
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promotion to sergeant sought to grieve that failure after learning that the official examination answers were based on outdated law, while his answers were based on law prevailing at the time he was tested.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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June 2
Proposed budgets for DOL and NLRB show cuts on the horizon; Oregon law requiring LPAs in cannabis dispensaries struck down.
June 1
In today’s news and commentary, the Ninth Circuit upholds a preliminary injunction against the Trump Administration, a federal judge vacates parts of the EEOC’s pregnancy accommodation rules, and video game workers reach a tentative agreement with Microsoft. In a 2-1 decision issued on Friday, the Ninth Circuit upheld a preliminary injunction against the Trump Administration […]
May 30
Trump's tariffs temporarily reinstated after brief nationwide injunction; Louisiana Bill targets payroll deduction of union dues; Colorado Supreme Court to consider a self-defense exception to at-will employment
May 29
AFGE argues termination of collective bargaining agreement violates the union’s First Amendment rights; agricultural workers challenge card check laws; and the California Court of Appeal reaffirms San Francisco city workers’ right to strike.
May 28
A proposal to make the NLRB purely adjudicatory; a work stoppage among court-appointed lawyers in Massachusetts; portable benefits laws gain ground
May 27
a judge extends a pause on the Trump Administration’s mass-layoffs, the Fifth Circuit refuses to enforce an NLRB order, and the Texas Supreme court extends workplace discrimination suits to co-workers.