Congratulations To Phebe Kirby, 2017 Paralegal Division Member Scholarship Winner


The Paralegal Member Scholarship Essay topic this year was “What are the benefits of being involved in paralegal associations?” The winning submission is courtesy of Paralegal Division Member Phebe Kirby. The Paralegal Division Member Scholarship provides an award of a Paralegal Division membership, a section membership, registration for the 2018 Paralegal Division Annual Meeting and Seminar, a CLE/CPE Passport to attend eligible programs tuition free, and up to $100 travel expense reimbursement (total value of approximately $800).

What are the benefits of being involved in paralegal associations?

I have been a paralegal for over five years now and I must say that I do love my job. However, a few months ago, I was struggling with two estate files, and it was beginning to cause me a lot of undue stress. Normally, I am able to leave at five and I don’t have an issue with working overtime or bringing my work home with me. But with these two estates files, I was pondering my dilemma at home, thinking about the issues constantly and talking about it to my husband until he frankly was bored. I am not sure why I struggled so much. We don’t do estates in my office, and I let the whole situation become overwhelming to the point that I was not sure what to do.

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Fifth Circuit: Employers Liable for Emotional Distress Damages in FLSA Retaliation Claims


By Michael B. Cohen

Beyond requiring that employers comply with statutory minimum and overtime wage provisions for nonexempt employees, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., renders it unlawful for employers to retaliate against employees for asserting their rights under the law.  Employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].”  29 U.S.C. § 215(a)(3).  Retaliation claims under this section generally require the performance of a “protected activity” by an employee, such as filing a complaint, a subsequent “adverse action” by an employer, such as terminating or demoting an employee, and a “causal connection” between the protected activity and the adverse action.  It is well established that employers who violate the anti-retaliation provisions of § 215(a)(3) may be liable for legal and equitable relief under § 216(b), including reinstatement, promotion, lost wages, front pay, liquidated damages, and reasonable attorney’s fees.  But what about other remedies, such as compensatory damages for emotional distress stemming from the retaliatory act(s)?

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Getting Out Of My Comfort Zone


By Kimberly M. Johnson

My first attempt at leaping into the unknown was when I switched careers from meeting deadlines for one editor to meeting deadlines for an attorney, a clerk and a client. My organizational and writing skills were the pillars that held me steady during my time at the public defender’s office. I learned about criminal law and the inner workings of the courthouse, and the unknown became familiar.

A couple of leaps forward landed me in Raleigh. And soon, the unknown became familiar. That’s why I am planning to attend the Paralegal Division Family Law CPE on March 23 at the Bar Center. I will admit it. The closest I have been to family court is a courtroom observation during my paralegal days. So, this seminar is pretty exciting for me.

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Your Client Lost His Case To the IRS: Are His Accountant and Attorney Fees Deductible?


By Paul Topolka

Section 212(3) of the Code provides in pertinent part: “In case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in connection with the determination, collection, or refund of any tax.”

The reach of the above provision is very broad.  The deduction is available whether the taxing authority is the United States, a state, a municipality or a foreign country.  “Any tax” is all encompassing and includes income, estate, gift, excise, property, sales and use, and any other taxes.  As stated in Treas. Reg. § 1.212(l): “Thus, expenses paid or incurred by a taxpayer for tax counsel or expenses paid or incurred in connection with the preparation of his tax returns or in connection with any proceedings involved in determining the extent of tax liability or in contesting his tax liability are deductible.” Such expenses or professional fees include, among others, the preparation costs of a request for a private letter ruling or appraisal fees to determine the amount of a casualty loss deduction or a charitable contribution deduction.  Thus, it does not have to be a contested tax situation to qualify – the expense only needs to arise “in connection with the determination of any tax.”  See Carpenter v. United States, 338 F.2d 366 (Ct. Cl. 1964) (where taxpayer incurred legal expenses in ascertaining that substantial support payments to his former wife constituted taxable alimony to her and therefore were deductible by him).  Also, it does not matter whether the taxpayer is successful in contesting the purported tax liability; he can lose the controversy with the taxing authority and still deduct the related expenses.

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Tick-tock: February Means Attorneys Have 28 Days To Meet CLE Deadline


By Kim Wentworth

Ready or not, February is upon us.

As of Feb. 1, attorneys have 28 days to get their North Carolina State Bar Mandatory Continuing Legal Education (MCLE) in for 2016.

As attorneys know, they must complete 12 hours of CLE credit each year. Two of these hours must be ethics/professional responsibility credit and at least once every three calendar years, each attorney must complete one hour of substance abuse/mental health credit.

We all know how busy things get for attorneys and how the year can easily slip away, then before you know it, the grace period is almost over and you still don’t have your CLE hours completed. For that reason, the NCBA CLE department makes sure that its February schedule is as jam-packed as possible in order to give everyone ample opportunity to get their hours completed. It is our mission to get everyone across that finish line.

Here are some numbers to highlight what February looks like at the Bar Center and around the state:

  • 16 live programs this month in three locations — Cary, Greensboro and Pinehurst;
  • 12 webcasts members can participate in from the comfort of their own home or office;
  • 66 video replays happening in 17 cities all across the state including Cary, Winston-Salem, Concord, Pinehurst, New Bern, Boone, Wilson, Wilmington, Asheville, Greensboro, Fayetteville, Hickory, Lumberton, Roanoke Rapids, Charlotte, Manteo and Shelby;
  • 40 phone/audio streaming options, five webinar options and over 800 on-demand programs to view from your computer or mobile device;
  • Two Marathon Days (Feb. 25 and 28) when you can earn up to 18 hours of MCLE credit including seven hours of ethics/professional responsibility and four hours of substance abuse/mental health hours.

