McNair RSS Feed Jul 2018 00:00:00 -0800firmwise Represents FUJIFILM in $3.9 Million Expansion in Greenwood County10 Jul 2018 00:00:00 -0800 <p>FUJIFILM Manufacturing USA, Inc., a manufacturing location for Tokyo-based FUJIFILM Corporation, is expanding its existing operations in Greenwood County, South Carolina. The company&rsquo;s $3.9 million investment is projected to create 67 new jobs.</p> <p>Celebrating its 30th anniversary in South Carolina this year, FUJIFILM is a manufacturer of industrial and commercial imaging products. The company operates five, state-of-the-art manufacturing facilities on its 500-acre campus located at 211 Puckett Ferry Road near Lake Greenwood.</p> <p>This expansion to FUJIFILM&rsquo;s 2.5-million-square-foot manufacturing facility will allow for the assembly of electrical parts for inkjet printer heads for a sister company, FUJIFILM Dimatix. Hiring for the new positions is expected to begin in late July or early August 2018.</p> <p align="left">McNair Law Firm, P.A. acted as legal counsel to FUJIFILM on this expansion. For more information on FUJIFILM, visit <a href=""></a>.&nbsp;</p> McNair's Pam Baker Elected to USC Board of Visitors09 Jul 2018 00:00:00 -0800 <p>McNair is pleased to announce that shareholder Pam Baker has been elected to the University of South Carolina&rsquo;s (USC) Board of Visitors.</p> <p>Board members are elected by the Board of Trustees to be ambassadors who advocate in their communities on behalf of the university to work to further the long term objectives and goals of USC. Each board member serves a three-year term.</p> <p>Pam assists with the defense of state and federal environmental enforcement actions related to compliance with the National Environmental Policy Act (NEPA), Resource Conservation and Recovery Act (RCRA), Clean Air Act (CAA), Clean Water Act (CWA), and other environmental and health statutes and regulations. She advises energy clients on the full range of environmental regulations affecting energy production, including the development and operation of renewable energy projects. Pam's practice also involves representing clients before the South Carolina Department of Health and Environmental Control (DHEC) in negotiating air and water permits, voluntary cleanup contracts, and renewable/sustainable energy project permits.</p> Grayson Lambert to Serve as Member of the SC Bar Trial and Appellate Advocacy Section Council01 Jul 2018 00:00:00 -0800 Grayson Lambert will serve as a member of the 2018-2019 South Carolina Bar Trial and Appellate Advocacy Section Council. It is a one year term starting July 1, 2018.<br /> <br /> The Trial and Appellate Advocacy Section maintains interest in a variety of activities related to lawyers and judges. It sponsors or supports programs on litigation skills, effective advocacy and specialized areas of litigation practice in an effort to improve the art and technique of trial advocacy. <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 has experience at an international law firm, as well as clerking for the Honorable Dennis W. Shedd on the U.S. Court of Appeals of the Fourth Circuit.&nbsp;&nbsp;<br type="_moz" /> McNair Law Firm Partners with City of Greenville to Preserve Greenville Summit28 Jun 2018 00:00:00 -0800 Greenville City Council approved an ordinance that establishes a special tax assessment for low to moderate income rental housing at its June 25 meeting. <br /> <br /> Specifically, the ordinance will provide a tax incentive for Greenville Summit LLC, a subsidiary of JE Properties, to maintain the property located at 201 W. Washington Street in downtown Greenville for low to moderate income housing. <br /> <br /> &ldquo;As home prices continue to rise and the housing shortage worsens, we are encouraged by the City&rsquo;s and our client&rsquo;s efforts to create and maintain this property as attainable housing for the citizens of Greenville,&rdquo; said Adam Artigliere, who represents Greenville Summit LLC and worked with the City to draft the ordinance. <br /> <br /> &ldquo;Our vision for the Greenville Summit is to provide affordable housing to local residents for the next 20 years. The City&rsquo;s dedication to affordable housing made preserving the affordability for more than 100 city residents possible,&rdquo; said Joseph Eddy, President of JE Properties. <br /> <br /> &ldquo;This ordinance provides us with additional tools to utilize in our ongoing efforts to preserve the existing inventory of affordable housing units, as well as develop new housing, and will help ensure the availability of affordable housing now and for many years to come,&rdquo; said Ginny Stroud, the City&rsquo;s Community Development