SPEAKERS: Patricia L. Holland (919) 424-8608 Patricia.holland@jacksonlewis M. Robin Davis

1. SPEAKERS: Patrick H. Flanagan (704) 940-3419 pflanagan@cshlaw.com Norwood P. Blanchard (910) 332-0944 nblanchard@cshlaw.com Ryan D. Bolick (704) 940-3416 rbolick@cshlaw.com SPEAKERS: Patricia L. Holland (919) 424-8608 Patricia.holland@jacksonlewis.com M. Robin Davis (919) 424-8609 Robin.davis@jacksonlewis.com Ann H. Smith (919) 424-8610 Ann.smith@jacksonlewis.com

2. RETALIATORY EMPLOYMENT DISCRIMINATION ACT (REDA)

3. RETALIATORY EMPLOYMENT DISCRIMINATION ACT (REDA) • Enacted in 1992 • N.C. Gen. Stat. § § 95-240 to 249 • Enforced by Employment Discrimination Bureau of NC DOL

4. ELEMENTS OF A REDA CLAIM • In order to establish a claim against an employer under REDA, the employee must show: • He/She exercised a right to engage in a protected activity; • He/She suffered an adverse employment action; and

5. ELEMENTS OF A REDA CLAIM • A causal connection exists between the exercise of the protected activity and the alleged retaliatory action. (Close temporal proximity.) (Smith v. Computer Task Groups, Inc., 568 F.Supp. 2B 603, M.D.N.C. 2008)

6. WHAT IS A PROTECTED ACTIVITY? • REDA provides that no person shall discriminate or take retaliatory action against an employee who in good faith takes action or threatens to: • File a complaint • Initiate any inquiry, investigation, inspection, proceeding, or other action, or • Testify or provide information to any person regarding the following matters:

7. WHAT IS A PROTECTED ACTIVITY? • Workers’ Compensation Act • Wage and Hour Act • Occupational Safety and Health Act • Mine Safety and Health Act • Sickle Cell or Hemoglobin C trait • Genetic Testing or Genetic Information • National Guard Service • Domestic Violence Proceedings • Juvenile Justice Proceedings

8. WHAT IS AN ADVERSE EMPLOYMENT ACTION? • Discharge • Suspension • Demotion • Retaliatory relocation • Other adverse employment action in the terms, conditions, privileges and benefits of employment

9. WHAT IS AN ADVERSE EMPLOYMENT ACTION? • Constructive Discharge? • Prior to July 2005, NC DOL position was yes • NC common law does not recognize a constructive discharge as a tort claim. Whitt v. Harris Teeter, Inc., 359 N.C. 625, 614 S.E.2d 531 (July 1, 2005).

10. WHAT IS A “CLOSE TEMPORAL PROXIMITY”? • One Day – Lilly v. Mastec N. Amer., Inc., 302 F.Supp. 2d 471, 482 (M.D.N.C. 2004).

11. WHAT IS A “CLOSE TEMPORAL PROXIMITY”? • Less than one month – Martin v. Nationwide Mutual Insurance Company No. 1: 99CV00956, 2001 W.L. 604192 8-9 2001U.S. Dist. LEXIS 9038 24-25 (M.D.N.C. April 20, 2001)

12. WHAT IS A “CLOSE TEMPORAL PROXIMITY”? • Six years – Tarrent v. Freeway Foods of Greensboro, Inc., 163 N.C.App. 504, 511, 593 S.E.2d 808, 813 (2004) • Avoid: • Asking questions like: Will you behave? You’re not going to fall again are you? • Telling employee that her workers’ compensation claims cost a lot of money.

13. WHAT IS THE ABSENCE OF A “CLOSE TEMPORAL PROXIMITY”? • 2 ½ months – Salter v. E & J Healthcare, 155 N.C.App. 685, 575 S.E.2d 46 (2003) • 81 days – Brown v. Sears Automotive Center, 222 F.Supp. 2nd 757 (N.D.N.C. 2002). • 3 months – Shaffner v. Westinghouse Elec. Corp., 101 N.C.App. 213, 216 398 S.E.2d 657, 659 (1990)

14. PRACTICAL TIPS AND DEFENSES The Good Faith Requirement Statute of Limitations DOL Charge cannot befiled more than 180 days after last alleged discriminatory or retaliatory act. Right to Sue Employee must file lawsuit within ninety (90) days of receipt of a Right to Sue letter from the Department of Labor.

15. PRACTICAL TIPS AND DEFENSES N.C.G.S. § 95-241 provides a complete defense to any REDA claim. It states: It shall not be a violation of this Article for a person to discharge or take any other unfavorable action with respect to an employee who has engaged in protected activity as set forth under this Article if the person proves by the greater weight of the evidence that it would have taken the same unfavorable action in the absence of the protected activity of the employee.

16. PRACTICAL TIPS AND DEFENSES • If the decision maker did not know that the employee engaged in a protected activity, this fact if proven provides a complete defense Brown v. Sears Automotive Center, 222 F.Supp. 2d 757 (2002).

17. PRACTICAL TIPS AND DEFENSES • In order to file a civil action against an employer, an employee must exhaust administrative remedies.

18. PRACTICAL TIPS AND DEFENSES • Employee must file a Charge with the Department of Labor. The Department of Labor has the power to investigate the allegations including obtaining documents from the employer as well as subpoenaing witness. • The Department of Labor may then file suit on behalf of the employee or issue a Right to Sue letter to the employee. • Employer has an opportunity to present a position statement in defense of the employee’s allegations.

19. WHAT REMEDIES ARE AVAILABLE UNDER REDA? • Injunction to stop the continuing violation of REDA. • Reinstatement of the employee to the same position held before the retaliatory action/discrimination or to an equivalent position. • Reinstatement of full fringe benefits and seniority rights. • Compensation for lost wages, lost benefits, and other economic losses that were proximately caused by the retaliatory action /discrimination. • If the court finds there was a willful violation of REDA, the court can triple the amount awarded from compensation. • Assess the respondent costs and expenses including attorneys fees for bringing the action.

20. Questions?

21. SPEAKERS: Patrick H. Flanagan (704) 940-3419 pflanagan@cshlaw.com Norwood P. Blanchard (910) 332-0944 nblanchard@cshlaw.com Ryan D. Bolick (704) 940-3416 rbolick@cshlaw.com SPEAKERS: Patricia L. Holland (919) 424-8608 Patricia.holland@jacksonlewis.com M. Robin Davis (919) 424-8609 Robin.davis@jacksonlewis.com Ann H. Smith (919) 424-8610 Ann.smith@jacksonlewis.com