In this case, plaintiffs are bringing collective action claims under the Fair Labor Standards Act (FLSA) based on the under-payment of wages and overtime at Smithfield Packing’s Tar Heel, North Carolina meat processing facility.  Magistrate Judge Gates issued an opinion last week recommending that defendant’s motion to decertify the FLSA collective action be denied.  If his recommendation is approved by the district judge, the case will proceed to trial as a collective action.  The plaintiffs are represented by several lawyers, including Ann Groninger.

Continue for details from the opinion: Read more…

Categories: Judicial Decisions, Results Tags: Ann Groninger, Case Commentary, Class Certification, Collective Action, EDNC, FLSA, Labor and Employment, North Carolina, Smithfield Packing, Unpaid Wages, Wage and Hour

In a unanimous decision, the North Carolina Court of Appeals upheld the trial court’s decision awarding Plaintiff Rebecca Davis joint custody of the child she raised with her former domestic partner:

Defendant Margaret Swan appeals from an order granting Plaintiff Rebecca Davis joint legal custody and secondary physical custody of Swan’s biological child (“minor child”). Swan argues that the trial court erred by applying the best interest standard to the child custody dispute between the parties. Because the record shows that Swan acted inconsistently with her constitutionally protected right to exclusive care and control of the minor child, we affirm the trial court’s decision to apply the best interest of the child standard.

On appeal, Davis was represented by Burton Craige, Narendra Ghosh, and Sharon Thompson of the Sharon Thompson Law Group.

Categories: Judicial Decisions, Results Tags: Appeals, Burton Craige, Constitutional Law, Family Law, Narendra Ghosh, NC Court of Appeals, Results

In a recent unpublished opinion, MGM Investigations Inc. v. Sjostedt, the North Carolina Court of Appeals declared a particular non-compete and non-solicitation agreement to be unenforceable because it was overly broad and too vague.  In the opinion, the Court reviewed many of the core principles in determining whether non-compete agreements are enforceable.

To be enforceable, a non-compete or non-solicitation agreement must meet five requirements – it must be (1) in writing; (2) made a part of the employment contract; (3) based on valuable consideration; (4) reasonable as to time and territory; and (5) designed to protect a legitimate business interest of the employer.  Restrictions on time and territory are considered together.  “Although either the time or the territory restriction, standing alone, may be reasonable, the combined effect of the two may be unreasonable.  A longer period of time is acceptable where the geographic restriction is relatively small, and vice versa.” “The protection of customer relations against misappropriation by a departing employee is well recognized as a legitimate interest of an employer.”

In this case, MGM Investigations had hired the defendants to perform insurance-related investigations regarding federal contracting work overseas.  The non-compete agreement that had been signed restricted defendants from competing “either directly or indirectly, with MJM in its present line(s) of business or in future line(s) of business” for a period of two years.  The trial court held that this provision was unreasonable because it contained no geographic restriction.  The employer did not appeal this conclusion.

The non-solicitation provision stated that defendants could not “solicit any current or prospect client of MJM for the purposes of providing” insurance-investigation-related services.  The trial court had approved this provision specifically with regard to a list of 800 purported “clients” that had been provided by the employer during the case.  The Court of Appeals reversed this conclusion.

The Court found that the terms “current client” and “prospect client” were both too vague without further definition.  No time period or other restriction determined when a company was a current or prospective client.  Especially problematic too was that the restriction would cover clients or prospects that defendants never had any contact with.  Nor could the trial court save the agreement by specifically listing 800 particular “clients” when it had not verified that these companies were indeed clients and the provision did not have a time limit.  Accordingly, the Court declared the non-solicitation agreement to be invalid.

Judge Steelman concurred in the result, but was more sympathetic to the employer’s position, and would have upheld the non-solicitation provision if the trial court had interpreted it more narrowly.

Categories: Judicial Decisions Tags: Case Commentary, Labor and Employment, NC Court of Appeals, Non-Compete Agreements, Non-Solicitation Agreements, Restrictions on Competition, Time and Territory Restrictions

The latest workers’ compensation opinion from the North Carolina Court of Appeals, Cardwell v. Jenkins Cleaner, addresses the “going and coming” rule.  “As a general rule, injuries occurring while an employee travels to and from work do not arise in the course of employment and thus are not compensable.”  This “going and coming” rule has further evolved such that “an employee injured while going to and from work on the employer’s premises is generally covered by the Act.”  Thus, injuries in a parking lot not owned by the employer are usually not covered by workers’ compensation.

In this case, the plaintiff was injured when she slipped on some black ice three feet away from the back door to her office.  The majority affirmed the Industrial Commission’s denial of benefits on the grounds that the plaintiff was hurt while she was still in the parking lot and had not yet reached the door.  Chief Judge Martin dissented.  He concluded that because plaintiff in fact was injured on the curb, which  is separate from the parking lot and right outside the employer’s office door, she was within a “reasonable margin” of the employer-provided access to the building, and thus suffered a compensable injury.

