Employers Cannot Require Coronavirus Antibody Testing, EEOC Says

By Sarah Beth Tyrey 

On June 17, the Equal Employment Opportunity Commission updated its COVID-19 guidance (scroll down to A.7) to state that employers cannot require employees to take COVID-19 antibody tests in order to return to work. Although employers are allowed to take employee temperatures and to test for current COVID-19 infection, the EEOC says that antibody testing violates the Americans with Disabilities Act.

After near shutdown of the U.S. economy in March and April, most employers have been bringing employees back to work. Some experts, eager to prevent further disruption, have suggested using serologic (antibody) testing to identify those who have had the virus and therefore may be eligible to safely return. Some companies have been marketing antibody testing programs to employers.

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Appellate Update

Joe Murray

My last appellate update was so long ago that I’ve got a lot of cases to review here. Hence I’m limiting (almost) every summary to 280 characters, Twitter style.

Wetherington v. NC Dep’t of Pub. Safety, No. COA18-1018 (N.C. Ct. App. Feb. 18, 2020) (State Personnel Act): In 2009, Patrolman loses hat, lies about it, fired. N.C. S. Ct. reverses/remands. Refired. Ct. App.: The “or” in the Wetherington test[1] is actually an “and.” Since not all four factors considered and ultimately met, reversed w/ instructions to impose lesser discipline.

Raynor v. G4S Secure Sol., No. 18-1773 (4th Cir. Feb. 26, 2020) (unpublished) (state law claims, Title VII race and retaliation): Big takeaway: district court can limit the presentation of evidence by imposing time limits at trial & decision will be reviewed under abuse of discretion standard. But courts should not set time limits as a “matter of course.” MSJ on Title VII and attorney’s fees award affirmed.

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If You Can’t Say Something Nice, Then Don’t Say Anything

By Joe Murray 

An anonymous show of hands: who has done a local TV news segment in which you and your client discuss their lawsuit? Maybe you state the employer is racist or a specific manager was a predator. Now, a second show of hands: how many have considered the potential for such a statement to lead to a defamation lawsuit against you or your client? If not, I recommend that you do.

In January 2018, Cardinal Innovations Healthcare Solutions hired Kurt Meyers and McGuireWoods to conduct an independent internal investigation into the conduct of its former CEO, Richard Topping. After Meyers presented his findings to Cardinal, it filed a lawsuit against Topping seeking the return of a severance payment. Less than two hours after filing suit, Cardinal held a press conference at which Meyers discussed his findings with the media. Meyers’ statements and presentation at the press conference essentially “mirrored” the allegations in the complaint. Topping v. Meyers, No. COA19-618, (N.C. Ct. App. Mar. 17, 2020).

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May Day in the Time of COVID-19: Signs of an Awakening

By Sean Herrmann

Today, May 1, is International Workers’ Day. Though it is overlooked in the United States, this day, also referred to as “May Day,” is a public holiday in many countries around the world. It’s a day to celebrate workers and a day for workers to demonstrate and demand more rights in the workplace.

Though many of us are currently confined to our homes, May Day feels particularly relevant amidst the COVID-19 pandemic. In the last six weeks, over 30 million people have filed for unemployment benefits. Even this staggering figure falls far short of revealing the total number of unemployed Americans. As the ship sinks, companies, by and large, are throwing workers overboard. When they do so, people are left reaching for our country’s tattered safety net, which is wholly unequipped to handle something like this.

The coronavirus is laying bare the injustice of the American workplace. On some level, it’s true that we are all in this together. The virus does not care if you are rich or poor, black or white, Christian or Muslim. It does not care if you think this is all a Deep State hoax or whether you are predicting the end of the world. Anyone can be infected.

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Labor & Employment Law Section Distinguished Practitioner and Service Award

The Distinguished Practitioner and Service Award Nominating Committee is accepting nominations from now until Friday, July 31, 2020. The Award exists to recognize an employment law practitioner for “Outstanding Service, Leadership, and/or Significant Contributions to the Development of Labor and Employment Law in North Carolina.”

The Award was first given to Jon Harkavy in 2008 and was known as the Harkavy Award until last year when Jon modestly requested that his name be removed from the award. Other former recipients of the Distinguished Practitioner and Service Award are: John J. Doyle, Jr. (2009); M. Daniel McGinn (2010); Travis Payne (2012); John W. Gresham (2018); and M. Ann Anderson (2019).

