Representing Employers In the #MeToo Era

By Robin Shea

The Equal Employment Opportunity Commission reports that it has seen only about a 3 percent increase in sexual harassment charges since the #MeToo movement began roughly a year ago. However, a more significant increase may become apparent in early 2019, after the Agency compiles its charge-filing statistics for the fiscal year that runs from October 1, 2017, through September 30, 2018.

Meanwhile, human rights agencies in several states report that they have seen dramatic increases in the number of sexual harassment charges received.

As a lawyer who represents employers, how can you best ensure that your clients minimize their risks of being targets? First, tell them not to panic. Many of the #MeToo scenarios involve CEOs or other top executives, or uniquely talented creative individuals. It’s difficult for employers to take action against individuals in these categories because they are often the lifeblood of the employer, if not the actual founders. In addition, because of their unique value, they also frequently have contracts with termination provisions that, if exercised, can be prohibitively expensive for the company. The good news is that these individuals represent a small percentage of the population of employees accused of sexual harassment.

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Whether Employee Repayment Agreements Pass Muster Under The FLSA

By Kevin S. Joyner

In an age of ever-increasing workforce transience, employers often seek ways to incentivize employees to commit to their organization through benefit programs such as relocation expenses, tuition reimbursement, sign-on and/or retention bonuses, and other monetary advances.  Employers also spend a considerable amount of time and money training new employees.  In an effort to recoup the monies advanced and costs incurred in association with efforts to attract talented workers, Employers often enter into repayment agreements with employees to recoup wages fronted to, or costs incurred on behalf of, employees.  Moreover, these repayment agreements routinely contain terms purporting to allow employers to deduct from an employee’s last paycheck upon separation.  Whether such provisions comply with the Fair Labor Standards Act (FLSA) may depend upon whether the employee is classified as exempt from the FLSA’s overtime requirements.

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Recent Court Opinions From NC COA and 4th Circuit

By Joseph S. Murray IV

Not a lot of fun cases over the past couple of months. Most of the cases presented here are about the North Carolina Human Resources Act (HRA) and turn on the minutia of the statutes and regulations. Here are the latest labor and employment cases:

Hunt v. N.C. Dep’t of Pub. Safety, No. COA17-1244 (N.C. Ct. App. June 19, 2018): This case is a reminder that state agencies can run afoul of the details of the HRA and the Administrative Procedures Act too. The genesis of this state employee grievance was whether, in the heat of an argument, Hunt said he quit to another employee, who was not his supervisor. The agency took the position that Hunt did quit, it did not have to consider any grievances on his resignation, and even if it did have to consider his grievance, his grievance was untimely.

The HRA requires an employee to provide his resignation to the “appointing authority.” In this case, that would be “the person or persons who have the power to make personnel decisions.” Since Hunt never told that person he resigned (there was contradictory evidence on whether he even said he quit), the agency’s refusal to allow Hunt to return to work was in effect a discharge. Since the agency discharged Hunt, it had to follow the HRA’s requirement to send Hunt a statement of rights of appeal and consider any appropriate grievance. Since the agency never sent the statement, Hunt’s deadline to appeal the decision was never triggered and his grievance was not barred for not being timely. The court upheld the ALJ’s ruling reinstating Hunt.

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Fourth Circuit Adopts ‘But-For’ Causation For False Claims Act Retaliation Cases

By Andrew J. Henson
Earlier this month in United States ex rel. Cody v. ManTech, Int’l, Corp., 2018 WL 3770141 (4th Cir. 2018), the Fourth Circuit determined that a “but-for” causation standard should apply to retaliation claims under the Federal False Claims Act (“FCA”). 31 U.S.C. § 3729, et seq.

The Fourth Circuit’s opinion scrutinized the FCA’s retaliation protections, which apply in part if an employee is discharged, “because of lawful acts done by the employee, . . . in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].” 31 U.S.C. § 3730(h)(1) (emphasis added). The court reviewed this statute in conjunction with two significant Supreme Court cases construing similar federal employment statutes, Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (finding “but-for” causation under the ADEA where the statute utilized the phrase “because of”), and Univ. of Texas Southwest Med. Center v. Nassar, 570 U.S. 338 (2013) (finding the phrase “on the basis of” in Title VII retaliation claims required but-for causation). Moreover, by this decision, the Fourth Circuit joins the opinions of the Seventh, Fifth, and Third Circuits on that same issue. See DiFiore v. CSL Behring, LLC, 879 F.3d 71 (3d Cir. 2018) (finding but-for causation under FCA retaliation claims); United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318 (5th Cir. 2017) (same); United States ex rel. Marshall v. Woodward, Inc., 812 F.3d 556 (7th Cir. 2015) (same).

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Works For Me Episode 1: Employment Law 101

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By Grant Osborne

The NCBA’s Labor & Employment Law Section is proud to introduce the first episode of our new podcast “Works for Me.” It couldn’t have happened without the encouragement and unflagging support of Julianne Dambro, now the NCBA Director of Communities, Ann Anderson, the chair of our Section during 2017-18, Amber Nimocks, NCBA Digital Media Manager, and many other skilled and patient people with the NCBA.

