I have an employee at my retail clothing store in Charlotte who I believe has a drinking problem. I’m considering firing him, but want to make sure I’m on solid HR footing. What are my options?

Call Corby Law today and obtain experienced and knowledgeable legal counsel regarding the business law in North Carolina governing the hiring and firing of employees.  Although North Carolina is an “at will” employment state and the employment-at-will doctrine allows most employers to fire employees at their discretion, this does not mean that you can fire anyone when you feel like it.  The reason given for the employment termination must be legal.

For example, you may not fire an employee because you believe that employee has a drinking problem.  Alcoholism is considered a disability and thus is protected under the Americans with Disabilities Act (ADA).  However, you can certainly fire an employee for drinking on the job or failing to follow company rules because of alcohol consumption.  The rule of thumb here is that employers are often able to legally draw the line when the behavior of the employee results in misconduct on the job.  Still even in these cases, it is most often in your best interests to seek experienced legal counsel from an experienced business attorney.

As an employer, under the ADA, you are responsible for accommodating an employee’s disability.  For alcoholic employees this means that you must give them the opportunity to seek help.

Also, in regard to alcoholism, you could be required to show that you have provided the employee with a reasonable chance for rehabilitation.

You could also possibly be held liable for firing this employee under an implied employment contract or public policy firing restrictions.  An implied contract results when the court agrees with the defendant that the employer made some promise that was broken when the employee was fired.  The court implies there was a contract even though you may have not knowingly made one with the employee and even though the promise is not in writing.

Whether written or spoken, your words can get you into trouble.  If any firing is inconsistent with any stated federal or state policy or interest, the fired employee has a potential claim.

Call Corby Law today and discuss your concerns with an experienced business lawyer.  There are many steps that you can take to make sure that you are following employment law when terminating an employee.  Knowing what these steps are can help prevent costly lawsuits.

I own a commercial shopping strip in Charlotte. One of my restaurant tenants (and me) are about to be sued because a patron slipped and fell after a worker had cleaned up a spill. What are my options for defending myself?

Your first option for defending yourself in this premises liability case is to seek the legal counsel of experienced business attorneys such as those from Corby Law.  Slip and fall law is a subset of personal injury law and is controlled by the basic rules of negligence.  This area of business law covers any accident resulting from the victim encountering an unsafe condition underfoot.

Direct causes include such things as spilled food, cracked sidewalks, broken floor tiles, uneven steps and potholes.  Indirect causes may include such things as missing handrails or dim lighting.  Although fault can usually be traced to an individual employee or tenant, there are often other responsible parties who can also be named in the lawsuit.  These people may include the business owner, the property manager, or the owner of the property—which in this case is you.

However, court rulings have established precedence in similar cases that point to a successful outcome for you as the owner of this commercial shopping strip.  It has been established, for example, that occupiers of the land other than the owner may have a duty to keep the land safe.  The Supreme Court of North Carolina has held that “it is the control and not the ownership which determines the liability.”  Green v. Duke Power Co., 305 N.C. 603, 611, 612 (1982).

A residential or commercial tenant generally has a duty toward a guest on the property.  “The general and basic rule is that when third parties are injured as the result of any defective condition in leased premises he may have recourse against the lessee, but not against the lessor.”  Wilson v. Dowtin, 215 N.C. 547, 550, 2 S.E. 2d 576, 577 (1939).

“The general rule is that the tenant who occupies the premises is liable for injury caused by the defective condition.”  Markham v. Duke Land & Imp. Co., 201 N.C. 117, 122 (1931) Note:  In this case, the lessee was found liable for a defective condition in sidewalk, even though the condition existed at time of lease; manager admitted knowledge of defect.

Call Corby Law today and talk with a qualified and experienced Charlotte business lawyer who can explain to you the many options available for defending yourself in this particular case.

Could Social Media Affect the Outcome of My Divorce?

