he was
discriminated against.
1.
Leo, a manager, likes to hug employees in the morning and has been advised
against this practice. Leo is mentally challenged, and most employees
understand his limitations. Leo was shown videos that demonstrate
appropriate touching and actions per sexual harassment in the workplace.
Tom, a new employee, files a sexual harassment lawsuit against the
company for Leo’s hugs.
1.
What forms of sexual harassment discrimination exist today
and, would Tom be successful? Why or why not?
b. Does Leo’s mental state help or hinder her lawsuit? Why or
why not? Share your thoughts.
Be sure to respond to at least one of your classmates’ posts.
Please be sure answers are researched, informed, and substantiated by citing
sources used at the bottom of your discussion post. See the Strayer Writing
Standards link in BB for help following citation requirements.
a.
Notes Examples
FROM THE PROFESSOR…WELCOME TO WEEK 10!
Good morning, Graduate Students: I hope you are doing well and you have a great
Week 10! We are almost to the end! Our focus this week is on protections in the
workplace from discrimination and sexual harassment and the law. See some
statistics below to get a perspective of the legal climate and litigation in regard to
discrimination lawsuits. This information is from 2020.
We are almost to the end of the class but continue to work hard and be sure to look
at the last assignment instructions and questions. The paper is worth 200 points so
do well and be sure to submit on time. I hope you have a good rest of the week
ahead.
Top Workplace Discrimination Claims
The Equal Employment Opportunity Commission (EEOC) has detailed
breakdowns for the 72,675 charges of workplace discrimination the agency
received in fiscal year 2019-20.
The FY 2019/20 data show that retaliation continued to be the most frequently
filed charge filed with the agency, followed by disability, race and sex. A total of
39,110 retaliation claims were filed with the agency in FY2019/20. The EEOC
ruled that about 70% of the claims lacked reasonable cause. What is
retaliation?
• Retaliation – Punishing job applicants or employees for asserting their
rights. Asserting rights is called “protected activity,” and it can take many
forms. For example, it is unlawful to retaliate against applicants or
employees for:
• filing or being a witness in an EEO charge, complaint, investigation,
or lawsuit
• communicating with a supervisor or manager about employment
discrimination, including harassment
• answering questions during an employer investigation of alleged
harassment
• refusing to follow orders that would result in discrimination
• resisting sexual advances, or intervening to protect others
• requesting accommodation of a disability or for a religious practice
• asking managers or co-workers about salary information to uncover
potentially discriminatory wages
In FY 2019/20, of the 7,514 sexual harassment claims filed, the EEOC found
that about 54.6% lacked reasonable cause. Of the total charges, 16.8% were
brought by males in 2019/20.
The agency filed 157 total lawsuits in 2019/20. Break down by causes of
action alleged, in descending order below:
1. Retaliation: 39,110 claims (53.8 percent of all charges filed)
2. Disability allegation claims: 24,238 (33.4 percent)
3. Race discrimination claims: 23,976 (33.0 percent)
4. Sex: 23,532 (32.4 percent)
5. Age: 15,573 (21.4 percent)
6. National Origin: 7,009 (9.6 percent)
7. Color: 3,415 (4.7 percent)
8. Religion: 2,725 (3.7 percent)
9. Equal Pay Act: 1,117 (1.5 percent)
10. Genetic Information: 209 (0.3 percent)
https://www.insurancejournal.com/news/national/2020/01/28/556692.ht
m
Notes2
FROM THE PROFESSOR…DIRECT THREAT DEFENSE TO DISCRIMINATION
Good afternoon, Grad Students. See the scenario below and some great
information regarding the Direct Threat Defense and information for
employers. The process and procedure information comes from the EEOC website
and is in relation to health and medical related issues of employees on the job that
pose a direct threat to themselves and others. This is such a delicate matter but
very important for those in management today to know and understand. Let me
know if you have any questions, I hope you have a wonderful night.
SCENARIO
• A crane operator works at construction sites hoisting concrete panels
weighing several tons.
• An assistant on the ground helps him load the panels, and several other
workers help him position them.
• During a break, the crane operator appears to become light-headed, has to
sit down abruptly, and seems to have some difficulty catching his breath.
• In response to a question from his Supervisor about whether he is feeling all
right, the crane operator says that this has happened to him a few times
during the past several months, but he does not know why.
• The Supervisor is concerned about the possible threat his condition and
operating the crane can have on the employee and others.
• He suspends the employee from operating the crane.
The employer has a reasonable belief, based on objective evidence, that the
employee will pose a Direct Threat if he continues the job (a significant risk of
substantial harm to self or others that cannot be reduced or eliminated through
reasonable accommodation.)
The employer, therefore, pursuant to the law, can require the crane operator to
have a medical examination to ascertain whether the symptoms he is experiencing
make him unfit to perform his job. To ensure that it receives sufficient information
to make this determination, the employer may want to provide the doctor who does
the examination with a description of the employee’s duties, including any physical
qualification standards, and require that the employee provide documentation of
his ability to work following the examination.
