— Posts About Labor and Employment

Judge Hobgood issues written order declaring tenure repeal unconstitutional

Yesterday, Judge Hobgood issued an order putting into effect his prior ruling enjoining the repeal of teacher tenure in North Carolina.  The ruling rolls back the General Assembly’s attempt to retroactively eliminate public school teachers’ employment protections.   It also relieves school districts of the obligation to offer 25% of their teachers a small raise if they willingly abandon their employment protections.

In the course of litigation, the plaintiffs, represented by Patterson Harkavy attorneys Burton Craige and Narendra Ghosh, produced ample evidence demonstrating that eliminating career status makes it harder for schools to attract and retain quality teachers.  In contrast, the state was unable to produce any evidence demonstrating that career status actually prevented school districts from eliminating ineffective teachers.

Judge Hobgood ultimately determined that the repeal of career status impairs teachers’ contractual rights.  He also found that it “does not further any public purpose because the undisputed facts demonstrate that, under the Career Status Law, school administrators already have the ability to dismiss career status teachers for inadequate performance whenever necessary.  Moreover, eliminating career status hurts North Carolina public schools by making it harder for school districts to attract and retain quality teachers.”

Judge Hobgood’s detailed order can be accessed here.

 

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Patterson Harkavy supports fast food workers in national day of action

On Thursday, May 15, thousands of fast food workers across the globe went on strike for higher wages, better working conditions, and the right to form a union without fear of retaliation. They were joined by fast food workers in nearly a dozen North Carolina cities.  Many of North Carolina’s fast food workers only earn the minimum wage of $7.25 an hour, and are often forced to rely on public assistance programs.  Many also complain of regular wage theft, where their employers fail to pay them for all of the hours they work.

The National Labor Relations Act protects the right of workers to engage in concerted activity, including strikes and rallies such as those held last week.  However, many are nonetheless subjected to retaliation or intimidation for their conduct.    Patterson Harkavy attorneys Mike Okun and Paul Smith worked with North Carolina’s activists to help ensure that their rights are protected, with Mike coordinating the civil and criminal legal coverage across the state and Paul working on the ground at demonstrations in Mt. Olive, Goldsboro, and Raleigh.

The global fast food organizing movement has been covered by national press, including the New York Times and Time Magazine.  North Carolina’s protests generated local press across the state, including in the Raleigh News & Observer, the Greenville Daily Reflector, and the Greensboro News & Record.

 

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Victory: Tenure repeal declared unconstitutional

At 11 am this morning, Superior Court Judge Robert Hobgood sided with Patterson Harkavy’s attorneys and ruled that legislation stripping teachers of their vested employment rights violated the North Carolina and the United States Constitutions.

For over forty years, North Carolina public school teachers have been able to earn “career status” after successful completion of a four-year probationary period and a favorable vote by a teacher’s school board.  A teacher with career status can only be demoted or dismissed for good cause, and has the right to a hearing in which he or she could contest a dismissal or demotion decision.  All of North Carolina’s neighboring states provide teachers a comparable system of basic employment protections.

In 2013, the North Carolina General Assembly passed legislation stripping teachers of these employment protections.  The scheme purported to replace career status with a new system, in which teachers would be employed under one-, two-, or four-year contracts.  When a school board fails to renew an experienced teacher’s contract, the new system would deny that teacher any right to a hearing challenging that decision.

Representing a group of teachers and the North Carolina Association of Educators, Patterson Harkavy’s Burton Craige and Narendra Ghosh filed suit challenging the constitutionality of the 2013 legislation.

Today, Judge Hobgood ruled that this legislation violated the United States Constitution’s Contracts Clause and the North Carolina Constitution’s Law of the Land Clause.  The State failed to produce any evidence indicating that the repeal of career status was necessary to accomplish any public purpose.  In contrast, Patterson Harkavy produced the affidavits of school administrators who consistently discussed how career status was not a barrier to removing bad teachers, but instead helped schools attract and retain good teachers despite their low salaries.

This historic victory has received news coverage around the state and the nation, including in the Raleigh News and Observer, the Charlotte Observer, and the Wall Street Journal.

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Patterson Harkavy Challenges Constitutionality of Legislation Stripping Teachers of their Employment Rights

Burton Craige and Narendra Ghosh filed suit yesterday against the State of North Carolina, challenging a recently-enacted law eliminating employment protections for experienced public school teachers.  Burton and Narendra represent the North Carolina Association of Educators and six individual teachers in the suit.

