Exciting News: The Peacemaker Is Now A Blog!

Attention all Dispute Resolution Section members: Your DR Council recently voted to join the ranks of most other NCBA Sections to create a blog page to replace the outdated newsletter system we had been using for Section communications. This new system will allow more rapid communication and more visibility. As a valued member of the DR section, you now will receive regular email updates about The Peacemaker blog. Please stay tuned for upcoming posts.

If you have an article or other post you feel would be helpful to our members, please send it to Tara Muller, your Newsletter Editor-turned-Blog Editor, at tara@mullerlawfirm.com.

Also, we are starting a blog feature called Peacemakers’ War Stories.  At the suggestion of some of the veteran council members, mediators now may contribute interesting/helpful/difficult issues they have encountered during mediations, and how they handled them…or wished they had handled them! If you are willing to share an experience and help other section members, please send a summary to Tara for inclusion in that section of the blog.

We are excited about this development and hope you are, too.  Thank you for being a member of the DR Section.

 

 

Activate Employee Protections Before Disability Symptoms Cause ‘Bad’ Behavior

By Andrew Henson

For employees with a disability, managing symptoms can be a continual struggle. Particularly in the area of mental health and other “unseen” conditions, many employees with a disability feel torn between disclosing their disability and asking for a reasonable accommodation, or keeping quiet out of fear that they will be subjected to judgment or retaliation from supervisors or colleagues. This dilemma is often compounded by a suspicion that the employer will be unwilling to provide a reasonable accommodation in the first place. In fact, the most recent available data from the EEOC shows that reasonable accommodation complaints have been on the rise in recent years. While between 2006 and 2008, EEOC Charges in North Carolina alleging failure to provide reasonable accommodation comprised 21.4 percent of EEOC Charges under the Americans with Disabilities Act (ADA), between the years 2012 and 2014, that figure trended upwards to 34 percent.[1] However, while an employee with a disability may have a well-founded suspicion that their requests will be ignored, failure to communicate with the employer risks losing legal protections. This issue is of even greater concern where the activation of symptoms of an employee’s disability may appear to violate an employer’s personnel policies or code of conduct, such as in the case of Attention Deficit Hyperactivity Disorder (ADHD), or Tourette syndrome, to name a few.

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Paralegal Potpourri: Celebrating Members, Our 20th Anniversary, Annual Meeting & More

Past Paralegal Division Chairs Virginia Burrows, Annette Phelps, Grace Ward and Karen Mendorg attended the PD Annual Meeting in Pinehurst

May is an exciting month at the Bar Center. Hopefully you’ve seen the various announcements about May being Member Appreciation Month where, “Members come first at the NCBA, and this year we wanted to do a little extra to express our gratitude, so we’re kicking off our first-ever Member Appreciation Month.” Check out the blog post on May Member Benefits for more details.

The Paralegal Division agrees 100 percent that members come first!  For years, May has always been the time for members to gather and attend our Annual Meeting and CPE. This year’s Annual Meeting was made extra special by celebrating the 20th Anniversary of the Paralegal Division! We celebrated May 3-4, 2018 in Pinehurst with a Thursday evening reception followed by a 6-hour CPE seminar and lunch Annual Meeting on Friday! The CPE Committee did an outstanding job with the course offerings and speakers!

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Leaping the Digital Divide: Policies and Partnerships to Improve Broadband Access Across NC

By Erin Wynia and Joanne Hovis

 The article that follows is pulled from excerpts of a policy paper initiated, published and co-authored by the N.C. League of Municipalities (NCLM) as part of an effort to encourage statewide policy that better enables public-private partnerships that create better broadband access in communities across our state. NCLM views this effort as crucial to ensuring that all North Carolinians have the 21st century infrastructure they need to thrive economically and to make their communities attractive places to live and work. You can find the full report, with a range of pullout information and a forward from Brookings Institution Fellow Blair Levin, at www.nclm.org/broadband.

 The Case for Government Involvement in Broadband

One of the primary functions of government is to build the infrastructure networks people need to sustain their lives and livelihoods. Today, high-speed broadband joins transportation, electric, water, and natural gas networks as a component of basic infrastructure services that Americans expect to be provided. High-speed internet service is the number-one amenity sought by multi-family residents, and the number-two amenity for single-family residents, according to a recent study. Local governments, in particular, can and should play a role in creating the infrastructure networks to provide this service, which are often too costly for private sector entities to build solely on their own.

