McNair RSS Feed Jun 2017 00:00:00 -0800firmwise the Changes in the Supreme Court and the Trump Administration Mean for Your Business24 Jul 2017 00:00:00 -0800 <div>Join McNair attorneys as they present, What the Changes in the Supreme Court and the Trump Administration Mean for Your Business. The event will focus on the changes and new appointments in the Supreme Court, recent immigration and employment cases, as well as agency updates and President Trump administration updates as it relates to Human Resource professionals and businesses. Topics will include:</div> <ul> <li>Justice Gorsuch confirmation to the United States Supreme Court and what it might mean</li> <li>Recent lower court opinions and their impact</li> <li>Initial impact of the Administration's Executive Orders</li> <li>The Administration's implemented policies by cabinent appointments</li> </ul> <div>The schedule is as follows:</div> <div>&nbsp;</div> <div>July 24 - Myrtle Beach (Presenter: Jim Gilliam)</div> <div>Time: 11:45 am - 1:00 pm</div> <div>Location: Myrtle Beach Area Chamber of Commerce, 1200 N. Oak Street, Myrtle Beach, SC</div> <div>To register, click <a href="" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>July 24 - Charleston (Presenter: Rick Morgan)</div> <div>Time: 8:00 - 9:30 am</div> <div>Location: McNair Law Firm, P.A. - 100 Calhoun Street, Suite 400, Charleston, SC<br /> To register, click <a href=";llr=jbjxsnoab&amp;utm_campaign=July25ChasE%26L&amp;utm_medium=email&amp;utm_source=Invitation" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>July 25 - Columbia (Presenter: Rick Morgan)</div> <div>Time: 8:00 - 9:30 am</div> <div>Location: McNair Law Firm, P.A. - 1221 Main Street, Suite 1800, Columbia, SC</div> <div>To register, click <a href=";llr=jbjxsnoab&amp;utm_campaign=July17ColaE%26L&amp;utm_medium=email&amp;utm_source=Invitation" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>July 26 - Hilton Head Island (Presenters: Melissa Azallion and Jon Eggert)</div> <div>Time: 8:00 - 9:30 am</div> <div>Location: Hilton Head Island/Bluffton Chamber of Commerce - 1 Chamber Commerce Drive, Hilton Head Island, SC</div> <div>To register, click <a href=";oeidk=a07ee7pdywy71eebdcc&amp;utm_source=Invitation&amp;utm_medium=email&amp;utm_campaign=July26HHIE%26L" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>July 26 - Charlotte (Presenter: Jeremy Stephenson)</div> <div>Time: 11:45 am - 1:00 pm</div> <div>Location: McNair Law Firm, P.A. - Bank of America Plaza, 101 S. Tryon Street, 25th Floor Conference Center, Charlotte, NC</div> <div>To register, click <a href=";oeidk=a07ee7pcp591b81ec02&amp;utm_source=Invitation&amp;utm_medium=email&amp;utm_campaign=July26CharE%26L">here</a>.</div> <div><br /> July 28 - Anderson (Presenters: Reggie Gay and Rita McKinney)</div> <div>Time: 8:30 - 10:00 am</div> <div>Location: Hospice of the Upstate - 1835 Rogers Road, Anderson, SC</div> <div>To register, click <a href=";oeidk=a07ee7pgfbe48fc1c13&amp;utm_source=Invitation&amp;utm_medium=email&amp;utm_campaign=Jul28ANDE%26L" target="_blank">here</a>.</div> <div><br /> August 1 - Greenville (Presenters: Reggie Gay and Rita McKinney)</div> <div>Time: 8:30 - 10:00 am</div> <div>Location: McNair Law Firm, P.A. - 104 S. Main Street, Suite 700, Greenville, SC</div> <div>To register, click <a href=";oeidk=a07ee7pf5afa740b7d7&amp;utm_source=Invitation&amp;utm_medium=email&amp;utm_campaign=Aug2GVILLEE%26L" target="_blank">here</a>.</div> <div><br /> This seminar has been approved for 1.0 PDCs for SHRM-CP or SHRM-SCP and 1.0 General HRCI credit. Complimentary breakfast and refreshments will be provided. Lunch will be provided for the Myrtle Beach and Charlotte sessions.</div> <br type="_moz" /> Wm. Grayson Lambert Joins McNair19 Jun 2017 00:00:00 -0800 McNair is pleased to announce Wm. Grayson Lambert has joined the Firm as an associate focused on business litigation.<br /> <br /> &ldquo;Grayson is a bright, young attorney, and we are excited to welcome him to McNair,&rdquo; said David Tigges, Managing Shareholder. &ldquo;I know he will be an asset to our growing litigation team.&rdquo;<br /> <br /> Prior to joining McNair, Lambert worked with McGuireWoods in Charlotte and clerked for the Honorable Dennis W. Shedd on the U.S. Court of Appeals for the Fourth Circuit. He has experience representing individual and corporate clients in complex commercial litigation, appeals, and government investigations.<br /> McNair Assists Palmetto Health in Forming New Health Company with Greenville Health System19 Jun 2017 00:00:00 -0800 <p>McNair Law Firm, P.A. assisted long-time client Palmetto Health in its <a href="">recently announced</a> agreement with Greenville Health System to create a new, not-for-profit health company to better serve South Carolinians.