Calvin Barton v. House of Raeford Farms, Inc.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 6:09-cv-01901-JMC. [999313231]. [12-1943, 12-1945, 12-1946]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1943

CALVIN BARTON; SHAMIKA CURETON; LATOYA JAMISON; LISA
JAMISON; TERRANCE JOHNSON; KELLY PARDUE; PAULINE WARREN;
ANNA EDENS; ANTONIO MILLER; STACEY JOHNSON; SHERRY PERALTA;
NATASHA ATKINSON; PAMELA VAUGHN; QUASHONDA CHAPMAN; SHIRLEY
BAISEY; BILLY HARRIS; CONSTANCE NEAL,
Plaintiffs - Appellees,
and
JORGE CASTELLANOS; DENISE BLACKWELL; BRIAN BROWNLEE; JOSEPH
HOPKINS; TERESA HARRIS,
Plaintiffs,
v.
HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,
Defendant - Appellant.

No. 12-1945

SHIREN JOHNSON; SAMANTHA EARL,
Plaintiffs - Appellees,
and
TAWANA BLANDIN; TERESA CALIXTO; ELODIA CARRERA; ERNADID
GARRIBO CASTILLO; LORENA CASTILLO CORRALE; NATALIE DORANTES;
RUFFINA FELIPE; MARIA DOMINGO GOMEZ; SILVIA HERNANDEZ;

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LUCIANO HERNANDEZ
RODRIGUEZ,

LEMOS;

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MATEO

FRANCISCO

LORENZO;

ANGEL

Plaintiffs,
v.
HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,
Defendant - Appellant.

No. 12-1946

JACKIE BLAND; TAMORTHA BRUSTER; MYRTLE
BURTS, a/k/a Antonio Burch; STEVEN CASE,

BRYSON;

ANTONIO

Plaintiffs - Appellees,
v.
HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,
Defendant - Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Greenville. J. Michelle Childs, District
Judge.
(6:09-cv-01901-JMC; 6:09-cv-03137-JMC; 6:10-cv-00928JMC)

Argued:

September 18, 2013

Decided:

March 11, 2014

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed in part; reversed in part by published opinion. Judge
Niemeyer wrote the opinion, in which Judge Agee joined.
Judge
King wrote an opinion concurring in part and dissenting in part.

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ARGUED: James Larry Stine, WIMBERLY, LAWSON, STECKEL, SCHNEIDER
& STINE, PC, Atlanta, Georgia, for Appellant.
Nancy B.
Bloodgood, FOSTER LAW FIRM, LLC, Daniel Island, South Carolina,
for Appellees.
ON BRIEF:
Elizabeth K. Dorminey, WIMBERLY,
LAWSON, STECKEL, SCHNEIDER & STINE, P.C., Atlanta, Georgia, for
Appellant.
Lucy C. Sanders, FOSTER LAW FIRM, LLC, Charleston,
South Carolina, for Appellees.

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NIEMEYER, Circuit Judge:
Numerous
House

of

former

Raeford

employees

Farms,

(“Columbia

Farms”),

Carolina,

commenced

a

and

Inc.,

chicken

three

some

d/b/a

current
Columbia

processor

separate

Farms, asserting two types of claims:

in

actions

employees

of

Farms,

Inc.,

Greenville,

South

against

Columbia

first, for the payment of

unpaid wages, withheld in violation of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq., and the South Carolina
Payment of Wages Act (“S.C. Wages Act”), S.C. Code Ann. §§ 4110-10

to

-110,

and

second,

for

retaliating

against

them

for

instituting workers’ compensation proceedings, in violation of
S.C. Code Ann. § 41-1-80.

The district court granted Columbia

Farms’ motion for summary judgment on the unpaid wages claims
under the FLSA but denied it on the unpaid wages claims under
the

S.C.

Wages

Act

and

the

retaliation

claims.

After

the

actions were consolidated, a jury returned a verdict in favor of
16 employees on the S.C. Wages Act claims, awarding them $16,583
in the aggregate, which the district court trebled to $49,749.
The court also awarded attorneys’ fees and costs on these claims
in the amount of $227,640.

Following a bench trial on the

retaliation claims, the court found in favor of 8 employees,
ordering

that

5

be

reinstated

and

aggregate amount of $131,742.

4

awarding

back

pay

in

the

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On Columbia Farms’ appeal, we reverse the jury award on the
S.C.

Wages

preempted

Act

by

claims,
301

§

concluding
the

of

Labor

that

those

Management

claims

were

Relations

Act

(“LMRA”), 29 U.S.C. § 185, and should have been dismissed.

As

to the retaliation claims under S.C. Code Ann. § 41-1-80, we
reverse

as

to

6

employees

because

they

failed

to

present

evidence satisfying the governing legal standards for recovery
under state law.

As to the retaliation claims of the remaining

two employees -- Billy Harris and Lisa Jamison -- we affirm.

I
S.C. Wages Act claims
The wages paid to the production and maintenance employees
at

Columbia

Farms’

plant

in

Greenville

were

governed

by

a

collective bargaining agreement (“CBA”) with the United Food and
Commercial Workers’ Union, Local No. 1996, CLC (“the Union”).
Among other terms, the CBA provided that the basic work day was
8 hours and the basic work week was 40 hours, and it spelled out
the hourly rates of pay for the different classes of employees.
With respect to those rates, the CBA noted that in November
2004, Columbia Farms and the Union had negotiated a change to
the company’s “meal and rest policy” in exchange for a one-time
3.1% raise to the affected employees’ hourly rate.