Administrator. <br /> A State's extraction of agency fees from non consenting public-sector employees violates the First Amendment28 Jun 2018 00:00:00 -0800 <p>For the second time this term of court, the United States Supreme Court on the final day of the term addressed a First Amendment issue. In the first case, <i>Masterpiece Cakeshop v. Colorado Civil Rights Commission</i>, the Court found on very narrow grounds that the Colorado Civil Rights Commission violated the baker&rsquo;s free exercise portion of the First Amendment. Now in J<i>anus v. State, County, and Municipal Employees, </i>the Court under the freedom of speech prong of the First Amendment, found that states and public-sector unions may no longer extract agency fees from non consenting employees. The Court found that the First Amendment is violated when money is taken from non consenting employees for a public-sector union. Employees must choose to sup&shy;port the union before anything is taken from them.&nbsp; Nei&shy;ther an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.</p> <p>&nbsp;In order to reach the decision (5-4), the majority first had to discuss and overrule its 1977 <i>Abood v. Detroit Board of Education </i>decision. In <i>Abood, </i>the Court upheld the constitutionality of agency-shop fees.An agency shop is a form of union security agreement where the employer may hire union or non-union workers, and employees need not join the union in order to remain employed. However, the non-union worker must pay a fee to cover collective bargaining costs.</p> <p>In overruling <i>Abood</i>, the Court wrote that the State&rsquo;s extraction of agency fees from non consenting public-sector employees violates the First Amendment. <i>Abood </i>erred in con&shy;cluding otherwise, and <i>stare decisis </i>cannot support it. In judging a First Amendment free speech case, the Court noted that the lesser &ldquo;exacting&rdquo; standard rather than the &ldquo;strict scrutiny&rdquo; standard was used, and it made the <i>Abood </i>decision an outlier in First Amendment jurisprudence. The Court observed that neither of <i>Abood</i>&rsquo;s two justifications for agency fees passes mus&shy;ter under this strict scrutiny standard. First, agency fees cannot be upheld on the ground that they promote an interest in &ldquo;labor peace.&rdquo; The <i>Abood </i>Court&rsquo;s fears of conflict and disruption if employees were represented by more than one union have proved to be unfounded: Exclusive rep&shy;resentation of all the employees in a unit and the exaction of agency fees are not inextricably linked. To the contrary, in the Federal Gov&shy;ernment and the 28 States with laws prohibiting agency fees, mil&shy;lions of public employees are represented by unions that effectively serve as the exclusive representatives of all the employees. Whatever may have been the case 41 years ago when <i>Abood </i>was decided, it is thus now undeniable that &ldquo;labor peace&rdquo; can readily be achieved through less restrictive means than the assessment of agency fees.</p> <p>Second, avoiding &ldquo;the risk of &lsquo;free riders,&rdquo; is not a compelling state interest. Free-rider &ldquo;arguments . . . are gener&shy;ally insufficient to overcome First Amendment objections,&rdquo; and the statutory requirement that unions represent members and nonmembers alike does not justify different treatment. As is evident in non-agency-fee jurisdictions, unions are quite willing to represent nonmembers in the absence of agency fees. And their duty of fair representation is a necessary concomitant of the authori&shy;ty that a union seeks when it chooses to be the exclusive representa&shy;tive. In any event, States can avoid free riders through less restric&shy;tive means than the imposition of agency fees.</p> <p>The Court found that the First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. The Court observed that it has held time and again that freedom of speech &ldquo;includes both the right to speak freely and the right to refrain from speaking at all.&rdquo; The right to eschew association for expressive purposes is likewise protected. As the Court noted in a 1984 decision, the freedom of association . . . plainly presupposes a freedom not to associate.</p> <p>This case applies to public sector employers. Private sector employers fall under different standards more generally governed by the Railway Labor Act and the National Labor Relations Act. The bottom line is the funding of public sector unions has likely taken a big financial hit as a result of this decision.