This is your weekly update of bills introduced or moving through the legislature. Last week’s blog post listed a variety of bills and their current status. This update will only describe new legislation or updates on significant bills already introduced. If a bill is moving between committees and/or going nowhere we will not necessarily have updated it for you. Again, many of the listed bills are not necessarily going to be enacted, and all are still subject to being rewritten. Here is this week’s update:
Beyond requiring that employers comply with statutory minimum and overtime wage provisions for nonexempt employees, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., renders it unlawful for employers to retaliate against employees for asserting their rights under the law. Employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” 29 U.S.C. § 215(a)(3). Retaliation claims under this section generally require the performance of a “protected activity” by an employee, such as filing a complaint, a subsequent “adverse action” by an employer, such as terminating or demoting an employee, and a “causal connection” between the protected activity and the adverse action. It is well established that employers who violate the anti-retaliation provisions of § 215(a)(3) may be liable for legal and equitable relief under § 216(b), including reinstatement, promotion, lost wages, front pay, liquidated damages, and reasonable attorney’s fees. But what about other remedies, such as compensatory damages for emotional distress stemming from the retaliatory act(s)?
Here we are a mere 60 days into 2017 and my many well-intentioned New Year’s resolutions are dead and buried with a fresh covering of rationalization and self-loathing.
I am wicked and weak.
Exercise, salad and watching less television are overrated, anyway, right?
Still, it’s a little depressing to chalk 2017 up to a total fail so early. There are probably some little things that I can resolve to do. Small changes and incremental improvements that have a chance of being sustainable. Things that might actually happen.
I am moderate and rational.
I’ve got my list of stuff to work on. If your resolutions have chalk outlines around them, as well, come on and join me with a few new ones of your own. Bonus points if they are useful or fun. We’ll call them our “almost new year’s resolutions.”
https://www.ncbarblog.com/wp-content/uploads/2017/03/ErikSnapHeader.jpg7501408NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-03-02 11:40:512017-03-02 11:40:51Try Snapchat, and Three Other Resolutions For the Rest of 2017
Have you been wanting to write an article on a health law topic but are unsure how and where to publish it? Well, good news! The NCBA Health Law Section and N.C. Society of Health Care Attorneys are seeking articles for our new blog, Prognosis. The blog takes the place of the Prognosis newsletter, but the process for contributing an article remains the same: Simply prepare a post and send it to an editor (listed below). Each article will be accompanied by a photo and bio link to the author.
Please send all proposed publications to a member of the editorial board five days before the blog is to be posted to allow for review. The schedule for posting new blog publications in the next few months is as follows:
March 16
March 30
April 20
May 4
May 18
June 2
In addition to comprehensive articles on various health care topics, the blog will also carry announcements on events in the health care community and links to other sites of interest to readers.
We hope you will take advantage of this opportunity for recognition and career development and become a frequent contributor to the blog!
My first attempt at leaping into the unknown was when I switched careers from meeting deadlines for one editor to meeting deadlines for an attorney, a clerk and a client. My organizational and writing skills were the pillars that held me steady during my time at the public defender’s office. I learned about criminal law and the inner workings of the courthouse, and the unknown became familiar.
A couple of leaps forward landed me in Raleigh. And soon, the unknown became familiar. That’s why I am planning to attend the Paralegal Division Family Law CPE on March 23 at the Bar Center. I will admit it. The closest I have been to family court is a courtroom observation during my paralegal days. So, this seminar is pretty exciting for me.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-27 11:54:402017-02-27 11:54:40Getting Out Of My Comfort Zone
As an increasingly contested topic since the rise of the Bowl Championship Series in the early-2000s and the NCAA’s 2010 multi-billion dollar March Madness broadcasting deal, as well as the recent advent of the College Football Playoff, the NCAA’s amateurism model has come under intense scrutiny—and with it the employment status (or lack thereof) of the student-athletes over which it governs. Public opinion and scholarship has virtually wed the two issues at this point, and the modern revenue sport landscape has dictated heated discussion but yielded none of the drastic changes for which proponents of reform have called.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-24 13:52:152017-02-24 13:52:15Student-Athletes As Employees: Northwestern, Columbia and Unionization
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-24 13:46:272017-02-24 13:46:27Articles Of Interest
We are your legislative co-chairs for this long session. Over the past few weeks, we have seen a number of bills that will potentially impact your practice or your clients. Many of these bills are not likely to pass, but it is too soon to say which will die a lonely, miserable death in a rules committee. We will try to keep you updated, but here’s the list of bills we are watching, so far:
The February 2017 edition of North Carolina Lawyer magazine acknowledged the inauguration of Roy Cooper, a lawyer and member of the North Carolina Bar Association, as North Carolina’s 75th governor.
