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Winter 2014

NEW PERFORMANCE TEST
PT Haynes Performance Test
PT Haynes Analysis
Vivian’s Answer to PT Haynes
Vivian’s Method for Performance Tests

 

The New 90-minute PT

Have you ever seen an old friend who has lost a whole bunch of weight? You realize pretty quickly they are the same person, only there is less of them. That is exactly what the Pintsized PT is like. It still has exactly the same personality.

I am guessing, based on the Sample PT the State Bar has released, that the new PT will have the same type of Assignment Memo, the same type of tasks, the same signals for finding the rules in the cases.

My guess is the biggest challenge is going to be fitting everything in to the 90 minutes. This challenge is exacerbated because the PT is not isolated into its own time slot. You will have 3-1/2 hours to complete two essay exams and the PT. This makes it even more important that you practice taking both essays and PT’s in timed conditions.

I will teach you the skills of finding the issues, finding the case rules and—most important—teaching you how to manage your time in reading, organizing, analyzing and writing the PT is the time permitted. I will offer five 90-minute PTs for my students to take under timed conditions and which I will critique, grade, give useful feedback for improvement.

PT Haynes ANALYSIS

VIVIAN’S METHOD ON PERFORMANCE TESTS
Here is a short lesson, based on PT Haynes v. National Bank of Columbia, the sample the Bar has published. Download the Question (PDF)

STEP 1: Read the entire PT

STEP 2: Find the issues.
In this PT, the Assignment Memo told you to argue in a brief that our client, Haynes
either:
1. resigned involuntarily or
2. voluntarily resigned with good cause

STEP 3: MAKE ISSUE SHEETS
So the two issues are

ISSUE 1: H. WAS FORCED TO RESIGN

ISSUE 2: H RESIGNED VOLUNTARILY WITH GOOD CAUSE

STEP 4: DEAL OUT LIBRARY ONTO ISSUE SHEETS

            ISSUE 1: FORCED TO RESIGN
            CAA case

            ISSUE 2 GOOD CAUSE
            KAPLAN case

            DELGADO case

STEP 5: DO ONE ISSUE SHEET AT TIME TIME, ADDING CASE TEST AND OUR FACTS AND DETERMINING IF FACTS MEET THE TEST.

STEP 6: CONCLUDE GIVING THE REASON FOR YOUR CONCLUSION.
           
            ISSUE 1
            ISSUE 2

ISSUE 1 FORCED TO RESIGN
            CAA
            Voluntary—“shape up or ship out”
            Involuntary—“quit or be fired.”

In CAA, Employer:
1. drafted resignation letter without involving employee
2. conditioned receipt of recommendation on signing resignation letter
3. telling employee “best” if she resigned
4. offered no other option

In our case:

Employer:
Gave H. unsatisfactory performance review “not a team player”
Told H. promotion “not going to happen.”
Told H “There is no place here for you.”

CONCLUDE: H RESIGNED INVOLUNTARILY BECAUSE HIS BOSS TOLD HIM THERE WAS NO PLACE FOR HIM AT THE BANK.

ISSUE 2 RESIGNED WITH GOOD CAUSE
            CASE 1: KAPLAN
            CASE 2: DELGADO
           
            CASE 1: KAPLAN
TEST FOR GOOD CAUSE
Factors against finding good cause are:

  • a minor reduction in wages
  • refusal to obey reasonable employer rules
  • -- general dissatisfaction with the job.

Factors in favor of good cause are:

  • employer’s failure to provide compensation for services
  • material change in the terms of employment resulting in lower pay
  • racial or sexual harassment

Employer position: H. left because of general job dissatisfaction
Our facts:
--Haynes worked above pay grade as stand-in for senior tellers and teller managers for 3 years
--Haynes has worked at entry level teller pay for 3 years.
--Bennett said Haynes “not reatdy” for promotion despite his successful work above his pay grade for 3 years.
--Bennett praised his work
--Bennett told H. he was promoted
--Bennett stalled on promotion then said it’s not going to happen
--Bennett responded to H’s dissatisfaction by saying resign if you are dissatisfied.
Therefore, H. did not quit for general job dissatisfaction but for unfair treatment by employer.