For over forty years, North Carolina public school teachers have been able to earn “career status” after successful completion of a four-year probationary period and a favorable vote by a teacher’s school board.  A teacher with career status can only be demoted or dismissed for good cause, and had the right to a hearing in which he or she could contest a dismissal or demotion decision.  All of North Carolina’s neighboring states provide teachers a comparable system of basic employment protections. Read more…

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Hank Honored with Lifetime Achievement Award from WILG

On October 7, Hank Patterson received the 2013 Lifetime Achievement Award from the Workers’ Injury Law & Advocacy Group.  Hank received the award at the organization’s annual convention in West Palm Beach, Florida, in recognition of his more than 35 years of tireless advocacy for workers’ rights and workplace safety.

Hank has long been active with WILG, a national organization of advocates for workers’ rights.  He currently serves on the organization’s Board of Directors and Federal Legislative Committee and frequently travels to Washington, D.C. to speak to legislators on its behalf.  WILG’s lifetime achievement award “is reserved for those individuals who have gone above and beyond the norm, and who continue to play a vital role in supporting WILG and advocating for the issues important to WILG’s mission.”

 

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Mike and Narendra Secure Fourth Circuit Victory for Union

The Fourth Circuit Court of Appeals ruled in favor of Patterson Harkavy’s client in Int’l Bhd. of Elec. Workers, AFL-CIO, Local Union No. 289 v. Verizon S., Inc., No. 12-2013, 2013 WL 3770706 (4th Cir. July 19, 2013).

The case arose from a dispute surrounding Verizon’s termination of employee Brian Pollard.  Verizon sought to avoid arbitration of the controversy, claiming that Mr. Pollard was only a probationary employee without the right to arbitrate his discharge under the Union’s collective bargaining agreement.  Representing the Union in the Middle District of North Carolina, attorneys Narendra Ghosh and Mike Okun filed a motion to compel arbitration.  In January of 2012, Magistrate Judge Trevor Sharp recommended that the Union’s motion to compel arbitration be granted.  Following the Recommendation’s adoption by Judge William Osteen, Jr., Verizon South appealed to the Fourth Circuit.

In an opinion issued last week, the Fourth Circuit unanimously affirmed the District Court’s ruling, finding that both the Collective Bargaining Agreement and a separate agreement were “at minimum, reasonably susceptible to the interpretation that the Union advances.”  Since doubts as to whether an arbitration clause covers a given dispute are resolved in favor of coverage, the Fourth Circuit found it appropriate to compel arbitration of the dispute.

Congratulations to Mike and Narendra on the win!

Categories: Judicial Decisions Tags: , , , , , , , ,

Court of Appeals Rejects REDA Claim by Pro Se Plaintiff

In Fatta v M & M Properties Management, Inc. the North Carolina Court of Appeals heard an appeal by a pro se plaintiff of the trial court’s granting of summary judgement.  Plaintiff worked for the company in one of their hotels as a property manager.  During Plaintiff’s training, he was injured while cleaning a room.  He reported the injury to his supervisor and said he would file workers’ compensation paperwork if the injury was more severe than a pulled muscle.  A day after he reported his injury to his supervisor, Plaintiff was given a first and final written warning; five days after the warning Plaintiff was terminated.  Plaintiff filed a Form 18 with the North Carolina Industrial Commission five days following his termination.

Plaintiff contends that the company violated the Retaliatory Employment Discrimination Act (REDA) by firing him while he was engaged in protected activity, namely threatening to file a workers’ compensation claim.  The Court of Appeals agreed that threatening to file a workers’ compensation claim is protected activity.  However, the Court affirmed the trial court’s order because Plaintiff could not show a causal relationship between his termination and threatening to file a claim.  Plaintiff argued that the close proximity in time between when he reported his injury and was terminated showed that Defendant had unfairly retaliated against him for threatening to file a workers’ compensation claim.  However the Court stated that the proximity of the date of injury to the termination date is not enough, standing alone, to show a causal connection.

Given the really close timing here, the Court’s decision seems incorrect.  But, it appears that because the plaintiff was not represented by an attorney, he did not develop the facts in his case as well as he could have. There well could have been more incriminating facts that were not put before the court.

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The 4th Circuit CoA Ruled that the EEOC could be Estopped in an ADA Enforcement Action

In EEOC v. Greater Baltimore Medical Center, Inc., Michael Turner was a unit secretary at GBMC who suffered multiple serious health conditions in 2005 that first required hospitalization in January 2005.  He was out of the work for most of the year and then suffered a stroke in December 2005.  That month he filed an application for SSDI benefits, stating that he had been unable to work since January.  The application stated that he would notify the SSA if his condition improved.  Turner was granted SSDI benefits in January 2006, retroactive to January 2005.  He has continued to receive the benefits.  But, in January 2006, Turner notified GMBC that he wanted to return to work, and his physician indicated that the could return in a part-time position such as a file clerk.  On June 1, 2006, Turner was cleared for full-time file clerk work, but was not given a position.  On June 30, having not obtained any new position with GMBC, Turner was formally terminated.  The EEOC filed suit on his behalf under the ADA claiming disability discrimination after Turner was able to return to work.  The district court granted summary judgment for GBMC on the basis that the ADA claim was incompatible with Turner’s application for and acceptance of SSDI benefits.  The Fourth Circuit affirmed in a split decision.

