LEGAL ISSUES
I. Tort Liability / Insurance
 II. Contracts
 III. Public Records / Privacy
 IV. Use of State Property
 V. Computer Use Rules
 VI. Copyright
 VII. Employment Law /
Students
 VIII. Affirmative Action

SUMMARY
 I.
Torts
 Report
all accidents
immediately to
NCSU Legal and
NCSU insurance.
SUMMARY
 II.
Contracts
 Do
not sign or enter
contracts.
 Send them to NCSU
Contract Management for
review and signature
 Sponsored
research goes to
Research Administration
SUMMARY
 III.
Public Record/Private
 Keep
Private:
 Student
records - all info about
a student
 Personnel records - all info
used to evaluate an employee,
wherever kept

Almost everything else is a
public record and must be
disclosed/copied on request
SUMMARY
 IV.
Use of State Property
 State
cars may be driven only
by state employees on state
business
 Home use of state equipment
(laptops) is ONLY for state
business
 Telephones: no toll calls for
personal stuff, even if you
reimburse the State
 Misuse over $50 must be
reported to Legal
SUMMARY
 V.
Computer Use Rules
 Personal
use of NCSU
computer resources is OK for
authorized users
 But not for financial gain
 Consult with Legal before
looking at anyone’s personal
electronic information
 No paid ads; no spam; no
chain letters
 “Broadcast” emails need
approval (Hall or Worsley)
SUMMARY
 VI.
Copyright
 Applies
to electronic
works
 Get permission to use
others’ works
 Get advance agreement
on ownership of works
created with NCSU
resources
SUMMARY

VII. EMPLOYMENT LAW /
STUDENTS
 All
reports of harassment
must be investigated - call
NCSU Equal Opportunity
 Disabled
persons must be
accommodated- call
NCSU Equal Opportunity
SUMMARY

VII. EMPLOYMENT LAW /
STUDENTS

Medical leave - decide FMLA
rights before the leave

Grievances - read and follow
the proper procedure;
consult with Legal and HR

Disciplinary actions - same
as above
SUMMARY
 Resources
 NCSU
Legal 515-3071
 http://www.fis.ncsu.edu/ncs
ulegal/
 Insurance
& Risk Management
515-6122
 Academic Personnel Services
515-2193
 Human Resources 515-2135
 Contract Management 5156134
I. TORTS:
PRACTICAL INFO

WHEN THERE IS AN
ACCIDENT, INJURY , OR
DAMAGE:
 Get
help
 Make record of what
happened
 Report to supervisor
 Report to NCSU Insurance &
Risk Management
 Report to NC State Office of
Legal Affairs
I.
WHAT IS A
TORT?

A WRONG OR INJURY TO
ANOTHER,

APART FROM BREACH OF
CONTRACT,

WHICH A COURT CAN
REMEDY BY AWARDING
DAMAGES

e.g., a car wreck
I.
WHAT IS A
TORT?

1. DEFENDANT
MUST OWE A DUTY OF
CARE TO THE PLAINTIFF
 DUTY
OF CARE IS IMPOSED
BY LAW, NOT PRIVATE
AGREEMENT
 e.g.,
supervisor of a lab or
leader of a field trip must
attend to safety
I. WHAT IS A
TORT?

2. DEFENDANT
MUST HAVE BREACHED
THAT DUTY

3. THE BREACH OF
DUTY MUST BE THE
PROXIMATE CAUSE OF
HARM TO PLAINTIFF

4.
PLAINTIFF MUST
HAVE SUFFERED ACTUAL
DAMAGES
I.
TYPES OF
TORTS
 A.
NEGLIGENCE
 B.
GROSS NEGLIGENCE
 C.
INTENTIONAL
 D.
STRICT LIABILITY
I. NEGLIGENCE
TORTS

FAILURE TO USE SUCH
CARE AS A REASONABLY
PRUDENT PERSON
WOULD HAVE USED IN
SIMILAR
CIRCUMSTANCES

MOST MISTAKES AND
ACCIDENTS ARE DUE TO
“NEGLIGENCE”
I. TORTS PREMISES

For lawful visitors, you must
make a reasonable effort to
make premises safe. You are
not an insurer of their safety.