H. position
H was not compensated for services the employer required of him
Our facts
--Haynes filled in for absent tellers at various branches.
--Haynes required to do the job of higher pay grades—senior tellers and teller
            managers
--Bennett praised Haynes for his work at higher pay grades
Therefore, H resigned because he was not compensated for required work.

CONCLUDE: H. RESIGNED FOR GOOD CAUSE BECAUSE HE WAS NOT COMPENSATED FOR WORK THE EMPLOYE REQUIRED HIM TO DO
 
CASE 2: DELGADO
Delgado
An employee is entitled to have his reason for resigning explored and resolved by the specific findings if he has alleged material issues of fact.

Test: The employee must show that circumstances compelling the decision must be real, substantial, and reasonable; there must be some compulsion produced by extraneous and necessitous compelling circumstances.
Case facts:
--financial difficulties of employer
--lay-offs under way
--fear of job loss

Our facts
--takeover of bank
--new management
--Bennett says employee attrition will occur
--Bennett says nobody’s job is safe.
--takeover appears to have caused promised promotion to be withdrawn
--Bennett gives Haynes negative performance review
--Bennett says Haynes has “no future” at bank

CONCLUDE: HAYNES HAD GOOD CAUSE BECAUSE THE BANK TAKEOVER HAD MADE EVERYONE’S JOB INSECURE AND BENNETT TOLD HIM HE HAD NO FUTURE THERE.

 


Vivian’s Model Answer to PT Haynes

ANSWER
The Claims Examiner’s decision that Haynes was not forced to resign and that he left due to general dissatisfaction with his job does not address facts Haynes raised which demand a different result. Specifically:
A. Bennett, his boss, told him he did not have a future at the Bank.
B. Haynes job as a roving teller required to do higher-paying jobs without compensating him.
C. Bennett told Haynes a large national corporation had taken over and that nobody’s job was safe.

The Columbia Supreme Court has found that each of these circumstances is sufficient to find that either: Haynes was forced to resign or that he resigned with good cause related to his job. 

I. The Claims Examiner’s  conclusion should be reversed to find that Haynes left the Bank involuntarily because his boss told him he had no future at the Bank and he was given no option other than to resign.

Under Columbia’s Unemployment Code, an employee is entitled to unemployment insurance compensation if he left his job involuntarily or, if voluntarily, he had good cause.

In CAA, the Columbia Supreme Court stated that there is a spectrum of employer’s messages from “shape up or ship out,” which would make the employee’s leaving voluntary, to “quit or be fired,” which would make the employee’s leaving involuntary

The CAA court considered the following employer actions:
1. the employer drafted the employee’s letter of resignation without involving the employee.
2. the employer told the employee that she would receive a recommendation only if she signed the resignation letter.
3. the employer advised the employee it would be “best” if she resigned.
4. the employer offered no option but to resign.

It found that these combined actions coerced the employee to resign by these actions.

In our case, Haynes’ supervisor, Bennett, told him, that the promotion she had promised him “just isn’t going to happen.” She gave him a negative performance review for “not being a team player.” She told him that changed circumstances at the Bank meant that “nobody’s job is safe.” Finally she singled him out  by saying, “you have no future at this bank.” The next day, Haynes gave his notice to resign.
What Bennett did more closely resembles “quit or be fired” than “shape up.”

Conclusion: Bennett’s message to Haynes was clear and unequivocal: quit before you get fired. Bennett did not leave voluntarily, but was coerced to leave.

II. In the alternative, the Claims Examiner conclusion should be reversed to find that Haynes has good cause to leave voluntarily because he was not compensated for work he was required to do as senior teller and teller manager.