</p> <p>The new health system will include 13 hospitals serving approximately 1.2 million patients annually. It will be the largest private employer in South Carolina, with more than 28,000 health care workers and 2,800 physicians, and one of the 50 largest health care systems in the country.</p> <p>The new organization will be led by one board of directors, and Greenville Health System Chief Executive Officer Michael C. Riordan and Palmetto Health Chief Executive Officer Charles D. Beaman, Jr. will serve as co-CEOs.</p> <p>For more information, visit <a href=""></a>.&nbsp;</p> McNair and the LCHRA Present: Compliance in the New Administration - What You Need to Know14 Jun 2017 00:00:00 -0800 <div> <div> <div>Join McNair Law Firm and the Lowcountry Human Resources Association as they present <i><b>Compliance in the New Administration: What You Need to Know.&nbsp;</b></i>The event will discuss updates on business immigration under the Trump administration, managing employee leave, Employee Benefits Security Administration (EBSA) investigations, and how to effectively manage and strategize these key issues.&nbsp;</div> <div><br /> Topics will include:</div> </div> <div> <div> <div> <ul> <li>What to Expect from an Employee Benefits Security Administration (EBSA) Investigation</li> <li>Business Immigration Update Under the Trump Administration</li> <li>Managing Employee Leave: How the ADA, FMLA, Workers' Comp Law and the FLSA Interact</li> <li>What it Means to be a Fiduciary</li> </ul> <br /> Registration begins at 8:00 am. The program starts at 8:30 am and ends at 1:00 pm.<br /> Location: USCB New River Campus, Library Building Room 237, Bluffton, SC 29909<br /> Cost: $20<br /> For more information and to register, click <a href="" target="_blank">here</a>.</div> </div> </div> </div> <span color="#333333"><br /> Speakers are Melissa Azallion and Hal Frampton with McNair, and Carla Gatling with the United States Department of Labor. This program has been approved for SHRM Credit. Breakfast refreshments and lunch will be provided.</span> The Supreme Court Delivers a Unanimous Opinion in favor of Debt Purchasers13 Jun 2017 00:00:00 -0800 <p>In today&rsquo;s political environment, having unanimous support on an issue is exceedingly difficult particularly on issues emanating from our Executive and Legislative branches of government. Hope springs eternal however, and unanimity is exactly what we got from our Judicial branch of government in the United States Supreme Court&rsquo;s decision in <i>Henson v. Santander Consumer USA, Inc</i>, 582 U.S. ____ (2017) which was decided on June 12<sup>th</sup>.&nbsp;</p> <p>The Court held (in an opinion written by Justice Gorsuch &ndash; his first for the Court) that an entity who regularly purchases debts originated by a third party and then seeks to collect the debt for its own account, does not qualify as a &ldquo;debt collector&rdquo; and is therefore not subject to the rigors of the Fair Debt Collection Practices Act (FDCPA).&nbsp;</p> <p>In <i>Santander</i>,CitiFinancial Auto loaned money to Henson and other petitioners (collectively, the &ldquo;Petitioners&rdquo;) to buy cars.&nbsp;The Petitioners defaulted on those loans, and Santander purchased the defaulted loans from CitiFinancial.&nbsp;Santander then sought to collect the debts in ways the Petitioners alleged were in violation of the FDCPA.</p> <p>The parties acknowledged that third party debt collection agents generally qualify as &ldquo;debt collectors&rdquo; and that those who seek to collect debt they originated do not.&nbsp;Consequently, the former are subject to the FDCPA while the latter are not.&nbsp;But what about individuals and entities who purchase debts originated by a third party and then seek to collect?&nbsp;Does the FDCPA &ldquo;treat the debt purchaser&hellip;more like the repo man or the loan originator&rdquo;?</p> <p>The Petitioners argued for an expansive reading of the FDCPA and made the argument that &ldquo;owed&rdquo; is the past participle of the verb &ldquo;to owe,&rdquo; which suggests that the statute&rsquo;s definition of debt collector includes anyone who regularly seeks to collect debts previously &ldquo;owed&hellip;another.&rdquo;</p> <p>The Court responded to that argument by concluding that the Petitioners&rsquo; reading did not follow &ldquo;good grammar, let alone ordinary meaning.&rdquo; The Court noted that &ldquo;[p]ast participles like &lsquo;owed&rsquo; are routinely used as adjectives to describe the present state of a thing&hellip;.&rdquo;&nbsp;The Court also looked at Congress&rsquo; use of the word &ldquo;owed&rdquo; in other subsections of the FDCPA and, similarly, found little support for the Petitioners&rsquo; argument.&nbsp;&nbsp;</p> <p>The Court also considered the Petitioners&rsquo; argument that debt purchasers should be subject to the FDCPA for public policy reasons.