“INSPECT & CORRECT”
unsafe conditions where you
can. If it’s not feasible to
correct a danger, then give
warning.

Student Center & Library
cases
I. TORT DEFENSES
Sovereign immunity / Tort
Claim Act
 Defense of State Employees
Act
 Workers’ Compensation
 Contributory negligence
 Assumption of risk
 Liability waivers
 Volunteer immunity
 Public duty doctrine

I. SOVEREIGN
IMMUNITY

The State cannot be sued in
tort without its consent.
Only legislature can consent.

Only protects employees
sued in official capacity, not
in individual capacity

Not a defense to some
federal claims.
I. TORT CLAIM ACT

N.C. GENERAL STATUTE
143-291
State Agencies
 State Employees
 Agents of the State


May be sued for torts
committed when they act in
their official
I. TORT CLAIM ACT

BUT ONLY
 FOR
ORDINARY
NEGLIGENCE
 CAUSED BY STATE
EMPLOYEE OR AGENT
 ACTING WITHIN SCOPE
OF AUTHORIZED
SERVICE
– “AGENT” is a legal term for
non-employee who acts for
and is supervised by NCSU
I. TORT CLAIM ACT
 VOLUNTEERS
ARE
"AGENTS" IF A STATE
AGENCY EXERCISES
SUFFICIENT CONTROL
OVER THEM
– CONTROL DEPENDS ON
AMOUNT & TYPE OF
TRAINING, SUPERVISION,
RULES & LIMITS ON ACTIVITY
 INDEPENDENT
CONTRACTORS ARE NOT
“AGENTS”
I. TORT CLAIM ACT

STATE AGENCY PAYS
MAXIMUM OF $150,000
FOR ALL CLAIMS OF
INJURY AND DAMAGE TO
ANY ONE PERSON

PROTECTS THE STATE
AGENCY, NOT THE
INDIVIDUAL EMPLOYEE
OR AGENT
I. DEFENSE OF
STATE EMPLOYEES

N.C. General Statute 143300.3 et seq.

THE STATE MAY DEFEND
EMPLOYEES AND AGENTS
IN LAWSUITS BROUGHT
AGAINST THEM
PERSONALLY
I. DEFENSE OF
STATE EMPLOYEES
 COVERS
CIVIL AND
CRIMINAL LIABILITY
(NOT JUST TORTS)
 FOR
ACTS/OMISSIONS IN
THE SCOPE AND COURSE
OF YOUR AUTHORIZED
SERVICE
I. DEFENSE OF
STATE EMPLOYEES
 DOES
NOT COVER FRAUD,
CORRUPTION, MALICE

DEFENSE ONLY IF
ATTORNEY GENERAL
DECIDES IT’S IN BEST
INTEREST OF THE STATE
 STATE
AGENCY PAYS UP
TO $150,000 IF
EMPLOYEE/AGENT IS
FOUND LIABLE
I. WORKERS
COMPENSATION

WORKERS’ COMP IS THE
EXCLUSIVE REMEDY
WHEN IT APPLIES
 Exception:
harm caused by
intentional injury or gross
negligence may give rise to
tort suit

APPLIES TO EMPLOYEES
WHO HAVE ACCIDENTAL
INJURY, A TRAUMATIC
INCIDENT, OR
OCCUPATIONAL DISEASE
FROM WORK-RELATED
CAUSES
I. CONTRIBUTORY
NEGLIGENCE

WHERE BOTH PLAINTIFF
AND DEFENDANT WERE
NEGLIGENT, NC LAW
BARS LAWSUIT

Children under 7 are
incapable of contributory
negligence; rebuttable
presumption to the age of 14
I. ASSUMPTION OF
RISK

