The Legal Distinction and Its Consequences - Case Study Example

?Employment Law, First Examination THESIS MENT This thesis will aim at addressing the laws and elements Jill is eligible to obtain in pursuit ofher whistle blowing and the consequent damages caused to her employment contract benefits. Taking reference from the various case examples under Title VII of the Civil Rights Act, the thesis will thus aim at accounting for the damages and the remedies that Jill can seek. Furthermore, the remedies that can be awarded to Jill will be assessed from the standpoint of arbitration and later as a federal judge. DISCUSSION As the company, i.e. Momma Mia, is classified under Title VII of the Civil Rights Act under the US Equal Employment Opportunity Commission, Jill would be eligible to obtain certain remedies for the damages she had to suffer owing to the maltreatment of the company. To be noted, Momma Mia operates through a total of around 1000 employees, which is greater than the minimum required size to be classified as a Title VII included company, whereby the employees are protected under the provisions of the Civil Rights Act (US Equal Employment Opportunity Commission, “Title VII of the Civil Rights Act of 1964”). Security, Inc. However, in doing so, she will have to prove few elements, which will support her action of whistle blowing. Laws and elements that Jill needs to prove. In order to avail the benefits liable to her for whistle blowing against the sexual harassment she had to face in Momma Mia, Jill has to prove that she is an employee in the company and not an independent contractor by policy as was mentioned in her contract. In order to prove that she was an employee and correspondingly, justify the contractual term ‘independent contractor’ as void, Jill needs to satisfy the 6 silk criteria as was declared in accordance to the case of [Schultz v. Capital Intern. Security, Inc. No. 05-1192. 460 F.3d 595 (2006)] (Leagle, “Schultz v. Capital Intern”). In the first silk factor, Jill needs to prove that Momma Mia had substantial impact and control on her job role and her performance, which clearly defines that she was an employee in the company even if she was hired as an independent contractor. An independent contractor to a Title VII company should also possess opportunities to share the profit/loss of the company depending on their managerial skills, which signifies the second silk factor and hence should be proved by Jill to obtain the legitimate rights in the case. The third silk factor states than an independent contractor and not an employee will have rights to invest in the resources to make the work done in the best interest of the company. As Jill did not make any such investment and also because no such clause was mentioned in her contract, she can prove that was an employee in Momma Mia. However, a critical understanding to the factors depict that the fourth and the fifth silk factors do not clearly advocate in favor of Jill but also do not oblige Momma Mia to suffice the conditions required to prove Jill as an independent contractor to the company. In the sixth silk factor, Jill can prove the significance of her job role in the company as a public relations manager, which in turn would suffice her stance as an employee and not as an independent contractor to Momma Mia (Juffras, 2008). Jill can furthermore prove the selection process of the company, through which she was hired, as unjustifiable and irrelevant for the position on offer. In the selection process, the employers intended to select candidates on the basis of their physical appearances where the educational merits along with other professional skills commonly argued as mandatory for such a job role became decorative features. Additional preference to females rather than to males also indicates towards the fallacy of the selection process, which might turn the case in favor of Jill. Correspondingly, taking the advantage of the Equal Employment Opportunity Commission (EEOC), Jill can also file for privacy rights violation conducted by the employer in her interview process, asking for her social contacts and her personal life concerning her spinsterhood [Wal-Mart, Inc. V. Stewart No. S-8259. 990 P.2d 626 (1999)] (EEOC, “Prohibited Employment Policies/Practices”; Leagle, “Wal-Mart, Inc. V. Stewart”). Also, Momma Mia can be convicted for violating the norms under the Whistle Blower Protection Act of 1989, by terminating Jill as soon as she blew the whistle [Thompson V. North American Stainless, LP No. 09-291. 131 S.Ct. 863 (2011)] (Leagle, “Thompson V. North American Stainless”). Jill can also prove that she was terminated illegitimately where the company did not follow the clauses mentioned in her contract when firing her, stressing on the point that she only blew the whistle rather than violating any of the rules mentioned in the contract, which certainly did not include any mandatory clause binding her to become a key member of their escort services [Burlington Northern & Santa Fe Railway Co. v. White] (Newman, 519-520). DAMAGES AND REMEDIES APPROVABLE TO JILL In arbitration. In arbitration, Jill can hardly avail any benefit. To be noted, the employment contract signed between Jill and Momma Mia clearly specifies that she will have no right to sue the company in the state or in the federal courts based on any employment violation. Undoubtedly, the clause is illegal and also denotes the fact that the company had been expecting such a turn, which clearly makes them prepared and hence, no arbitration opportunities tends to be identifiable in this case. However, Jill can take precautions in battling arbitration tactics of Momma Mia by taking the Clackamas Test in proving that she is an employee and does not act as an employer [Alyson J Kirleris v. Dickie, McCamey&Chilcote, P.C.] (Women’s Law Project, 2010). Even on the basis of torts, it can be stated that Jill has a strong stance against Momma Mia in obtaining her legitimate rights. As a Federal Judge. As can be observed from the above discussion, Jill is in every way eligible to obtain compensation for her damages and torts occurred due to the malpractices of Momma Mia. These remedies would precisely include cost incurred by Jill to file the lawsuit, her loss of employment and further cost to be incurred to find a new job, interview infliction, privacy hindrances caused by the employer during the selection process, retaliatory discharges along with the misrepresentation of the contract and Intentional Infliction of Emotional Distress caused by the company on Jill. Works Cited Juffras, Diane M. “Independent Contractor or Employee? The Legal Distinction and Its Consequences”. The University of North Carolina at Chapel Hill (2008): 1-22. “In The United States Court Of Appeals for the Third Circuit No. 09-4498”. Briefs. Women’s Law Project, 2010. Web. 07 Oct. 2013. . “Thompson V. North American Stainless, LP”. Decision. Leagle, n.d. Web. 07 Oct. 2013. . “Wal-Mart, Inc. V. Stewart”. Decision. Leagle, n.d. Web. 07 Oct. 2013. . “Schultz v. Capital Intern”. Decision. Leagle, n.d. Web. 07 Oct. 2013. . Newman, Mary. “Burlington Northern & Santa Fe Railway Co. V. White: The Scope of Retaliatory Actions and a Legal Catch-22”. Harvard Law School 30 (2007): 519-530. “Prohibited Employment Policies/Practices”. Prohibited Practices. EEOC, n.d. Web. 07 Oct. 2013. . “Title VII of the Civil Rights Act of 1964”. Statutes. US Equal Employment Opportunity Commission, n.d. Web. 07 Oct. 2013. . Read More