Under the

revised policy, instead of receiving “an unpaid lunch period and

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paid breaks,” employees were to receive one “unpaid meal period
and [one] unpaid rest period per day, totaling approximately
sixty (60) minutes, [with] the allocation between the meal and
rest periods to be allocated by the Company.”

The CBA also

specified that Columbia Farms would maintain “[a] daily record .
. . with the use of adequate time clocks at each plant” and that
“[t]he Union [would] have the right to examine time sheets and
any other records pertaining to the computation of compensation
of any employee whose pay [was] in dispute.”
further

agreed

“not

to

enter

into

any

Columbia Farms

other

Agreement

or

contract with its employees, individually or collectively, which
in any way conflict[ed] with the terms and provisions of this
Agreement.”
procedure

Finally,
with

the

respect

agreement

to

any

established

dispute

a

“aris[ing]

grievance
over

the

interpretation” of the CBA and provided for arbitration for any
grievance that could not be settled.
The

CBA

did

not

expressly

specify

how

employees’

compensable time would be calculated, but Columbia Farms had a
long-standing practice of paying its production employees based
on “line time” -- that is, the time actually spent by employees
processing chickens on the production line.

“Line time” did not

include time spent donning and doffing protective gear, walking
to and from the production area, or washing gear before and
after work.

Columbia Farms stopped the production line for two
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30-minute

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periods

per

shift

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to

provide

employees

with

meal

breaks, which, under the CBA, were not counted as compensable
time.
When new employees were hired, they were given a form at
orientation entitled “Terms of Employment,” which indicated that
its

purpose

was

to

notify

employees

“of

the

terms

of

employment,” as required by South Carolina Code § 41-10-30.

The

form was filled out to specify each worker’s hourly rate of pay
and, in a blank next to “hours of work,” the general hours for
that worker’s scheduled shift -- for example, 9 a.m. to 6 p.m.
Columbia

Farms

also

gave

its

new

employees

an

Employee

Handbook, which, in a section on “Time Card Administration,”
stated that “[t]he purpose of the time card is to insure an
accurate

record

of

all

hours

you

work

in

order

for

you

to

receive correct payment of wages”; that “[y]ou are required to
punch

in

and

out

on

your

own

time

card

according

to

your

schedule”; and that “[i]t is our policy that all work performed
by you will be while you are ‘on the clock.’”
further
punching

specified
in

workstations

or

that

out”;

ready

and

“[y]ou
that

must

be

dressed

“[e]mployees

dressed

for

work

are
at

The Handbook
for

to

be

their

work
at

when
their

scheduled

starting time and are to remain at their workstations until the
scheduled quitting time”; and that “[y]ou will be paid for all
time worked per your schedule.”
7

The Handbook also stated that

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employees would receive two 30-minute lunch breaks during each
shift.
According to a number of former employees who testified at
trial, Columbia Farms never informed them when they were hired
that their hours would be based on “line time,” as distinct from
“clock time.”

These employees stated that, instead, they were

told at orientation that they would be working a set nine-hour
shift and that they would be paid based on when they clocked in
and out for that shift.

Although some acknowledged that they

were also told that their two 30-minute lunch breaks would be
unpaid, they estimated that they ended up having only 10 to 20
minutes in the break room during each break because of the time
it took to walk to and from the break room, to don and doff
protective clothing, and to wash up.
In

2009,

a

group

of

the

Greenville

plant’s

former

employees, as well as a few of its current employees, all of
whom were members of the bargaining unit covered by the CBA,
sued Columbia Farms for wages due, based on the FLSA and the
S.C. Wages Act, asserting that they should have been paid for
the

time

preparing

they

spent

donning

for

work.

They

and
also

doffing
asserted

protective
that

gear

because

and

their

actual break time was less than 20 minutes, Columbia Farms was
required, in accordance with federal regulations, to compensate
them for that time.

Their claims under the S.C. Wages Act
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included allegations that Columbia Farms failed to notify them
in writing as to the hours they would be working when they were
hired.
The

district

summary

judgment

court
on

granted

the

Columbia

plaintiffs’

Farms’

FLSA

motion

claims,

for

based

on

Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir.
2009), which held that donning and doffing protective gear at a
poultry processing plant constituted “changing clothes” within
the meaning of 29 U.S.C. § 203(o) and that employers and unions
could address whether such time would be compensated through
collective
concluded
Sepulveda,

bargaining.
that
had

because
a

The

district

Columbia

long-standing

Farms,

court
like

practice

in
the

under

this

case

employer
a

bona

in

fide

collective bargaining agreement of paying its employees based on
“line time,” the plaintiffs were not entitled to compensation
for the time spent donning and doffing protective gear.

The

court also granted Columbia Farms’ motion for summary judgment
on plaintiffs’ similar claims under the S.C. Wages Act “[t]o the
extent that those claims ar[o]se from Columbia Farms’s failure
to

pay

Plaintiffs

for

their

time

sanitary and protective gear.”
Farms,

Inc.,

No.

spent

donning

and

doffing

Atkinson v. House of Raeford

6:09-cv-01901-JMC,

(D.S.C. Apr. 20, 2011).

9

2011

WL

1526605,

at

*5

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With respect to whether Columbia Farms had complied with
the S.C. Wages Act in providing required written notices, giving
adequate breaks, providing accurate pay statements, and paying
full

wages

court

due

denied

when

employees

Columbia

Farms’

were

terminated,

motion

for

the

summary

district
judgment,

concluding that “there appeared to be genuine issues of material
fact regarding whether Columbia Farms complied with [the Act].”
Atkinson, 2011 WL 1526605, at *5.

