The Fourth Circuit published an opinion in National Labor Relations Board v. Interbake Foods concerning the proper procedure for the Board in evaluating claims of privilege.  The Court held that the Labor Board can itself evaluate claims of privilege for documents, and order in camera review in that process.  But, if a party refuses to produce documents to the Board, a subpoena for the documents must be enforced by a federal district court, which will have to evaluate the claims of privilege in deciding whether to enforce the subpoena.

Categories: Judicial Decisions Tags: Case Commentary, Fourth Circuit, Labor and Employment, National Labor Relations Board, Privilege, Subpoena

The North Carolina Supreme Court has sent a tricky workers’ compensation case back the Industrial Commission for additional fact-finding.  Cardwell v. Jenkins Cleaner involves a plaintiff who was injured when she slipped on some black ice three feet away from the back door to her office.  Our coverage of the Court of Appeals’ split-decision in the case is here.

The Supreme Court, in a short per curiam order, concluded that the Industrial Commission failed to make findings on one of the key factual issues: whether the cement area where plaintiff fell was part of defendant-employer’s premises or part of the parking lot.  Accordingly, the Court remanded the case back to the Commission for additional fact-finding.

Burton Craige assisted with the amicus brief filed by the North Carolina Advocates of Justice in this case.

Categories: Judicial Decisions, News of the Firm Tags: Appeals, Burton Craige, Case Commentary, Compensable Injury, Employer Premises, Industrial Commission, NC Supreme Court, North Carolina Advocates for Justice, Workers' Compensation

In a recent unpublished opinion, Bunting v. Town of Ocean City, the Fourth Circuit partially overturned a grant of summary judgment and allowed the plaintiff to proceed to trial on his USERRA retaliation claim.   USERRA is a federal statute that protects armed service members from being discriminated in employment because of their service.  Like other anti-discrimination laws, USERRA also protects against employer retaliation because of filing a USERRA complaint.

In this case, a police sergeant filed a USERRA complaint about service-based discrimination and was subsequently denied promotions that he applied for.  While the Fourth Circuit agreed there was not enough evidence to substantiate the initial USERRA complaint, the plaintiff had produced strong evidence of the subsequent retaliation by his employer.   Thus, summary judgment was partially reversed, allowing the retaliation claim to proceed to trial.

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, Fourth Circuit, Labor and Employment, Police, Retaliation, Summary Judgment, USERRA

Late last month, in Thompson v. North American Stainless, the Supreme Court  unanimously concluded that firing a worker’s fiancé in retaliation for a sex discrimination claim filed by the worker is itself unlawful retaliation under Title VII.  The anti-retaliation provision of Title VII prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court had little trouble concluding that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”  The Court also concluded that the plaintiff had the ability to sue under Title VII even though she herself was not fired.  This case is a good demonstration of the broad anti-retaliation protection provided by Title VII and similar employment laws.  (More coverage here.)

Categories: Judicial Decisions Tags: Associational Retaliation, Case Commentary, Labor and Employment, Retaliation, Sex Discrimination, Title VII, US Supreme Court

The North Carolina Court of Appeals published two opinions on workers’ compensation earlier this month.  The first, Blalock v. Southeastern Materials, involved an award of attorneys’ fees as a sanction for unreasonable defense.  N.C.G.S. § 97-88.1 permits the Industrial Commission to award a plaintiff the costs of his attorneys’ fees if the case had been defended without reasonable grounds.  Here, the Court reversed the Industrial Commission, and concluded that attorneys’ fees were appropriate in this case.  All of the medical experts, including defendants’, agreed that the plaintiff’s exposure to cinder block dust aggravated his respiratory condition, which clearly entitles him to workers’ compensation benefits.  Because defendants had no evidence to the contrary, their defense was unreasonable.

The second case, Gross v. Gene Bennett Co., involves the Parsons presumption for the compensability of medical conditions.   If a claim has been found to be or accepted as compensable, then there is a rebuttable presumption that a plaintiff’s medical conditions are related to the injury.  The Court held, however, “that in the absence of an admission of compensability of an injury by the employer or an agreement between the parties, the Parsons presumption cannot arise at the initial hearing on compensability before the Commission.”  Putting the assumption aside, the Court concluded that causation of the plaintiff’s back injury had not been proved because his doctor’s medical causation opinion was expressly qualified by an assumption that plaintiff had no prior back problems, and the Commission found that plaintiff had a prior back problem in 1997.

