We also represent small businesses in a variety of contract and regulatory issues. Everette is particularly genius when it comes to quickly thinking of effective solutions to thorny business questions. In addition to employment law matters, Everette represents persons in the entertainment industry, corporations (especially nonprofit organizations) and a number of electric and telephone rural cooperatives, including organizing and advising them on different business issues that arise.

Wrongful Discharge and “At will” Employment

North Carolina follows the “at-will” employment rule. This means that, if you don’t have an agreement that guarantees a specific period of employment, you can be fired from your job without notice, for any reason, no reason, or a stupid reason, but not for an illegal reason. This means that in nearly all cases you cannot sue the employer if you were fired for: calling your supervisor a bad word; not showing up for work when you were supposed to; taking money from the cash register, punching your supervisor, a co-worker, or a customer; not following your supervisor’s (lawful) instructions – you get the picture.

However, you can sue the employer when you are fired for a reason that violates the law or public policy. “Public policy” reasons that will support a claim for wrongful discharge have to involve issues of public, and not private, concern. This is often a hard line to draw. To give you an idea, public policy that has previously supported claims for wrongful discharge include:

firing employees because they refused to work for less than minimum wage;
firing an employee who refused to commit perjury;
firing an employee because she cooperated with a law enforcement investigation;
forcing the resignation of a trucker who refused to keep false log records.

Employer actions that have been determined not to involve issues of “public policy” include

· requiring the bookkeeper of a private corporation to keep two sets of books;

· sex discrimination by an employer with less than 15 employees;

What is “Discrimination?”

Discrimination means treating some people differently from others. There are a many reasons why an employer might treat people differently, and not all of those reasons violate the law. Only discrimination that occurs because of a person’s membership in a protected category (race, sex, age, national origin, religion, disability, pregnancy) is unlawful and provides a basis for a lawsuit. And only an employer with at least 15 employees (or 20 employees, in age cases) can be sued.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that investigates most employee discrimination claims. You are required to report a claim of unlawful discrimination to the EEOC before you can file a lawsuit, and in most North Carolina cases, the discrimination has to be reported within 180 days of it occurring. If you miss this deadline, you may be barred from pursuing the claim in court.

The EEOC’s investigation may take several months, and you may not hear anything for long periods of time. (This is because the EEOC is normally at or near the bottom rung of federal food chain, they have thousands of claims, and not enough money to devote as much time as they would like.) You can best help the investigation of your case by promptly responding to the EEOC’s calls, and by bringing them the information that is helpful to your case (contact information for witnesses, documents you may have in your possession, etc.).

When the EEOC completes its investigation, it sends out a document called a “Dismissal and Notice of Right to Sue.” (The EEOC may also decide to litigate the case for the employee, but this is very rare – if they do decide to litigate, you will want to intervene in that litigation in order to make sure that your interests are protected.)

The “Dismissal and Notice of Right to Sue” is the formal document that entitles you to file your lawsuit within ninety (90) days, in state or federal court. Once the EEOC issues its “Dismissal and Notice of Right to Sue,” you are entitled to obtain a copy of the investigative file, which will include all of the documents your employer gave the EEOC in response to your Charge. It is important to ask for a copy of this file as soon as possible after you receive the “Dismissal and Notice of Right to Sue,” because it sometimes takes the EEOC thirty (30) days or more to make and send the copies. The EEOC presently maintains North Carolina offices in Charlotte, Greensboro and Raleigh.

What is “Harassment” or “Hostile Work Environment”?

Harassment is a form of discrimination, and is generally treatment that is offensive and occurs because of a person’s gender, race, national origin, religion or some other protected category. Harassment can take many forms, including offensive comments, requests for sexual favors, touching, photographs, and drawings. Harassment can also include stalking, assignment to undesirable positions or tasks. Sexual harassment is often clearly sexual in nature, but it does not have to be in order to give rise to a claim.

Closely tied with the issue of harassment is the concept of “hostile environment.” A “hostile environment” arises when the harassment is severe and pervasive, and prevents a person from being able to do their job. Thus a single offensive comment would not generally create a “hostile environment” unless that single act was extremely egregious.

Claims of harassment and retaliation also must be reported to the EEOC.

Retaliation

The law protects employees from retaliation because they engaged in “protected activity.” “Protected activity” does not include calling your supervisor a dumbass. Instead, “protected activity” under federal law includes complaining of unlawful discrimination or harassment where you have a good faith belief that it occurred, or participating in an investigation of a complaint of unlawful discrimination or harassment. These claims must be reported to the EEOC within 180 days of the retaliation.

