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VOLUME 33 NUMBER 54 ■
network
JANUARY 31, 2022 ■ $8.50
COA affirms denial of solar energy application
“If we did not mandate that all straight wages be paid, we might encourage employers to simply shift wages to the ‘overtime’ bucket and reduce the wages for straight time promised by the employment agreement.”
■ BY CORREY E. STEPHENSON BridgeTower Media Newswires
EMS, employee for Cleveland Emergency Services. EMS personnel are assigned to a 21-day repeating schedule in which each employee works a 24-hour shift followed by 48 hours off. Individuals on this schedule always work more than 40 hours per week, since they will have at least two — and sometimes three — 24-hour shifts each week. For at least three years prior to
The Utilities Commission’s denial of approval for a company to generate additional solar energy based on the cost of upgrading the region’s electric grid to accommodate additional transmission was not arbitrary and capricious, a panel of the North Carolina Court of Appeals has ruled. Friesian Holdings, LLC, an independent energy company, applied to the North Carolina Utilities Commission for a certificate of public convenience and necessity (CPCN) to build and operate a solar energy plant, which would sell and distribute electricity through an existing electric grid. Although the Commission initially granted the CPCN, Friesian withdrew the first application and filed a new CPCN as a “merchant plant,” meaning that it would sell its energy to North Carolina Electric Membership Corporation (NCEMC) on a wholesale basis. Friesian and Duke Energy Progress, who owns and operates the energy grid servicing Scotland County, entered into an agreement about the necessary upgrades to the existing electrical grid to accommodate the new facility. Pursuant to the agreement, Friesian would bear sole responsibility for $100 million of the estimated $250 million needed for construction. However, a crediting policy provided by the Federal Energy Regulatory
See 4th Circuit Page 5 ►
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Judge James Wynn
pic from depositphotos.com
4th Circuit recognizes ‘overtime gap time’ claim under FLSA ■ BY CORREY E. STEPHENSON An emergency medical services employee adequately alleged a violation of the Fair Labor Standards Act, or FLSA, under the theory of “overtime gap time,” a panel of the 4th U.S. Circuit Court of Appeals has ruled in reversing judgment on the pleadings for the employer. The district court had dismissed the suit based on a “misreading” of the 4th Circuit’s 1996 opinion in
Monahan v. County of Chesterfield, Judge James Wynn wrote for the court. Under the correct standard articulated by the panel, the plaintiff survived the defendant’s motion to dismiss. Wynn’s opinion is Conner v. Cleveland County, North Carolina (VLW 022-2-001).
Shorted on straight time
Sara B. Conner worked as an emergency medical services, or
Clogged trach leads to death, $1.1M settlement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The estate of an 18-month-old child who died while under the care of a home health nurse has settled its medical malpractice suit for $1.1 million, its attorneys report. The boy, born prematurely and home after six months in the neonatal intensive care unit, died from hypoxic ischemic encephalopathy — brain damage suffered when he could not breathe through his clogged tracheostomy tube, said one of the plaintiff’s attorneys, Michael Rousseaux of Elam & Rousseaux in Charlotte.
Rousseaux said that when the child began struggling to breathe, the nurse attempted to suction the trach. When that didn’t work, Rousseaux said, the nurse panicked, failed to properly perform CPR, and failed to change the trach, though a new one was nearby. “Changing the trach is a simple process that takes less than a minute and clears the airway if suctioning it doesn’t work,” Rousseaux said. “Knowing how to do this and when to do this is critical to caring for a ventilator dependent patient with a tracheostomy.” Many details of the case, including the names of the parties and defense counsel, were withheld
pursuant to a confidentiality agreement. Rousseaux said that the child had been weaned from oxygen and was successfully being weaned from a ventilator, and that the family contracted with a home health agency to help provide the required constant care. But while under the care of a home nurse, just hours after the parents left town for their first trip since their child’s birth, he woke up coughing and unable to breathe properly. The nurse called 911 but hung up because she did not know the home address, Rousseaux said, See Clogged Page 6 ►
INSIDE VERDICTS & SETTLEMENTS
VERDICTS & SETTLEMENTS
COMMENTARY
Deceased plaintiff awarded multi-million dollar settlement
Massage parlor assault leads to $1.5M settlement
Why the OSHA ETS was placed on ‘stay-cation’
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