Posts

Fourth Circuit Updates

By Sean F. Herrmann

Labor & Employment Law

In the Eastern District of North Carolina, U.S. District Judge Terrance W. Boyle recently granted conditional class certification to call center employees in their FLSA dispute against BB&T. In that case, Sheffield v. BB&T et al. (case number 7:16-cv-00332) plaintiff and the conditionally certified class allege that BB&T failed to pay overtime.

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N.C. Legislative Update, 5-11-2017

By Laura Wetsch and Faith Herndon

Labor & Employment Law Section

Things have calmed down significantly since the crossover deadline on April 27, and there haven’t been a lot of status changes to the bills that survived. The Regulatory Reform Act (declaring franchisors NOT employers) is now law (S.L. 2017-10), but that’s the only significant change to the bills we’re following.  Here’s the updated spreadsheet of legislation.

There likely won’t be another flurry of activity until the General Assembly starts to smell the end of the session looming sometime in June or July, but we will continue to update.

 

Seventh Circuit Finds That Sex Discrimination Includes Sexual Orientation

Labor & Employment Law Section

By Sean F. Herrmann

Practitioners in our field have grown accustomed to seeing others’ dismay as they discover that Title VII does not bar sexual orientation discrimination. “That can’t be true—it’s 2017!” For decades, the prevailing belief, and reality, was that employers could discriminate against employees on the basis of their sexual orientations with relative impunity and the wronged employees would generally have no legal recourse. Hardened employment lawyers got used to this, but for most people this situation was nearly impossible to comprehend.

That common-sense disbelief has finally led somewhere. On April 4, 2017, the full 7th Circuit U.S. Court of Appeals, in an 8-3 decision, ruled that sex discrimination extends to sexual orientation. The case is Hively v. Ivy Tech Community College of Indiana, No. 15-1720, (7th Cir. Apr. 4, 2017) (https://assets.documentcloud.org/documents/3536022/Hively-Opinion.pdf_) and we should get to know it.

Kimberly Hively, the plaintiff-appellant, was a part-time, adjunct professor at Ivy Tech Community College. She was, as the court put it, “openly lesbian.” Hively applied for six full-time positions and received none of them. Ivy Tech eventually decided not to renew her existing contract. Without the assistance of counsel, Hively filed an EEOC Charge that bluntly stated, “I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated.”

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House Bill 2 Repealed But Challenges Remain for LGBTQ Community

By Kevin Murphy

The repeal of House Bill 2 ends a year of high drama in The Old North State, but many challenges remain for the LGBTQ community. Gone is the clause prohibiting anyone from using a restroom other than that which corresponds to their birth certificate. But also missing is any protection affirmatively granting transgender, genderqueer, and gender nonconforming people the right to use the restroom corresponding to their gender identity.

This vacuum is a return to the status quo pre-HB2. For publicly owned facilities, gone is the worry that using the restroom is against the law. Without any legal protection, however, the simple act of using the restroom continues to be dangerous in light of potential harassment or physical aggression from others in the bathroom.

As to private employers, it remains legal in North Carolina to deny someone employment or access to public accommodations on the basis of their sexual orientation or gender identity following this repeal. Local governments are powerless to provide otherwise until Dec. 1, 2020.

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HB2 ‘Repeal’: How Does It Change Employment Law?

Labor & Employment Section

By Laura J. Wetsch

On March 23, 2016, the General Assembly enacted, and Gov. McCrory signed, HB2, which became Session Law 2016-3.  On July 18, 2016, Gov. McCrory “approved” HB169 (the legislative “fix”), which became Session Law 2016-99.

On the one-year anniversary of HB2, the NCAA set a deadline of March 30, 2016, for North Carolina to repeal HB2 or be eliminated as a possible venue for hosting any NCAA championship games through 2022. Accordingly, on March 30 the General Assembly filed, passed, and Gov. Cooper signed, HB142, which repeals both S.L. 2016-3 and S.L. 2016-99, and amends NCGS § 143-760 (created by HB2) to prevent any “local government in this State” from enacting or amending “an ordinance regulating private employment practices or regulating public accommodations” until Dec. 1, 2020 (at which point that provision expires), and preempt regulation of access to multiple occupancy restrooms, showers or changing facilities by “State agencies, boards, offices, departments, institutions, branches of government, including the University of North Carolina and the North Carolina Community College System, and political subdivisions of the State, including local boards of education,” “except in accordance with an act of the General Assembly.”

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EEOC Charlotte District Office Pilots Online Inquiry System

From the U.S. Equal Employment Opportunity Commission:

The Charlotte District Office of the U.S. Equal Employment Opportunity Commission (EEOC) is one of five offices that will pilot the EEOC Online Inquiry and Appointment System, the district office announced this week. The system launched on March 13, 2017, and will allow people who live or work within 100 miles of the district office the ability to electronically submit an inquiry and schedule an in-person interview. The initial inquiry and interview are key initial steps for individuals seeking to file a charge of discrimination with the EEOC.

The EEOC receives about 200,000 inquiries per year through the mail, in person and by phone, and about 90,000 of those inquiries become formal charges of discrimination filed with the agency, making the charge-filing process the agency’s most common interaction with the public. This new online system is part of the EEOC’s ACT Digital initiative to improve service to the public, streamline the administrative process, and reduce the use of paper submissions and files.

People can access the Online Inquiry and Appointment System at https://publicportal.eeoc.gov/Portal/ or from the EEOC’s website at https://www.eeoc.gov/employees/online_inquiry.cfm. The agency plans to evaluate the public’s experience with the new system prior to a nationwide rollout later this fiscal year.

“The Charlotte District Office is pleased to be one of the offices selected for the rollout of the Online Inquiry and Appointment System,” said EEOC Charlotte District Director Reuben Daniels, Jr. “We recognize that more than ever online systems are being used to request services and to conduct business. This system is a way for us to increase our interaction with, and be accessible to, the public we serve. We are available to answer questions and respond to feedback from users and can give presentations on the system for stakeholder organizations. I am confident this system will be as well received as the other phases of ACT Digital.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.