Monthly Archives: August 2016

North Carolina Labor Commissioner Race

North Carolina needs a Commissioner of Labor who is fair to workers. Certainly cooperation between employers and employees is key. However, when thousands of workers are not being paid their duly-earned wages, we have a problem.


In 2014, the News & Observer published an article entitled “For Many Workers Cheated out of Wages, NC Department of Labor Offers No Help.” The article stated that “[f]or at least 2,011 workers, more than half of the 3,694 who asked for help in the past fiscal year, the agency took no action. Employers didn’t get fined. No one was charged with a crime for not compensating the workers’ time and labor.” When Berry ran for office in 2000, her campaign platform centered on how “[g]overnment should tread lightly in the lives of people and business . . . [w]hen her agency must get involved, Berry favored working in consultation with businesses rather than confronting them.” (see N&O article from 2014, and from 2015 “At NC Department of Labor, Little Help for Unpaid Workers”).


Fast-forward to 2016. Cherie Berry is now being criticized for accepting “improper contributions” from corporate executives who have cases pending before her agency. Berry accepted $20,000 from at least four companies which were recently being investigated by the Labor Department. In particular, one donor, Ronald Cameron, is chairman and CEO of Montaire Farms which investigated for a workplace fatality. Berry responded to the criticism by saying that “everyone gets treated the same.”


Former Raleigh mayor, Charles Meeker, is running against Berry for Labor Commissioner. Meeker’s campaign focuses on improving worker safety, accurate classification of workers, and making sure that workers are paid what they are owed. Meeker also would like to remove Berry’s photo from all elevators and, in its place, put up photos of working people. Both candidates deserve serious consideration. I encourage you to evaluate them and be sure to vote for the candidate of your choice.


Lawyers Targeted in Terror Attack

“The first thing we do, let’s kill all the lawyers,” is a famous line uttered by a rebel in William Shakespeare’s Henry VI, Part 2. While on its face the quote expresses an extreme distaste for lawyers, it has also been interpreted to praise lawyers as protectors of the rule of law who guard against a totalitarian government. That interpretation is ever more applicable today in light of the recent pre-planned attack on lawyers in Pakistan by Jamaat-ul-Ahrar, a Pakistani terror group, which killed more than 70 people, including as many as 60 lawyers.

The attack happened at a hospital where a group of lawyers had gathered to mourn the loss of the Baluchistan Bar Association president, Bilal Kasi, who was shot and killed on his way to court earlier that day. According to Ali Zafar, president of the Pakistan Supreme Court Bar Association, “We [lawyers] have been targeted because we always raise our voice for people’s rights and for democracy.” Despite the attack, the lawyers vow to continue their work protecting the rights of the Pakistani people.

Scorpion Sting While Working at the Grocery Store – Compensable?

In Raleigh, North Carolina, we see a lot of crickets, wasps, bees, lightning bugs, and an occasional cicada. What we don’t have – thank goodness – are scorpions. Those belong far, far away – preferably in other countries or in the Southwest. However, just a few weeks ago, an employee at a grocery store in Raleigh sustained a scorpion sting while working near the bananas in the produce section of the store. Based on the news article, it’s unclear what s/he was doing exactly – perhaps unloading or sorting bananas?

So, would this mean that the stung employee would have a workers’ compensation claim? Based on the limited details from the news article, the answer is “quite possibly.” The Industrial Commission would apply an “increased risk” test to determine whether the employee’s injury from the insect sting arose out of his or her employment, and whether the employment peculiarly exposed the employee to a risk of being stung by a scorpion sting greater than that of other persons in the community. See Minter v. Osborne, 127 N.C. App. 134, 487 S.E.2d 835 (1997).

The case will likely hinge on coworker testimony and expert testimony (i.e. an entomologist testifying about insect habitats and behaviors). In this particular example, a local entomologist from North Carolina State University stated that “scorpions and spiders get to the state [North Carolina] from tropical areas by hitchhiking on bananas or other imported produce.” So, based on this statement, it’s likely if the employee was unloading bananas from out-of-state, s/he was at an increased risk due to his/her employment of encountering and subsequently being stung by a scorpion than, for example, I am sitting in my office just down the street.

The compensability of the case is going to center on a lot of factors. Insect bite cases involving workers’ comp issues are highly fact sensitive and quite interesting. Hopefully the injuries are typically minor and heal in a matter of days. However, when there are complications or reactions from an insect bite, it would be wise to consult with an attorney to discuss aspects of the case.

North Carolina’s Bathroom Bill

Whether you are a Republican, a Democrat, or a supporter of some other party, don’t we all want fairness and a right to be heard? In North Carolina, those who control the legislature do not seem interested in due process rights.

House Bill 2 (the bathroom bill) was passed and signed by the Governor in 24 hours, without any debate or discussion. I didn’t know there was a problem. Is there a problem? What’s the rush? Where is due process? What happened to a fair hearing?

