Senate Democrats, with the help of only two Republicans, were finally available to break the deadlock over the extension of unemployment benefits.  President Obama signed the bill this past Thursday.  This bill provides a continuation of the program of extended benefits for those who exhaust the standard 26 weeks of unemployment benefits.  Coverage is here, here.  Although this bill is only a small part of the jobs-boosting agenda Congress needs to have, it was still vital for millions of unemployed having great difficulty finding a job in this broken economy.  For an example, see here.  Although there appears to be too much opposition for additional action on jobs right now, one hopes both parties will come to their senses and realize that the federal government can and must do much more to create sustainable employment growth.

For those seeking benefits, see this note from the North Carolina Employment Security Commission: “On July 22, 2010, the extension of the Federal Emergency Unemployment Compensation (EUC08) program was signed into law. The new law extends the filing deadline, but it does not provide for additional EUC08 tiers. The ESC is working with the Department of Labor to implement this change as quickly as possible. If you are currently filing for benefits please continue to do so. If you are not currently filing for benefits our agency will notify you on how to reinstate your claim.”

Categories: Legislative Action Tags: Congress, Employment Security Commission, Extended Benefits, Job Creation, Labor and Employment, North Carolina, President Obama, Unemployment Benefits

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

The federal Department of Labor issued some important guidance regarding the coverage of the Family and Medical Leave Act (FMLA) as it applies to all sorts of unconventional families. The DOL made clear that FMLA rights to get time off to care for children do not require a biological relationship with the child. Rather, anyone who has assumed the role of parent (for example a non-married step-parent, grandparent, or same-sex partner) is entitled to FMLA leave to care for the child.  Continue for highlights from the guidance: Read more…

Categories: Legislative Action Tags: DOL, Family and Medical Leave Act, FMLA, Labor and Employment, Parental Leave, Work and Family Balance

Last week, the U.S. Supreme Court issued two decisions concerning whether particular issues had to be decided by an arbitrator or in federal court.  One care arose in the traditional area of labor arbitration between companies and unions; the second arose in the ever-growing area of employer-imposed arbitration agreements on regular employees.

In the first, Granite Rock v. International Brotherhood of Teamsters, the Court ruled for the company, as ScotusBlog describes:

The parties had reached a collective bargaining agreement (CBA), but they disagreed about both when the CBA was formed and who should decide that question.  Today the Court, in an opinion by Justice Thomas, held that a court, rather than an arbitrator, should decide when the CBA was formed.  The Court explained that under the CBA, arbitration is required only when a dispute “arise[s] under” the agreement – which a dispute over when the CBA was formed does not.  The Court also held that the lower court properly declined to recognize a new federal common-law cause of action against the parent international union, which – according to the employer – tortiously interfered with the CBA.

In the second, Rent-a-Center v. Jackson, the Court sided with the employer, and held that the issue of unconscionability (a challenge to whether the arbitration agreement is valid in the first place), was to be decided by the arbitrator, as Workplace Prof Blog describes:

The Court held the issue was governed by the separability doctrine of Prima Paint: an arbitration agreement is assailable only if the arbitration agreement itself — not the overall agreement of which the arbitration is a part — is assailable on state-contract law grounds.  So far, so good for Jackson — until today, this separability doctrine has been applied only when an arbitration agreement was part of a broader (“container”) agreement that was not related to arbitration — e.g., an arbitration provision in a consulting-services contract or in a larger employment contract.  Jackson’s unconscionability argument was directed squarely at his arbitration agreement.

Today, however, the Court extended Prima Paint to hold that the arbitration agreement itself can be the container contract, and that unconscionability arguments must be directed toward specific provisions of the arbitration agreement.  Jackson’s unconscionability arguments, the Court held, were directed at the arbitration agreement generally, and therefore could not be grounds for voiding the arbitration agreement as a whole.

Read the whole post for its insightful analysis of how the Court erred, once again stretching the law to give a victory to employers over employees.

Categories: Judicial Decisions Tags: Arbitration Agreement, Case Commentary, CBA, Labor and Employment, Labor Arbitration, Teamsters, Unions, US Supreme Court

Earlier this month, the North Carolina Court of Appeals issued Kornegay v. Aspen Asset Group LLC, an interesting case that raises and decides some key issues under the North Carolina Wage and Hour Act (NCWHA).  At issue was whether the employee-plaintiff had a contract that included bonus payments, and if so, whether those had to be paid to him.  Plaintiff worked for a real estate developer and claimed to have an oral (never written) contract that provided for bonus payments based on properties that he helped sell.  The primary issue was whether there was in fact an oral contract; the Court upheld the jury’s finding that there was an enforceable contract that included bonus payments.  Given that there was a contract for bonuses, the Court then turned to whether plaintiff was owed these bonues under the NCWHA.

Continue for further analysis:  Read more…

Categories: Judicial Decisions Tags: Attorneys' Fees, Bonus Payments, Breach of Contract, Case Commentary, Earned Wages, Labor and Employment, Liquidated Damages, NC Court of Appeals, NCWHA, North Carolina Wage and Hour Act, Wage and Hour, Wage Change Notice

Senate Republicans (with the help of one Democrat, Ben Nelson) have continued their filibuster of the Democrats’ jobs bill, mustering the 41 votes needed on Thursday to prevent the bill from passage.  Republican obstructionism will ultimately spell the end of extended unemployment benefits for millions, even as the economy is nowhere near creating significant job growth.

On top of that, failure to pass the bills means states will not receive the much-needed $23 billion to pay for sharply rising Medicaid costs.  (The great recession has swelled the ranks of those eligible for health insurance through Medicaid.)  Without this money, states will be forced to impose even greater cut backs, which will mean lost jobs for teachers and other state employees.

Republicans say they oppose the bill on the grounds that it raises the deficit, but what they really oppose are the small tax increases (such as one on hedge fund managers) that would be used to pay for the bill.  Disappointingly, the NY Times notes that the “Obama administration has not fought aggressively for the legislation.”  It appears the President is not focusing on jobs, which should be his highest priority.

Categories: Legislative Action Tags: Congress, Health Insurance, Jobs, Labor and Employment, Medicaid, President Obama, State Employees, Teachers, Unemployment Benefits, Unemployment Extension

The New York Times has this article about the Obama Administration’s effort to enforce the child labor and wage and hour laws on farms, and describes the effort in North Carolina in particular.  The Fair Labor Standards Act (FLSA) contains several exceptions for farmworkers, but sometimes-ignored restrictions of child labor are apparently now being more vigorously enforced.

Categories: General News Tags: Child Labor, Fair Labor Standards Act, Farm Workers, FLSA, Labor and Employment, Minimum Wage, North Carolina

In a vote Thursday night, Senate Democrats were unable to overcome the Republic filibuster of the bill that contains the much-needed extension of unemployment benefits.  Even though the cost of the bill had been reduced to alleviate the (misguided) concerns of increasing the federal deficit, all Republicans and two Democrats maintained their opposition.  This bill would not only extend emergency unemployment benefits, but also provide aid to states for health care costs, and pay for that spending with increased taxes on oil companies and hedge fund managers.  Hard to argue with those ideas.  More coverage here.

Categories: Legislative Action Tags: Congress, Labor and Employment, Senate, Unemployment Benefits, Unemployment Extension