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Defendant, an ophthalmologist, founded his medical practice (hereinafter noted as the Center)
in 1977. The Center employs several physicians to perform eye surgery and to otherwise treat
patients who use the Center. The non-physician staff is not unionized, and it is undisputed that
there has been no union activity or solicitation among these employees.
All of the surgery performed by the Center’s physicians is done either at the Center or, if
general anesthesia is required, in a hospital. The Center has additional facilities elsewhere which
are operated a few days each month by Center personnel who travel to the remote location in the
morning and return the same night. The Center’s offices are run pursuant to an “Office Policy
Manual.” Two of the provisions in that manual are at issue in this petition. One states:
1. No office business is a matter for discussion with spouses, families or friends.
2. All grievances are to be discussed in private with the office manager or physicians. It is
totally unacceptable for an employee to discuss any grievances within earshot of patients.
On May 29, 1992, four Center employees were fired for conduct inconsistent with the
foregoing rules. The day before, the manager had changed the work schedules of an ophthalmic
technician and three registered nurses in order to accommodate an emergency surgical
procedure. Under the revised schedule, the locations to which the employees were to report on
May 29 were altered, and two of the employees were required to work from 8 a.m. until 2 p.m.
without a lunch break.When the employees heard of the schedule adjustment, they expressed
dissatisfaction and exasperation over the inconvenience caused by the change; they also
complained that work schedules at the Center were often altered. On the evening of May 28, the
manager heard from several independent sources that the employees had voiced their complaints
within earshot of Center patients. One employee posted on Facebook the following comment:
“WTH boss did it again… Another day shot to hell, typical Center BS!” Several of her
coworkers chimed in on the Facebook post with comments asking for more details about what
did “management do now” and agreeing with her that management at the Center was a “real
The manager met with the four employees on the morning of May 29. He criticized their
behavior over the prior year and he recounted what he had been told about their actions the day
before. He was particularly disgusted with their Facebook comments and said they all lacked
good judgment. After a short discussion, the manager fired the employees for misconduct;
however, he then told the staff members that they could retain employment with the Center if
they agreed to certain conditions. Two of those conditions, one of which required the employees
to bring all complaints to the manager and no one else, and the other of which compelled the
employees to stop gossiping and complaining amongst themselves, are at issue in this case. Two
of the employees rejected the manager’s offer; the others opted to retain their employment with
the Center.The employees who rejected the manager’s offer are now wondering whether they
have a case against the Center.
Discuss the applicable law and how should this dispute be resolved in IRAC format worth 10
In 2012, Roger Commons was returning to a job at Dow Chemical after taking a leave of
absence following a death in the family under FMLA. Company policy was that reinstatement
would not be automatic and employees must essentially re-apply for their jobs. During the
reinstatement interview, he was asked to provide his Facebook username and password, which
the company said was needed to check for information that could adversely impact his work with
the company. Although he was shocked by the request, Commons felt he had no choice but to
comply because “I needed my job to feed my family.” Commons gave the manager his
password and the manager proceeded to read his Facebook page with great interest. The
manager went through several pages of posts and reviewed dozens of photographs. Commons
was asked to explain certain posts he made on Facebook that were critical of various companies
he had solicited. For example, the manager wanted to know why he was posting crass statements
about McDonalds, the local garbage company and his recent travel experience with American
Airlines. The manager said it seemed that Commons had a lot of hostility. Commons was
required to explain the facts surrounding each of his consumer complaints found online.
Commons also had to explain photos he had posted. For example one photo had Commons
holding up a can of beer and the caption under the photo was “stress relief!”. Many of his photos
had alcohol themes and in several he had his hands on a several different women. Commons was
denied his position back with the company. Discuss the applicable law and how should this
dispute be resolved in IRAC format worth 10 points
George is a heavy smoker since the age of 18. He is now 55 years old. George works at
Simmon’s Chevrolet as a car salesman. He works full time and has worked at Simmons for 6
months. Simmon’s does not allow employees to smoke at work. They have a strict no smoking
policy and an smoke free business environment for their customers. In fact the owner of
Simmon’s is very opposed to smoking because his father died of smoking related causes five
years ago. Simmon’s has issued a policy that it will pay for smoking cessation classes and gives
a bonus to employees who do not smoke. George feels it is inappropriate to give employees a
bonus for not smoking. He believes it is none of Simmons’ business what he does in his off
hours. In addition, over the last few months Simmon’s employees have been complaining to
George that he smells like “smoke” when he comes to work. Yesterday George’s direct
supervisor, Larry, walked up to him, moved in closely and sniffed his shirt. Larry then said,
George you smell like smoke have you been smoking at work? George lashes out at Larry and
proclaims that No! I have not been smoking at work, but I did smoke in my car on the way to
work. Larry states, well you are violating our work policy regarding a “smoke-free”
environment. We can smell smoke whenever you are around. If you come in smelling like smoke
against tomorrow you will be immediately fired. You have been warned! The next day, George
did not smoke in the car on the way to work, however since he smokes heavily at home his
clothes still smelled like smoke. As soon as he walked into work Larry and the dealership owner,
Carl, both inspected George and determined he again smelled like smoke. George was fired on
the spot for violating the company “smoke-free” policy. George is an At-Will employee.
Discuss the applicable law and how should this dispute be resolved in IRAC format worth 10
Issue: Whether the disciplinary action taken by the employers based on Facebook postings or
social media postings is a violation of the National Labor Relations Act.
Rule: The National Labor Relations Act was enacted in 1935 for the protection of the rights of
employees and employers and for the encouragement of collective bargaining. This Act was
meant to curtail the practices of private sector labor and management that could harm the welfare
of the businesses, workers and the US economy.
Issue: Lifestyle discrimination should protect employees from discrimination based on the Off-
duty conduct laws.
Rule: According to the legal status, civil rights law bars discrimination on the basis of race,
disability, gender may also apply to lifestyle discrimination at the federal level.
Analysis: The lifestyle discrimination statutes protect the rights of the employees. Different
states have adopted different statutes of discriminations laws regarding off-duty conduct. The
statute 1 is related to prohibited practices. Statute 1.1 states that an employer cannot discriminate
against any employee based on the person’s conduct during non-working hours unless that
conduct can affect the ability of the person to perform his or her duties. Statute 1.2 is related to
the collection of information about the off-duty behavior or personal characteristics of employees
Issue: Indiana law should protect even “At Will” employees who use tobacco off-duty.
Rule: The Indiana and Federal Law states that employers are prohibited from discriminating on
the basis of race , color, religion, national origin, sex, veteran status, pregnancy, disability or sex,
and furthermore the anti-discrimination laws prohibit employment decisions, such as promotions,
hiring, disciplinary action, other terms and conditions of employment base don the protected
status of the person. Under Indiana law, the employees who use tobacco off-duty are under
protection and cannot be discrimination against hiring or other terms of employment.
Analysis: Lawmakers and other policymakers are paying attention to the issue of the rights of the
employees who are engaged in certain off-duty activities and the authority of the employers from
prohibiting hem from doing so. The employees’ rights to have the freedom of doing their off-
duty activities, which are not illegal, are protected under the Discrimination laws regarding the
off-duty conduct (Discrimination Laws Regarding Off-Duty Conduct, 2010). Based on the off-
duty activities of the employees, 29 states and the District of Columbia have implemented
statutes that protect the employees from the actions of the employers.