NO TORT LIABILITY IF
THE PARTIES HAD A
CONTRACTUAL
RELATIONSHIP AND
PLAINTIFF VOLUNTARILY
ACCEPTED RISKS

Will not apply if injured
party did not understand the
risks, lacked bargaining
power, or for public policy
reasons
I. LIABILITY WAIVER
or RELEASE

A CONTRACT NOT TO SUE

Uses words like “HOLD
HARMLESS,”
“INDEMNIFY,” “RELEASE,”
“WAIVE”

Courts often refuse to
enforce liability waivers
I. LIABILITY WAIVER
or RELEASE
 Do
not use waivers for
curricular activities
 Use
of waivers for
extracurricular activities
is optional -- each unit
decides for itself
I. LIABILITY
WAIVERS

1998 case of Fortson v.
McClellan:
 plaintiff
signed liability waiver
for college course on
motorcycle safety
 plaintiff was injured in the
course due to motorcycle
malfunction
 the court ruled: public interest
in motorcycle safety is enough
to invalidate the liability
waiver
I. IMMUNITY FOR
VOLUNTEERS

Executive Order No. 48
(1980)

Qualified Immunity for
Volunteers Act - G.S. 1539.10
First Aid Immunity - G.S. 9021.14
 Hazardous Material
Immunity - G.S. 143-215.104
 Car Accident Immunity G.S. 20-166(d)

I. INSURANCE
COVERAGE

The State pays for
 Excess
liability insurance
 Motor vehicle insurance
 miscellaneous other
policies

You must pay for other
coverage
I. INSURANCE
COVERAGE

STATE EXCESS LIABILITY
POLICY

Pays up to $11,000,000 per
employee, $11,000,000 per
occurrence, $25,000,000
annual aggregate

(MINUS $150,000 deductible)
I. INSURANCE
COVERAGE

STATE EXCESS LIABILITY
POLICY covers EMPLOYEES
and VOLUNTEERS if:

The Attorney General
decides they are covered
by the DEFENSE OF
STATE EMPLOYEES ACT,
and

No EXCLUSIONS apply.
I. INSURANCE
COVERAGE

EXCESS LIABILITY POLICY
EXCLUSIONS INCLUDE:
 Employee
claims covered by
Workers Compensation,
Unemployment compensation,
or disability benefits law
 Pollution,
asbestos, and other
toxic, hazardous, and
explosive materials
I. INSURANCE
COVERAGE

EXCLUSIONS CONTINUED
 Nuclear
materials and nuclear
facilities
 Automobiles, planes, boats
over 30 feet
 Medical malpractice
 Criminal acts
 One insured suing another
(except Equal Protection
claims)
 Sexual assault or battery
I. INSURANCE
COVERAGE

STATE MOTOR VEHICLE
INSURANCE POLICY

Covers damages to OTHER
PARTIES for accidents that:
involve use of a stateowned vehicle
 driven by a state employee
 on official business

I. INSURANCE
COVERAGE

State Motor Vehicle
Insurance PAYS
 Up
to $150,000 PER
CLAIMANT in NC
 Up
to $1 million per
claimant out-of-state
I. INSURANCE
COVERAGE

State Motor Vehicle
Insurance DOES NOT
COVER
 agents
or volunteers
 employees driving a non-state
car
 But,
up to $150,000 may be
provided - by NCSU - under
Defense of State Employees
Act if personal insurance is
exhausted.
II. CONTRACTS

ALMOST ANY
AGREEMENT MAY BE A
CONTRACT
 Oral
or written
 Even if no money involved
 Requirements are:
– Clear terms
– Mutual agreement on terms
– Legal obligations for all
parties (give value)
– Legally competent parties
II. CONTRACTS

UNIVERSITY CONTRACTS
CAN ONLY BE SIGNED BY
AUTHORIZED PERSONS
 Don’t
agree to a contract
unless you have written
permission to do so
 If
you sign a contract without
proper authorization, you may
be personally liable
II. CONTRACTS
 NC
STATE HAS A
CONTRACT PROCESS

http://www.fis.ncsu.edu/m
aterialsmgmt/purchasing/co
ntract.htm = Contract
Mangement

http://www2.ncsu.edu/ncs
u/research_outreach_extensi
on/table.html = Sponsored
Programs
II. CONTRACTS

TERMS TO AVOID
 The
State does not allow some
terms, and discourages others.

