McNair RSS Feed Dec 2017 00:00:00 -0800firmwise Holidays, from Human Resources15 Dec 2017 00:00:00 -0800 <div> <p>As Thanksgiving 2017 recedes into a memory, Hanukkah is here, Christmas just around the corner, and a strange slow week between a Monday Christmas and following Monday New Year&rsquo;s Day. It is the season for office holiday parties, and ugly sweater contests. Every day a new name comes across the news as an alleged sexual harasser suspended or terminated from high profile employment and hopefully with such daily headlines everyone will be on their guard a little bit more this year. Just in case, we give you this short list of Do&rsquo;s and Don&rsquo;ts to get you through the holidays without giving rise to legal liability.</p> <p>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <b>&ldquo;No mistletoe at the office.&rdquo;</b>&nbsp;Too easy? At your office holiday party, consider inviting&nbsp; family, spouses, even kids, as they may deter inappropriate behavior of the sexual harassment variety.&nbsp;</p> <p>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &ldquo;<b>Liquor liability as social host.&rdquo;</b>&nbsp;Most state laws permit a negligence lawsuit against a social host who provides alcohol to someone they knew or should have known was intoxicated, and knew or should have known would be driving, who then injures a person or property while driving intoxicated. If you serve alcohol at your office holiday party, consider some means to limit alcohol consumption, such as drink tickets, or hire a professional server with an authentic certificate of liability insurance, or simply keep an eye on your friends and co-workers and if they seem overserved, step in and find them a safe ride home.&nbsp; Uber has never been easier.</p> <p>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &ldquo;<b>Not everyone celebrates Christmas, and that&rsquo;s OK.</b>&rdquo; If you want to wish your work colleagues &ldquo;Merry Christmas&rdquo; rather than &ldquo;Happy Holidays&rdquo;, go right ahead. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion, defined as hostile work environment or adverse employment action discrimination; wishing someone &ldquo;Merry Christmas&rdquo; is neither. Obviously do not discriminate against employees, berate or fire them because of their religious beliefs, but this does not mean a private employer must have a complete absence of any and all religion at the holidays.&nbsp;</p> <p>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <b>&ldquo;Schedule by business necessity.&rdquo;</b>&nbsp;Hopefully you figured out your holiday work schedules for your office many months ago. Many businesses such as hospitals are required to be open on Christmas Day. Title VII also requires &ldquo;reasonable accommodation of bona fide religious beliefs&rdquo;, but not in the event of &ldquo;undue hardship.&rdquo; You do not need to give every employee Christmas Day off of work if it would present an undue hardship to your business. Christmas on a Monday in 2017 presents a strange work week for many businesses; might you consider giving employees extra paid days off to save on the light bill? Evaluate the work load your business has during this week to determine if this is an option for consideration. Happy loyal employees are less likely to make liability claims! &nbsp;</p> </div> 2018 Legislative Session Preview11 Dec 2017 00:00:00 -0800’s Grayson Lambert Selected for 2018 South Carolina Bar Leadership Academy07 Dec 2017 00:00:00 -0800 McNair is pleased to announce Wm. Grayson Lambert has been selected to the 2018 South Carolina Bar Leadership Academy.<br /> <br /> A highly selective program, the Leadership Academy is designed to train the next generation of Bar members and community leaders. Participants will be equipped with networking opportunities, professionalism training, community awareness, and other skills necessary to give back to the profession and position themselves as leaders in the community.<br /> <br /> Lambert is an associate with the firm&rsquo;s litigation section. He assists individual and corporate clients with complex commercial litigation, appeals, and government investigations. He was recently appointed to the United States Court of Appeals for the Fourth Circuit Advisory Committee, and he is a member of the South Carolina Bar&rsquo;s Practice and Procedure Committee. <br /> Survey provides fresh evidence that General Counsel are expanding beyond their traditional role to embrace new leadership responsibilities07 Dec 2017 00:00:00 -0800 <div style="text-align: center;"><em>New study from TerraLex and McNair shows regulatory concerns are now joined by a focus on cybersecurity, data