Those claims, accordingly,

were presented to a jury.
Before trial, Columbia Farms contended that the plaintiffs’
S.C. Wages Act claims were preempted by § 301 of the LMRA,
arguing that the plaintiffs’ efforts to collect allegedly unpaid
wages under the state statute necessarily implicated the CBA and
therefore

should

have

been

dismissed.

The

district

court

rejected the argument, ruling that the plaintiffs could prevail
on their S.C. Wages Act claims by proving (1) that they were not
notified at the time of employment that they would be paid “line
time” and were instead led to believe that they would be paid
“clock time;” (2) that this understanding became part of the
agreed-upon terms and conditions of their employment; and (3)
that

Columbia

therefore

Farms

owed

them

had

failed

unpaid

“clock time” and “line time.”
the

S.C.

Wages

Act

claims

to

wages

honor

for

the

this

agreement

difference

and

between

The district court thus held that
were
10

not

preempted

because

the

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plaintiffs’ theory of recovery did not depend on the meaning of
the CBA but on the alleged breach of separate agreements to pay
“clock time.”
The

jury

returned

a

verdict

in

favor

of

16

plaintiffs,

awarding them unpaid wages ranging from $53 to $2,433, for a
total of $16,583.

And the district court trebled the damages,

as authorized by state law, to $49,749, finding that no bona
fide dispute existed regarding the wages the plaintiffs were
due.

The court explained:
Columbia Farms had a practice of paying its employees
according to line time; however, neither the CBA nor
the
terms
of
employment
provided
to
Plaintiffs
indicated that employees were to be paid according to
line time.
At trial, Plaintiffs presented evidence
that Columbia Farms led them to believe that they
would be paid based on the amount of hours that they
were clocked-in at work. . . .
Accordingly, to the
extent the jury found that Columbia Farms did not pay
all wages due to Plaintiffs, the court finds that no
bona fide dispute existed as to the payment of those
wages.

Atkinson v. House of Raeford Farms, Inc., No. 6:09-cv-01901-JMC,
2012 WL 2871747, at *3 (D.S.C. July 12, 2012).

The court also

awarded prejudgment interest, pursuant to S.C. Code Ann. § 3431-20(A),

and

attorneys’

fees

and

costs

in

the

amount

of

$227,640.

Workers’ compensation retaliation claims
A

group

of

former

employees

also

alleged

that

Columbia

Farms had violated their rights under S.C. Code Ann. § 41-1-80,
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which prohibits employers from retaliating against employees who
have instituted workers’ compensation proceedings.
Following a bench trial, the district court found in favor
of eight employees, concluding that their employment had been
terminated

because

proceedings.

they

had

instituted

workers’

compensation

Atkinson v. House of Raeford Farms, Inc., 874 F.

Supp. 2d 456, 483 (D.S.C. 2012).
The

court

retaliation

in

found
the

that

context

Columbia
of

a

Farms

“point

carried

system”

out

its

designed

enforce its attendance policy at its Greenville plant.

to

Under

the point system, employees who reached a total of five points
were fired -- points were accumulated by the failure to follow
the attendance policy and subtracted when an employee worked for
30 days without receiving any new points.

Thus, employees who

arrived late to work, returned to work late after a break, or
left work early received half a point.

Employees who missed

work Tuesday through Friday received one point, and employees
missing

work

Saturday

through

Monday

received

a

point

and

a

half.

If an employee provided Columbia Farms with two days’

notice

and

a

medical

received no points.

excuse

for

an

absence,

the

employee

If an employee provided the medical excuse

but not the required advanced notice, the employee received one
point for the entire medically excused absence, even if it was
longer than one day.

But, as the district court noted, “[a]n
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employee did not receive any points for workers’ compensation
injuries,

absences,

or

approved

doctor’s

employee visited the company doctor.”

visits

when

the

Atkinson, 874 F. Supp. 2d

at 462.
Teresa Taylor, Columbia Farms’ plant nurse, was authorized
to make the decision whether to send employees to the company
doctor for medical treatment, and she did not do so when she
thought their injuries required only first aid or were not work
related.

In

this

vein,

Taylor

concluded

that

an

employee’s

overuse of her hands on the production line amounted to “sore
hands,” which were to be treated as a matter of first aid.
Accordingly,
workers’

for

such

compensation

compensation

complaints,
form.

injuries

or

she

While

did

not

employees

restrictions

complete

with

received

a

workers’

accommodation,

such as light duty, employees “with injuries or restrictions
that

were

not

considered

to

be

related

to

a

workers’

compensation injury were not permitted to return to work until
the

employee

stating

that

provided
the

Columbia

employee

Farms

had

no

with

a

medical

doctor’s

note

restrictions.”

Atkinson, 874 F. Supp. 2d at 463.
Trial
kept

a

testimony

list

of

indicated

employees

who

that

supervisors

frequently

at

visited

the

the

plant

nurse’s

office or who went to a private doctor for medical care.

For

example, one shift manager testified that he had received lists
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from the nurse’s office with the names of employees who had
worked less than 60 days and had been to the nurse’s office
multiple times.
Six
Shiren

of

the

Johnson,

plaintiffs
Shirley

--

Natasha

Baisey,

Atkinson,

Tamortha

Anna

Edens,

and

Steven

Bruster,

Case -- testified at trial that they had visited the nurse’s
station
first

complaining

aid

of

treatment,

sore
such

or
as

injured
gauze,

ibuprofen, and hand massages.

hands

and

topical

were

pain

given

reliever,

Five of the six had requested

permission to visit the company doctor, but Taylor denied their
requests.

Instead, they visited private doctors or emergency

rooms, receiving notes stating that they were unable to work for
a specified period of time or that placed other restrictions on
their ability to work.

