Get your CLE before the MCLE deadline!

Adrienne S. Blocker-Education VP - crop for wordpress  by Adrienne Blocker, VP of Education

The February 28 MCLE reporting deadline is approaching fast.  Sign up for one of NCAJ’s live CLE offerings listed below before you run out of time.  NCAJ CLEs are timely and engaging with an emphasis on practical skill development.  Register today!  And you can also learn more about NCAJ’s many convenient online CLE offerings at ncaj.com/cle.

Civil Procedure Boot Camp  |  January 11, 2019 | NCAJ HQ
Learn from the masters as they describe best practices in civil procedure

Anatomy for Lawyers  | January 18, 2019 | NCAJ HQ
Study the parts of the body that are most susceptible to injury and those that are not through videos, illustrations, and animations

Employment Law 2019  | February 1, 2019 | NCAJ HQ
A practical, must-attend seminar for the employment law practitioner

DWI 2019 | February 8, 2019 | NCAJ HQ
Join us for the annual winter DWI program

Ultimate Civil Trial Notebook II  | February 15, 2019  | NCAJ HQ
Back by popular demand, join Program Chair Philip Miller for this highly informative seminar

Ethics Hot Issues  | February 20, 2019  | NCAJ HQ
Join NCAJ Legal Affairs Counsel Burton Craige as he leads this comprehensive seminar on ethics

Disbursements 2019  | February 22, 2019 | Triad
Explore the latest in disbursements including ERISA, Workers’ Comp liens in third party cases, Medicare/Medicaid reimbursements and more

Traffic Law | February 22, 2019 | NCAJ HQ
Expand your practice or brush up on your existing practice with this comprehensive traffic law program

Discovery Toolbox for the Family Law Litigator   | February 21, 2019 | NCAJ HQ
A comprehensive program that covers everything that a family law practitioner needs to know about discovery and the discovery process



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Specialized Lawyer Directories: Get Listed and Get Found

cloninger.brian  by R. Brian Cloninger

 

Today’s post covers improvements that have been made to the NCAJ Specialized Directories.

I always ask clients how they got my name. By far the most frequent answer is they found me online doing a Google search. Until recently, none of my clients found me using the NCAJ Traffic Referral List. Why are they able to find me (and other lawyers listed in the Specialized Directories) now? Keep reading for the answer, to learn why you should update your profile, and why you should get added to the directories, if eligible.

A week or so after NCAJ’s Annual Convention, I contacted Membership and Development Director Amy Smith to suggest changes to our membership profiles and the referral directories that would add a marketing benefit for NCAJ membership. She sent me a recent Trial Smith (aka MemberCentral) post entitled, “We’ve Enhanced SEO with Store, SeminarWeb, Events, and Blog Posts.” The single sentence post read: “New HTML Title Tags are now automatically inserted into pages making Store Items, SeminarWeb Programs, Events and Blog Posts not only more browser friendly for end-users, but also more search engine friendly, including more accurately titled search results in search engines.”

After I looked up the meaning of “SEO” and “HTML,” I started messing around on the NCAJ website and doing some Google searches. The improvements I suggested had already been made without me realizing it. I found myself.

Many of us have used the listserves to request referrals rather than using the NCAJ Specialized Directories. Now, we don’t have to use the listserve for that anymore. Even better, the public can now find NCAJ members easier using the directories or by simply doing a Google search.

All NCAJ members are listed in the Membership Directory. There is also a Bilingual Referral Directory (ncaj.com/bilingual). Listing in other Specialized Directories is only available to members of the Section. For example, listing in the Traffic Referral Directory (ncaj.com/traffic) is a benefit of membership in the Criminal Defense Section. These directories are accessible to NCAJ members and to the public. You must be a member of NCAJ to access the Products Liability and Construction Defects Section Directory (ncaj.com/products), and must be a member of the Section to be listed.

Update your profile (ncaj.com/updateprofile) to get added to the Specialized Directories, and get found!

 

 

Why the Sexual Harassment Scandal at Fox News Should Frighten Employees in North Carolina

If you need a North Carolina employment attorney, you probably aren’t thinking about the story of  Gretchen Carlson’s firing by Fox News and her lawsuit against the CEO. The story is well known by now: a news anchor in New York City says she was dismissed because she was sexually harassed by her boss, Roger Ailes, and she refused to go along with it. As many as 20 other women at FOX News tell of harassment by Ailes, including a woman who reported nearly 20 years of forced sex and “psychological torture” from Mr. Ailes.  No one would disagree that the harassment was terrible for the women involved.

North Carolina employees should take note, however: Gretchen Carlson’s firing and the reasons for it could easily have been swept under the rug. Ms. Carlson had an employment contract that allowed all disputes to be settled by forced arbitration. And North Carolina employees can be subject to forced arbitration too.