By the time this month comes to an end, not only will we have all lawyers caught up on their MCLE credit hours, we will also be celebrating another successful February in the books.





Foster Care Extended to Age 21


By Sara DePasquale

The new year brings Foster Care 18-21 to North Carolina. This is a new program that offers extended foster care to children who have aged out from foster care. Foster Care 18-21 was created by S.L. 2015-241, Section 12C.9 and became effective on Jan. 1. The North Carolina Division of Social Services provides additional information about this new program in its Child Welfare Services Policy Manual, Section 1201, XII (“NC DSS §1201, XII”).

Eligibility Based on Age

A juvenile who is in foster care when he or she turns 18 may enter into a voluntary foster care agreement with a county department and continue to receive foster care services and benefits until turning 21. GS 131D-10.2B(a). The young adult who has aged out of foster care may enter into a voluntary foster care agreement at any time prior to his or her 21st birthday. Id.

There is nothing in the statute or state policy that limits enrollment to those children who age out of foster care on or after Jan. 1, 2017. As a result, it appears that children who aged out of foster care before Jan. 1, 2017 and who are not yet 21 years old may enroll in the Foster Care 18-21 program. Those young adults may contact either the county department where they were in foster care (county of origin) or where they currently reside. NC DSS §1201, XII.J.

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Help For The Legislative Drafter: Part 2


This column originally appeared in the November 2016 edition of North Carolina Lawyer.

By Laura Graham

In the most recent installment of Writing that Works, I introduced a fairly new resource for legal writers whose work includes drafting statutes and rules. The book, Plain English for Drafting Statutes and Rules,[1] is a slim volume, but it covers a lot of ground. In that column, I drew from the book to highlight three central principles of effective legislative drafting: (1) use simple declarative sentences; (2) punctuate with care; and (3) tabulate with clarity. In this follow-up column, I’ve chosen to highlight two additional principles.

Use “common and known words.” This principle is apparently one of the very first—and most enduring—legislative drafting principles. According to the authors of Plain English for Drafting Statutes and Rules, one of the most influential statements of this principle came in the late eighteenth century, when English jurist and philosopher and Jeremy Bentham wrote:

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N.C. Court Of Appeals On Brink Of Slippery Non-Compete Slope


Wall,JonBy Jonathan Wall

In Beverage Sys., LLC v. Associated Beverage Repair, LLC, 368 N.C. 693, 784 S.E.2d 457 (2016), the North Carolina Supreme Court clarified that North Carolina adheres to the “strict blue pencil rule;” that is, a trial court may strike distinct unreasonable restrictions in a noncompetition agreement but may not re-write provisions in order to make them enforceable, even if the parties, in the contract, authorize judicial revisions.  The court sent a message it is not interested in expanding blue-penciling, noting no good could come from changing the role of the trial court:

Allowing litigants to assign to the court their drafting duties as parties to a contract would put the court in the role of scrivener, making judges postulate new terms that the court hopes the parties would have agreed to be reasonable at the time the covenant was executed or would find reasonable after the court rewrote the limitation. We see nothing but mischief in allowing such a procedure.

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Employer’s Attempt At Repayment Of Training Costs Can Backfire Causing Employee Misclassification Under the FLSA


By Andrew J. Henson and Michael A. Kornbluth

henson-andrewA growing practice among employers is to require new hires to sign a Training Cost Agreement (TCA), which puts employees on the hook for the cost of their on-the-job training if they quit or are fired before completing a period of years of work for the employer. The concept is something like the evil twin of the signing bonus. However, a recent court ruling in the Middle District of North Carolina suggests enforcing these agreements may backfire and cause an employee who was previously exempt from overtime laws under the Fair Labor Standards Act to suddenly become subject to overtime laws, leaving the employer liable for back pay for any hours of unpaid overtime.

kornbluthmichaelUnder the FLSA, employees are entitled to “a fair day’s pay for a fair day’s work.” This includes overtime for nonexempt employees who work more than forty hours in a week. Exempt employees are not entitled to overtime. The determination of who is exempt and who is not can be complicated, and has been subject to fierce dispute in the courts. Typically employees classified as exempt are those whose job duties can be considered administrative, executive, or professional. But, these white collar workers may still qualify as nonexempt employees, if the way they are paid does not satisfy what’s called the “Salary Basis Test.”

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Millennial Lawyers Are Different, Except When They Are Just Like Everyone Else


Mathew CordellBy Matt Cordell

Most demographic experts define the “millennial” generation as those born in or after 1981. The Young Lawyers Division of the NCBA comprises law students, lawyers 36 years old or younger, and lawyers of any age in their first three years of practice.

This means that the Young Lawyers Division is now almost entirely composed of millennials.

          How are millennials supposed to collaborate in the workplace with their older colleagues who presumably are so fundamentally different? At the 2016 NCBA Mentoring Conference earlier this year, the Young Lawyers Division and the Senior Lawyers Division came together to explore this question.

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