The article also denoted an impressive statistic regarding the frequency with which lawyers have held this state’s highest office since the establishment of the NCBA. Since 1899, it was reported, 19 lawyers and only seven non-lawyers have served as governor.
Robert Brodnax Glenn, photo courtesy of the State Archives of North Carolina
That is incorrect.
Actually, 20 lawyers and only six non-lawyers have held the state’s highest office during the 118-year history of the NCBA. Correcting the lawyer designations in the following list of N.C. governors, derived from the NCBA’s centennial history book, Robert Brodnax Glenn was also an attorney.
He was, in fact, a United States Attorney, appointed by President Grover Cleveland in 1893. Glenn served as governor from 1905-09 and practiced law in Winston-Salem with Glenn & Glenn. The firm traces its history to 1876 and will be more familiar to most folks under its current nameplate: Womble Carlyle Sandridge & Rice.
https://www.ncbarblog.com/wp-content/uploads/2017/02/Leg-Bld-3.jpg8893008NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-22 13:56:372017-02-22 13:56:37Make That 20 Of 26 N.C. Governors Who Were Lawyers, Too
You and I make a deal: You pay me monthly installments and when an event occurs, I will pay you a set amount of money (we’ll call this deal “life insurance”). After several years, I notify you that you have failed to return a required document, allowing me to void the life insurance. The event occurs and I refuse to pay. In most circumstances you could potentially make claims against me for negligent misrepresentation or fraud; constructive fraud; and negligent or intentional infliction of emotional distress. But if I were your employer, all of these claims would be preempted by the Employee Retirement Income Security Act (ERISA).
In Prince v. Sears Holdings Corp., No. 16-1075 (4th Cir. Jan. 27, 2017), the 4th Circuit reiterated that regardless of what a plaintiff calls a claim or how the plaintiff frames the claim, if ERISA applies, then ERISA pre-empts that claim. In 2011, Prince purchased a life insurance policy on his wife through his employer, Sears. Sears sent a confirmation letter and began withholding premiums from Prince’s pay. Later that year, Mrs. Prince was diagnosed with cancer. In 2012, Prince checked his benefits summary with Sears, which confirmed the life insurance. In 2013, Sears notified Prince that he had not returned a required document in 2011—Prince denied receiving the document but had no proof it had not been sent—and, therefore, Prince’s insurance would be canceled. Mrs. Prince died in 2014 and Sears denied Prince’s claim on the insurance policy.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-02-16 16:07:132017-02-16 16:07:13A Claim By Any Other Name Would Still Be Pre-empted By ERISA
Legislative Update
Labor & Employment LawBy Faith Herndon and Laura Wetsch
This is your weekly update of bills introduced or moving through the legislature. Last week’s blog post listed a variety of bills and their current status. This update will only describe new legislation or updates on significant bills already introduced. If a bill is moving between committees and/or going nowhere we will not necessarily have updated it for you. Again, many of the listed bills are not necessarily going to be enacted, and all are still subject to being rewritten. Here is this week’s update:
Read more
Fifth Circuit: Employers Liable for Emotional Distress Damages in FLSA Retaliation Claims
Labor & Employment Law, UncategorizedBeyond requiring that employers comply with statutory minimum and overtime wage provisions for nonexempt employees, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., renders it unlawful for employers to retaliate against employees for asserting their rights under the law. Employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” 29 U.S.C. § 215(a)(3). Retaliation claims under this section generally require the performance of a “protected activity” by an employee, such as filing a complaint, a subsequent “adverse action” by an employer, such as terminating or demoting an employee, and a “causal connection” between the protected activity and the adverse action. It is well established that employers who violate the anti-retaliation provisions of § 215(a)(3) may be liable for legal and equitable relief under § 216(b), including reinstatement, promotion, lost wages, front pay, liquidated damages, and reasonable attorney’s fees. But what about other remedies, such as compensatory damages for emotional distress stemming from the retaliatory act(s)?