</p> WesternGeco: The Supreme Court Rules That Patent Damages Arising From Foreign Activities May Be Permitted27 Jun 2018 00:00:00 -0800 <p>On June 22, 2018, in a 7-2 opinion, the Supreme Court of the United States reversed the Court of Appeals for the Federal Circuit and held that under 35 U.S.C. &sect; 271(f)(2), patent damages arising from foreign activities may be permitted. <i>WesternGeco LLC v. ION Geophysical Corp</i>., No. 16-1011 (Jun. 22, 2018).<span class="MsoFootnoteReference"><span style="font-size:12.0pt;font-family:&quot;Times New Roman&quot;,serif;mso-fareast-font-family:&#10;&quot;Times New Roman&quot;;mso-ansi-language:EN-US;mso-fareast-language:EN-US;&#10;mso-bidi-language:AR-SA"><span class="MsoFootnoteReference"><span style="font-size: 12pt;"><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn1" name="_ftnref1" title="">[1]</a></span></span></span></span></p> <p>Section 271(f)(2) expands the definition of patent infringement to include supplying, from the United States, components that are specially adapted for a patented invention.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp;If there is infringement under &sect;271(f)(2), the patentee is entitled to compensatory damages under &sect;284.&nbsp;</p> <p>In this case, WesternGeco&rsquo;s patent covers a system for surveying the ocean floor that utilizes lateral-steering technology allowing for higher quality data than previous systems. WesternGeco uses the technology to perform surveys for oil and gas companies. But WesternGeco does not sell or license the technology to competitors. In 2007, the accused infringer, ION Geophysical Corporation, began selling a competing system and then shipped the systems to customers outside the United States. These foreign customers combined ION components overseas to create a system indistinguishable from, and competing with, WesternGeco&rsquo;s patented system.&nbsp;</p> <p>At trial, WesternGeco sued ION for patent infringement under both &sect;271(f)(1) and (2). WesternGeco proved that it had lost at least 10 survey contracts because of ION&rsquo;s infringement. The jury found ION liable for patent infringement and awarded compensatory damages of $93.4 million in lost profits and $12.5 million in royalties. ION filed post-trial motions arguing that ION could not be liable for lost profits damages because &sect;271(f) does not apply extraterritorially to actions taken outside the U.S. The District Court denied the Motion.&nbsp;</p> <p>On appeal, the Federal Circuit reversed the award of lost-profit damages.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn3" name="_ftnref3" title="">[3]</a>&nbsp;Previously, the Federal Circuit held that &sect;271(a), the general patent infringement provision, does not allow patent damages for lost foreign sales.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn4" name="_ftnref4" title="">[4]</a>&nbsp;</p> <p>The Supreme Court began its analysis by confirming the deep roots of the presumption against extraterritorial application of federal statutes outside the United States.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn5" name="_ftnref5" title="">[5]</a>&nbsp;This presumption is founded on the bases that Congress legislates with domestic concerns in mind and the presumption avoids &ldquo;unintended&rdquo; conflicts between laws in the U.S. and those of other nations.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn6" name="_ftnref6" title="">[6]</a>&nbsp;</p> <p>Next, the Supreme Court reaffirmed the established two-step framework for deciding questions of extraterritoriality: (1) whether the presumption against territoriality has been rebutted; and, if not rebutted, (2) whether the case involves a domestic application of the statute.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn7" name="_ftnref7" title="">[7]</a>&nbsp;Here, the Supreme Court resolved the matter by going straight to step two.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn8" name="_ftnref8" title="">[8]</a>&nbsp;The majority concluded that the conduct relevant to the statutory focus was domestic. First, the Court ruled that under &sect;284, the focus of patent compensatory damages is on patent infringement because &ldquo;the overriding purpose&rdquo; of &sect;284 is to provide complete compensation to patent owners for infringements.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn9" name="_ftnref9" title="">[9]</a>&nbsp;The Court then turned to the type of infringement and ruled that under &sect;271(f)(2), the focus of the infringement is on domestic conduct by the supply of components &ldquo;in or from&rdquo; the United States with the intent such components will be combined outside the United States.