Appellate Update

By Joe Murray

It’s our semi-regular roundup of appellate decisions, with two non-appellate highlights at the end.

McCaffery v. Chapman, No. 17-2198 (4th Cir. April 9, 2019) (1st Amendment): Why does anyone want to be a sheriff’s deputy? It seems to have all the negatives of being a government employee with even fewer benefits. McCaffrey supported Sheriff Chapman’s political opponent during an election campaign. After Sheriff Chapman won, he did not reappoint McCaffrey as a deputy sheriff. McCaffrey sued, alleging that Sheriff Chapman’s failure to reappoint him violated his First Amendment rights to freedom of political association and speech. The 4th Circuit upheld the dismissal of McCaffrey’s political association claim based on the Elrod-Branti doctrine, which allows public officials to terminate public employees who meet certain criteria for supporting a political opponent. The court easily dismissed McCaffery’s Pickering-Connick retaliation (political speech) claim since once the Elrod-Branti doctrine applied “the Pickering balance generally tips in favor of the government because of its overriding interest in ensuring an elected official’s ability to implement his policies through his subordinates.”

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Nothing To Croak About: Westmoreland v. TWC

By Sean F. Herrmann

Judge Niemeyer’s fiery dissent in Westmoreland v. TWC Admin. LLC, No. 18-1600 (4th Cir. May 22, 2019) has people talking more than the typical employment discrimination case. In it, Judge Niemeyer proclaims:

Congress would croak to learn that the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., would entitle an employee to recover in the circumstances of this case. I too croak, in harmony.

So what’s all the fuss about? When boiled down, this decision isn’t groundbreaking. It doesn’t create any new law and should be relatively uncontroversial.

The Circuit upheld a jury verdict for Glenda Westmoreland in her ADEA lawsuit against Time Warner Cable. Westmoreland easily established her prima facie case. First, at the time of Westmoreland’s termination, she was 61-years-old and in a protected class under the ADEA. Second, she was qualified for her job and meeting her employer’s legitimate expectations. During her three decades with the company, she had only two infractions before the event that allegedly led to her termination. Third, TWC fired her and, thus, there was an adverse employment action. Finally, TWC replaced her with a 37-year-old employee.

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NLRB General Counsel Says Uber Drivers Aren’t ‘Employees’ For Labor Law Purposes

By Robin Shea

Last week, the General Counsel of the National Labor Relations Board publicly released an Advice Memorandum saying that Uber drivers are not “employees” with protections under the National Labor Relations Act.

The memorandum, issued on April 16, indicates possibly tougher times for all workers in the gig economy.

The General Counsel concluded that Uber drivers operating under the arrangements in place during most of 2015 and part of 2016 were independent contractors, not employees, which means that they had no rights under the NLRA.

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Collaborative Training In Asheville June 19-20

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The NCBA has offered six basic training courses in Collaborative Law Practice in the past, and is offering the next one June 19-20  in Asheville. Click here to view the brochure with all the details and to register.

Collaborative Practice Training
Wednesday-Thursday, June 19-20, 2019
Renaissance Asheville Hotel

This 14-hour training is for any lawyer who wishes to add the collaborative approach to their practice, whether they are family lawyers or other civil lawyers, including those practicing in the areas of construction, employment, small business, probate, as well as general litigation. Because collaborative law is practiced entirely out of court, it is not necessary to have training or experience as a litigator to become a collaborative lawyer.

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How Not to Terminate an Employee

By Joe Murray

I don’t know if Waste Connections, Inc. (WCI) discriminated against Jimmy Haynes when it terminated him in October 2015, but I do know that it did just about everything wrong from an HR standpoint. Because Haynes had to use the McDonnell-Douglas framework to prove his case, those mistakes allowed the 4th Circuit to reverse an award of summary judgment in favor of WCI. Haynes v. Waste Connections, Inc., No. 17-2431 (4th Cir. April 23, 2019).[1] Ultimately, the 4th Circuit found that Haynes proffered sufficient evidence to identify a comparator employee, that he was performing at a satisfactory level, and that WCI’s reason for termination was pretext.

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Compensation Data Reporting In EEO-1 Reports: The Saga Continues

By Robin Shea

Employers should start gathering their 2018 compensation information if they haven’t already.

My last post covered the court decision issued on March 4 in the case of National Women’s Law Center v. Office of Management and Budget, which directed the Equal Employment Opportunity Commission to require employers to submit compensation data with their annual EEO-1 reports.