1) Limitations to contractor
liability

2) Waiver of Tort Claims
Act limits on the University's
liability
II. CONTRACTS

3) Hold harmless or
indemnification clauses in
favor of the contractor

4) Acceleration clauses; late
payment penalties, and
finance charges

5) Clauses that would make
the contract subject to the
laws or forums of another
state
II. CONTRACTS

6) Clauses that alter the law
of contract
 such
as changing the time
period to sue for breach of
contract,
 or stating that breach would
cause irreparable harm and
justify injunctive action,
 or liquidated damages

7) Mandatory dispute
resolution outside the courts
(like arbitration)
II. CONTRACTS

8) Clauses that would allow
the contractor to assign its
right to payment to another
party without subjecting the
other party to all the
defenses and claims the
University would have
against the contractor
II. CONTRACTS
Independent Contractor or
Employee?
 For personal service
contracts, always decide if
you have an “employee” or
an “independent contractor.”
This is an IRS requirement.


Employees are supervised in
how they perform;
contractors are responsible
only for results.
III. RECORDS PUBLIC
 Public
record law is in
N. C. General Statutes
Chapter 132
 Applies
to ALL records
made or received in
connection with NCSU
business
III. RECORDS PUBLIC

INCLUDES ANY FORMAT -- PAPER, WEB, Audio,
Video or Computer TAPE,
PHOTOS, EMAIL

You may not destroy any
records except as provided
by law (retention and
disposition schedule)
III. RECORDS PUBLIC

MUST ALLOW
INSPECTION OF PUBLIC
RECORDS

MUST MAKE COPIES, AT
COST, IN ANY FORM
REQUESTED (IF YOU CAN)

MUST DO SO PROMPTLY
III. RECORDS PUBLIC

NEW TWIST: State
agencies must make an
electronic index of all
computer databases created
after July 1, 1996.

See detailed procedures at:
http://www1.acs.ncsu.edu/
db_index/procedur.htm
III. RECORDS PRIVATE

1. Students - FERPA
(Buckley Amendment)
protects privacy records
 for
enrolled NCSU
students only
 privacy continues after
they leave NCSU
 but some “directory
information” on students
is public (if not blocked)
III. RECORDS PRIVATE
 FERPA
continued…
 university
officials have access
on “need to know” basis
 parents
have access only if
student is financial dependent
 Student
has right to see
his/her own record
 Get
written permission from
student before posting grades,
etc. with any identifying info
III. RECORDS PRIVATE
 2.
Personnel records private under state law
 Includes
all info use to
hire, end employment,
evaluate an employee
 covers
employee info
wherever located and in
whatever form
III. RECORDS PRIVATE

Some information is public:
 name,
age, date employed,
current position, salary, date
and amount of most recent
salary change, date of most
recent change in position,
name/place of current office

employee and supervisors
have access to personnel file

personnel info can also be
released under court order
and limited other exceptions
III. RECORDS PRIVATE
 3.
Trade secrets - defined
in G.S. 66-152
 4.
Others: Medical, law
enforcement, attorneyclient, etc.
III. RECORDS