&nbsp;The Petitioners noted that when passing the FDCPA, &ldquo;Congress never had the chance to consider what should be done about those in the business of purchasing defaulted debt&rdquo; and had they known, &ldquo;it surely would have judged defaulted debt purchasers more like&hellip;independent debt collectors.&rdquo;</p> <p>The Court quickly disposed of the Petitioners&rsquo; policy arguments by noting &ldquo;[I]t is never our job to rewrite constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone&rsquo;s account, it never faced.&rdquo;</p> <p>The <i>Santander </i>decision represents a win for debt purchasers and provides Supreme Court observers with their first glimpse of Justice Gorsuch&rsquo;s writing style which, ironically, required parsing through participles.<br /> &nbsp;</p> 4th Circuit sets a match to battalion chief's First Amendment claims09 Jun 2017 00:00:00 -0800 <div><em>Lately, we&rsquo;ve been seeing more cases in which public-sector employees accuse their governmental employer of violating the First Amendment to the U.S. Constitution. Such claims can arise in many ways, but with the proliferation of social media and the ability to instantaneously publish information, people often express their views so quickly that they don&rsquo;t take the time to think them through. But a person&rsquo;s words can have unintended consequences, and when those consequences involve adverse employment action, the employee whose words got him into trouble may claim First Amendment protection.</em></div> <div><em>&nbsp;</em></div> <div><em>The U.S. 4th Circuit Court of Appeals (whose rulings apply to all South Carolina employers) recently reviewed a First Amendment claim by an employee who ran afoul of his employer&rsquo;s social media policy. Read on to see how the court resolved the dispute.</em></div> <div><em>&nbsp;</em></div> <div><em><strong>Factual background</strong></em></div> <div>&nbsp;</div> <div>Kevin Buker began working as a paramedic for the Howard County (Maryland) Department of Fire and Rescue Services (HCDFRS) in 1997. In 2012, Chief William Goddard promoted Buker to the rank of battalion chief and assigned him to the second battalion as its commander. According to Goddard, as a battalion chief, Buker was responsible for managing the day-to-day field operationsas well as ensuring that the department&rsquo;s written policies and procedures were followed.</div> <div>&nbsp;</div> <div>As a paramilitary organization, the HCDFRS executes the enforcement of its orders in a hierarchical manner that requires employees to strictly follow a chain of command. At the top of the chain of command is the fire chief, followed by deputy fire chiefs, assistant chiefs, battalion chiefs, and, lastly, first responders. Although the rank of battalion chief is positioned at the lower end of the chain of command, Goddard described it as the most critical leadership position in the organization because battalion chiefs directly supervise first responders.</div> <div>&nbsp;</div> <div>In 2011, the fire chief and the public information officer began drafting a social media policy for the HCDFRS, partially in response to national debate over the use of social media in fire and emergency services departments. Throughout the drafting process, internal stakeholders&mdash;including Buker and the other battalion chiefs&mdash;were given the opportunity to review and comment on the forthcoming policy.</div> <div>&nbsp;</div> <div>The HCDFRS&rsquo;s decision to develop a social media policy was also spurred by a Howard County volunteer firefighter&rsquo;s Facebook posting of a photograph of a lynching depicted by a brown beer bottle hanging from a noose surrounded by white beer cans with paper cones for hoods. In a comment accompanying the photograph, the volunteer firefighter said that he wanted to &ldquo;go fishing for mud sharks/there are way to many here in Maryland. They are not good to eat though, I hear they taste like decayed chicken.&rdquo; (Note that all of the Facebook comments quoted in this article have been reprinted without edits.)</div> <div>&nbsp;</div> <div>On November 5, 2012, the HCDFRS issued General Order 100.21, titled &ldquo;Social Media Guidelines,&rdquo; which set forth the department&rsquo;s policy regarding the use of social media by HCDFRS personnel. Under the social media guidelines, the HCDFRS prohibited personnel &ldquo;from posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the [fire department], Howard County, or officials acting on behalf of the Department or County.&rdquo;<br /> &nbsp;</div> <div>The social media guidelines also barred HCDFRS employees &ldquo;from posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions, or information may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission.&rdquo; Additionally, the social media guidelines prohibited personnel from posting any information or images involving off-duty activities that might impugn the reputation of the HCDFRS or any member of the department.</div> <div>&nbsp;</div> <div>On December 6, 2012, the HCDFRS issued General Order 100.22, titled &ldquo;Code of Conduct,&rdquo; which was &ldquo;aimed at ensuring members of the Department maintain the highest level of integrity and ethical conduct both on and off duty.&rdquo; In relevant part, the code of conduct prohibited HCDFRS personnel from intentionally engaging in conduct, through actions or words, that is disrespectful to or otherwise undermines the authority of a supervisor or the chain of command and from publicly criticizing or ridiculing the department, Howard County government, or their policies.</div> <div>&nbsp;</div> <div>The code of conduct also required employees to conduct themselves in a manner that reflects favorably on the HCDFRS at all times, whether they&rsquo;re on and off duty. The code of conduct prohibited employees from engaging in conduct unbecoming to the HCDFRS, defined as any conduct that reflects poorly on an individual member, the department, or county government; that is detrimental to the public trust in the department; or that impairs the department&rsquo;s operation and efficiency.</div> <div><br /> On January 20, 2013, Buker was watching news coverage of a gun control debate in his office. While he was on duty, he posted the following statement to his Facebook page: &ldquo;My aide had an outstanding idea . . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .&rdquo; Twenty minutes later, Mark Grutzmacher, a volunteer paramedic, replied: &ldquo;But . . . . was it an &lsquo;assult liberal&rsquo;? Gotta pick a fat one, those are the &lsquo;high capacity&rsquo; ones. Oh . . . pick a black one, those are more &lsquo;scary.&rsquo; Sorry had to perfect on a cool idea!&rdquo; Six minutes later, Buker &ldquo;Liked&rdquo; Grutzmacher&rsquo;s comment and replied, &ldquo;Lmfao! Too cool Mark Grutzmacher!&rdquo;</div> <div>&nbsp;</div> <div>Not surprisingly, the Facebook posts worked their way up the chain of command. They were reviewed at the command level, and Buker was told to look over his recent Facebook posts and remove anything that was inconsistent with the department&rsquo;s social media policy. Although he maintained that he was in compliance with the social media policy, Buker removed the January 20 posts. He wasn&rsquo;t done, however.</div> <div>&nbsp;</div> <div>On January 23&mdash;a few hours after he informed Assistant Chief John Jerome that he had removed the posts&mdash;Buker posted the following to his Facebook wall:</div> <div>&nbsp;</div> <div>To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I&rsquo;m not scared or ashamed of my opinions or political leaning, or religion. I&rsquo;m happy to discuss any of them with you. If you&rsquo;re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.</div> <div>&nbsp;</div> <div>One of Buker&rsquo;s Facebook friends then replied, &ldquo;As long as it isn&rsquo;t about the [HCDFRS], shouldn&rsquo;t you be able to express your opinions?&rdquo; Buker responded:</div> <div>&nbsp;</div> <div>Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Governement recently published a Social media policy, which the Department then published it&rsquo;s own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Ammendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.</div> <div>&nbsp;</div> <div>Another of Buker&rsquo;s Facebook friends then commented, &ldquo;Oh, your gonna get in trouble for saying that too.&rdquo; Buker replied, &ldquo;Probably . . .&rdquo;</div> <div>&nbsp;</div> <div>After the new posts were brought to management&rsquo;s attention, a review was conducted. On February 25, Goddard served Buker with charges of dismissal referencing (1) his January 20 and January 23 Facebook posts, (2) his &ldquo;Like&rdquo; and reply to Grutzmacher&rsquo;s January 20 comment, (3) his replies to comments about his January 23 post, and (4) his &ldquo;Like&rdquo; of an offensive February 17 post. The charges of dismissal asserted that Buker&rsquo;s posts violated the HCDFRS&rsquo;s code of conduct and social media guidelines.</div> <div>&nbsp;</div> <div>In particular, the fire department asserted, among other things, that Buker&rsquo;s Facebook activity improperly:</div> <ol> <li>Adopted and approved Grutzmacher&rsquo;s comment, which had racial overtones and was insensitive and derogatory in nature;</li> <li>Reflected a failure to grasp the impact and implications of his comments on his role as a battalion chief, a leadership position in which he was responsible for enforcing departmental policies and taking appropriate action when the people he supervised violated those policies;</li> <li>Demonstrated repeated insolence and insubordination by replacing the January 20 post with another tirade mocking the chain of command, the HCDFRS, and the county; and</li> <li>Interfered with HCDFRS operations and caused disruption in the department&rsquo;s chain of command and authority.