Jonathan R. Harkavy has taught labor and employment law at Wake Forest School of Law and corporate finance at Duke Law School and the University of North Carolina at Chapel Hill School of Law. During the summers of 2018 and 2019, he has been a visiting research fellow in the Labor and Worklife Program at Harvard Law School.
To punctuate Aubrey Sparks’ insightful May 16, 2018, post about state constitutions as a source of workers’ rights, take a look at what the North Carolina Supreme Court just did. The Court held that a long-ignored provision of the North Carolina Constitution supports a public employee’s attempt to grieve his employer’s denial of a promotion. This remarkable application of a state constitution thus underscores one of Sparks’ key points—that broad policy declarations in existing state constitutional provisions may prove to be useful tools for ensuring workplace justice.
In Tully v. City of Wilmington, N.C, S.E. 2d (No. 348A16, March 2, 2018), a city police officer who failed a written examination for promotion to sergeant sought to grieve that failure after learning that the official examination answers were based on outdated law, while his answers were based on law prevailing at the time he was tested. Although the city’s policy manual provided for an appeal of “any portion” of the selection process, the city manager told him that test answers were not grievable, and a supervisor added that “[e]ven if you are correct, there is nothing that can be done.” The police officer sued the city on the ground that he never had a “true opportunity to grieve his denial of promotion based on his answers to the Sergeant’s test.” One of the officer’s two claims was based on Article I, Section 1 of the North Carolina Constitution, which states that “[w]e hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness” (emphasis added). Specifically, the officer claimed that city’s arbitrary and irrational refusal to follow its own policy manual violated his state constitutional “right to the enjoyment of the fruits of his own labor.”
Basing its decision explicitly on the state constitution’s guarantee of the right to enjoy the fruits of one’s labor and acknowledging that applying this guarantee in a workplace promotion case is an issue of first impression, the North Carolina Supreme Court concluded that the officer had successfully stated a claim under the state constitution. And, while recognizing that the city was acting simply as an employer and not as a sovereign or regulator, the Court said that the “fruits of one’s own labor” clause applies whenever a governmental entity “acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place.” Accordingly, the Court remanded the case for additional proceedings, while specifying parameters on pleading a claim under the “fruits of their own labor” clause.
As Sparks’ post explained in citing a similar provision of the Alaska constitution (i.e., the “natural right to the enjoyment of the rewards of their own industry”), such a broad declaration of policy in a state constitution may prove to be valuable to workers if additional litigation “pushes the courts” to determine more precisely what the “enjoyment” of one’s own industry—or the fruits of one’s own labor—means. Well, that push is on now. The North Carolina Supreme Court’s decision in Tully v. City of Wilmington is assuredly a step in a positive direction for workers’ rights, and lawyers would be well-advised to heed Sparks’ call for using state constitutional law in a creative and advantageous effort in pursuit of workplace justice.
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March 16
Starbucks' union negotiations are resurrected; jobs data is released.
March 15
A U.S. District Court issues a preliminary injunction against the Department of Veterans Affairs for terminating its collective bargaining agreement, and SEIU files a lawsuit against DHS for effectively terminating immigrant workers at Boston Logan International Airport.
March 13
Republican Senators urge changes on OSHA heat standard; OpenAI and building trades announce partnership on data center construction; forced labor investigations could lead to new tariffs
March 12
EPA terminates contract with second-largest union; Florida advances bill restricting public sector unions; Trump administration seeks Supreme Court assistance in TPS termination.
March 11
The partial government shutdown results in TSA agents losing their first full paycheck; the Fifth Circuit upholds the certification of a class of former United Airline workers who were placed on unpaid leave for declining to receive the COVID-19 vaccine for religious reasons during the pandemic; and an academic group files a lawsuit against the State Department over a policy that revokes and denies visas to noncitizens for their work in fact-checking and content moderation.
March 10
Court rules Kari Lake unlawfully led USAGM, voiding mass layoffs; Florida Senate passes bill tightening union recertification rules; Fifth Circuit revives whistleblower suit against Lockheed Martin.