HOW TO TACKLE COVID WEARINESS

Ten months ago, no one thought we would still be in the midst of a pandemic and trying to persuade our employees to wear masks and wash their hands until they resemble crocodile skin. Yet, here we are, and we must lead our employees out of the COVID funk that has settled on the world. “How,” you ask?

Connect with them. Start with empathy instead of impatience. Let them hear from you – that you are also weary of everything that comes along with COVID, you are also frustrated, you also want life to go back to “normal,” you would also like to have skin on your hands, you also want to see their entire faces and warm smiles. Then explain why you are committed to wearing a mask, to appropriately physically distancing from others, to cleaning the workspace, to washing your hands. You are committed because it protects them and their families. You know that they also want to protect their co-workers and their families.

Speaking of connection, if your employees are working remotely and feel disconnected, brainstorm fun ways to connect. Bonus points if the fun helps you get to know more about each other. Keep it work appropriate though. For example, I do not recommend “Pajama Mondays.” To the contrary, this is an opportunity for people to put on their outside clothes for once. You can also let employees know when you are hosting a Zoom meeting where it is okay for kids and pets to pop up. You could challenge employees to come up with their own connection ideas and choose a winning idea monthly. Here are some fun connection ideas our creative Firm Administrator, Michelle Holmes, implemented:

🤡 Each employee submitted a photograph of their pet, Michelle created and distributed a pdf of the pets, and each employee had to match the pet with the appropriate owner/servant of that pet. The winner won a gift card to a pet store.

🤡 Before a scheduled firm Zoom meeting, Michelle mailed out colored glasses. The reason for the glasses was a mystery to us, but we were instructed to wear them for the meeting. At the meeting we learned we were wearing them in support of a client’s charitable cause. After learning about that cause, we took a screenshot of the Zoom video and forwarded it to our client to show our support.

Next, highlight any positive changes you have made because of COVID. The most obvious example is if you realized employees could work remotely and still effectively perform their jobs. If you plan to continue allowing some level of remote work post-COVID, you might let your employees know of that decision. If you are one of the businesses though that needs your employees at the physical work site, finding positives might be more difficult. Maybe you improved your technology this year, which makes employees’ work easier, or you might have improved the office ventilation. Everyone loves breathing cleaner air. Perhaps your employees were pushed into being more patient or thoughtful, and now have a stronger team. Perhaps you have more flexible work hours that employees enjoy and can become a permanent option. Whatever are the successes, celebrate them.

What if your employees argue their freedom comes first and, anyway, COVID is not real, or at least not serious? First, do not argue with them. In fact, maybe you personally agree with them, but you have regulations and protocols to enforce. It is best to refrain from engaging in conversation about these beliefs at work. Whether the opinions are born from political or religious beliefs, you are about to get into a conversation that makes lawyers squirm. If you want to save your money, do not have these conversations. Just acknowledge that your employee has the freedom to his own opinions about COVID (mind your tone here if you do not agree with him) and ask him if he is willing to put those aside to help you create a harmonious workplace. Do not use the word safe because he thinks it is already safe. If you have a good working relationship, he will want to help you. If he refuses to comply with the protocols, then you need to call the GaffneyLewis employment law team to assist you.

Be on the lookout for our next blog post on COVID vaccinations coming out soon.

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DEFENDING YOUR BUSINESS IS OUR BUSINESS

GaffneyLewis is proud to be the Production Sponsor of “Satchmo at the Waldorf”

GaffneyLewis is proud to be the Production Sponsor of PURE Theatre’s virtual production of, “Satchmo at the Waldorf,” streaming on demand from December 17 through January 2.

It’s 1971, and the greatest trumpet player in the world has just finished a set at the Waldorf Astoria in New York. Now at the end of his career, Louis Armstrong reflects back on his life and the ever-evolving struggle to live with dignity as a Black musician in a White world. Based on the 2009 biography written by playwright Terry Teachout, Satchmo at the Waldorf is an intimate exploration of Armstrong’s life, legacy, and—above all—jazz.

Since 2003, the ensemble actors of Charleston’s acclaimed PURE Theatre have built a solid reputation for artistic excellence in provocative contemporary theatre. The 20 professional actors comprising the Core Ensemble are the soul of PURE’s work. Serving a sophisticated and diverse audience with a taste for new work, PURE presents a compelling six-play season between August and June. Endeavoring annually to outdo what was accomplished in years past, PURE continually makes three promises to its audience:

  • To always tell a story worth listening to
  • To only pursue excellence
  • To always gift the audience something to talk about

The company has been lauded for coupling artistic risk-taking with a passionate commitment to addressing the important and often hilarious challenges of being human in the world today, yesterday, and tomorrow.

