Prior to joining Patterson Harkavy, Josh was a partner at Fosbinder & Van Kampen in Charlotte where he worked since 2004, exclusively representing individuals in employment law matters.  From 1998-2004, Josh represented employers in employment matters in Chicago at Seyfarth Shaw and Franczik Sullivan.

From 2008-2009, Josh served as Chair of the North Carolina Advocates for Justice’s Labor and Employment Law Section, and has served as that Section’s Ethics Chair.

At Patterson Harkavy Josh will continue to concentrate his practice on exclusively representing individuals in employment law and wage and hour law.  He will be located at our Charlotte office.

Further analysis from the Court’s Opinion:
The Court summarized its decision:

Where the Garner Police Department and the N.C. State Campus Police Department substantially complied with the requirements of the Agreement pursuant to N.C. Gen. Stat. § 160A-288 and it is undisputed that Officer Taylor sustained an injury arising out of and during the course of his employment on 27 October 2007, the Commission did not err by concluding that Town of Garner is responsible for payment of sums due to plaintiff pursuant to the provisions of Chapter 97 of the North Carolina General Statutes.

The Court correctly focused on the intent of the parties and the unchallenged fact that Officer Taylor could not lawfully have worked at N.C. State without being under the mutual aid agreement:

As the Commission correctly found, in order for Officer Taylor to work as a mounted patrol officer at N.C. State, he would have had to have been working pursuant to the Agreement to have any police powers outside of his jurisdiction. Otherwise, his presence would have served no purpose. The Commission’s unchallenged findings of fact establish that the parties clearly intended for Officer Taylor to work the N.C. State football game pursuant to the Agreement.

Although Garner tried to base their argument on how Officer Taylor was paid for his work by N.C. State instead of Garner, the Court rejected this: “unchallenged findings of fact show that the parties mutually agreed to the payment arrangement for Officer Taylor when working mounted patrol at N.C. State football games.”

Because the Legislature clearly intended for law enforcement officers to be protected for purposes of workers’ compensation benefits when acting in this capacity, we hold the parties substantially complied with the requirements of N.C. Gen. Stat. § 160A-288(a) for personnel and administrative purposes. The Commission’s unchallenged findings of fact support the Commission’s conclusion of law that on 27 October 2007 Officer Taylor was working pursuant to the Agreement and that Town of Garner is liable for his compensable injury pursuant to N.C. Gen. Stat. § 160A-288.

Here is the summary of our argument: 

As the Industrial Commission concluded, plaintiff Cheri Evans is entitled to compensation for an injury by accident that occurred on April 19, 2005, during a four-day business trip in Charlotte.  Plaintiff was seriously injured after she drank  alcohol provided by the defendant-employer and then left the  raucous business dinner to return to her hotel.  The risk of injury was increased due to the nature of the work dinner, and her injury had its origins in that risk.  Moreover, this Court has conclusively established that an employee on a business trip who is injured while returning to her hotel must be compensated under the Workers’ Compensation Act.  Thus, plaintiff’s injury, a rational consequence of the circumstances of her employment, is compensable.

Defendants’ contention that plaintiff loses her right to compensation because she engaged in negligent or “thrill-seeking” behavior should be rejected for two reasons.  First, this Court had held that an employee’s injury remains compensable even if it is caused by the employee’s own negligence or foolish activity.  Second, it was plaintiff’s consumption of alcohol provided by her employer that led to her loss of inhibition and contributed to her accident.  Therefore, plaintiff’s injury by accident was causally related to her employment because it was contributed to by defendant-employer’s provision of alcohol at an employer-sponsored dinner.

Plaintiff is thus entitled to total and partial wage loss compensation, among other benefits, as awarded by the Commission.  Defendants cannot meet their burden of proving plaintiff constructively refused suitable employment by being terminated because the undisputed facts on appeal demonstrate that (1) plaintiff’s termination was related to her compensable injury; and (2) a non-disabled employee would not have been terminated for the same reasons she was terminated.  In addition, the uncontested factual findings establish that plaintiff is disabled under the Act, and thus entitled to benefits, because her new employment – suitable to her qualifications and injury-related physical limitations – has reduced her wages.  Not only are the relevant facts unchallenged on appeal, but are also amply supported by competent evidence in the record.  Accordingly, the Commission’s Opinion and Award should be affirmed in full.