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn10" name="_ftnref10" title="">[10]</a>&nbsp;Hence, the Court reasoned, &ldquo;the conduct that &sect;271(f)(2) regulates &ndash; i.e., its focus &ndash; is the domestic act of &lsquo;suppl[ying] in or from the United States.&rdquo;<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn11" name="_ftnref11" title="">[11]</a>&nbsp;</p> <p>Finally, the Supreme ruled that the infringing conduct &ndash; ION&rsquo;s domestic act of supplying components that infringed WesternGeco&rsquo;s patents &ndash; occurred in the United States.&nbsp; Accordingly, &ldquo;the lost-profits damages that were awarded to WesternGeco were a domestic application of &sect;284.&rdquo;<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn12" name="_ftnref12" title="">[12]</a>&nbsp;</p> <p>The Supreme Court rejected ION&rsquo;s argument that the focus is on the award of damages. Instead, the High Court explained that the focus is &ldquo;the objec[t] of the statute&rsquo;s solicitude.&rdquo;<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn13" name="_ftnref13" title="">[13]</a>&nbsp;Here, the damages were merely the means by which the statute achieves its end of remedying the <i>infringement</i>. The Supreme Court also clarified that its ruling did not address whether other legal doctrines, e.g., proximate cause, might limit or preclude damages in particular cases.<a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftn14" name="_ftnref14" title="">[14]</a></p> <p>Justice Gorsuch dissented, to which Justice Breyer joined, because in their view U.S. patent owners do not possess rights and remedies to justify damages for acts that occurred outside the United States.&nbsp;</p> <div><hr align="left" size="1" width="33%" /> <div id="ftn1"> <p><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref1" name="_ftn1" title=""><span style="font-size: smaller;">[1]</span></a><span style="font-size: smaller;"> Justice Thomas delivered opinion of the Court, in which Roberts, C.J., and Kennedy, Ginsburg, Alito, Sotomayer, and Kagan, JJ., joined.&nbsp; Gorsuch, J., filed a dissenting opinion in which Breyer, J., joined.&nbsp;&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref2" name="_ftn2" title=""><span style="font-size: smaller;">[2]</span></a><span style="font-size: smaller;"> 35 U.S.C. &sect; 271(f)(2); <i>WesternGeco</i>, Slip Op. at 2.&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref3" name="_ftn3" title=""><span style="font-size: smaller;">[3]</span></a><span style="font-size: smaller;"> <i>WesternGeco LLC v. ION Geophysical Corp</i>., 791 F.3d 1340, 1343 (Fed. Cir. 2015), reinstated on remand, 837 F.3d 1358, 1361, 1364 (Fed. Cir. 2016). The Federal Circuit ruled that ION was liable for infringement under &sect;271(f)(2).&nbsp; <i>Id</i>. at 1347-1349.&nbsp; It did not address whether there was infringement under &sect;271(f)(1).&nbsp; <i>Id</i>. at 1348.&nbsp; Accordingly, the Supreme Court limited its analysis to &sect;271(f)(2).&nbsp; Slip Op. at 7, n.2.&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref4" name="_ftn4" title=""><span style="font-size: smaller;">[4]</span></a><span style="font-size: smaller;"> Slip Op. at 3-4 (citing <i>Power Integrations, Inc. v. Fairchild Semiconductor Int&rsquo;l, Inc</i>., 711 F.3d 1348 (Fed. Cir. 2013)).<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref5" name="_ftn5" title=""><span style="font-size: smaller;">[5]</span></a><span style="font-size: smaller;"> Slip Op. at 4.&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref6" name="_ftn6" title=""><span style="font-size: smaller;">[6]</span></a><span style="font-size: smaller;"> <i>Id</i>.<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref7" name="_ftn7" title=""><span style="font-size: smaller;">[7]</span></a><span style="font-size: smaller;"> <i>Id</i>. at 5 (citations omitted).&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref8" name="_ftn8" title=""><span style="font-size: smaller;">[8]</span></a><span style="font-size: smaller;"> <i>Id</i>.<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref9" name="_ftn9" title=""><span style="font-size: smaller;">[9]</span></a><span style="font-size: smaller;"> <i>Id</i>. (quoting <i>General Motors Corp. v. Devex Corp</i>., 461 U.S. 648, 655 (1983)).&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref10" name="_ftn10" title=""><span style="font-size: smaller;">[10]</span></a><span style="font-size: smaller;"> <i>Id</i>. at 7.&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref11" name="_ftn11" title=""><span style="font-size: smaller;">[11]</span></a><span style="font-size: smaller;"> <i>Id</i>. (quoting 35 U.S.C. &sect;271(f)(2)).