What is FMLA Leave?

Under the FMLA, employees who work for covered employers must be permitted to take up to twelve workweeks of unpaid leave in a twelve month period if a "serious health condition makes the employee unable to perform the functions of the position of such employee."  FMLA leave can be taken all at once or intermittently – for example, in increments of days or even hours.  Also, eligible employees are entitled to take twelve workweeks of FMLA leave in a twelve-month period.  So, an employee who regularly works 30 hours per week is entitled to take twelve 30-hour weeks of FMLA leave and an employee who regularly works 50 hours per week is entitled to take twelve 50-hour weeks of FMLA leave.

The Department of Labor's Opinion Letter

Recently, an employer asked the DOL whether an employee, who regularly worked more than eight hours in a day, could use FMLA leave to reduce shifts to eight hours per day because their serious health condition prevented working longer hours. The DOL said yes, an employee who qualifies for FMLA leave and normally works more than eight hours per shift can use FMLA leave to reduce shifts to eight hours. The remaining hours that the employee would normally have worked will count against the employee's twelve workweeks of FMLA leave. 

Remember, not every employer is required to provide employees with FMLA leave and not every health condition qualifies as a "serious health condition." The rules are confusing, so consult with an attorney at Gibbons Law Group, PLLC if you have questions about whether you are eligible to take FMLA leave or if you believe your employer violated your FMLA rights.

What is a non-compete agreement?

Generally, a non-compete agreement is an agreement between employers and workers that prohibits the worker from working in a competitive business following the termination of the employment relationship. Non-compete agreements limit free competition between employers, as well as suppress wages and limit worker mobility.  Imagine if you were fired from your job and had to move to another state for several years just to continue working in your field.

The FTC’s proposed rule defines a “non-compete clause” as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” The proposed rule would use a “functional test” to determine if a contract includes a non-compete clause. In other words, a contract that does not contain the phrase “non-compete” could nevertheless be prohibited by this rule if it has the effect of prohibiting the worker from seeking or accepting employment after the current employment relationship ends.

What would the FTC’s rule do?

If adopted, the proposed rule would prohibit employers from entering into, or attempting to enter into, a non-compete clause with a worker. The proposed rule would also prohibit employers from maintaining current non-compete agreements. In other words, any existing non-compete agreements must be rescinded by the compliance date, 180 days after the final rule is published in the Federal Register, an official list of rules proposed or adopted by federal agencies.

What is the status of the rule?

The Pregnant Workers Fairness Act

The PWFA requires employers to make reasonable accommodations for the known limitations associated with pregnancy, childbirth, or related medical conditions to a "qualified employee," unless the accommodation would impose an undue hardship on the employer.  A "qualified employee" is an employee or applicant who can perform the essential functions of the employment position, with or without a reasonable accommodation. 

The protections of the PWFA are similar to the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), except with additional protections.  The PWFA makes it unlawful for an employer to require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept:

1. an accommodation other than any reasonable accommodation arrived at through the interactive process or
2. to require a qualified employee to take leave if another reasonable accommodation can be provided.

The PWFA also makes it unlawful to deny employment opportunities to a qualified employee if the denial is based on the employee's need for a reasonable accommodation.  For example, the employer cannot deny you a promotion because you asked for a reasonable accommodation.  The PWFA also bans taking an adverse employment action on account of the employee's requesting or using a reasonable accommodation.  In other words, the employer cannot refuse to hire, suspend, terminate, etc. because you request an accommodation or because you utilized the accommodation provided to you.  

IMPORTANT NOTES

The PWFA becomes effective June 27, 2023.

The PWFA only applies when the employer has 15 or more employees.

Just like the PDA, ADA, and other employment-related discrimination statutes, the employer must have notice of the limitations associated with the qualified employee's pregnancy, childbirth, or related medical conditions.  Inform your employer of any limitations you experience that affect your ability to perform your job as soon as possible.

The Equal Employment Opportunity Commission (EEOC) is required to issue regulations by or before June 27, 2025, which will provide examples of reasonable accommodations addressing the known limitations related to pregnancy, childbirth, or related medical conditions. 

The Providing Urgent Maternal Protections for Nursing Mothers Act

The PUMP Act provides protections—in addition to those provided under the Fair Labor Standards Act (FLSA)—for employees who need to express breast milk while at work.  Under the FLSA, an employer is required to provide employees expressing breast milk with a reasonable break period each time an employee needs to do so within the first year after the birth of a child.  The PUMP Act extends this protection to cover a two-year period after the birth of a child. 