DO NOT PROMISE THAT
RECORDS WILL BE
CONFIDENTIAL

KEEP A COPY OF ALL
RECORDS FOR THE
REQUIRED TIME

LEARN TO LIVE WITH
REQUESTS THAT ARE A
NUISANCE
III. OPEN MEETINGS
 State
law requires
most “official
meetings of public
bodies” be open to
public
G.S.
143-318.9 et seq.
III. OPEN MEETINGS
 Includes
meetings by
phone or computer
 Cannot
meet
informally to evade
purpose of law
III. OPEN MEETINGS
 “Public body” is
 any group established by a
vice chancellor or higher
 whose membership is not
just NCSU administrators
 that deals with matters on a
university-wide basis, and
 makes findings, decisions, or
recommendations on a
quasi-legislative, quasijudicial, policy, or
administrative action
III. OPEN MEETINGS
 Must
give advance
notice to public of
meetings
 Must
keep minutes
III. OPEN MEETINGS
 Meetings
can be closed
for certain purposes, if
proper procedure is
followed:
 to
discuss scholarships,
other awards
 attorney-client privilege.
 to discuss expansion of
business or industry
III. OPEN MEETINGS
 Closed
meetings
continued…
 to
discuss buying land,
leasing property, or
employment contracts
 personnel matters
 to review criminal
misconduct
 student records
III. OPEN MEETINGS
 See
http://www.ncsu.edu
/provost/governance/
openmeet/listmeet.ht
m
IV. USE of STATE
PROPERTY

State-owned passenger
vehicles may be driven
ONLY
 by
state employees
 on official state business.

No side trips for personal
purposes.
IV. USE of STATE
PROPERTY

Rules for passengers who are
not state employees:
 No
hitchhikers
 Driver may bring spouse,
kids (no pets)
 Others may ride IF
– (a) they have an interest in
the purpose of the trip, and
– (b) their presence is related
to state business.
IV. USE of STATE
PROPERTY

DRIVER IS RESPONSIBLE
FOR:
Traffic fines,
 parking fines,
 towing costs for improper
parking,
 safe-keeping of car .

IV. USE of STATE
PROPERTY
 Must
report all accidents
to the police (rule for use
of state-owned vehicles)
 Dollar
amount of damage
does not matter.
IV. USE of STATE
PROPERTY
 HOME
USE OF STATE
EQUIPMENT
 for
official State business
only
 must get approval of dean,
director, or dept. head
 over 30 days, must
complete Authorization
form
IV. USE of STATE
PROPERTY
 TELEPHONES
 incidental
personal use
is OK
 personal calls should
not result in any charge
to NC State, even if
employee plans on
reimbursing
IV. USE of STATE
PROPERTY
 MISUSE
OF STATE
PROPERTY
 It’s
a felony to embezzle,
misapply, or convert state
funds or property. G.S.
14-91 and 14-92
IV. USE of STATE
PROPERTY
 MISUSE
continued
 Misuse
of, and damage
to, state property in
excess of $50 must be
reported to Legal within
three days.
 Legal
must report to SBI.
G.S. 114-51
 includes charges for
personal phone calls
V. COMPUTER USE
 Authorized
users only -
no sharing of account/ID
 No
privacy - university
may inspect personal
files/messages when it has
reasonable suspicion of
misconduct AND dean or
higher approves
V. COMPUTER USE
 Work
files and email may
be accessed by employer
at any time.
 Work
files and email are
usually “public records”
- must be provided on
request; must be
preserved.
V. COMPUTER USE
 No
paid advertising on
web pages
 “Broadcast”
of email
requires approval of
vice chancellor or
higher
V. COMPUTER USE
 PERSONAL
USE OF
COMPUTERS
 OK
on personal time;
no work disruption
 Do
not imply university
endorsement.
 No
direct cost to the
university.
V. COMPUTER USE
 Personal
Use
 Not
for commercial
gain or private profit.
 Do
not send unsolicited
bulk email or chain
letters
 Personal
Web pages
must have disclaimer
VI. COPYRIGHT
 Copyright
is federal
law (17 USC 101, etc)
 Protects
expression of
an idea (not the idea)
when fixed in tangible
form
 for
written works,
software, art, sound
and visual recordings,
etc.
VI. COPYRIGHT
 Right
vests in author
(or author’s employer)
at time work is created
 Exclusive
right to
 reproduce
 distribute
 display
in public
 perform in public
 make derivative works
VI. COPYRIGHT
 Copyright
is separate
from ownership of a
physical copy
 Work
without
creativity has no
copyright: facts, data,
single words
VI. COPYRIGHT
 Copyright
can be
owned jointly
 Part
of a copyright can
be licensed or
transferred while other
parts are retained
VI. COPYRIGHT
 “Work
for Hire” means
employer owns
copyright in
employee’s work
 Also
applies to some
works created by
independent contractor
VI. COPYRIGHT
 NC
State policy gives
copyright to employees
in most cases
 BUT
the university
may own copyright
where it commissions a
work, or provides
major resources, etc.
VI. COPYRIGHT
 OWNERSHIP
When
NCSU
commissions a work
or provides major
resources, ALWAYS
get agreement on
copyright ownership
before work is created.
VI. COPYRIGHT
 OWNERSHIP
Agreements
on
copyright ownership
should be approved
by V.C. for Research
See part 12 of
http://www.fis.ncsu.edu/ncs
ulegal/14.01-patent.htm
VI. COPYRIGHT
 PERMISSION
 When
using others
works -- including
electronic files or
images from Web -- get
written permission
from copyright owner
VI. COPYRIGHT
 PERMISSION
 But
no permission
needed for:
 US
Government works
 simple hyperlinks
 display in face-to-face
teaching
 certain library copies
VI. COPYRIGHT
No
permission
needed for “fair
use”
purpose
of use
nature of work
amount of work used
effect on market
 Consult
with lawyer
VII. EMPLOYMENT
LAW / STUDENTS
Disabilities
Medical
leave
Harassment
Grievances
Discipline
These
are just the
tip of the iceberg
VII. EMPLOYMENT
LAW / STUDENTS
 Americans
with
Disabilities Act (ADA)
and Rehabilitation Act
sections 503 & 504
 prohibit
disability
discrimination in both
employment and
education
VII. EMPLOYMENT
LAW / STUDENTS
 Only
qualified
individuals with
disabilities are protected
by the law.
 “Qualified”
means the
person meets admission
or employment criteria
and can perform with or
without accommodation
VII. EMPLOYMENT
LAW / STUDENTS