&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref12" name="_ftn12" title=""><span style="font-size: smaller;">[12]</span></a><span style="font-size: smaller;"> <i>Id</i>. at 8.<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref13" name="_ftn13" title=""><span style="font-size: smaller;">[13]</span></a><span style="font-size: smaller;"> <i>Id</i>. (quoting <i>Morrison v. National Australia Bank Ltd</i>., 561 U.S. 247, 267 (2010).&nbsp;<br /> </span><a href="file:///C:/Users/jhaarsga/AppData/Local/autorecover/outlook/COLUMBIA-%231825853-v2-Article__WesternGeco_summary.docx#_ftnref14" name="_ftn14" title=""><span style="font-size: smaller;">[14]</span></a><span style="font-size: smaller;"> <i>Id</i>. at 9, n.3.&nbsp;&nbsp;</span></p> </div> </div> Hurricane Season is Here. Is your Business Ready?26 Jun 2018 00:00:00 -0800 <p><i>South Carolina employers, particularly along the coastal regions, are faced every year with the question &ndash; &ldquo;what do we do when a hurricane is upon us?&rdquo; The real question is does the employer have a plan in place that has been communicated to its employees so that not only will the business and its assets be protected as much as possible, but also your employees know what to do to protect themselves and their families. Read on for some suggestions.</i></p> <p><b>Learn the terms</b></p> <p>Everyone should understand the difference between a tropical depression, a tropical storm, and a hurricane. You should also be aware that the high winds that accompany these weather events can spin off extreme winds, tornadoes, localized flooding, and for those along the coast, storm surges. Understanding these weather terms can help you as the employer and your employees to prepare for and plan what to do. One key tip is to listen to your local government officials and if directed to leave the area, it is best to heed the warnings.</p> <p>Hurricanes are based on a scale from Category 1 (least dangerous) to Category 5 (most dangerous). Each category can create havoc and damage, and none should be taken lightly. The higher the category, the greater the wind speed. Those winds at any level, in conjunction with the precipitation, can damage businesses and homes, cause branches or trees to snap and down power lines. Power outages are likely to occur, they can last for weeks, and the downed power lines can be another danger. Be smart, stay away from downed power lines and be particularly watchful to insure that children are kept at a safe distance.</p> <p><b>Have a Plan </b><br /> <br /> Both employers and individuals should know the following:</p> <ol> <li>Have an inventory of your assets/belongings. This will assist if any catastrophic event occurs, whether it be a fire, a robbery, or a hurricane. Businesses should, as a rule, have offsite and secure backups for all of your electronic systems and data. That requires, at a minimum, daily backups and storage offsite.</li> <li>Does your business or do you as an individual have an emergency preparedness plan or any special needs? Businesses such as nursing homes or inpatient medical facilities should know where they will need to move their residents or patients which includes how those individuals will be transported. Individuals should make certain all necessary medications are readily accessible in the event you need to vacate your residence. If you are a pet owner, make certain you have included your pets in your emergency planning.</li> <li>What are the radio,TV, or other emergency notification systems in area? You may have a preferred means to secure your information, but whatever you decide, know where and how to keep informed about the weather developments.</li> <li>Check your insurance. Know what coverages you have and what you do not have if a weather event occurs. Have your agent&rsquo;s contact information available so that you can contact them as quickly as possible after a weather event occurs.</li> <li>As quickly as possible after the event and when approved by law enforcement, secure your property and make whatever temporary fixes you can to prevent further damage to your business or home.</li> <li>Be familiar with evacuation routes in your area.</li> <li>Know where the emergency shelters are in your evacuation area.&nbsp;&nbsp;&nbsp;&nbsp;</li> </ol> <p><b>Be Prepared </b><br /> <br /> The bottom line is to be prepared. Plan for the worst and your business and your employees should get through hurricane season in as good a shape as possible. Do not wait until the last minute. Historically, with the busy hurricane season occurring during late August through early October, now is the time to review, and update as necessary, your hurricane preparedness plan and inform your employees. Do not wait until it is too late.