Taylor told several of these employees

that they would not be allowed to return to work until they
could

provide

a

doctor’s

without restrictions.

note

saying

that

they

could

work

When three of the employees -- Atkinson,

Edens, and Johnson -- were unable to obtain such notes, their
employment was terminated.

The others -- Baisey, Bruster, and

Case -- were given attendance points based on absences for which
they had a doctor’s note, and when those points were combined
with

other

points

that

they

had

accumulated,

their

totals

reached five points or more, leading to their discharge.
district

court

found

that

if
14

Taylor

had

considered

The
their

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injuries to be work related and accordingly had allowed them to
visit

the

company

doctor,

these

employees

would

not

have

accumulated the final points that caused their discharge.
The two other prevailing plaintiffs -- Billy Harris and
Lisa Jamison -- sustained workplace injuries that Columbia Farms
acknowledged as such.

Harris fell down the stairs while at work

and injured his back, and Jamison slipped and fell at work,
injuring her back, hip, neck, and shoulder.

Both were seen by

the company doctor.
The doctor placed Harris on light duty for several weeks,
and Columbia Farms made an accommodation for this restriction,
giving

Harris

different

job

responsibilities.

The

doctor

eventually released Harris to full duty, but told him to visit
the nurse’s station if his back began to hurt.

While working on

the production line, Harris began experiencing pain and so told
his supervisor.

The district court credited Harris’s testimony

that he eventually received his supervisor’s permission to leave
the line to visit the nurse’s station.

When he reached the

nurse’s station, however, the plant’s human resources manager
was waiting for him and told him that he was being fired for
leaving the line without permission.

After he was fired, Harris

continued receiving treatment from the company doctor, and an
MRI showed that he had a bulging disc.

Harris acknowledged that

from the time of his discharge in July 2009 until at least
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February 2010, he could not have performed his normal job at
Columbia Farms due to medical restrictions given to him by the
company doctor.
Similarly, Columbia Farms’ doctor placed Jamison on light
duty after her fall at work in May 2009.

She testified that “a

supervisor at Columbia Farms told her that Taylor was going to
get her fired because of her injury.”
at 471.

Atkinson, 874 F. Supp. 2d

Jamison submitted notes from the company doctor setting

forth her work restrictions and advising that she take frequent
breaks from the use of her shoulder, which she understood to
mean that she should walk around to loosen up her shoulder or go
to the nurse’s station when she began having pain.

In Jamison’s

presence,

verify

Taylor

called

the

company

doctor

to

that

Jamison could take breaks as needed.
A few weeks after Jamison filed a workers’ compensation
claim, the human resources manager found Jamison outside her
assigned work area on three occasions and fired her, stating
that

she

had

taken

excessive

breaks.

The

district

court

credited Jamison’s testimony that each time the human resources
manager
station.

saw

her,

she

was

on

her

way

back

from

the

nurse’s

After her discharge, Jamison began collecting social

security payments
Columbia Farms.

for

a

disability

unrelated

to

her

work

at

At trial in November 2011, however, Jamison

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testified that she had been physically able to go back to her
old job at Columbia Farms for approximately nine months.
Based on the factual circumstances presented, the district
court concluded that Columbia Farms violated S.C. Code Ann. §
41-1-80

(prohibiting

employees
under

who

the

determine

have

South
whether

employers
in

good

Carolina
the

from

faith

“instituted”

Workers’

plaintiffs

discharging

or
a

Compensation

had

demoting

“proceeding
Law”).

“instituted”

a

To

workers’

compensation proceeding, the court applied the following test:
[W]hile the mere seeking and receiving of medical
treatment
is
not
sufficient
to
constitute
the
institution of a workers’ compensation claim, an
employee’s seeking or receiving of medical treatment
from the employer accompanied by circumstances which
would lead the employer to infer that a workers’
compensation claim is likely to be filed is sufficient
to institute a workers’ compensation proceeding for
the purposes of Section 41-1-80.
Atkinson,

874

F.

Supp.

2d

at

475.

As

to

Atkinson,

Edens,

Johnson, Baisey, Bruster, and Case, the court found that their
“receipt

of

treatment

for

their

injuries

from

the

nurse’s

office, combined with their requests to visit the company doctor
or

Taylor’s

private

representation

doctor,

and

to

their

them

that

submission

they
of

had

to

see

documentation

a
to

Columbia Farms showing that they had sought medical care for
their injuries [was] sufficient to constitute the institution of
workers’

compensation

proceedings.”

added); see also id. at 478-80.
17

Id.

at

477

(emphasis

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As to the plaintiffs’ burden to prove a causal connection
between their institution of a workers’ compensation proceeding
and the termination of their employment, the court concluded
that eight plaintiffs had also satisfied this element of their
case, explaining:
Section 41-1-80 does not provide an employee with the
right to a reasonable period of time to rehabilitate
from an injury and demonstrate the ability to perform
his job duties. However, where an employer sets forth
the employee’s inability to perform his job duties as
the employer’s reason for terminating the employee,
evidence
that
the
employer
had
a
policy
of
accommodating employees with workers’ compensation
injuries, coupled with the employers’ failure to
accommodate the plaintiff may support that plaintiff’s
assertion that the employer’s proffered reason for
termination was mere pretext.
Atkinson, 874 F. Supp. 2d at 476.

The court relied on this

principle in finding that these plaintiffs had established the
requisite

causal

employment

and

proceedings,

connection
their

between

institution

rejecting

as

mere

the
of

termination
workers’

pretext

of

their

compensation

Columbia

Farms’

explanation based on application of its attendance policy.
The district court ordered reinstatement as to each of the
five prevailing plaintiffs who had sought it -- Atkinson, Edens,
Johnson, Baisey, and Jamison.
had

failed

entitled

to

to

mitigate

back

their

wages,

but

It found that Johnson and Jamison
damages
with

18

and

respect

therefore
to

the

were

not

remaining

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prevailing plaintiffs, the court awarded damages ranging from
$1,076 to $55,331, for a total of $131,742.