While social media can be a great way to connect with friends, family, and other loved ones, it can actually be more trouble than it’s worth. This is especially true when you’re going through a divorce. All of the things that you say on social media websites could actually have an effect on what you get in your divorce settlement. If you’re worried that your social media accounts may have an adverse effect on your divorce proceedings, you should contact a Charlotte lawyer at Corby Law to discuss the issue. That’s the best way to ensure that you’re protected throughout your divorce proceedings.

Online Clues

In reality, what your social media profiles might do during your divorce proceedings is shed light on your behavior during your marriage. While you may have nothing to hide, your social media profiles will probably be analyzed by your spouse’s lawyers and even the slightest hint of infidelity or other funny business could get you into trouble. One common thing that social media posts can point to are hidden assets, and this can be a big deal during a divorce.

Emails and Text Messages

In addition to your Twitter, Facebook, or other social media profiles, your text messages and your emails may be subpoenaed during a divorce. That means that things found in these private forms of communication could be used to build a case against you, or you could use these things to build a case against your spouse. These forms of communication can become extremely problematic if they communicate a different story than the one that has been given in person. Lying to a judge during a divorce proceeding can have serious consequence, so it’s best to always tell the truth and be honest, even if it makes you feel uncomfortable to share such private details.

It Goes Both Ways

Social media postings can be used against you or your spouse in court. As such, you need to be careful about the things that you post online for others to see. You should never post anything on the Internet that you wouldn’t be comfortable sharing with the rest of the world. If you want to learn more about how social media could affect the outcome of your divorce, turn to the attorneys at Corby Law. Our Charlotte attorneys are here to answer all of your questions and provide you with the best possible guidance for a successful outcome in your divorce proceedings.

 

Employment Contract Disputes

Whether you are an employer or an employee involved in a contract dispute, Charlotte contract lawyers at Colby Law have successfully represented clients in numerous cases including employment contract disputes.  We are committed to providing you with results oriented representation that protects your interests.  If we cannot resolve your employment contract dispute through negotiation, we are fully prepared to represent you in a court of law.

North Carolina is an employment at-will state.  This means the employer can terminate an employee at any time and for any reason other than an illegal reason for actions such as whistle blowing, retaliating for filing a workers’ compensation claim, or taking actions for discriminatory reasons.  However, if there is an employment contract between the employer and the employee, then termination of the employee is restricted by common law or by the termination provisions of the contract.

The best way to protect your interests is to make sure the employment contract you provide your employees, or that you sign as an employee is one that is fair, legal, and serves the best interests of all.  Colby business attorneys can assist you in drafting, reviewing, or asserting your rights before you enter an agreement and also in the event that after signing, a dispute arises.  Our Charlotte business law firm is experienced in counseling individuals who are preparing to enter into an employment agreement here in North Carolina.

Our Charlotte contract attorneys also assist businesses in writing employment contracts and in reviewing their existing employment contract to ascertain if indeed a breach has occurred.   Breach of employment contract covers a wide range of disputes:  violation of the terms of non-compete, failure to provide severance payment, wrongful termination, etc.  If an employee, or former employee, is not complying with a valid restrictive covenant, the employer may have the right to sue.

The wording and content of the employment contact as well as that of any other document such as a hiring letter is key to the resolution of any employment contract dispute.  The court may examine other written documents exchanged between the employer and employee to make this determination.

Call Corby Law today.  Our experienced Charlotte business attorneys can assist in providing legal advice to avoid contract disputes and we can assist you in resolving a contract dispute should you already be involved in one.

How can I obtain money for a start up company?

Obtaining money to start a company is often more difficult than coming up with the idea for a start up company in the first place.  The experienced Charlotte business attorneys at Corby Law can help you find the financial resources you need.  We will work with you to craft your pitch and write the business documents you need to support it.  Our experienced Charlotte business lawyers know what the people who hand out money want to see before making that yes decision you want to hear.

The optimal stage of development for a company to be in prior to requesting funding is just after “Proof of Concept.”  When you complete this stage, others will be able to see the value of your product or services.  Proof of Concept involves research to prove that your core ideas are workable.  Sometimes providing proof of concept involves building a prototype.  However, Proof of Concept (POC) always includes documented evidence that a potential product or service can be successful and that’s where Corby Law with our experienced Charlotte lawyers and their proved research skills can help you.

