Crenshaw v. Erskine College

In a recent employee handbook case, Crenshaw v. Erskine College, the South Carolina Supreme Court departed from a long line of precedent without the slightest acknowledgment of doing so.

A jury awarded a tenured professor $600,000 after his employer, Erskine College, terminated his employment in breach of his contract.  The contract was created by mandatory language in a Faculty Manual.  The trial court overturned the verdict, ruling the employer did not breach its contract with the professor.  In a 3-2 decision, with Chief Justice Beatty and Justice Hearn dissenting, the Supreme Court affirmed the trial court’s grant of judgment to the college and held that, as a matter of law, a Faculty Manual constituted an employment contract between the college and its tenured professors.  Nevertheless, the college did not breach the employment contract and the termination of the professor’s employment was lawful.

The majority of the opinion discusses the terms of the contract, the effect of tenure on the Court’s analysis, due process, and whether the college breached the contract in the way it handled the professor’s termination of employment.  The most startling part of the opinion is, however, the Court’s discussion about whether the Faculty Manual created a contract of employment despite the Manual’s conspicuous at-will disclaimer.  “In this case, the Faculty Manual states conspicuously at the bottom of almost every page, ‘This is not a contract of employment.’”  The Court stated, “Erskine refused at trial to concede the Faculty Manual is a contract, and continued its refusal to concede the point until we forced it to do so at oral argument before this Court.  We hold Erskine’s Faculty Manual is a contract with its tenured professors as a matter of law.”

The Court does not mention South Carolina’s at-will disclaimer statute, S.C. Code 41-1-110, or explain how a handbook that contains a conspicuous disclaimer was held, as a matter of law, to constitute a contract of employment.  Because the Faculty Manual’s “conspicuous disclaimer” did not comply with the statute’s requirements to be considered conspicuous as a matter of law, a history lesson is in order.

Prior to the South Carolina legislature enacting § 41-1-110, the South Carolina Supreme Court held employee handbooks created contracts of employment when the handbook set forth procedures binding on the employer because they contained mandatory language and the handbook did not contain a conspicuous disclaimer.  Although the presence of mandatory or promissory language and a non-conspicuous disclaimer created a factual issue for a jury to determine, a court was to resolve, as a matter of law, whether the employee handbook constituted a contract when the handbook’s policies and disclaimers, taken together, established that an enforceable promise did or did not exist.  For example, if a handbook contained a conspicuous disclaimer, the employee handbook did not create an employment contract as a matter of law.  Moreover, at-will disclaimers were conspicuous as a matter of law where the disclaimer was placed in a prominent position and was in bold, capitalized letters.

In 2004, the South Carolina legislature, with push from the business community, enacted the at-will disclaimer statute, § 41-1-110, which provides:

It is the public policy of this State that a handbook, personnel manual, policy, procedure, or other document issued by an employer or its agent after June 30, 2004, shall not create an express or implied contract of employment if it is conspicuously disclaimed. For purposes of this section, a disclaimer in a handbook or personnel manual must be in underlined capital letters on the first page of the document and signed by the employee. For all other documents referenced in this section, the disclaimer must be in underlined capital letters on the first page of the document. Whether or not a disclaimer is conspicuous is a question of law.

Thus, an at-will disclaimer compliant with this statute is supposed to prevent litigation over whether an individual employee handbook created an employment contract.  Cases have continued to be litigated in recent years where the disclaimer was not compliant with the statute or where the handbook was published before the statute’s enactment even though the employee was hired after 2004.

The Court has previously held judgment as a matter of law is inappropriate where a handbook or manual contains a non-conspicuous disclaimer and mandatory policy provisions.  Recognizing that, the Court in Crenshaw stated, in dicta, that the question of whether the Manual was a contract may need to be submitted to a jury in cases involving non-tenured faculty and non-faculty employees.  The Court appears to have decided the existence of a contract did not need to be submitted to a jury because the professor was tenured.

Because the professor was tenured, the Court’s analysis was distinguishable based on the promises inherent in the granting of tenure.  “Tenure – by its very nature – is a promise.”  The college’s granting of tenure to the professor was an offer to fulfill the promises set forth in the Manual, and he accepted that offer through his continued performance as a tenured professor.  The Court opined that the promise of tenure left the Court with “no doubt that the Faculty Manual is a contract” and warned that “[t]he role of the granting of tenure in our analysis of whether the Faculty Manual is a contract with tenured faculty probably renders this analysis inapplicable in any other context.”  (emphasis added)

In the dissent, written by Justice Hearn, the Court criticized the majority’s decision that the Faculty Manual created a contract of employment because:

the existence of the contract and the terms of that contract were issues for the jury to determine, not this Court. Erskine maintained throughout this litigation, including during the trial, that the Faculty Manual did not create a contract of employment.  Given Erskine’s continued insistence that the handbook did not constitute a contract, the trial judge had no alternative but to let the jury determine whether a contract existed.