Fortunately, people are speaking up. People recognize discrimination. They are becoming aware of what’s going on, because it can happen to them. It reminded me of that famous statement in 1946 by a German Pastor, Martin Niemöller:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Wage Theft in the U.S. Senate

Last year, the Department of Labor (DOL) recovered nearly $247 million in back wages for more than 240,000 workers. Since 2009, the DOL has recovered nearly $1.6 billion in back wages for 1.7 million workers. These amounts are just a fraction of the amount owed to workers because of wage theft (employers not paying workers the amount they have legally and rightfully earned), according to Catherine Rampell, an opinion columnist at The Washington Post.

In July, the DOL ordered a private company that had been hired to run the U.S. Senate cafeteria to pay 674 cafeteria workers $1,008,302 in back wages after the DOL discovered that the company misclassified employees, underpaid employees for the time they worked, and failed to pay required health and welfare benefits since 2010.

Congress, as a whole, has taken little to no action to combat wage theft. In March 2016, Senators Patty Murray and Sherrod Brown and Representative Rosa DeLauro introduced the Wage Theft Prevention and Wage Recovery Act to Congress. The bill would require employers to pay full wages owed to an employee, and would also impose civil penalties on employers for violating the Fair Labor Standards Act. The bill does not have a good chance of being passed into law.

If you have questions or concerns about whether you are being paid properly and for all the hours you work, contact the U.S. Department of Labor’s Wage and Hour Division at 1-866-487-9243. If you work in North Carolina, you can also contact the North Carolina Department of Labor’s Wage and Hour Bureau at 1-800-625-2267.

Kratom for Pain Relief? What’s that?

Mitragyna speciosa, aka “kratom,” is a tropical plant in the coffee family, native to Southeast Asia, historically used in Thailand for its medicinal qualities. Thailand banned kratom in 1943 due to abuse and now North Carolina, among other states, is seeking to set limits on the drug too.


What’s the concern about kratom? According to a state senator in North Carolina, the state medical examiner found the drug in 24 people while investigating their deaths. Additionally, the FDA warns that  “consumption of kratom can lead to a number of health impacts, including respiratory depression, nervousness, agitation, aggression, sleeplessness, hallucinations, delusions, tremors . . . “ and more.


Technically, kratom is categorized as a “botanic dietary supplement.” Thus, the FDA cannot intervene unless kratom is shown to be unsafe or its producers claim that it treats a medical condition. For decades (if not longer), workers in Thailand used kratom to ward off exhaustion, enhance their mood, and to alleviate pain. Modern proponents of kratom say it’s a natural painkiller and that it helps people avoid or wean off opiates and narcotics. In fact, some business in North Carolina will even serve you kratom tea (described as “green brown sludge . . . ladled from some South Pacific swamp”). Generally, kratom can be found in convenience stores and, of course, online. However, some states (e.g. Indiana, Tennesssee, Vermont, and Wyoming) have already banned kratom entirely.


Overall, there’s not a consensus on the health effects of the plant. Some say it’s like trading one addiction for another. It’s a very gray, murky area. If Kratom is being used, be wary.

Can Safety Rules or Regulations Impact a Workers’ Compensation Claim?

In North Carolina, if an employer willfully fails to comply with any statutory requirement or an order of the Industrial Commission, an employee’s injury compensation is increased ten percent. If however an employee is injured because he willfully violated a safety rule set by the employer, then his injury compensation will be reduced if (1) the rule or regulation has been approved by the Industrial Commission’s Safety Education Director AND (2) he knew about the rule. N.C. General Statute 97-12.

For an employer’s adopted safety rules or regulations to be approved by the Industrial Commission, the employer must submit them to the Safety Education Director for review. The Safety Director will then review the rules and approve them if they comply with the general provisions of the safety rules outlined by the American National Standards Institute (ANSI) AND The Occupational Safety and Health Act (OSHA). 04 NCAC 10A. 0411.

The burden of proof is on the party who claims an exemption or forfeiture under N.C. General Statute 97-12.

What is Rhabdomyolysis?

We recently had a client diagnosed with rhabdomyolysis because of his exposure to hot temperatures as part of his job doing lawn maintenance. Rhabdomyolysis is a rare syndrome in which skeletal striated muscle tissue breaks down rapidly. The breakdown products of damaged muscle cells, such as myoglobin, are released into the bloodstream and may lead to kidney failure.

Along with heat stroke, hyperthermia, electrical shock injury, extreme muscle strain, as well as a variety of other causes such as alcohol or illegal drug use and bacterial infections can cause rhabdomyolysis.

Common signs and symptoms include muscle pain, muscle weakness, abdominal pain, nausea or vomiting, fever, rapid heart rate, confusion, dehydration, lack of consciousness, dark red or brown urine, and/or reduced or no urine output.

The treatment for rhabdomyolysis typically consists of IV fluids. Rarely, the treatment will include dialysis fasciotomy (a surgical procedure to relieve tension or pressure and loss of circulation if compartment syndrome threatens muscle death or nerve damage).

If diagnosed early, a full recovery from rhabdomyolysis can usually be expected. If you see symptoms or suspect the possibility of rhabdomyolysis, get the individual to a hospital as soon as possible.