&nbsp; If you need a good guide, the South Carolina Emergency Management Division, <a href="" target="_blank"></a>, has published a user-friendly and very helpful guide that can assist during the hurricane season.<br /> <br /> &nbsp;</p> Machinists Gain Foothold at Boeing01 Jun 2018 00:00:00 -0800 <p><i>In a much watched union election at Boeing&rsquo;s North Charleston, South Carolina facility, the International Association of Machinist won a secret ballot election in a &ldquo;micro unit&rdquo;. The vote included 169 workers, 104 or 61.5% voting for the union. Read on to understand the backdrop to this story.</i></p> <p><b>Background</b></p> <p>Last year, the International Association of Machinists (&ldquo;IAM&rdquo;) lost an election at Boeing&rsquo;s North Charleston facility when 74% of the voting employees (approximately 3,000) rejected the union&rsquo;s efforts. This loss, however, did not stop the union. The IAM smartly used an Obama Democrat majority National Labor Board (&ldquo;Board&rdquo;) decision, <i>Specialty Healthcare</i>, to carve out a small group of employees into what is referred to as a &ldquo;micro unit&rdquo;. In <a href="" target="_blank"><em>Specialty Healthcare</em></a>, the Board did away with established precedent by changing the test used in determining whether a petitioned-for unit of employees to vote for union representation was the most appropriate unit within the employer&rsquo;s workforce. Traditionally, when a union prepares a petition with a proposed unit of employees to vote on whether they will be represented by the union, the Board would make the determination of whether the employees listed on the petition (the &ldquo;petitioned-for unit&rdquo;) is appropriate, or whether the proposed unit should be expanded to allow other similarly situated employees the opportunity to vote on union representation as well. Employers typically desire that the unit of voting employees be inclusive of all of those with similar interests to get a more accurate representation of what all employees in the workplace want in terms of union representation.</p> <p>Under <em>Specialty Healthcare</em>, the Board moved from the traditional community of interest test and expanded the test to a multi-step analysis. First, the Board would determine whether the petitioned-for employees were readily identifiable as a group and shared a sufficient community of interest with the other petitioned-for employees. If the Board found the petitioned-for unit was appropriate under the first prong, the burden shifted to the employer to prove under the second prong that an &ldquo;overwhelming community of interest&rdquo; existed between the petitioned-for employees and other employees, so that there was no legitimate basis upon which to exclude certain employees from the proposed unit because the traditional community of interest facts overlap almost completely. This &ldquo;overwhelming community of interest&rdquo; standard was nearly impossible for employers to meet, resulting in several fractured units or different unions representing employees throughout a single workplace.</p> <p><em>Specialty Healthcare&rsquo;s </em>&ldquo;overwhelming community of interest&rdquo; test essentially allowed unions to define a bargaining unit based on the extent of the union&rsquo;s organizing. The union could simply name a unit of employees as small as possible with complete disregard of other employees&rsquo; rights to vote for or against union organization. The IAM used this strategy at the North Charleston Boeing facility and now has its foot in the door to later disseminate large-scale organization.</p> <p>It is important to note that in late 2017, the Trump Republican controlled Board, in <em>PCC Structurals, Inc.</em>, reinstated the traditional community of interest analysis to determine whether employees in the petitioned-for unit share a community of interest with excluded employees. The employer in <em>PCC Structurals</em> is an Oregon-based manufacturing facility, in which IAM sought to unionize a micro-unit of approximately 100 welding employees, despite belonging to a larger group of over 2,000 production workers. The welding employees worked closely with other production workers, and shared several terms and conditions of employment, such as similar schedules, shared supervisors, constant contact, receiving the same benefits, receiving the same training, and wearing the same protective equipment while working throughout the manufacturing process.