Additionally, the PUMP Act requires the employer to provide a place—other than a restroom—that:

1. obstructs other employee's views of the lactating employee and
2. is free from intrusion from co-workers and the public.

The PUMP Act additionally updates former legislation to provide clarification on compensation due while an employee utilizes the break time to express breast milk.  If an employee is completely relieved from duty, the employer is not required to compensate an employee during the break time.  However, if you are not completely relieved from duty, the employer is required to compensate you for the entire break.

IMPORTANT NOTES

The PUMP Act becomes effective April 28, 2023.

The PUMP Act only applies to employers who have 50 or more employees.

The PUMP Act does not apply to flight attendants or pilots.

There is a three-year delay in implementing the PUMP Act protections for railway workers.

The PUMP Act applies to all covered employees (i.e., exempt and non-exempt).

With some exceptions, employees are required to provide notice of any alleged violation and provide the employer a 10-day period to fix any violation before starting legal action.

If you have any questions about the PWFA or the PUMP Act, please contact Gibbons Law Group, PLLC.

The consensus in the legal community is that employers in the private sector can mandate employees to receive COVID-19 vaccinations if the mandate complies with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other applicable EEO laws. 

Thus, the first threshold question is whether the employer must comply with such laws.  In general, most employers with fifteen or more employees must comply with the ADA, Title VII, and other applicable EEO laws.

For employers with over fifteen employees, a COVID-19 vaccination policy must provide reasonable accommodations for individuals with disabilities or for sincerely held religious beliefs.

Reasonable Accommodations For Individuals With Disabilities

Under the ADA, a covered employer can have a qualification standard, such as a vaccination requirement, that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  A covered employer cannot use “qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities.”  29 C.F.R. § 1630.10.  However, the employer can use the standard, test, or other selection criteria if the covered employer can show it “to be job-related for the position in question and is consistent with business necessity.”  Id.  If the safety-based qualification standard tends to screen out individuals with a disability, the employer is required to show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r).

The EEOC has advised that employers should conduct an individualized assessment using four factors to determine whether a direct threat exists:

• The duration of the risk
• The nature and severity of the potential harm
• The likelihood that the potential harm will occur
• The imminence of the potential harm

See U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (December 16, 2020) (last visited March 6, 2021).

If an employee cannot be vaccinated due to disability and it is determined that the employee causes a direct threat to the worksite, the employer can exclude the employee from the worksite—or take any other action—if the employer cannot provide a reasonable accommodation.   Although employers can exclude the employee from physically entering the workplace, the employer is prohibited from automatically terminating the worker.

The EEOC listed several ways an employer can satisfy its requirement to provide reasonable accommodations.  The list includes, but is not limited to:

• providing employees with additional protective gowns, masks, gloves, or other gear
• erecting barriers that provide separation between employees with a disability and coworkers or the public
• eliminating or substituting “marginal” functions of the job (meaning less critical or incidental job duties)
• temporary modifications to work schedules or moving the location of where one performs work (if feasible)
• temporarily excluding the employee from the worksite (e.g., providing protected leave, conducting work virtually)

Just like with any reasonable accommodation, an employer and employee should discuss possible ideas to ensure creativity and flexibility.

Reasonable Accommodations for Sincerely Held Religious Practice or Belief

If an employee is unable to receive a COVID-19 vaccine due to a sincerely held religious practice or belief, the employee must notify the employer.  Once the employer has notice of the sincerely held religious practice or belief, the employer must provide reasonable accommodations unless it would pose an “undue hardship” on the employer.  Courts have interpreted “undue hardship” to mean more than a de minims cost or burden.  The list above includes examples of reasonable accommodations that an employer may utilize in response to an employee unable to receive a COVID-19 vaccine due to a sincerely held religious practice or belief.

Again, an employer and employee should discuss the possible accommodations.

Recent Federal Litigation

On February 28, 2021, the first lawsuit relating to an employer’s COVID-19 vaccine mandate was filed in New Mexico.  The lawsuit alleges that an employer’s vaccine mandate runs afoul with the FDA’s emergency use authorization designation.  Under 21 U.S.C.§ 360bbb-3(e)(1)(A)(ii):

The Secretary shall . . . establish such conditions on an authorization under this section as the Secretary finds necessary or appropriate to protect the public health, including . . . ensur[ing] that individuals . . . are informed . . . of the option to accept or refuse administration of the product, of the consequences, if any, of refusing the administration of the product, and of the alternatives to the product that are available and of their benefits and risks.

