• For purposes of this hypothetical, please assume that you are a HR Business Partner for Best Company Ever ("BCE"), a publicly traded technology company.
• BCE has an initiative where it has publicly declared a goal for employees globally to volunteer 1 million hours of their time this fiscal year.
• In furtherance of this initiative, BCE provides employees with two (2) "volunteer days" per year so that they can volunteer at charity events/activities of their choice (this can be anything, e.g., volunteering to help in their child's classroom, volunteering at a food bank, organizing a 5K race for a charity, etc.). Volunteer days are basically paid days off, but employees must spend their time volunteering at a charity event/activity and must report which event they attended in order to receive volunteer day PTO.
• In addition, BCE also promotes employee participation in company-sponsored charity events/activities. These events are considered paid time; however, participation is completely voluntary. Meaning, employees are not required to attend but are paid for time spent at the event if they do attend.
• For Earth Day, BCE sponsored a beach cleanup. Employees who attended the beach cleanup receive waterproof gloves, a power grip trash picker, and a trash-collection-bucket (see images below), so that they can pick up trash safely, as well as thorough instructions on how to safely pick up trash.
• Employee Emily participated in the BCE beach cleanup. At one point during the day, Employee Emily removed her gloves so that she could take a drink of water. While drinking, she saw a beer bottle in the mangroves and reached through the mangroves with her bare hand to grab it. In doing so, she cut her hand deeply on a jagged edge of the bottle and needed stiches.
• Employee Emily called out of work the day after the beach cleanup because her hand was sore. Employee Emily's manager, Manager Mike, was not happy when he learned that Employee Emily would not be able to work that day because Employee Emily was already behind on a critical project. In fact, Manager Mike had told Employee Emily that he didn't think volunteering at the beach cleanup was a good idea because of the tight deadline, but she did so anyway.
• Employee Emily called out the rest of the week, again claiming that her hand was too sore. As a result, Manager Mike's team missed the deadline on the critical project.
• As it turns out, Employee Emily needs to have hand surgery because of her injury. This will require her to be out of work for two (2) more months.
• When Manager Mike learns of this, he is furious. He approaches you and would like to fire Employee Emily. He shares with you that he has been managing Employee Emily's performance and she was on a final written warning prior to her injury. She also scored a "2" / "needs improvement" on her last performance evaluation, which was delivered about a month prior to her injury.
• You inform Manager Mike that you will review the situation and get back to him with a recommendation. Fully aware that this case is not as straightforward as Manager Mike believes, you schedule a call with outside counsel to review the termination request.

Questions

• In preparation for the call with outside counsel, please draft memo to file summarizing the potential legal risks associated with moving forward with termination.
• Instead, identify two (2) potential legal risks/claims and foreachof the potential risks/claims identified:
  • Provide the facts from the fact pattern that you believe are relevant to that potential risk/claim;
  • Identify any relevant documents or data that relate to that potential risk/claim (these items could be explicitly mentioned in the fact pattern, or you can identify other data not mentioned in the fact pattern that you believe would be helpful to the analysis);
  • Formulate at least 2 questions for outside counsel (these should be different for each potential risk/claim identified; or stated another way, do not ask the same two questions for both potential risks/claims identified); and
  • Identify at least 1 method of potentially mitigating that potential risk/claim.

Mycool