II
Columbia Farms contends first that the plaintiffs’ claims
under the S.C. Wages Act were preempted by § 301 of the LMRA and
should have been dismissed.

It argues that the state statute

provides for an enforcement mechanism designed to ensure that
employees

timely

receive

all

the

wages

entitled under an employment contract.

to

which

they

are

As such, it contends,

the plaintiffs’ entitlement to unpaid wages necessarily turned
on

the

application

established

the

and

terms

construction

and

conditions

of

the

of

the

CBA,

which

plaintiffs’

employment at the plant through both its express terms and the
custom and practice that developed under it.
argues

that

claims

for

instead
unpaid

of
wages

recognizing
were

that

preempted,

the
the

Columbia Farms
S.C.

Wages

district

Act

court

improperly allowed the jury to find that the plaintiffs entered
into separate agreements with Columbia Farms as to the manner by
which their compensable time would be calculated, even though
the CBA explicitly prohibited such side agreements.
The plaintiffs contend that, rather than being preempted
under § 301 of the LMRA, the S.C. Wages Act provides remedies
for when an employer “fail[s] to inform [e]mployees in writing

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at the time of hire how much they would be paid and what hours
they were required to work.”

In other words, they maintain that

the S.C. Wages Act is a “notice statute” and that all Columbia
Farms

“had

to

do

to

comply

with

the

[Act]

when

it

hired

Employees was to indicate in writing that employees were paid
based on ‘line time.’”

Because Columbia Farms failed to do that

and instead informed new employees that they would be paid based
on when they clocked in and out, the plaintiffs argue that they
were entitled under the state statute to recover the difference
in their wages between “line time” and “clock time,” regardless
of what the CBA actually provided or the long-standing custom
and practice at the plant had been.
S.C.

Wages

Act

claims

did

not

They thus argue that their

depend

on

the

CBA

and

were

therefore not preempted.
The S.C. Wages Act was designed to “protect employees from
the unjustified and wilful retention of wages by the employer.”
Rice v. Multimedia, Inc., 456 S.E.2d 381, 383 (S.C. 1995).

The

Act provides employees in South Carolina with a cause of action
to recover for an employer’s “failure to pay wages due to an
employee as required by Section 41-10-40 or 41-10-50.”
Code Ann. § 41-10-80(C).
Carolina
due,”

employers

and

to

§ 41-10-50

S.C.

In turn, § 41-10-40 directs South

timely

pay

similarly

their
provides

employees
that

“all

when

a

wages
South

Carolina employer discharges an employee, it must timely pay
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that employee “all wages due.”

See also Mathis v. Brown & Brown

of S.C., Inc., 698 S.E.2d 773, 781 (S.C. 2010).

The S.C. Wages

Act defines the term “wages” as “all amounts at which labor
rendered

is

ascertained

recompensed,
on

a

time,

whether

task,

the

piece,

or

amount

is

commission

fixed

or

basis,

or

other method of calculating the amount and includes vacation,
holiday, and sick leave payments which are due to an employee
under any employer policy or employment contract.”

S.C. Code

Ann. § 41-10-10(2) (emphasis added); see also Allen v. Pinnacle
Healthcare Sys., LLC, 715 S.E.2d 362, 365 (S.C. Ct. App. 2011)
(“The Act also defines ‘wages’ as ‘all amounts . . . which are
due

to

an

employee

under

any

.

.

.

employment

contract’”

(omissions in original) (quoting S.C. Code Ann. § 41-10-10(2))).
In essence, the plaintiffs’ cause of action under S.C. Code
Ann. § 41-10-80(C) is based on their claim that Columbia Farms
owed them unpaid wages resulting from its failure to count their
hours in accordance with employment contracts that were based on
what Columbia Farms told them when they were hired and that
stood separate and apart from the CBA.

We conclude, however,

that

support

such

a

theory

of

recovery

cannot

their

claims

because of the CBA’s terms and the supremacy of federal law that
provides for the CBA’s enforcement.
Any

wages

owed

to

the

plaintiffs

in

this

case

were

necessarily those agreed to in the CBA negotiated between the
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Union and Columbia Farms.

Pg: 22 of 45

That is the only contract on which

their S.C. Wages Act claims can be based, inasmuch as the CBA
provides that it was to be the exclusive contract of employment,
with Columbia Farms specifically agreeing with the Union that it
would not “enter into any other Agreement or contract with its
employees,

individually

or

collectively,

which

in

any

way

conflicts with the terms and provisions of this Agreement.”

And

the CBA’s terms were binding on the plaintiffs as members of the
bargaining unit.
As to wages, the parties agreed in the CBA to an 8-hour day
and a 40-hour week as the “basic” work day and work week and to
a specified rate of pay per hour “for all hours worked.”

Also,

as the district court recognized, the company and its employees
had operated for years under a custom and practice of the CBA
that the “hours worked” be calculated based on “line time.”
CBA

also

provided

for

two

unpaid

breaks

during

a

work

The
day,

totaling approximately 60 minutes, “the allocation between the
meal

and

rest

periods

to

be

allocated

by

the

Company.”

Moreover, should any employee have a dispute “aris[ing] over the
interpretation” of those provisions, he or she was required to
follow the specified grievance procedure and, ultimately, the
arbitration procedure.
It is therefore apparent that the plaintiffs’ claims under
the S.C. Wages Act are nothing other than a disagreement with
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Columbia Farms’ interpretation of how to calculate their “hours
worked” under the CBA, including the two unpaid breaks provided
for in the CBA.