privacy and other corporate priorities</em></div> <br /> The role of the corporate general counsel continues to evolve to include new, important areas of focus and responsibilities. While maintaining a firm handle on the traditional functions of the legal department, a just-released survey of general counsel reveals that their role is increasingly concerned with regulation and compliance, as well as data privacy and related cybersecurity issues. <br /> <br /> The new findings are contained in &ldquo;<a href=""><strong>The General Counsel Excellence Report 2017</strong></a>,&rdquo; a survey sponsored by TerraLex, a referral network of more than 150 law firms, including McNair which is the the only South Carolina member law firm of TerraLex. The complete survey, which was undertaken by The Global Legal Post, can be accessed here. Similar surveys were undertaken in 2013 and 2015.<br /> <br /> &ldquo;The General Counsel Excellence Report and our experience demonstrate that no one type of solution works for every legal department. Certainly technology is playing a role both in managing work and managing outside counsel,&rdquo; said Harry Trueheart, Chairman and CEO of TerraLex, and Chairman Emeritus of Nixon Peabody LLP. &ldquo;Time and again, our member firms have demonstrated that they are adaptable to the approaches preferred by their clients. We have project management approaches to align our member teams with client preferences and the project management professionals in our member firms regularly collaborate to provide efficient solutions.&rdquo;<br /> <br /> In an effort to address the costs of their legal departments, a majority of the general counsel surveyed (59%) are now regularly asking their outside law firms for alternatives to the hourly billing model. However, while 53% of respondents feel that firms are offering better deals on fees, 59% feel that law firms should do more to help with outsourcing options. <br /> <br /> Finding the right foreign law firm is also a subject of the survey. Not surprisingly, the most trusted source for researching a law firm was a direct referral, with the use of a law firm network coming in second. <br /> <br /> About TerraLex<br /> TerraLex is one of the world&rsquo;s leading international legal networks. With more than 155 top independent law firms and more than 17,000 attorneys in 100 countries, TerraLex members provide the legal resources and expertise needed to conduct seamless business worldwide.<br /> <br type="_moz" /> What's good 'notice' of a workplace injury in South Carolina?22 Nov 2017 00:00:00 -0800 <div><em>Many readers know that statutory protections passed by state legislatures and Congress are often written to favor the rights of employees. One such statute is South Carolina&rsquo;s workers&rsquo; compensation law. The law requires employees to give notice to their employers when workplace injuries occur. The South Carolina Court of Appeals recently addressed the issue. Read on to see how the court interpreted the law.</em></div> <div>&nbsp;</div> <div><strong>Factual background</strong></div> <div>&nbsp;</div> <div>On June 20, 2012, Otis Nero was working on a South Carolina Department of Transportation (SCDOT) road crew overseen by lead man Benjamin Durant and supervisor Danny Bostick. Nero&rsquo;s work, along with that of four or five other members of the crew, involved pulling a 30-foot-long two-by-four &ldquo;squeegee board&rdquo; to level freshly poured concrete. At some point during the day, Bostick temporarily pulled Nero off the squeegee board because he appeared overheated. After a break, Nero returned to pulling the squeegee board.</div> <div>&nbsp;</div> <div>At approximately 3:00 p.m., after finishing their work and cleaning up, the crew, including Nero, Durant, and Bostick, was talking and joking near the supervisor&rsquo;s truck when Nero lost consciousness and fell to the ground. He regained consciousness, stood up, told his supervisors he was fine, and drove home. Once he was home, he passed out again while he was sitting in his driveway. His wife immediately took him to the hospital, where he was admitted and treated.<br /> &nbsp;</div> <div>At the emergency room, Nero filled out a &ldquo;History and Physical Report&rdquo; in which he stated, &ldquo;I passed out [while] talking to my boss.&rdquo; He was initially seen by his primary care physician, Dr. Robert Richey. After a series of tests, Richey determined that Nero had cervical stenosis and referred him to a neurosurgeon, Dr. William Naso, who performed fusion surgery.