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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important question, both the majority and dissent in Wilson v. Gaston County, No. 15-2522 (4th Cir. April 13, 2017) (unpublished), assume that prior written statements of the plaintiff can be considered “testimony” for purposes of invoking the sham affidavit rule.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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Legislative Update

By Faith Herndon and Laura Wetsch

This is your weekly update of bills introduced or moving through the legislature. Last week’s blog post listed a variety of bills and their current status.  This update will only describe new legislation or updates on significant bills already introduced. If a bill is moving between committees and/or going nowhere we will not necessarily have updated it for you. Again, many of the listed bills are not necessarily going to be enacted, and all are still subject to being rewritten. Here is this week’s update:

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Fifth Circuit: Employers Liable for Emotional Distress Damages in FLSA Retaliation Claims

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By Michael B. Cohen

Beyond requiring that employers comply with statutory minimum and overtime wage provisions for nonexempt employees, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., renders it unlawful for employers to retaliate against employees for asserting their rights under the law.  Employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].”  29 U.S.C. § 215(a)(3).  Retaliation claims under this section generally require the performance of a “protected activity” by an employee, such as filing a complaint, a subsequent “adverse action” by an employer, such as terminating or demoting an employee, and a “causal connection” between the protected activity and the adverse action.  It is well established that employers who violate the anti-retaliation provisions of § 215(a)(3) may be liable for legal and equitable relief under § 216(b), including reinstatement, promotion, lost wages, front pay, liquidated damages, and reasonable attorney’s fees.  But what about other remedies, such as compensatory damages for emotional distress stemming from the retaliatory act(s)?

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