803-254-2200 803-254-2200

For business and legal updates:

Practices + Industries

Employment Litigation

Blog Posts

South Carolina Passes New Workplace Pregnancy Law

On May 17, 2018, Governor Henry McMaster signed into law the South Carolina Pregnancy Accommodations Act. The new law amends the South Carolina Human Affairs Law, which already prohibited discrimination by employers against employees because of race, religion, color, sex, age, national origin, or disability. The Act is effective immediately and requires employers to reasonably accommodate. 

continue reading

Mediation: A Mandatory (and Often Better) Way to Resolve Certain Workers’ Comp. Claims

South Carolina now mandates the use of mediation as a way to help resolve certain workers’ compensation claims. These are defined in 67-1802 of the state Workers’ Compensation Commission Regulations, but generally, they are cases that would be litigation-intensive and highly contested – e.g., occupational disease, contested death and mental injury claims.

The goal of promoting timely and cost-effective resolutions largely is being achieved. Practically speaking, there are several aspects of mediation that make it a good alternative to a hearing before a commissioner of the Workers’ Compensation Commission.

The Traditional Hearing Route

Historically, most workers’ compensation cases have been decided by one of the state’s seven commissioners. While the commissioners are experienced and more than able to render fair decisions, time factors often limit the ability of attorneys and claimants to fully explain their respective positions. In 2017, the Commission had 10,458 cases docketed for a hearing. A normal case is scheduled to last from one to two hours. Once docketed, on average the case may take at least three months to actually be heard. After the hearing, commissioners often must review reams of evidence before a ruling is made. Although the ruling is binding on the parties, there is always the potential for appeal, thus extending the process and increasing costs. The hearing also submits all issues to the interpretation of one person. By contrast, mediations often last for an entire day giving the parties time to fully explore and present their respective positions.

continue reading

Free speech in the workplace: Can private-sector employees be fired for political opinions?

An increasingly divisive political climate has put the exercise of constitutional freedoms in the spotlight. While the First Amendment states, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech,” the First Amendment’s restrictions do not apply to private-sector employers. In other words, an employee’s freedom of speech and expression can have limits and repercussions in the private-sector workplace.

The polarizing political discourse has been on display along NFL sidelines since former San Francisco 49ers quarterback Colin Kaepernick began kneeling during the national anthem in 2016. Hundreds of NFL players and other professional athletes have joined the protests, and others have followed in solidarity.

At the beginning of the NFL season, President Donald Trump urged league owners to fire players whom he said showed a “total disrespect for everything we stand for.” But is it legal for an employer to fire employees for expressing their political opinions?

South Carolina is an “employment at-will” state, which means that either an employer or an employee can terminate the employment relationship at any time, for any reason, if such termination is not in violation of state or federal law. Private sector employers always will have a certain degree of control over employees’ speech. For instance, it is appropriate for a company to prohibit employees from discussing trade secrets or revealing confidential information. Employers also can prohibit harassing speech or conduct in the workplace. 

continue reading

Lessons from Equifax: Preventing and Responding to Cyberattacks on Your Business

The recent cyberattack on the credit reporting agency, Equifax, is being called one of the worst data breaches ever. The incident potentially compromised the personal information of 145 million Americans, including nearly half of South Carolina residents.

An industry report counts more than 1,000 data breaches last year at U.S. businesses and governmental agencies, a 40% increase over 2015. On average, a breach will cost a business $7 million, according to research.

A data breach is both a technical and legal problem. With so much at stake, what can businesses do to prepare for inevitable cyberattacks, limit their potential liability and protect their customers’ sensitive data?

continue reading

5 things every business should know about FMLA

Health issues are a part of life and often can have both personal and professional effects on employees.  Life events such as the serious illness of an employee or family member or the birth or adoption of a child may require an employee to take extended time off from work. A business must understand its obligations and responsibilities in such a scenario.

The Family and Medical Leave Act (FMLA) is a federal law that protects an employee’s job and medical benefits while he or she takes up to 12 weeks of unpaid leave for a qualifying event. Employers that meet certain criteria are covered by FMLA, and South Carolina businesses are no exception.

Under the FMLA, covered employers have specific obligations to their employees and can be subject to liability if these obligations are not followed. A business should review the following five-question checklist to assist in understanding its FMLA responsibilities:

continue reading

Beware the Double Whammy of New Overtime Rule

By the end of the year, employers could get hit with a double-whammy from new overtime pay rules. You may have heard about the new minimum pay rule, but another aspect of the overtime rules could sneak up on you.

