Managing Misclassification: What You Should Know About the Employee Fair Classification Act

By Rachel Hairr

The Employee Fair Classification Act (EFCA), adopted by the North Carolina General Assembly in August, goes into effect on December 31, 2017. Here’s what employers and employees need to know.

The EFCA’s Purpose

The EFCA was enacted to address the practice of misclassifying employees as “independent contractors,” an issue which gained state-wide, and later national, attention in 2014. By classifying workers as independent contractors, employers can avoid paying state and federal payroll taxes, unemployment taxes, and providing worker’s compensation insurance, which would be legally required if the worker were classified as an employee. The practice of misclassification is particularly rampant in such industries as the construction industry.

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Section Members Make Great Lunch Companions

I have had the honor and privilege as Section Chair to have lunches around the state with our lively and interesting Section Members. The latest gathering was a great turnout and a fun group at Babalu in Charlotte for $2 Taco Tuesday.

If you would like to schedule a lunch, dinner or any type of networking event in your community for Section Members please let me know and I will coordinate with the NCBA so that the membership has notice. I am happy to help.

Getting to know each other is one of the best benefits of Section Membership!

Best to all,
M. Ann Anderson
Annanderson681@hotmail.com

Documents Do Not ‘Speak for Themselves’: Defeat Your Opponent’s Meaningless Objections to Requests for Admission

By Isaac Thorp

You served the following request for admission and got this response:

Request: Admit that the second paragraph of the contract attached as Exhibit A states: “… (verbatim quote).”
Answer:  The document speaks for itself.

Is this an appropriate objection?

Numerous federal courts have held that asserting that a document “speaks for itself” is not a proper objection to a request to admit that a document contains quoted language. In Miller v. Holzmann, 240 F.R.D. 1, 66 Fed. R. Serv. 3d 977 (D.C. Cir. 2006), plaintiff served a request for admission that a document contained language quoted in the request. The defendant objected on the grounds that the document “speaks for itself.” The court held that the objection was improper:

“It is astonishing that the objection that a document speaks for itself, repeated every day in courtrooms across America, has no support whatsoever in the law of evidence. . . . The tautological ‘objection’ that the finder of fact can read the document for itself to see if the quote is accurate is not a legitimate objection but an evasion of the responsibility to either admit or deny a request for admission, unless a legitimate objection can be made or the responding party explains in detail why it can neither admit nor deny the request.” Id. at 4.

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Chair’s Comments: A New Blog, A Successful CLE and Annual Meeting On the Horizon

By Julie Hooten

On behalf of the Workers’ Compensation Section Council, I’d like to welcome you to the new Bar year and our new blog format! The Workers’ Compensation Section has transitioned from the Course & Scope newsletter to this new format. Our editors, Mark Atkinson and Heather Baker, have worked hard to make this transition as seamless as possible. The Course and Scope provided great articles for our Section members but we believe the new blog format will enable us to publish relevant material more quickly and in a format that is more accessible. Mark, Heather and I strongly encourage all Section members to submit articles and posts for our new blog. After all, our blog is only as meaningful as the content we provide.

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Student Spotlight On Lauren Eddings

The Student Relations Committee serves as the bridge between the Paralegal Division and the students enrolled in paralegal programs across the state.  The Committee would like to shine the spotlight on Lauren Eddings, a paralegal student at Coastal Carolina Community College.

Membership in the Paralegal Division of the North Carolina Bar Association is FREE to student members. Click here to join.

Mrs. Eddings discusses pursuing her interest while finding balance with her family life and work. 

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Fallout From the Sunshine Act 

By Richard S. Saver and MacKenzie Dickerman

All eyes are once again on health care reform. Amidst the present uncertainty, one law seems likely here to stay—the Physician Payments Sunshine Act (“Sunshine Act”). Part of the Patient Protection and Affordable Care Act, the Sunshine Act is the first comprehensive federal legislation mandating public reporting of payments between drug companies, device manufacturers, and medicine. As the law has moved beyond the implementation phase, with about three and one-half years of data accrued, it is an opportune time to evaluate its progress. In this post, we highlight what the Sunshine Act has revealed and its downstream effects.

Of particular interest to the health law bar, counsel in civil litigation are recognizing that the Sunshine Act serves as an important information resource.

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Item of Interest: Gatekeeper Orders in North Carolina Courts: What, When, and How

Government & Public Sector Section members should find the following article from the UNC School of Government of interest. It relates to North Carolina law regarding “gatekeeper orders” for frequent, harassing-type filers.

 

Case Summaries

Summaries by Jeff Russell, Rebecca Poole, Jennifer Smith, Rachel Beard, Katie Fowler and Jessica Heffner

Custody Modification, Failed Reunification Therapy, Williams v. Chaney, COA16-834, July 18, 2017

Defendant–father appealed from a custody modification order which found that previous reunification therapy between the minor child and plaintiff–mother had failed, and that further reunification therapy would “re-traumatize” the minor child, but inexplicably ordered plaintiff–mother and the minor child to continue reunification therapy. Because the trial court’s findings of fact did not support its conclusions of law, the Court of Appeals vacated in part the custody modification order and remanded the case to the trial court with very specific instructions on what to include in the order on remand, including that a substantial change in circumstances had not occurred and that additional counseling was not required.

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MacCord’s List: IP News & Notices From Art MacCord

By Art MacCord

Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please click on the links below for the most recent updates.

U.S. Copyright Office Issues Notice of Proposed Rulemaking Relating to Group Registration of Newspapers

USPTO Finalizes Revised Patent Fee Schedule

New Voluntary Mark Description in the International Application (Madrid Protocol) and Subsequent Designation Forms

USPTO Launches Two Year Diversion Pilot Program for practitioners whose physical, mental, or emotional health issues (including substance or alcohol abuse) or law practice management issues resulted in minor misconduct and little, if any, harm to a client

Cooperation for an Expanded Collaborative Patent Search Pilot with the JPO and KIPO

U.S. Copyright Office Issues Notice of Proposed Rulemaking in the Seventh Triennial Rulemaking Proceeding Under Section 1201

Scam Targeting Employers for Copies of I-9s

Employers have been receiving scam emails from news@uscis.gov, a nonexistent email address made to appear as if it is from the U.S. Citizenship & Immigration Services (USCIS), asking employers to send copies of their I-9s. USCIS would never request  I-9s in this manner; therefore employers should not respond. If your client has received such an email, they can report either it to https://lnkd.in/euiJdVb or uscis.webmaster@uscis.dhs.gov.

Jennifer Parser