North Carolina law also protects employees from retaliation because, among other things, they filed a claim for workers compensation benefits with the N.C. Industrial Commission, because they reported an OSHA violation to the N.C. Department of Labor, or because they filed a claim for unpaid wages or unlawful withholding with the N.C. Department of Labor. These retaliation claims must be reported to the North Carolina Department of Labor within 180 days of the retaliatory act.

What is the FMLA?

The Family Medical Leave Act is a federal law that guarantees eligible employees up to twelve (12) weeks of unpaid leave on account of:

(A) the birth or adoption of a child, or the placement of a child with the employee for foster care;

(B) the employee’s own serious health condition which prevents him/her from working;

In order to be “eligible” the employee must have worked for the employer for at least one year, and worked roughly 30 hours per week (on average) during that year. Also, only employers with at least 50 employees within 75 miles of the employee’s worksite are required to provide FMLA protections.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position, if he/she returns on or before the expiration of the 12-week leave period.

Among other things, an employer can be sued for interfering with an employee’s FMLA leave, denying FMLA leave, refusing to reinstate an employee who timely returns from FMLA leave, requiring an employee to take more FMLA leave than the employee needs, or retaliating against an employee who takes FMLA leave.

What is the ADA?

The American Disabilities Act prohibits discrimination against employees who have a “disability,” have a record of “disability,” or are regarded by the employer as having a “disability.” “Disability” is an incredibly complex issue, but in general, in order to have a “disability” you have to have a mental or physical condition that “significantly impairs a major life activity.” According to the most recent Supreme Court decision, this analysis requires the courts to review whether the person is able to perform the tasks of daily living (washing, brushing teeth, fixing meals, housecleaning, etc.), and decide if the person is significantly more impaired in those tasks than other persons in the population who are not “disabled.” It also requires the courts to consider the person’s abilities with corrective devices, such as prostheses and medication, but may consider side effects that result from medication.

If a person is “disabled,” and is having difficulty performing his/her job, and the employer knows that the reason for the difficulty is the employee’s disability, then the employer may have a duty to reasonably accommodate the employee, as long as it will not pose an undue burden on the employer to do so. In determining whether a reasonable accommodation is available, and would actually work in helping the employee do his/her job, both the employer and employee had required to talk to each other and consider each other’s ideas. An employee is not entitled to the accommodation he/she wants – he/she is only entitled to an accommodation that works.

What is ERISA?

The Employment Retirement Income Security Act (ERISA) is the federal law that controls the vesting and payment of certain benefits provided through the employment, including pension benefits, medical benefits, Short Term and Long Term disability benefits, and some severance benefits. Employees, who are denied these benefits, are entitled to a written letter explaining the reasons for the denial and the process and deadlines for appealing. Employees are also entitled to a copy of the documents that were used in denying the claim, including copies of applicable insurance policies. If you receive a denial letter, you should immediately request a copy of the disability carrier’s file, and then see an attorney who can evaluate the likelihood that you would succeed on an appeal.

What are Wage and Hour Claims?

“Wage and Hour” claims refer to those claims where the employer has either failed to pay minimum wages, or has failed to pay employees the overtime compensation that is owed them. In overtime cases, most often the key question is whether the employee is “exempt” or not, and that can only be determined after a careful evaluation of work actually performed by the employee.

Among other things, North Carolina also has statutory provisions that require employers to pay all “wages” when they are due, and to pay terminated employees their accrued vacation pay when they leave the employment except in limited circumstances. North Carolina has separate provisions that also require that accrued commissions be paid to salespersons that are not employees, after their sales contract is terminated.

Noncompetes

North Carolina courts will enforce a covenant not to compete if it is (a) in writing and signed by the employee, (b) is supported by “consideration,” (c) is reasonable in terms of time and territory, (d) is necessary to support a legitimate business interest of the employer, and (e) does not violate public policy. Whether a covenant is “reasonable” and “necessary” will depend on a variety of factors, including the nature and actual scope of the employer’s business, what information might have been accessible to the employee during the employment, and whether the restrictions are narrowly tailored to protect the employer’s actual interests.

If employees will be exposed to confidential employer information (customer lists, pricing, contracts, etc.) t is important for an employer to have the noncompete reviewed (before giving it to employees) to make sure that it will later be enforceable.