“Disability” means:

A physical or mental
impairment that
substantially limits a major
life activity; or

A record of impairment; or

Regarded as having such an
impairment
VII. EMPLOYMENT
LAW / STUDENTS
 “Major
life activity”
includes walking,
seeing, hearing,
speaking, caring for
oneself, learning,
working.
 But
“working” means
broad class of jobs, not
a particular job
VII. EMPLOYMENT
LAW / STUDENTS
 NC
State has a duty to
make reasonable
accommodations to the
known physical or
mental limitations of an
individual.
 Exceptions:
 undue
hardship to the
university
 direct threat
VII. EMPLOYMENT
LAW / STUDENTS
“Reasonable accommodation”
means:

Any change in the work/learning
environment that enables an
individual to complete the
required tasks, or enjoy equal
benefits and opportunities. The
accommodation must be
effective, not necessarily the one
which is preferred. Not required
if it is primarily for personal use
or benefit.
VII. EMPLOYMENT
LAW / STUDENTS

NC State’s disability
accommodation process is at
http://www.ncsu.edu/provos
t/offices/affirm_action/#disa
bility
Types of accommodations include:
 acquire or modify equipment
 make facilities accessible to those
with disabilities
 allow leave, which may also
trigger the Family and Medical
Leave Act
VII. EMPLOYMENT
LAW / STUDENTS
 The
accommodation
process:
 1.
Employee or student
must self-identify as
disabled (unless apparent
like a wheelchair).
 DO
NOT ASSUME
disability.
 DO NOT ASK about
disability.
VII. EMPLOYMENT
LAW
 Accommodation
continued…
 2.
process
NCSU person who has
been told of disability and
asked for accommodation
should promptly consult
with Greg Holden in the
NCSU Equal Opportunity
office.
 Or with DSS or OLA
VII. EMPLOYMENT
LAW
 Accommodation
continued…
 3.
process
NC State can require
that the disability be
documented.
VII. EMPLOYMENT
LAW
 Accommodation
continued…
 4.
process
The university and the
person with disability
have a mutual
responsibility to discuss
reasonable
accommodation.
University ultimately
decides.
VII. EMPLOYMENT
LAW
 FAMILY
& MEDICAL
LEAVE ACT