The outcome of this lawsuit will have wide reaching effects on the status of whether employers can require an employee to receive a COVID-19 vaccine.  We will update this article upon the resolution of the lawsuit.

Last week, the DOL ordered a Tennessee Mexican restaurant to pay $179,878 in back wages to 40 employees. The DOL found that servers had to subsidize the wages of non-tipped workers with their tips and that the restaurant did not distribute tips on to-go and delivery orders. The DOL alleges the restaurant violated minimum wage laws by requiring servers to pay $7 to $10 per shift into a tip pool used to pay hourly wages for non-tipped staff. The restaurant also kept credit card tips from to-go and delivery orders that would usually have gone to hosts.  This conduct violates the minimum wages provisions of the FLSA because the tips belong to the restaurant's tipped employees.

If you are a server, bartender, or hostess in the restaurant industry and you believe that your employer is violating wage and hour laws, Gibbons Law Group, PLLC provides free, confidential consultations to help employees understand their legal rights.

1. If a family member or I become sick with the coronavirus, am I allowed to take sick leave, and will my job be protected?

The Families First Coronavirus Response Act (FFCRA) is an emergency law enacted because of the Covid-19  This law allows employees who work for employers of less than 500 employees to take up to 80 hours of emergency sick leave (although certain provisions of the FFCRA may not apply to employers with fewer than 50 employees.)  An employee may take emergency sick leave under the FFCRA if he or she:

1. is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. has been advised by a health care provider to self-quarantine related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

How much leave does the FFCRA provide?

For reasons (1)-(4) and (6):  A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5):  A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Am I entitled to pay under the FFCRA?

For leave reasons (1), (2), or (3):  Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6):  Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5):  Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).

2. Can my employer fire me if I become infected with the Coronavirus?

As described in FAQ 1, the FFCRA and the FMLA permit qualified employees to take protected leaves of absence for conditions related to the Coronavirus.  The FFCRA and the FMLA also contain anti-retaliation provisions that prohibit employers from retaliating against employees who utilize the FFCRA or the FMLA.  The more difficult issue is whether any protections exist for employees who contract the Coronavirus and exhaust their allotted leave under the FFCRA or the FMLA and cannot return to work.  In these circumstances, it may be lawful for an employer to terminate the employment of an employee who utilizes all of the protected leave provided under the law.

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with a disability.  In certain circumstances, an employee who has an underlying condition exacerbated by the coronavirus (for instance, asthma or a heart condition) may be considered disabled.  The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a history or record of such an impairment, or a perception by others of such an impairment.  Besides prohibiting discrimination against people with disabilities, the ADA requires employers to provide reasonable accommodations for such individuals, including the possibility of working remotely.

3. Do I have the right to work from home if I'm uncomfortable reporting to my job, even if I am not sick?

Generally, there is no legal right to remote work, as employers have the right to dictate the terms of employment.  If an underlying disability places you at high risk for coronavirus, you may have the right to work remotely as an accommodation under the ADA, depending on whether working from home is reasonable under the circumstances.

4. May I work from home to care for my children who are at home because of school or childcare closings?

The FFCRA permits employees to take emergency sick leave to care for a child whose school or daycare has closed, or where childcare is otherwise unavailable because of coronavirus protections.  In addition, employees may be entitled to up to an additional 10 weeks of leave at two-thirds of the employee’s regular rate of pay if an employee is unable to work due to bona fide child care needs related to COVID-19.  These payments are subject to limits on maximum benefits as set forth in FAQ 1.

5. If my employer requires me to work from home, am I entitled to be paid for that time?

Yes.  Generally, if you are a salaried employee and you work any portion of the week, you must be paid your regular weekly pay.  Hourly employees who work from home are entitled to be paid for all hours worked, including overtime hours.

What happens if my employer lays me off or cuts my hours?

File a claim for North Carolina unemployment benefits with the North Carolina Department of Employment Security (DES).  On March 17, 2020, Governor Cooper issued Executive Order 118 announcing changes to unemployment insurance benefits for individuals who are out of work as a result of COVID-19.  The order pertains to individuals who are separated from employment, who have had their work hours reduced, or who are prevented from working due to a medical condition caused by COVID-19 or due to communicable disease control measures.

The following changes to the North Carolina unemployment benefit process are in effect for individuals eligible for benefits due to COVID-19:

• Waiting Period. Normally, individuals do not receive payment for the first week of their claim for unemployment—this is the one-week waiting period. The one-week waiting period is waived for people filing as a direct result of COVID-19.

