Fourth Circuit Sets Joint Employment Test


In a wage and over-time pay lawsuit filed under state and federal law, the Fourth Circuit Court of Appeals set forth its own test for “joint employer” relationships under the Fair Labor Standards Act. The issue was whether two persons or companies constitute joint employers for FLSA purposes.

The court stated that joint employment exists when (1) two or more persons or entities share, agree to allocate responsibility for, or otherwise codetermine essential terms and conditions of worker’s employment and (2) the two entities’ combined influence over the essential terms and conditions of the worker’s employment render the worker an employee as opposed to an independent contractor. The court set out six (6) distinct factors to examine and meeting only one of those factors can support a finding of a joint employer relationship.

Salinas v. Commercial Interiors, Inc. has broad implications for the wage and overtime responsibilities of employers located within the Fourth Circuit, which has jurisdiction over appeals from federal courts located in Maryland, Virginia, North Carolina, South Carolina, and West Virginia.

In another case decided the same day using the new test, the Fourth Circuit applied the test it announced in Salinas to find that satellite television installation technicians were jointly employed by both DirecTV and the subcontractor that employed them initially, so the technicians could bring wage and hour claims against both DirecTV and the contractor.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Computer Fraud and Abuse Act and Employment


In a case filed in Eastern District of North Carolina alleging a claim under the federal Computer Fraud and Abuse Act (CFAA), (Sageworks, Inc. v. Creatore) the district court found that the employee accessed information belonging to the employer without authorization and exceeded his authorized access to obtain information.

Cases under CFAA can be brought in federal or state court. An employer can sue employee when the employee accesses and uses information without authorization. This law is commonly being used to file a lawsuit against an employee when the employee takes employer information and goes to work for a competitor.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

New Seventh Circuit Court of Appeals Case Holds that Sex = Sexual Orientation


Laws governing employment discrimination based on sexual orientation are changing.

  • EEOC has consistently issued guidance that “sex” includes sexual orientation and gender identification.
  • As much as EEOC had wanted it to, until April 4, 2017, no court had held that Title VII barred sexual orientation discrimination.
  • Seventh Circuit Federal Court of Appeals (Illinois, Indiana, and Wisconsin) ruled that sex discrimination extends to sexual orientation Hively v. Ivy Tech Community College of Indiana (April 4, 2017)
  • This is the law in Illinois, Indiana, and Wisconsin and provides persuasive authority for our Federal Circuit, the Fourth Circuit.

If you have questions about employment law issues, please contact Tracy Stroud at 252-321-2020.

How Repeal of Bathroom Bill Affects Employment Law


After a controversial year on the books, North Carolina’s HB2 has been repealed.

  • Repeal of House Bill 2 and House Bill 142: Statute of Limitations for wrongful termination claims based on discrimination based on race, sex, religion, national origin, age, and disability under N.C. Gen. Stat. § 143-422.2 (NC Equal Employment Practices Act) has been restored to three (3) years.
  • Under House Bill 142 in July 2016, there was a one (1) year Statute of Limitations to file lawsuit.
  • The new law does not have any explicit recognition of employment protections based on sexual orientation or gender identity but with repeal, lawyers are again free to argue that “sex” in NC Equal Employment Practices Act refers to both sexual orientation and gender identity.
  • Existing ordinances will not go away, however all localities are pre-empted from amending or enacting employment laws until December 2020.
  • The bill passed March 30, 2017.

If you have other employment law questions, please contact Tracy Stroud at 252-321-2020.

New North Carolina Law Regarding Franchisors


Franchisors are not employers under N.C. Gen. Statute Chapters 95, 96, 97 and 105, which means franchisors cannot be held responsible for NC Wage and Hour violations, Occupational Safety and Hazard violations, Workers’ Compensation violations, and unemployment claims.

  • Only about 2,500 franchisors in the United States
  • Law will likely protect out-of-state interests and if franchisor is the decision-maker for the franchisee, there is no one to hold liable
  • The burden on compliance on Wage and Hour law, OSH workers’ compensation and unemployment will fall to small business owners, the local franchisee
  • Law signed by Governor Roy Cooper on May 4, 2017

For more information about the passage of the new law or if you have other employment law questions, please contact Tracy Stroud at 252-321-2020.

Come September, Your Form I-9 Will be Outdated


Here are changes to the I-9 form.  The new form must be used by September 18, 2017.

