The federal D.C. Circuit Court of Appeals issued a decision last month, in Shuler v. PriceWaterhouseCoopers, sharply restricting the scope of the Lilly Ledbetter Fair Pay Act, which President Obama signed into law soon after entering office.  The Fair Pay Act extends the timely filing deadlines for certain discriminatory employment actions, specifically those involving “discrimination in compensation.”  The case involved a plaintiff who was denied a promotion in 1999 and 2000 and who claimed that those decisions, which were made because of age discrimination, had continuing effects on his compensation because the promotions would have come with raises.  With little analysis, the Court held that “discrimination in compensation” means “paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position.”  A close reading of the statute’s language, purpose, and legislative history might challenge the Court’s conclusion, and hopefully other courts will consider the question more carefully.

Categories: Judicial Decisions Tags: ADEA, Case Commentary, DC Circuit, Discrimination, Labor and Employment, Lilly Ledbetter Fair Pay Act, Statute of Limitations

The North Carolina Court of Appeals issued an opinion on February 16, in Deal v. Frye Regional Medical Center, addressing the line between medical malpractice cases and ordinary negligence cases.  There are special requirements on plaintiffs who file malpractice claims, unlike negligence claims, so the line is important.  In this case, the decedent had been admitted and was being cared for because of a heart attack and other problems.  During his stay, however, the nurses failed to conduct a Fall Risk Screen Assessment (“FRSA”) and failed to implement a fall risk safety policy to protect decedent from falling.  Subsequently, the decedent fell out of his hospital bed and fractured his right hip, which required surgery and rehabilitation.  The Court held that the potential negligence here — the failure to conduct the FRSA — was a professional activity of the nurses, involving clinical judgment, and therefore made the claim one of medical malpractice, not just negligence.

Categories: Judicial Decisions Tags: Case Commentary, Medical Malpractice, NC Court of Appeals, Negligence, Personal Injuries

In King v. McMillan, the Fourth Circuit affirmed a jury verdict and the court’s rulings in a sexual harassment case.  The plaintiff, a former deputy in a sheriff’s office, had been sexually harassed by the sheriff over several years.   A jury awarded her compensatory and punitive damages on her claims of battery and sexual harassment under Title VII.  The Court upheld the awards, the substitution of the correct defendant, and the admission of testimony of other female employees who had been sexually harassed by the same sheriff.

Categories: Judicial Decisions Tags: Battery, Case Commentary, Discrimination, Fourth Circuit, Labor and Employment, Punitive Damages, Sexual Harassment, Title VII

Last week, the North Carolina Court of Appeals published four opinions concerns concerning workers’ compensation and personal injury cases.  In Berardi v. Craven County Schools, the Court considered and described the Industrial Commission’s new process for expedited medical motions, which speed up resolution of medical treatment disputes in workers’ compensation cases.  At issue was whether the employer could appeal a decision of the Commission granting one such motion.  The Court held that it could not because the order was interlocutory, i.e. it did not resolve all issues, the usual prerequisite for appeals.

In Freeman v. Rothrock, the North Carolina Supreme Court had sent the case back to the Court of Appeals after reversing it and rejecting the judicial creation of a bar to recovery of worker’s compensation benefits when an employee made misrepresentations at the time of hiring about his physical condition.  On remand, the Court addressed the other appealed issues from the Commission, and affirmed the Commission’s conclusions that the plaintiff is entitled to ongoing total disability benefits and that the employer is not entitled to a credit based on previous clinchers (settlements) with the plaintiff.

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Categories: Judicial Decisions Tags: Appeals, Bicycle Accidents, Car Accident, Case Commentary, Clinchers, Disability Benefits, Governmental Immunity, Industrial Commission, Medical Motions, Negligence, Personal Injuries, Workers' Compensation

In Gregory v. W.H. Brown & Sons, the North Carolina Supreme Court has at the very least made a simple area of the law very complicated, and at worst dealt a severe blow to injured workers with little legal justification.  At issue is the employee notice provision of the Workers’ Compensation Act, N.C.G.S. § 97-22, which requires injured employees to give written notice of their injury to their employer within 30 days unless the lack of notice did not harm the employer.  At issue in this case is whether the employee’s failure to provide written notice — even though she immediately told her supervisor about the injury, received a back brace, and was sent to human resources — should bar her from receiving any compensation.

This case should have been simple, since just in 2008, the Supreme Court (yes, the very same court) decided unanimously that an employer’s actual knowledge of an employee’s work-related injury satisfies the notice requirement under N.C.G.S. § 97-22, eliminating the need for any inquiry about alleged prejudice to the employer.  Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 669 S.E.2d 582 (2008).  The majority in Gregory, however, goes through a number of contortions to distinguish the case from Richardson, and along the way effectively reviews findings of fact de novo, which appellate courts are supposed to be barred from doing.  The majority eventually holds, opaquely, that the Industrial Commission must make more specific findings and legal conclusions about the lack of prejudice to the employer before excusing notice, though it seems to implying that the appellate courts should not defer to any such conclusions.  Troubling to say the least.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Industrial Commission, NC Supreme Court, Notice to Employer, Workers' Compensation

The North Carolina Court of Appeals recently issued several workers’ compensation opinions, though they were all unpublished and did not break any new ground.  In Pope v. Johns Manville, the Court upheld the Industrial Commission’s decision that the plaintiff had developed asbestosis from asbestos exposure during the 50’s and 60’s, that the testimony of plaintiff’s rebuttal expert was properly considered, and that the plaintiff was disabled due to his asbestosis under N.C.G.S. 97-54.  In Bricker v. Rhoney Furniture House, the Court upheld the Commission’s conclusion that the plaintiff had shown that she had a compensable change of condition under N.C.G.S. 97-47, and that she was now totally disabled instead of partially disabled due to her back pain and depression.