Under the ADA, an employer’s ability to make disability-related inquiries or
require medical examinations is analyzed in three stages: pre-offer, post-offer, and
after employment.
At the first stage (pre-offer), the ADA prohibits all disability-related inquiries and
medical examinations, even if they are related to the job.
At the second stage (post-offer but before starting work), an employer may
make disability-related inquiries and conduct medical examinations, regardless of
whether they are related to the job, as long as it does so for all entering employees
in the same job category.
At the third stage (after employment begins), an employer may make
disability-related inquiries and require medical examinations only if they are jobrelated and consistent with business necessity.
In deciding whether a “direct threat” exists, an employer should consider:
• the duration of the risk
• the nature and severity of the potential harm
• how likely it is that the potential harm will occur, and
• how imminent the potential harm is.
When may a disability-related inquiry or medical examination of an employee be
“job-related and consistent with business necessity”? – A disability-related inquiry
or medical examination of an employee may be “job-related and consistent with
business necessity” when an employer “has a reasonable belief, based on objective
evidence,” that:
(1) an employee’s ability to perform essential job functions will be impaired
by a medical condition; or
(2) an employee will pose a direct threat to others due to a medical
condition (1).
SOURCE
(1). Equal Employment Opportunity Commission. June 5, 2022. Direct Threat
Defense and Disabilities. Retrieved on March 5, 2023
from https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/interagency
/employing_people_with_disabilities_toolkit_february_3_2015_v4-2.pdf.
(2) Equal Employment Opportunity Commission. June 5, 2022. Direct Threat
Defense and Disabilities – Enforcement. Retrieved on March 5, 2023
from https://www.eeoc.gov/laws/guidance/questions-and-answersenforcement-guidance-disability-related-inquiries-and-medical.
FROM THE PROFESSOR…DIRECT THREAT DEFENSE TO DISCRIMINATION
Overall Rating:
COLLAPSE
Good afternoon, Grad Students. See the scenario below and some great
information regarding the Direct Threat Defense and information for
employers. The process and procedure information comes from the EEOC website
and is in relation to health and medical related issues of employees on the job that
pose a direct threat to themselves and others. This is such a delicate matter but
very important for those in management today to know and understand. Let me
know if you have any questions, I hope you have a wonderful night.
SCENARIO
• A crane operator works at construction sites hoisting
concrete panels weighing several tons.
• An assistant on the ground helps him load the panels, and
several other workers help him position them.
• During a break, the crane operator appears to become lightheaded, has to sit down abruptly, and seems to have some
difficulty catching his breath.
• In response to a question from his Supervisor about whether
he is feeling all right, the crane operator says that this has
happened to him a few times during the past several months,
but he does not know why.
• The Supervisor is concerned about the possible threat his
condition and operating the crane can have on the employee
and others.
• He suspends the employee from operating the crane.
The employer has a reasonable belief, based on objective evidence, that the
employee will pose a Direct Threat if he continues the job (a significant risk of
substantial harm to self or others that cannot be reduced or eliminated through
reasonable accommodation.)
The employer, therefore, pursuant to the law, can require the crane operator to
have a medical examination to ascertain whether the symptoms he is experiencing
make him unfit to perform his job. To ensure that it receives sufficient information
to make this determination, the employer may want to provide the doctor who does
the examination with a description of the employee’s duties, including any physical
qualification standards, and require that the employee provide documentation of
his ability to work following the examination.
Under the ADA, an employer’s ability to make disability-related inquiries or
require medical examinations is analyzed in three stages: pre-offer, post-offer, and
after employment.
At the first stage (pre-offer), the ADA prohibits all disability-related inquiries and
medical examinations, even if they are related to the job.
At the second stage (post-offer but before starting work), an employer may
make disability-related inquiries and conduct medical examinations, regardless of
whether they are related to the job, as long as it does so for all entering employees
in the same job category.
At the third stage (after employment begins), an employer may make
disability-related inquiries and require medical examinations only if they are jobrelated and consistent with business necessity.
In deciding whether a “direct threat” exists, an employer should consider:
• the duration of the risk
• the nature and severity of the potential harm
• how likely it is that the potential harm will occur, and
• how imminent the potential harm is.
When may a disability-related inquiry or medical examination of an employee be
“job-related and consistent with business necessity”? – A disability-related inquiry
or medical examination of an employee may be “job-related and consistent with
business necessity” when an employer “has a reasonable belief, based on objective
evidence,” that:
(1) an employee’s ability to perform essential job functions
will be impaired by a medical condition; or
(2) an employee will pose a direct threat to others due to a
medical condition (1).
SOURCE
(1). Equal Employment Opportunity Commission. June 5, 2022. Direct Threat
Defense and Disabilities. Retrieved on March 5, 2023
from https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/interagency
/employing_people_with_disabilities_toolkit_february_3_2015_v4-2.pdf.