Categories: Judicial Decisions Tags: Case Commentary, Compensable Injury, Employer Premises, Industrial Commission, NC Court of Appeals, Parking Lot, Workers' Compensation

MDNC Judge James Beaty reversed a Magistrate Judge’s recommended dismissal of the North Carolina state law wrongful discharge claim brought by Carl Edwards’ former car chief against Roush Fenway Racing.  (Opinion here.)  The plaintiff in that case was terminated within days of requesting a medical leave for treatment of major depression. The Magistrate Judge recommended that the plaintiff’s North Carolina state law wrongful discharge claim be dismissed because the plaintiff signed an employment contract and thus was not an “at will” employee capable of bringing a state law wrongful discharge claim. Rather, the Magistrate Judge reasoned that the plaintiff’s legal remedy was a breach of contract claim. Roush had not sought dismissal of plaintiff’s breach of contract, FMLA and Americans with Disabilities Act claims.

In a rare reversal of a magistrate’s recommended ruling, the District Court Judge agreed with plaintiff’s argument that dismissal of the wrongful discharge claim was inappropriate because the employment agreement might ultimately be unenforceable due to indefiniteness. Specifically, the agreement permitted Roush to unilaterally demote the plaintiff and reduce his pay, which plaintiff argued potentially rendered the agreement too indefinite to be enforceable. In the event the employment agreement was unenforceable, the District Court Judge reasoned that the plaintiff should be able to plead the wrongful discharge claim in the alternative to his breach of contract claim.

The victory is significant from a damages standpoint. While there are damages caps applicable to the Americans with Disabilities Act, there are no such damages caps on compensatory damages under the state law wrongful discharge claim that was restored by the Court’s latest ruling.

Roush has since filed its answer and the parties are poised to begin the discovery process.  Josh Van Kampen is representing the plaintiff in this case.

Categories: Judicial Decisions, Results Tags: Americans with Disabilities Act, At-Will Employment, Breach of Contract, Damages, FMLA, Joshua Van Kampen, Judge Beaty, Labor and Employment, MDNC, North Carolina Federal Courts, Results, Wrongful Discharge

The third workers’ compensation decision that the North Carolina Court of Appeals issued last week was Reaves v. Industrial Pump Service, a case that had already been to the Court last year.  Under the Pickrell presumption, “When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, courts should indulge a presumption or inference that the death arose out of the employment.”  The defendant must then show that the death occurred due to a non-compensable cause; otherwise the plaintiff prevails.  In addition, if an employee suffers a heart attack while conducting his work in the usual way, the injury is not compensable.  But, a heart attack can be a compensable accident if it “is due to unusual or extraordinary exertion . . . or extreme conditions.”  Here, plaintiff was working in extreme heat in repairing a basement pump.  Not feeling well, he went to his truck, where is partner found him dead from a heart attack not long afterward.  The Court concluded that the Industrial Commission correctly applied the presumption, that defendant had not rebutted it, and thus that plaintiff’s death was the result of a compensable accident, entitling his wife to workers’ compensation death benefits.

The last workers’ compensation case in this batch is a 2-1 split decision, Shay v. Rowan Salisbury Schools.  The plaintiff, a 15-year teacher, had always used the elevator to get to her second floor classroom.  The elevator broke, and for a month, she had to use the stairs to get to the classroom.  One day, while climbing the stairs, her knee “popped,” and she eventually had to have surgery for a meniscus tear.  Plaintiff did not stumble, fall, trip, slip, or twist her knee causing her injury.  The  Commission found this to be a compensable accident, over Commissioner Ballance’s dissent.  The Court reversed, finding the injury was not from an “accident.”  Continue for more on case: Read more…

Categories: Judicial Decisions Tags: Case Commentary, Compensable Injury, Death Benefits, Heart Attack, Heat Exposure, Industrial Commission, Injury by Accident, Knee Injury, NC Court of Appeals, Pickrell Presumption, Rowan Salisbury, Workers' Compensation

On July 20, 2010, the North Carolina Court of Appeals issued four published opinions regarding workers’ compensation.  The first decision, Morales-Rodriguez v. Carolina Quality Exteriors, Inc., concerned whether the plaintiff was an employee or an independent contractor of the defendant.  The plaintiff sought benefits for injuries sustained when he fell from a building at Nags Head, North Carolina, while applying stucco siding.  Workers’ compensation benefits can only be awarded to employees; independent contractors are not covered by the Workers’ Compensation Act.  In distinguishing between an employee and contractor, “The vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.”  Factors to be considered are whether:

the person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Here, the Court credited the plaintiff’s testimony and documentary evidence that he was paid by the hour, was instructed on how to work, and did not hire his own assistants.  Thus he was found to be an employee and the Court upheld his award of benefits.