ELIGIBLE EMPLOYEES get
12 WORK WEEKS OF
UNPAID LEAVE DURING
ANY 12 MONTH PERIOD
VII. EMPLOYMENT
LAW
 FMLA
 Can
run concurrently
with paid annual or sick
leave
 Supervisor
has duty to
designate it as FMLA
leave before it’s taken to
start 12 weeks running
VII. EMPLOYMENT
LAW
 FMLA
health conditions
 For
birth and first year care of
child
 For adoption or foster care
placement, and first year care,
of a child
 To care for a child, spouse, or
parent with a serious health
 For
the employee’s own
serious health condition
VII. EMPLOYMENT
LAW
 FMLA
 “Serious
health
condition” for FMLA
differs from ADA
“disability”

TEMPORARY MEDICAL
CONDITIONS OR DISABILITIES

(e.g., BROKEN BONES,
SPRAINED JOINTS, SORE
MUSCLES)
VII. EMPLOYMENT
LAW
 FMLA

ILLNESS REQUIRING ABSENCE
FROM WORK OF MORE THAN 3
DAYS AND THAT INVOLVES
CONTINUING TREATMENT (2 OR
MORE VISITS) OR SUPERVISION BY
A HEALTH CARE PROVIDER

or SERIOUS CHRONIC CONDITIONS
that could result in over 3 days’
incapacity if not treated (e.g.
CHEMOTHERAPY, DIALYSIS)

or SERIOUS EPISODIC CHRONIC
CONDITIONS (e.g., ASTHMA,
DIABETES, EPILEPSY, MIGRAINES)
VII. EMPLOYMENT
LAW
 FMLA

PRENATAL CARE AND
PREGNANCY (1st year care)

NOT COVERED (CASE LAW):
FOOD POISONING AND THE
FLU

NOT COVERED: VOLUNTARY
OR COSMETIC TREATMENT
VII. EMPLOYMENT
LAW
 TIME

OFF - RECOVERY
ADA: leave may be a
reasonable accommodation
 RETURN
TO SAME
POSITION

FMLA: up to 12 weeks leave
 RETURN
TO SAME OR
EQUIVALENT
POSITION
VII. EMPLOYMENT
LAW / STUDENTS
 CONFIDENTIALITY

ALL MEDICAL RECORDS
MUST BE KEPT SEPARATE
FROM OTHER PERSONNEL
RECORDS

THESE RECORDS MUST BE
KEPT CONFIDENTIAL
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT

Discrimination based upon
race, color, religion, sex,
national origin, age,
disability, or veteran
status violates law and
NCSU policy
 Harassment
is a form of
discrimination
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT
 NCSU
also prohibits
harassment based on
sexual orientation
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT


=
unwelcome conduct, based
upon prohibited category,
that is either:
quid pro quo
 or
hostile environment
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT
 Sexual
harassment
cases define:
 Quid
Pro Quo - when
specific
employment/education
benefits are promised or
withheld as a means of
coercing sexual favors.
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT
 Hostile
Environment =
unwelcome conduct so
pervasive or severe as to
create an offensive or
intimidating environment
or unreasonably interfere
with an individual’s
work/learning
performance
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT
- NCSU
liability to employees

1. Co-Worker or Third
Party -- standard is
whether NCSU knew or
should have known, and
failed to remedy
VII. EMPLOYMENT
LAW / STUDENTS
 NCSU
 2.
liable - employees
Supervisor - NCSU is
liable if there is a
“tangible job loss,” even
without knowledge.
 If no tangible job loss, the
employer may be liable
unless the affirmative
defense applies.
VII. EMPLOYMENT
LAW / STUDENTS
 Affirmative
Defense