Justice Hearn discounted the effect of the tenure policy in its Manual, stating the inclusion of that policy did not necessarily transform the Manual into a contract.

In essence, the majority found there was promissory language – a tenure policy – and a conspicuous disclaimer.  Instead of following its own precedent and holding no contract of employment existed, as a matter of law, the Court held the Faculty Manual constituted a contract of employment as a matter of law.  Even though the dissent takes issue with the majority not following precedent, the dissent appears to do the same, stating the decision should have been in the hands of a jury.

The Takeaways:

1. If the majority found, as a matter of law, that the disclaimer was conspicuous, as it stated, then the Court’s analysis should have stopped there with a ruling that the Faculty Manual did not create an employment contract.  Thus, in using the term “conspicuous,” did the Court not mean conspicuous as a legal term of art in handbook cases?  Or are we in a new world where a handbook can contain a conspicuous disclaimer and still be held to have created a contract of employment, thus limiting the employer’s ability to lawfully terminate an employee’s job?

2. Even though the majority opinion states it “probably” applies only to tenured faculty cases, it left open the door for an argument that another type of promise, other than tenure, could override the finding of a conspicuous disclaimer and cause an employer’s handbook to constitute a contract of employment.

3. Employers need to ensure all handbooks, manuals, and other documents contain an at-will DISCLAIMER that complies with the statute.  Employers should not rely on the inclusion of a compliant disclaimer but should continue drafting policy language in permissive, rather than mandatory, terms.

Drafting or revising handbooks and policy manuals in compliance with statutory and case law is complicated. If your business needs help doing so, or with assessing whether the company’s handbook needs an overhaul to begin with, contact the employment lawyers at GaffneyLewis.  We’ll make your business our business.



The Basics of Commercial Premises Liability in South Carolina

When someone gets injured on another person’s property, he or she has the right to pursue a negligence claim against the owner. The theory of recovery upon which the plaintiff will usually rely is known as premises liability. If you’re a business owner, it’s important to understand how these cases are decided in South Carolina. The civil litigation attorneys of Gaffney Lewis, LLC, are ready to help.

Premises liability generally covers injuries that occur on someone else’s property, including businesses. South Carolina laws require property owners to maintain their premises in a reasonably safe manner for visitors. In order to prevail on a premises liability claim, plaintiffs are required to prove that a business owner:

  • Did something on the property that created a hazard; or
  • Knew, or should reasonably have known, that a hazard existed on the property, but did not correct it.

Slip and fall cases are common examples of premises liability lawsuits. The owner, or an employee of the owner, might mop the floor and fail to warn customers about it being wet. If someone slips and gets hurt, there’s a good chance the business will be sued.

Another example is where a business has defective steps on the premises. Even though the owner didn’t take direct action that caused the steps to be hazardous, if it can be proven that he or she should reasonably have known about it, that knowledge can give rise to liability in a lawsuit. A business owner cannot turn a blind eye to obvious hazards on its property and is responsible for taking reasonable measures to identify hazards, including warning visitors and addressing the hazard expeditiously.

When considering a premises liability case against a business, the injured person’s status must be determined. Visitors to a business fall into four basic categories, each with corresponding duties owed by the business:

Invitees. These are people who are on the property with the express or implied permission of the business owner. In a case like this, the duty owed by the owner is one of reasonable care, which means keeping the property free of reasonably-foreseeable dangers. The owner is also obligated to warn the invitee of hidden dangers it knows or should know about. An invitee enjoys the highest protection under South Carolina premises liability law. A good example is a customer at a retail store.

Licensees. A licensee is someone who has the privilege of being on the property with the consent of the owner. They are on the property for their own benefit, and unlike an invitee, are not necessarily requested to be there. The owner must warn the licensee of hazards it knows about but is not required to search out and discover dangers or to otherwise make the premises safe. Someone who stops by your property to ask for directions is a licensee.

Adult trespassers. These individuals are owed the lowest duty of care in premises liability law. The owner of the property is required not to intentionally injure a trespasser, but otherwise owes no duty.

Children. Children, even child trespassers, enjoy a different set of protections that invoke the concept of attractive nuisance. An attractive nuisance is something that can attract a child to enter the property without your knowledge and get injured. Unfenced swimming pools are classic examples of an attractive nuisance. They require minimal effort to keep a child out versus the potential risk of injury, which is why the law holds owners liable if a child gets hurt.

