May Day in the Time of COVID-19: Signs of an Awakening

By Sean Herrmann

Today, May 1, is International Workers’ Day. Though it is overlooked in the United States, this day, also referred to as “May Day,” is a public holiday in many countries around the world. It’s a day to celebrate workers and a day for workers to demonstrate and demand more rights in the workplace.

Though many of us are currently confined to our homes, May Day feels particularly relevant amidst the COVID-19 pandemic. In the last six weeks, over 30 million people have filed for unemployment benefits. Even this staggering figure falls far short of revealing the total number of unemployed Americans. As the ship sinks, companies, by and large, are throwing workers overboard. When they do so, people are left reaching for our country’s tattered safety net, which is wholly unequipped to handle something like this.

The coronavirus is laying bare the injustice of the American workplace. On some level, it’s true that we are all in this together. The virus does not care if you are rich or poor, black or white, Christian or Muslim. It does not care if you think this is all a Deep State hoax or whether you are predicting the end of the world. Anyone can be infected.

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Labor & Employment Law Section Distinguished Practitioner and Service Award

The Distinguished Practitioner and Service Award Nominating Committee is accepting nominations from now until Friday, July 31, 2020. The Award exists to recognize an employment law practitioner for “Outstanding Service, Leadership, and/or Significant Contributions to the Development of Labor and Employment Law in North Carolina.”

The Award was first given to Jon Harkavy in 2008 and was known as the Harkavy Award until last year when Jon modestly requested that his name be removed from the award. Other former recipients of the Distinguished Practitioner and Service Award are: John J. Doyle, Jr. (2009); M. Daniel McGinn (2010); Travis Payne (2012); John W. Gresham (2018); and M. Ann Anderson (2019).

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“Misperception Discrimination”: What North Carolina Employers Need to Know

By Savannah Singletary

Assume that an employee is fired because her employer mistakenly believes she is of Middle Eastern descent. In fact, she is not. Should she be able to state a claim under Title VII? Courts are now divided about whether Title VII protects persons who are perceived to belong to a protected class, even if the employer is mistaken in that belief. While many jurisdictions allow misperception discrimination claims, others, like the Western District of North Carolina, do not.

Perceived Protected Traits in Title VII

Title VII purports to safeguard equality in seeking and retaining employment opportunities. Some courts conclude that to achieve that goal, an employer should face liability for discrimination based on a perception that an employee is a member of a protected class, although the employee is not actually in that class. However, unlike the ADA, which defines disability as being “perceived” to have an impairment, Title VII does not explicitly protect someone who is misperceived to be a member of a protected class. This apparent ambiguity has engendered disputes among jurisdictions.

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After-Acquired Evidence Could Limit State Employees’ Relief in Contested Cases

By Trey Ferguson 

Since the U.S. Supreme Court adopted the after-acquired evidence rule in McKennon v. Nashville Banner Publishing Co., employers have relied on this doctrine to limit former employees’ remedies in wrongful termination cases.

Suppose an employer terminates an employee because he is 60 years old. That discharge would clearly violate the federal Age Discrimination in Employment Act and many state fair employment practices laws. However, suppose the employer discovers six months after the termination that the 60-year-old employee embezzled $100,000 from the company. Embezzlement would be a legitimate reason for an employer to terminate an employee. Three years after the discovery of the embezzlement, the employee’s age discrimination case goes to trial. The employee argues that he is entitled to a full recovery because, after all, he was terminated because of his age. The employer argues that the employee is entitled to nothing because he is a criminal who deserved to be fired, even though the employer didn’t realize it at the time.

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Fight Hunger, Help Others in the COVID-19 Pandemic – Participate in the Legal Feeding Frenzy and Support Your Local Food Bank!

Michele Livingstone

Will Quick

By Michele Livingstone and Will Quick

Our section membership has a strong tradition of supporting and participating in pro bono and community service activities—both those planned and sponsored by the NCBA and those that you undertake on your own or with other organizations. We are in unprecedented times with COVID-19 (Coronavirus), and I am confident that each of you is doing your part.

Even in the best of times, however, over 1.5 Million North Carolinians struggle with hunger—of those nearly half a million are children. With public schools and many religious and nonprofit organizations that traditionally serve the food insecure in our communities being closed for indefinite periods and government leaders calling for social distancing to help limit the spread of Coronavirus, that need is never more pressing than now.

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DOL Implements New Joint Employer Rule

By T. Cullen Stafford 

The U.S. Department of Labor’s final rule clarifying the joint employer standard took effect on March 16. The final rule, first announced on January 12, narrows the definition of joint employment and contains several practical examples of scenarios where joint employer status would or would not exist. The rule is a positive development for employers, as it should assist employers in structuring their relationships with suppliers, contractors, and staffing agencies.