1. NCSU exercised
reasonable care to prevent or
correct the harassment and

2. The victim unreasonably
failed to utilize the
preventive measures
established by NCSU, or to
avoid harm otherwise.
VII. EMPLOYMENT
LAW / STUDENTS
 NCSU
 Where
liable - students
student is
harassed, NCSU may
be liable if it has
“actual knowledge”
and is “deliberately
indifferent”
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT
 Procedures
-
at
http://www.fis.ncsu.edu/nc
sulegal/aregharassmentresolution.html
 Report
harassment to
unit head, NCSU
Equal Opportunity, or
HR
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT
 Cannot
-
guarantee
confidentiality -- there
is a duty to investigate
VII. EMPLOYMENT
LAW / STUDENTS
 HARASSMENT
-
 If
harassment exists, use
the discipline procedure
 Victims
may file
grievance at NCSU, and
may go to outside
agencies (EEOC, OAH,
OCR, court)
VII. EMPLOYMENT
LAW
 Grievances
 SPA
employee
procedure
 EPA
employee
procedure
 Student
procedure
VII. EMPLOYMENT
LAW
 Grievances
-- SPA
 http://www2.acs.ncsu.ed
u/hr/ppm1200.htm
 must
be filed in 15 days
(30 days for harassment)
 contact
Human Resources
immediately upon receipt
VII. EMPLOYMENT
LAW
 SPA
can grieve:
 unlawful
harassment
 violation of laws or
policies or work rules
 inaccurate personnel
file
 also:
suspension,
demotion, firing if not
probationary
VII. EMPLOYMENT
LAW
 EPA
Grievances
 Procedure
for faculty
and EPA professionals
is at

http://www.fis.ncsu.edu/nc
sulegal/24.01-grievance.htm
VII. EMPLOYMENT
LAW
 EPA
 to
Grievances
be used for unfair or
improper decisions
that affect the
employee’s
professional or
academic capacity
VII. EMPLOYMENT
LAW
 EPA
Grievances
 grievance
must be filed
w/in 8 months
 not for faculty nonreappoints unless
tenure-track
 not for Code 603 cases
 not to challenge policy
 other exclusions exist
VII. EMPLOYMENT
LAW
 DISCIPLINE
- SPA
employees
 http://www2.acs.ncsu.ed
u/hr/1201sd.htm
 document
poor
performance
 always
consult with HR
before discipline
VII. EMPLOYMENT
LAW
 DISCIPLINE
- Faculty
UNC Code sec 603 for
discharge, suspension,
demotion of faculty who
have contract or tenure
 only for incompetence,
neglect of duty, or
misconduct such that the
individual is unfit to serve

 consult
with Legal
VII. EMPLOYMENT
LAW
 DISCIPLINE:
Faculty
EPA Non -
 Discharge
for cause
procedure is similar to
UNC Code 603
 consult
with Legal
VII. EMPLOYMENT
LAW / STUDENTS
 DISCIPLINE
- STUDENT
 faculty
may remove
disruptive student from
classroom for that class
period
 Refer
to Office of Student
Conduct (Paul Cousins)
VIII. AFFIRMATIVE
ACTION

US Constitution’s Equal
Protection clause limits
NCSU ability to grant
preferences based on race,
ethnicity, and gender

Within these limits, NCSU
goal is to attract and retain
underrepresented minorities
and women - students and
employees
VIII. AFFIRMATIVE
ACTION

US Supreme Court in Bakke
held that racial preference is
OK if “narrowly tailored” to

(1) remedy present effects of
past discrimination at the
institution, or

(2) serve as one of several
factors to achieve diversity
VIII. AFFIRMATIVE
ACTION
 Subsequent
4th Circuit
cases have applied the
Bakke tests with extreme
stringency.
 Podberesky
 Tuttle
VIII. AFFIRMATIVE
ACTION

Current advice:

Targeted recruiting of
minorities and women is OK

Programs that appeal to
minorities are OK if open to
all

Avoid racially restrictive
scholarships or other benefits
MORE INFO ON THE
WEB

The Legal Affairs web site
has NC State policies and
legal topics.
 http://www.fis.ncsu.edu
/ncsulegal/