Categories: Judicial Decisions Tags: Aggravated Condition, Attorneys' Fees, Case Commentary, Industrial Commission, Medical Causation, NC Court of Appeals, Parsons Presumption, Sanction, Unreasonable Defense, Workers' Compensation

In the past year, the Equal Employment Opportunity Commission (EEOC) has seen 7.2 % in discrimination claims being filed with agency.  Coverage here.  The EEOC handles charges under Title VII, the ADA, the ADEA, the Equal Pay Act, and GINA.  EEOC Chair Jacqueline A. Berrien stated, “Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure that workplaces are free of unlawful bias.”  Detailed statistics on the charges filed with the EEOC are available on its website.  The numbers show marked increases in charges involving disability discrimination and all types of retaliation.

And, in other interesting EEOC news, the EEOC recently brought a lawsuit against Kaplan Higher Education Corporation, accusing it of discriminating against black job applicants through the way it uses credit histories in its hiring process.  The EEOC alleges that Kaplan’s rejection of job applicants based on their credit history has “disparate impact” on black applicants.

Categories: General News Tags: ADA, ADEA, Credit History, Disability Discrimination, Disparate Impact, EEOC, Equal Pay Act, GINA, Labor and Employment, Retaliation, Title VII

In Simmons v. United Mortgage and Loan Investment, LLC, the Fourth Circuit ruled for plaintiffs and reversed the district court in this wage and hour case.  The plaintiffs are Charlotte-based Junior Asset Managers for a mortgage company who were not paid overtime even though they worked more than 40 hours per week.  They brought claims under the Fair Labor Standards Act (FLSA) and North Carolina Wage and Hour Act (NCWHA) based on the failure to pay overtime.  The primary issue is whether the plaintiffs will be able to pursue their case as a collective and class action on behalf the other underpaid workers at the company.  The defendants tried to short-circuit the collective/class action process by tendering a limited settlement offer before other workers could be notified of the case.  The Fourth Circuit rejected this tactic, finding the settlement too indefinite to moot the case.  The Court remanded the case to the trial court to consider plaintiff’s motion to certify the collective action and plaintiffs’ amendments to the NCWHA claims.  Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs.

More from the opinion below:

Read more…

Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Appeals, Burton Craige, Charlotte, Class Action, Collective Action, Fair Labor Standards Act, FLSA, Fourth Circuit, Labor and Employment, Narendra Ghosh, NCWHA, North Carolina Wage and Hour Act, Overtime, Results, Wage and Hour, Wages

On Thursday, the News and Observer published an opinion piece by Dr. James Bryan and Burton Craige entitled Harmed in the Hospital.  It begins: “In 1999, the Institute of Medicine reported that medical errors in American hospitals cause up to 98,000 deaths and more than 1 million injuries each year. In response to the institute’s report, hospitals in North Carolina and around the country announced initiatives to improve patient safety.  A recent article in The New England Journal of Medicine assessed the efficacy of these initiatives. Looking exclusively at hospitals in North Carolina, the article reported a shockingly high rate of preventable injuries to patients, and little or no improvement over time.”

Check out the whole article.

Categories: General News, News of the Firm Tags: Articles, Burton Craige, Medical Errors, News and Observer, Press

In Kee v. Caromont Health, Inc., the North Carolina Court of Appeals upheld the Industrial Commission’s rejection of a compromise settlement agreement.  The agreement originally reached by the parties involved the defendants paying plaintiff $20,000, the plaintiff resigning from her employment, and the plaintiff releasing all of her employment rights.  After plaintiff refused to sign the finalized version of the settlement agreement, the defendants tried to enforce the original agreement.

The Court and Industrial Commission both found the settlement agreement unenforceable.  Industrial Commission Rule 502 requires that in a workers’ compensation settlement, “no rights other than those arising under the provisions of the Workers’ Compensation Act are compromised or released.”  The agreement must also include that specific language.  Because the instant agreement involved the waiver of rights beyond workers’ compensation, and did not include the required language, it could not be enforced.

Categories: Judicial Decisions Tags: Case Commentary, Employment Rights, Industrial Commission, NC Court of Appeals, Settlements, Workers' Compensation

In Lockett v. Sister-2-Sister Solutions, Inc., the North Carolina Court of Appeals reversed the dismissal of a breach of contract claim based on the plaintiff’s employment.  In this case, the plaintiff had an employment contract with the defendant that provided that he could only be fired for cause.  The Court held that “an employment relationship that can be terminated by the employer only for cause would succeed in removing an employment contract from the presumption of at-will employment.”  Therefore, the plaintiff can have a breach of contract claim for being terminated.

On the other hand, the plaintiff did not present enough evidence to bring his contract claim and North Carolina Wage and Hour Act claim against the company’s owner directly.  Thus, the claims against the individual owner were properly dismissed.

Categories: Judicial Decisions Tags: At-Will Employment, Breach of Contract, Case Commentary, Employment Contract, Labor and Employment, NC Court of Appeals, NC Wage and Hour Act