Wyche at Work: April Employment Law Update

Prepared by Ted Gentry
April 2012

NLRB Posting Not Required in SC … For Now

We have previously discussed the recent National Labor Relations Board regulation requiring employers to post a notice advising employees of their rights under the National Labor Relations Act. With an effective date of April 30, 2012, South Carolina employers had been exhorted to ready themselves to post this notice. However, on April 13, 2012, a South Carolina federal judge ruled that the NLRB does not have the authority to require employers to post such a notice. Subsequently, an appellate court from another circuit followed suit by granting an injunction that temporarily halted enforcement of this notice. While these decisions may be appealed, it appears that South Carolina employers will not be required to post the notice prescribed by the NLRB, at least for now. We will keep monitoring the situation and endeavor to inform you of new developments.

Arbitration at Work

Mandatory arbitration clauses in employment agreements – a hot topic on the national level – have received recent attention in the South Carolina courts. In the latest decision in this area, the South Carolina Court of Appeals reversed a finding by the trial court that an arbitration provision in a particular employment agreement was unconscionable, thus upholding the arbitration clause. This result notwithstanding, crafting arbitration agreements requires careful attention:

  1. Any agreement or program referencing arbitration must be in writing;
  2. To comply with the South Carolina Arbitration Act, the notice of arbitration must be conspicuous and tailored to statutory requirements (i.e., underlined and all-capitalized font on the first page);
  3. If interstate commerce is involved, the agreement should invoke and reference the Federal Arbitration Act; and
  4. The agreement to arbitrate, including the procedures for arbitration, should not be unconscionable. In South Carolina, unconscionability is defined as the absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms that are so oppressive that no fair and honest person would offer them and no reasonable person would accept them.

There may be good reasons for your company to consider a dispute resolution program that includes arbitration (instead of a jury trial) as the ultimate forum for certain legal claims. Please contact us if we can assist you during this process.

EEOC Issues Final Rule Regarding Disparate Impact Claims

The Equal Employment Opportunity Commission has issued a final rule amending the Age Discrimination in Employment Act (“ADEA”) regulations regarding disparate impact claims and the reasonable factors other than age (“RFOA”) defense. The amendments are to address issues related to Supreme Court cases in which the Court ruled that disparate impact claims are cognizable under the ADEA but that liability is precluded when the impact is attributable to a RFOA. According to a Q&A released by the EEOC, the rule makes the existing regulation consistent with the Court’s holding that RFOA, not business necessity, is the proper defense to a disparate impact claim, and it explains the meaning of the RFOA defense. The Q&A defines an employment practice based on RFOA as one that “was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.”

DOL Updates Online FMLA Advisor

The Department of Labor has released an update to its Family and Medical Leave Act Advisor, an online, interactive resource intended to clarify FMLA coverage, valid reasons for leave, notice requirements, and other responsibilities under the FMLA. The FMLA Advisor is one of a series of Employment Laws Assistance for Workers and Small Businesses (“elaws”) offered by the Department of Labor. Other topics include the Fair Labor Standards Act, Uniformed Services Employment and Reemployment Rights Act, and health benefits. A complete directory is available on the DOL website.

Wyche at Work in Court

Wyche employment lawyers were busy in court this past month getting great results for their clients.

First, Wyche lawyers helped a client obtain a temporary injunction by enforcing a restrictive covenant and enjoining a former employee from soliciting its customers. Restrictive covenants can be tricky to enforce, require careful drafting, and are routinely challenged by offending parties (or their new employers). However, courts will enforce restrictions that are reasonable and narrowly tailored. Please let us know if we can help you protect your trade secrets and your customer base by reviewing or drafting post-employment restrictions for your company.

Second, we helped our client, a non-profit board member, obtain summary judgment when she was named as a defendant in a claim brought by a former employee for payment of accrued but unused vacation and overtime pay. Under certain circumstances, violations of statutory wage and hour laws and the Fair Labor Standards Act can impose individual (not just corporate) liability. While we prevailed in this case, it is imperative (for you and your company) to be certain that paid time off policies clearly set forth rights and responsibilities and that employees are classified correctly.


If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice. 

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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