38th Annual North Carolina/South Carolina Labor and Employment Law CLE

Jennifer, a white woman with brown hair, wears a pink shirt and black jacket.

Jennifer Spyker

Grant, a white man with grey hair, wears a white shirt, red tie and black jacket.

Grant Osborne

By Jennifer Spyker, Grant Osborne and Members of the Communications Committee of the Labor & Employment Law Section Council

It’s not too late to register for the 38th Annual North Carolina/South Carolina Labor and Employment Law CLE, being held November 4-5, 2022, at the Renaissance in Downtown Asheville. Come join us in person for fall vibes, time with colleagues whom you may not have seen for quite a while, and an excellent speaker lineup! The CLE is also available via live webcast.

The agenda and registration information are available here.

Pro Bono Opportunities Update

Leann Walsh

Leann Walsh

Michael Elliot

Michael Elliot

Jennifer Bills

Jennifer Bills

By Leann Walsh, Michael Elliot, and Jennifer Bills

Help Create How-To Guides for Young Lawyers

Happy New Year from the Pro Bono Committee of the NCBA Labor & Employment Law Section! Are you looking for a great way to engage with the section and volunteer a small piece of time? We have a great opportunity for you to gain some discrete pro bono hours and pass along some of your hard-earned wisdom to a young lawyer in need.

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The Pro Bono Committee of the NCBA’s Labor and Employment Law Section is Calling for Volunteers!

By Leann Walsh

Happy spring! The Pro Bono Committee of the NCBA’s Labor and Employment Law Section is looking for volunteers for a couple of different projects:

First, the committee is looking for individuals who are interested in co-chairing the committee and/or assisting with the leadership of discrete pro bono projects this year. Due to the pandemic, the committee is not planning for any in-person pro bono events this year, but the committee is working to put together a couple of virtual pro bono opportunities. If you are interested in becoming a more active member of the section, meeting more colleagues in the field, and finding a leadership opportunity as a way to give back to the community, this committee is for you! For example, one of the projects the committee is planning for the fall of 2021 is a virtual “Empower Hour” program where section members will become trained in how to answer pro bono questions for the public from the North Carolina Free Legal Answers Program. Please email Leann Walsh ([email protected]) and Michael Elliot ([email protected]) if you are interested in leading a pro bono initiative or serving as a co-chair on the committee.

Second, the committee will be working with the NCBA’s Young Lawyers Division to put together short employment law guides/checklists for new lawyers in North Carolina. The guides (1-3 pages) will be provided to new lawyers in the state after they are admitted to practice. The topics of the guides will include things like: (1) Hiring Employees in North Carolina, (2) Drafting Offer Letters for North Carolina Employees, and (3) Terminating an Employee in North Carolina. Attorneys can work on the guides solo or in teams. Each guide is expected to take around five hours to create. If you are interested in helping with this discrete pro bono project, please email Leann Walsh ([email protected]) and Michael Elliot ([email protected]). We will have a project kickoff meeting on May 3 and the drafts will be due by May 31.

Third, if you have other ideas for pro bono projects this year, please let us know! All suggestions are welcome — please email Leann Walsh ([email protected]) and Michael Elliot ([email protected]).

Another Twist to the Legality of Mandatory COVID-19 Vaccination Policies

By Joe Murray

While we’re all aware of the EEOC’s position on employers implementing mandatory COVID-19 vaccination policies — if not, take a minute to read the EEOC’s guidance — be aware that other laws may affect these policies. Specifically, because the current vaccines are authorized under emergency use authority, and not full FDA approval, there may be limits on the use of the vaccines.

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Nominations for Section Council Members

By Sean Herrmann

Hi everyone!

Each year our Nominations Committee takes nominations for new council members and a slate of officers for the council. Council membership requires membership in the NCBA and the Labor & Employment Section, attendance at four council meetings scheduled around the state each year, and willingness to serve a three-year term.

We are also looking for folks interested in serving on the section’s committees. Council seats are limited, but there is no lack of committee opportunities. It’s a terrific opportunity to get involved and help grow the section.