  1. The USCIS has changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name: Immigrant and Employee Rights Section.
  2. Removal of the words “the end of” from the phrase “the first day of employment.”
  3. Revisions to the list of acceptable documents:
  • The Consular Report of Birth Abroad (Form FS-240) has been added to List C. If you’re filling out the Form I-9 online, you will be able to select this form from the dropdown menus. Using e-verify? You can also select Form FS-240 when creating a case for an employee who presents this document for Form I-9.
  • All the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) have been combined into selection C #2 in List C.
  • All List C documents except the Social Security card have been renumbered. Example: The employment authorization document issued by the Department of Homeland Security on List C has changed from List C #8 to List C #7.

Employers can continue using the older version through Sept. 17. On Sept. 18, you must use the revised version. You’ll notice the revision date of 07/17/17 N at the bottom of the form. Storage and retention rules for any previously completed Forms I-9 remain the same.

Penalties for non-compliance:

Just last year, the Immigration and Customs Enforcement (ICE) nearly doubled fines for violations with Forms I-9. There is a $216 – $2,126 fine per Form I-9 paperwork violation. That’s an increase from $110 – $1,100. For unlawful employment of unauthorized workers, the fine for the first offense increased to $539 – $4,313 per worker from $375 – $3,200. For unfair immigration-related practices, specifically document abuse, the fine per individual increased to $110 – $1,110.

If you have any questions regarding employment issues, please contact Tracy Stroud at Colombo Kitchin Attorneys, 252-321-2020.

The Status of Workplace State Law Discrimination Claims in North Carolina


On March 23, 2016, in House Bill 2 (HB2), notoriously known as the “Bathroom Bill,” the North Carolina General Assembly set out that the North Carolina Employment Practices Act (NCEEPA) (N.C.G.S. Chapter 143) did not provide a cause of action for wrongful termination based on discrimination. The NCEEPA covers employers with 15 or more employees and provided a discrimination cause of action against employers who discriminated on the basis of race, religion, color, national origin, age, sex or handicap in employment. The statute of limitations was three (3) years in state court.

This change in North Carolina law did not affect employee rights under federal law. If employees wish to file a federal claim, the procedure is entirely different and the statute of limitations is much shorter–180 days to file a charge with the Equal Employment Opportunity Commission and then 90 days to file a lawsuit in federal court, after the EEOC concludes its investigation and issues its determination.

On July 18, 2016, the General Assembly restored the right of employees under the NCEEPA to bring wrongful discharge claims for employment discrimination in state court, but shortened the statute of limitations to one (1) year. The NCEEPA clearly does not prohibit employment discrimination against LBGT persons.

The text of the revised NCEEPA sets out: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, biological sex or handicap by employers which regularly employ 15 or more employees.”

Employment discrimination against LBGT persons still violates federal law, and North Carolina employers must comply with both federal and state laws in terms and conditions of employment.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.



Document and Communicate with Employees about Performance Deficiencies


For multiple reasons, it is imperative that employers document and communicate performance deficiencies with the employee and keep written documentation in the employee’s personnel file. The write-up and counseling should occur at the time the deficiency occurs not at the annual review.

This written documentation and communication with the employee is important to defend against litigation. First, if the employee files an employment discrimination claim, the record of performance deficiency and the employee’s knowledge of the issues illustrate a legitimate, non-discriminatory reason for termination. Second, it may save the employer from paying unemployment benefits. The documented performance problems may illustrate misconduct, which will exclude the employee from receiving unemployment. If the employee were to receive unemployment benefits, they would be charged to the employer’s unemployment account.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Actual Notice Needed for Employees to be Bound to Arbitration


The fact that two terminated employees signed an acknowledgement of an arbitration agreement is not enough to force the employees to arbitrate their employment discrimination complaints.

Jonathan Collier and Robert McQuen admitted that they signed forms acknowledging their receipt of and promise to be bound by their employer’s arbitration agreement; however, they deny ever receiving the arbitration agreement itself. The failure to receive the actual agreement was fatal in this case.

The court in Collier v. RD America, LLC, held that “without actual notice of the contract’s terms, the contract lacked mutual assent and is not valid and enforceable.”

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Federal Judge Blocks New Overtime Pay Plan


On November 22, 2016, just 10 days before the implementation date, a federal judge in Texas halted the Department of Labor’s (DOL’s) new federal overtime rule under the Fair Labor Standards Act. The overtime rule was scheduled to take effect Dec. 1 and would have raised the salary threshold from $23,660 to $47,476. The rule also provided for adjustments every three (3) years.

Twenty-one states had filed an emergency motion for a preliminary injunction in October to halt the rule. They claimed that the DOL exceeded its authority by raising the salary threshold too high and by providing for automatic adjustments to the threshold every three years. The injunction signed by the judge keeps the existing rule salary threshold in place until a final decision in the case is reached.

So, for now, until a final decision in the case is reached, employers may continue to follow the existing overtime rule, which keeps the salary threshold at $23,660.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.