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“Misperception Discrimination”: What North Carolina Employers Need to Know

By Savannah Singletary

Assume that an employee is fired because her employer mistakenly believes she is of Middle Eastern descent. In fact, she is not. Should she be able to state a claim under Title VII? Courts are now divided about whether Title VII protects persons who are perceived to belong to a protected class, even if the employer is mistaken in that belief. While many jurisdictions allow misperception discrimination claims, others, like the Western District of North Carolina, do not.

Perceived Protected Traits in Title VII

Title VII purports to safeguard equality in seeking and retaining employment opportunities. Some courts conclude that to achieve that goal, an employer should face liability for discrimination based on a perception that an employee is a member of a protected class, although the employee is not actually in that class. However, unlike the ADA, which defines disability as being “perceived” to have an impairment, Title VII does not explicitly protect someone who is misperceived to be a member of a protected class. This apparent ambiguity has engendered disputes among jurisdictions.

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After-Acquired Evidence Could Limit State Employees’ Relief in Contested Cases

By Trey Ferguson 

Since the U.S. Supreme Court adopted the after-acquired evidence rule in McKennon v. Nashville Banner Publishing Co., employers have relied on this doctrine to limit former employees’ remedies in wrongful termination cases.

Suppose an employer terminates an employee because he is 60 years old. That discharge would clearly violate the federal Age Discrimination in Employment Act and many state fair employment practices laws. However, suppose the employer discovers six months after the termination that the 60-year-old employee embezzled $100,000 from the company. Embezzlement would be a legitimate reason for an employer to terminate an employee. Three years after the discovery of the embezzlement, the employee’s age discrimination case goes to trial. The employee argues that he is entitled to a full recovery because, after all, he was terminated because of his age. The employer argues that the employee is entitled to nothing because he is a criminal who deserved to be fired, even though the employer didn’t realize it at the time.

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Fight Hunger, Help Others in the COVID-19 Pandemic – Participate in the Legal Feeding Frenzy and Support Your Local Food Bank!

Michele Livingstone

Will Quick

By Michele Livingstone and Will Quick

Our section membership has a strong tradition of supporting and participating in pro bono and community service activities—both those planned and sponsored by the NCBA and those that you undertake on your own or with other organizations. We are in unprecedented times with COVID-19 (Coronavirus), and I am confident that each of you is doing your part.

Even in the best of times, however, over 1.5 Million North Carolinians struggle with hunger—of those nearly half a million are children. With public schools and many religious and nonprofit organizations that traditionally serve the food insecure in our communities being closed for indefinite periods and government leaders calling for social distancing to help limit the spread of Coronavirus, that need is never more pressing than now.

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DOL Implements New Joint Employer Rule

By T. Cullen Stafford 

The U.S. Department of Labor’s final rule clarifying the joint employer standard took effect on March 16. The final rule, first announced on January 12, narrows the definition of joint employment and contains several practical examples of scenarios where joint employer status would or would not exist. The rule is a positive development for employers, as it should assist employers in structuring their relationships with suppliers, contractors, and staffing agencies.


The new rule applies only to the DOL’s interpretation of the Fair Labor Standards Act, which governs federal minimum wage, overtime, hours worked, among other things. Under the FLSA, an entity can be considered a “joint employer” if it exercises sufficient control over the terms and conditions of another entity’s workers. The existence of a joint employer relationship is a frequently litigated issue in the FLSA context, as joint employers are jointly and severally liable for FLSA obligations, such as the failure to pay overtime.

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Appellate Update

By Joe Murray

The court opinions have been sparse lately, and none of them are earth shattering. But here they are:

Davis v. NC Dep’t of Health & Hum. Servs., No. COA19-449 (N.C. App. Dec. 17, 2019) (unpublished) (Human Resources Act): DHHS terminated Davis for manually lifting a patient from his wheelchair to his bed in violation of specific medical orders. While Davis’s actions provide the just cause needed for discipline, DHHS previously suspended a similarly situated employee for the same conduct. Due to the different treatment of similarly situated employees, the court of appeals upheld the ALJ’s ruling to reinstate Davis and suspend her for two days.

Brown v. Fayetteville State Univ., No. COA19-13 (N.C. App. Jan. 7, 2020) (Human Resources Act): The court of appeals holds that the after-acquired-evidence doctrine first announced in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), may be used in contested cases under the Human Resources Act. The McKennon rule does not eliminate liability; it only limits the remedy of an employee who was wrongfully discharged.

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