As you can imagine, premises liability cases are highly fact-specific and no two cases are ever the same. Not only will the outcome turn on what type of visitor was injured, but the owner’s actions (or inaction) leading up to the injury will be critically examined. No matter what kind of premises liability case your business is facing, the potential damages could be substantial. A plaintiff may claim medical bills, lost wages, permanent disability, pain and suffering, and much more.

That is why it is important to have the premises liability defense team at Gaffney Lewis, LLC on your side. At our firm, your premises are our business. Working from offices in Columbia and Charleston, our dedicated trial lawyers will work with your business to gather evidence, investigate the facts, and develop a strategy that is tailored to the unique needs of your business. Contact us today to get started on your case.



Three Partners Named to The Best Lawyers in America® 2021

Three GaffneyLewis LLC Partners Named to The Best Lawyers in America® 2021

GaffneyLewis LLC is pleased to announce that partners Amy L. Gaffney, Regina Hollins Lewis, and Randi Lynn Roberts have been selected for inclusion in The Best Lawyers in America©2021.

Recognition by practice areas include:

Amy Gaffney (since 2012)

  • Employment Law – Individuals
  • Employment Law – Management
  • Litigation – Labor and Employment

Regina Hollins Lewis

  • Mediation

Randi Lynn Roberts

  • Commercial Litigation

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed, which resulted in more than 67,000 leading lawyers being included in the new edition.



2020 Legal Elite of the Midlands

Columbia, SC (August 4, 2020) – Two attorneys from the law firm of GaffneyLewis, LLC have been included in the 2020 Legal Elite of the Midlands.

Attorneys recognized in the publication include:

  • Amy L. Gaffney (Charleston) – Labor and Employment
  • Regina Hollins Lewis (Columbia) – Labor and Employment

Gaffney, a founding partner working in the firm’s Charleston office, is a litigation attorney representing individuals and some companies throughout the state of South Carolina in employment and tort matters. Gaffney is also a certified mediator and has been involved in the resolution of hundreds of state and federal employment and tort cases.

Lewis, a founding partner based out of the firm’s Columbia office, has over 32 years of civil litigation and appellate experience. She is also a certified mediator and regularly mediates employment and tort matters across the state of South Carolina.

Integrated Media Publishing, publishers of Greater Columbia Business Monthly, Greenville Business Magazine, and Charleston Business Magazine, have been honoring attorneys in its Legal Elite feature since 2010. Attorneys recognized as 2020 Legal Elite will be featured in the August issue of the three publications.



VC Summer Nuclear Station – Three Years Later

This Friday, July 31st, will be the three-year anniversary of the day when thousands of South Carolinians lost their jobs after SCANA, Fluor, and others decided to abandon the project that was supposed to result in the construction of two pressurized water reactors at the VC Summer Nuclear Station near Jenkinsville, in Fairfield County.

Immediately after the project was discontinued, the employment lawyers at GaffneyLewis began to fight. For almost three years, GaffneyLewis’ employment team has worked to ensure that those who lost their jobs have been protected and that they will be paid all that they are due. Within days after the project ended, attorney Amy Gaffney held a public meeting in Winnsboro with over 800 former employees of SCANA, Fluor and other contractors to talk with them about possible claims they may have as a result of the loss of their jobs. Gaffney knew that the losses the employees and the local community felt would be significant. Click here for news coverage of the meeting in 2017.

Working with lawyers from the Charleston firm of Yarborough Applegate, GaffneyLewis employment lawyers fought and ultimately secured a settlement of over $1.5 million for a class of 60 Fluor employees who worked at VC Summer who had not been properly paid overtime wages as required by the Fair Labor Standards Act. That case settled less than one year after the project’s abrupt end.

Today, almost three years after the project’s demise, the employment team at GaffneyLewis continues to represent thousands of former employees of the failed project who are seeking payment of wages under the Worker Adjustment and Retraining Notification (WARN) Act of 1988. That case was filed in August 2017 and will ultimately go to trial in April 2021 in Columbia, South Carolina.

Disclaimer: Prior results achieved by Gaffney, Lewis & Edwards do not guarantee a similar outcome for other clients.



GaffneyLewis Attorney, Christina Summer, Receives AV Preeminent® Rating from Martindale-Hubbell®

GaffneyLewis, LLC is pleased to announce that attorney Christina Summer has received the AV Preeminent® rating from the Martindale-Hubbell® legal rating service. A litigation attorney in the firm’s Charleston office, Summer represents companies throughout the South Carolina in tort and insurance defense matters.

“Christina is an experienced litigator who ably represents clients in the tort and employment cases she handles,” said partner, Amy Gaffney.

The Martindale-Hubbell® AV Preeminent® rating is the highest possible rating for an attorney for both ethical standards and legal ability. This rating represents the pinnacle of professional excellence. It is achieved only after an attorney has been reviewed and recommended by his or her peers.



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