We can review your current POC documentation and we can also help you craft your POC documentation from scratch if all you have right now is that great idea in your head.  More often than not, obtaining money for a start up company involves writing a proposal to a particular capital group that is seeking new ideas for investment.

To successfully submit proposals to potential funders, you must first meet their eligibility requirements as well as other requirements as stated by their group. Then, of course, you must provide substantial proof of your concept and show in your documentation that you understand correct uses of funds should they be granted.  In general, most funders want the money they provide to be used for business related expenses only and not for research activities; these funds should not be intended for founder’s salaries.  Examples of typical uses of funds include business planning, market analysis, beta prototype and intellectual property protection such as legal fees for patent filing.

Our experienced Charlotte contract lawyers can assist you in the process of obtaining the funds you need from start to finish—from finding funders to signing an agreement with them.  Perhaps most important of all, we will be right by your side to make sure that you do not “give away the store” in any contract you may be required to sign when obtaining these funds.  Call Corby Law today.

 

 

The importance of guarding against product liability claims.

Product liability law holds manufacturers legally responsible for damages arising from use of their defective products.  Warning labels rarely protect you from liability if your product is defective. Our business lawyers at Corby are qualified to assist you in guarding your company against product liability claims

Liability protection should be built into the careful design of your product by building safety into the product and keeping liability questions in the forefront of each step in the design process

Should liability claims be made against you in court, it is to your distinct advantage to have the representation of highly experienced business attorneys such as those from Corby Law who are familiar with product liability law.  Such claims often have serious implications and outcomes for manufacturers.

The person making the claims base their recovery of damages on three legal theories:  1) negligence 2) breach of warranty or 3) strict liability.  Nearly all product liability cases are based on strict liability because this is the most simple and easiest to prove in a court of law.

Negligence is the failure to exercise ordinary care to avoid injuring someone to whom you own the duty of care.  As a general principle this applies to everyone in the chain of distribution:  the manufacturer, the company that uses the product to assemble something without discovering the defect, and the retailer who should exercise greater care in offering such products to sale to the public.

The duty to exercise care involves every phase of getting the product to the public—from its design, to the container for the product as well as its warnings and directions for use.

Breach of Warranty In general, the law assumes the seller always provides some kind of warranty (either express or implied) concerning the product he sells and that he should be required to meet the obligation created by the warranty.

The law governing the sale of goods and warranties is uniform from state to state.  The law governing the sale of goods is Article 2 of the Uniform Commercial Code

Strict Liability

Strict Liability is liability without fault for an injury proximately caused by a product that is defective and not reasonably safe.  In establishing strict liability, the injured plaintiff need only prove that 1) the product was defective and 2) the product defect was the cause of the injury.  The focus at the trial is the product—not the conduct of the manufacturer.  From this legal viewpoint it does not matter whether the manufacturer took every possible precaution.  If the product was defective and caused an injury, the manufacturer is liable.

Call Corby Law today and learn how our experienced product liability lawyers can help you protect your business.  We know the law.  You know your product.  Between the two of us we will make a great team.

 

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I’m a builder and one of my clients is suing me for alleged breach of contract. They’re demanding that my company pay them “restitution” and “reliance damages”. What do these terms mean in North Carolina?

In contract law, the purpose of awarding contract damages is to compensate the injured party and not to punish the breaching party. However, a history of such cases in North Carolina has a wide range of interpretation in regard to the limits of this general guiding principle as it applies to amounts of money awarded to plaintiffs.  Thus, it is in your best interest to seek the legal counsel of a Charlotte contract law firm such as Corby Law today.

Our Charlotte contract lawyer would begin by first listening to your side of the story.  Next our Corby Charlotte contract attorney, along with members of our staff, would review the terms of the related contract to determine if indeed a breach of the contract has occurred. It all depends on the specifics of the contract.

