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how the law has developed and changed over the past 1-2 centuries in 4 of these 5 fields, and reasons for those changes: (a) anti-discrimination, (b) international, (c) securities, (d) privacy law & data protection, and (e) antitrust.

” Must be capped in length at no more than 1,200 words.

M LLC, headquartered in Boulder, Colorado, has been seeking for some time now to lure
to its employ Dr. Hi Tech, the Research Director of Q Corp., a Massachusetts corporation with
its sole office in Braintree, MA. M is in a field of hand-held computer technology. Q is in the
field of software development for computer servers. Hi latest three-year employment agreement
with Q is replete with a broad array of post-employment restrictive covenants. After a number of
meetings and much negotiation, M and Hi have come to terms for Hi to switch over to M on twoweeks’ notice to Q. Hi just gave that notice & that fact is now widely known at Q.
Meanwhile, Ms. Ursula Erstwhile, Hi’s most recent secretarial assistant – he has been
through quite a few during his time at Q – has complained to Q’s Human Resources Director that
Hi would regularly tease her about having “buns of steel” for her ability to close file drawers
hands-free. Ursula also said that once, after she protested to him when he said this, he told her
not to be upset and called her “the prettiest little [ethnically derogatory term] he had ever seen.”
When asked why she had said nothing about these occurrences before, Ursula told the HR
Director that she had heard what had happened to Hi’s previous assistants and was afraid that Hi
would see that she was fired or demoted if she complained. Ursula wound up by saying that Hi’s
notice led her to talk with a lawyer and that she is ready to take this through all of the available
avenues for redress.
As part of its reaction to Hi’s announcement, Q has had its Accounting Dept. review all
of Hi’s travel-expense-reimbursement vouchers for the last year to see if they can find anything
unusual in them. The Accounting Dept. reports that those T & E records for Hi show an unusual
number of airline, hotel and meal expenses for travel to Boulder which cannot immediately be
accounted for by Q’s business needs. The Accounting Dept. has also flagged a July, 2015
agreement with a software vendor that calls for Q to pay it significant sums for special software
development. The software to be developed is only very generally described in this agreement,
and there is no specified deadline for delivery of the completed software. “Progress payments”
have been made under the agreement in the amount of $200,000 with another $200,000 due at
the end of this month. The agreement is signed by Hi as “Director of Research, Q Corp.”, and
the vouchers authorizing payment of the $200,000 in $10,000 increments – right at the point of
Hi’s sole-authorization approval limit at Q — have all been signed by Hi alone. Describe
specifically how you would expect Q, M, Hi and Ursula to act in these circumstances.
Hypothetical Question
Q, Inc.
Issue #1: Sexual Harrasment/Hostile Work Environment
As soon as Q recieved the sexual harrassment/assault allegations, they have a duty to
investigate. The investigation should be completed by an independent third party. Since the
allegations include actions that could constitute assault (an intentional act that puts another
person in reasonable apprehension of imminent harmful or offensive contact) strong
consideration should be given to whether law enforcement should be part of the investigation.
The duty to investigate has been made clear in 2 Supreme Court cases:
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998), Court held that under Title VII [Civil Rights Act of 1964], an
employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of
the victim.
Issue #2: Contacts/Internal Controls
Q should also investigate the vague contract. For a contract to be legally binding it must contain:
consideration, offer and acceptance, legal purpose, capable parties, and mutual assent. Given
that the terms around the consideration for Q are either intentionally or unintentionally vague,
the contract may not be valid.
Also, because the total amount of the contract exceeds Hi’s signing authority, Q should
investigate how its corporate controls did not prevent the abuse of purchasing limits. It’s not
likely this can be a reason for voiding the contract; given Dr. Hi’s title and role within the
company it could be assumed that he has Apparent Authority.
Issue #3: Noncompetition Agreement(s)
Q, Inc. should not look to enforce its non-competition agreement with Dr. Hi for multiple
1) He does not appear to be an employee worth retaining
2) Massachusetts law is very restrictive with regard to non-competition agreements. The
agreement is probably not enforceable on grounds of reasonableness (restricting
employment in another state is not likely and proving that the businesses are direct
competitors is not likely) and showing that it is protecting legitimate business interests
(like a trade secret) does not seem probable.
Hypothetical Question
Q should look to see where they have other noncompetition agreements and its overall policy in
seeking them with potential employees. The use of them should be very narrow, where the loss
of an employee to a competitor would severely damage the business.
Issue #4: Expense Report Fraud/Larceny
It does appear that Dr. Hi has committed expense report fraud with personal travel expenses. If
confirmed, Massachusetts law states that theft of greater than $250 is a charge of larceny, a
felony. Q should turn this information over to law enforcement and cooperate with them for a