In Sperry v. Koury Corp, the Court upheld the Commission’s conclusion that the plaintiff had failed to show that she was totally disabled.  Finally, in Acre v. Mt. Wood Forestry, the Court concluded that the plaintiff — a paraplegic due to a car accident — was entitled to retroactive and prospective payment for attendant care provided by his family, handicapped accessible housing if his landlord will not agree to modification of his current housing, and other elements of a life care plan prepared by a certified life care planner.

Categories: Judicial Decisions Tags: Asbestosis, Attendant Care, Case Commentary, Change of Condition, Industrial Commission, Life Care Plan, NC Court of Appeals, Workers' Compensation

The Fourth Circuit has published opinions in three labor and employment cases in recent weeks.  The first case, Sepulveda v. Allen Family Foods, Inc., concerned a Fair Labor Standards Act (FLSA) collective action that was brought on behalf of a class of current and former employees of a chicken processing plant.  The employees claimed, among other things, that the company had violated the FLSA by not compensating them for time spent donning and doffing their protective gear before and after their shifts.  There is a specific exception in FLSA for cases regarding compensable time for “changing clothes” when the employees are represented by a union that has negotiated a collective bargaining unit.  The Court held that putting on and taking off protecting gear was “changing clothes,” so the exception applied because these plaintiffs had a union, and so judgment was rightly granted to the employer.

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Categories: Judicial Decisions Tags: Case Commentary, Collective Action, Concerted Activity, FLSA, Fourth Circuit, Labor and Employment, NLRB, Retaliation, Sarbanes-Oxley Act, Union, Wage and Hour

In Hojnacki v. Last Rebel Trucking, the Court of Appeals reversed the Industrial Commission, and ruled that one of the defendant-companies, Last Rebel Trucking, was also one of the plaintiff’s employers under the Workers’ Compensation Act.  The plaintiff, Mr. Hojnacki, was an interstate truck driver who was hired by Last Rebel Trucking, a local North Carolina company, to drive its truck under the dispatch of Comtrak Logistics, a large trucking company based in Tennessee.  On appeal, it was admitted that Comtrak was one of Mr. Hojnacki’s employers.  In its opinion, the Court found that Last Rebel was also an employer because it paid Mr. Hojnacki for driving its truck following its general directions.  The Court then remanded the case back to the Commission for a revised determination about jurisdiction and what benefits are owed to Mr. Hojnacki.  Leto Copeley and Narendra Ghosh are representing Mr. Hojnacki.

Categories: Judicial Decisions, Results Tags: Appeals, Employment Relationship, Industrial Commission, Leto Copeley, Narendra Ghosh, NC Court of Appeals, Results, Trucking Accidents, Workers' Compensation

Just a few days before Christmas, the Court of Appeals published another set of decisions.  Barrett v. All Payment Services is workers’ comp case that deals with an injured stuntman.  The plaintiff worked as a professional stuntman, and in 1993 he injured his back while performing a car jump stunt on the set of a television series called “Bandit, Bandit”.  Although in pain, the plaintiff continued to work off an on until 2001, when he had two surgeries for his back.  The Industrial Commission had awarded temporary partial disability benefits for the period between 1993 and 2001, and total temporary disability benefits from 2001 onwards.  The Court affirmed in part and reversed in part.  With regard to the first period, the Court reversed because although the Commission had found that the plaintiff had reduced ability to work as a stuntman, it completely failed to make any findings about whether he could work in any other field.  Such a finding is necessary in determining disability.  With regard to the latter period, the Court affirmed the Commission’s conclusion that the plaintiff was totally disabled.

But the Court also reversed the Commission’s conclusion on plaintiff’s average weekly wage (AWW).  The AWW question was difficult because of the nature of the plaintiff’s work: temporary work for different employers, short periods where he was highly paid, with many periods of no pay.  The Commission found that using the standard AWW calculation methods (average pay over different periods) would not be fair, so used Method 5 for exceptional cases.  Specifically, it averaged the plaintiff’s pay from all employers for the year before he was hurt.  Although sympathetic to this approach, the Court was compelled to reject it because the Supreme Court has repeatedly held that an AWW calculation cannot encompass pay from other employers besides the employer where the injury occurred.  The Court didn’t have an alternate method to recommend to calculate a fair AWW; it just remanded.  But it also asked the Supreme Court to take the case on discretionary review to provide the right answer in cases like this one.

Categories: Judicial Decisions Tags: Average Weekly Wage, Case Commentary, Disability, NC Court of Appeals, Workers' Compensation

In Franco v. Lipposcience, Inc., the North Carolina Supreme Court affirmed per curiam an NC Court of Appeals decision regarding employment at will.  The COA had issued a split-decision earlier this year, with Judge Wynn writing for the majority and Judge Erwin dissenting.  The plaintiff, who had been the VP of Marketing, was terminated and sought to bring a breach of contract claim.  At issue was whether he had a partial employment contract, or whether he was an ordinary at-will employee.

Most employees are employed at will, which means they can be fired for almost any reason and without regard to the quality of their performance.  There are three general exceptions: (1) the employee has a contract with the employer, either individually or through a labor union; (2) federal and state statutes have created exceptions prohibiting employers from discharging employees based on impermissible considerations such as the employee’s age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer; and (3) the state courts have created a public-policy exception to the employment-at-will rule.

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