law school writing sample


Potential Claims of Mr. Raccoon
by Travis A. Wise
    Issue: Can the courts enforce an implied contract to promote from within an organization which has hired the employee at-will, if verbal and written evidence from the employee’s supervisor exists supporting such a contract?
    Analysis: An implied contract term regarding employment can be enforced by the courts. Such a contract can modify other terms of employment, including the "at-will" presumption and express equal footing provisions. Scott v. Pacific Gas and Electric Company, 904 P.2d 834, 838 (Cal. 1995). Implied contract terms based on the employer’s course of conduct and oral representations can include a company’s policies, practices and communications. Id. at 839.
    In Scott, the court found that an employee policy which prescribed the company procedures for disciplining employees was an implied contract term which bound the company to follow those procedures. This policy was found to be an implied contract term because the employees reasonably relied on the detailed policy. The company breached the contract terms by not following the policy with regard to the plaintiffs.
    The court based its decision on Foley v. Interactive Data Corp. 765 P.2d 373 (Cal. 1988), which found that the court’s goal is to enforce the parties’ understanding in the contract, and one way to accomplish this is by determining if the parties’ conduct demonstrates an implied contract. Scott, 904 P.2d at 838. The trier of fact has the task of determining whether an implied agreement benefit exists, and if so, whether the employee reasonably relied on the implication of the contract. Id.
    The decision in Scott should be applicable to this case unless the city successfully argues that the Scott case should be distinguished from the present issue. We will argue that the distinctions between the cases are minor and do not materially differ the cases. Respondent will argue that the city, through its actions and policies, created an implied contract term to promote from within which binds itself to follow certain procedures when filling positions. This is demonstrated by the fact that Rocky’s supervisor expressly stated to Rocky that the policy was in effect, and that the city would follow the policy to promote Rocky.
    The attorneys for Metropolis will try and distinguish Scott because in this case, the company policy, dated July 3, 1989, was waived by Rocky in his application, dated December, 1991. The job application signed by Rocky acknowledges that Metropolis has an "at will" policy affecting termination, demotion and promotion which "cannot be changed except in writing" and "anything to the contrary is hereby revoked." Opposing counsel will argue that in signing this agreement, Rocky waived his rights under the city’s promotion policy, which is contrary to the waiver. We will argue that because Rocky was not aware of the existence of the company policy, he was unable to waive the policy. We will argue that the policy had to have still been in effect because a copy of it was given to Rocky by his supervisor, creating a reasonable reliance on Rocky’s part, even after Rocky signed the waiver. The issue of waiving an unknown policy is something which needs to be researched further.
    We will argue that in failing to consider Rocky for the promotion the company breached the contract. Opposing counsel will argue that no breach took place because all the company is obligated to do is "consider" Rocky, and that does not necessarily include an interview. We will counter argue that it is customary, and Rocky’s supervisor expressly told Rocky that it was the company’s policy, to interview those being considered for promotions.
    Opposing counsel may argue that the Scott case is distinguishable because in Scott, the issue concerned demotion and in the present case the issue is promotion. Demotion involves the removal of some preexisting status, and removing such a status demands increased protection by the courts when an implied contract protecting that status exists, whereas the conferring of a promotion should be left to the best judgment of the company making the promotion. We will argue that the Scott court did not differentiate between types of employment contracts, i.e. contract terms for promotion versus contracts for demotion, and in fact stated that the important qualification was not what the contract assured but rather "whether that promise [of a benefit] was reasonably understood by the employee to create a contractual obligation." Id. at 839. Rocky understood that a contractual obligation existed because he was told this was the company policy and he relied upon it as such.
    In this case, evidence exists supporting the assertion that Rocky was aware of the city policy and was assured by his superiors that the city policy would be followed. Rocky was handed the policy coupled with a company memo from his superior stating that the policy would be followed. Therefore, the rule in Scott should apply to this case. We should research the issue regarding the ability of an employee to waive unknown policies in order to see if Rocky did in fact waive his rights under the company policy.

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