</div> <div>&nbsp;</div> <div>On July 9, 2012, prior to his surgery, Nero provided the HR department with his &ldquo;SCDOT Certification of Health Care Provider for Employee&rsquo;s Serious Health Condition (Family [and] Medical Leave Act [FMLA])&rdquo; paperwork. He didn&rsquo;t mention the squeegee incident in the documents. Under the section for &ldquo;approximate date condition commenced,&rdquo; he stated, &ldquo;several years&mdash;neck and syncope.&rdquo; During his deposition, he testified that he hadn&rsquo;t been treated for any back or neck problems before the squeegee board incident.</div> <div>&nbsp;</div> <div><strong>Procedural history</strong></div> <div>&nbsp;</div> <div>On January 6, 2014, Nero filed a request for a workers&rsquo; comp hearing, alleging he suffered injuries to his neck and shoulders while he was pulling the squeegee board in June 2012. The commissioner found his claim compensable as an injury caused by an accident that aggravated a preexisting cervical disk condition in his neck.</div> <div>&nbsp;</div> <div>The commissioner further determined that Nero had a &ldquo;reasonable excuse&rdquo; for not formally reporting his work injury because:</div> <ol> <li>His lead man and supervisor were present and knew of pertinent facts about the accident sufficient to indicate the possibility of a compensable injury.</li> <li>The lead man and supervisor followed up with him.</li> <li>The SCDOT was aware that he didn&rsquo;t return to work after the incident. Further, the SCDOT was notified that he was hospitalized and ultimately had neck surgery.</li> </ol> <div> <div>Finally, the commissioner found that the SCDOT wasn&rsquo;t prejudiced (harmed) by the late formal reporting of the injury.</div> <div>&nbsp;</div> <div>The SCDOT appealed to the appellate panel, which reversed the commissioner&rsquo;s findings. The appellate panel concluded that although Nero&rsquo;s supervisors saw him pass out, he never reported that he felt a &ldquo;snap&rdquo; in his shoulders and neck during the squeegee board incident. The panel further found that Nero&rsquo;s excuse for not formally reporting the injury wasn&rsquo;t reasonable and the SCDOT was prejudiced because his late report deprived it of the opportunity to investigate the incident and determine whether his work aggravated his preexisting cervical stenosis.</div> <div>&nbsp;</div> <div>Nero appealed the panel&rsquo;s decision, arguing it erred by failing to find that the SCDOT received adequate notice of his workplace accident. He also contended that he demonstrated a reasonable excuse for&mdash;and the SCDOT wasn&rsquo;t prejudiced by&mdash;any late formal notice of his injury.</div> <div>&nbsp;</div> <div><strong>Court&rsquo;s analysis</strong></div> <div>&nbsp;</div> <div>The court began by addressing the standard of review it was required to use in deciding the case. It properly observed that the standard of review for appellate panel decisions permits it to reverse or modify the decision when the substantial rights of the appealing party have been prejudiced because the decision was affected by an error of law or was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In this case, a statute was being reviewed, and statutory interpretation is a question of law subject to de novo review (a fresh review that allows the appellate court to substitute its own judgment about whether the lower court or tribunal correctly applied the law).</div> <div>&nbsp;</div> <div>Section 42-15-20 of the workers&rsquo; comp law sets forth the requirement that an employee provide timely notice of an accident to an employer, stating, in pertinent part:</div> </div> <div>&nbsp;</div> <div> <div>(A) Every injured employee or his representative immediately shall on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a notice of the accident and the employee shall not be entitled to physician&rsquo;s fees nor to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent, or representative had knowledge of the accident or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person.</div> <div>&nbsp;</div> <div>(B) Except as provided in subsection (C), no compensation shall be payable unless such notice is given within ninety days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the commission for not giving timely notice, and the commission is satisfied that the employer has not been prejudiced thereby.</div> <div>Section 42-15-20 doesn&rsquo;t provide for a specific method of giving notice. However, the employer must actually be put on notice of the employee&rsquo;s injury so it can investigate the incident immediately after its occurrence and furnish medical care in order to minimize any disability.