In the second case, Price v. Piggy Palace, the plaintiff, a 20-year-old cook, was injured when a co-worker slipped and fell, spilling approximately three gallons of hot grease onto the plaintiff.  As a result, the plaintiff suffered severe burns to his head, left arm, and legs.  The Full Commission had ordered that the plaintiff receive the recommended pulse dye laser treatment to aid his recovery, and awarded plaintiff travel expenses for his parents’ everyday travel to the hospital.  During his hospital stay, the plaintiff’s parents had gone to the hospital every day and his mother assisted in the treatment of his burns, particularly with washing and dressing them.  In affirming the award of travel expenses, the Court concluded that the plaintiff’s mother’s medical assistance and psychological support were reasonably necessary to provide relief for his condition, which is sufficient to award travel expenses as part of medical expenses under N.C. Gen. Stat. 97-25.

Categories: Judicial Decisions Tags: Case Commentary, Employee Requirement, Independent Contractors, Industrial Commission, Medical Expenses, NC Court of Appeals, Travel Expenses, Workers' Compensation

On June 24, 2010, Josh Van Kampen prevailed in a case manager hearing on behalf of a probationary teacher who was wrongfully terminated by Charlotte Mecklenburg Schools (CMS).  Superintendent Peter Gorman initially recommended that the teacher be terminated for allegedly using excessive force in restraining a disruptive middle school student.  The teacher contended that the student aggressively came at her and that she merely acted in self defense.  After a three day hearing, the Case Manager ruled that the teacher acted appropriately and ordered her reinstated with back pay.   The CMS Employee Relations Department’s investigation into the incident was shown to flawed in several respects, including its failure to obtain a written statement from the alleged victim, its failure to take a photograph of the alleged injury and unexplained delays in interviewing several witnesses.   It was also shown at the hearing that the student had a lengthy history of disruptive behavior, including challenging another teacher to a fight, which the Employee Relations’ Department failed to consider.   There were also troubling inconsistencies in the accounts of the school administrators, who disagreed on when the alleged injury was detected and even where on the student’s head the injury was located.

Josh has served as counsel for the North Carolina Educators Association (NCAE) since the beginning of 2010.

Categories: Judicial Decisions, Results Tags: Case Manager Hearing, Charlotte Mecklenburg Schools, Joshua Van Kampen, Labor and Employment, North Carolina Educators Association, Probationary Dismissal, Results, Teachers

On behalf of two local IAM unions, Patterson Harkavy has prevailed in federal district court in a case challenging a labor arbitration decision.  This case arises from Plaintiff UGL UNICCO’s termination of union member Ronald Corbett.  UGL UNICCO provides facilities maintenance services at a tire plant in Wilson, North Carolina, owned by Bridgestone Firestone North American Tire.  Corbett was employed by UGL UNICCO and worked at the Bridgestone Plant.  Defendants Local 2541 and District 110 are constituent entities of the International Association of Machinists and Aerospace Workers (“IAM”).  The IAM was represented in this case by Mike Okun and Narendra Ghosh.

The union challenged Corbett’s termination and the case was initially decided by an experienced labor arbitrator.  Corbett, a 34-year employee, did nothing wrong in getting fired, but was terminated without just cause because of Bridgestone’s unilateral decision.  This is commonly known as a persona non grata situation.  The arbitrator found that this firing violated the union’s contract with UNICCO, and award Corbett 68 weeks of pay as damages because she could not order Bridgestone to return him to work.  UNICCO challenged the arbitrator’s decision in federal court.

In his July 16, 2010 opinion, Judge Boyle affirmed the arbitrator’s award and granted the union’s motion to enforce it.  Judge Boyle reasoned:  Read more…

Categories: Judicial Decisions, Results Tags: Bridgestone, Eastern District of North Carolina, Federal Court, International Association of Machinists, Labor and Employment, Labor Arbitration, Michael Okun, Narendra Ghosh, Personan Non Grata, Results, UNICCO, Unions, Wilson

The Fourth Circuit has issued another good decision in favor of employees who are sexually harassed in EEOC v. Fairbrook Medical Clinic. This case involves a family medicine practice in Hickory, North Carolina.  Here’s the summary: “The Equal Employment Opportunity Commission brought this suit on behalf of Dr. Deborah Waechter against her former employer, Fairbrook Medical Clinic. The agency alleges that Dr. John Kessel, the sole owner of the clinic, subjected Waechter to a hostile work environment because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court held that Kessel’s conduct was not sufficiently severe or pervasive to constitute a hostile work environment. What happened here, however, was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment. After carefully considering these circumstances, we conclude that the EEOC has presented an issue of triable fact and accordingly reverse.” Here’s more from the opinion: Read more…

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, EEOC, Fourth Circuit, Hostile Work Environment, Labor and Employment, North Carolina, Severe and Pervasive Conduct, Sexual Harassment