Read more
Try Snapchat, and Three Other Resolutions For the Rest of 2017
Featured PostsHere we are a mere 60 days into 2017 and my many well-intentioned New Year’s resolutions are dead and buried with a fresh covering of rationalization and self-loathing.
I am wicked and weak.
Exercise, salad and watching less television are overrated, anyway, right?
Still, it’s a little depressing to chalk 2017 up to a total fail so early. There are probably some little things that I can resolve to do. Small changes and incremental improvements that have a chance of being sustainable. Things that might actually happen.
I am moderate and rational.
I’ve got my list of stuff to work on. If your resolutions have chalk outlines around them, as well, come on and join me with a few new ones of your own. Bonus points if they are useful or fun. We’ll call them our “almost new year’s resolutions.”
Read more
Happy Blogging
Health Law SectionHave you been wanting to write an article on a health law topic but are unsure how and where to publish it? Well, good news! The NCBA Health Law Section and N.C. Society of Health Care Attorneys are seeking articles for our new blog, Prognosis. The blog takes the place of the Prognosis newsletter, but the process for contributing an article remains the same: Simply prepare a post and send it to an editor (listed below). Each article will be accompanied by a photo and bio link to the author.
Please send all proposed publications to a member of the editorial board five days before the blog is to be posted to allow for review. The schedule for posting new blog publications in the next few months is as follows:
In addition to comprehensive articles on various health care topics, the blog will also carry announcements on events in the health care community and links to other sites of interest to readers.
We hope you will take advantage of this opportunity for recognition and career development and become a frequent contributor to the blog!
The Editorial Board
Michael Murchison, Co-Editor, [email protected]
Ruth Levy, Co-Editor, [email protected]
Tim McNeill, [email protected]
Richard Saver, [email protected]
Robert Shaw, [email protected]
Amy Weaver, [email protected]
Getting Out Of My Comfort Zone
Paralegal Division, UncategorizedMy first attempt at leaping into the unknown was when I switched careers from meeting deadlines for one editor to meeting deadlines for an attorney, a clerk and a client. My organizational and writing skills were the pillars that held me steady during my time at the public defender’s office. I learned about criminal law and the inner workings of the courthouse, and the unknown became familiar.
A couple of leaps forward landed me in Raleigh. And soon, the unknown became familiar. That’s why I am planning to attend the Paralegal Division Family Law CPE on March 23 at the Bar Center. I will admit it. The closest I have been to family court is a courtroom observation during my paralegal days. So, this seminar is pretty exciting for me.
Read more
Student-Athletes As Employees: Northwestern, Columbia and Unionization
Sports & Entertainment Law SectionSports & Entertainment Law Section
By Mike Ingersoll
I. Introduction
As an increasingly contested topic since the rise of the Bowl Championship Series in the early-2000s and the NCAA’s 2010 multi-billion dollar March Madness broadcasting deal, as well as the recent advent of the College Football Playoff, the NCAA’s amateurism model has come under intense scrutiny—and with it the employment status (or lack thereof) of the student-athletes over which it governs. Public opinion and scholarship has virtually wed the two issues at this point, and the modern revenue sport landscape has dictated heated discussion but yielded none of the drastic changes for which proponents of reform have called.