The company asserts that compensable time was

properly measured based on “line time,” so that employees would
start being paid when the line commenced and would no longer be
paid when the line stopped, either for breaks or at the end of
the shift.

The plaintiffs assert that compensable time was to

be measured generally by when they were “on the clock” and, as
to the breaks, when they were in the break room after having
taken off their protective gear and washed up.

While both sides

have looked to a range of evidence to resolve the dispute -e.g., the representations at orientation, the Employee Handbook,
and the practices followed -- the question at bottom remains
what the CBA intended.
dispute

under

the

For this reason, we conclude that the

S.C.

Wages

Act

necessarily

implicates

an

interpretation of the CBA and therefore that the proceedings are
preempted by § 301 of the LMRA.
Section 301 of the LMRA provides that “suits for violation
of

contracts

between

an

employer

and

a

labor

organization

representing employees . . . may be brought in any district
court of the United States having jurisdiction of the parties.”
29 U.S.C. § 185(a).
courts

with

collective

This provision “not only provides federal

jurisdiction
bargaining

over

employment

agreements,
23

but

disputes

also

covered

directs

by

federal

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courts to fashion a body of federal common law to resolve such
disputes.”
(4th

Cir.

McCormick v. AT&T Tech., Inc., 934 F.2d 531, 534
1991)

interpretation

(en

of

banc).

collective

Moreover,
bargaining

to

ensure

uniform

agreements

and

to

protect the power of arbitrators, the Supreme Court has found
that § 301 preempts and entirely displaces “any state cause of
action for
labor

violation

organization.”

of

contracts

Franchise

between

Tax

Bd.

an
v.

employer
Constr.

and

a

Laborers

Vacation Trust, 463 U.S. 1, 23 (1983) (emphasis added) (internal
quotation marks and citation omitted).

As a result, a plaintiff

may not rely on state law “as an independent source of private
rights to enforce collective bargaining contracts.”

Caterpillar

Inc. v. Williams, 482 U.S. 386, 394 (1987) (internal quotation
marks and citation omitted).

Not only does this mean that a

plaintiff may not pursue a state law breach of contract claim to
enforce a collective bargaining agreement, but it also means
that

a

plaintiff

may

not

through artful pleading.
U.S. 202, 211 (1985).

“evade

the

requirements

of

§

301”

Allis-Chalmers Corp. v. Lueck, 471

Accordingly, when resolution of a state

law claim depends substantially on the analysis of a collective
bargaining agreement’s terms, it must either be treated as a
claim

under

§

301,

subject

to

dismissal

if

the

collective

bargaining agreement’s grievance and arbitration procedures have
not been followed, or alternatively be dismissed as preempted by
24

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§ 301.

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Id. at 220-21; see also Davis v. Bell Atl.-W. Va., Inc.,

110 F.3d 245, 247 (4th Cir. 1997).
To be sure, the Supreme Court has pointed out that Ҥ 301
cannot

be

read

broadly

to

pre-empt

nonnegotiable

rights

conferred on individual employees as a matter of state law.”
Livadas v. Bradshaw, 512 U.S. 107, 123 (1994).

And “when the

meaning of contract terms is not the subject of dispute, the
bare

fact

that

a

collective-bargaining

agreement

will

be

consulted in the course of state-law litigation plainly does not
require the claim to be extinguished.”
the

evaluation

intertwined
contract,”

with

of

the

state

law

consideration

Allis-Chalmers,

471

Id. at 124.
claim

of

the

U.S.

at

“is

terms
213,

But when

inextricably
of

such

the
that

labor
it

is

necessary to interpret the collective bargaining agreement to
resolve the claim, Lingle v. Norge Div. of Magic Chef, Inc., 486
U.S. 399, 409-10 (1988), the claim is preempted under § 301.
Accordingly,

“it

is

the

legal

character

of

a

claim,

as

independent of rights under the collective-bargaining agreement
(and not whether a grievance arising from precisely the same set
of facts could be pursued) that decides whether a state cause of
action may go forward.”

Livadas, 512 U.S. at 123-24 (internal

quotation marks and citations omitted).
In this case, the plaintiffs cannot claim independent state
contract rights because the wages that they claim are due were
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addressed by the CBA, which provided further that it was the
exclusive contract governing the wages to be paid by Columbia
Farms

to

the

members

of

the

bargaining

unit.

At

a

more

particular level, this case is nothing more than a suit for the
collection of wages based on whether “hours worked,” as that
term is used in the CBA, should be computed based on “line time”
or

“clock

time.”

Accordingly,

we

hold

that

the

plaintiffs’

claims under the S.C. Wages Act are preempted by § 301 of the
LMRA and should not have been submitted to the jury.
The plaintiffs seek to avoid this conclusion by disavowing
reliance on the collective bargaining agreement and asserting
that their claims are based on a notice provision of the S.C.
Wages Act, which provides that “[e]very employer shall notify
each employee in writing at the time of hiring of the normal
hours and wages agreed upon, the time and place of payment, and
the

deductions

which

will

be

made

payments to insurance programs.”

from

the

wages,

including

S.C. Code Ann. § 41-10-30(A).

The plaintiffs argue that Columbia Farms violated this provision
when it failed “to indicate in writing that employees were paid
based on ‘line time.’”
First, it is far from clear whether § 41-10-30(A) required
Columbia Farms to provide written notice to its employees that
their “normal hours” would be measured based on “line time.”
See Carolina Alliance for Fair Emp’t v. S.C. Dep’t of Labor,
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Licensing & Regulation, 523 S.E.2d 795, 802 (S.C. Ct. App. 1999)
(rejecting plaintiffs’ position that “the exact amount of the
employee’s

wages

must

be

disclosed”

under

the

Act).

