Works For Me, Episode 2: Independent Contractor or Employee? The $64K Question

By Nina Pirrotti, Will Oden and Grant Osborne

In our second episode of “Works For Me,” our team dives into a crucial understanding of employment law: the difference between independent contractors and employees.
We’ll take on three questions:

  • What is an employee?
  • What is an independent contractor?
  • Why does it matter?

Please tune in and let us know what you think. You can email Grant at gbo@wardandsmith.com.

Employment Litigators as Peacemakers

By Tara Muller

Employment litigators see a broad range of legal disputes, from sexual harassment to discrimination to breach of contract. They valiantly fight for their clients, gain subject matter expertise, and ultimately become trusted advocates in the fight to achieve justice. But even more importantly? From the trenches, they gain invaluable insight into the inner workings of the office, plant, factory, or farm. They see it all—from shoddy workplace policy enforcement to nasty bosses to smoke break brawls. Can those zealous advocates use their unique, birds-eye view of conflict in the workplace to help out before suit is filed? Or will they just be peacemaking themselves out of a job?

Having observed workplace conflict as a litigator and mediator for nearly 20 years, I believe it is possible, and maybe even lucrative, for litigators to advocate for their clients outside the courtroom. As any employment mediator will tell you, most workplace conflict stems from improper risk avoidance techniques. Sure, some recent SCOTUS cases weaken collective bargaining and restrict certain types of lawsuits, but workplace anger nevertheless will continue to boil over until someone addresses the underlying hostility—today’s workers, often for good reason, feel oppressed, ignored, and powerless. Employment litigators empower both workers and employers by providing them a voice—but those litigators need not wait until suit is filed to get involved.

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Fourth Circuit Reaffirms Scope of Retaliation Protections in Title VII Opinion

By Andrew Henson

In the recent opinion Strothers v. City of Laurel, Maryland, 895 F.3d 317, (4th Cir. 2018), the Fourth Circuit gave further articulation to the type of facts which can permit a retaliation claim under Title VII to survive summary judgment, particularly what can pass under the “severe or pervasive” prong of a complaint of hostile work environment which caused the subsequent retaliation. In that case, Strothers, a black woman, was hired as an administrative assistant to work for the City of Laurel, Maryland. Soon after her hiring, Strothers found herself subjected to meticulous scrutiny by Koubek, her white supervisor, who chided her about aspects of the dress code (including an allegation that she grabbed at Strothers’ pants), required reporting of bathroom breaks, and changed the time that Strothers needed to report to work from 9:05 a.m. to 8:55 a.m. and reported on Strothers for minor instances of tardiness. After Strothers made a complaint about the foregoing “harassment” she received from Koubek, she was terminated the following day.

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The Sound of Silence: Another Look At Witness-Silence Agreements

By Kevin P. Murphy

The ethical pitfalls of non-disclosure agreements have received renewed attention in the wake of the #MeToo movement. Less frequently discussed — but equally problematic for prosecuting sexual harassment and other employment cases — are agreements that prohibit individuals from serving as witnesses in other cases. As Paul Simon (or, depending on your musical sensibilities, perhaps Disturbed) would tell you, “silence like a cancer grows.” Not only is a defendant able to avoid liability for conduct with the settling party, but the defendant may be able to frustrate other attempts to hold it accountable by depriving other plaintiffs of evidence and testimony of previous acts of assault, harassment, discrimination, etc. The next plaintiff is left to walk alone.

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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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