Law Commons^™

A Room Without A View(Point): Must Student-Housing Employees Trade Free Speech For Free Rent?, Frank D. Lomonte, Conner Mitchell

Campbell Law Review

The COVID-19 pandemic exposed the power that public university speech policies have to silence students. Although few people were better suited to provide a candid assessment to the media of student safety in on-campus housing than resident assistants, all too often these student employees were forbidden from speaking openly, or at all. To understand the scope of these prohibitions on speech, researchers using freedom-of-information law obtained employment manuals, policies, and guidelines from a wide cross-section of public universities. This Article analyzes the language used in a sample of these materials and concludes that while these speech policies often - and …

Bostock: A Clean Cut Into The Gordian Knot Of Causation, Melissa Essary

Scholarly Works

Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support.

Judges …

The Meaning Of Just Cause In North Carolina Public Employment Law: Caroll And Its Progeny Provide For A Heightened Multifactor Standard For State Employee Disciplinary Cases, J. Michael Mcguinness

Campbell Law Review

This Article explores the doctrine of just cause in North Carolina public employment law. After a review of the leading North Carolina Supreme Court case of N.C. Department of Environment and Natural Resources v. Carroll and its progeny, this Article examines applicable just cause standards and analytical tests so that the true meaning of just cause can be better understood. Multi-factor tests are applied in order to employ a more objective just cause standard and to avoid unprincipled conclusions not founded upon established criteria.

Putting Amotion In Motion: Removal Of An Elected Official By A Municipal Governing Body For Just Cause, Cathryn M. Little

Campbell Law Review

This Article will examine the development and application of North Carolina common law addressing the removal of an elected municipal official through the process of "amotion." Amotion is recognized as an "inherent power" of the governing body of a municipal corporation to remove an elected official for reasonable and just cause due to misconduct or unfitness to hold office.

The Practical Entry And Utility Of A Legal-Managerial Framework Without The Economic Analysis Of Law, James E. Holloway

Campbell Law Review

This article examines the practicality underlying the entry and utilization of a L-M analysis and legal information into the process of business decision-making by lawyers and managers who generally do not understand or use each others' methodology and thinking, such as business methods and legal analysis, in their professional works and practices.

Who Pays Arbitration Fees? The Unanswered Question In Circuit City Stores, Inc. V. Adams, Melissa G. Lamm

Campbell Law Review

As courts and administrative agencies are becoming busier and litigation more complex, many today see alternative dispute resolution, specifically arbitration, as a way to promptly and efficiently resolve disputes. Arbitration, especially in light of the recent United States Supreme Court decision in Circuit City Stores, Inc. v. Adams, is becoming more common in employer-employee, business-customer, and business- business relationships. The Court held in Circuit City that the Federal Arbitration Act (FAA) applies to nearly all interstate employment relationships. The challenge before the courts now is determining who should bear the burden of paying for the arbitration of disputes.

North Carolina's Developing Public Policy Wrongful Discharge Doctrine In The New Millennium: Basic Principles, Causation And Proof Of Improper Motive, J. Michael Mcguinness

Campbell Law Review

This article reviews the recent state and federal cases construing North Carolina's public policy wrongful discharge doctrine. The article also analyzes the most common practical problem that arises in wrongful discharge cases: the causation issue. Finally, the article offers a framework of analysis and a multi-part test for assessing improper motive, a difficult issue which arises in virtually all public policy wrongful discharge cases.

The Pursuit Of Proceeds By Plans, Participants And Plaintiffs' Lawyers: Dissonant Solutions To An Alliterative Problem, John R. Cella Jr.

Campbell Law Review

With emphasis on developments in the Fourth Circuit, this Article first describes the pursuit's origination in plan language and ERISA's statutory provisions; it then explores ERISA preemption and cases in which injured participants invoke state statutory and common law to contradict plan terms. A review of the attorney's role follows, including an inquiry into issues concerning attorney fees. With consideration of policies behind ERISA, the Article concludes that adherence to well-drafted plan terms legitimizes the parties' bargain, avoids development of disparate federal common law, and facilitates the allocation of proceeds.

