Editor’s note: On Oct. 31, 2016, the 4th Circuit Court of Appeals agreed to re-hear the case en banc. Oral arguments are tentatively scheduled for Jan. 24-26, 2017.
On March 4, 1789, the First United States Congress met in Federal Hall in New York City. The air was (probably) thick with dust from the street and powder from their wigs. With the ink still drying on the U.S. Constitution, the actions of that First Congress shed light on how the founders of our nation interpreted the supreme law of the land…that is, according to our U.S. Supreme Court.
The North Carolina Court of Appeals recently ruled that a police officer has a valid property and liberty interest in requiring his employer, the City of Wilmington, to comply with its own established promotional process.
When Corporal Kevin Tully of the Wilmington Police Department sat for the sergeant’s test in fall of 2011, he felt pretty good about his chances for promotion. Aside from being named “Wilmington Police Officer of the Year” for 2011 and receiving several other commendations and awards, Corporal Tully is also an avid student of police policy and procedure, and the United States Constitution. He is often the guy that other officers go to with questions about the finer points of Fourth Amendment search and seizure law. After taking the test, Corporal Tully felt even better, feeling certain that he had answered most of the questions correctly. And so it was quite a shock when Corporal Tully was informed that he had failed the test. He asked for copies of the answers, as he is entitled to do under WPD policy. Upon receipt of the answer key, Corporal Tully immediately realized that the answer key was wrong – and that the so-called “correct answers” on questions related to Fourth Amendment search and seizure issues were actually based on outdated law.
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Last week the U.S. Court of Appeals for the 9th Circuit held that whether or not a contract should be arbitrated was a question to be decided by an arbitrator, not a judge. In Mohamed v. Uber Technologies, 15-16178 (9th Cir. Sept. 7, 2016), the circuit court used scathing language in reversing the district court, which had held that the issue of arbitrability was properly before the district court and went on to determine that the arbitration clause at issue was unconscionable.
This case originated in 2015 in the U.S. District Court for the Northern District of California, where a number of Uber drivers filed a class action against Uber and a few other companies, alleging violations of the Fair Credit Reporting Act, the Massachusetts Consumer Credit Reporting Act, and the California Consumer Credit Reporting Agencies Act, for improperly using consumer credit information to effectively terminate the plaintiffs’ ability to work for Uber.
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Retaliation, which finds its way into nearly 45 percent of all charges filed nationwide, remains the most prevalent bias allegation to come across the desk at the EEOC. This has the EEOC’s attention. On Aug. 29, 2016, it issued its Enforcement Guidance on Retaliation and Related Issues, laying out its most recent interpretation of the law on this topic. The guidance addresses retaliation under Title VII and all other federal anti-discrimination laws.
Recently, in Calobrisi v. Booz Allen Hamilton, Inc, No. 15-1331 (4th Cir. Aug. 23, 2016), the U.S. 4th Circuit Court of Appeals specified certain types of evidence that district courts must, at a minimum, consider when ruling on summary judgment motions. It held that the trial court erred when it granted summary judgment, in part, to the employer in an age and gender discrimination and retaliation case. This decision will impact practitioners and district court judges alike.
In partially reversing the district court’s decision, the 4th Circuit first noted that the lower court did not “individually analyze each piece of other employee evidence.” Specifically, the appellant-plaintiff, a then age 55-year-old female, submitted testimony from seven other “middle-aged women,” who stated that they experienced adverse actions at the workplace similar to those alleged by the plaintiff. The district court, in one sentence, determined that the plaintiff’s “me-too” evidence would not be admissible at trial and, accordingly, did not consider it when ruling on the summary judgment motion.
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Noncompetition agreements (“non-competes”) present thorny issues. In most cases, you have a former employee who has signed a black-and-white contract prohibiting him or her from engaging in certain employment, and the employee goes and does the one thing that the contract specifically prohibits. Not that long ago, most judges would view the matter purely as a contract issue, and once an employee’s attorney admitted that yes, that was the client’s signature on the agreement, they did not want to hear much else, with visible disinterest giving way to agitation the longer the argument proceeded.