</div> <div>&nbsp;</div> <div>The court&rsquo;s review of the record confirmed that Nero never formally reported his injury to his employer. He was able to communicate with the SCDOT because he submitted the necessary paperwork for benefits under the FMLA. Because he didn&rsquo;t allege that any mental condition, physical issue, or third party prevented him from formally reporting his injury, the court noted that it had to determine whether the SCDOT had knowledge of his accident pursuant to Section 42-15-20(A).</div> <div>&nbsp;</div> <div>The SCDOT&rsquo;s adequate notice of the workplace injury was based on the following facts:</div> <ul> <li>On June 20, 2012, Bostick was concerned about Nero because of the heat and his age, and temporarily pulled him off the squeegee board.</li> <li>After finishing for the day, but while he was still on the clock, Nero lost consciousness and fell to the ground. Durant and Bostick both witnessed the incident.</li> <li>After regaining consciousness and driving home, Nero passed out a second time. His wife immediately took him to the hospital, where he was admitted, treated by a neurosurgeon, and diagnosed with cervical stenosis. He underwent neck surgery approximately two months later.</li> <li>Durant and Bostick were both aware that he was hospitalized and had surgery. In fact, they spoke with him while he was in the hospital.</li> <li>Nero never returned to work.&nbsp;</li> </ul> </div> <div> <div>The court focused on a couple of points. First, Richey (Nero&rsquo;s primary care physician) testified that his preexisting cervical spine condition was aggravated by pulling the squeegee board and that pulling the squeegee board in the heat caused the syncope. Next, Nero testified at his deposition that the injury to his upper back and shoulders was the result of pulling the squeegee over a concrete pad.</div> <div>&nbsp;</div> <div>Nero further testified that while he was pulling the squeegee, he felt &ldquo;like a bone snapped or something snapped&mdash;or popped.&rdquo; He spoke with Bostick and Durant while he was in the hospital but didn&rsquo;t report that he felt &ldquo;a snap[ping], crackling, and popping sensation&rdquo; in his neck. He testified, &ldquo;I think [Bostick] asked me what . . . was wrong. I said I am in the hospital. I said ever since I fell out, I said, I&rsquo;ve been here ever since.&rdquo;</div> <div>&nbsp;</div> <div>The court acknowledged that although Nero never formally reported his injuries to his supervisors, Durant and Bostick both saw him fall to the ground unconscious after he finished the physically challenging squeegee board work. Significantly, Durant&rsquo;s reason for not reporting Nero&rsquo;s incident to Bostick was that the supervisor was &ldquo;right there.&rdquo;</div> <div>&nbsp;</div> <div>Relying on case law that has long held the statutory notice provision is to be liberally construed in favor of employees, the court observed that notice is adequate when there is some knowledge of accompanying facts connecting the injury or illness with the employment and signifying to a reasonably conscientious supervisor that the case might involve a potential workers&rsquo; comp claim. As a result, the court found the appellate panel erred in reversing the commissioner&rsquo;s determination that the SCDOT received adequate notice under Section 42-15-20(A).</div> <div><br /> On the second question&mdash;whether Nero had a reasonable excuse for any late formal report of his injury and whether the SCDOT was harmed by the late report&mdash;the court again agreed with Nero. His reason for not formally reporting his workplace incident was that his supervisors were present when he lost consciousness. Moreover, Durant and Bostick talked with him while he was hospitalized and were aware of his treatment and subsequent surgery, as well as the fact that he never returned to work after his collapse. Further, as the commissioner recognized, Durant testified that he never reported the incident to his own supervisor, Bostick, because it happened in Bostick&rsquo;s presence.</div> <div>&nbsp;</div> <div>The court found that the preponderance of the evidence didn&rsquo;t support the appellate panel&rsquo;s finding that Nero presented no &ldquo;reasonable excuse&rdquo; for failing to provide the SCDOT timely notice of his injury pursuant to Section 42-15-20(B). Further, because it was aware that he never returned to work following the June 2012 syncopal episode and his supervisors knew about his hospitalization and surgical treatment, the SCDOT couldn&rsquo;t establish that it had been prejudiced. The court therefore reversed the decision of the appellate panel.