Also, check out this article from the Mecklenburg times on improving safety for cyclists, which includes quotes from Ann.

“From the beginning, the named plaintiffs in this case have sought to recover rightly-earned wages and overtime pay not just for themselves, but also for the other Junior Asset Managers who worked for defendants. Congress, recognizing the need for FLSA plaintiffs to be able to combine their individual claims for lost wages into a single action, created the collective action process for that very purpose. Under this process, named plaintiffs must promptly file their FLSA claims, be joined by opt-in plaintiffs, and then seek conditional certification of the collective action so that other potential opt-ins can be notified of the action. That is the only effective means to remedy defendants’ multiple violations of the FLSA.

“Following the established process, the named plaintiffs here filed their complaint with collective action allegations, amended their complaint to include proper defendants, and filed consent notices as opt-in plaintiffs joined the case. Because the district court might have rejected their motion for conditional certification of the collective action without the presence of opt-in plaintiffs, the named plaintiffs waited for several opt-in plaintiffs to join the case before filing their motion. While defendants characterize plaintiffs as inappropriately dilatory, plaintiffs were in fact diligently and prudently pursuing their collective action claims.

“Rather than contest plaintiffs’ collective action claims or motion for certification on the merits, defendants have sought to abort the statutory process. Relying on inapposite cases, mischaracterizing plaintiffs’ motives and actions, and ignoring the realities of collective action litigation, defendants ask the Court to validate their strategy of preempting certification of a FLSA action. The Court
must reject defendants’ tactics and allow FLSA plaintiffs a reasonable opportunity to file a viable motion for collective action  certification.

“With respect to plaintiffs’ NCWHA claims, the Federal Rules of Civil Procedure require only that plaintiffs make allegations that give rise to the reasonable inference that defendants have acted unlawfully, and do not require the exact language on which defendants insist. Here, the complaint alleges that plaintiff Pruitt was routinely required to work overtime hours during her entire employment, that she worked through February 2007, and that she did in fact work overtime hours without receiving overtime pay. The  allegations are sufficient to set forth claims that fall under the NCWHA’s exception to FLSA preemption. Because the pleading stage is not a forum for hyper-technical parsing of language, the district court erred in dismissing plaintiffs’ NCWHA claims.

“Finally, in seeking to abort plaintiffs’ claims, defendants tendered an ambiguous and indefinite offer, and then failed to clarify some of the offer’s patent ambiguities before filing a motion to dismiss. While defendants now characterize their ambiguous offer as a “blank check,” plaintiffs could not reasonably have assumed that defendants’ offer was so generous at the time. The Court cannot give
effect to a plainly inadequate offer based on defendants’ self-serving, post-hoc interpretation.

Although the two judge’s rulings were at different phases in the case, they both ruled on the same question of law.  In such situations, a trial judge cannot overrule an earlier judge’s decision — that is the province of the appellate courts.  The Court thus did not reach the state constitutional question presented in the NCAJ’s amicus brief.

Here is a summary of our argument to the Court:

“The four named plaintiffs in this case brought suit to vindicate their rights and the rights of their fellow Junior Asset Managers to receive the full amount of compensation and overtime pay to which they are entitled under federal and North Carolina law. To do so, plaintiffs diligently pursued their FLSA claims as a collective action under the FLSA and their NCWHA claims as a Rule 23 class action. These procedural vehicles are designed to make it judicially and economically feasible for many plaintiffs to litigate common claims that otherwise could not practicably be brought as small individual cases. As the Supreme Court and several circuits have recognized, the objective of collective and class actions would be thwarted if defendants are allowed to “pick off” class  representatives by making an offer of judgment to named plaintiffs and mooting the case before plaintiffs can seek certification of the class or collective action. The District Court erred in permitting defendants to use just this tactic, and in finding the case moot based on defendants’ purported offer of judgment.

