Cherie Berry, North Carolina’s Elevator Queen, Fails to Uphold Anti-Retaliation Laws

Robert Maughmer was psyched to be climbing utility poles for AT&T again in south Charlotte. After 13 months, the searing pain from an on-the-job hand injury was gone at last. But one day, in his third week back in early 2018, someone told Maughmer he was being laid off. Shaken, he said, he pulled out his cell phone and dialed his boss, not realizing until later that a program in his phone was recording the call.

That recording is the centerpiece of a two-fold legal battle that Maughmer has waged over the last two years while bouncing between low-paying jobs as he fought to hang onto his home.

He filed his initial complaint, accusing AT&T of dismissing him out of fear he would file a costly workers compensation claim, in September 2018 with the state Department of Labor under a 27-year-old worker rights law.

When the labor department rejected his complaint four days later, even before investigators could learn of the recording, Maughmer filed a broader suit in Wake County Superior Court. The suit claims that the agency, under fifth-term Republican Labor Commissioner Cherie Berry, has failed to adequately enforce the state law, the Retaliatory Employment Discrimination Act (REDA). The 1992 law was designed to shield workers from reprisals if they point out workplace dangers or threaten to saddle their employers with work-related medical costs.

After receipt of more than 10,000 complaints under the law since Berry took office, neither the Labor Department nor the state attorney general’s office that often represents the agency had brought a single retaliation case on behalf of a worker, officials of the two agencies said. The agency does try to mediate settlements between employers and many workers.

Even without taking action, the department can make or break private legal cases with its decisions about whether to issue a letter giving the “right to sue.” Over nine years and thousands of complaints, according to data obtained by McClatchy through a public records request, the agency’s investigations resulted in issuance of only 127 right-to-sue letters “with merit,” a designation that lawyers say can carry weight with civil court judges.

In initially dismissing Maughmer’s complaint, the labor department exerted its power to decline to authorize him to pursue damages from AT&T in civil court.

After he sued, the department reinstated Maughmer’s complaint. An investigation was not opened until this March, a delay the department blamed on a backlog of complaints. On May 13, a state investigator advised Maughmer’s Charlotte attorney, Josh Van Kampen, that there was not enough evidence to issue a right-to-sue letter with merit. Instead, on July 23, the agency wrote him stating that his case has “no merit” and gave him 90 days to sue, the investigator said.

Latest Retaliation Complaints Involve Coronavirus

Van Kampen called the outcome “outrageous” and said it “shows that Cherie Berry’s labor department is nothing more than a firewall to protect business.”

“We are barreling through a pandemic where workers are as vulnerable to being wrongfully terminated by their employers, as they are to be stricken by the virus,” he said. “North Carolinians need a labor department that vigorously enforces our state’s anti-retaliation laws.”

Berry, a former entrepreneur, took office with the motto, “The government that governs best governs least.” In announcing she wouldn’t seek a sixth four-year term this November, she said she considered the labor department to be “not a regulatory agency so much as we’re an agency that will partner with (businesses) and will help them achieve safe workplaces.”

A 2008 Charlotte Observer story said that in 2007, the budget for the bureau handling REDA cases was slashed to $618,000, down 25% from 1999, forcing cuts in investigators’ travel.

Van Kampen said Maughmer will file a civil suit against AT&T, but that his office has yet to do so because it’s been “inundated” with worker complaints of retaliation after they complained about unsafe conditions related to the coronavirus.

Littler, a global firm that represents businesses in labor matters, advised clients in April that the federal Occupational Safety and Health Administration reported receiving “hundreds of whistleblower complaints over the prior month relating to the coronavirus, including claims that employees were disciplined or terminated after reporting allegedly unsafe work practices or conditions.” The firm, which has an office in Charlotte, said widespread job layoffs during the coronavirus pandemic at the same time employees are complaining about safety risks, such as lack of social distancing or masks, could put employers in jeopardy of retaliation claims.

In a news release that month, OSHA reminded employers of worker whistleblower protections.

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Judge Yet to Rule on Worker’s Compensation Claims

Some 19 months since filing of the Wake County suit against Berry and more than 15 months after the parties submitted final legal briefs, Judge Bryan Collins has yet to rule or even to signal that he will.

Van Kampen had dubbed his client’s recording “the best smoking gun admission you’re going to find” in a retaliation case.

Maughmer provided a transcript of the recording to McClatchy and played it. According to the transcript, AT&T manager Charles Tucker tells Maughmer of his dismissal: “When you came back I had already had my mind made up on that … because uhhh, I was scared you would get hurt again.”

AT&T spokesman Jim Kimberly said the corporate giant has investigated Maughmer’s allegations “thoroughly and appropriately,” but declined to elaborate due to privacy concerns. Kimberly denied that the company punishes or dismisses employees who file workers’ compensation claims and said AT&T puts the safety and welfare of its 265,000 employees first.

In the suit before Judge Collins, Maughmer’s attorneys alleged that North Carolina’s Labor Department has deprived an unknown number of workers of their rights to legal redress in civil courts, a protection that’s supposed to be shielded by the REDA law.

