Bar Exam (US) Contracts: Question below is based on the following fact situation. Charlene was h...

Question

Question below is based on the following fact situation.

Charlene was hired by Bob's Big Boy Restaurant (Bob's) as a cashier under an employment-atwill contract. On Charlene's first day at work, she noticed a sign in the kitchen area that read:

"IMPORTANT NOTICE TO ALL EMPLOYEES

Employees are not permitted to smoke during working hours. Any employee who is found to be in violation of this policy will be fined $50 for the first offense; $100 for the second offense; and fired for the third violation."

Charlene, who was a smoker, read the notice but did not object or make any comment regarding the restaurant's non-smoking policy. For six months, Charlene worked at Bob's and never smoked during business hours. One afternoon Charlene was working when an armed robber stormed into the restaurant. He pointed a pistol at Charlene and demanded all the money from the cash register. Frightened and panic-stricken, Charlene handed over the money and then collapsed. Moments later, she regained consciousness and then smoked a cigarette while she regained her composure. Thereafter, Charlene resumed her duties for the rest of the day. The next week, however, when Charlene received her pay-check, she noticed that Bob's had deducted $50. A note was attached indicating that Charlene was being fined for smoking during business hours. Although Charlene protested, Bob's refused to make any waiver and stood by its policy.

In an action by Charlene against Bob's to recover the $50, which of the following is the best argument in Charlene's favor?

AnswerChoose the correct answer.Choose all that apply. Correct Partially correct Incorrect Don't Know

  1. A
    Correct Answer
    Bob's non-smoking policy concerned a collateral matter that was not incorporated within the terms of their employment contract.
  2. B
    Correct Answer
    Bob's impliedly waived the nonsmoking provision by permitting Charlene to continue working for the rest of the day.
  3. C
    Correct Answer
    The non-smoking provision constituted a constructive condition subsequent that was excused due to temporary impracticability.
  4. D
    Correct Answer
    The non-smoking provision concerning disciplinary action is unenforceable because it attempts to impose a penalty instead of reasonably liquidating the damages, if any, sustained by Bob's.
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