“Following the other circuits that have addressed this issue, the Court should instead conclude that because plaintiffs promptly and without undue delay moved for conditional certification of their claims under the FLSA, defendants’ settlement offer – even if deemed a proper offer of judgment for full relief – cannot moot this action because plaintiffs’ motion “relates back” to the date plaintiffs’ filed their complaint.

“This principle applies with equal force to plaintiffs’ class action claims under the NCWHA. Plaintiffs were unable to seek certification of the NCWHA class because the District Court erroneously dismissed their NCWHA claims. Even though the court acknowledged that plaintiffs would have stated valid NCWHA claims if they had worked for defendants in 2007 or 2008, the court ignored the allegations of plaintiff Pruitt’s work during this period, and then inexplicably did not allow plaintiffs to amend their complaint with more detailed allegations regarding Pruitt and additional named plaintiffs who worked in the relevant time period. This Court should conclude that plaintiffs have alleged viable claims under the NCWHA, and that they should be allowed a reasonable period to seek certification of the NCWHA Class before the claims can be mooted by defendants’ settlement offer.

“Finally, defendants’ settlement offer did not constitute a proper offer of judgment for full relief because the offer was not for a  definite sum, was ambiguous as to its terms, was not left open for at least ten days, and was not clarified before plaintiffs filed their motion for conditional certification of the collective action. Therefore, the District Court erred in concluding that the settlement offer mooted the case.”

“Dr. Suh’s opinion that plaintiff’s March 2007 accident aggravated her pre-existing condition was based on undisputed facts: plaintiff’s bus was hit by another bus on March 9, 2007, plaintiff began to experience pain after she started driving her bus about an hour later, and plaintiff received medical treatment for the injury in the days and weeks after the accident. While the Full Commission apparently found some part of plaintiff’s testimony inconsistent with other evidence, there is no competent evidence in the record to support the Commission’s conclusion that Dr. Suh’s opinion was fatally undermined by unproven facts supplied by the plaintiff. To the contrary, the facts relied on by Dr. Suh were corroborated, not contradicted, by all of the testimony of other witnesses and the documentary evidence.

“The Full Commission also had no basis for concluding that Dr. Suh’s opinion was contradicted by other competent evidence. There was no competent expert testimony regarding the causation of plaintiff’s condition other than the opinion of Dr. Suh. Though unaddressed in its opinion, the Full Commission appears to have inappropriately relied upon the testimony of Michael Woodhouse, even though it did not question, much less reverse, the Deputy Commissioner’s conclusion that the Woodhouse testimony was inadmissible. As Woodhouse’s opinion is plainly inadmissible expert testimony, the Full Commission’s findings and conclusions regarding Dr. Suh cannot be sustained. Therefore, the Full Commission’s decision, which is predicated on its rejection of Dr. Suh’s opinion, must be reversed and vacated by this Court.”

Summary:  North Carolina is one of only five jurisdictions that retain the antiquated doctrine of contributory negligence. Here, as in Alabama, Maryland, Virginia and the District of Columbia, a plaintiff whose negligence makes the slightest contribution to his injury is barred from recovering any damages against the tortfeasor. The other 46 states, either by judicial decision or by statute, have adopted some form of comparative fault, allocating damages based on the degree of fault among the plaintiff and the defendants.

In May 2009, the North Carolina House of Representatives passed a bill that would abolish contributory negligence, adopt a system of modified comparative fault, and modify joint and several liability.  Modeled on the Uniform Apportionment of Tort Responsibility Act (UATRA), the bill attracted bipartisan sponsorship and support.  After the sponsors agreed to several last-minute amendments that favored defendants, the bill (HB 813) passed by a margin of 67-50, overcoming strong opposition from business and insurance interests.

In the 2010 session, the North Carolina Senate will consider HB 813.  If the bill passes the Senate, it will end the long, harsh regime of contributory negligence, and bring North Carolina tort law into the modern era.  This article discusses the provisions of UATRA, the amendments adopted in the House, and the principal objections to the bill.