What is Forced Arbitration? Forced arbitration is a way to keep employees (and consumers) out of court. Some call it mandatory arbitration rather than forced, but arbitration is only mandatory because it is forced on an employee. Sometimes big companies stick the part of the contract that requires arbitration in the agreements that are signed at the beginning of employment. The requirement also could be written in a separate contract after the employment has begun. But the effect is the same:  forced arbitration is chosen by companies so that the legal process is changed if employees claim that they are discriminated against or harassed.

No Judge or Jury.  There is no judge and there is no jury when arbitration is forced on an employee. Arbitration can keep all evidence out of the public eye, because the employer can require that everything be kept secret that happens in the arbitration. Contrast that with a lawsuit, where every paper filed with the court is on view. The arbitrator who decides the case is often selected by the same company that is accused of doing something wrong and harmful.  The deck is stacked in favor of the employer.

Why is Forced Arbitration a bad thing?

  • Evidence and discovery can be limited: employees cannot find out about other employees who have suffered the same way they have
  • Companies can still choose to go to court – it is the employee that cannot
  • Employees’ awards after discrimination or harassment are often less than after court trials
  • Employees’ chances of winning are smaller than with a lawsuit
  • Sometimes employers have bad patterns of conduct that are kept secret by arbitration
  • Costs can be high when the employee has to pay a share of the arbitrator’s fee

The Seventh Amendment to the United States Constitution gives the right to trial by jury. But courts have often said that people and companies can decide to go to arbitration and the court will recognize the contract. When challenged, sometimes courts have decided to make arbitrations public, even if they are meant to be confidential in the contract.

Tia’s Story.  Think it is only news anchors and celebrities who have to worry about forced arbitration? Think again!  Take the story of an employee of Circuit City, the old electronics retailer.  Tia was harassed by her boss when she was in training to be a manager. The harassment was disgusting, including when the boss exposed his genitals to Tia. Some of the harassment was caught on tape. It was not until then when Circuit City fired him.

Tia filed a lawsuit. But even though the Equal Opportunity Employment Commission found in her favor, Tia’s case was thrown out of court because of the arbitration clause that was buried in her employment agreement.

Tia then went to arbitration because she had no choice. But as we know, Circuit City went out of business.   Tia’s case was over.

Gretchen Carlson’s lawsuit is against Roger Ailes, and not her employer FOX News.  This may allow her to get into court. But it may not:  Ailes lawyers filed a motion to force Ms. Carlson back into arbitration.   You should be allowed to take your case to a judge and jury.  Your right to a jury trial ought to be fought for, just like any other constitutional right.

If you need an employment discrimination attorney or an employment rights attorney in North Carolina, call us.  Valerie Johnson and Leto Copeley are here to help.

Copeley Johnson & Groninger PLLC is a law firm focused on representing individuals and their family members who find themselves in circumstances that they never expected.  Their clients include those who have been injured on the job, on the road, and on the premises of businesses and public facilities.  They also help those whose employers have violated their legal rights.  For more on this firm, visit http://www.cjglawfirm.com.

How Jackson v. NC Department of Commerce Redefined Advocacy in North Carolina Unemployment Hearings

When a person loses his or her job, that person may or may not qualify for unemployment insurance benefits under North Carolina law.  One of the primary issues looked at by the Division of Employment Security is whether the person losing their job either quit without good cause attributable to the employer or was discharged due to misconduct connected with the work.  If someone quits a job, that person is presumed to not be qualified for benefits unless he or she can meet his or her burden of showing that it was a good enough reason under the law to quit and it was a reason that is attributable to the employer.  When a claimant is terminated from his or her job, the presumption is that he or she is qualified for benefits unless the employer can show that the claimant was terminated for what amounts to misconduct connected with the work.

When this is seen as an issue by the DES, the person making that determination is called an Adjudicator.  When a determination is issued, the employer or the employee can appeal the determination, and a hearing is scheduled before an Appeals Referee for a de novo review of the facts leading up to the separation to determine this issue.  The parties present evidence in the form of sworn testimony of witnesses, documents, etc., that are considered by the referee in making a decision.

Parties to an Appeals Hearing are allowed counsel, and the attorney would be responsible for the presentation of evidence.  In general though, this is meant to be a relatively informal setting, where claimants and employers can make appearances without counsel and still have a fair consideration of the issues presented, and the appeals referee is responsible for developing the record.  Objections, in the past, were not made necessarily to preserve the record, but merely to call attention to the lack of weight a particular piece of evidence ought to be given, with, of course, some exceptions.  Other states tend to adopt this level of informality in varying degrees.  For example, in Texas, the Appeal Hearing Officer Handbook states:

When attorneys are appearing before the Hearing Officer they may wish to offer objection to testimony. At that time the Hearing Officer should explain the end result of the hearing is to obtain facts. The attorney should also be assured that the decision of the Appeal Tribunal must be supported by admissible, valid, and legal evidence and that for this reason we rarely exclude from the hearing of the Hearing Officer any evidence which is offered. In the event they insist on making the objection, the attorneys will usually be satisfied through the use of a phrase such as, “Objection is overruled and you may have your exception noted in the record.”