</p> <p>The Boeing election was allowed to go forward based on the Board&rsquo;s Regional Director determination, giving note to <i>PCC Structurals</i> that those in the micro unit &ndash; flight technicians and technician inspectors &ndash; had skills, training, and supervision different than other employees. Boeing asked for a stay and has appealed the Regional Director&rsquo;s decision to the Board. In its appeal, Boeing argued that the Regional Director&rsquo;s decision would &ldquo;accommodate nearly any micro unit in an integrated manufacturing system, essentially spelling the death knell for manufacturing facilities like Boeing South Carolina.&rdquo;</p> <p><b>What this means for Employers</b></p> <p>The Board will have to decide whether the Regional Director was correct in allowing the election to move forward. Employers should expect this to play out over time. It is too early to predict the outcome, but if the Board applies the <i>PCC Structural </i>analysis it adopted in late 2017 and examines the following factors:</p> <ul type="disc"> <li>whether the excluded employees and petitioned-for unit of employees are organized into a separate department;</li> <li>have distinct skills and training;</li> <li>have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between job classifications;</li> <li>are functionally integrated with the Employer&rsquo;s other employees;</li> <li>have frequent contact and interchange with other employees;</li> <li>have distinct terms and conditions of employment;</li> <li>and are separately supervised.</li> </ul> <p>Boeing may yet prevail in this case. For now, the union gets a win at Boeing. However, with <i>PCC Structurals </i>the law that is to be used going forward employers will no longer have the impossible burden of attempting to show that excluded employees must share an &ldquo;overwhelming community of interest&rdquo; with petitioned-for employees.&nbsp;</p> South Carolina Pregnancy Accommodations Act30 May 2018 00:00:00 -0800 <div><em>The South Carolina Human Affairs Law has, in its history, had very few amendments, but during the most recent legislative term, the South Carolina Legislature passed and on May 17, 2018, the Governor signed the South Carolina Pregnancy Accommodations Act. South Carolina joins twenty-two other states and the District of Columbia in providing specific statutory protection for pregnancy. Read on to see what the law provides.</em></div> <div><strong><br /> The Statute and its protections<br /> <br type="_moz" /> </strong></div> <div>The bill (H3865) was first introduced in the 2017-2018 session on February 28, 2017. The bill generally amended two section of the South Carolina Human Affairs Law (&ldquo;SCHAL&rdquo;); (1) section 1-13-30, relating to definitions under the SCHAL, revising the terms &quot;because of sex&quot; or &quot;on the basis of sex&quot; used in the context of equal treatment for women affected by pregnancy, childbirth, or related medical conditions, and revising the term &quot;reasonable accommodation&quot; pertaining to what this term may include, and; (2) section 1-13-80, relating to unlawful employment practices of an employer, by adding certain other unlawful employment practices in regard to an applicant for employment or an employee with limitations because of pregnancy, childbirth, or related medical conditions, as well as providing for notice and applicability to new and current employees to whom specific provisions apply. The Bill also contained provisions for certain public education efforts and regulatory oversight by the human affairs commission.</div> <div><br /> One of the key provisions was in Section 1-13-30(T) the South Carolina Code&rsquo;s definition of what constitutes a &ldquo;reasonable accommodation. The law now defines &ldquo;reasonable accommodation&rdquo; in the context of sex discrimination and pregnancy to include: (1) making existing facilities used by employees readily accessible to and usable by individuals &hellip; with medical needs arising from pregnancy, childbirth, or related medical conditions provided the employer shall not be required to construct a permanent, dedicated space for expressing milk; however, nothing in this section exempts an employer from providing other reasonable accommodations; and (2) for individuals with medical needs arising from pregnancy, childbirth, or related medical conditions providing more frequent or longer break periods; providing more frequent bathroom breaks; providing a private place, other than a bathroom stall for the purpose of expressing milk; modifying food or drink policy; providing seating or allowing the employee to sit more frequently if the job requires the employee to stand; providing assistance with manual labor and limits on lifting; temporarily transferring the employee to a less strenuous or hazardous vacant position, if qualified; providing