Severance

Oftentimes when an employee is told he/she will be terminated, and is presented with a severance package, it will be important to consider what claims might be given up (“released”) in exchange for receiving the severance. In most cases, we can quickly review a severance package and tell you whether it is a typical arrangement (and not particularly worrisome), and after considering what happened in your particular employment tell you whether we think the severance offered is worth giving up the potential claims, and whether the severance terms are likely to be negotiable.

Unemployment claims

The North Carolina Employment Security Commission (ESC) handles all claims for unemployment benefits when an employee is terminated or forced to resign. Benefits are paid unless the employee was terminated for “misconduct” (something really bad) or “substantial fault” (not as bad, but still the employee’s fault). Where there is “substantial fault” on the part of the employee, some benefits may be denied, but the employee will still get most of the benefits.

If you have been terminated from employment, you should file a claim for unemployment benefits with your local ESC office as soon as possible, so that the paperwork can be processed and you can begin receiving benefits as soon as possible. The ESC will tell you that you are ineligible for unemployment benefits the first seven days that you are unemployed, and this is true, but it does not prevent you from submitting your application for benefits before the seven days are up.

If you are the employer, and want to contest the claim for unemployment benefits, you need to timely respond to the ESC’s form, asking you why the employee was terminated.

Once the ESC makes its initial determination, the losing party can appeal. At that point, the ESC sends a notice of the date/time/location for the appeal, and both the employee and the employer’s representatives appear at a hearing and present their evidence (including witnesses, documents and anything else that is relevant to the issues) and cross-examine each other’s witnesses. (Lately, the ESC has been conducting most of its hearings over the telephone.) The hearing is tape recorded, so that a record is made of all testimony provided to the ESC.

After the hearing, the adjudicator will make a decision and send a letter telling you the decision and advising of the right to appeal from the decision, and the deadline for making that appeal. If either party appeals the adjudicator’s decision, you can obtain a copy of the tapes of the hearing, and/or a written transcript of the hearing by submitting a written request and agreeing to pay the minimal costs of the transcription.

Although State statute prohibits admission in other proceedings of evidence submitted to the ESC (including the taped testimony), it can be extremely helpful to have this information in evaluating the strength of related claims, so it is often a good practice to ask for the tapes, regardless of the outcome.

What is a contingency fee?

A contingency fee is an arrangement where the firm agrees that, instead of charging a flat fee or hourly rate for our work, we will take a percentage of any recovery we obtain for you. Thus, if we don’t recover anything, you don’t pay any fees. However, even in a contingency fee arrangement you are responsible for paying any costs of your case, such as filing fees, photocopy and postage expenses, long distance telephone expenses, court reporter charges, etc.

Does your firm take cases on a contingency fee basis?

Yes, if we believe that the strength of the individual case merits it. We will tell you at your initial consultation if we think we can help you, and if we are willing to take the case on a contingency fee or not.

Will you answer my questions over the phone?

If you are lucky enough to catch Laura answering the phone, or Everette in a good mood, you might be able to get some general legal information immediately on the phone. However, you can also get a lot of that information on this website, so take a look.

For actual meaningful advice specific to your case, it is important that we have a complete understanding of exactly what happened. We have found that it is simply not possible to accurately evaluate a case in a short telephone call, so we schedule face-to-face meetings to talk to you and review any documents you may have, and provide you with a preliminary assessment of your legal rights and options.

When you call to set up an initial consultation, our staff will ask you for the names of everyone that is a potential defendant, so that we can make sure that there is no conflict of interest before we talk to you about your case. In the rare case that there is a conflict, any information that you may have shared will not be given to the attorneys.

How much is an Initial Consultation

Initial consultations cost $100/hour, and the total cost of the consultation will depend on how much time you spend in the consultation. Thus, a fifteen-minute consult will cost $25. A five-minute consult might be free (it’s hard for us to do the math on something so short). A two-hour consult will cost $200. The more you want to talk, and the less disorganized you are, the more it’s going to cost you. Sometimes we will interrupt you if you get off track and start complaining about things that probably don’t matter to your case (parking in downtown Raleigh, the price of gas, politics). If we decide at the consultation to take your case on a contingency fee basis, the consultation fee may be rolled into the contingency fee, so that the consultation won’t cost you anything. But you should be prepared to pay, just in case.

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