Works For Me Episode 3: Unlawful Employee Terminations

In our third episode of “Works For Me,” our team hashes out the basics of unlawful employee termination. We’ll take on three issues, from the employer and employee sides:

  • What is at-will employment?
  • For what reasons can an employer fire someone?
  • What can do you do if you believe you’ve been fired unlawfully?

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

SCOTUS Interprets the ADEA to Apply to State Entities Regardless of Size

By Zachary Anstett

Last week the Supreme Court held in Mt. Lemmon Fire District v. Guido, No. 17-587, 2018 WL 5794639 (U.S. Nov. 6, 2018), that state and local governments are “employers” covered by the ADEA regardless of their size. The unanimous opinion authored by Justice Ginsburg affirmed the Ninth Circuit’s decision that 29 U.S.C. § 630(b)’s two sentence structure and the expression “also means” at the start of the second sentence establish separate categories of what it means to be an “employer” under the ADEA. The unanimous decision did not include Justice Kavanaugh.

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Employee Duties in the Interactive Process: Recent Opinions within the Fourth Circuit

By Andrew J. Henson

Employees with disabilities face a dilemma when a requested accommodation for their disability is denied by management. Many employees will feel demoralized or offended at the rejection of a request for an accommodation, which they believe to be medically necessary because of their physical or mental limitations. In this space, however, for employees to successfully preserve their rights under the Americans with Disabilities Act (“ADA”), employees and their counsel must be mindful of the employees’ responsibilities to engage in the interactive process before filing a lawsuit, particularly in light of an increasing number of district court opinions in the Fourth Circuit dismissing an employee’s claim where the employee was found to have caused the interactive process to break down.

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Fourth Circuit Update

By Sean F. Herrmann

The Fourth Circuit has been relatively quiet on the labor and employment front. But on October 19, 2018, through an unpublished per curium opinion, it affirmed summary judgment in an employment case — Nzabandora v. Rectors and Visitors of the University of Virginia; Commonwealth of Virginia, No. 17-2350 (4th Cir. Oct. 19, 2018). So let’s take a look at it. 

The plaintiff appealed the U.S. District Court for the Western District of Virginia’s dismissal of her disparate treatment (race), retaliation, and hostile work environment Title VII claims. The plaintiff also brought a race discrimination claim under 42 U.S.C. § 1981, but she did not argue it on appeal, so she waived it. The Court also found that she waived her retaliation claim by not briefing pretext.

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EEOC Sees #MeToo Uptick, Regulatory Agenda Released

By Robin Shea

The Equal Employment Opportunity Commission recently released preliminary figures on sexual harassment activity for Fiscal Year 2018, which ended September 30. The EEOC’s figures indicate an increase in sexual harassment charges and EEOC lawsuits, and a dramatic increase in the amount paid to settle sexual harassment charges. Then, last week, the Trump Administration issued its regulatory agenda for Fall 2018, which contains a number of labor and employment-related matters.

EEOC #MeToo uptick

The following are highlights of the EEOC’s recently released preliminary numbers on sexual harassment for Fiscal Year 2018:

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John Gresham Named 2018 Harkavy Award Winner

John Gresham is this year’s Jon Harkavy Award Winner. Last week, the Jonathan R. Harkavy Award Committee (John Doyle Jr., Michael Kornbluth, and Travis Payne) submitted this report to the Council of the Labor and Employment Section of the N.C. Bar Association:

John Gresham

The Committee developed a process to solicit nominations for the Jonathan R. Harkavy Award. An announcement went out in mid-March and a number of deserving and impressive lawyers were nominated. The nominations were circulated among the Committee members and, in early July, a conference call was convened for the members to candidly discuss the various nominees. Out of that discussion there resulted in a consensus that this year the Harkavy Award should go to John Gresham.

In at least some respects, the Harkavy Award is a recognition of a “lifetime” of achievement and service in the employment area of practice. Gresham, as most of his colleagues and friends call John, most certainly fits that criteria. John began his legal career in North Carolina in the mid-1970s, serving two years as a law clerk for United States District Court Judge James B. McMillan. He then joined the firm of Chambers Ferguson and Stein in Charlotte, where he ultimately became a partner. He stayed at that firm until 2011 when he joined the firm of Tin Fulton Walker & Owen.

Throughout his career, Gresham has focused on employment and civil rights/constitutional issues. He has litigated many cases and obtained decisions that have impacted the employment and constitutional law both nationally and within North Carolina. This includes Reed v. United Transportation Union, 488 U.S. 319 (1989), which expanded the time period in which union members could sue for violations of their rights. Perhaps of most significance for North Carolina is the decision that he obtained in Corum v. University of North Carolina, 330 N.C. 761 (1992), where our Supreme Court recognized a private right of action by citizens against government entities for violations of the rights enumerated in Article I of the Constitution of North Carolina, the Declaration of Rights.

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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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