Note: After you file your claim, your last employer is permitted 10 days to respond to DES about your claim. No payment will be released until after this 10-day period. If there are no issues with a claim, individuals typically receive payment within about 14 days of filing their initial claim.

• Work Search Requirements. Executive Order 118 allows some requirements to be waived for people filing for unemployment due to COVID-19. If you are filing due to COVID-19, you may answer ‘yes’ to the following question on the Weekly Certification: ‘Did you look for work?’

Note: Requirements for performing a work search and being able and available for work are still in effect for individuals filing for unemployment due to reasons other than COVID-19. 

There are also specific laws that protect employees from mass layoffs. For example, under the federal Worker Adjustment and Retraining Notification (WARN) Act, certain companies must give affected employees 60-day advanced written notice of the mass layoff, worksite closing, or plant closing when the law is triggered.

7. What if my employer offers me a severance agreement?

If your employer offers you a severance agreement, it is recommended to consult with an attorney about what rights you may have and what rights you may be giving up by signing the agreement.

The National Labor Relations Board (NLRB) has taken the position that employees have the legal right under the National Labor Relations Act (NLRA) to discuss their “terms and conditions of employment” with one another, including their wages and benefits. This right applies in both union and non-union settings. The NLRB routinely finds companies that forbid employees from discussing their rates of pay to be in violation of the NLRA.  More importantly, the penalties for violating the NLRA are severe.  Employees who are unlawfully fired for discussing pay rates are entitled to lost wages and reinstatement to their jobs.  Gibbons Law Group, PLLC has represented employees before the NLRB who have been awarded significant back pay awards.

North Carolina employees should be aware of their employment rights.  Employers are not permitted to implement rules and regulations that prohibit discussions about pay.  If you have been disciplined or fired for talking about your pay, contact Gibbons Law Group, PLLC to discuss whether you have a legal claim.

Getting fired from a job can be a horrible experience.  Studies show that losing a job falls in the same category as death of a loved one or divorce from a spouse.  Not surprisingly, you might feel confused, shocked, scared, or angry when a job is taken away from you. Many people wonder, can I sue my employer for wrongful termination?

What is wrongful termination?

No matter how unfair a termination decision may be, there is a good chance that it does not qualify as “wrongful termination.”  In interpreting federal and state employment laws, the courts have made it clear that they will not play the role of a human resource department and second guess whether an employer made a mistake or was unfair in deciding to terminate an employee.  Wrongful termination is when an employer fires an employee for a reason that violates the law.

What are examples of wrongful termination?

Under North Carolina and federal law, employers are prohibited from discriminating or retaliating against employees for illegal reasons.  Usually, illegal reasons include termination decisions that involve the employee’s race, sex, disability, pregnancy, age, national origin, or religion.  Employees who utilize the protections of the Family and Medical Leave Act (FMLA) are victims of wrongful termination.  Similarly, employees who complain about sexual harassment or discrimination face workplace retaliation in the form of wrongful termination.

Do I have a case for wrongful termination?

If you believe you have a wrongful termination case, contact Gibbons Law Group, PLLC. At Gibbons Law Group, PLLC, our employment lawyers are experienced and understand what it takes to stand up to employers in wrongful termination cases. Call us today for a free, confidential case evaluation.

The Fair Labor Standards Act or "FLSA" requires that non-exempt employees be paid overtime for all hours worked over 40 each workweek.  Paying a flat salary to a non-exempt employee does not excuse an employer from paying overtime. Whether an employee is exempt from overtime depends on the job duties the employee performs.  In most cases, dishwashers, bussers, servers, hostesses, food runners, and most cooks are non-exempt employees and entitled to be paid overtime.  

Employees who believe they are being paid incorrectly have the right to complain to the Department of Labor or hire a private attorney to represent them.  The Charlotte employment attorneys at Gibbons Law Group, PLLC have helped thousands of employees recover unpaid wages and overtime.  Employees who hire a private attorney often collect a larger amount of unpaid wages and overtime.  The FLSA allows employees who are shorted overtime pay to collect double damages.  When employers resolve cases with the Department of Labor, the settlements often include provisions that waive the payment of double damages.   

The Fair Labor Standards Act or "FLSA" requires that non-exempt employees be paid overtime for all hours worked over 40 each workweek. Paying a flat salary to a non-exempt employee does not excuse an employer from paying overtime. Whether an employee is exempt from overtime depends on the job duties the employee performs. In most cases, dishwashers, bussers, servers, hostesses, food runners, and most cooks are non-exempt employees and entitled to be paid overtime.