Background

The new rule applies only to the DOL’s interpretation of the Fair Labor Standards Act, which governs federal minimum wage, overtime, hours worked, among other things. Under the FLSA, an entity can be considered a “joint employer” if it exercises sufficient control over the terms and conditions of another entity’s workers. The existence of a joint employer relationship is a frequently litigated issue in the FLSA context, as joint employers are jointly and severally liable for FLSA obligations, such as the failure to pay overtime.

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Appellate Update

By Joe Murray

The court opinions have been sparse lately, and none of them are earth shattering. But here they are:

Davis v. NC Dep’t of Health & Hum. Servs., No. COA19-449 (N.C. App. Dec. 17, 2019) (unpublished) (Human Resources Act): DHHS terminated Davis for manually lifting a patient from his wheelchair to his bed in violation of specific medical orders. While Davis’s actions provide the just cause needed for discipline, DHHS previously suspended a similarly situated employee for the same conduct. Due to the different treatment of similarly situated employees, the court of appeals upheld the ALJ’s ruling to reinstate Davis and suspend her for two days.

Brown v. Fayetteville State Univ., No. COA19-13 (N.C. App. Jan. 7, 2020) (Human Resources Act): The court of appeals holds that the after-acquired-evidence doctrine first announced in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), may be used in contested cases under the Human Resources Act. The McKennon rule does not eliminate liability; it only limits the remedy of an employee who was wrongfully discharged.

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Appellate Update

I hope y’all appreciate that I read these opinions so you don’t have to. The employment decisions over the past several months have been fairly pedestrian.

Clehm v. BAE Sys. Ordnance Sys., Inc., No. 18-2010 (4th Cir. Sept. 30, 2019) (unpublished) (Title VII): Clehm was sexually assaulted by a coworker, who BAE terminated and who was ultimately sent to jail. Clehm claimed that after the coworker’s termination she endured workplace harassment from co-workers, including what the 4th Circuit described as “shocking evidence” of a “generally sexualized work environment.” However, the evidence showed that BAE disciplined the harassers and provided support for Clehm. Clehm filed suit against BAE alleging, among other claims, Title VII hostile work environment and retaliation. The 4th Circuit upheld the grant of summary judgment on both claims in favor of BAE due to Clehm’s inability to impute liability to BAE for her co-workers’ conduct. Specifically, there was no evidence that BAE “knew or should have known about the harassment and failed to take effective action to stop it.” Clehm’s retaliation claim also failed since BAE had not taken any adverse action against her.

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Department of Labor seeks to clarify compatibility of bonuses with fluctuating workweek method

By Michael B. Cohen

Among the alternatives for calculating overtime under the Fair Labor Standards Act, the fluctuating workweek method is perhaps one of the least familiar and used techniques. The fluctuating workweek method enables employers to pay overtime to certain non-exempt employees at one-half their regular rate, rather than one and one-half times their regular rate, if certain conditions are met:

(1) the employee’s work hours must fluctuate from week to week;

(2) the employee must be paid a fixed salary each workweek, regardless of the number of hours worked;

(3) the fixed salary must be large enough to compensate the employee at a rate of not less than the minimum wage for all hours worked;

(4) there must be a “clear mutual understanding” between the employer and the employee that the employee’s fixed salary is compensation for all hours the employee may work in a particular week; and

(5) the employee must receive additional pay at one-half the regular rate for all overtime hours worked.

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Shooting the Messenger: Villainizing Whistleblowers Makes Us All Less Safe

By Kevin Murphy

Retaliation subverts the aims of anti-discrimination laws, fair pay rules, safety regulations, accounting requirements, environmental safeguards, and many other laws. Employees cannot invoke the rights provided by these laws or help the government stamp out fraud if they know they will be retaliated against for speaking up or reporting misconduct.

Retaliation is deeply rooted in our culture. Since the Hammurabi Code, the rule has been that one should return whatever harm was done to them with equal vengeance. As the Old Testament decrees, “fracture for fracture, eye for eye, tooth for tooth, shall he repay. Whatever degree of blemish he has inflicted, so shall he be compelled to suffer.” Leviticus 24:19-20; see also Exodus 21:24 (“An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot”). The Greek historian Plutarch tells of kings beheading the bringer of bad news rather than facing the underlying issue itself.

Even the President has suggested executing those that report misconduct (“You know what we used to do in the old days when we were smart with spies and treason, right? . . . We used to handle it a little differently than we do now.”). Maggie Haberman and Katie Rogers, Trump Attacks Whistle-Blower’s Sources and Alludes to Punishment for Spies, New York Times, (Sept. 26, 2019).

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