Denying the Right to Sue

The anti-discrimination law was enacted a year after the state’s worst workplace disaster – the inferno that killed 25 employees trapped in a chicken processing plant in the tiny town of Hamlet because the fire doors were chained to deter theft.

The REDA law directs the Labor Department to investigate allegations that employees were wrongly fired or punished for speaking up about issues ranging from safety hazards and wages-and-hours violations to posing a risk of an injury claim.

The law passed after the Hamlet fire also gives Berry’s department authority to file civil suits against employers on behalf of wronged workers.

Maughmer’s attorneys accuse Berry, the defendant in the suit, of violating the state constitution’s guarantee of a legal “remedy” for every wronged citizen.

Citing the ongoing litigation, Labor Department spokeswoman Dolores Quesenberry has declined to comment on the case.

A central issue in the suit is whether 1998 regulations implementing the REDA law went too far in giving Labor Department officials authority to deny claimants the right to sue. The regulations were issued under a Democratic labor commissioner, Harry Payne, who preceded Berry.

Lawyers for state Attorney General Josh Stein, who represented the agency, say department officials relied on the regulations in trying to weed out complaints not covered under the law. For example, a towing operator filed a complaint alleging a locality wasn’t giving him enough business and was denied a right-to-sue letter.

The law requires the agency to share with employers allegations in each of the hundreds of REDA complaints it receives each year and to investigate the facts for up to 90 days. It then may dismiss the claim as unfounded or attempt to mediate a settlement. But unless a settlement is negotiated, the law requires the agency to issue letters authorizing those who complain to sue their employers regardless of the strength of their allegations.

In their court brief, lawyers for the Labor Department denied that any policy changes had occurred. However, they said that after Raleigh lawyer Harriet Hopkins was named deputy chief of the Retaliatory Employment Discrimination Bureau in October 2017, it was decided to add notices, in bolded, capital letters, advising workers such as Maughmer, whose complaint was initially rejected without an investigation, that they would not be issued a right-to-sue letter. Lawyers representing claimants say such a decision can put their clients at a disadvantage in court. Previously, the agency was silent on the issue.

Van Kampen said he had heard complaints about the department’s handling of REDA claims from lawyers across the state.

“I view this as the commissioner of labor telling injured workers that they can’t even get on the elevator at the courthouse to get up to the court,” Raleigh attorney Stewart Fisher, who filed the suit, said in a phone interview.

Lawyers for the Labor Department have argued the lawsuit is moot because the agency reopened Maughmer’s claim.

But while the department’s 2018 annual report said 97% of complaints were investigated and closed within 180 days of assignment to an investigator, Maughmer’s complaint was not investigated for more than 17 months after he originally filed it. Maughmer was interviewed on March 20, when an investigator finally got to hear the recording, Van Kampen said.

REDA Complaints Fell

The annual number of logged REDA complaints fell steadily over a nine-year period in North Carolina. However, complaints under a similar federal REDA law rose 39% from 2009 through 2018, and though they dipped in 2017 and 2018, they rose by another 11% in fiscal 2019.

Annual complaint totals in North Carolina, which had hovered for years around 800, declined from 790 in 2009 to 362 in 2017, a 45% drop, according to public records. There was a corresponding drop in the number of right-to-sue letters issued by the agency, from 554 to 220. The most recent available data, for the first eight months of 2018, showed 247 complaints.

McClatchy could obtain only limited information about the program from the department, none of which explained the declines.

Quesenberry cited the pending litigation for the department’s refusal to respond to a public records request in the spring of 2019 for more extensive data about the program, including the numbers of REDA complaints that have been rejected in recent years. Without a decision by Colliins, the agency’s posture has prevented the release of any further data on its REDA enforcement for nearly two years.

Few lawyers specializing in representing workers with REDA claims were willing to speak publicly about the program — ironically, for fear of retaliation when the Labor Department considered their future complaints.

Emily Spieler, a Northeastern University law school professor who headed a U.S. Department of Labor advisory panel on whistleblowers during the Obama administration, said nearly all complaints under the federal law have revolved around reprisals over workers’ compensation claims.

North Carolina Worker’s Compensation Laws Limit Benefits

Beginning more than a century ago, state legislatures across the country created workers’ compensation systems for sick or injured workers in return for their surrendering rights to sue their employers, except in rare cases.

But in 2011 North Carolina’s legislature, joining more than 30 other states in a rollback of workers’ compensation laws over the last decade, capped benefits at 500 weeks for most injured workers and made it more difficult for them to qualify.

Insurers and business allies cited the need to keep the state’s business climate competitive with surrounding states. Spokespeople for the North Carolina Chamber of Commerce and for Raleigh-based Builders Mutual Insurance Co., a leading underwriter of workers’ compensation insurance, declined to respond to requests for further comment about the legislation.

In 2013 and 2016, conservatives won passage of legislation that stripped state workers’ compensation hearing officers of their civil service protection and shortened their terms, opening the way for appointment of successors who were more sympathetic to businesses.

