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

In Combs v. City Electric Supply Company, the Court of Appeals reversed the trial court in large part, concluding that the plaintiff had presented sufficient evidence to support a claim of wrongful discharge in violation of public policy and tortious interference with contract.  The Court, however, upheld the dismissal of the plaintiff’s Unfair and Deceptive Trade Practices Act (UDTP) claim.

The plaintiff’s case was based on the allegation that his former employer, City Electric Supply Company, terminated him in retaliation for reporting that the company was stealing from its customers’ accounts. The plaintiff brought three claims: wrongful discharge in violation of public policy, tortious interference of contract, and the UDTP claim. At the close of plaintiff’s evidence the trial judge granted the Defendants’ Motion for a Directed Verdict and entered a judgment in favor of defendants.

The Court of Appeals reversed the trial court’s decision to grant a directed verdict on the wrongful discharge and tortious interference claims because the plaintiff presented “more than a scintilla of evidence” in support of each element of these claims.  Crucially, the Court found that there was sufficient evidence that the company had committed criminal conduct, and that the plaintiff was terminated for reporting this conduct.

The Court, however, affirmed the directed verdict on the UDTP claim because the employment dispute between the parties did not include any conduct that would constitute activity “affecting commerce.’” According to the Court, a retaliation claim is simply an employment dispute and does not fall within the purview of the UDTP statute.

Categories: Judicial Decisions Tags: Case Commentary, Labor and Employment, NC Court of Appeals, Retaliation, UDTP, Wrongful Discharge

The Fourth Circuit has published opinions in three labor and employment cases in recent weeks.  The first case, Sepulveda v. Allen Family Foods, Inc., concerned a Fair Labor Standards Act (FLSA) collective action that was brought on behalf of a class of current and former employees of a chicken processing plant.  The employees claimed, among other things, that the company had violated the FLSA by not compensating them for time spent donning and doffing their protective gear before and after their shifts.  There is a specific exception in FLSA for cases regarding compensable time for “changing clothes” when the employees are represented by a union that has negotiated a collective bargaining unit.  The Court held that putting on and taking off protecting gear was “changing clothes,” so the exception applied because these plaintiffs had a union, and so judgment was rightly granted to the employer.

Read more…

Categories: Judicial Decisions Tags: Case Commentary, Collective Action, Concerted Activity, FLSA, Fourth Circuit, Labor and Employment, NLRB, Retaliation, Sarbanes-Oxley Act, Union, Wage and Hour

The new report by the Government Accountability Office (GAO) found that both workers and health care professionals are often pressured not to report workplace injurues.  The GAO surveyed more than 1,000 occupational health practitioners and found (1) more than two-thirds observed worker fear for reporting an injury or illness, (2) a third said they were pressured by employers to provide insufficient treatments to workers to hide or downplay work-related injuries or illnesses, and (3) more than half of practitioners said they were pressured by an employer to downplay an injury or illness so it wouldn’t be reported on an official log.  Full report available here.  Coverage here.

Categories: General News Tags: OSHA, Retaliation, Workers' Compensation, Workplace Safety

A recent Wall Street Journal article highlights the trend of more retaliation cases being filed with the EEOC, and likely the courts.  In addition to retaliation claims that are filed with the EEOC (i.e. retaliation related to race, sex, disability, etc. discrimination), many other federal laws have anti-retaliation provisins (such as the Fair Labor Standards Act), as do several North Carolina laws (most importantly, the Retaliatory Employment Discrimination Act).  As shown in the graphs in the article, more discrimination claims overall are also being filed in these times of greater layoffs.

Categories: General News Tags: EEOC, Fair Labor Standards Act, FLSA, Labor and Employment, REDA, Retaliation, Retaliatory Employment Discrimination Act

A new study, “Broken Laws, Unprotected Workers,” shows that employers routinely violate the employment rights  of low wage workers, with frequent violations of the wage and hour laws, workers’ compensation laws, and anti-retaliation protections.  (The original study is here; a summary of the study is here.)  Here are some of the startling findings:

• 68 percent of the workers interviewed had experienced at least one pay-related violation in the previous work week, including failures to pay earned wages, at least minimum wage, or overtime pay.
• 26 percent of the workers had been paid less than the minimum wage the week before being surveyed and that one in seven had worked off the clock the previous week.
• 76 percent of those who had worked overtime the week before were not paid their proper overtime. Read more…

Categories: General News Tags: Labor and Employment, Minimum Wage, Overtime, Retaliation, Union, Wage and Hour, Workers' Compensation

In UPS v. Calhoun, the plaintiff (who worked at the UPS facility in Greensboro) had filed a complaint with OSHA that he had been retaliated against for engaging in daily vehicle inspections that he thought necessary for vehicle safety.   He claimed that such activity was protected by the Surface Transportation Assistance Act (STAA).  The Department of Labor ultimately rejected plaintiff’s claim, and the 4th Circuit affirmed the DOL’s decision.

Categories: Judicial Decisions Tags: Case Commentary, Fourth Circuit, Labor and Employment, Retaliation

The North Carolina Supreme Court unanimously reversed the Court of Appeals today, ruling instead for the plaintiff in Helm v. Appalachian State University.  Adopting Judge Calabria’s dissent, the Court held that the plaintiff has stated a valid retalation claim under the state’s Whitleblower Act because she opposed a waste of funds by the university.  Patterson Harkavy represented the plaintiff, Jane Helm, and Burton Craige argued the case before the Supreme Court.

Categories: Judicial Decisions, Results Tags: Burton Craige, Labor and Employment, NC Supreme Court, Patterson Harkavy, Results, Retaliation, Whistleblower Act

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