Author Archives: Hayes Jernigan

I Believe In People (Even Attorneys)

I have always chosen to believe that people are good and have the best intentions. When in doubt, I choose to believe there was a miscommunication and had the person, who’s actions are in question, known the full facts, their actions would have been different. Isn’t that the approach that produces the best results? It avoids a lot of pain and gives the party in question an easy out. But I am rarely given the same treatment in return, and that is often the most painful.

Practicing law has changed my perspective. I have seen people, companies, and attorneys, turn a person into a number in order to rationalize their disregard for that person’s individual rights. In my short time practicing, I have had a surprising number of clients get divorced because of the stress that getting hurt at work have put on their finances and ultimately their relationships. I have seen innocent people lose sleep, lose jobs, and lose their family because their rights were taken away or abused. This makes it difficult to keep believing the best in people and sometimes I blame the attorney.

I understand now why attorneys have a bad reputation. A famous line (that is often misquoted) from Shakespeare’s “Henry VI” is “let’s kill all the lawyers.” But Shakespeare did not mean it as a reference to unethical and corrupt lawyers. Rather, it was said by a character who wanted to disrupt law and order in order to overthrow the king. Shakespeare meant it as a compliment to lawyers who uphold justice and peace, without whom there would be chaos. Attorneys have an important role to play in society, and I will choose to keep believing the best in people and attorneys and hope I will get the same in return.

Hidden Fees In North Carolina

NBC Nightly News reported on December 9, 2015 that North Carolina is one of the worst states when it comes to charging hidden fees for traffic tickets. The segment reported that hidden fees in NC increased an original traffic ticket of $30 over seven fold to $218. While the State has to find funding for the many services they provide that are not profitable, NBC News reported that some of these “hidden fees” pay partly for court costs. But there might be more appropriate places to assess fines to cover court costs.

In 2014 the UNC School of Government wrote a blog based on the Court of Appeals decision in Tyll v. Berry, stating that a party held in civil contempt for failing to obey a court order can be assessed a fine, not just imprisonment.  However, the State Legislature just passed a law clarifying that when someone is found to be in civil contempt a monetary fine is not an appropriate remedy.

Seems to me that a fine is exactly the appropriate remedy when a party fails to obey a court order and that such a fine, payable to the court rather than the opposing party, could be a valuable source of funding for court-related costs. Fines for civil contempt could also alleviate some of the pressure to assess large “hidden fees” for minor traffic violations.  

Read more here: http://nccriminallaw.sog.unc.edu/thought-you-understood-contempt-think-again/

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

Yesterday we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.

 

To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

Public Financing Makes Our Justices More Fair

A study titled “Does Public Financing Affect Judicial Behavior?…” was recently published by three political scientists who looked at North Carolina’s Supreme Court. From 2001 until 2013 (for eleven years) North Carolina had an optional public financing system, making it the perfect case study. The conclusion of the study? Yes. Public financing made justices on our Supreme Court more moderate and impartial= better. Specifically, the study showed that justices who opted-in to public financing for their campaigns were 60% less likely to vote in favor of donors who contributed to their campaigns than before they opted-in. That’s a notable change.

The foundation of our judicial system is impartiality and a fair day in court; and according to this recent study, when private donors fund judicial campaigns it threatens that impartiality and fairness. In 2009 the U.S. Supreme Court issued an opinion in Caperton v. Massey Coal Co. Inc., saying that an appellate judge in West Virginia who had recently accepted $3 million from the Massey Coal’s chairman and principal officer in his reelection campaign should have declined to participate in ruling on whether Massey should have to pay a $50 million jury verdict in a lawsuit for fraud. Surprisingly, this was a 5-4 decision. It seems pretty obvious to me that the West Virginia judge’s participation in Massey’s fate was questionable, whether or not he was fair, the appearance of his impartiality is what mattered.

Obviously, from this study it appears that public financing is the better method of judicial elections. Further studies need to be done to confirm the outcome and if this trend is accurate and continues, the legislature should change the election process.

Read more at Vox.com.

Workplace Relationships

NY Times article “Friends at Work? Not So Much”

The New York Times recently published an op-ed claiming that the amount of people who seek or maintain friendships in the workplace has dropped in recent decades. Where people once looked to the workplace as a main source of long-term friendships, by 2004 only 30% of Americans said they had a close friend at work. The article cites several studies that show we communicate better and are more productive when we work with friends.

 

In workers’ compensation, we represent employees who have been injured on the job. More often than not when an injured worker calls our office they are upset by how they have been treated by their employer once they were injured, especially if they have worked there for a long time. If an employee develops a close relationship with their coworkers and their boss, when they get hurt on the job, they suddenly feel like those relationships were one-sided because they feel they are tossed aside as soon as they get hurt (oftentimes for no fault of their own).