Employees who believe they are being paid incorrectly have the right to complain to the Department of Labor or hire a private attorney to represent them. The Charlotte employment attorneys at Gibbons Law Group, PLLC have helped thousands of employees recover unpaid wages and overtime. Employees who hire a private attorney often collect a larger amount of unpaid wages and overtime. The FLSA allows employees who are shorted overtime pay to collect double damages. When employers resolve cases with the Department of Labor, the settlements often include provisions that waive the payment of double damages.

However, there is a common mistake that employees make before filing a lawsuit that can diminish or even ruin the value of their claims. The biggest mistake a  current employee can make is quitting your job.  We can’t count the number of times someone called our law firm, described a workplace situation that violated a federal or state employment law, but then told us they quit their job or turned in their two-week notice. As far as we’re concerned, this is often the “kiss of death” for an otherwise valid discrimination or retaliation employment law claim.

It goes without saying, if your current job affects your physical or mental health to the point where you can’t perform your responsibilities, your health outweighs the job or lawsuit, and quitting is the correct decision. However, if you quit because of illegal mistreatment, and you could have afforded to stay, your employer wins on every level.

When you file a claim against your employer for unlawful workplace conduct, one of your employer’s biggest frustrations is seeing you show up to work every day.  When you quit your job, you have solved your employer’s problem.  You may also have lost much of your leverage.  As long as you remain employed, often to the annoyance of your employer, you serve as a constant reminder to management and your co-workers that employees have rights and that you are willing to fight for yours. You are also privy to what is occurring in the workplace, and you still have access to your email and other forms of evidence. Plus, in the context of a lawsuit settlement, you can often negotiate your resignation for a more lucrative recovery.   

If your employer is subjecting you to unlawful conduct and you’re contemplating taking legal action, chances are that you think about quitting on a daily basis. If possible, do not quit! Instead, contact our experienced North Carolina employment law team at 704-612-0038 to discuss your legal rights.

Almost all claims of employment discrimination, harassment, and retaliation must be filed with the EEOC before an employee is allowed to file a lawsuit challenging an employer's illegal conduct.  Employment law claims have strict deadlines, called statutes of limitations, that employees must follow when filing charges with the EEOC.  If you miss a deadline, you may be barred forever from bringing your claim.  The EEOC charge form is also more important than most North Carolina employees realize.  After the EEOC process is completed, if you file an employment lawsuit, your lawsuit must mirror what was alleged in the EEOC charge.  If mistakes were made when filing the EEOC charge, you may be prevented from bringing certain claims or arguments in your lawsuit. 

The EEOC also has a voluntary mediation program.  An experienced employment law attorney will help you value your claim, negotiate the best deal possible, and ensure your interests and legal rights are protected.  In addition to monetary issues, employment law settlements often include complex requirements that may impact what you can say about the settlement and your prior employer, as well as limitations on your future employment.

With few exceptions, the employer named in the EEOC charge will hire a North Carolina employment law attorney to represent its interests and defend against the allegations of illegal employment practices.  Employees can and should have the same advantage.

The Charlotte employment lawyers at Gibbons Law Group, PLLC have the experience and knowledge necessary to provide employees with skilled legal representation at all stages of the EEOC process.  Call one of the attorneys at Gibbons Law Group for a free, confidential case evaluation.  We represent North Carolina employees in Asheville, Charlotte, Raleigh, and throughout the state of North Carolina.

Currently, 11 states and the District of Columbia have passed paid sick leave laws.  Many other states, including North Carolina, have proposed legislation pending that if passed will provide employees with the right to take paid sick leave.  In North Carolina, House Bill 46, entitled the “Economic Security Act of 2019,” is one of those bills.  If passed, HB 46 would require employers with 15 or more employees to provide paid sick leave to employees.  In addition to providing paid sick leave for North Carolina workers, the proposed law would:

• increase North Carolina’s state minimum wage from $7.25 per hour to $15.00 per hour over a five year period;
• guarantee pay equity for women;
• increase the tip-credit minimum wage for tipped employees;
• provide additional penalties for employers who fail to pay wages earned by employees and increase the current statute of limitations for recovering unpaid wages from 2 years to 3 years; and
• enact new “ban the box” protections that would prohibit employers from requesting criminal history information from applicants on initial application forms.

