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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Appellate Case Roundup

By Joe Murray

It’s our semi-regular roundup of appellate decisions:

Dawson-Murdock v. National Counseling Group, Inc., No. 18-1989 (4th Cir. July 24, 2019) (ERISA): National Counseling Group (NCG) made a nifty argument to get this case dismissed at the district court level: Despite the summary plan document stating NCG was the plan administrator and a named fiduciary of the group life insurance plan, NCG argued it was not a fiduciary for the purposes of plaintiff’s ERISA claims. The 4th Circuit found this argument unpersuasive and, while not quite a bench slap,[i] used terms like “logic” and “common-sensical understanding” to find that a plaintiff is “not required to allege that the plan administrator and named fiduciary also satisfies the functional fiduciary test in order to state a plausible fiduciary breach.” Once the 4th Circuit found that NCG was a plan administrator and fiduciary, it had no problem finding that plaintiff’s two claims against NCG could proceed.

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Timing may not be everything, but it’s definitely something with Title VII claims

By Zack Anstett

In a published opinion filed August 27, 2019, U.S. Circuit Court Judge A. Marvin Quattlebaum of the Fourth Circuit affirmed the District Court’s grant of summary judgment brought under Title VII. Judge Quattlebaum’s decision in Perkins v. International Paper Company is another feather in the defense attorney’s cap and illustrates the importance of timely filing at the EEOC and how the Fourth Circuit continues to cling to the adage that “Title VII is not a general civility code.” Specifically, Perkins alleged race discrimination and brought claims for disparate treatment, hostile work environment, constructive discharge, and retaliation.

 

Allegations
According to the lawsuit, Perkins, a black male, was hired in 1984 as a technician at the Eastover Paper Mill until he retired in 2014. An important interjection of procedural history is that Perkins did not file with the EEOC until January 8, 2015, which put a time bar on any allegation of deliberate discrimination that occurred more than 300 days before (March 14, 2014). The Fourth Circuit consolidated Perkins’ allegations into three categories: (1) mistreatment in various ways compared to white employees; (2) improper denials of requests for promotions; and (3) racially offensive conduct and statements at work.

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Oral argument scheduled in hospital-physician “unfair trade” case

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By Tara Muller

Heads up, North Carolina hospitals and doctors! On Wednesday, September 30, the North Carolina Supreme Court will hear oral argument in Hamlet v. Hernandez. The Court’s decision may have a significant impact on the way physicians work and negotiate with hospitals in North Carolina, and could have ripple effects extending to employment practices in other industries.

Background

A hospital system hired Dr. Pedro Hernandez as an independent contractor and gave him hospital privileges. The contract had a 36-month term and provided that Dr. Hernandez could choose to become an employee of the hospital 18 months into the contract term.

When his private practice failed, Dr. Hernandez tried to exercise his option to be hired as an employee. The hospital did not send him a new contract of employment but apparently believed that his original agreement encompassed the “employment” option. However, Dr. Hernandez began looking for work elsewhere and shut down his practice more than a year before the end of his contract period with the hospital.

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Texas v. EEOC: Sound and Fury Signifying Nothing?

By Joe Murray

On Aug. 6, 2019, the 5th Circuit rocked the EEOC by permanently enjoining the use of the 2012 EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“Conviction Guidance”) as binding in any respect. Texas v. EEOC, 2019 U.S. App. LEXIS 23498 (5th Cir. Aug. 6, 2019). While at first glance this opinion appears significant—and some commentators have positioned this case as a win for employers, does this injunction really matter outside of Texas or the 5th Circuit?

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Enduring Tedium: The Future of Fights Over Electronically Stored Information

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By Sean F. Herrmann

“Seeking justice often involves enduring tedium.” It’s fitting that North Carolina’s first substantive legal decision on eDiscovery begins with this pithy observation. Employment litigators often lament the virtual hellscape of discovering electronically stored information (“ESI”). But the era when paper was king is long dead, and the fight is now firmly in the cyber world of custodians, native formats, and keyword searches.

For those in federal court, at least rules and precedent exist to help guide them through the dark ESI forest (especially those that find themselves before Chief Judge Frank Whitney in the Western District of North Carolina). North Carolina state court practitioners haven’t been so lucky. That is until this week. On Aug. 6, 2019, the North Carolina Court of Appeals issued its first substantive decision on ESI in Crosmun v. Trustees of Fayetteville Technical Cmty. Coll. (No. COA18-1054). Judge Lucy Inman, who authored the opinion, put it well: “This appeal presents this Court with our first opportunity to address the contours of eDiscovery within the context of North Carolina common and statutory law regarding the attorney-client privilege and work-product doctrine.” The Court ultimately reversed the trial court’s order granting Plaintiffs’ forensic expert direct access to Defendants’ ESI, but the way the Court got there and its recommendations on remand are far more important than the holding itself.