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NCBA Law Student Reps Experience the Power of NCBA Membership Firsthand

By Brandon McPherson

The NCBA Young Lawyers Division created its Law Student Representative program to empower law students to serve their schools and the NCBA through programming and networking. Law Student representatives serve as the “boots on the ground” at each North Carolina law school, providing information to their colleagues about the NCBA and creating opportunities for themselves and others to interface with the NCBA through different events. As you will read below, the YLD’s Law Student Representative program benefits the representatives in a multitude of ways, while also providing outstanding service to NCBA. Every summer we seek new reps from each school to serve in this leadership position and get connected to the profession. It’s my hope that all of our law student members will consider this opportunity at their respective schools.

All Law Student Division Members are eligible to be a rep. To apply, send a cover letter and resume to Amy Kemple by June 30, 2018.

Avery Barber
Wake Forest University School of Law

I’ve been a student rep for the NC Bar Association at Wake Forest for about a year. I wanted to get involved with the Bar Association because I’ve loved living and working in North Carolina for the past several years. I’ve found that the legal community is full of some of the most intelligent, passionate, and helpful individuals. I wanted to be in a position to leverage my love of networking and North Carolina to help push other law students outside of their comfort zone, to really connect with other people and try new things.

One of the most rewarding opportunities as a student rep was organizing the Legal Feeding Frenzy at Wake Forest. Wake has won the competition for several years, and the bar was set quite high to keep the streak going. While I tried to do my part – sending out emails, collecting food and money donations, reminding people to give – the level of generosity I saw from faculty, students, and alumni left me feeling amazed and grateful. I had the chance to reconnect with previous professors during the collection process and heard from several of Wake’s graduates who participated in past years working in the area looking for ways to keep giving. The Legal Feeding Frenzy tapped into the giving spirit of the local legal community, and I am thankful to have been part of the experience.

Nisel Desai
Campbell University School of Law 

The Young Lawyers Division of the NCBA gives a handful of law students this incredible opportunity to serve their schools, student organizations, build meaningful professional connections, and pay it all forward by serving as a liaison between the law school and our professional association. I’ve learned what it truly means to be part of a profession because of the NCBA: That although our work as lawyers is inherently adversarial, the NCBA enriches the professional development of all lawyers through fellowship, CLEs, and a robust offering of pro bono programs. During my two years of service as a Student Representative, I focused my efforts on encouraging classmates to take ownership of their development as young lawyers by attending CLEs, networking events, and reaching out to leadership in the sections and committees. As a student rep and a member of Campbell’s Student Bar Association, I was uniquely positioned to identify student organizations and Clinical Programs that would benefit from section and committee events. Although I’ve graduated, I hope that the Student Leadership Council at Campbell Law and the North Carolina Bar Association can become further integrated, but I’m proud of the progress we’ve made!

Matthew J. Meinel
University of North Carolina School of Law

Being a student representative for the NCBA at UNC was one of my most rewarding experiences of law school. I enjoyed facilitating connections between law students and the legal community by both bringing practicing attorneys to the law school and getting students out into the legal community.

Because NCBA members practice almost every conceivable area of law, it’s easy to organize events on whatever topic you like. For example, I coordinated a Careers in Privacy & Data Security Law panel to raise awareness of this niche but growing practice area. Additionally, I was uniquely positioned to help other student organizations at UNC connect with attorneys and bring in speakers for the organization’s events, such as an education law panel and a national security law panel.

Furthermore, I participated in and promoted many networking events and other engagement opportunities for law students. Whenever an NCBA section hosted an event or needed volunteers, I would promote that activity to students on campus. By attending these events and otherwise being actively engaged in the NCBA myself, I built a strong professional network during law school and helped other students do the same.

You May Want To Give Nondisclosure Provisions Another Look

By Anderson Ellis

Whether in the context of an M&A transaction or the hiring of a key employee, business attorneys often find themselves drafting three standard contractual provisions aimed at protecting the business interests of their clients: noncompetition, nonsolicitation, and nondisclosure. While noncompetition and nonsolicitation provisions have long been scrutinized because of their inherent effect as restraints on trade, nondisclosure provisions have generally been subject to less judicial prejudice. However, a recent North Carolina Business Court decision may cause practitioners to reconsider the purpose and usefulness of nondisclosure provisions as they relate to the business interests their clients wish to protect.

