Who Needs Halloween? Sexual Harassment and Election Season


rockoffsabrinapresnell-2By Sabrina Presnell Rockoff

I come to you this beautiful October day with three scary topics you should likely avoid at any dinner party.  However, as an employment lawyer and breast cancer survivor, I’m going to tackle all of them:  Politics, sexual harassment and cancer.  I’ll start with the last topic first.  October is breast cancer awareness month.  As a survivor of stage 1 breast cancer, I’m living proof that early detection saves lives.  So if you or your loved one has been putting off a mammogram or checking something that seems worrisome, STOP!  Make an appointment today.  It matters – a lot.

Now, on to the other two … This election is testing many of the fundamental ideas we all believe in as Americans:  democracy, patriotism, equal rights and freedom of speech.  Keeping our opinions to ourselves this election season has become increasingly difficult.  Without offering my own opinion on the candidates, one thing is very clear:  sexual harassment is front and center in this election in a way it has not been since the early 1990s.  And history shows us that when sexual harassment is at the forefront of political discussion, we all had best take note. The EEOC reported that charges filed alleging sexual harassment increased by over 60 percent the year following the Clarence Thomas confirmation hearings.  While I would argue, based on my own experience, that companies are now in a much better position to address sexual harassment concerns and claims than they were 10 or 20 years ago, based on the current conversations being had on any cable news show, not all companies, even large, seemingly savvy companies, are doing it well.  You can find the most recent data regarding EEOC charges related to sex harassment here:  https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm

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Start Your Engines: Welcome To the NCBA Sports & Entertainment Law Section Blog

kellymatt Neil Magnuson

By Matt Kelly and Neil Magnuson

The Sports & Entertainment Law Section of the NC Bar Association is pleased to announce that, in lieu of continuing to issue a quarterly newsletter, it has launched and will deliver news, articles, and other scholarship via this blog.

If you are a member who has been receiving the newsletter, you are automatically enrolled to receive notices of new SEL Section blog content. Please also bookmark this page and return often for news and announcements!

To kick off this blog, we are pleased to be able to share with you comments from our new Section Chair Shannon L. Vandiver. Please take a look to find details about our plans for the year, including our CLE upcoming on Dec. 1, The Rise of Daily Fantasy Sports and the Challenges Posed by Anti-Gambling Laws.

If you have content that you would like to share on our blog, please contact our blog chair, Matt Kelly, at mkelly@kelly-lawgroup.com or co-chair, Neil Magnuson, at nmagnuson@nascar.com.

The Chair’s Comments: Sports & Entertainment Law’s Game Plan For the Year

vandivershannonBy Shannon Vandiver

With over 150 member attorneys in industries spanning the sports and entertainment worlds including those that serve as in house and outside counsel for all of North Carolina’s major league sports teams and properties as well as many of its minor league, amateur, collegiate and youth sports entities and attorneys representing artists, entertainers and media outlets all over the state, the Sports and Entertainment Law Section is truly the hub of the sports and entertainment legal world for North Carolina.

Our attorneys serve clients that include NASCAR and other motorsports teams, drivers and sanctioning bodies as well as NFL, NHL and NBA teams; athletes, coaching staffs and support personnel; NCAA schools and conferences including the Atlantic Coast Conference and the Southeastern Conference; the North Carolina High School Athletic Association; media companies, stations and providers; musical, visual and performing artists, labels and venues; literary authors and publishers; and many, many others. Section members include corporate counsel, business transactional and litigation attorneys, attorneys who provide immigration law services for athletes, entertainers, performers, investors and producers; those whose practices are focused on technology or intellectual property, copyright, trademark or privacy law, promotions, digital media, internet, gaming and many other areas of the law that touch sports or entertainment. The largest concentrations of our section members are in the Charlotte and Triangle areas but we are also well represented in the Triad and in areas from Western North Carolina to the coast.

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Eighth Circuit: Heavy-Set Truck Drivers Can Be Forced To Undergo Sleep Exam

henson-andrewBy Andrew J. Henson

A recent Eighth Circuit opinion found that a trucking company could force heavy-set truck drivers to submit to a sleep apnea exam as a “business necessity,” avoiding liability under the Americans with Disabilities Act (ADA), possibly paving the way for future class-wide medical examination requirements that comply with the ADA.

In Parker v. Crete Carrier Corp., 2016 WL 5929210 (8th Cir. October 12, 2016), a trucking company required its drivers who had a Body Mass Index (BMI) of 35 or greater to get medical examinations to determine if they had Obstructive Sleep Apnea (OSA). Parker, a driver for the company, objected to the sleep apnea investigation requirement and gave his employer a note from his doctor, which stated that he did not believe the examination was necessary. When the trucking company refused to allow Parker to conduct any further driving without the examination, Parker sued under the ADA, alleging he was discriminated against for being “regarded as” having a disability. The court assumed without deciding that requiring a medical examination for people with a BMI in excess of 35 was sufficient to show an employer regarded an employee as having a disability and proceeded to whether the employer had an affirmative defense.

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Disaster Unemployment Assistance Available For 23 Counties In North Carolina

robin-sheaBy Robin Shea

In the aftermath of Hurricane Matthew, 23 North Carolina counties have been approved to receive federal Disaster Unemployment Assistance. Gov. Pat McCrory has directed the state Department of Employment Security not to enforce the one-week waiting period that normally applies to unemployment claims.

The eligible counties are as follows: Beaufort, Bertie, Bladen, Columbus, Cumberland, Dare, Duplin, Edgecombe, Gates, Greene, Harnett, Hoke, Hyde, Johnston, Jones, Lenoir, Nash, Pender, Pitt, Robeson, Sampson, Wayne, and Wilson.