full investigation of the possible crime.
Q should also review its procedures for approval of expense reports and understand why the
possible fraud was not caught during the normal expense report approval process.
Issue #5: Defamation/Reference Check
Q is not required to provide proactive information to M about their new employee, unless they
felt, following their investigation, that Dr. Hi’s behavior was so egregious that it would put
people in harm’s way. They should also consider the ethical considerations of disclosing the
information to M; while not required to notify M, Q should consider the “golden rule” and
decide whether if roles were reversed would they want to be notified.
That being said, the downside of proactively contacting M, is that it could be viewed as tortious
interference with that business relationship (between M and Dr. Hi). Both Massachusetts and
Colorado law provide for limited liability for past employers providing information, but the
possibility of a defamation suit from Dr. Hi should be weighed.
Whichever direction Q goes, any reference check or information shared with M should be done
by a labor attorney and not treated as a standard human resources reference check.
There are no clear issues for M to proactively tackle, but they will need to carefully consider Dr.
Hi’s employment if contacted by Q. If contacted by Q before Dr. Hi’s start date, the prudent
decision would be to delay his start date until the completion of the investigation.
Dr. Hi
Issue #1: Criminal Assault/Harassment
If the allegations are true, Dr. Hi has likely committed criminal assault through his actions
towards Ursula and should retain criminal counsel once made aware of the investigation.
If the allegations are false, Dr Hi should document any evidence that would disprove these
harassment allegations, including identifying any witnesses that contest these allegations.
Hypothetical Question
Issue #2: Civil Assault/Harassment
If the allegations are true, Dr. Hi likely has tort liability for intentional infliction of emotional
distress, negligent infliction of emotional distress, assault, battery, defamation, and invasion of
privacy and could be subject to significant penalties. He should seek counsel once made aware of
the investigation.
Issue #3: Larceny/Expense Report Fraud
If Dr. Hidid use an expense report to get M to pay for his personal travel expenses to Colorado
(possibility to visit M), he has committed a felony. He should retain criminal counsel.
If Dr. Hi was expensing business related transactions, he should document any evidence in terms
of business needs to support travel and expenses to Boulder for the last year;
Issue #4: Noncompetition Agreement
If found to be a valid agreement, Dr. Hi could be in violation of his noncompetition agreement
with Q. Given the difficulty of enforcement of these agreements in Massachusetts and the serious
other issues Dr. Hi is facing, giving attention to the non-competition should be a low priority.
Issue # 5: Employee Misconduct/Larceny
If the contract is found to be for personal gain, Dr. Hi could be found in violation of Q’s
Company Code of Conduct and Ethics and violation for general business ethics with having a
conflict of interest. If the contract was in fact for Q related business, Dr. Hi should document any
evidence to support business reasons for the agreement. Documentation should include any link
to ongoing project, research plan or business plan that Q has authorized either in the preconcept
or development phases of a project’s life cycle.
If the payments to the software company were found to be for personal gain, Dr. Hi would have
committed a felony for authorizing payments up to $200,000. Dr. Hi should retain criminal
counsel. If the contract and payments were legitimate, Dr. Hi should document any evidence to
support authorized payments to the software vendor such as detailed project plans and evidence
of meeting deliverables which may be found in parol evidence that has not been documented in
the original agreement.
Issue #1: Failure to File Timely Sexual Harassment Claim to Employer
Ursula’s complaint to Human Resources about Hi’s alleged behavior appears to be delayed. The
harassment by Hi has allegedly been going on for some period of time. Although not easy given
the context of the situation in its entirety, timely reporting is necessary if Ursula desires to file a
Hypothetical Question
federal or state agency harassment claim. Ursula should continue consulting her attorney for
legal advice on the next steps. Ursula’s immediate response will depend on Q’s actions following
her complaint to the company and any supporting documentation that can be provided. If the
company’s response is not adequate, Ursula’s options may be limited depending on when the last
alleged sexual harassment act took place.
Issue #2: Failure to File Timely Federal/State Agency Harassment Claim
If Ursula has been subjected to discriminatory harssment, she may file a complaint with the
United States Equal Opportunity Commision (“EEOC”) and/or the Massachusetts Commision
Against Discrimination (“MCAD”).
The EEOC requires an individual to file a claim within 180 days of the last incident of
harassment. State laws may override the EEOC’s rule and extend the statute of limitations to 300
days from the last incident of harassment. MCAD requires an individual to file a claim within
300 days of the last incident of harassment. The last incident of harassment will determine what
options Ursula has at the federal and state level. It is important Ursuala keep legal counsel and
allow them to begin their fact finding process as they investigate the matter.

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