By Josh McIntyre, NCBA Membership Director
The leaves are turning colorful shades
Of orange and red and more.
And it’s always around this time of year
I think of what I am thankful for.
As always I’m glad my family and friends
Put up with my antics and quirks,
But I am also extremely grateful
For quite a few things at work:
By Joseph S. Murray IV
A roundup of notable labor and employment law opinions from the past several weeks:
- Schilling v. Schmidt Baking Co., No. 16-2213 (4th Cir. Nov. 17, 2017): Are employees who drive assorted vehicles in a mixed fleet—a fleet with vehicles weighing more and less than 10,000 pounds—entitled to overtime? Ruling: Yes, the SAFETEA–LU Technical Corrections Act of 2008 amended the FLSA so that employees who drive “in whole or in part” motor vehicles weighing 10,000 pounds or less are entitled to overtime. Court does not decide if there is some de minimis amount of time an employee can drive a vehicle that weighs less than 10,000 pounds and still be exempt.
- Plotnick v. Computer Sciences Corp., No. 16-1606 (4th Cir. Nov. 8, 2017): ERISA case dealing with standard of review that applies to top-hat plan administrator’s benefits decisions. Ruling: No need to decide which method to use, plaintiffs lose no matter what.
- Munive v. Fairfax County Sch. Bd., No. 17-1692 (4th Cir. Nov. 7, 2017) (unpublished): Employer’s failure to remove a reprimand letter as promised, which allegedly led to plaintiff not receiving a promotion, may constitute retaliation. Ruling: Pro se’s Title VII retaliation claim should not have been dismissed.
- Freedman & Sons, Inc. v. NLRB, No. 16-2066 (4th Cir. Nov. 7, 2017) (unpublished): Court finds that NLRB’s ruling that employer discriminated against employee for engaging in protected activity and interfered with employee’s exercise of NLRA rights was supported by substantial evidence.
- Trejo v. N.C. Dep’t of State Treasurer Ret. Sys. Div., COA16-1182 (N.C. Ct. App. Nov. 7, 2017): Does the State Disability Income Plan have the right to offset benefits by the amount of hypothetical Social Security disability payments? Ruling: State law at the time said the Plan must offset the “Social Security disability benefit to which the beneficiary might be entitled,” so plaintiff loses even if she didn’t receive Social Security disability benefits.
- Randolph v. Powercomm Construction, Inc., No. 16-2370 (4th Cir. Oct. 31, 2017) (unpublished): Parties settle FLSA collective action claim for $100,000; plaintiffs had alleged damages of up to $790,000. District court awards attorney’s fees of $183,764. Defendant appeals. Ruling: District court failed to support decision to not deduct fees for work on dismissed plaintiffs’ claims from the award and improperly calculated the reduction based on the plaintiffs’ lack of success. Vacated and remanded.
- Borzilleri v. Mosby, No. 16-1751 (4th Cir. Oct. 17, 2017): Assistant State’s Attorney (ASA) supports incumbent State’s Attorney in a bruising primary battle. Incumbent loses and his opponent promptly terminates ASA upon taking office. ASA sues claiming violation of 1st Amendment. Ruling: ASAs are policymakers who are exempt from the First Amendment’s protection against patronage dismissals.
- Wray v. City of Greensboro, No. 255A16 (N.C. Aug 18, 2017): City claims sovereign immunity in lawsuit by former police chief seeking reimbursement for legal costs. City has resolution stating it will provide for the defense and indemnity for police officers sued based on their actions taken within the scope and course of their employment. Ruling: The resolution is part of the employment contract, and since sovereign immunity is not a defense in a contract claim, plaintiff can proceed with claim.
By Russell Rawlings
Brownie doesn’t distinguish between Thanksgiving Day and any other day of the year. Nor does he grasp the concept of Saturday and Sunday, which most of us refer to as the weekend.
All our beloved four-legged friend knows is that when my feet hit the floor every morning, we’re going for a long and rewarding walk. That’s all he cares about.
There’s a lot to be gained from this strategy, or better yet not gained, if you’re approaching Thanksgiving Day and the subsequent holiday season with fear and trepidation over what you will eat and what you will weigh once it’s all said and done.
Happy Friday, everyone! We hope this last week before the unofficial start of the holidays has been productive. Before you kick off your weekend, check out these recent announcements of interest.
Electronic Filing with the U.S. Supreme Court
On Nov. 13, 2017, the U.S. Supreme Court’s electronic filing system began operation. While paper remains the official form of filing as under existing practice, parties represented by counsel will also be required to submit most documents through the new electronic filing system. Attorneys who expect to file documents electronically will need to register in advance for the system. Click here for additional information and to register.