Current Federal And State Conflicts In The Independent Contractor Versus Employee Classification Controversy, Jack E. Karns

Campbell Law Review

Part II of this Article outlines the development of the federal IRS worker classification status and attendant issues. Part III introduces some initiatives taken by the IRS in an effort to settle cases with taxpayers. Part IV discusses the federal criminal sanctions that can be imposed on an individual or entity which fails to collect or pay over to the United States Treasury these employment trust fund taxes. In Part V, the status of worker classification in North Carolina is considered relative to cases filed primarily with the Employment Security Commission. Finally, in Part VI, some observations are offered regarding …

A Call To Congress To Amend Erisa Preemption Of Hmo Medical Malpractice Claims: The Dissatisfactory Distinction Between Quality And Quantity Of Care, Angela M. Easley

Campbell Law Review

This Comment begins with an overview of the Employee Retirement Income Security Act (ERISA) and the preemption clause found therein. Section III explains the distinction between quality and quantity of care, the test many courts have relied on to determine whether ERISA preempts a medical malpractice claim. Section IV examines state common law theories of liability which are asserted against managed care organizations, specifically claims of direct and vicarious liability. Section V addresses the HMO's role in medical decision making, and Section VI describes recent legislation regarding ERISA and HMO liability. This Comment contends that the more active role an …

The Reality Of Work-Related Stress: An Analysis Of How Mental Disability Claims Should Be Handled Under The North Carolina Workers' Compensation Act, Amy S. Berry

Campbell Law Review

No abstract provided.

Fraudulent, Negligent, And Innocent Misrepresentation In The Employment Context: The Deceitful, Careless, And Thoughtless Employer, Frank J. Cavico

Campbell Law Review

This article strives to sort through the sundry ramifications of the law of misrepresentation. Accordingly, the three major classifications of misrepresentation - fraudulent, negligent, and innocent - will be differentiated clearly and then examined extensively. The elements constituting each category of misrepresentation action will be explained and illustrated. The article will focus upon the nature and extent of the tort action available to an aggrieved party who was induced to enter into a transaction or relationship by the misrepresentation of another. This tort analysis will include not only the traditional cause of action of deceit, but also the emerging tort …

Erisa Qualified Pension Plan Benefits As Property Of The Bankruptcy Estate: The Unanswered Questions After Patterson V. Shumate, Jack E. Karns

Campbell Law Review

To better understand the impact of Patterson, as well as future debates regarding conflict between state and federal law in the Bankruptcy Code, this article will review the underlying case law that set the stage for this judicial showdown. Part II specifically analyzes the competing case lines which excluded pension plan benefits from the bankruptcy estate. Part III briefly summarizes those cases which concluded that plan benefits must be included in the estate but may be subject to exemption under state or federal law. Part IV reviews the Patterson opinion in detail, as well as the issues and analysis …

Erisa, Preemption And Comprehensive Federal Health Care: A Call For "Cooperative Federalism" To Preserve The States' Role In Formulating Health Care Policy, James E. Holloway

Campbell Law Review

This article revisits the familiar theme of federalism and health care policy. It takes the position that federalism is decreasing and will decrease further under national health care that is fast becoming, if not already so, an exclusive field of federal regulation. The article draws this conclusion from three influences on federal regulation and policy: (1) the expanding preemptive effects of employee benefit regulation on state health care, as well as other law and public policy; (2) the increasing public policy favoring a comprehensive national health care policy; and (3) the existing dominance of federal medical care and assistance regulation …

The Dismantling Of Mcdonnell Douglas V. Green: The High Court Muddies The Evidentiary Waters In Circumstantial Discrimination Cases, Melissa A. Essary

Scholarly Works

No abstract provided.

