Question Responses
Your responses must be at least two paragraphs for each question. For those questions with case opinions, answer the question presented, state what the court decided, why the court decided what it did, and whether you agree or disagree with the court’s decision.
Page 307, question 6; the referenced case can be found at the following link: http://caselaw.findlaw.com/us-8th-circuit/1335004.html (Links to an external site.)Links to an external site.
6. When Finan began to have seizures, his employer, Good Earth Tools, temporarily suspended him from his sales position because it required him to drive. Finan’s doctor diagnosed him as having epilepsy but determined that his seizures could be controlled with proper medication. The doctor also told Finan that he would be able to drive after he had been free from seizures for six months. Good Earth restored Finan to the sales position but restricted him to telephone and Internet sales rather than driving. Because of the restrictions on his sales activity, Finan’s sales performance declined signifi- cantly. After six months, he was permitted to make sales calls in person, but one month later Good Earth placed him on probation because of poor sales performance. Two months later, Good Earth fired him. Finan sued Good Earth under the ADA. Can Finan establish a prima facie case of disability discrimination under the ADA? What, if any, defenses can Good Earth raise here? Explain. [See Finan v. Good Earth Tools, Inc., 2009 WL 1375135 (8th Cir., May 19, 2009).]
Page 344, question 9; the referenced case can be found at the following link:
https://scholar.google.com/scholar_case?case=15301649015503321119&;hl=en&as_sdt=6&as_vis=1&oi=scholarr (Links to an external site.)Links to an external site.
9. Plaintiff was employed by DK Industries as general manager; she was also a member of the U.S. Army Reserves. Her reserve unit was called up to active duty in Iraq for six months in December 2012, and she gave the employer appropriate notice of her need to be absent from her job for that period. Upon completion of her duty in Bosnia, she returned to the job at DK Industries on July 7, 2012. She was reemployed at the same rate of pay as she received prior to leaving for Bosnia, but the employer did not give her the general pay increase granted by DK to all employees in May 2012. Plaintiff informed the employer that she was entitled to receive the May 2012 pay increase, but the employer refused and told her she was lucky to have a job at all. Three weeks later, plaintiff informed her employer that she was required to attend a two-day training program for the Reserves and that she would be absent from work on August 14 and 15, 2012. The employer complained about the disruption caused by her absence during her service in Bosnia and informed her that her Reserve duty was “too much trouble” and that she was needed on the job. Novak then presented a copy of her reserve orders to report for the training session, along with a written request for a two-day leave; the employer told her that if she went, she “shouldn’t come back.” When Novak did not appear for work on August 14, the employer prepared a check for her, with the notation “final pay owing as of termination date, August 14, 2012.” The employer presented the check to plaintiff when she reported for work August 18, told her she was fired, and asked for her keys.
Page 424, question 15; the referenced case can be found at the following link:
https://scholar.google.com/scholar_case?case=18209316689451637148&;hl=en&as_sdt=6&as_vis=1&oi=scholarr (Links to an external site.)Links to an external site.
15. The source of dispute was a representation elec- tion held at Kusan’s Franklin, Tennessee, plant on October 19, 2002. The union, the International Association of Machinists, won that election by a vote of 118–107. Kusan, however, filed objections with the Board over the conduct of the election. The objections charged that the union interfered with the election by conducting a poll of the employees and threatening and coercing employees during the course of the polling. In December 2002, the regional director of the NLRB investigated Kusan’s objections and issued a report recommending that the objections be over- ruled. The results of the election were certified by the Board in April 2003. Kusan’s objections centered on a petition that Kusan employees who supported the union circu- lated among their fellow workers prior to the elec- tion. The petition, which bore approximately 100 names, read as follows: We, the undersigned, are voting YES for the IAM. We don’t mind being on the firing line because we know it’s something that has to be done. Please join with us. VOTE YES and help us to make Kusan, Inc. a better place to work and earn a living. Kusan contends that the circulation and distri- bution of the petition constituted impermissible “polling” of the employees by the union. How should the Board have ruled on Kusan’s objections? [See Kusan Mfg. Co. v. NLRB, 749 F.2d 362, 117 L.R.R.M. 3394 (6th Cir. 1984)].]
Respond to the hypothetical scenario #19 (3-5 sentences only).
19. The taxi drivers at 4-Star Cabs pay the company a daily rental fee for the use of the company cabs but get to keep all the fares that they earn during their driving shifts. The drivers determine their working hours and must pay for the gas they use during their shifts. The company carries an “umbrella” auto insurance policy that covers the drivers, but it does not provide any benefits to the drivers. Are the drivers “employees” under the NLRA? Explain.