However, Jackson v. N.C. DOC, 775 S.E.2d 687 (N.C. Ct. App. 2015) seems to have made a radical departure from the informal nature of these proceedings.  In that case, Employer offered a written statement of a nurse not present at the hearing into evidence and Claimant failed to object to the entry of that document.  While the statement contained in the document was likely hearsay, the NC Court of Appeals held that Claimant waived her objection to the use of that document to make findings of fact because Claimant did not object at the appeals hearing.

This case has set a precedent of causing the Claimant and Employer to need to be constantly vigilant about protecting the appeals hearing record by making objections.  The impact of this could involve lengthier hearings, which are scheduled for one hour by default.  Hearings that go over the scheduled length of time are sometimes adjourned for a new date some weeks later.  The hearings themselves will likely have a higher level of formality, insofar as the hearings will likely contain more objections designed to preserve the record and argument in support and against such objections.  Authentication of documents, additional corroborating witnesses, and establishing foundation could all be necessary additions to the presentation of a case whereas before such formalities were not usually necessary.

 

Chris Wilms practices with Hopler & Wilms, LLP in Durham, NC and is a member of NCAJ’s Employment Law Section.  Mr. Wilms represents Employers and Claimants in all stages of the Unemployment Claims and Appeals process in North Carolina.

 

 

Symptomatic Redress vs. Systemic Change: Are we chasing the devil or the prize?

The Challenge
We have more laws on the books than ever and thus the inference is we’ve expanded workers’ rights. But, is this enough? Maybe it’s time for a multi-disciplinary approach, to change the paradigm, as we seek to have these laws enforced. To many, we are treating the symptoms rather than curing the disease. It’s been my experience that both management and employees are concerned about the same things: 1) the employee’s ability to do a job, 2) access to resources needed to do the job, and 3) adequate, equitable measurements and reward for doing a good job. Yet, the manner by which these translate into the workplace is very different, and in response to these differences, litigation has become the mechanism for resolution.
The top reasons for employment lawsuits have more to do with a lack of communication and lack of training than with the law. Some of these include: unfair or unsubstantiated discipline, suspicious timing, and slow or whitewashed internal investigations.
Yet, a lack of accommodations, violation of leave, wage and hour laws are heavily in the midst! There is more confusion than ever around accommodations, compensation and leave issues, which are at the very core of an employer-employee relationship. Integrated workspaces, changing demographics, global competition, baby boomers and millennials present some of the greatest challenges in today’s workplace. And, a growing number of employees seek leave under the FMLA for purposes of taking care of veteran and elderly family members. Additionally, at some point in their life, over 75% of working women in the US will become pregnant. I can recall about 25 years ago, a select few began to seek employee feedback, offered flex time, lactation rooms, child care subsidies and onsite centers. This was the advent of the “work-life balance” movement. Consequently, most of these companies recognized tangible and intangible benefits from their customer base with a higher level of employee loyalty, engagement and profitability.

A Movement is Needed
Today, such a movement is needed. I could provide you with a laundry list of answers to five of the most commonly asked questions including such questions as do you have to share an employee’s personnel file with them? Or, can you change an employee’s shift? But, I prefer to use this space to discuss a larger more global issue, and that is working towards a balanced employee-employer approach that fosters a collaborative versus an enterprise risk management model. Recruiting, turnover and lawsuits are costing both the employer and the employee more than ever. This year alone, major administrative and Supreme Court decisions addressed LGBT rights, same-sex benefits, pregnancy accommodations, dress/appearance and religious policies, wage and hour standards, and compliance with the Affordable Health Care Act. Yet, FMLA and retaliation lawsuits are at an all time high. And not surprisingly, the EEOC reports retaliation as the most common issue alleged and the most common discrimination finding. Studies now show that threat and punishment are the least effective forms of social change and do not result in long-lasting improvement.