The big, publicized change, announced in May, is that executives, administrators, outside sales people and professionals (and some others) are exempt from overtime under the Fair Labor Standards Act (FLSA) only if they perform duties that are considered exempt (the “duties test”) and are paid a minimum of $47,476 annually, or $913 a week (the new “salary test”). The current threshold, unchanged since 1975, is only $23,660.

Read our previous post on this change in overtime rules here

What makes it a double whammy is that the attention given to the new salary test likely will prompt many employees to ask if they are correctly being classified as exempt based on the “duties test,” which is separate from the salary test. Regardless of how much someone is paid, they must be paid overtime for hours worked over 40 per week if they don’t fall into an exempt category based on their actual job duties.

Employers won a major victory when the U.S. Department of Labor left the existing definitions for exempt classifications unchanged when it increased the pay threshold. We would caution employers not to breathe a sigh of relief, however. This unchanged part of the overtime rules may prove to be quite troublesome in the months ahead. 

continue reading

New Overtime Rule: What You Need to Know

Come December, 67,000 South Carolina workers will be newly eligible for overtime pay, following a revision of federal rules governing when overtime must be paid. Employers must take steps now to prepare for this rule, which goes into effect December 1, 2016 and will impact employees’ job duties, payroll expenses, and how work is assigned.

Depending on your point of view, the U.S. Department of Labor (DOL) regulatory change is either a severe burden for businesses – especially small businesses that may have less flexibility in how work is assigned – or a long overdue revision to allow lower-paid salaried workers to catch up to the rest of the economy.

Nationwide, the DOL estimates that about 4.2 million workers could benefit from the rule. In South Carolina, it will affect approximately 30 percent of salaried workers.

Announced May 18, the change addresses the overtime pay rule that is part of the Fair Labor Standards Act (FLSA). When Congress passed the FLSA at the tail end of the Great Depression, it mandated that workers had to be paid overtime at a rate of time-and-a-half for all hours over 40 worked in a given week. Exceptions were carved into the law, including exemptions for employees who worked in executive, administrative, outside sales, or professional jobs. (The logic behind these exemptions is that with this level of responsibility comes an obligation to get your work done, regardless of the clock.)

However, in addition to proscribing a baseline for the duties these employees engaged in on a day-to-day basis, Congress said employers could exempt only those employees who were paid a minimum salary. Since 2004, the minimum salary for each of these exemptions has been $455 per week, or $23,660 per year. In addition, employees compensated over $100,000 per year (and paid a weekly salary of at least $455 per week) could be exempt regardless of their job duties.

continue reading

Don’t Let Your Workplace Become Collateral Damage in the Cultural Wars

The so-called cultural wars have roiled politics since at least the 1990s and now have invaded the workplace.

However you feel about these issues personally, you should know they are going to spawn confusion and litigation in the workplace as employers try to make sense of conflicting mandates in the courts and legislatures. Uncertainty is the enemy of risk management, and unless you want to make an expensive public statement about your beliefs, we advise you to approach these issues with caution – and sound legal counsel – until the smoke clears.

Many date the cultural wars to 1992, when presidential candidate Patrick J. Buchanan delivered what became known as the “cultural war” speech at the Republican national convention, warning that “there is a religious war going on in this country. It is a cultural war, as critical to the kind of nation we shall be as was the Cold War itself, for the war is for the soul of America.”

You don’t have to agree with Buchanan’s politics to recognize that he was right about the nature of the battle. And with talk radio and cable TV’s insatiable appetite for controversy and our never-ending cycle of national campaigning, we don’t expect the cultural wars to abate, even following the election in November. 

continue reading

Business Visas Help Companies Fill Critical Positions

Immigration is much in the news these days as the presidential candidates discuss border security, terrorism and preserving jobs for U.S. citizens. These public policy issues deserve a thorough vetting of candidates, but they shouldn’t be confused with the legal business visa process that thousands of American businesses depend upon.