(2) Equal Employment Opportunity Commission. June 5, 2022. Direct Threat
Defense and Disabilities – Enforcement. Retrieved on March 5, 2023
from https://www.eeoc.gov/laws/guidance/questions-and-answersenforcement-guidance-disability-related-inquiries-and-medical.
Notes 3
FROM THE PROFESSOR…SARBANES-OXLEY ACT (SOX) PROTECTION FROM WRONGFUL
TERMINATION
Good afternoon, Graduate Students. It is Tuesday, I hope you all have a great
day. See the scenario below and the law and application of the Sarbanes-Oxley
Act (SOX) as yet another example of an exception to the EAW and wrongful
termination lawsuit.
The Sarbanes-Oxley Act (SOX) provides an exception to the EAW if someone is
fired for “blowing the whistle” on an employer when it comes to securities law.
Scenario:
• Lori is working for Widgets Inc. and the company is going
public.
• She is helping with the Due Diligence package and notices
discrepancies in profits and assets versus disclosures on the
balance sheet.
• Lori notifies her boss and his boss and the CEO.
• Lori is an employee-at-will and is fired the next day.
• Will Lori prevail in a wrongful termination lawsuit based on
an exception to the Employment-at-Will?
Analysis begins with an understanding of the law first…
The 2002 Sarbanes-Oxley Act (SOX) is a federal law that applies to publicly held
corporations and businesses. Companies that provide stock are required to have
internal financial controls and audits of their information sent out to the public.
The Act was passed in response to corporate accounting scandals that occurred in
the past. The Act holds corporate management, corporate board of directors, and
even lawyers responsible for ensuring that information on the company is correct
so that potential investors are making informed investment decisions. The Act
holds these parties liable (civil and criminally) for misleading investors and is
aimed at promoting honesty and truth in the value and financial aspects of publicly
traded companies. Why? Because it helps investors make smart and sound
decisions as to how they and who they want to invest their money in.
Section 806 of Sarbanes Oxley the Act authorizes the U.S. Department of Labor to
protect whistleblower complaints against employers who retaliate against those
that “blow the whistle” because of conduct in violation of the Act. It authorizes,
per Section 1107, the Department of Justice, the enforcement arm for many
administrative agencies, to criminally charge those responsible for the
retaliation. The problem is – the crime requires a very high burden as to
culpability. Meaning, it requires the prosecutor to prove “intentional action” on the
part of the defendant, see below:
Under Section 806 of SOX, an employee engages in protected whistleblower
conduct by providing information that he or she reasonably believes is a violation
of:
• federal mail, wire, bank, or securities fraud
• federal law relating to fraud against shareholders
• any rule or regulation of the Securities and Exchange
Commission (SEC)
Section 806 of SOX extends its protection to any whistleblower who is an officer,
employee, contractor, subcontractor, or agent of:
• a publicly traded company
• a subsidiary of a publicly traded company
• a nationally recognized statistical ratings organization
(NRSROs) (1)
Section 1107 of SOX makes it a crime for a person to knowingly retaliate against
a whistleblower for disclosing truthful information to a law enforcement officer
regarding an alleged federal offense (2).
“Knowingly retaliate” – Whoever knowingly, with the intent to retaliate, takes any
action harmful to any person, including interference with the lawful employment or
livelihood of any person, for providing to a law enforcement officer any truthful
information relating to the commission or possible commission of any Federal
offense, shall be fined under this title, or imprisoned not more than 10 years, or
both (2).
Will Lori prevail in a wrongful termination lawsuit based on an exception to
the Employment-at-Will?
Section 806 of the Sarbanes-Oxley Act protects whistleblowers from wrongful
termination when an employee provides information that he or she believes is in
violation of the reporting requirements per SOX. The standard is measured by a
“reasonable person standard” and thus, if an employee reasonably believes the
information is untrue or fraudulent and follows the requirements of reporting the
discrepancies to management which does not provide a remedy, the employee is
protected from being fired for their action.
Lori would probably prevail in a wrongful termination lawsuit against her
employer. Lori would be protected if she was an employee-at-will who was
subsequently fired for reporting the discrepancies in profits and assets versus
disclosures on the balance sheet by the company. Lori would be entitled to relief
as to her job back or, financial damages amounting to loss wages, possible pain
and suffering and even punitive damages depending on the intentional actions and
nature of the circumstances.
If intent to defraud the public was found on the part of the employer agents
pursuant to the due diligence package or reporting inaccuracies, in violation of
SOX legislation, the DOJ would prosecute those responsible for the inaccurate and
untrue public information and those responsible for retaliation against Lori.
SOURCES:
(1) SOX Section 806: Sarbanes Oxley Whistleblower. 2022. Sarbanes-Oxley Act.
Retrieved March 7, 2023 from https://www.sarbanes-oxley-101.com/sarbanesoxley-whistleblower.htm.
(2) Retaliation (1107). Department of Justice – SOX. Retrieved March 7, 2023
from https://thecompliancepartners.com/klmbill4.html.