</li> </ol> <div>Goddard gave Buker an opportunity to rebut the specific charges at a pretermination meeting held on March 8. Following that meeting, Goddard terminated Buker&rsquo;s employment on March 14, 2013.</div> <div>&nbsp;</div> <div> <div><em><strong>The ensuing litigation</strong></em></div> <div>&nbsp;</div> <div>On October 12, 2013, Buker sued the HCDFRS in federal district court, seeking reinstatement and damages. He alleged that his Facebook posts were a substantial motivation for his termination, and by terminating him, the HCDFRS impermissibly retaliated against him for exercising his First Amendment rights. He also alleged that the fire department&rsquo;s social media guidelines and code of conduct, as drafted and applied to him, violated the First Amendment by impermissibly restricting his ability to speak on matters of public concern.</div> <div>&nbsp;</div> <div>After information was exchanged and depositions taken, the HCDFRS requested summary judgment (dismissal of the claims without a trial), arguing that Buker&rsquo;s Facebook activity didn&rsquo;t involve matters of public concern and his interest in speaking out didn&rsquo;t outweigh its interest in minimizing disruption. The HCDFRS later filed a second motion for summary judgment on Buker&rsquo;s claims that its policies were unconstitutionally overbroad or vague and constituted prior restraints on his right to free speech. The district court granted the HCDFRS&rsquo;s first request for summary judgment on March 30, 2015.</div> <div>&nbsp;</div> <div>In dismissing the case, the district court concluded that Buker&rsquo;s January 20 Facebook posts and &ldquo;Like&rdquo; were unprotected speech because they were &ldquo;capable of impeding the [fire department]&rsquo;s ability to perform its duties efficiently.&rdquo; The district court further concluded that his January 23 posts and February 17 &ldquo;Like&rdquo; similarly didn&rsquo;t amount to protected speech because he failed to show that he was speaking as a citizen on a matter of public concern. The district court&rsquo;s order didn&rsquo;t address the HCDFRS&rsquo;s second motion for summary judgment.</div> <div>&nbsp;</div> <div>On June 22, 2015, the HCDFRS revised its social media guidelines and code of conduct. The revised social media guidelines eliminated many of the previous prohibitions on employees&rsquo; private use of social media. The revised code of conduct didn&rsquo;t include any of the previous version&rsquo;s provisions that Buker had challenged. Highlighting those changes, the HCDFRS asked the court to dismiss the second challenge as moot, arguing the revised policies didn&rsquo;t contain the provisions Buker challenged as overbroad, void for vagueness, or prior restraints. The district court thus denied the HCDFRS&rsquo;s second motion for summary judgment as moot and granted the motion to dismiss on August 12, 2015.</div> <div>&nbsp;</div> <div>Buker timely appealed the district court&rsquo;s award of summary judgment in favor of the HCDFRS on his First Amendment retaliation claim and the dismissal of his challenge to the social media guidelines and code of conduct on mootness grounds.</div> <div>&nbsp;</div> <div><em><strong>4th Circuit&rsquo;s analysis</strong></em></div> <div>&nbsp;</div> <div>The court of appeals set out the standard for a public-sector employee to establish a claim for retaliatory discharge under the First Amendment. The employee must satisfy a three-pronged test by showing that:</div> <ol> <li>He was a &ldquo;public employee . . . speaking as a citizen upon a matter of public concern [rather than] as an employee about a matter of personal interest&rdquo;;</li> <li>His &ldquo;interest in speaking [about] the matter of public concern outweighed the government&rsquo;s interest in providing effective and efficient services to the public&rdquo;; and</li> <li>His &ldquo;speech was a substantial factor in the employer&rsquo;s termination decision.&rdquo;</li> </ol> <div>The court pointed out that there is a balancing test: The First Amendment doesn&rsquo;t protect public-sector employees when their speech interests are outweighed by the government&rsquo;s interest in providing efficient and effective services to the public. Therefore, public-sector employees must accept certain limitations on their freedom.