</div> <div>&nbsp;</div> <div><strong>Lessons for employers</strong></div> <div>&nbsp;</div> <div>South Carolina employers must be familiar with the statutes that apply to them. The two laws that were relevant in this case were the South Carolina workers&rsquo; comp statute and the FMLA. It was difficult for the SCDOT to argue that it had no FMLA notice of Nero&rsquo;s serious medical condition. There was some evidence that the FMLA form didn&rsquo;t reflect that he had suffered a workers&rsquo; comp injury, but the court believed that was insufficient to get past the fact that two supervisors were present when he was pulled from the job and fell at work.</div> <div>&nbsp;</div> <div>When supervisors are aware that something is wrong, they should do more than allow the employee to go home at the end of his shift. In fact, most employer policies state that all &ldquo;injuries,&rdquo; no matter how slight, should be immediately reported. This case seemingly tells us that if a supervisor is standing right there when an employee is injured, he has sufficient notice of the injury, and the employee doesn&rsquo;t have to do anything else to report the injury. The bottom line? An employee doesn&rsquo;t have to do a whole lot to provide adequate notice of a workplace injury.</div> </div> <div>&nbsp;<br /> For more information on the BLR, click <a href="">here</a>. For more information on the South Carolina Employment Law Letter, click <a href="">here</a>. &nbsp;</div> McNair Attorney Appointed to South Carolina Bar Resolution of Fee Disputes Board21 Nov 2017 00:00:00 -0800 McNair is pleased to announce associate Deidra Byrd has been appointed by the South Carolina Bar&rsquo;s President to sit on the Resolution of Fee Disputes Board for the 15th Circuit. She will remain in that position for a staggered three-year term.<br /> <br /> The Board was created by the Supreme Court to resolve fee, cost, and disbursement disputes between clients and S.C. Bar members, serving both the bar and public. A volunteer position, these attorneys mediate, investigate, and occasionally arbitrate the disputes, preventing billing differences from entering into litigation, grievance proceedings, or poor public relations. Currently, the Board consists of almost 200 attorneys and collectively handles approximately 100 cases annually.<br /> <br /> Byrd practices out of the firm&rsquo;s Myrtle Beach office and focuses on general business litigation matters. She has experience in the financial sector, reviewing documents for litigation relevance and issue coding, executing documents used during foreclosure and bankruptcy proceedings, and managing loans while working with internal and external counsel.<br /> <br /> After law school, Byrd served as a judicial clerk for the Honorable Benjamin H. Culbertson of the 15th Circuit.<br /> Participate in a Mock EEOC Trial November 13, 201707 Nov 2017 00:00:00 -0800 Receives National Honor and 25 Tier One Rankings in 2018 Best Law Firms01 Nov 2017 00:00:00 -0800 McNair Law Firm, P.A. has been named a top-tier firm by U.S. News &ndash; Best Lawyers&reg; in its 2018 &ldquo;Best Law Firms&rdquo; rankings. McNair earned a national ranking in Land Use &amp; Zoning Law for the second year in a row and 25 Tier One rankings in markets across South Carolina. Those rankings, listed by office and practice area, are as follows:<br /> <br /> National<br /> &bull; Land Use &amp; Zoning Law<br /> <br /> Charleston<br /> &bull; Labor Law &ndash; Management<br /> &bull; Litigation &ndash; Real Estate<br /> &bull; Professional Malpractice Law &ndash; Defendants<br /> &bull; Real Estate Law <br /> <br /> Columbia <br /> &bull; Banking &amp; Finance Law<br /> &bull; Bankruptcy &amp; Creditor Debtor Rights / Insolvency and Reorganization Law<br /> &bull; Commercial Litigation<br /> &bull; Employee Benefits (ERISA) Law<br /> &bull; Employment Law - Management<br /> &bull; Environmental Law<br /> &bull; Government Relations Practice<br /> &bull; Health Care Law<br /> &bull; Land Use &amp; Zoning Law<br /> &bull; Litigation - Bankruptcy<br /> &bull; Litigation - Construction<br /> &bull; Mergers &amp; Acquisitions Law<br /> &bull; Public Finance Law<br /> &bull; Real Estate Law<br /> &bull; Tax Law <br /> &bull; Utilities Law<br /> <br /> Greenville<br /> &bull; Bankruptcy &amp; Creditor Debtor Rights / Insolvency &amp; Reorganization Law<br /> &bull; Commercial Litigation<br /> &bull; Litigation - Bankruptcy<br /> &bull; Public Finance Law<br /> <br /> Hilton Head Island<br /> &bull; Real Estate Law<br /> <br /> For a complete list of the firm&rsquo;s rankings, click <a href=""><strong>here</strong></a>.