The ADA requires the plaintiff to be an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position.  This requirement may be incompatible with the assertion for SSDI purposes that the claimant is totally disabled, and the plaintiff may be estopped from contradicting the SSDI statements.  Under Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), a court should require an explanation of any apparent inconsistency between the SSDI standard and the necessary elements of an ADA claim.  In previous cases, the Fourth Circuit had not found any inconsistency between ADA claims and SSDI or workers’ compensation benefits, but the analysis is fact-specific.  Here, the majority found Turner’s ADA claim to be in direct conflict with his SSDI statements that he was disabled continually since 2005.  Turner’s ADA claim that he could work in 2006 after improvement in his condition conflicts with his continued receipt of SSDI benefits and failure to report to SSA any change in condition.  Nor could the conflict be squared by the absence of accommodations; Turner never claimed to need any.

In dissent, Judge Gregory argued that the EEOC should never be estopped by the statements of a claimant because it did not make the statements.  Estoppel against the government is disfavored and is contrary to the purpose of EEOC enforcement of the ADA.  Judge Gregory also argued that Turner’s SSDI benefits and ADA claim were compatible.  For example, a jury could find that Turner had a good-faith belief in his SSDI assertion of disability because that is how GBMC treated him when it refused to give him his job back or to hire him for a new position despite his dozens of applications and superb work history.

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SCOTUS Rules that Self-Care Provision of the FMLA does not Apply to the States: North Carolina Not Affected

In Coleman v. Court Of Appeals Of Maryland, Daniel Coleman was employed by the Court of Appeals of the State of Maryland.  When he requested sick leave, he was informed he would be terminated if he did not resign.  He then filed an FMLA suit, which was dismissed on sovereign immunity grounds.  Breaking along the familiar 5-4 line, the Supreme Court affirmed the dismissal.  Under the Court’s recent 14th Amendment jurisprudence, Congress can abrogate state sovereign immunity under Section 5 only if its legislation is sufficiently “tailored” to remedy violations of the 14th Amendment’s substantive provisions, such as the Equal Protection Clause.  In Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003), the Court held this standard was met by the family-member-care provision of the FMLA because it addressed gender discrimination related to family leave.  The majority here, however, found no “widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave,” and thus no Equal Protection basis for the provision.

Justice Ginsberg, in dissent, discussed the entire history of the FMLA and its focus on addressing gender discrimination in employee leave policies.  One of the primary motivations for the self-care provision was to provide leave for women suffering from pregnancy-related illness and those recovering from pregnancy.  Also important was mandating personal leave in addition to family leave so that employers would not have a new reason to discriminate against female employees.  She thus found a sufficient basis for Congress to apply the FMLA to the states.

State employees in North Carolina are not hurt by this decision, however, because North Carolinahas waived its sovereign immunity for FMLA suits brought by state employees.  See N.C. Gen. Stat. § 143-300.35(a)(3).

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The 4th Circuit CoA Holds that Discrimination in the Offers of Severance Agreements can be Actionable Under Title VII

In Gerner v. County of Chesterfield, Karla Gerner was a twenty-five employee of the county whose position was eliminated in a reorganization.  She was offered a severance agreement that included three months of pay, which she rejected.  The county then terminated her without any severance.  She filed suit under Title VII, alleging sex discrimination in that male counterparts received better severance offers than she did, citing four examples.  The district court granted the defendant’s motion to dismiss based on there being no adverse employment action.

The Fourth Circuit unanimously reversed.  In Hishon v. King & Spalding, 467 U.S. 69 (1984), the Supreme Court held that any “benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.”  Id. at 75.  In situations like that at hand, in which an employee did not volunteer for a change in employment benefits or retain a job in lieu of a new benefit, courts have consistently recognized that the discriminatory denial of a non-contractual employment benefit constitutes an adverse employment action.  The district court thus erred in concluding a discriminatory denial of a favorable severance offer – a non-required benefit – could not be an adverse employment action.  The district court also erred in concluding that any discriminatory action took place after the employment ended.  First, Gerner alleged that she was still employed when she got the poor severance offer.  Second, even if she were not, “Title VII protects both current and former employees from discriminatory adverse employment actions.”  The Court thus reversed and remanded for the district court to determine if the severance offer was “part and parcel of the employment relationship.”

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