“There is this notion somehow that workers who are injured at work should be treated with suspicion,” and thus should be denied benefits “they were presumed to be entitled to under the old workers’ compensation laws,” Spieler said in a phone interview. “What these new laws are doing is they’re taking away workers’ rights to have essential benefits that pay for medical care, and for lost wages, but not restoring to them their right to sue their employers for negligence.”

REDA was designed to give some employees recourse.

Spieler and David Michaels, who headed the federal OSHA program under Obama, both declined to speculate about the reasons that North Carolina’s program has shrunk.

It is not because retaliation is less common, Spieler said. To the contrary, anecdotal reports from across the country suggest that workplace retaliation remains “rampant,” she said.

Retaliation has proliferated “because workers have no protection,” Spieler said. “The laws are weak. Many workers lack the resources to engage a lawyer.”

While other countries have adopted “laws against discipline and discharge (that) are much stronger generally,” she said, nearly all U.S. states including North Carolina allow employers to dismiss workers without cause, subject to exceptions in laws such as REDA.

Durham attorney Faith Herndon, who occasionally handles employee REDA complaints, said the state has a reputation for failing to aggressively investigate such charges that dates back to before Berry took the helm 19 ½ years ago.

“Never have I had a useful investigation from them. Ever,” she said. “I’ve been doing this for 25 years.”

Fisher, Maughmer’s attorney, said his office receives an average of one call per week about workers who say they were fired over a compensation claim or a company’s refusal to give a light-duty assignment to an injured worker.

“In North Carolina,” he said, “employers are pretty brazen when it comes to retaliating against people who file workers’ compensation claims.”

Charlotte attorney Chris Strianese said one of his clients, a pregnant worker, was denied a right-to-sue letter over her charge that an employer threatened to fire her unless she had an abortion.

Strianese called it “infuriating” that department officials are able to dissuade the courts from deciding issues that test the limits of the REDA law

Cherie Berry Doesn't Lift you UpPerilous Work with No Protections

For Maughmer and other AT&T pole climbers, running coaxial cable along lines of utility poles is dangerous work.

Ironically, Maughmer said he hurt his hand on the ground, when he slid down a 12-foot embankment in October 2016. Doctors determined he had detached a ligament from several bones.

As the weeks passed, the pain didn’t. But Maughmer felt he had to draw his paycheck. He said his fiancée, Claire Blackwell, is severely diabetic and on full disability from the Social Security Administration, having received three organ transplants.

Unable to climb utility poles, he battled on for nearly four months, sitting in an aerial bucket, working one-handed to help connect the cables.

Late in the day, Maughmer said, the pain would grow more intense until “it was all I could think of.”

Finally, in February 2017, he underwent surgery to reattach the ligament.

The department’s Sept. 25, 2018, letter notifying Maughmer that his complaint was being administratively closed cited his failure to file an injury claim with the company.

Maughmer said that based on the way an injured co-worker was treated, he feared he would be fired if he filed an injury claim and chose not to do so. But he said he mentioned the injury to his boss before a morning meeting of his crew.

Van Kampen said AT&T then had a duty to report the injury to its workers’ compensation insurance carrier, but did not.

On the recording, supervisor Tucker tells Maughmer, “You never said you did it on the job but you know, but I feel like you did,” an apparent reference to where Maughmer got hurt.

Van Kampen called it an admission of “an irrational fear that a worker is prone to injury, based on an injury in the past.”

AT&T spokesman Kimberly said Maughmer was a “temporary outside plant technician.”

Van Kampen called that “a red herring,” saying retaliation against any worker is illegal. He noted that Maughmer had worked for AT&T for a year and a half before the injury and other temporary workers were “still there in the same capacity” when Maughmer lost his job.

Maughmer, 38, said in an interview that loss of the $72,000-a-year job has threatened to cost him his south Charlotte town house. Although he had held a job since he was 15, he said, for more than a year, he was unable to find a 20- to 35-hour position with hourly pay even close to what he earned at AT&T.

Maughmer finally secured a full-time job beginning in mid-May, as a mail carrier for the U.S. Postal Service.

During his long recovery from his hand injury, he said, he first drew $300 a week in unemployment benefits and then “half a paycheck” through AT&T’s short-term disability coverage. His $14,000 in savings was swallowed by mortgage payments on his house and other bills.

He sold off his classic Jeep and his high school ring and brought in additional money by selling blood plasma. He and Blackwell changed their diets to save on groceries, he said.

While looking for a position, he managed to bring in a little over $2,000 some months by working seven days a week doing odd jobs and making deliveries for Postmates, DoorDash and Uber Eats, he said. Maughmer said, though, that his 2019 income totaled $13,000.

He said he only hung on to the house because his mortgage lender agreed to shift billings for his tardy payments to the end of the loan term and gave him another three months’ forbearance due to the pandemic. A lifelong friend loaned him $2,000 to pay off eight months of unpaid installments on his second mortgage after that lender, Bank of America, gave notice it would seek to foreclose, he said.

“I’ve broken down and curled up in a ball in my closet from this action,” he said.

Originally Published by Greg Gordan for The News & Observer.