The requirement was imposed in 2016 during the Obama Administration, but in 2017, the Trump OMB suspended the requirement before it was to take effect. The plaintiffs in the lawsuit claimed that the OMB suspension was unlawful, and U.S. District Court Judge Tanya Chutkan of the District of Columbia agreed.

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Appellate Update

By Joe Murray

Here are the 4th Circuit and North Carolina Court of Appeals’ latest employment law decisions.

Gomez v. Haystax Technology, Inc., No. 17-2360 (4th Cir. March 5, 2019) (unpublished) (ADA, FMLA, Title VII, ADEA): Defendants, who are private government contractors, hired Gomez in May 2013 to work on various government contracts. During the course of her employment, Gomez was moved to different contracts and locations as defendants lost and won contracts. Also during her employment, Gomez underwent two hip surgeries. In February 2016, defendants lost the contract Gomez was assigned to. As she was not assigned to a contract, Gomez had to find another position with the defendants to remain employed. Defendants terminated her when she failed to obtain another position. Gomez filed suit against defendants alleging (1) disability discrimination in violation of the ADA; (2) sex discrimination in violation of Title VII; (3) age discrimination in violation of the ADEA; and (4) FMLA retaliation. The district court granted summary judgment on Gomez’s claims, and the 4th Circuit upheld the award. [1] On appeal, the issue before the court was whether Gomez had presented evidence that defendants’ reason for termination—the loss of the contract—was pretext. Gomez first alleged that defendants provided shifting justifications for her termination; the 4th Circuit found these alleged shifting justifications were not presented as justifications for the termination but for why Gomez was not transferred to open positions. Next, Gomez alleged that defendants provided inconsistent statements on the positions available to her prior to her termination; the court easily dismissed this allegation by pointing out that Gomez presented testimony out of context to support her case. Finally, Gomez tried to argue that defendants internally transferred some employees without requiring them to apply for open positions; the court rejected Gomez’s contention by showing the alleged comparator employees or situations were different in meaningful ways. Since Gomez could not support her pretext argument, the 4th Circuit upheld summary judgment.

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Submit Nominations For the Labor & Employment Law Harkavy Award

The Jonathan R. Harkavy Award Committee is accepting nominations from now until Friday, May 31. The Harkavy Award exists to recognize an individual for “Outstanding Service, Leadership, and/or Significant Contributions to the Development of Labor and Employment Law in North Carolina.” After completing the nomination form, please submit it, along with any other materials you want the Committee to consider, to Elizabeth Hodges.

Pay ’Em Like Beckham: US Soccer Lawsuit Pushes Gender Discrimination in Athletics to the Forefront

By Sean F. Herrmann

Gender discrimination in international team sports has long been a fraught issue, and US soccer is no exception. The US Senior Men’s National Soccer Team (“MNT”) hasn’t exactly been setting the world on fire. The MNT didn’t even qualify for the most recent World Cup. Yet, year after year, and decade after decade at this point, US soccer enthusiasts promise that the time for men’s soccer in this country lies just ahead. And it remains just ahead. This isn’t changing any time soon.

Meanwhile, the US Women’s National Soccer Team (“WNT”) is in an entirely different place. US women’s soccer has been globally dominant for some time. The WNT won the World Cup in 1991, 1999, and 2015. During that same time period, it never finished worse than third, and was the runner-up in 2011. Moreover, WNT players frequently become media sensations and legitimate stars. Many recognize names like Abby Wambach, Alex Morgan, Hope Solo, Brandi Chastain, and Mia Hamm. Famous US male soccer stars are much more rare.

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Testing Well: Holding Drug Testers Accountable for False Positives

By Kevin P. Murphy

North Carolina law imposes stringent requirements on employee drug testing. But courts have long held that employers who fire employees on the basis of false positives are not liable for the employees’ harms and losses. Last week, the South Carolina Supreme Court changed all that. The Court held that laboratories owe a duty of reasonable care to the employees they are testing. Shaw v. Psychemedics Corp., No. 2017-002538 (S.C. Mar. 20, 2019). Now, wronged employees can recover directly from the labs who got them fired.

The Court recognized that these labs should be aware of the harm they cause employees by wrongly reporting positive test results. The Court agreed that these labs need to be incentives to take precautions aimed at eliminating false positives. Under pre-existing South Carolina law a wrongdoer is liable for harm to a third party arising out of his contract with another party, despite the absence of any contract between the wrongdoer and his victim.

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