On rare occasions, if the employee could present special circumstances, the trial courts would do more than pay lip service to the maxims like “noncompetes are strongly disfavored in North Carolina.” Was the territory much more expansive than where the employee actually operated? Was this really a lower-level employee, with the noncompete designed to keep the employee hostage rather than protecting legitimate employer interests?
EEOC has implemented new procedures to be followed in all of our offices for the submission and release of position statements. The procedures apply to EEOC requests for position statements to employers made after Jan. 1, 2016. The purpose of the new procedures is to advance investigations by facilitating more pertinent information from both parties, including a response from the charging party.
An effective position statement is clear, concise, complete and responsive. EEOC recommends these practices for employers:
Submit position statements that are fact-based and thorough;
Ensure that the position statement focuses on the allegations in the charge;
Provide relevant documentation, evidence, and/or information that supports the employer’s position;
Segregate confidential information in attachments, including personally identifiable information, sensitive medical information, confidential financial information, etc.
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As I was preparing my first comments as chair, this tune kept coming to my mind. “To everything – turn, turn, turn – there is a season – turn, turn, turn.” Maybe it’s because the summer is ending and the kids are going back to school. Or maybe it’s because it’s blueberry season in the mountains, and going blueberry picking with my family always marks the end of summer and beginning of fall. It could be because during this election season, I’ve too often thought of the lines “a time for love, a time for hate, a time for peace, I swear it’s not too late.” Either way, it’s time to welcome everyone to the new bar year for the Labor & Employment Section, and it’s my turn to be our chair.
I’m very excited and honored to serve as chair of the Labor & Employment Section this year. It was my pleasure working closely with our immediate past chair, Grant Osborne, over the past year, and I am grateful to have the assistance of our section’s new officers, Vice Chair Margaret Manos, Secretary Michael Kornbluth, and Treasurer Melanie Tuttle, and committee leadership this year. We have big plans for our section this year, and I would like to use this comment as an opportunity to let you know about some changes we have made to the section’s newsletter, the wonderful lineup for the annual CLE and social events planned for this October in Asheville, and the push to develop podcasts for our section.
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Ulysses Everett McGill (previously imprisoned for practicing law without a license and about to be hanged): “It ain’t the law!”
Sheriff Cooley: “The law? The law is a human institution.”
— “Oh Brother, Where Art Thou?” (Joel and Ethan Coen, 2001)
How much time have you spent reading Chapter 84 of the North Carolina General Statutes on “Attorneys-at-Law”? Probably not much, which is a little surprising considering that it defines what it means to engage in the “practice [of] law” in North Carolina and regulates what we do for a living. Most attorneys in North Carolina (including your humble author until he wrote this) have probably spent more time monitoring updates on LinkedIn and Facebook than they have engaging in study of the statutes that, until recently, gave us in North Carolina a virtual monopoly over the rendition of legal services. The General Assembly and our Governor, however, have recently amended what it means to engage in the “practice [of] law.” Those amendments warrant attention.
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Collaborative practice is a relatively new alternative dispute resolution process which has been adopted by family law practitioners throughout the United States and in many other countries. Collaborative law practice was developed in 1990 by a Minnesota family law attorney, Stuart Webb, who proposed this new dispute resolution practice to the Honorable A. M. Keith, Justice of the Minnesota Supreme Court. Webb believed that good lawyering, which he defined as “the analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement” was often missing in early mediation. Webb sought to create a settlement climate replicating the way some of his cases had naturally settled:
We find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where the dynamics were such that in a climate of positive energy, creative alternatives were presented. In that context, everyone contributed to a final settlement that satisfied all concerned—and everyone left the conference feeling high energy, good feelings and satisfaction. More than likely, the possibility for a change in the way the parties related to each other in the future may have greatly increased. As a result, the lawyers may also develop a degree of trust between them that might make future dealings more productive.
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Editor’s note: On Oct. 31, 2016, the 4th Circuit Court of Appeals agreed to re-hear the case en banc. Oral arguments are tentatively scheduled for Jan. 24-26, 2017.