In Duo-Fast Carolinas, Inc. v. Scott’s Hill Hardware & Supply Co., 2018 NCBC 2 (January 2, 2018), a salesman employed by a hardware company worked to attract business from local construction outfits in the Raleigh area. As part of his job, he saved customer contact information on his company phone, which became commingled with his personal contact book and email account through default syncing features on the device.  The salesman was terminated from the hardware company and returned his phone pursuant to the terms of his employment agreement, but unbeknownst to the salesman and his (now former) employer, the customer contacts remained in his personal contact book and email account. After beginning work with a competing hardware company in the area, the salesman discovered and began to use the old customer contact information in his personal contact book to attract customers to the new company. The salesman’s employment agreement, in addition to noncompetition provisions, contained a section entitled “Nondisclosure of Information,” which purported to prohibit him from “use[ing] or disclos[ing] for [his] own benefits or for the benefit of another or to the detriment of the [former employer] any of the [former employer’s] Trade Secrets or confidential and proprietary information” which included “the contents of any customer lists[,]” among other things, but notably lacked any time or geographical limitations. Id., ¶5. Upon discovering the salesman was soliciting some of its customers, the former employer filed a lawsuit against the salesman and his new employer alleging, among other things, breaches of the employment agreement. The case ended up in front of the North Carolina Business Court and each side filed a motion for summary judgment.

Plaintiff sued to enforce the noncompetition and nondisclosure restrictions against the Defendant, but the Court refused to do so.  In addition to finding that the noncompetition provisions were overbroad and did not protect the legitimate business interests of the employer, the Court made one key finding related to the nondisclosure provision that rendered it similarly unenforceable: the Court found that the information contained in the customer contact lists retained by the salesman were not sufficiently confidential in nature to be protected as such, since the identities of the customers were readily ascertainable by physically going to the customers’ construction sites. This lack of a business interest in the secrecy of the customer information indicated to the Court that the nondisclosure provision was more appropriately meant, in this instance, to prevent the individual defendant from soliciting customers for his business (a clear restraint of trade similar to a noncompetition provision) than to preserve Plaintiff’s legitimate business interests. Id., ¶46. When examined in this light, the Court found that the lack of time and geographical terms in the provision rendered it an overbroad restrictive covenant and declined to enforce it.

The key finding in this case – that information claimed to be private was “readily ascertainable” – may limit its applicability to agreements written for employers with complex customer-related information uniquely developed for a specific industry. Id., ¶45. However, the ruling does raise questions about the power of nondisclosure provisions to protect more general information (like client lists, which are the lifeblood of many sales-based businesses), as well as the level of scrutiny to which such provisions will be subject.  As a result, a prudent practitioner may consider adding reasonable time and geographical limitations to the terms of certain nondisclosure provisions as a safety measure for enforceability.

Can Technology End Sexual Harassment In the Workplace?

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By Natalie Sanders

The founders of Callisto, STOPit and TalkToSpot think it might.  These are three different technology tools created by people passionate about combatting issues of sexual assault and harassment.  Are your clients ready for them?

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The “NOT To-Do List” to Manage Tasks and Distractions

Paul Unger’s presentation on taming digital chaos is one of 6.0 hours of CLE included with your NCBA Annual Meeting registration. Sign up now to reserve your space. 

By Paul Unger

Social Media, Facebook, Instagram, client fires, 24-hour news, Trump, hurricanes, murders, crime, Russia, North Korea, 150 emails a day, constant interruptions, … It’s too much for us handle and it is resulting in workday paralysis, even before you sit down to start your day!

In my CLE seminars, webinars, and my upcoming book, I outline many strategies to manage tasks and distractions. However, I thought it might help to state them a slightly different way … as a “NOT to do list”. Here are 12 “NOTS” to keep yourself laser-focused.

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Report Provides Snapshot Of NC State Government Attorneys’ Activities

By Al Benshoff

Lawyers employed by the state of North Carolina should be aware of the new report to the Joint Legislative Program Evaluation Oversight Committee by the Program Evaluation Division, Legislative Services Office, General Assembly (called “PED” in this post).  The report makes no recommendations about the use of lawyers in State government or staffing levels.  It does provide the legislature with baseline information about the use of in-house counsel, outside counsel and the allocation of lawyers to departments.  The report is called “The System of Attorney Allocation in North Carolina State Government is Decentralized Final Report to the Joint Legislative Program Evaluation Oversight Committee” and is available here.

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An Uncertain Future: The US Pulls Out Of the Iran Deal

By Zia UllahMark D. HerlachJames Lindop and Victoria Turner

Reprinted with permission from Eversheds Sutherland.

President Trump announced last week that the US will withdraw from the Iran nuclear deal and will begin re-imposing those sanctions which were lifted as part of the Joint Comprehensive Plan of Action (“JCPOA”).  In a move which former President Obama has described as “misguided” and a “serious mistake”, President Trump signed a National Security Presidential Memorandum directing relevant US agencies (including the Treasury) to take actions necessary to start re-imposing sanctions, meaning that secondary sanctions, which impact on non-US persons, will come back into effect.  President Trump’s announcement also leaves open the possibility for new and additional sanctions to be imposed in the future.

Last week’s announcement confirmed that there will be wind-down periods before sanctions are fully re-imposed.

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