1. South Carolina Retaliatory Discharge Law Presented By: Charles T. Speth II ted.speth@ogletreedeakins.com

2. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Workers’ Compensation Jury/Subpoena Compliance Exercising Political Rights Other Limits On Retaliation

3. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Workers’ Compensation

4. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Prohibition SC Code of Laws prohibits any employer from discharging or demoting any employee because the employee has instituted, in good faith, any proceeding under the SC Workers’ Compensation Law Protection extends to individuals who have testified or will testify in a workers’ compensation proceeding

5. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Remedies & Enforcement Primary enforcement mechanism is a private right of action for discharged or demoted employee Equitable action for lost wages and reinstatement Mitigation of damages is required Future earnings NOT recoverable Punitive damages NOT recoverable One-year statute of limitations

6. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Remedies & Enforcement – cont. Employee must prove evidence of satisfactory work performance Employee must prove close temporal relationship between the adverse employment action and the workers’ compensation proceeding

7. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Statutory Defenses If the employer can prove the existence of one of the following defenses, the employee’s claim must fail: Willful or habitual tardiness/absence Disorderly conduct or intoxication at work Destruction of company property Embezzlement or larceny of employer’s property Malingering Failure to meet established work standards Violation of written company policy Employers must be aware of ADA implications for employees unable to meet work standards due to a qualifying disability. Employers may have an affirmative duty to make reasonable accommodations.

8. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Additional Defenses Failure to File Claim Formal filing of claim not required. The following will suffice: Employer’s payment of medical care Employer’s agreement to pay medical care Employer’s receipt of written notice from a health care provider Failure to Exhaust Administrative Remedies

9. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Jury Duty/Subpoena Compliance

10. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Prohibition SC Code of Laws prohibits any employer from discharging or demoting any employee because the employee complies with a valid subpoena to testify in court or in an administrative proceeding or to serve on a jury of any court

11. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Remedies & Enforcement A person who violates this provision is guilty of a misdemeanor and may be fined not more than $1,000 and imprisoned for not more than two years

12. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Damages Dismissal Limited to one year’s salary or 52 weeks of wages, based on a 40-hour week in the amount the employee was making at the time the employee received the subpoena Demotion Limited to the difference for one year between the salary or wages based on a 40-hour week which the employee received the demotion and the amount he/she received after the demotion Punitive damages are NOT recoverable

13. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Proof of Retaliatory Motive Connelly v. Wometco Enterprises, Inc. 314 S.C. 188, 442 S.E.2d 204 (Ct. App. 1994) Court of Appeals recognized that proximity in time between compliance with a jury duty summons and discharge from employment can be evidence of a retaliatory motive Evidence of an employee’s adequate job performance is relevant to a showing of pretext when the employer asserts job performance as the reason for discharge

14. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Common Law Protections Even prior to the passage of statutory protections, South Carolina courts recognized that an employer may not retaliate against an employee for complying with a valid subpoena Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213 (1985) Employee terminated for complying with a valid administrative subpoena When an employer retaliates against an employee for refusing to break the law, the employee can state a claim for retaliatory discharge in violation of public policy

15. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Exercising Political Rights

16. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Prohibition SC Code of Laws prohibits any employer from discharging any citizen from employment based upon that citizen’s political opinions or exercise of political rights guaranteed by the constitutions and laws of the United States and the state of South Carolina Anyone violating the provision is guilty of a misdemeanor and may be fined not more than $1,000 and imprisoned for not more than two years

17. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Private Right of Action Although the statute creates no private right of action, in Culler v. Blue Ridge Elec. Co-op., Inc., 309 S.C. 243 (1992), the South Carolina Supreme Court determined that employers can be liable in civil suits because the retaliatory discharge itself is a violation of public policy

18. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Limited Construction Moshtagi v. Citadel Plaintiff must be able to show decision maker had knowledge of political activity Love v. Cherokee County Veterans Affairs Office Accusing a government officer of misconduct is not “giving a political opinion or exercising political rights” May v. City of North Augusta Statute does not extend to adverse employment action other than termination (not harassment and hostile work environment claims)

19. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Other Limits On Retaliatory Conduct

20. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Smokers’ Rights An employer may not take any personnel action including employment, termination, demotion, or promotion based upon the fact that an employee uses tobacco products outside the workplace

21. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Bone Marrow Leave An employer may not retaliate against an employee for requesting or obtaining a paid leave of absence as provided by the South Carolina Bone Marrow Donor law If an employer has a policy granting employees a paid leave of absence to donate bone marrow, then the employer is prohibited from retaliating against an employee who seeks leave under the employer’s policy

22. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Arbitration Agreements An employer may not condition employment on an individual’s agreement to arbitrate all employment disputes under the provisions of the South Carolina Uniform Arbitration Act

23. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Wage Payment Act South Carolina Court of Appeals has recognized the potential for a retaliation claim for an employee who complains about violations of the South Carolina Wage Payment Act Employee must threaten to make an external complaint or actually make an external complaint. Internal complaints to management will likely be insufficient grounds for a retaliation claim.

24. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Federal Retaliation Update

25. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Looking back…Thompson v. North American Stainless LP, 131 S.Ct. 863 (2011) U.S. Supreme Court ruled in an 8-0 decision that a male employee who claims he was fired because his fiancée filed a sex discrimination charge against their mutual employer may pursue a retaliation claim under Title VII. Employee alleged that three weeks after Employer received notice that his fiancée had filed a sex discrimination charge, the company fired him in retaliation for her charge. Court ruled that the employee was a “person aggrieved” within the meaning of Title VII. The court said that although the scope of “person aggrieved” under Title VII is narrower than the “injury in fact” standard for Article III standing under the U.S. Constitution, the term is broader than solely an employee who engages in protected activity. Thompson was able to pursue a Title VII claim because he fell within the “zone of interests” covered by the statute.

26. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Looking back…Hatmaker v. Memorial Med. Ctr., U.S., No. 10-724, cert. denied 3/7/2011 U.S. Supreme Court declined to review a federal appeals court's decision to dismiss a retaliation claim brought under Title VII by a female medical center chaplain who alleged she was fired for participating in an internal sex discrimination investigation of the chaplain staff's male director. U.S. Court of Appeals for the Seventh Circuit ruled the “participation” clause found in Section 704(a) of Title VII did not protect employee (Hatmaker) because the provision applies only to investigations performed by official worker protection agencies, such as the EEOC. Hatmaker petitioned the Supreme Court to review the decision to determine whether Section 704(a) also protects a worker from being dismissed because she was compelled to cooperate with her employer's internal investigation of sexual harassment.

27. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Looking back…. Wyeth Pharms. Inc. v. Henry, U.S., No. 10-669, cert. denied 3/7/11 U.S. Supreme Court left intact a federal appeals court ruling that a chemist may have a retaliation claim under Title VII even if the supervisors who took an adverse employment action were unaware of his prior bias charge, provided that others involved knew about the protected activity. The Second Circuit Court of Appeals affirmed a jury verdict against employee on his race discrimination claims. However, the appeals court also ruled that the district court erred by instructing the jury that in order to prove retaliation, employee must show that the supervisor who carried out adverse actions against him was aware of employee’s prior EEOC charge and took the adverse actions because of that protected activity.

28. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Looking back… Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11 U.S. Supreme Court held that the FLSA’s ban on retaliating against employees who “file” an FLSA complaint against an employer covers oral complaints. If an oral complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection,” it may be protected under the FLSA. Writing for the majority, Justice Breyer said the federal wage and hour law prohibits retaliation against an employee who has “filed any complaint” under the FLSA or related to the statute. Although the majority was persuaded that the word “filed” may suggest “some degree of formality” in an employee's complaint, the statute does not require that the complaint be in writing. However, the majority in the 6-2 ruling refused to address whether the statute covers such a complaint when it is made to a private employer rather than to a government agency, saying the question will have to be resolved in the lower courts.

29. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Looking back….OSHA final rule for nuclear and environmental retaliation complaints 1/18/2011 Makes retaliation procedures under the Energy Reorganization Act and six environmental statutes (consistent with the complaint procedures under other OSHA whistleblower provisions. Allows workers to file complaints orally and in other languages. Workers will receive copies of documents submitted by employer in response to the whistleblower complaints subject to applicable privacy/confidentiality laws.