To Protect and Serve . . . and Make a Living: Court Rules Moonlighting Police Officers Are Employees At Second Jobs

By Kevin Murphy

Last week, the U.S. Court of Appeals for the Sixth Circuit recognized that “the way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past.” Acosta v. Off Duty Police Services, Inc., Nos. 17-5995/6071 (6th Cir.  Feb. 12, 2019). Many companies now seek to classify their employees as independent contractors in order to avoid providing them overtime, health insurance, workers’ compensation protections, unemployment benefits, and even minimum wage and social security contributions. In 2017, the Trump Administration reversed Obama-era rules combatting this trend, signaling that the current Department of Labor would throttle back on investigation and enforcement of the Fair Labor Standards Act when it came to misclassified employees. The Fair Labor Standards Act is the federal law that requires employers to pay their employees minimum wage and overtime.

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Top 5 Federal L&E Developments From the Past Year

By Robin E. Shea

With many of President Trump’s agency nominations being held up in the Senate, followed by the longest government shutdown in history, it’s been a relatively quiet year for labor and employment law at the federal level. Nonetheless, here are my picks for the most significant developments of the past year.

No. 1: #MeToo. Although a little of the furor seems to be dying down, the #MeToo movement had a big impact on employment law in 2018. The Equal Employment Opportunity Commission reported an almost 13 percent increase in charges alleging sexual harassment in Fiscal Year 2018, which ended September 30, 2018. Now that the agency is back up and running, it will be interesting to see what happens in FY 2019. Although North Carolina has not yet followed the nationwide trend of banning non-disclosure provisions in sexual harassment settlements or mandating employee harassment training, many employers here are already voluntarily adjusting their policies, procedures, and training.

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Artificial Intelligence In Hiring: Do the Risks Outweigh the Advantages?

By Charles Smith

With the increasingly competitive workforce, employers are searching for ways to efficiently hire quality candidates.  One method employers use to lower costs and simultaneously increase efficiency is the use of Artificial Intelligence (AI) to assist with the tedious job of searching through countless resumes.  While AI undoubtedly offers significant advantages to employers, there are also many risks.   The “pre-existing real-world data” that the AI system relies on for training can be one source of these risks.  “[Al]though an AI system itself does not have any biases, the information humans choose to use in the system may be biased.”  The full effects of AI in the hiring process have yet to be seen; accordingly, employers need to take steps to ensure they do not expose themselves to liability while implementing this new technology.

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Procedure Matters: Fourth Circuit Holds 180-Day Waiting Period for Federal Employees to File Suit is Not Jurisdictional

By Zachary Anstett

In a published opinion on January 8, 2019, the Fourth Circuit concluded that Section 2000e-16(c), which applies to federal government workers, is not a jurisdictional requirement. The 180-day waiting period is instead a prudential prerequisite to suit. Because of the Court’s holding, employers will need to use Rule 12(b)(6) when claiming that the plaintiff failed to wait the required 180 days.

This case, Stewart v. Iancu, 17-1815, 2019 WL 122868 (4th Cir. Jan. 8, 2019), involved a federal employee alleging, among other things, disability discrimination, retaliation, and hostile work environment under the Rehabilitation Act and Title VII. The panel, consisting of Chief Judge Gregory and Judges Wynn and Motz, reversed the District Court and remanded for further proceedings.

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Is Every Vice President a Fiduciary?

By Joe Murray

Charlotte is a banking town, and in banking towns, everyone’s a vice president. If you work for a bank, brokerage firm, or other financial institution for a couple of years, you’ll make VP, even if your duties, management responsibilities, and pay don’t change. Dunn, Andrew, Your Charlotte bank VP title doesn’t really mean much, Charlotte Agenda, Nov. 19, 2015. This VP title creep has moved into other industries, devaluing what it means to be VP. Schumpeter, Too many chiefs, The Economist, Jun. 24, 2010.

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Appellate Update — and a Happy New Year

By Joe Murray

For the last post of the year, I’m doing my normal case roundup. It’s been several months since I last posted — thank you to everyone who submitted posts this fall! — so this is a long one. I’ve inserted which laws are addressed in each case if you’re looking for something specific. Finally, I wish everyone Happy Holidays and a great New Year.

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Employer Confidentiality Policy Yields to Title VII’s Participation Clause in Recent Fourth Circuit Opinion

By Joseph E. Hjelt

Employees who face discriminatory treatment at work are often faced with the dilemma of how to substantiate their claims, and how to guard against the risk that their employer will hide or destroy evidence. Frequently, employees choose to take possession of substantiating evidence by forwarding emails to their personal address, or by making copies of documents which would otherwise remain internal. In doing so, employees sometimes violate employer policies governing confidential and proprietary information. On other occasions, these actions violate the law. The Fourth Circuit’s recent opinion in Netter v. Barnes, No. 18-1039, 2018 U.S. App. LEXIS 32358, (4th Cir. Nov. 15, 2018), establishes that employees who violate internal confidentiality policies in the furtherance of a Title VII investigation are protected by the “participation clause” of the statute’s retaliation provision, while those who break the law while doing the same are not.

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The Office Christmas Party: Conundrums and Caveats

By William Joseph Austin Jr.

There, in the very title of this article is the first and fundamental conundrum—can we, should we, call it a “Christmas party”?  Boldly, I say yes.  There is certainly a school of thought that, for the sake of inclusiveness and sensitivity to diversity, would rename the event generically and perhaps even put it off until bleak January.  However, that certain feast celebrated shortly after the Winter Solstice has been known as “Christmas” for centuries, and the word pervades culture and commerce from some point in time soon after Halloween until on or about the feast of the Epiphany.  The “Christmas party” to many is that “one crowded hour of glorious life,” which the poet says “is worth an age without a name,” aka the otherwise nameless, uninspiring “holiday party.”

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District Court Holds that Pregnancy Fits Within the NCEEPA’s Prohibition of “Sex” Discrimination

By Sean F. Herrmann

In 1983, the North Carolina Supreme Court decided N.C Dept. of Corrections v. Gibson, 308 N.C. 131 (1983). Gibson frequently appears in wrongful discharge in violation of North Carolina public policy (“WDPP”) briefs, especially when the plaintiffs’ claims rely on the North Carolina Equal Employment Practices Act (“NCEEPA”) for their underlying public policy. Gibson adopted Title VII of the Civil Rights Act of 1964’s “evidentiary standards and principles of law insofar as they are not in conflict with [North Carolina]’s statutes and case law.” Attorneys almost always cite Gibson for the “evidentiary standards” bit—they are about to fill ten pages with McDonnell Douglas burden shifting analysis and need a reason for doing so. The “principles of law” language often goes untouched.     

But that wasn’t the case in Stasinopoulous v. L.M. Sandler & Sons, Inc. et al, 5:18-cv-245, where the United States District Court for the Eastern District of North Carolina looked to federal principles of law and held that pregnancy-based discrimination qualifies as sex-based discrimination under the NCEEPA.

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Will the Supreme Court Take Up LGBT Rights Under Title VII?

By Robin Shea

According to news reports, the U.S. Supreme Court will soon consider, and hopefully decide, whether to review lower court decisions addressing whether sexual orientation and gender identity discrimination violate Title VII of the Civil Rights Act of 1964.

Virtually everyone agrees that in 1964, when Title VII was enacted, no one thought “sex” meant anything other than biological males and biological females. However, interpretations of the word “sex” have obviously changed since 1964.

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