by | | Legal Advice, Workers' Compensation
Issues at work arise – demotions, harassment, discrimination, unfairness, job loss, demotions, etc. – but do I have a case because of it? Is this something worth pursuing? What if I pay for a consult with an employment attorney and don’t have a case?
The questions above are just some that I hear from potential clients in deciding whether or not to set up an appointment for a consultation. It’s a dilemma – the individual may have lost their job and whether to hire an employment attorney to review the case may not be in the budget just yet. I think what will help in making the decision is understanding the value of a consultation with an employment attorney.
The Value of a Consultation
More than meets the eye: On more than one occasion (and I know the cases), I’ve had a client call my office, think that they had a case about X and we schedule a consultation. We sit down, go through the events, ask diagnostic questions, and then the light bulb goes off: each of us realizes that their case isn’t about X but actually about Y! Had the consultation never occurred, the client would not have even realized they had a separate right about a cause of action worth pursuing.
Communication: If you are wanting to know whether or not you have a case, don’t you want to hear all about it? Research has estimated that 93-80 percent of communication is nonverbal (body language, facial expressions, etc.). So, without a face to face consultation, or even a zoom, you arguably are only hearing about 20% of what is being communicated about your case. When you are on the phone, you may be driving, walking, checking email, or engaging in a number of activities that could be, understandably, distracting. However, a consultation is a dedicated time, distraction free, to focus on your important legal matter.
No substitute: Would you ever ask a friend to diagnose your medical problem? Would you want your brother-in-law to install a fuse for your dryer in the lectric box? When it comes to not identifying a medical issue or the risk of burning down your house, you’d probably go to a professional. The same approach applies to your legal problems. To be an attorney requires 4 years of college, 3 years of law school, passing the bar and then it still takes years of experience to understand the law. Asking a friend who heard of the same thing happening to their friend or googling is no substitute for setting a consultation with an employment and getting the benefit of YEARS of experience and training.
Peace of Mind: Peace of mind and receiving solid legal advice comes at a cost. Unfortunately, operating a law office, just like a doctor’s, CPA, plumber or any other licensed professional, does in fact cost money, and so there is a charge for employment consults (except those that involve workers’ compensation or physical injury at work). Individuals call and ask whether or not it is worth it? I think so, but respect that individual must consider not only their financial situation, but also commitment to their case. If the cost of a legal consult, which is the equivalent of going to an Urgent care, deters you from pursuing your matter, then maybe you should reflect on whether you want to pursue it? I can never guarantee the outcome of a consult, but I can tell you that we will endeavor to explain your legal situation so you have an understanding, a peace of mind, as to where your stand legally in regards to your situation at work.
The following reasons are not exhaustive, but hopefully give someone considering meeting with an employment attorney a better understanding of the process and what to expect in a consultation.
by | | Legal Advice, Workers' Compensation
One of the most unfair things that I’ve seen happen is that someone is now out of work for a reason that they didn’t ask for, and receive a notice that they are terminated. Unfair – absolutely. But is it against the law? That question is a bit more complex and could involve a couple of other areas of employment law. Let’s break it down.
The North Carolina Retaliatory Employment Discrimination Act prohibits an employer from retaliating against an employee for filing and/or pursuing a workers’ compensation claim. So, the textbook example of retaliation would be the scenario where an employee asks an employer for a workers’ compensation claim form, and they are then terminated the next day for some made-up reason.
The more difficult scenario to parse through is what happens when the employee is missing work because of their injury, and the employer terminates them after he or she misses several weeks of work. They are missing work because of their injury, so doesn’t workers’ compensation benefits protect them? Not necessarily. Workers’ compensation is not a job-holding benefit. Generally speaking, workers’ compensation benefits provide medical benefits to take care of the injury, and if the employee is losing work, it then provides wage replacement. It doesn’t however hold an employee’s job and the conceptual reason is because the legislation wants workers’ compensation system to be as non-disruptive to commerce as possible. The legislature wants employers to continue working, and if they need someone to step in and replace that hurt employee, that’s not going to be against the law per se.
However, the Family Medical Leave Act (FMLA), the employer’s leave policies, and the Americans with Disability Act as Amended (ADAA) may all come into play. So, for instance, let’s say an employee suffers a devastating injury and will be out for at least 8 weeks. If the employee has FMLA leave, then the employer cannot let them go because to do so would run afoul of FMLA, not necessarily workers’ compensation.
Knowing that an employee can be leg go on workers’ compensation, what’s the best course of action for an employee to protect themselves? That question should be answered on a case by case basis, but generally, establishing restrictions with the medical provider so that workers’ compensation benefits (wage replacement) kick in is one level of protection.
If you or a friend are getting nervous about your job security, and suffered a workers’ compensation claim, please reach out to our office 828-575-9700 or [email protected] to set up a consultation to discuss.
by | | Legal Advice
Can I sue the State when an inmate escapes and commits subsequent crimes?
More broadly speaking, when is the State responsible for injuries caused by an inmate or someone on probation?
It is headline news that we see too often about an inmate escaping from custody and harm occurs to those unfortunate individuals in their path. Those individuals no doubt are harmed on many levels, physically and emotionally. The inmate, more likely than not, already has nothing to lose, so who can those harmed individuals look to for compensation for their injuries? Can they recover from the State for failing to supervise or keep a better watch on inmates in their care?
North Carolina Courts recognize the situation, but have established that the duty by the State to individuals, is a general duty to the public, and not specific. So unless there’s a special relationship between the individual harmed and the State, Courts will hold that there’s no specific duty and bar recovery. North Carolina recognizes the public duty doctrine which refuses to impose judicial liability for failure to prevent criminal acts. The exceptions to the public duty doctrine are 1) where there is a special relationship between the injured party and the police (e.g. states witness or informant); 2) when a municipality through its officers creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual’s reliance on the promise of protection is causally related to the injury suffered.
For instance in Blaylock v. N.C. Dep’t of Correction, a probation officer placed a probationer that she was supervising in a home that had three minor children. The individual that the probation officer supervised then sexually assaulted the three minor children. The mother of the three children then sued the State because it, by and through its probation officer, placed the individual in their home without informing them of the probationers past charges.
The appellate court held that plaintiff’s was trying to hold the State liable for the negligent actions of its probation officer, which, in other words, is failing to provide police protection to specific individuals from the criminal acts of a third party. Thus, the public duty doctrine applied to the case, and therefore barred Plaintiff’s claims unless one of the two exceptions to the public duty doctrine applied.
In another case, Humphries v. North Carolina Dep’t of Correction, a probationer that was on probation cut off his surveillance bracelet and shot and killed someone. The estate of the person shot sued the state on the grounds that its probation officer negligent in their supervision of the probationer. In reversing the appellate courts and holding that the public duty doctrine applies, there was no special relationship between the State and the individuals that were hurt by the probationers. In fact, the appellate court stated that a plaintiff must show that an actional promise was made to the individuals hurt.
Of course, every case is different, and there are other examples of when the State was liable. If you believe that the State may be responsible, please contact our office to review your situation. Otherwise, the information above is general and not to be taken as specific legal advise applicable to anyone’s situation.
