Category: Labor & Employment Law (page 2 of 6)

The Devil and the Details: Constructive Discharge, Punitive Damages and the Mark Of the Beast

By Kevin P. Murphy

According to Revelation, the wild beast will seduce mankind to follow its evil ways and will cause everyone, small and great, wealthy and poor, free and servant, to have the Mark of the Beast imprinted on their right hand or on their foreheads. Revelation 13:11-18. According to the 4th Circuit, career coal miner Beverly Butcher Jr. had the right to opt out of a new biometric hand scanner policy implemented by Consol Energy, Inc. in light of his sincerely held religious belief that placing his hand in this scanner would mark him as a follower of the antichrist, to be tormented with fire and brimstone for all eternity. U.S. EEOC v. Consol Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).

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Section 1557 Of the ACA, Association Discrimination, and Health Insurance Coverage For an Employee’s Dependent With Gender Dysphoria

By Joseph S. Murray IV

The regulations implementing Section 1557 of the Affordable Care Act (“ACA”) prohibit covered health insurance providers from discriminating against individuals based on gender identity (which is defined as sex discrimination) and require covered entities to treat individuals in accordance with their gender identity. 42 U.S.C. § 18116 & 45 C.F.R. § 92 et seq. Based on these requirements, covered health benefit plans cannot limit or exclude medical services related to gender dysphoria and gender transition. Employees and their covered dependents can directly sue employers and benefit plans to enforce the Section 1557 non-discrimination provisions.[1]

But what if Section 1557 does not apply to an employee’s health benefit plan? Can employees use association discrimination claims to require their employers’ health benefit plans to cover gender transition surgery and related medical treatments for the employees’ dependents?[2] In a recent case, the 8th Circuit Court of Appeals upheld the dismissal of an employee’s Title VII association discrimination claim since such claims are based on the employee’s own protected status.

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Fourth Circuit Provides Guidance On Return to Work Pursuant to FMLA

By Sabrina Presnell Rockoff

On May 16, 2017, the 4th Circuit issued an opinion in Waag v. Sotera Def. Solutions, Inc., 2017 U.S. App. LEXIS 8587, providing further guidance regarding an employer’s responsibilities to return an employee to work following FMLA leave.

Mr. Waag brought the action against his former employer, Sotera Defense Solutions, Inc., a federal defense contractor, alleging a violation of the Family Medical Leave Act by not restoring him to his position when he returned from a medical leave; by placing him in a job that was not equivalent to the one he held before the leave; and by terminating him from the new job because he took medical leave.  The District Court for the Eastern District of Virginia granted summary judgment to the employer.  The 4th Circuit affirmed.

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City’s Renege On Economic Development Loan Insightful On Employment Issues

By Jonathan Wall

What does a case involving a city council’s refusal to go forward with an economic development loan have to do with employment law?  Plenty!  In Woods v. City of Greensboro, ___ F.3d ___, 2017 WL 174898 (4th Cir. May 5, 2017), a 4th Circuit panel relied heavily on employment law and again indicated that weighing facts has no place in a Rule 12(b)(6) determination.

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Fourth Circuit Updates

By Sean F. Herrmann

Labor & Employment Law

In the Eastern District of North Carolina, U.S. District Judge Terrance W. Boyle recently granted conditional class certification to call center employees in their FLSA dispute against BB&T. In that case, Sheffield v. BB&T et al. (case number 7:16-cv-00332) plaintiff and the conditionally certified class allege that BB&T failed to pay overtime.

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N.C. Legislative Update, 5-11-2017

By Laura Wetsch and Faith Herndon

Labor & Employment Law Section

Things have calmed down significantly since the crossover deadline on April 27, and there haven’t been a lot of status changes to the bills that survived. The Regulatory Reform Act (declaring franchisors NOT employers) is now law (S.L. 2017-10), but that’s the only significant change to the bills we’re following.  Here’s the updated spreadsheet of legislation.

There likely won’t be another flurry of activity until the General Assembly starts to smell the end of the session looming sometime in June or July, but we will continue to update.