If you are interested in being a council member or serving on a committee, please call Griff Morgan at (336) 714-4488 or email him at [email protected]. You can also contact Julianne Dambro at (919) 657-1587 or [email protected]. Once you reach out, we will share your name with the Nominations Committee.

Register Now for the Oct. 30 Labor & Employment Law CLE

The 36th Annual North Carolina/South Carolina Labor & Employment Law CLE will be held via live webcast on Friday, October 30, 2020.

In conjunction with our South Carolina counterparts, the North Carolina Labor & Employment Law Section is pleased to announce that we are still holding our annual CLE event this year! We’re condensing the program a bit and the logistics will look a little different this year in light of COVID-19, but the quality instruction and timely topic coverage you know and love will be the same. Here are the details:

When: Friday, October 30, 2020, from 7:55 a.m. to 4:20 p.m., with breaks sprinkled in. The program will also be recorded, and you can decide to watch it “On Demand” at a time more convenient for you. As a reminder, the Bar has removed any limits to on-demand CLE this year.

Where: Live Webcast. You will receive a link via email and will also be able to participate through submission of questions throughout the CLE program.

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Ketan Soni Presents “The New Community Platform”

By Ketan Soni

What You Need to Know About the New Community Platform

This year, the NCBA has switched to a new online community platform. This new community platform for Sections, Divisions and Councils offers many more features than the previous system. Below is a summary of the basics and what you need to know to utilize this platform and its features.

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Employers Cannot Require Coronavirus Antibody Testing, EEOC Says

By Sarah Beth Tyrey 

On June 17, the Equal Employment Opportunity Commission updated its COVID-19 guidance (scroll down to A.7) to state that employers cannot require employees to take COVID-19 antibody tests in order to return to work. Although employers are allowed to take employee temperatures and to test for current COVID-19 infection, the EEOC says that antibody testing violates the Americans with Disabilities Act.

After near shutdown of the U.S. economy in March and April, most employers have been bringing employees back to work. Some experts, eager to prevent further disruption, have suggested using serologic (antibody) testing to identify those who have had the virus and therefore may be eligible to safely return. Some companies have been marketing antibody testing programs to employers.

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Appellate Update

Joe Murray

My last appellate update was so long ago that I’ve got a lot of cases to review here. Hence I’m limiting (almost) every summary to 280 characters, Twitter style.

Wetherington v. NC Dep’t of Pub. Safety, No. COA18-1018 (N.C. Ct. App. Feb. 18, 2020) (State Personnel Act): In 2009, Patrolman loses hat, lies about it, fired. N.C. S. Ct. reverses/remands. Refired. Ct. App.: The “or” in the Wetherington test[1] is actually an “and.” Since not all four factors considered and ultimately met, reversed w/ instructions to impose lesser discipline.

Raynor v. G4S Secure Sol., No. 18-1773 (4th Cir. Feb. 26, 2020) (unpublished) (state law claims, Title VII race and retaliation): Big takeaway: district court can limit the presentation of evidence by imposing time limits at trial & decision will be reviewed under abuse of discretion standard. But courts should not set time limits as a “matter of course.” MSJ on Title VII and attorney’s fees award affirmed.

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If You Can’t Say Something Nice, Then Don’t Say Anything

By Joe Murray 

An anonymous show of hands: who has done a local TV news segment in which you and your client discuss their lawsuit? Maybe you state the employer is racist or a specific manager was a predator. Now, a second show of hands: how many have considered the potential for such a statement to lead to a defamation lawsuit against you or your client? If not, I recommend that you do.

In January 2018, Cardinal Innovations Healthcare Solutions hired Kurt Meyers and McGuireWoods to conduct an independent internal investigation into the conduct of its former CEO, Richard Topping. After Meyers presented his findings to Cardinal, it filed a lawsuit against Topping seeking the return of a severance payment. Less than two hours after filing suit, Cardinal held a press conference at which Meyers discussed his findings with the media. Meyers’ statements and presentation at the press conference essentially “mirrored” the allegations in the complaint. Topping v. Meyers, No. COA19-618, (N.C. Ct. App. Mar. 17, 2020).

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