</div> <div>&nbsp;</div> <div>In determining whether Buker&rsquo;s Facebook posts and &ldquo;Likes&rdquo; addressed matters of public concern, the 4th Circuit looked at the content, context, and form of the speech at issue in light of the detailed facts set out above. The court found that the &ldquo;liberal,&rdquo; &ldquo;assult liberal,&rdquo; and Second Amendment gun rights posts and comments implicated a matter of public concern. Buker&rsquo;s January 23 post describing the HCDFRS&rsquo;s social media guidelines and expressing concern that they infringed on his First Amendment rights also addressed a matter of public concern.</div> <div>&nbsp;</div> <div>However, the court found that some of the Facebook activity that prompted Buker&rsquo;s termination didn&rsquo;t implicate matters of public concern. For instance, his &ldquo;Like&rdquo; of an image depicting an elderly woman raising her middle finger titled &ldquo;for you Chief&rdquo; on the heels of the HCDFRS&rsquo;s investigation into his January 20 and 23 Facebook activity was merely an employee grievance not protected by the First Amendment.</div> <div>&nbsp;</div> <div>Having concluded that at least some of the Facebook activity prompting Buker&rsquo;s termination implicated matters of public concern, the court then had to determine whether his interest in speaking about matters of public concern outweighed the fire department&rsquo;s interest in providing effective and efficient services to the public. Factors relevant to that inquiry include whether the public-sector employee&rsquo;s speech:</div> <ol> <li>Impaired supervisors&rsquo; ability to maintain discipline;</li> <li>Impaired harmony among coworkers;</li> <li>Damaged close personal relationships;</li> <li>Impeded the performance of his duties;</li> <li>Interfered with the operation of the institution;</li> <li>Undermined the mission of the institution;</li> <li>Was communicated to the public or to coworkers in private;</li> <li>Conflicted with his responsibilities within the institution; or</li> <li>Abused the authority and public accountability his role entailed.</li> </ol> <div>The court concluded that the HCDFRS&rsquo;s interest in efficiency and preventing disruption outweighed Buker&rsquo;s interest in speaking in the way he did about gun control and the department&rsquo;s social media policy.</div> <div>&nbsp;</div> <div>First, Buker&rsquo;s Facebook activity interfered with and impaired HCDFRS&rsquo;s operations and discipline as well as working relationships within the department. Fire companies have a strong interest in promoting camaraderie and efficiency as well as internal harmony and trust, and the court therefore accorded substantial weight to HCDFRS&rsquo;s interest in limiting dissension and discord.</div> <div>&nbsp;</div> <div>In addition, the court noted that Buker&rsquo;s Facebook activity significantly conflicted with his responsibilities as a battalion chief. It observed that the expressive activities of a highly placed supervisory employee are more disruptive to workplace operations than similar activity by a low-level employee with little authority or discretion. Moreover, Buker&rsquo;s January 20 post, made while he was on duty and in his office, advocated violence against certain classes of people as well as the use of violence to effect a political agenda. In the court&rsquo;s view, those kinds of statements had a tendency to diminish the HCDFRS&rsquo;s standing with the public. The court was careful to note that its ruling doesn&rsquo;t mean a governmental employer will always prevail.</div> <div>&nbsp;</div> <div>Turning to the second motion for summary judgment, the court found that since the HCDFRS had already corrected the possibly offensive language in the policies, there was no active issue for it to decide. It therefore agreed with the lower court&rsquo;s decision on mootness.</div> <div>&nbsp;</div> <div><em><strong>Lessons for employers</strong></em></div> <div>&nbsp;</div> <div>In light of this decision, all employers, in the public or private sector alike, should thoroughly review their social media policies. At a minimum, examine whether your social media policies might impermissibly restrict an employee&rsquo;s right to speak on a matter of public concern. Even though it upheld the lower court&rsquo;s decision, the 4th Circuit found that some of the language in Buker&rsquo;s first Facebook posts fell within the &ldquo;matter of public concern&rdquo; category, so it&rsquo;s wise to involve employment counsel in your policy review. Also, you should make sure your social media policies are up to date with guidance on protected activity in the workplace from the National Labor Relations Board (NLRB).</div> <div>&nbsp;</div> <div>The nine factors outlined by the 4th Circuit provide an excellent template for conducting a First Amendment analysis. Ensuring that your policies are worded carefully and thoughtfully can help you limit your exposure to expensive lawsuits.