N.C. Court System Launches Online Request for Reduction of Speeding Offenses Statewide
Citizens may now request online reductions of speeding offenses in every county with the statewide launch of the N.C. courts’ newest online service, the AOC reported last week. The efficient, user-friendly service provides 24/7 convenience for motorists who receive a speeding ticket and meet eligibility criteria to potentially reduce and process their citation without ever having to appear at the courthouse. Click this link for details, as well as other news from N.C. Courts.
By Isaac Thorp
You have served interrogatories about the defendant’s construction of a defective roadway. The defendant responds to several of them by stating, “[T]he information sought by this interrogatory may be ascertained by a review of the construction diaries and other records. These documents are available for review, inspection and copying.” You arrive at defense counsel’s office to inspect the documents, and you’re directed to a storage room that contains 200 unlabeled boxes. “Good luck!” says his secretary, as she closes the storage room door. Is this proper?
By Joyce Brafford
You have clients. They use email. They send text messages. They create documents. They take pictures. They make phone calls. They send messages on social apps. Imagine if one of your clients came to your office, and told you they were being sued. And all those personal and professional messaging systems were sources of potential evidence. How in the world would you avoid spoliation of evidence? How would you ensure you were gathering all the materials required by a request for discovery? How could you manage all the data you needed to sift through from the opposing party?
It’s a huge challenge. And as our clients create more data every day, there’s no excuse to be puzzled by e-Discovery. To that end, we’re asking Kelly Twigger of ESI Attorneys to tell How to Use e-Discovery and Win at a one-hour webinar on Nov. 29. To help us prepare for the program, Kelly is sharing answers to three essential questions anyone who needs to know more about e-Discovery should ask.
1. Why does every lawyer need to understand e-Discovery?
Put simply, all of the evidence your clients need to prove their cases is electronic. The difference between paper and ESI (electronically stored information) is that clients used to be able to tell what was important and hand it to their attorney. They usually kept it all together or were able to find it easily. Now they can’t always find it all in all the systems that we use to create, send and receive ESI, and it has become the attorney’s job to know the right questions to ask to find out where it’s located, how to search it and how to get at the data for use in a case. It’s a very new complex and ever-evolving discovery process that we are facing. You can’t do discovery without ESI anymore and how you approach e-Discovery can make or break your case.
Editor’s Note: The below article is the second in a three-part series about blockchain and its implications on international trade. Read the first article here.
By Sammy Naji
Applying blockchain technology to international trade allows stake holders to take advantage of a a much more efficient and transparent technological infrastructure than the current outmoded paper-based system. Prior to blockchain’s emergence, digitizing negotiable trade documents, without creating the potential for fraud, could only be accomplished through expensive and closed members-only systems. With blockchain, however, an accurate record of possession and title can be maintained without the need for paper processing or a centralized intermediary.
By C. Bailey King Jr.
It is my pleasure to welcome you to the new Bar year with the first post in our new blog format. It is an exciting year for the Antitrust and Complex Business Disputes Section, beginning with the transition from a newsletter to this new blog format under the leadership of our editor, Nathan Standley. Going forward, Nathan will be working with Gavin Parsons and Tim Lendino to bring you blog content, which will include encouraging each of you to write blog posts.
The reason for this change is simple: we believe it will better serve you. Our newsletter has always provided great content for Section members. Now, we will be able to push that same content out in a more timely fashion and in a way that is easier to access. We hope that by making this change we will be able to provide you with greater resources in your practice. More importantly, in my opinion, unlike the newsletter, blog posts will be freely distributed across the internet, making the publication opportunities our Section provides much more valuable. Nathan and I invite all Section members to submit proposed posts for consideration. Our hope is that this change will help all of us in building diverse practices focusing on antitrust and complex business disputes.
By Janet Thoren
Like most lawyers, and most people in general, I often find myself in a position of needing to “upgrade” the way I have done something for years. I recall years ago when I started doing on-line bill pay with my bank. It seemed so strange to not write checks each month. As a lawyer and a business major, getting bills paid accurately and on time and keeping good records was something I was stubborn about, so making that switch was hard for me. Now, if I have to write a check, I often find myself staring at it for a few minutes to recall exactly how I need to write out the dollar amount. I can’t imagine going back to writing and mailing paper checks every month. I’ve also cleared out a lot of space in my home office by keeping electronic records, and they are easy to locate.
If you’re a lawyer who is interested in administrative law, then there is one CLE you cannot afford to miss this year: the NCBA’s Nov. 16-17 CLE entitled, “The Only Constant is Change: 2017 Legislative, Executive, and Judicial Updates.”
Let me give you two reasons why you need to sign up now, if you aren’t signed up already:
First, the CLE features an all-star cast of speakers from all three branches of government. These speakers include Supreme Court justices, Court of Appeals judges, and the recently retired Speaker Pro Tempore of the North Carolina House of Representatives. Simply put, there is no more qualified group of individuals than these current and former public officials to speak about the sweeping changes that our state government and local governments have experienced in the past year, which could impact your practice.