job restructuring or light duty, if available; acquiring or modifying equipment or devices necessary for performing essential job functions; modifying work schedules; however, the employer is not required to do the following, unless the employer does or would do so for other employees or classes of employees that need a reasonable accommodation: (i) hire new employees that the employer would not have otherwise hired; (ii) discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job; (iii) create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee; or (iv) compensate an employee for more frequent or longer break periods, unless the employee uses a break period which would otherwise be compensated.</div> <div><br /> Another key provision was the amendment to actions that are an unlawful employment practice. Those amendments appear in section 1-13-80(A) of the South Carolina Code. It is now an unlawful employment practice for an employer (1) to fail or refuse to make reasonable accommodations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer; (2) to deny employment opportunities to a job applicant or employee, if the denial is based on the need of the employer to make reasonable accommodations to the known limitations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee; (3) to require an applicant for employment or an employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that the applicant or employee chooses not to accept, if the applicant or employee does not have a known limitation related to pregnancy, or if the accommodation is unnecessary for the applicant or employee to perform the essential duties of her job; (4) to require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known limitations for medical needs arising from pregnancy, childbirth, or related medical conditions; or (5) to take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known.&nbsp;</div> <div><br /> In addition, the law requires employers to provide written notice of these rights to new employees at the time of hire and current employees within one hundred twenty days of May 17, 2018 as well as conspicuously post notice of these rights in the workplace. The South Carolina Human Affairs Commission is to engage in public education and has been given the authority to promulgate regulations to carry out this standards.</div> <div><strong><br /> What this means for Employers</strong></div> <div><br /> Since the SCHAL was amended, these rights apply to those employers with fifteen or more employees. The small employer exception would still apply &ndash; i.e., those employers with less than 15 employees. While many of the items in the amendments to the SCHAL are already included in&nbsp; guidance from the Equal Employment Opportunity Commission, the South Carolina law guarantees employees who are pregnant or new mothers reasonable workplace accommodations, which do not pose an undue burden on their employers, and protects them from having to either accept an unwanted accommodation or take a leave of absence when a more appropriate accommodation could be provided. Many accommodations cost little or nothing to employers: allowing more frequent bathroom or food breaks, permitting coworkers to assist with heavy lifting, providing a stool to sit on rather than standing for hours at a time. The statutory adoption is intended to reduce workforce turnover, increase employee satisfaction and productivity and save money on workers&rsquo; compensation and related costs. By giving women the flexibility to work while they are pregnant or breastfeeding, the statute&rsquo;s intent is to encourage their continued contribution to the economy while safeguarding a workplace environment that values their well-being.<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>&nbsp;</div> Michael Weaver Elected President of South Carolina Bankruptcy Law Association16 May 2018 00:00:00 -0800 <p>McNair is pleased to announce that Michael Weaver has been elected President of the South Carolina Bankruptcy Law Association (SCBLA), which has more than 200 members across the state. Michael will serve a one year term.</p> <p>The South Carolina Bankruptcy Law Association (SCBLA) is a not-for-profit South Carolina corporation whose primary purpose is to promote bankruptcy legal education for attorneys practicing before the United States Bankruptcy Court for the District of South Carolina. The Supreme Court of South Carolina Commission on CLE has approved the association as a continuing legal education provider for bankruptcy attorneys. The&nbsp; association serves as a liaison between the bankruptcy bar and the Bankruptcy Court and the Office of the United States Trustee.</p>