Sophia Liu LAW3123 SPR21 Midterm PDF

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Sophia Liu

Baruch College/Department of Law Law 3123 – Professor Debbie Kaminer Midterm Examination – Spring 2021 Based on the information given above, it is reasonable to label FedEx drivers as proper employees. Although FedEx drivers are technically responsible for providing their own vehicles, which would mean bringing in their own equipment, that does not necessarily mean that said drivers are independent contractors. One must acknowledge the fact that FedEx structures their drivers’ work schedule to achieve at least 10 hours per workday, with most drivers being scheduled to work 5 days a week. FedEx drivers’ managers may also conduct up to four ridealong performance evaluations per year to ensure that the driver is meeting customer service expectations. This in turn, allows managers to give feedback to drivers regarding their work ethics and quality. The economic realities test, a guideline for determining what criteria is needed to be considered an ‘independent contractor’ or an ‘employee’, considers all of the above to be in favor of FedEx drivers being considered employees, as well as the integrality to the business based on the work that is being performed, and without drivers to deliver parcels, there would not be work for FedEx to distribute and perform.

With the above information, one can reasonably say that FedEx, as a company, has the control of how, when, and where the work is completed by the drivers, which leans towards FedEx drivers to be considered as employees, as opposed to independent contractors. There are an outnumbering number of reasons as to why FedEx drivers should be considered employees under employment law, as FedEx managing their drivers simply have too much control over their work schedule and performance. There is little to no reason as to why FedEx drivers should be considered independent contractors, besides the fact that FedEx requires their drivers

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to provide their own vehicles that must be painted a specific color and having the FedEx logo affixed. 2. Discuss fully, explaining the type of claim Tom is bringing, what he would need to allege and prove, what defense (or defenses) Little One Day Care Center might raise and to whom you would award judgment. Tom claims that John, the Little One Day Care Center’s Director, refused to hire him and is therefore a victim of disparate treatment. Tom claims that sex was the grounds of disparate impact as Nancy, a female, was hired after Tom’s denial. In this scenario, Tom would need to prove, on the basis of sex, that a male can equally do the same task with the same performance of a female in a day care center. This would also include proving that there was discriminatory intent and disparate treatment towards Tom’s eligibility to work at the daycare center.

However John states that he did not hire Tom based on height, which would have been the case for any of his applicants. Even though Tom has glowing references from supervisors and coworkers, John refuses to hire anyone over the height of 5 feet and 4 inches in height. Regardless of whether or not the applicant is male or female, one of the criteria that the applicant must meet is the height requirement. Although height is not technically a protected characteristic under employment law, it can be associated with sex based on characteristics and percentages. Tom would then claim that the average male height exceeds the cutoff, and therefore would only give employment opportunities to females.

If Tom were to establish a prima facie case of disparate treatment, John would have to prove that height was an important factor in regards to efficiently operating his business, and that employment opportunity was equally available to all applicants. John claims that the height

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requirement is necessary as he believes that children feel safer and more comfortable with people who are closer to them in height. Nancy, who was hired, met all the requirements for the application. Tom, on the other hand, was very well qualified but did not meet John’s height requirement. Tom cannot prove that John had discriminatory intent as characteristics such as height remain relevant to the job. Therefore, the court should rule in favor of John.

3a) Employers should never check a job applicant’s social media account. Technically, this is not inadequate advice, but can be more specific. Employers should try not to directly check a potential candidate’s social media account because of legal concerns that may arise. Employers, while checking social media accounts, will come across protected class information and characteristics of potential candidates. That can cause employers to make biased employment decisions. The best way to conduct law abiding background checks is to outsource the checking of information to a third party company. Employers can still check their applicant’s social media account but it would be hard to make an unbiased decision. Gathering information from a third party company would allow for professional and unbiased opinions and prevent unfair decisions from being made. 3b) Mandatory arbitration provisions always benefit employers. In a sense, yes this is good legal advice because in theory employers usually have the higher chance of winning and even if they were to lose they are to pay much less than they would if they lost in litigation. There are other pros that benefit employers such as arbitration is usually held in private meaning there is no pressure from the press media against such employers and traditional laws that happen during trial can be simply taken care of without all the red tape restrictions. Another important fact about arbitration is if the contract is binding or non-binding, if the contract is binding there is no changing the outcome, even if one party disagrees with the result, if the contract is non-binding, according to the American Bar Association, “the arbitrator’s award is advisory and can be final only if accepted by the parties.”

3c) Private employers such as Facebook or Peloton should never limit an employee’s speech in the workplace, since doing so could violate the First Amendment to the United States Constitution. This can be considered as bad advice. Generally, courts have not permitted private-sector employees to use constitutions, which includes the First Amendment, as their basis for public policy claims. Violating the First Amendment is guaranteed to be protected against the actions of the government, but not necessarily towards private employers. A private

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employee can claim verbal and sexual harassment as ‘free speech’. Yet at the same time, such actions are not tolerated by the private company. Certain rules and regulations revolving around an employee’s speech must be in place to prevent even bigger problems in the future, as the First Amendment protects a person to a certain extent in the workplace. 4a) The company should expand its avenues of recruitment to increase the number and diversity of job applicants. This is good legal advice, because this statement is stating that the company wants to diversify and increase the applicants they receive. There is no specific information stating that the company wants to hire specific protected classes under Title VII. The positive intent is there in hopes of diversifying their applicants but there are no specific policies stating who they can or cannot hire. 4b) When employers develop affirmative action plans, it is a good idea to reserve certain job positions only for members of underrepresented minority groups. This is bad advice, as this is reverse discrimination. To reserve a job position for members of underrepresented minority groups is no different than reserving a job position for specifically a male, or specifically a female. This will result in a pretext case, as the employer will be held liable for making an influenced decision based on their consideration of a protected class characteristic, which in this case, would be race....