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Court Decision Highlights Importance of ADA ‘Interactive Process’

By Zachary Anstett

In an order filed July 18, U.S. District Court Judge Louise Flanagan of the Eastern District of North Carolina refused to dismiss a lawsuit brought under the Americans with Disabilities Act for failure to make reasonable accommodations. Judge Flanagan’s decision in Murphy v. County of New Hanover illustrates how important it is for employers to engage in the “interactive process” under the ADA and to continue with that process even if the first attempt at accommodation is unsuccessful.

Allegations

According to his lawsuit, Mr. Murphy was hired as a social worker in the foster care unit at the New Hanover County Department of Social Services in 2016, with the primary function of reunifying families. Mr. Murphy had Attention Deficit and Hyperactivity Disorder, which made it difficult for him to focus, concentrate, communicate, and work with others. Mr. Murphy alleged that he had no problem performing his “reunification” duties but that his ADHD made it difficult for him to complete his required paperwork unless he was in a setting without distractions.

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Appellate Case Roundup

By Joe Murray

The appellate courts have been busy this summer. Unfortunately, none of the opinions are very enjoyable to read—unless you love technical opinions on ERISA, SOX, and the MSPB.

Pense v. MD Dep’t of Public Safety, No. 18-1554 (4th Cir. June 11, 2019) (11th Amendment): Just a reminder when bringing claims under state law against a state in federal court: a state can only waive its 11th Amendment immunity “by the most express language or by such overwhelming implication from the [statutory] text.” Pense’s claims alleging sexual orientation discrimination under Maryland’s FEPA are dismissed.

Northrop Grumman Systems Corp. v. US Department of Labor, No. 17-1811 (4th Cir. June 13, 2019) (SOX): The 4th Circuit makes it clear to DOL that SOX whistleblower protection is limited to six specific areas and is not a catchall retaliation provision. The 4th Circuit reversed the DOL’s judgment,[1] finding that an employee arbitration policy is not shareholder fraud and, even if it could be shareholder fraud, there was no objective reason to believe this particular arbitration clause constituted a violation of SOX.

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Keep Out: NLRB Allows Further Restrictions of Union Access to Employers’ Property

By George J. “Jerry” Oliver

In a June 14, 2019, decision, the National Labor Relations Board clarified whether an employer may limit non-employee union organizers from entering the employer’s private property. UPMC and SEIU, 368 NLRB No. 2. In doing so, the NLRB overruled a precedent held for nearly four decades that allowed non-employee union organizers to enter public spaces on an employer’s private property to convene with employees during union organizing activity. Employers may now prohibit non-employee union representatives’ access to the employer’s private property, including public spaces.

In February 2013, two non-employee union representatives met with a group of hospital employees in the cafeteria of the UPMC Presbyterian Hospital (“hospital”) in Pittsburgh, Pennsylvania, to discuss union organizational campaign matters and distribute union-related materials. The hospital permitted only patients, their families and visitors, and employees to use the cafeteria. Hospital security received two complaints about the presence of the un-permitted non-employee union representatives and following hospital protocol, security asked the union representatives to leave the hospital. When the union representatives refused to leave, hospital security requested the assistance of the police to escort the union representatives from the hospital. The union representatives subsequently filed charges alleging unfair labor practices against the hospital, arguing their presence for the purpose of solicitation and promotional activities is permitted in the hospital cafeteria, as the cafeteria is a public space.

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Book Review: The Life and Times Of a Union Organizer At a Tennessee Textile Mill

By Jonathan Harkavy

The Jackson Project
By Phil Cohen
The University of Tennessee Press, 2016

Phil Cohen’s memoir of his days as a union organizer at a troubled southern textile mill is a worthwhile read for any audience. The book’s subtitle, “War in the American Workplace,” is a pithy summary of the author’s main point about unionization in our country. Mr. Cohen traces a tortuous and (spoiler alert) ultimately unsuccessful battle to save the jobs and preserve the dignity of hundreds of mill workers in Jackson, Tennessee. On a deeper level, the book portrays Mr. Cohen’s own struggle to juggle his many roles as a relentless proponent of workplace justice, a trusted confidant of the workers he represents, an effective adversary of mill owners and management, a faithful employee of the Amalgamated Clothing and Textile Workers Union, and – not incidentally at all – a loving father to his pre-school daughter.

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