See the PURE website: www.puretheatre.org for details about the production and tickets.

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DEFENDING YOUR BUSINESS IS OUR BUSINESS

The Basics of Mediation in South Carolina

Civil matters in South Carolina – with limited exceptions – are required to submit to alternative dispute resolution (“ADR”). The most common methods of ADR are mediation and arbitration. Although these two terms are sometimes used interchangeably by laypersons, they are fundamentally different ways of resolving disputes outside of court. It is important to understand the distinctions between mediation and arbitration so you can know what to expect when you engage in ADR.

Mediation is a process by which a neutral third-party – the mediator – facilitates discussion, negotiation, and ideally settlement between the parties. Critical to the process, the mediator does not take sides or make decisions for the parties. Rather, the mediator’s job is to help the parties find common ground, compromise where possible, and achieve a mutually beneficial outcome without going to trial.

On the other hand, arbitration involves a neutral party – the arbitrator – actually making a decision for the parties on some aspect, or even the outcome, of the dispute. Arbitration awards are often, but not always, binding.

Mediation, along with other forms of ADR, is governed by rules that have been established and are enforced by the South Carolina Supreme Court. Rule 3 requires most civil matters to submit to the process and allows the parties to select the mediator they will engage. Parties can ask that cases be exempt from mediation in certain limited events, such as the physical condition of a party.

Rule 5 controls the mediation conference. It requires that the mediation shall take place in the county where the dispute was filed, at a site designated by the mediator or agreed upon by the parties. Most mediations must be completed within 300 days of the lawsuit being filed. Generally, a case will not appear on the trial docket until mediation has occurred.

The mediation conference usually begins with the mediator explaining the rules governing the process to the parties and their lawyers. The mediator will meet privately with the parties and their counsel to better understand the issues involved and to begin the process of facilitating a resolution of the dispute.

Under Rule 6, the following individuals must attend mediation:

  • The mediator;
  • All individual parties, or a representative of a corporate party, insurance company, or governmental agency who has full authority to settle the claim; and
  • The parties’ attorneys (if any).

Attending a mediation can be challenging for corporate parties, which must have a representative appear in person for the mediation; however, the parties and the mediator can consent to exceptions to this rule, such as allowing a representative to appear by telephone or Zoom conference. The court can also allow such exceptions. If you have questions or concerns about these attendance requirements, ask a knowledgeable South Carolina mediator.

Finally, under Rule 8, discussions that take place during mediation are confidential. Put simply: what happens in mediation stays in mediation. Parties cannot disclose offers to settle or other statements that are made in the mediation context, including statements made in any pre-mediation written submissions. Information and documents exchanged during the conference are also protected. The rule covers any communications about mediation. That means, for instance, parties cannot blog or post about the mediation on social media.

The confidentiality requirement is fairly broad. Anyone who is at any time present in mediation, from start to finish, is required to maintain the confidentiality of the process. That includes the participants above as well as other individuals such as paralegals who may be allowed in the room. One of the primary reasons for this rule is to promote candor in the proceedings, thereby inviting frank discussions about cases being mediated, to protect the integrity of the mediation process, and to dove-tail with evidentiary rules, such as Rule 408, which make settlement discussions inadmissible in most instances.

If the case cannot be resolved through ADR, it proceeds to trial.

The mediators at Gaffney Lewis have facilitated the mediation of hundreds of cases in South Carolina and are standing by to help.

Mediation is complicated, and there are numerous other rules that guide the process. The mediators of Gaffney Lewis, LLC, are also litigators with extensive experience in South Carolina civil matters. That allows us to bring a balanced approach, thoroughly understand the issues at stake, and provide a fair and neutral mediation for both sides. If you have a pending civil matter and require a mediator, give us a call today to learn more.

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DEFENDING YOUR BUSINESS IS OUR BUSINESS

GaffneyLewis Expands Charleston Office with Addition of New Attorney

November 2, 2020 – GaffneyLewis LLC is pleased to announce that Emmanuel Ferguson has joined the firm as an attorney in the firm’s Charleston office.

In addition to private practice experience, Ferguson served as an Assistant United States Attorney in the Charleston location of the United States Attorney’s Office where he litigated cases before the U.S. District court judges and juries. Ferguson worked as an assistant solicitor in the Charleston County Solicitor’s Office, and he was recently appointed by Charleston City Council as a municipal judge. Ferguson is a graduate of the College of Charleston and the Charleston School of Law.

“We are so pleased to have Emmanuel join the firm and know that he will be an asset to our team and our clients,” said Robert Blain, managing partner of the Charleston office.