In the event a breach of contract has occurred, the outcome of your case also hinges on whether the breach is categorized as either “material” or “immaterial.”  An example of “immaterial” might be if you promised to finish the job on a Monday and you finished the following Tuesday afternoon.  However, if the contract clearly stated that it was essential the job be completed by Monday, the breach would likely be categorized as “material” and most likely your client would be entitled to some compensation under the law.

Restitution

Restitution is a type of remedy available in criminal as well as civil lawsuits.  It is calculated based on the gains of the defendant, rather than the plaintiff’s losses.   A party that has breached a valid contract may be ordered to pay restitution. The amount will be calculated based on the amount you as the contractor have gained from the breach, which is usually the amount stated in the contract prices.

Reliance Damages

Damages based on the reliance, compensate for losses or harms incurred or suffered based on the assumption that the promise of the breaching party would be kept.  Reliance interest damages put your client in the same position as before he entered into the contract as opposed to the position as if the contract existed but had not been breached.  Most plaintiffs do not seek reliance damages if expectation damages are available.  They generally seek reliance damages when they are unable to demonstrate the amount of expectation damages to a substantial certainty.

Expectation Damages The purpose of expectation damages is to put your client in the position they would have been in had you fulfilled the contract.  The measure of these damages is the difference between what was actually given to your client and what was promised in the contract.  These calculations cannot be based on guesses.  In these cases the law requires reasonable certainty regarding these amounts of damage.

My leasing company in Charlotte is owed 3 months back rent from a retail tenant. The tenant claims we haven’t made several repairs or improvements to their unit. They’re threatening to vacate if we don’t let them out of their contract. What should we do?

The laws governing the relationship between a landlord and a tenant are complex and come from several sources including the law of contracts (as a lease is a type of contract), the law of negligence, North Carolina General Statutes, local health, safety and building codes, certain federal laws, and the Constitutions of the USA and the State of North Carolina.  Call an experienced Charlotte contract attorney from the experienced Charlotte contract law firm of Corby Law today.  You need expert legal counsel from a Charlotte contract lawyer who is also familiar with our local building and housing codes as these codes may vary from municipality to municipality.

The North Carolina Residential Rental Agreements Act of 1977 defines the duties of both the landlord and the tenant with respect to the maintenance and repair of the premises.  Your legal duties as a landlord are specifically listed under North Carolina Statute 42-42(a).

1) Comply with the current applicable building and housing codes.

2) Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.

3) Keep all common areas of the premise in safe condition; and

4) Maintain in good and safe working order and promptly repair all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances supplied or required to be supplied by Landlord provided that notification of need repairs is made to the landlord in writing by the tenant except in emergency situations.

5) Provide operable smoke detectors and replace or repair smoke detectors within 15 days of receipt of notification of need for repair.

Furthermore, according to North Carolina Statute 42-42(b) a landlord cannot excuse himself from these duties though a special clause inserted into the lease.  Such clauses are not binding.

The good news for you is that the State of North Carolina does not allow tenants to withhold rent payments unless the landlord consents to it in writing or when a judge allows it to be withheld pursuant to a court order.

The tenant’s recourse when they feel the landlord is not fulfilling his duties is to file a small claims suit against the landlord asking permission to withhold part of the next month’s rent payment to cover the costs paid by the tenant for repairs or to compensate the tenant for the reduced rental value of the dwelling.

 

Call Corby Law today and obtain the legal counsel you need and deserve.

Step-Parent Adoption Rights in North Carolina

In North Carolina, it’s possible for a stepparent to adopt his or her spouse’s biological children. In many cases, stepparents choose to do this because they want to give their stepchildren a stable home that consists of two parents. The result of adopting a stepchild or stepchildren means that the non-custodial parent cuts all parental ties with the child or children. Because this process involves a severance of ties with a parent, it can be difficult and complex to navigate. If you’re wondering what kind of adoption rights stepparents might have, a Charlotte lawyer can help. When you turn to Corby Law for assistance with stepparent adoption issues, you’ll get answers you can trust.