<br /> McNair Represents Trucast LLC in $3 Million Expansion in Newberry County30 Oct 2017 00:00:00 -0800 Trucast LLC, a manufacturer of components for automotive engines and power generation, recently announced it is expanding its Newberry County operations by investing $3 million and creating 10 new jobs. <br /> <br /> The company is part of the United Kingdom-headquartered Doncasters Group and supplies well-known automotive manufacturers all over the world. Trucast was the first industry to be part of the Newberry County Industrial Park after launching its operations more than 20 years ago.<br /> <br /> The expansion includes equipment to be added over the next several years, and hiring for the new positions at the Newberry facility will begin immediately.<br /> <br /> McNair Law Firm, P.A. acted as legal counsel to Trucast LLC for this expansion. For more information on Trucast, visit<br /> Court finds employee's IIED claim against Columbia employer hopeless27 Oct 2017 00:00:00 -0800 <div><em>Attorneys who represent employees beginning to explore the use of nontraditional causes of action against employers. Courts and employers are seeing more defamation, conspiracy, and intentional infliction of emotional distress (IIED) claims instead of discrimination and other traditional employment claims. The U.S. District Court for the District of South Carolina recently addressed a case in which an employee claimed IIED. Read on to find out how the court disposed of the allegations.</em></div> <div>&nbsp;</div> <div><strong>Factual background</strong></div> <div>&nbsp;</div> <div>William D. Sibert was employed by WIS-TV as a senior editor when the station was bought by Raycom Media, Inc. In 1998, well before that business transaction, Sibert was diagnosed with multiple sclerosis (MS). Although he had to adapt his lifestyle to less strenuous activities, the disease did not interfere with his work performance, and his supervisors worked to accommodate his illness and provided minimal reasonable accommodations on occasion.</div> <div><br /> In November 2016, Sibert was &ldquo;summoned&rdquo; by his supervisors to a meeting with Raycom representatives to discuss changes in his job and the way the station would operate. Because the meeting was scheduled in a room more than 100 yards from his workstation, he wouldn&rsquo;t be able to walk to the meeting without significant physical difficulty and pain. He requested that the meeting be moved to a location closer to his workstation, but his request was denied. He was therefore unable to attend the meeting. As a result, he claimed, he suffered substantial stress and anxiety, and missed an entire day of work.</div> <div><br /> Sibert also alleged that he was harassed by Lyle Schulze, the manager and vice president of WIS-TV, and Adam Cannavo, an HR representative for Raycom in Charlotte, as well as other Raycom employees. He claimed he was told that his job description was changing, and he would be required to carry cameras and other equipment and could no longer rely on cameramen and other employees to do it for him.</div> <div>&nbsp;</div> <div>Sibert&rsquo;s duties and title were changed on March 15, 2017. When Sibert notified his supervisor that he would not be able to do his job because of his disability and the change in his job description, he was told to contact HR to discuss reasonable accommodation possibilities. The change in Sibert's job description included a requirement that he (and other employees with his job) carry cameras and other equipment. When Sibert spoke with HR, Cannavo responded that Raycom wouldn&rsquo;t be able to accommodate him. Sibert claimed he had to use leave to make up for a reduction in pay.</div> <div>&nbsp;</div> <div>Sibert sued Raycom, Cannavo, and Schulze for IIED. The case was transferred to federal court, and Raycom, Schulze, and Cannavo asked the court to dismiss the case because Sibert couldn&rsquo;t establish an IIED claim against them.</div> <div>&nbsp;</div> <div><strong>Court&rsquo;s decision</strong></div> <div>&nbsp;</div> <div>In determining whether Sibert could establish a claim for IIED against Raycom, Schulze, and Cannavo, the court looked to South Carolina law. The court observed that the Workers&rsquo; Compensation Act (WCA) provides rights and remedies that exclude all of an injured employee&rsquo;s other rights and remedies against his employer, at common law or otherwise, based on the injury, loss of service, or death. The South Carolina Supreme Court has held that an employee&rsquo;s IIED claim against an employer based on the actions of another employee are within the scope of the WCA because the claim arises from a personal injury. When the coworker is the &ldquo;alter ego&rdquo; of the employer, the employer&rsquo;s liability may fall outside the exclusivity of the WCA. However, the alter ego exception applies only to dominant corporate owners and officers.