Here are a press release from the DES and DUA FAQs.

Thanks very much to John Hoomani, chief counsel of the DES, and to Jessica Leaven, chair of the Labor and Employment Section of the North Carolina Bar Association, for sharing this information.

The Chair’s Comments: Make the Year Even Better By Getting Involved

bryant-joshBy Joshua D. Bryant

Fellow Tax Section Members:

As I write this, the inaugural post for our section’s blog, much of eastern North Carolina is beginning the long process of recovering from the heavy rains brought by Hurricane Matthew. Early maps depicting alternate possible paths for the storm reflected the uncertainty that is characteristic of hurricanes—lines of various colors veering in different directions with only a slightly discernible pattern. Uncertainty has been a theme in 2016 in many respects, including economically and, with the November elections looming, politically.

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New Law Requires Section 501(c)(4) Organizations To Register With the IRS

long_steveBy Steven B. Long

Late last year, Congress enacted Section 506, which requires any organization seeking to operate as a tax-exempt social welfare organization pursuant to Section 501(c)(4) to register with the IRS within 60 days of formation. Failure to do so exposes the organization to a penalty of $20 per day, up to a maximum of $5,000. Late filings may, however, be excused for reasonable cause.

The new section was adopted as part of the Protecting Americans from Tax Hikes Act (“PATH Act”), which the President signed into law on Dec. 18, 2015. Public Law 114-113, Dec. 18, 2015. It applies only to social welfare organizations established after Dec. 18, 2015 and social welfare organizations formed before that date if they have not previously filed (i) an application with the IRS (Form 1024) requesting a formal determination of tax-exemption under Code Section 501(c)(4) or (ii) at least one annual report on IRS Forms 990, 990-EZ, or Form 990-N.

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How To Overcome ‘Special Purpose’ Property Classification in Ad Valorem Valuation: In re Appeal of Corning Inc.

mercer_charlie hollander_reedBy Charles H. Mercer Jr. and Reed J. Hollander

North Carolina Property Tax Commission Case No. 13 PTC 822 (March 20, 2015) North Carolina Court of Appeals 786 S.E.2d 816 (N.C.App. 2016)

County tax assessors sometimes contend a commercial or industrial property is a “special purpose” property and, on that basis, determine there is no market evidence that bears on the ad valorem value of the property. Such a position often leads the assessor to value the property without use of a comparable sales approach, resulting in values substantially in excess of actual market sales. How can a property owner successfully challenge a county tax office’s classification of commercial or industrial property as a special purpose property and win the resulting valuation challenge? A recent decision from the North Carolina Court of Appeals provides a detailed look at one successful effort.

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Remark Puts Maternity Leave Case Through Summary Judgment On Direct Evidence Theory

herrmannseanBy Sean F. Herrmann

In EEOC v. Dimensions Healthcare Sys., No. 15-2342 (D. Md. Sept. 2, 2016), the District of Maryland denied the defendant’s motion for summary judgment on the plaintiff’s Title VII and Pregnancy Discrimination Act claims. The court’s decision largely turned on a decision maker’s comment, which the court found could be direct evidence of discrimination.

In that case, the plaintiff sought a promotion into a management-level position, but the company chose a male candidate instead. When the plaintiff asked the decision maker to explain the choice, the decision maker said that the company chose the man because of his “management background.” There was evidence that the plaintiff had reason to be suspicious of this explanation, so she asked again. This time, the decision maker allegedly explained, “Well, like I said, he has a management background. Plus, you were on maternity leave for a while.” Following this meeting, the plaintiff learned that the decision maker was alleged to have previously demoted female employees who had been out on maternity leave.

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The Chair’s Comments: Welcome to a New Year and a New Blog

fruth-darrellBy Darrell A. Fruth

Please allow me to introduce myself as chair of the IP Section, along with our new blog format.  We will use this blog to share articles and keep you posted on networking events and other programs that we are planning for the year.  If I can get you to do one thing, please mark April 28, 2017 on your calendar when you (and hopefully your family) will be attending our annual section meeting in Wilmington!

About Me   

It suits me to write my first Chair’s Comments in the form of a blog post, as I prefer less formal modes of communication. I spent my formative years in Las Vegas and then studied engineering at MIT and UC Berkeley before attending Yale for law school.  After law school, I clerked for a federal judge in Reno, NV, the “Biggest Little City in the World,” and practiced patent litigation in San Francisco.  I also took full advantage of the outdoor adventures, such as downhill skiing and mountain biking, that abound in the Sierras.  My family moved to Durham in 2005.  I currently serve as a partner at Brooks Pierce in Raleigh, where my broad IP practice includes licensing, assertion, and white collar defense.  I also co-teach the Start-Up Ventures Clinic at Duke Law School.

This Blog

With the support of section leadership, our intrepid editors Lauren Anderson and Michael Morlock decided to embrace the 21st century: We have switched our IP Links newsletter into a blog available to the entire world.  This should allow more timely stories delivered in shorter bites, but only if section members generate and share content relevant to our section.

The Year Ahead

Our section has strong leadership in the form of capable officers and dedicated committee chairs.  The trademark committee just conducted a seminar about beer law in Asheville.  Expect similar, top-notch programs throughout the year.  The cornerstone annual CLE will be presented, in collaboration with the Sports and Entertainment Section, in Wilmington on April 28.  We need you there.  Unless we have good attendance, the Bar Association will encourage us to hold all of our annual meetings at the Bar Center in Cary.  More importantly, our section sees real value in spending time getting to know one another.  In addition to CLE options, our events will stand out as a way to connect with your colleagues across the state.

I look forward to seeing you at an IP Section event soon!