<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="" target="_blank">here</a>. &nbsp;</div> </div> Supreme Court Clarifies Patent Exhaustion Doctrine and Limits Post-Sale Control08 Jun 2017 00:00:00 -0800 <div><strong>&quot;We conclude that a patentee's decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale.&quot;[1]</strong><br /> <br /> In <em>Impression Products, Inc. v. Lexmark International, Inc.</em>, the Supreme Court held that after a patent holder sells a patented product, the patent holder cannot control the product by way of patent rights.[2] United States patent laws allow a patent holder to &quot;exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States . . . &quot;[3] Thus, making, using, offering for sale, selling, or importing the invention in the U.S. without permission from the patent holder violates the patent owner's right to exclude and is an act of infringement. Patent exhaustion is a potential defense to a claim for patent infringement. The patent owner exhausts its right to exclude when the patent owner, itself or through a licensee, sells or authorizes a sale of a product covered by the patent.</div> <div><br /> This case arose when Lexmark, the patent holder, attempted to restrict post-sale activity concerning its toner cartridges covered by its patent, including post-sale activities regarding printer cartridges Lexmark sold outside the United States. Seeking to prevent third parties from refilling and reselling its cartridges, Lexmark created a sales program that encouraged buyers to return spent cartridges to Lexmark and Lexmark alone. The sale program allowed customers to: (a) buy a cartridge at full price with no post-sale restrictions; or (b) buy the cartridge at a discount, but contractually agree to use the cartridge only once and return it to Lexmark. Operationally, Lexmark placed a computer chip on these &quot;discounted&quot; cartridges, which helped to prevent unauthorized reuse.[4] Unfortunately for Lexmark, third parties discovered methods to defeat the chip and continued to sell and import refilled cartridges. &quot;Lexmark, however, was not so ready to concede that its plan had been foiled.&quot;[5]</div> <div><br /> Lexmark sued several remanufacturers, including Impression Products, Inc., for patent infringement, contending that because Lexmark expressly prohibited reuse and resale of these discounted cartridges, the remanufacturers infringed the Lexmark patents when they refurbished and resold them.[6] Impression Products based its defense on patent exhaustion arguing that Lexmark's first sale exhausted all of Lexmark's rights regarding the products sold.</div> <div><br /> At the Federal Circuit, Lexmark prevailed and the Federal Circuit ruled that a patent owner may sell its product and retain the right to bring patent infringement lawsuits for violations of &quot;clearly communicated . . . lawful restriction[s] as to post-sale use or resale.&quot;[7] The Supreme Court, however, reversed the Federal Circuit - and nearly thirty years of precedent - and held that Lexmark exhausted its patent rights the moment it sold the cartridges.[8]</div> <div><br /> In sum, patent exhaustion is uniform and automatic. Once a patentee decides to sell-whether on its own or through a licensee- that sale exhausts its patent rights, regardless of any post-sale restrictions the patentee purports to impose, either directly or indirectly.[9]</div> <div><br /> The Supreme Court ruled that Lexmark's single-use/no-resale restrictions in its contracts may have been clear and enforceable under contract law, but they do not entitle Lexmark to retain patent rights in an item after the sale.[10] To make its point, the Supreme Court explained it &quot;has long held that, even when a patentee sells an item under an express restriction, the patentee does not retain patent rights in that product.&quot;[11] Further, the Supreme Court clarified that the geographic location of the sale, domestic or foreign, does not affect patent exhaustion; rather, &quot;restrictions and location are irrelevant; what matters is the patentee's decision to make a sale.&quot;[12]</div> <div><br /> All is not lost for patent holders as the&nbsp;<em>Lexmark</em>&nbsp;decision leaves the door open to enforce post-sale restrictions based upon contract law and corresponding remedies.[12] But&nbsp;<em>Lexmark</em>&nbsp;prohibits patent holders from using the patent laws to police or otherwise restrict post-sale activities or otherwise limit a purchaser's ownership rights in the article sold. And this prohibition on restrictions for post-sale activities applies to articles sold outside the United States. While this may reduce the value of patent products in some transactions, the Supreme Court explained that &quot;the Patent Act does not guarantee a particular price.&quot;[13]&nbsp;</div> <div>&nbsp;&nbsp;<br /> In light of the&nbsp;<em>Lexmark</em>&nbsp;case, a review of patent licensing and sales strategies would be prudent in many cases.