Nonetheless, reading § 41-10-30(A) as plaintiffs would have it
would still not provide the plaintiffs with a remedy, as the
S.C.

Wages

Act

specifies

that

the

remedy

for

an

employer’s

violation of § 41-10-30 is “a written warning by the Director of
the

Department

of

Labor,

Licensing,

and

Regulation

or

his

designee for the first offense and . . . a civil penalty of not
more

than

one

hundred

dollars

for

each

subsequent

offense.”

S.C. Code Ann. § 41-10-80(A).
In an effort to avoid this barrier, the plaintiffs argue
that the notice provision in § 41-10-30(A) is incorporated into
the provision imposing a duty on employers to timely pay their
employees “all wages due,” § 41-10-40(D), for which there is a
private cause of action, § 41-10-80(C).

Section 41-10-40(D)

provides that “[e]very employer in the State shall pay all wages
due at the time and place designated as required by subsection
(A) of § 41-10-30,” and the plaintiffs take this cross reference
to mean that the “wages due” to an employee are whatever wages
the employer notified the employee he would be receiving at the
time of hire.

Based on this interpretation, they maintain that

because Columbia Farms told them “they would be paid by the
clock at the time of hire and would work nine (9) hour shifts,”
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Columbia

Farms

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somehow

Pg: 28 of 45

created

a

term

of

employment

that

it

breached by paying them based on “line time.”

They maintain

that

not

their

claim

to

unpaid

wages

is

therefore

preempted

because “[n]o resort to any CBA was necessary for the jury to
determine Employees were not told that they would be paid based
on ‘line time’ when they were hired.”
Several problems are inherent with this theory.

First, as

a textual matter, the far more natural reading of § 41-10-40(D)
is that it references § 41-10-30(A) to describe when and where
wages

are

to

employee.

be

paid,

not

the

amount

of

wages

due

to

an

In other words, § 41-10-30(A) requires employers to

notify their employees of “the time and place of payment,” and §
41-10-40(D)

then

uses

that

“time

and

place”

establish when and where wages must be paid.

designation

to

See Ross v. Ligand

Pharm., Inc., 639 S.E.2d 460, 471 (S.C. Ct. App. 2006).
But
ultimately

far

more

fundamentally,

undermines

the

role

of

contract for the payment of wages.

the
the

plaintiffs’
CBA

as

the

theory

exclusive

They argued to the jury that

even though they were hired into positions covered by the CBA,
they

nonetheless

also

entered

into

individual

employment

contracts with Columbia Farms when they were hired that were
independent of the CBA and that entitled them to be paid on a
“clock time” basis, regardless of what the CBA provided.
approach,

however,

cannot

be

accepted
28

without

doing

This

serious

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damage

to

Filed: 03/11/2014

the

system

of

Pg: 29 of 45

collective

bargaining

because,

at

bottom, the plaintiffs seek to displace the CBA that established
the terms and conditions of their employment and to replace it
with

what

they

understood

to

agreements

that

compensable

be

Columbia

hours

would

Farms’

be

individual

calculated

solely on when they clocked in and out of work.

based

Obviously, this

theory would inappropriately usurp the CBA’s federally protected
role.

See

Caterpillar

Inc.,

contracts

cannot

“[i]ndividual
(quoting

J.I.

(internal
Parker

Case

Co.

quotation

Hannifin

v.

marks

Corp.,

482

U.S.

subtract

NLRB,

321

omitted));

914

F.2d

at

396

from
U.S.

see

795,

(noting

collective
332,

also,

801

339

ones”

(1944))

e.g.,

(6th

that

Fox

Cir.

v.

1990)

(“[E]mployees covered by a CBA cannot rely upon the existence of
a separate, individual employment contract giving rise to state
law claims”); Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d
1283, 1286 (9th Cir. 1989) (“Since Chmiel’s independent contract
claim

concerns

bargaining

a

job

agreement,

position
it

is

governed

completely

by

the

preempted

collective
by

section

301”); Darden v. U.S. Steel Corp., 830 F.2d 1116, 1120 (11th
Cir. 1987) (per curiam) (holding preempted plaintiffs’ claims
“that

they

entered

positions,

that

provisions

of

into

clearly
the

oral

sought

collective

agreements,
to

limit

bargaining

or

for

condition

agreement,

established the terms and conditions of employment”).
29

unionized
the
which
Indeed,

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the plaintiffs’ approach would undermine one of the fundamental
goals of § 301 preemption by allowing employees covered by a
collective bargaining agreement to circumvent their arbitration
commitments by positing the existence of individual contracts
that cover the same ground as a collective one but lack an
arbitration provision.

Moreover, the plaintiffs’ theory in this

case cannot be reconciled with the provision of the CBA in which
Columbia Farms agreed “not to enter into any other Agreement or
contract with its employees, individually or collectively, which
in

any

way

conflicts

with

the

terms

and

provisions

of

[the

CBA].”
In sum, we conclude that any entitlement the plaintiffs
have in this case to unpaid wages under the S.C. Wages Act must
stem from the CBA that governed the terms and conditions of
their employment, including their wages.

Since it is undisputed

that the plaintiffs did not pursue the grievance and arbitration
procedures provided by the CBA, these claims should have been
dismissed as preempted by § 301 of the LMRA.

III
With respect to the district court’s decision, following a
bench trial, that Columbia Farms violated the rights of eight of
its

former

terminating

employees
their

under

S.C.

employment

30

in

Code

Ann.