 

Injuries at work can change workplace relationships. The employer often must hire a replacement, which requires additional expenses, and co-workers might feel they are caught in the middle. We often ask workers who call our office whether they are on good terms with their employer because when they are, things tend to go a lot easier. If you have friends at work and get injured, will that make the process better or worse? Would you feel that your employer and co-workers will go to bat for you or will you feel more hurt because people might distance themselves from you? I like to think the former. Either way it’s a safe bet for all parties to be open and honest with each other and most of all, be kind to each other- no one wants to get hurt.

 

 

Justice Scalia’s Influence on Legal Writing is Questioned

Dean Erwin Chemerinsky, Dean of the University of California Irvine School of Law School and Constitutional Law Scholar

Erwin Chemerinsky, Dean of the University of California Irvine School of Law School and author of the textbook Constitutional Law, recently wrote an op-ed for the L.A. Times in which he noted a pattern he has seen in his students of mimicking Justice Antonin Scalia’s writing style. He is not pleased.

Justice Scalia is well-known for his confrontational and colorful battles with the left side of the bench, particularly with Justice Ruth Bader Ginsberg. His dissents unabashedly slander the opposing point of view and use such phrases as “gobbledy-gook,” “beyond absurd,” and “mystical aphorisms of the fortune cookie.” He even wrote that if he had shared the opposing side’s opinion he would “hide [his] head in a bag.”

Chemerinksy makes a good point: while we often find Scalia’s opinions and dissents amusing, should attorneys, judges and new students be expressing their opinion in this manner? Lawyers are held to a high standard of ethics in this country and are expected to be respectful of the court and of all parties involved. Is it professional to attack fellow lawyers and judges by ridiculing and demeaning them? Scalia’s colorful dissents might be getting the public more interested in the law but at what cost?

Misclassification Bill Passes N.C. Senate

            A bill attempting to address North Carolina’s crisis of employers misclassifying employees as independent contractors passed through the Senate on Tuesday. Senate Bill 694 creates an “Employee Classification Division” within the Office of State Budget and Management which is tasked solely with the responsibility to oversee and enforce proper classification of employees. The tasks of the Division mostly involve investigating, preparing reports and developing strategies. While the Division also has authority to assess civil penalties, it is limited to assessing a penalty for misclassifying employees over the past three years (and in the future) of up to $1,000 per misclassified employee. This is not $1,000 for each year an employee was misclassified, but $1,000 per employee. There is also an amnesty program whereby any employer can come forth by April 1, 2016 and admit to fraud and face no penalty for past wrongdoings. Other possible sanctions for future wrongdoings include revoking a general contractor’s license, but if five or more members of the Board vote to reinstate, it can reissue any license at any time.

            Even though $467 million may have been lost each year in state and federal taxes due to employer misclassification, employers will get a clean slate for coming forward by next year. Because misclassifying employees allows employers to cut down their costs by an estimated 20%, cheating employers are able to win contracts with lower costs than their honest competitors. $1,000 per misclassified employee may be worth it to an employer who can stay above their competition and keep getting big contracts. This proposed legislation is a good first step, but it simply does not go far enough to stop the fraud.

 

Photo source: http://www.wncn.com/story/28936225/nc-senate-unanimously-agrees-to-take-on-employer-schemes

N.C. Workplace Deaths Being Under-Reported

The News & Observer recently published an article exposing the under-reporting of workplace deaths by the North Carolina State Department of Labor. The Department reported only 23 deaths for 2013 and for 2014, the Department reported 44 deaths. However, even 44 deaths is significantly less than the 243 workplace deaths reported by the Department in 2001. In a 2009 press release by the Department of Labor, NC was “one of the safest states to work.” However, according to the N&O, this reduction in reported fatalities is due to a change in methodology, not safety.

In 2006 the N.C. Department of Labor began reporting only the deaths that the Department had authority to investigate. That policy change excluded independent contractors (self-employed workers) as well as any death that falls under federal jurisdiction. Federal jurisdiction includes the death of a federal employee, any worker who dies while working on a military base or at a federal facility, any death in the mining industry, and any death that occurs around open waters including firefighters and divers. The State’s total also excludes laborers at small farms, owners of unincorporated companies, most workers who die on roads, and many workers who died months or years after the injury that eventually killed them.

Misclassification of workers as independent contractors (the topic of another investigation by the N&O) not only results in employers cheating the workers’ compensation system by failing to obtain insurance, but it also results in inaccurate data reported by the Department of Labor. This under-reporting is not due to increased safety and enforcement by our State, it is due, in part, to employer fraud of misclassifying workers.

Read more here.