</div> __________________________________________________________________________<br /> <br /> [1] Impression Products, Inc. v. Lexmark International, Inc., No. 15-1189, ___ U.S. ___, Slip Op. at 2 (May 30, 2017).<br /> [2] Id.<br /> [3] 35 U. S. C. &sect;154(a)<br /> [4] Impression Products, Inc., No. 15-1189, ___ U.S. ___, Slip Op. at 7.<br /> [5] Id. at 8.<br /> [6] Id.<br /> [7] Id. at 8 (citing Mallinckrodt, Inc. v. Medipart, Inc., 816 F. 3d 721, 735 (2016)).<br /> [8] Id. at 10. <br /> [9] Id. at 13. <br /> [10] Id. at 10. <br /> [11] Id. at 8.<br /> [12] Id. at 18.<br /> [13] Id. at 15. <br /> <br /> Chambers USA Recognizes McNair as Leading Firm in 201701 Jun 2017 00:00:00 -0800 For the thirteenth consecutive year, McNair has been ranked a &ldquo;Leading Firm&rdquo; in the 2017 edition of Chambers USA: America&rsquo;s Leading Lawyers for Business. Ten of the firm&rsquo;s attorneys earned individual rankings. <br /> <br /> New to the list this year are Jennifer Blumenthal of the Charleston office for Corporate/Mergers &amp; Acquisitions (M&amp;A): Banking &amp; Finance as well as Rick Morgan and Durham Boney of the Columbia office recognized for Labor &amp; Employment and Real Estate respectively.<br /> <br /> Additional ranked attorneys include:<br /> &bull; Sid Boone &ndash; Real Estate<br /> &bull; John Currie &ndash; Corporate/M&amp;A<br /> &bull; Hal Frampton &ndash; Labor &amp; Employment<br /> &bull; Joel Gottlieb &ndash; Real Estate<br /> &bull; Celeste Jones &ndash; Litigation: General Commercial <br /> &bull; Judith McInnis &ndash; Real Estate<br /> &bull; Bill Musser &ndash; Corporate/M&amp;A: Banking &amp; Finance <br /> <br /> McNair also received practice rankings in the areas of Corporate/M&amp;A; Corporate/M&amp;A: Banking &amp; Finance; Labor &amp; Employment; and Real Estate. <br /> <br /> McNair Launches Immigration Law Blog31 May 2017 00:00:00 -0800 McNair is pleased to announce the launch of its<a href=""> Immigration Law Insights</a> blog. The blog will keep employers informed on crucial topics such as temporary work visas (H-1B, L and E visas); green card developments; and I-9 and E-Verify trends. There will also be regular updates on the evolving issues of immigration policy and executive orders by the Trump administration.<br /> <br /> &ldquo;It is our intention to make sure clients are up-to-date on the immigration issues at hand,&rdquo; said Melissa Azallion, a partner leading the firm&rsquo;s immigration practice, &ldquo;and we will strive to make our blog posts a valuable resource for clients and others in effectively navigating immigration issues in the current climate.&rdquo;<br /> <br /> Along with Azallion, immigration attorney Jon Eggert and other immigration team members will be the primary contributors to the blog. Azallion has more than 20 years of experience advising clients on business immigration and labor and employment law issues in a wide range of industries, including higher education, healthcare, hospitality, manufacturing and others. Eggert has experience assisting and advising clients on business immigration and labor and employment issues as well. <br /> McNair Attorney Appointed to Myrtle Beach Regional Economic Development Board of Directors25 May 2017 00:00:00 -0800 McNair is pleased to announce Shareholder Jim Gilliam has been appointed to the Myrtle Beach Regional Economic Development (MBREDC) Board of Directors. His appointment started in January of 2017 and will consist of serving a two-year term.<br /> <br /> The MBREDC is an organization founded to function as a vital, comprehensive resource for location and expansion assistance, and to facilitate development programs throughout Horry County. Their mission is to lead Horry County&rsquo;s efforts in attracting, growing and retaining sustainable businesses that create jobs. MBREDC is made up of more than 170 members. <br /> <br /> &ldquo;Coming together with other business professionals from around the region solidifies the importance of economic development in the area,&rdquo; said Gilliam. &ldquo;The ultimate goal is to create jobs and opportunities. Through this appointment, I am looking forward to giving back to the Grand Strand, as it has been a place I&rsquo;ve called home for many years.&rdquo;<br /> <br /> Gilliam is a Shareholder in the Firm&rsquo;s Myrtle Beach office and focuses his practice on employment law, business law and appellate practice. He provides advice to employers regarding compliance with federal and state employment laws, as well as prepares operating agreements for clients and drafts business arrangements. Gilliam represents his clients in appeals before all courts and has filed numerous briefs before the South Carolina Court of Appeals and the South Carolina Supreme Court.<br /> <br />