Date Change For Section Annual Meeting/CLE

Due to a conflict with two CLE programs, the Constitutional Rights and Responsibilities Section is moving the date of its Annual Meeting and CLE from Jan. 13, 2017 to Feb. 9, 2017.  The CLE will focus on HB2 and the legal challenge to that bill, including its impact on employment law related issues as well as an analysis and discussion of the litigation resulting from the bill.  We apologize for any inconvenience with regard to the change of date and hope to see you on Feb. 9, 2017.

EEOC Issues Updated Retaliation Guidance

herrmannseanBy Sean F. Herrmann

Retaliation, which finds its way into nearly 45 percent of all charges filed nationwide, remains the most prevalent bias allegation to come across the desk at the EEOC. This has the EEOC’s attention. On Aug. 29, 2016, it issued its Enforcement Guidance on Retaliation and Related Issues, laying out its most recent interpretation of the law on this topic. The guidance addresses retaliation under Title VII and all other federal anti-discrimination laws.

A link to this guide can be found here

The EEOC issued a more-user friendly Questions and Answers document to accompany the guidance. 

Finally, the agency also issued a small business fact sheet.

Fourth Circuit Takes On ‘Me Too’ Evidence and ‘Mini-Trials’ In Recent Decision

herrmannseanBy Sean F. Herrmann

Recently, in Calobrisi v. Booz Allen Hamilton, Inc, No. 15-1331 (4th Cir. Aug. 23, 2016), the U.S. 4th Circuit Court of Appeals specified certain types of evidence that district courts must, at a minimum, consider when ruling on summary judgment motions. It held that the trial court erred when it granted summary judgment, in part, to the employer in an age and gender discrimination and retaliation case. This decision will impact practitioners and district court judges alike.

In partially reversing the district court’s decision, the 4th Circuit first noted that the lower court did not “individually analyze each piece of other employee evidence.” Specifically, the appellant-plaintiff, a then age 55-year-old female, submitted testimony from seven other “middle-aged women,” who stated that they experienced adverse actions at the workplace similar to those alleged by the plaintiff. The district court, in one sentence, determined that the plaintiff’s “me-too” evidence would not be admissible at trial and, accordingly, did not consider it when ruling on the summary judgment motion.

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And Now For Something Completely Different … About CLE Titles

By Catherine Peglow

Have you ever wondered how our CLE programs get their names?

“The Alimony Tour – Not Starring John Cleese” was the name of the 2015 Family Law Section Annual Meeting CLE in Asheville. Now, I’m a Monty Python fan, but a clever name like that can present some problems when you consider the life cycle of a typical North Carolina Bar Association Foundation CLE program. After the live program, we generally do video replays across the state, and those video replays count as live CLE credit. After the replays finish, the program is edited into sessions and uploaded to our On Demand catalog. When you view those sessions online from the convenience of your home or office, they count as online CLE credit.

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Economic Liberty Challenges In the 21st Century

By Drew Erteschik and J.M. Durnovich



Most of us left law school with the understanding that so-called “economic liberty” challenges to state regulations will generally fail under rational basis review.  That area of the law, however, has changed dramatically.

This article looks at the change in three parts:


The first part offers a brief refresher on the history of economic liberty challenges in the 20th century.

The second part describes a flurry of recent cases involving successful economic liberty challenges on substantive due process grounds.

The third part examines some possible legal and policy explanations for the modern trend.

20th Century Views

In 1905, the U.S. Supreme Court decided Lochner v. New York, a case that considered a state law capping the maximum hours for bakery employees.[1]  The Court struck down the law on the grounds that it violated the “right of an individual to be free in his person and in his power to contract in relation to his own labor.”[2]  Over the next thirty years—the “Lochner era”—the Supreme Court struck down a number of state laws that infringed upon economic liberty rights.[3]

The Lochner era, however, was short-lived.  Headlined by the Court’s decision in U.S. v. Carolene Products, the Great Depression ushered in the post-Lochner era—a time when the Court established a presumption of constitutionality for state regulations.[4]  Most scholars attribute the shift to non-jurisprudential reasons:  If President Roosevelt’s New Deal was to survive constitutional challenges, the Court needed to dilute Lochner’s potency.[5]

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Fourth Circuit’s RLM Communications, LLC v. Tuschen Tackles Noncompetition and Trade Secret Misappropriation Issues

Wall,JonBy Jonathan Wall

Noncompetition agreements (“non-competes”) present thorny issues.  In most cases, you have a former employee who has signed a black-and-white contract prohibiting him or her from engaging in certain employment, and the employee goes and does the one thing that the contract specifically prohibits.  Not that long ago, most judges would view the matter purely as a contract issue, and once an employee’s attorney admitted that yes, that was the client’s signature on the agreement, they did not want to hear much else, with visible disinterest giving way to agitation the longer the argument proceeded.

On rare occasions, if the employee could present special circumstances, the trial courts would do more than pay lip service to the maxims like “noncompetes are strongly disfavored in North Carolina.”  Was the territory much more expansive than where the employee actually operated?  Was this really a lower-level employee, with the noncompete designed to keep the employee hostage rather than protecting legitimate employer interests?

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Update From the EEOC: New Charge-Handling Procedures

Nicholson,Travis (2)By Travis Nicholson

EEOC has implemented new procedures to be followed in all of our offices for the submission and release of position statements. The procedures apply to EEOC requests for position statements to employers made after Jan. 1, 2016. The purpose of the new procedures is to advance investigations by facilitating more pertinent information from both parties, including a response from the charging party.

An effective position statement is clear, concise, complete and responsive. EEOC recommends these practices for employers:

  • Submit position statements that are fact-based and thorough;
  • Ensure that the position statement focuses on the allegations in the charge;
  • Provide relevant documentation, evidence, and/or information that supports the employer’s position;
  • Segregate confidential information in attachments, including personally identifiable information, sensitive medical information, confidential financial information, etc.

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