An Analysis Of The Retaliatory Employment Discrimination Act And Protected Activity Under The Occupational Safety And Health Act Of North Carolina, Dr. Michael R. Smith

Campbell Law Review

On July 23, 1992, the North Carolina General Assembly ratified a law which will protect employees against discrimination and retaliatory action for particular job related activities. The law became effective on October 1, 1992 and applies to those accused of .violating it on or after that date. This article analyzes that law as it applies to the Occupational Safety and Health Act of North Carolina. The law appears in its entirety as an appendix in this paper.

Will The Public Policy Exception To The Employment-At-Will Doctrine Ever Be Clear? - Amos V. Oakdale Knitting Co., Victoria W. Shelton

Campbell Law Review

This Note will trace the cases following Coman v. Thomas Manufacturing Co. and the confusion among the North Carolina courts in determining an employer's liability for discharging an at-will employee. Next, this Note will explain the rationale behind those decisions and how the court of appeals arrived at its holding in Amos. This Note will also show how the Amos decision can be reconciled with other case law in North Carolina. Finally, this Note will conclude with issues for attorneys to consider before pursuing a wrongful discharge claim based on the public policy exception.

When Two "Rights" Make A Wrong: The Protection Of Nonsmokers' Rights In The Workplace, Donna C. Stroud

Campbell Law Review

This Article will deal with the protection of nonsmokers' rights with emphasis on the special problems faced by nonsmokers in North Carolina. Nonsmokers need a way to be assured of a safe workplace and of job security despite the fact that tobacco is of great importance in the state's economy. Nonsmokers need remedies to pursue if they are harmed by exposure to smoke. Also, employers need to be aware of the liability ramifications of nonsmokers' rights and of how to protect their employees.

Smoking In The Workplace: Who Has What Rights?, John C. Fox

Campbell Law Review

This Article will examine the legal issues that surround the workplace smoking controversy and will discuss the "rights" of smokers and nonsmokers. This Article also reviews legislation aimed at protecting the interests of smokers and nonsmokers in connection with their employment. Finally, the Article discusses practical resolutions which employers may find useful when addressing workplace smoking issues.

The Doctrine Of Wrongful Discharge In North Carolina: The Confusing Path From Sides To Guy And The Need For Reform, J. Michael Mcguinness

Campbell Law Review

This article will analyze Sides, Guy, and other authorities relevant to the development of the doctrine of wrongful discharge in North Carolina. With support from recent commentary, this article concludes that the true meaning of the North Carolina public policy exception is not limited to the facts of Sides. Rather, Sides and earlier authorities provide that abusive employee discharges in violation of established public policy are not insulated by the at will rule.

Erisa Spendthrift Rules - It Just Shouldn't Be This Hard, Ronald I. Kirschbaum

Campbell Law Review

On August 9, 1984, Congress passed the Retirement Equity Act (REA). Signed into law on August 23, 1984, this Act had, as one of its purposes, the clarification of the confusion concerning the anti-alienation rules originally adopted ten years earlier. Unfortunately, this most laudable endeavor, carried out with very limited objectives, was without a view towards the creation of a comprehensive and workable statutory framework. As will be seen, the creation of the Qualified Domestic Relations Order (QDRO) by the REA, establishes an island of relative certainty. This island sits, however, in a sea of assumption and supposition leaving plan …

Employment Discrimination - Evidentiary Standards In Employment Discrimination Suits - Department Of Correction V. Gibson, Beth Marshall

Campbell Law Review

This note will examine the burden of proof which must be borne by the employee in employment discrimination cases brought under N.C.G.S. § 126-36 and the limited future utility of N.C.G.S. § 126-36.

Sex Discrimination - Title Ix Applies To Employees, Barbara Hollingsworth

Campbell Law Review

This note will examine the Court's rationale and the implications of the North Haven Board of Education v. Bell decision.