An Optimal Solution
The measurement of human capital and outcomes is critical to the bottom line. Some companies are getting it, and some are not. Lowering the bottom line and reporting a human capital line item to investors and shareholders are necessary and encompass a critical metric that correlates with lawsuits, employee engagement and overall profitability. So, what does mean, and what does this have to do with us as lawyers? There is an increasing blur between where HR ends and employment lawyers begin. This presents both overlap and opportunity. In a nutshell, a multi-disciplinary approach that effectively integrates employment law with best practices for human resources into a business model will more fully address the challenges of today.
Tying human resources and employment law into the overall corporate strategic plan, and having an employee rights advocate along with litigation support are needed. This used to be the role of HR, but that is no longer the case. To stimulate and effectuate real change in the workplace, one can no longer afford to focus solely on the employer’s rights, but there has to be a balance of employer rights and employee rights. Applying the law in an agile way and not a perfunctory manner by those who are entrusted to carry out the practices – management, owners and employees, when properly executed will lead not to just improved profitability, but sustainable profitability, increased productivity, retention and a reduction of lawsuits. Systemic change can only come through revolutionary ideas, for which we can play a role in developing. In the rare instances where I happen to be fortunate enough to assist clients with retaining their jobs, or developing an exit strategy, it is clear to me, they almost always prefer to have the option of keeping their job long-term or transferring from a bad environment/manager. But, by the time they get to a lawyer, this is seldom a viable option. Many employees not only need legal representation, but direction and knowledge of their rights and responsibilities. Generally speaking, this doesn’t exist outside of the legal realm. And when I have had the opportunity to speak with management (in a non-adversarial environment), almost always, they would have preferred to have avoided litigation, but see it as a necessary evil with their option of settling as a means to reduce litigation costs. The opportunity exists for us to help shape and implement new workplace strategies that would educate and inform employees and potentially eliminate litigation costs by changing the work environment.

The Call to Action
This requires the changing of mindsets, office politics and corporate cultures. So, at the end of the lawsuit, are lawyers just preparing for the next one, or can they influence their corporate clients to re-evaluate workplace strategies that go much deeper than annual anti-discrimination training? Can plaintiffs’ lawyers work more closely with employees and communities or offer companies an advocacy role for its employees in advance of litigation rather than representing them only in litigation? Is this too revolutionary? The legal landscape is changing, and so exploring innovative ways to add value while leading to systemic change in the workplace will be crucial in the not so distant future. This drives sustainable profitability for companies, job retention and satisfaction for employees, job security and true fulfillment in what employment lawyers do, make a sustainable difference while advancing workplace rights.
Employment outcomes impact so much more than having a job, but one’s employment often dictates access to resources, including health care and housing. For more information on ways individuals and employees can learn more about their rights, go to www.workplacefairness.org. Maybe it’s time we re-evaluate the strategy, stop chasing the devil and start chasing the prize.

The author: Bartina L. Edwards is based in Charlotte, NC, where she practices employment law and business law in The Law Office of Bartina Edwards. She has a corporate background  and represents the plaintiff in employment actions. She also serves as an Adjunct Professor at the N.C. Central University School of Law where she teaches employment law. (www.blelaw.com).

EEOC Rules that Sexual Orientation Discrimination Violates Title VII

In a recent case involving a federal employee, Baldwin v. Foxx, the Equal Employment Opportunity Commission (“EEOC”) ruled that sexual orientation discrimination is sex discrimination and therefore violates Title VII. The EEOC is the final decision-making authority in most federal sector cases alleging employment discrimination. While this case involved a federal employee, the ruling has broad implications to impact the way Title VII is interpreted for private sector employees.

Because the EEOC is a federal rule-making authority, its interpretation of Title VII is afforded deference by federal courts in most circumstances. As a result of the decision in Baldwin, it will arguably be less of a reach for federal judges to find that sexual orientation claims are actionable as a matter of law. To date, several federal courts have found that sexual orientation claims are not actionable under Title VII; however, one federal district court last year permitted a claim based on sexual orientation to proceed.

The EEOC’s decision rests in the same logic followed by the Supreme Court in its Price Waterhouse v. Hopkins decision in 1989, finding that discrimination based on gender stereotyping is sex discrimination. In the Baldwin case, the EEOC noted that disapproval of someone based on sexual orientation is tantamount to disapproval of that individual’s failure to conform to stereotypes or expectations about his or her gender. The Commission wrote that “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.”

Make no mistake, this is an impactful landmark decision that, absent explicit protections for gay, lesbian and bisexual employees, will bring aggrieved employees one step closer to relief.   Congress can strengthen Title VII and help root out discrimination against LGBT persons in the workplace by amending Title VII to include sexual orientation and gender identity and expression as protected classes.

If you’re an employee who has suffered from a termination, demotion, harassment, hostile work environment, or some other adverse action based on your sexual orientation, you should speak with an attorney about your situation.  Employers:  dust off your handbooks and add sexual orientation and gender identity and expression to your anti-discrimination and anti-harassment policies.

~ The Noble Law Firm is a boutique Labor and Employment Law Firm in Chapel Hill, NC.  Founded in 2009, The Noble Law Firm provides forward-thinking trusted employment law counsel and assertive representation on key employment issues to individuals experiencing problems in their employment relationship and companies wishing to execute “best practices” to improve employment relations and minimize litigation exposure.