Read more
Articles Of Interest
Sports & Entertainment Law SectionMembers of the Sports & Entertainment Law Section found the following recent third-party articles to be of potential interest to the section:
St. Louis Cardinals Hacking Scandal: A Real-World Example Of the Importance Of Password Management
http://www.privacyanddatasecurityinsight.com/2017/02/st-louis-cardinals-hacking-scandal-a-real-world-example-of-the-importance-of-password-management/#page=1
Retesting and Re-writing History: The 10-year Fight For Clean Olympic Games
http://www.sports.legal/2017/02/retesting-and-re-writing-history-the-10-year-fight-for-clean-olympic-games/
NLRB General Counsel Asserts That College Football Players Are “Employees”
http://www.dinsmore.com/nlrb-general-counsel-asserts-that-college-football-players-are-employees-02-07-2017/
McCartney Battles To Reclaim Copyright In Beatles’ Songs
http://www.shoosmiths.co.uk/client-resources/legal-updates/mccartney-battles-to-reclaim-copyright-in-beatles-songs-12412.aspx
Vaiana and Moana: A Story of Two Disney Heroines
http://www.novagraaf.com/en/news?newspath=/NewsItems/en/vaiana-and-moana-a-story-of-two-disney-heroines
Is There Copyright Infringement in Whoville?
https://www.copyrightcontentplatforms.com/2017/02/is-there-copyright-infringement-in-whoville/?
utm_source=feedburner&utm_medium=feed&utm_campaign=
Feed%3A+CopyrightContentAndPlatforms
+%28Copyright%2C+Content%2C+and+Platforms%29
“You’re Fired”: The Growing Fallout from Celebrity Rants
https://www.adlawbyrequest.com/2017/02/articles/ad-guides-and-alerts/youre-fired-the-growing-fallout-from-celebrity-rants#page=1
Legislative Update
Labor & Employment LawBy Laura Wetsch and Faith Herndon
We are your legislative co-chairs for this long session. Over the past few weeks, we have seen a number of bills that will potentially impact your practice or your clients. Many of these bills are not likely to pass, but it is too soon to say which will die a lonely, miserable death in a rules committee. We will try to keep you updated, but here’s the list of bills we are watching, so far:
Read more
Make That 20 Of 26 N.C. Governors Who Were Lawyers, Too
Featured PostsThe February 2017 edition of North Carolina Lawyer magazine acknowledged the inauguration of Roy Cooper, a lawyer and member of the North Carolina Bar Association, as North Carolina’s 75th governor.
The article also denoted an impressive statistic regarding the frequency with which lawyers have held this state’s highest office since the establishment of the NCBA. Since 1899, it was reported, 19 lawyers and only seven non-lawyers have served as governor.
Robert Brodnax Glenn, photo courtesy of the State Archives of North Carolina
That is incorrect.
Actually, 20 lawyers and only six non-lawyers have held the state’s highest office during the 118-year history of the NCBA. Correcting the lawyer designations in the following list of N.C. governors, derived from the NCBA’s centennial history book, Robert Brodnax Glenn was also an attorney.
He was, in fact, a United States Attorney, appointed by President Grover Cleveland in 1893. Glenn served as governor from 1905-09 and practiced law in Winston-Salem with Glenn & Glenn. The firm traces its history to 1876 and will be more familiar to most folks under its current nameplate: Womble Carlyle Sandridge & Rice.
Read more
A Claim By Any Other Name Would Still Be Pre-empted By ERISA
Labor & Employment LawYou and I make a deal: You pay me monthly installments and when an event occurs, I will pay you a set amount of money (we’ll call this deal “life insurance”). After several years, I notify you that you have failed to return a required document, allowing me to void the life insurance. The event occurs and I refuse to pay. In most circumstances you could potentially make claims against me for negligent misrepresentation or fraud; constructive fraud; and negligent or intentional infliction of emotional distress. But if I were your employer, all of these claims would be preempted by the Employee Retirement Income Security Act (ERISA).
In Prince v. Sears Holdings Corp., No. 16-1075 (4th Cir. Jan. 27, 2017), the 4th Circuit reiterated that regardless of what a plaintiff calls a claim or how the plaintiff frames the claim, if ERISA applies, then ERISA pre-empts that claim. In 2011, Prince purchased a life insurance policy on his wife through his employer, Sears. Sears sent a confirmation letter and began withholding premiums from Prince’s pay. Later that year, Mrs. Prince was diagnosed with cancer. In 2012, Prince checked his benefits summary with Sears, which confirmed the life insurance. In 2013, Sears notified Prince that he had not returned a required document in 2011—Prince denied receiving the document but had no proof it had not been sent—and, therefore, Prince’s insurance would be canceled. Mrs. Prince died in 2014 and Sears denied Prince’s claim on the insurance policy.
Read more