</div> <div>&nbsp;</div> <div>The same standard would apply to injuries intentionally inflicted by a coworker. The court noted that it is against public policy to extend immunity to an employee who commits an intentional wrongful act against another employee. The WCA may not be used as a shield for an employee&rsquo;s intentional injurious conduct including emotional distress. Therefore, while an employer may not be sued in civil court for IIED based on a non-alter-ego employee&rsquo;s actions due to the exclusivity of the WCA, an employer or an employee who acts with deliberate or specific intent to injure another employee, even in the course and scope of his employment, may not shelter himself within the exclusivity provision of the WCA.</div> <div>&nbsp;</div> <div>With that general background in mind, the court found that Sibert simply didn&rsquo;t have a glimmer of hope of recovering against Schulze on his IIED claim because he failed to allege that Schulze acted with a deliberate or specific intent to injure him. The factual allegations didn&rsquo;t give rise to a reasonable inference that Schulze acted with deliberate intent to injure, and Sibert failed to show a there was possibility of recovery on the other elements of his IIED claim.</div> <div>&nbsp;</div> <div>To avoid the WCA exclusivity provision, Sibert also had to establish that:</div> <ul> <li>Schulze intentionally or recklessly inflicted severe emotional distress or was certain, or substantially certain, that emotional distress would result from his conduct.</li> <li>His conduct was so extreme and outrageous that it exceeded all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community.</li> <li>His actions caused Sibert&rsquo;s emotional distress.</li> <li>The emotional distress was so severe that no reasonable person could be expected to endure it.</li> </ul> <div> <div>Sibert&rsquo;s allegations that Schulze scheduled a meeting far from his workstation and changed his job duties, coupled with a vague reference to workplace harassment, didn&rsquo;t describe conduct so extreme and outrageous that it exceeded all possible bounds of decency or was atrocious and utterly intolerable in a civilized society.</div> <div>&nbsp;</div> <div>Sibert also failed to demonstrate that Schulze acted with a deliberate or specific intent to injure him, which is necessary to bring a personal injury claim outside the WCA&rsquo;s exclusivity provision. The same was true for Cannavo, meaning Sibert was unable to make an IIED claim against him outside the exclusivity provision of the WCA.</div> <div>&nbsp;</div> <div>The standard articulated by the court applies to an employer as well. Sibert&rsquo;s allegations against Raycom included his claims against Schulze and Cannavo, harassment by other employees, the change in his job description, and the denial of his request for reasonable accommodations. He claimed that he was put in various positions that Raycom knew or should have known would inflame his condition and cause him grievous pain. Again, however, his allegations didn&rsquo;t rise to the level required to show intentional, rather than accidental, injury.</div> <div>&nbsp;</div> <div>In fact, Sibert failed to point to any evidence from which an intent to injure could be inferred. He argued that Raycom was aware of his condition and the pain he suffered but nonetheless forced him to walk extended distances and carry heavy gear. However, that was insufficient to satisfy the high standard required to prove an IIED claim under South Carolina law. Therefore, his claim against Raycom was precluded by the exclusivity provision of the WCA.</div> <div>&nbsp;</div> <div><strong>Lessons for employers</strong></div> <div>&nbsp;</div> <div>This case shows that courts will look closely at the law and the facts alleged by an employee and refuse to allow a case to proceed when there&rsquo;s no good reason to do so. The company&rsquo;s legal counsel properly assessed the facts, determined the real basis for the claim, and guided the court&rsquo;s focus in that direction. As a result, the employer was able to convince the court to dismiss a case that should have been dismissed.</div> <div>&nbsp;</div> <div>Relying on procedural tools and substantive law resulted in a victory for the employer. Cases like this one provide a glimmer of hope that courts will force employees&rsquo; attorneys to bring claims that can be supported with proper evidence.<br /> <br /> For more information on the BLR, click <a href="" target="_blank">here</a>. For more information on the South Carolina Employment Law Letter, click <a href="">here</a>. &nbsp;</div> </div>