Read each of the following cases below and answer the questions after. Let each of the responses be at least 150 words.
Scenario: You are a paralegal with the Fulma Corporation. Your boss attorney, Trevor Young, has asked you to answer some questions about some HR legal issues that have arisen.
The first case involves Joe Stromboli. Joe is a delivery driver for Fulma, and after an accident, Joe became 100% deaf in both ears. The doctors were unable to restore any of Joe’s hearing. Joe’s manager, Stephanie, believes that communication with employees and the recipients of the deliveries is an essential function of the job. Additionally, Joe needs to be able to participate in the team meetings. Joe’s manager was unsure whether to proceed, so she referred the case to the Fulma medical staff. The medical employee took one look at Joe and said no accommodation is possible. When asked why, the doctor said “Joe’s deaf.” Joe was terminated, and he has now filed a suit for failure to reasonably accommodate.
Fulma’s job description for their delivery drivers state that the employee must maintain a CDL. Drivers are also expected to take orders from some employees. This is usually done using walkie talkies. However, Joe does have a cell phone capable of receiving text messages and emails that could allow him to take orders. He has also offered to carry pens and paper around so that communication could also be done this way. Joe being deaf has no effect on him maintaining his CDL, and the firm expects it would make these accommodations fairly cheaply.
1. Can Joe establish a claim for failure to reasonably accommodate disability? Be sure to list the elements of the claim and to show how you reached your conclusion.
2. What mistakes—if any—were made? How can these be corrected in the future?
The second case involves Johnson. Johnson is a floor supervisor in the plant. 55% of the time he is engaged with ordinary production. However, 45% of the time he is engaged with supervising his zone, preparing schedules, and dealing with personnel disputes. If there is a problem, he is responsible for mobilizing his zone to resolve equitable. He also spends times meeting with his superiors in order to provide reports on efficiency of employees and on any other problems that have arisen. For this, he receives 10% more money than his subordinates. He had earlier been classified as an FSLA exempt employee. Now, he is challenging that designation. Although Fulma has a strict no-overtime policy, Johnson has been showing up to work early to drink a cup of coffee, smoke a cigarette, make sure schedules are prepared, doors are unlocked, and preparing workstations for the day ahead. He typically arrives an hour early to perform these tasks. Fulma knew that Johnson was coming in early, and working 45 hours a week.
3. Is Johnson an exempt employee? Be sure to list and discuss the applicable legal standards as well as some of the factors the court will consider.
4. Was Johnson’s pre-shift work preliminary?
5. Was Johnson’s work de minimis?
6. Does Fulma’s policy against overtime mean they don’t have to pay?
Fulma wishes to modify their pension plan. The current plan allows employees to either receive $500 a month or $100,000 upfront upon retirement. Both plans also offer an annual ticket to the company retreat cruise. Seeking to incentives people to accept $500 a month, Fulma wishes to tie the ticket to employees receiving $500 a month only to apply retroactively to $100,000 lump sum plan.
7. Does this violate ERISA? Why or why not?
Fulma became aware that a union organizing campaign was underway in one of its plants. A union supporter was called in to a meeting with plant managers. At the end of the meeting, when the employee asked what he was supposed to do if others wanted to talk with him about unionizing, he was told “[Y]ou’re to just work and not talk about the Union.” After union supporters posted material on company bulletin boards, the flyers were repeatedly taken down. The company then issued a policy requiring all employees to obtain approval before placing any material on the boards. Subsequently, the company’s practice was to refuse to post material of any kind from employees.
A few months later, several off-duty employees attempted to distribute prounion flyers in the company parking lot but were stopped by company officials. They were warned that they were in violation of company policy. Around the same time, employees passed out union buttons in the plant and left some of them near a time clock for other employees to pick up.
When company officials learned of this activity, they quickly called a meeting and warned one union advocate that “I don’t want to catch you passing [buttons] out, Okay, I don’t want to see them laying around. You can pass them out when you’re outside, on your own time, but when you’re here working, you, you, need to be working.” The officials said that this action was taken to keep the plant free of clutter and trash.
8. Has Fulma engaged in unfair labor practices in its response to the union organizing activity