Unfortunately, our schools are not producing a sufficient number of graduates in some professional fields, and American businesses have to bring in foreign nationals to fill critical positions. There is a common misconception that these businesses are hiring cheap labor that displaces U.S. citizens, but that’s wildly inaccurate. American businesses are incurring substantial expense to bring in foreign workers with specialized skills, and they would gladly hire U.S. citizens but for the dearth of domestic talent in some professional areas. 

continue reading

Protect Your Intellectual Property with Employment Agreements

In an era when confidential information can be secreted out the door on a thumb drive, business owners can’t depend on the goodwill of employees to keep their intellectual property safe. If you have any form of IP – and almost every business does – we recommend that you protect it with employee agreements. 

While many businesses have unique intellectual property concerns, here are some of the topics we often see emerge. 

continue reading

Business Start-up Legal Checklist

Anyone who has started a business can tell you that they were surprised at how many legal and regulatory hoops they had to jump through just to open their doors. My husband and I experienced this first-hand when we opened a coffee shop and retail business in Greenville. We’re both lawyers, and we still found the process daunting. 

When you start a business, be sure you have the right people in place to help you. A lawyer will be one of them, and here’s a checklist that will help new entrepreneurs stay out of trouble and increase the chances of getting their business off to a trouble-free start. 

continue reading

The Perils of Social Media for Hiring Managers

Hiring managers increasingly are checking out job applicants on social media, and it’s easy to see why: The Internet holds a trove of personal information on most of us, and it doesn’t take much time or skill to mine this data. 

But, you do so at your peril, I always tell employers. 

A lot of what you come across in Internet searches about a job applicant will make my job as an employment litigator harder if I’m defending you in a discrimination lawsuit. The problem is that there are certain things that you should never ask in a job interview, and yet you can’t help but stumble across these areas in a search of social media. 

Remember, every click of your keyboard is subject to discovery in litigation. Once you’ve seen something, you can’t turn back the page. 

continue reading

Be Careful What You Sign: Red Flags in Commercial Contracts

When businesses sign a contract, they’re usually focused on the opportunity it represents – a new customer, a better supplier or a partnership that expands their reach. Unfortunately, when we, as lawyers, see some of these same contracts, it’s after the air has gone out of such expectations and a deal has soured. 

While our best advice is to have every contract reviewed by your attorney, we realize that most businesses aren’t going to do that for every agreement. If there is a lot of money – or risk – involved, consider asking your attorney to review a contract – a process that usually isn’t time consuming for legal counsel familiar with your business. 

However, in those cases where you choose not to make a call to your attorney, here are some things to watch for based on our experience. 

continue reading

Guns and the Workplace in South Carolina

Guns are a tough issue for many business owners. They may own guns and support the Second Amendment, but as business owners, they recognize that when employees bring guns to work, potential liability is created. And while some employees may feel like their Second Amendment rights are limited by workplace policies, most will understand their employer’s concern for dangerous accidents – and resulting lawsuits – that can occur when employees are permitted to carry concealed weapons. 

continue reading

Don’t Automatically Include Arbitration Clauses in Commercial Contracts

For years, mandatory arbitration clauses have been almost automatically included in many commercial contracts, because they’ve been regarded as cost-effective detours for matters that might otherwise work their way through the courts. Over the last few years, we’ve adopted a more critical view of arbitration, and now regard it as a good strategy for some clients, but not for others.

continue reading

How to Write a Workable Non-Compete Agreement

Employers invest time, training and trust in key employees, and they don’t want to see them walk out the door and help a competitor. Non-compete agreements can protect your investment in employees – but only if they’re written with reasonable restrictions. 

continue reading

Criminal Background Checks are a Minefield for Employers

A big issue that will continue to vex hiring managers this year is criminal background checks of job applicants. Employers should be cautious in how they use background checks while we wait for the courts to clarify an area of the law that is fraught with peril.

continue reading

To Sue or Not to Sue:  Protect Your Business Against Non-Compete Violations

Business owners invest time and money into setting themselves apart with unique product offerings, exceptional services or specialized customer retention strategies. They pass along their tricks of the trade to employees as they build their business. But it is information they don’t want leaving their control.

continue reading

Turner Padget Awarded Summary Judgment for Restaurant Chain

Turner Padget represented a South Carolina well-known quick service chain restaurant that terminated a long-time employee for a cash-handling violation.

continue reading

Protecting a Manufacturer Against a Potential Class Action

Turner Padget represented the world’s largest producer of aerosol valves in a lawsuit that alleged racial harassment, race discrimination, and retaliation under various federal and state statutes in the Greenville Division of the United States District Court.

continue reading