The court in Kaplan the court set forth factors to consider on whether the employee had good cause for resigning.

Factors against finding good cause are:

  • a minor reduction in wages
  • refusal to obey reasonable employer rules
  • general dissatisfaction with the job.

Factors in favor of good cause are:

  • employer’s failure to provide compensation for services
  • material change in the terms of employment resulting in lower pay
  • racial or sexual harassment

The Bank’s position is that Haynes resigned because of general dissatisfaction with his job.  But Haynes’ dissatisfaction developed only after Bennett promised him a job with a $5,000 pay increase, then stalled him for three months, Finally telling him the promotion was not going to happen. It is inaccurate to describe this as general dissatisfaction with the job; it was specifically a result of Bennett’s treatment of him.

Mr. Hanes’ position is that he was not compensated for the work he was required to do. Mr. Haynes was a roving teller, filling in where another employee was absent. He frequently did the job of senior tellers and even teller managers, both jobs at a higher pay grade than his own.
team player. Finally, she told Haynes there was not future for him at the Bank.

When the full facts are examined, it is clear that Mr. Haynes was not dissatisfied with his job, but with the lack of financial reward for the job he had been doing for the past three years.

Conclusion. Haynes resigned for good cause because he was not compensated for work he was required to do.

III. The Claims Examiner’s conclusion that Haynes resigned due to general  job dissatisfaction should be reversed because Haynes resigned after he was told that nobody’s job at the Bank was safe since the Bank had been taken over, that lay offs were in the works and that, specifically, he had no future at the Bank.

The court in Delgado added to the reasonable and prudent person standard for good faith resignation by stating that it must be based on extraneous and necessitous circumstances that compelled his resignation.

While the employee in Delgado claimant said he quit because of financial difficulties of his employer leading him to believe he would be fired, the court did not have sufficient facts to determine the merits of his claim.

However, the court did say that if the employee alleges facts sufficient to satisfy the threshold requirement that he articulate material issues of facts, he is entitled to the resolution of his claim, specific findings of fact.

Three months after Bennett praised Haynes’ job flexibility and skills, while he was waiting for the promotion,  Bennett told him was that the Bank had been taken over by a large national bank.. She said people would lose their jobs and that nobody’s job was safe.  She said the promotion was never going to happen and that Haynes had no future at the Bank.

The Bank takeover had created a climate of uncertainty and fear, according to Bennettt, for all employees: “nobody’s job is safe.” But for Haynes the fear of job loss was even more acute, because Bennett told Haynes “you have no future at the Bank.”
Haynes resigned the next day.

Under the Delgado test, the Bank’s takeover and downsizing were extraneous circumstances that compelled to believe he was about to be laid off, justifying his resigning.

Summary. The Claims Examiner’s conclusion should be reversed because he failed to consider three claims Haynes made:

1. His boss told him that he had no future at the bank, giving him no option but to resign. This is an involuntary resignation.
2. He had been paid an entry level wage for three years, despite the employer requiring him to do work of jobs with higher pay grades. He was not compensated for the work he was required to do.
3. His boss told him the takeover of the Bank would result in  layoffs and nobody’s job was safe under the new management.

Conclusion. We therefore respectfully request the Administrative Law Judge to reverse the claims examiner’s conclusion and find that either: Haynes was forced to resign or be fired or that Haynes had good cause to resign because he was not compensated for required work and the takeover of the Bank had made him fear that he was about to be laid off.

 

Watch video: What You Need to Know about PTs

Past PTs are Prologue

Lessons from past PTs—how to find the issues  

Winter 2015 PT B: State v. Daniel (video)

Lessons from past PTs—the format isn’t always the issues
Winter 2015 PT A: Virta and Burnsen (video)

Lessons from past PTs—some PTs are about factual reasoning
Winter 2014 PT A Tehama County v. Tepee Campground (video)

Lessons from past PTs—some PTs are about legal analysis
W 2014 PT B: Riley v. LRI (video)


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