 

N.C. Legislative Update, 4-28-2017

By Laura Wetsch and Faith Herndon

Labor & Employment Law Section

“Crossover” day is over, and so far roughly 39 employment-related bills are still in play at the General Assembly, as listed in this spreadsheet, updated April 27, 2017.  We will continue to update throughout the remaining 3-plus months of this long session, but you can also check bill status by clicking on a bill’s number on the spreadsheet, or by running a search here. Please let us know if you have any questions, or if we’ve missed a bill that would be of interest to the section.

 

4th Circuit Jumps To Conclusion That Sham Affidavit Rule Applies To Unsworn Statements

By Joseph S. Murray IV

Does a pre-litigation, unsworn statement constitute “testimony” sufficient to invoke the sham affidavit rule when a party subsequently testifies in an inconsistent manner? Instead of addressing this important question, both the majority and dissent in Wilson v. Gaston County, No. 15-2522 (4th Cir. April 13, 2017) (unpublished), assume that prior written statements of the plaintiff can be considered “testimony” for purposes of invoking the sham affidavit rule. By failing to make this initial inquiry, the court used the sham affidavit rule to sweep away a party’s deposition testimony in favor of two written statements that were not given under oath.

The 4th Circuit first invoked the sham affidavit rule[1] when it stated “[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the [party’s] testimony is correct.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (emphasis added). The use of the word “testimony” is not by accident and has a specific meaning: “evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary 1485 (7th ed. 1999). In fact, the 4th Circuit has specifically stated that statements not given under oath and not subject to cross-examination are not equivalent to deposition testimony, and as such, that applying the sham affidavit rule in such contexts is inappropriate. Shockley v. City of Newport News, 997 F.2d 18 (4th Cir. 1993); see also Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999). Heeding these principles, virtually all courts have required both versions of the facts to take the form of “testimony,” such as depositions versus affidavits[2], contradictions within sworn statements[3], testimony versus sworn EEOC charge[4], and affidavit versus verified document[5]. But see McDevitt & St. Co. v. Seaboard Sur. Co., 1995 U.S. App. LEXIS 15076 (4th Cir. June 19, 1995) (misquoting Barwick while invoking sham affidavit rule when an affidavit directly contradicted the language in letters between the parties); Williams v. Genex Servs., LLC, 809 F.3d 103 (4th Cir. 2015) (sham affidavit rule invoked when plaintiff’s testimony conflicted with her resume).

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Layoff Surprise: Is the Traveling Branch Manager A “Mobile Worker” Under the WARN Act?

Labor & Employment Law Section

By Andrew J. Henson

Federal law requires large employers issuing mass layoffs or plant closures to give employees 60 days advance written notice of an upcoming layoff provided that the layoffs occur at a “single site of employment”. The term “single site of employment” greatly limits the applicability of the WARN Act, but it has been given a broad definition when applied to “mobile workers”. But who is a mobile worker? Would this term include a traveling branch manager or salesperson?

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Seventh Circuit Finds That Sex Discrimination Includes Sexual Orientation

Labor & Employment Law Section

By Sean F. Herrmann

Practitioners in our field have grown accustomed to seeing others’ dismay as they discover that Title VII does not bar sexual orientation discrimination. “That can’t be true—it’s 2017!” For decades, the prevailing belief, and reality, was that employers could discriminate against employees on the basis of their sexual orientations with relative impunity and the wronged employees would generally have no legal recourse. Hardened employment lawyers got used to this, but for most people this situation was nearly impossible to comprehend.

That common-sense disbelief has finally led somewhere. On April 4, 2017, the full 7th Circuit U.S. Court of Appeals, in an 8-3 decision, ruled that sex discrimination extends to sexual orientation. The case is Hively v. Ivy Tech Community College of Indiana, No. 15-1720, (7th Cir. Apr. 4, 2017) (https://assets.documentcloud.org/documents/3536022/Hively-Opinion.pdf_) and we should get to know it.

Kimberly Hively, the plaintiff-appellant, was a part-time, adjunct professor at Ivy Tech Community College. She was, as the court put it, “openly lesbian.” Hively applied for six full-time positions and received none of them. Ivy Tech eventually decided not to renew her existing contract. Without the assistance of counsel, Hively filed an EEOC Charge that bluntly stated, “I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated.”

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