Ferguson will focus his practice in the areas of tort law and personal injury, primarily representing businesses in cases across the state of South Carolina.

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DEFENDING YOUR BUSINESS IS OUR BUSINESS

Social Media Posts And The Workplace: What Makes A Good Employment Policy?

Facebook, Twitter, Instagram, and other social media platforms have the potential to connect people all over the world. But social media can become problematic where it intersects with the workplace. When one of your employees posts something online, it’s not always clear whether that person is speaking for him- or herself, or purporting to speak as a representative of your company. Still other employees are unclear as to what is and is not acceptable to post on their own time and on their own, private accounts.

The ubiquity of social media requires that employers adopt and enforce policies that provide clear guidance to employees. Balancing the interests of employees (e.g. freedom of expression and privacy) and the employer (professionalism and safeguarding brand and reputation) isn’t always easy. That’s where you need the dedicated employment lawyers of Gaffney Lewis, LLC. We can help your organization craft clear, comprehensive, and fair employment policies that protect these seemingly competing interests.

There are a few general principles to keep in mind when drafting an employment social media policy:

Make sure your employees know and understand the social media policy up-front. Before a new hire starts working, that individual should read the social media policy and sign an acknowledgment that she understands it. This is true for any policy, of course. For existing employees, adopting or revising a policy should be announced well in advance, and employees should acknowledge receipt and understanding of the new or revised policy. This keeps everyone on the same page and leaves no room for excuses if someone breaks the rules.

Prohibit posting on company time. This is a fair, objective rule that is broad enough to cover social media activity and time wasters like calling or texting while on the clock. Employees should not take personal calls on company time, so employees shouldn’t be allowed to engage on social media when working and should save these sorts of things for breaks or private time.

Encourage employees to use common sense. What an employee posts on her own private account is usually not worth policing, unless the material is so outrageous or offensive that it calls the employee’s judgment into question or risks damage to the company’s brand or reputation. Employers should encourage employees to always use common sense in posting. Employees should also be aware that even the strictest privacy settings won’t ensure that outsiders cannot see the posts. This is especially true if employees add each other as “friends” on Facebook, follow one another on Twitter, etc.

Along these same lines, employees should remember there’s a difference between what’s posted on a private account and what’s posted in a public group, page, or other forum. They should always use discretion when the content can be seen by everyone. Also, employees should be reminded that even if they post to a private account, others can screen-shot or otherwise capture the post and it can be spread.

Remind employees that consensual interactions are fine…usually. This rule applies generally to workplace conversations as well. Attempting to monitor all interactions between employees and others on social media is likely to be a drain on company resources – in most cases. For instance, two employees conversing with each other on social media about a hot-button political topic is probably okay as long as both are willing participants. Where the line gets crossed is when one employee bullies another online or tries to discuss something when others have disengaged. The same is true of real-life interactions and non-controversial topics: unwelcomed communications can amount to harassment.

The one caveat here is subject matter that’s so offensive that consent doesn’t excuse it. A workplace conversation is unacceptable if it involves racially or sexually offensive language, threats, hate-speech,

or other forms of bullying, even if the people actually talking are willing participants. Employers should apply that same rule to social media.

Ensure that employees do not unintentionally represent the company. Make sure your employees know how important perception is. If employees attend a widely-publicized political rally wearing the company t-shirt, the employer can expect some angry responses. The same is true of social media content. Employees need to avoid even the appearance of speaking for the business when expressing their personal views.

Disclaimers can help, but aren’t perfect. Encourage employees to post disclaimers on their social media accounts that state that they speak for themselves and not their employer. But remember, even disclaimers don’t excuse excessively offensive statements or conduct. That’s because whether the employee uses a disclaimer or not, what they do in their personal lives can affect the company’s reputation. It goes back to a rule already mentioned above: the employee still needs to use common sense.

Point, don’t post. You want your employees to spread positive news about the company. Yet they need to make sure they do so in the right way. It’s better to link content hosted on the company’s website than for them to write up their own version of it. Not doing so could risk copyright issues or misstatements about the actual nature of the content. The material hosted on your company’s website has likely already been vetted from a legal perspective and through the company’s marketing channels, so employees should be aware that such content should speak for itself.

These principles are a great way to begin drafting your social media policy. But it’s just the beginning. The best policies are comprehensive, tailored to the specific values of each individual company, and in line with any and all legal requirements.

If you’re in need of a social media or other employment policy, or you wish to revise one, the trusted legal counsel of Gaffney Lewis, LLC is ready to help. Call us today.

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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.

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DEFENDING YOUR BUSINESS IS OUR BUSINESS

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