Admittedly, it is not likely that the North Carolina legislature will pass HB46 in 2019.  Improvements for the rights of employees will come slowly in North Carolina.  But with proposed bills like HB46, the voices of employees are being heard in the statehouse.  It does not matter whether you live in large cities like Charlotte, Asheville or Winston Salem or a smaller cities like Gastonia or Huntersville — employees across North Carolina all face the same need to earn a living wage to support themselves and their families.  Unfortunately, we all get sick from time to time.  North Carolina employees should not have to choose between their health and risking their jobs.  It is time for mandatory paid sick leave in North Carolina.

According to the submissions of the parties, Haynes (an African American male) had provided more than 8 years of dedicated service as a front-end load truck driver to Waste Connections and was locally renowned as one of the best at his position.  Waste connections terminated Haynes’ employment after he missed a work shift due to a stomach virus even though he gave notice 45 minutes prior to his shift to a supervisor.  The company argued at the district court level that the missed shift, causing a company truck to get stuck after missing a driveway, and poor work performance created legitimate reasons for his termination. 

The record on appeal told a different story.  Evidence submitted to the trial court revealed that Haynes had a recent positive performance review and a bonus shortly before his termination.  Evidence also showed that Haynes’ white coworker Joe Hicks, with whom Haynes shared a supervisor and similar job responsibilities, was not subject to the same discipline.  Hicks, was not terminated in spite of rule violations including yelling at supervisors and distracted driving. 

In reversing the district court’s order dismissing Haynes’ case, the Fourth Circuit held that the evidence contained in the record on appeal was sufficient to raise the inference that Waste Connections terminated Haynes’ employment because of his race.  It reasoned: “Hicks, who had more infractions and was less respectful to his superiors, may have engaged in more egregious conduct, yet received more favorable treatment.” 

The court also rejected the district court’s holding that Haynes had not provided sufficient evidence that Waste Connections’ reasons for firing Haynes were pretext.  The Court held that there was sufficient evidence where Waste Connections’ reasons for firing Haynes had “changed substantially” over time.  Ironically, Waste Connections changed its alleged justification for terminating Haynes on appeal, arguing that it was due to his poor attitude even though it had not previously raised that reason at the trial court. 

Haynes’ case serves as a bastion of hope for plaintiffs in the Fourth Circuit and will serve as favorable precedent in the fight against unlawful employment discrimination for North Carolina employees.

1. Failing to inform Tipped Workers about the provisions of the FLSA's tip-credit requirements;
2. Failing to pay overtime compensation to Tipped Workers at the rate required by the FLSA at the rate required by the FLSA when they worked more than 40 hours in a workweek;
3. Requiring Tipped Workers to participate in unlawful tip pooling whereby the tipped employees had to share their tips with employees who do not customarily and regularly receive tips.  Specifically, Tipped Workers allege that Artisanal did not distribute all of the tips left by customers to Tipped Workers; and
4. Requiring Tipped Workers to pay for missing inventory, breakage, and the lost sales of food that resulted from server error and customer walkouts.

Frequently Asked Questions About The Wage and Hour Lawsuit Against Artisanal

Recent Updates

The Court’s decision overruled the Ninth Circuit Court of Appeals’ order requiring electronics retailer Lamps Plus to arbitrate class action claims brought by its employees who alleged that the retailer failed to sufficiently protect the workers’ personal information.  In its opinion, the conservative majority of the Court reasoned that the parties’ agreement was not clear enough to determine whether there was consent to class action arbitration.  The majority considered mutual assent to class action arbitration to be vital and reasoned that both parties must assent clearly in writing to authorize class arbitration.

Consequentially, the Court held that arbitration agreements must contain clear unambiguous language explicitly indicating that the parties agree to class action arbitration. In reaching its decision, the Court rejected the Ninth Circuit’s application of state law contract principles that construed the ambiguity against the commercial drafter, Lamps Plus.

The Court extended the holding in Stolt-Nielsen, a 2010 case that held class action litigation cannot be authorized where the parties’ agreement is silent regarding class arbitration.  Parties to agreements that authorize arbitration but use ambiguous language regarding class action arbitration will now be barred from enforcing it under Lamps Plus.    

This precedent is an unequivocal victory for big business at the expense of the individual.  It allows the drafters of commercial agreements and employment contracts to strategically provide for individual arbitration, which saves large businesses and employers time and money, while eliminating the risk of potential class action arbitration, which allows plaintiffs with relatively low value claims to band together where bringing their claims individually would be impractical as an economic reality.  Unfortunately, the Court’s new precedent will likely lead to a large number of individuals’ claims going without adjudication in the future.