I wondered, a few years ago, why our Section hadn’t developed a podcast about employment law for the benefit of the public and attorneys who don’t practice in the field. Those of us who know the practice area know that it’s an engaging and ceaselessly evolving subject that, perhaps more than most, touches almost everyone, whether as an employer or employee. Many people wonder about how the law of the workplace actually, well, works. Podcasts provide a convenient and entertaining way to teach subjects that, whether because complex, arcane, or both, can become flat-out dull if presented in the wrong way. A podcast devoted to a captivating subject drawn from an inexhaustible supply of material, with what seemed to be a ready and wide audience, looked like a sure bet. I can’t say that no similar podcasts existed, but the space was hardly saturated. So why hadn’t our Section created one?

Now I know.

Twain said that “It usually takes me more than three weeks to prepare a good impromptu speech.” One could say the same of a podcast. Nothing about it, if you want it to be any good, is extemporaneous.

The content must be identified, developed and polished. The presenters must write, coordinate and prepare. The technicians must help the presenters sound minimally competent (a challenging task if the presenters, as in our case, are neophytes), package the content for publication (with enough production values so that it doesn’t sound like the work of dilettantes) and publish it. None of that happens without persistent and time-consuming work. With that said, our first ship has sailed, staffed by Nina Pirrotti of Garrison, Levin-Epstein, Fitzgerald & Pirrotti in Wilmington; my partner Will Oden of Ward and Smith, and me.

Our goals for Season One of the podcast are modest. We hope, first, to develop topical material that will inform and entertain; second, to present voices and perspectives that are as rich and diverse as today’s workplace; and third, to generate enough “buzz” about the podcast to create and maintain an audience that will listen to and come to rely on it as a source of insight about workplace law that they can’t readily find elsewhere. OK, maybe not that modest. So, to accomplish all that, we’ll need your help. Please tune in and let us know what you think. My email address is gbo@wardandsmith.com. Bill Nye says – accurately – that “Everyone you will ever meet knows something you don’t.” So please let us hear from you.

Can Lawyers Be Good Samaritans?

By Marc E. Gustafson

We’re all familiar with the story of the Good Samaritan. Some states even have Good Samaritan laws. But did you know that a lawyer played a prominent role in the telling of the Good Samaritan parable? I will tell you, based upon first-hand experience, that hearing a reference to a lawyer in church sure will make you sit up straight in the pew.

Before you stop reading, this isn’t a Bible story. In fact, it’s not a religious piece at all. So, don’t go back to Facebook or close your browser.

If you didn’t know, Jesus was adept at taking a question and turning it into a lesson. And as the parable about the man who stops to help the stranger goes, it wasn’t a saint or a sinner, but a lawyer that asked Jesus that prefatory question. He inquired, “What must I do to inherit eternal life?” And Jesus responded by asking in return, “What is written in the law?” and “How do you read it?”

Wait. What? The answer to eternal life is in the law? And Jesus is asking a lawyer to interpret the law? I know, I know. The law being referred to is religious law, in other words scripture, but hang in there with me. (As an aside, I would love to go back to that day, when lawyers were respected for their opinions on such important matter. But, alas, that is for another article.)

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Recent Court Opinions

By Joseph S. Murray IV

Thank you to everyone who has submitted posts during the past several weeks. Here are some of the latest opinions from the 4th Circuit and North Carolina appellate courts:

Weckesser v. Knight Enterprises S.E., LLC, No. 17-1247 (4th Cir. June 12, 2018) (unpublished): What’s in a name? When it’s a party’s name in an arbitration agreement, then it’s everything. Using South Carolina contract law, the 4th Circuit upheld the district court’s ruling that the parties never entered into an arbitration agreement since the arbitration agreement referred to defendant’s parent company.  Since there is no arbitration agreement, plaintiff’s case and purported class action alleging improper classification (and owed overtime, back pay, and treble damages) must be heard in court.

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Activate Employee Protections Before Disability Symptoms Cause ‘Bad’ Behavior

By Andrew Henson

For employees with a disability, managing symptoms can be a continual struggle. Particularly in the area of mental health and other “unseen” conditions, many employees with a disability feel torn between disclosing their disability and asking for a reasonable accommodation, or keeping quiet out of fear that they will be subjected to judgment or retaliation from supervisors or colleagues. This dilemma is often compounded by a suspicion that the employer will be unwilling to provide a reasonable accommodation in the first place. In fact, the most recent available data from the EEOC shows that reasonable accommodation complaints have been on the rise in recent years. While between 2006 and 2008, EEOC Charges in North Carolina alleging failure to provide reasonable accommodation comprised 21.4 percent of EEOC Charges under the Americans with Disabilities Act (ADA), between the years 2012 and 2014, that figure trended upwards to 34 percent.[1] However, while an employee with a disability may have a well-founded suspicion that their requests will be ignored, failure to communicate with the employer risks losing legal protections. This issue is of even greater concern where the activation of symptoms of an employee’s disability may appear to violate an employer’s personnel policies or code of conduct, such as in the case of Attention Deficit Hyperactivity Disorder (ADHD), or Tourette syndrome, to name a few.

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Can Technology End Sexual Harassment In the Workplace?

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By Natalie Sanders

The founders of Callisto, STOPit and TalkToSpot think it might.  These are three different technology tools created by people passionate about combatting issues of sexual assault and harassment.  Are your clients ready for them?

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New ERISA Disability Claims Regulations: Final Words On the Final Rule

By Norris A. Adams II
and Caitlin H. Walton

In the final installment of our three-part series on ERISA’s new disability claim-processing procedures, we will wrap up our discussion by providing a run-down of the remaining changes to the regulations. Click here to read part one and here to read part two.

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