The Step-Parent Adoption Process

In order to adopt a spouse’s children from a previous marriage, the stepparent must file a petition in the county in which he or she has been a resident of for the past six months. This step is necessary so that North Carolina jurisdiction can be established in the case. In some cases, a pre-placement assessment must also be submitted along with the petition, but that’s not true in every situation. If the stepparent has been married to the parent of the child or children for more than two years and the child has been in the residence for all of this time, then the court can waive this portion of the requirement. Once the petition and the assessment have been submitted, then the process can move forward.

Getting Consent for Adoption

If a stepparent wants to adopt a child, his or her spouse, the custodial parent, must give written permission. In addition to this, the stepparent must also gain the consent of the non-custodial parent. In some cases, getting this consent can be difficult and it changes the step-parent adoption process quite a bit. In cases like this, the stepparent must file for a termination of the other parent’s rights. In order for this to be granted, there needs to be some reason that the parental rights should be terminated. Some of the common reasons for parental right termination

Step-parent adoptions can be difficult to deal with, and it’s never a good idea to go through the process without the assistance of a qualified Charlotte attorney. At Corby Law, we’re here to help you navigate all of the complexities that go along with step-parent adoptions. Get in touch with us today to learn more about how we can help you make this process smooth and easy on everyone involved!

My Company is about to make several high level hires across North Carolina. These will be bound by an employment contract. We are developing a company HR handbook. Are there specific guidelines and state laws we need to be aware of when putting this book and the employment contracts together?

Yes. There are many guidelines and state laws here in North Carolina that employers should be aware of when creating an HR handbook. In addition to these guidelines, there are many federal guidelines as well. A corporate business law firm such as The Law Office of Stephen M. Corby in Charlotte, North Carolina, can provide experienced, competent guidance in these matters dealing with business law and contract law.

For one example, Section 1512 of the Affordable Care Act (ACA) requires applicable employers to provide all employees written notice of the following:

• The existence of the Marketplace (referred to by the ACA as the Exchange);
• Potential eligibility for premium tax credit under 36B of the Internal Revenue Code if the employer purchases a qualified health plan through the Marketplace;
• and loss of employer contribution for the purchase of a qualified health plan through the Marketplace.

Sources available to guide employers are available from the NC State Personnel Manual, Department of Health and Human Services (DHHS) Directives, and the DHHS HR Policy Manual.

According to the Office of the State Human Resources, the fourteen recommended sections for an HR manual are as follows:
• Section 1 EEO
• Section 2 Recruitment and Selection Workforce Planning
• Section 3 Employment and Records
• Section 4 Salary Administration
• Section 5 Leave
• Section 6 Employee Benefits and Awards
• Section 7 Discipline, Appeals and Grievances
• Section 8 Workplace Environment, Health, Wellness and Work/Life
• Section 9 Training
• Section 10 Performance Management
• Section 11 Separation
• Section 12 Classification
• Section 13 State Human Resources System
• Section 14 Statutory Provisions

SOURCE: http://www.oshr.nc.gov/Guide/Policies/policies.htm

It would be extremely prudent to consult with a business contract lawyer from Corby Law prior to issuing any employee contracts. Unless these are written in the strict accordance with the law, they will not stand up in a court of law. Call us when you have your HR manual and employee contracts written. Our lawyers are qualified to review and advise on any business document.

The contracts you establish between your company and its employees are particularly important. For example, an Employment Agreement establishes the goals, financial benefits and expectations that define the relationship between the employer and the employee. This agreement should detail all the significant matters related to the employment relationship which includes the type of employment, payment structure and schedule, vacation, other benefits, employee duties and obligations to the company, ownership of intellectual property, and confidentiality provisions.

You can avoid most contract disputes by having business contracts and other documents reviewed by qualified legal counsel.

However, should you be involved in a contract dispute, regardless the type or what the stakes, the contract litigation lawyers of The Law Office of Stephen M. Corby are well qualified to render intelligent opinions and advocate for a favorable outcome on your behalf. Call Corby Law firm in Charlotte today at 704-248-7683.