Two opinions of note were issued by the North Carolina Court of Appeals yesterday.  The first, Beard v. Cumberland County Hospital System, concerns North Carolina’s Retaliatory Employment Discrimination Act (REDA).   REDA prohibits discrimination or retaliation against an employee for, among other things, filing a workers’ compensation claim.  N.C. Gen. Stat. § 95-241(a)(1).  The discrimination or retaliation can be a “discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.”  § 95-240(2).

In this case, the plaintiff had been injured at work, filed a workers’ compensation claim, and was receiving benefits.  Disputes arose regarding her benefits and her ability to work, which led to the REDA claim.  Specifically, the plaintiff claimed that the defendant retaliated against her by (1) refusing to allow her to be treated by her preferred neurosurgeon, Dr. Mark Roy, and (2) refusing to allow her to return to work in a light duty position when she could not physically perform her original position.

The Court held that neither action could constitute “retaliation” under REDA.  The first was purely a dispute about workers’ compensation benefits, was not connected to terms of employment, and thus had to be handled as a workers’ compensation issue in the Industrial Commission.  The second was not retaliation because, unlike the Americans with Disabilities Act, REDA does not impose an obligation on employers to accommodate an employee’s physical limitations.  If an employee cannot physically perform her job, REDA does not bar their separation.

Lee v. Wignat Road, LLC is a cautionary case.  The Court dismissed the appeal because the plaintiff-appellants failed to serve the notice of appeal on all the parties, specifically the non-appealling plaintiffs and some of the defendants.  The Court found the error deserved dismissal because it impaired the Court’s ability to hear from all parties, and because the appeal seemed to lack merit in any event.

Categories: Judicial Decisions Tags: ADA, Americans with Disabilities Act, Appeals, Case Commentary, Industrial Commission, Labor and Employment, NC Court of Appeals, REDA, Retaliation, Retaliatory Employment Discrimination Act, Workers' Compensation

The Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADAAA) was passed last year and went into effect on January 1, 2009.  The Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of existing regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with issuing regulations that provide more specific rules concering the act.  According to a Notice by the EEOC about the ADAAA, the Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act: Read more…

Categories: Legislative Action Tags: ADA, ADAAA, Disability, Discrimination, EEOC, Labor and Employment, Regulations

Valerie Johnson spoke at the 2008 Annual Conference of the AFL-CIO Lawyers Coordinating Committee (LCC), which was held in Seattle.  Valerie’s talk was part of a session concerning health and safety for workers.  She presented a paper, written along with Narendra Ghosh, titled How Can Unions Protect Injured Workers?

Summary: This paper discusses some common problems faced by injured workers and the remedies available to them. First, workers are often blamed for their own injuries, and then disciplined or discharged for violating safety rules. Those covered by a CBA can contest those sanctions through arbitration. Second, workers who have recovered from their accident may be denied from returning to their jobs on account of their injury. In some cases, such a denial is unlawful under the Americans with Disabilities Act (“ADA”). Third, workers injured by unsafe workplaces may be retaliated against if they report the safety hazard to their employer. Retaliation can be challenged under OSHA § 11(c), and often also under state law.  Finally, those assisting injured workers should always bear in mind the benefits available under workers’ compensation law and the Family and Medical Leave Act (“FMLA”).

Categories: News of the Firm Tags: ADA, AFL-CIO, Articles, Case Commentary, FMLA, LCC, Narendra Ghosh, OSHA, Presentation, Retaliation, Union, Valerie Johnson, Workers' Compensation