§

retaliation

41-1-80
for

by

their

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institution of workers’ compensation proceedings, Columbia Farms
contends that the district court applied an unprecedented test
for

when

an

employee

“institutes”

workers’

compensation

proceedings.

It also contends that the district court erred in

finding

causal

a

termination

of

relationship

the

between

plaintiffs’

Columbia

employment

Farms’

and

their

“institution” of workers’ compensation proceedings.
Section 41-1-80 of the South Carolina Code provides that
“[n]o employer may discharge or demote any employee because the
employee
faith,

has
any

instituted

or

proceeding

under

Compensation Law.”
With

respect

caused

to

instituted,

South

the

be

Carolina

in

good

Workers’

(Emphasis added).
to

Natasha

Atkinson,

Anna

Edens,

Shiren

Johnson, Shirley Baisey, Tamortha Bruster, and Steven Case, none
actually

filed

a

workers’

compensation

termination of his or her employment.
however,

that

they

had

claim

prior

to

the

The district court found,

“instituted”

workers’

compensation

proceedings within the meaning of the statute based on their
“receipt

of

treatment

for

their

injuries

from

the

nurse’s

office, combined with their requests to visit the company doctor
or

Taylor’s

private

representation

doctor,

and

their

to

them

that

submission

they
of

had

to

see

documentation

a
to

Columbia Farms showing that they had sought medical care for
their injuries.”

Atkinson, 874 F. Supp. 2d at 477; see also id.
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at 478-480.

This conclusion, however, applied a test that is

insufficient

under

South

Carolina

law

to

show

that

workers’

compensation proceedings had been “instituted.”
To be sure, the South Carolina Supreme Court has indicated
that § 41-1-80 does not “require a formal filing of a Workers’
Compensation

Claim

by

the

employee,”

reasoning

that

“[t]he

purpose of this statute cannot be avoided by firing an injured
employee before he or she files a claim.”

Johnson v. J.P.

Stevens & Co., Inc., 417 S.E.2d 527, 529 (S.C. 1992).

Pointing

to decisions in other jurisdictions that had “held other conduct
sufficient to have instituted a proceeding including [1] the
employer’s agreement to pay or payment of medical care or [2]
the employer’s receipt of written notice from an independent
health care provider in the form of a bill for medical services
rendered to an injured employee,” the South Carolina Supreme
Court

held

that

“these

types

of

conduct

will

suffice

to

constitute instituting a proceeding under our statute as well.”
Id. (emphasis added).

The South Carolina Supreme Court has,

however, never recognized any other conduct as sufficient to
satisfy the statutory requirement.
The

district

court

in

this

case

failed

to

follow

the

jurisprudence of the South Carolina Supreme Court and did not
require plaintiffs to show either (1) that Columbia Farms agreed
to pay for the plaintiffs’ medical care or (2) that Columbia
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Farms

received

a

bill

health

care

employees

do

independent
these

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six

for

Pg: 33 of 45

the

plaintiffs’

provider.
not

And

satisfy

the

those

care

from

an

circumstances

of

requirements.

The

district court relied on the fact that these six employees had
submitted documentation to Columbia Farms to show that they had
sought

medical

care

for

their

injuries,

but

there

was

no

indication, direct or implied, that they were doing so in order
to seek reimbursement for their medical bills.

To the contrary,

the evidence showed that the plaintiffs provided doctors’ notes
to Columbia Farms in their efforts to minimize their attendance
points.

We therefore conclude that the district court erred in

holding

that

these

six

employees

had

“instituted”

workers’

compensation proceedings within the meaning of S.C. Code Ann. §
41-1-80.
We also agree with Columbia Farms that the district court
erred in concluding that the termination of these plaintiffs’
employment
compensation

resulted

from

proceedings.

their
The

institution
record

showed

of

workers’

that

their

employment was terminated under the established point system,
and regardless of whether that system was fairly administered,
the plaintiffs did not establish that it was a mechanism for
retaliation
proceedings.

for

their

institution

of

workers’

compensation

To the contrary, the district court found that the

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plaintiffs’

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employment

was

Pg: 34 of 45

terminated

by

reason

of

Nurse

Taylor’s erroneous classification of their injuries.
Again,
discharge
instituted

the
or
or

statute

demote

provides

that

employee

because

any

caused

to

be

“[n]o

instituted,

employer
employee

the

in

may
has

good

faith,

any

proceeding under the South Carolina Workers’ Compensation Law.”
S.C.

Code

Ann.

§

41-1-80

(emphasis

added).

It

specifies

further:
Any employer shall have as an affirmative defense to
this
section
the following:
wilful
or
habitual
tardiness or absence from work; being disorderly or
intoxicated while at work; destruction of any of the
employer’s property; failure to meet established
employer work standards; malingering; embezzlement or
larceny of the employer’s property; violating specific
written company policy for which the action is a
stated remedy of the violation.
Id. (emphasis added).

Interpreting these provisions, the South

Carolina Supreme Court has held that “[t]he appropriate test of
causation under § 41-1-80 is the ‘determinative factor’ test,”
which “requires the employee [to] establish that he would not
have

been

discharged

compensation claim.”

‘but

held

that

the

filing

of

the

workers’

Hinton v. Designer Ensembles, Inc., 540

S.E.2d 94, 97 (S.C. 2000).
further

for’

The South Carolina Supreme Court has

“[w]hile

the

employer

has

the

burden

of

proving its affirmative defenses, the employer does not have the
burden

of

establishing

the

affirmative

defenses

are

causally

related to the discharge,” id., because such a requirement would
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“effectively shift[] the burden to [the] employer to disprove
that the discharge was in retaliation for filing the claim,”
Wallace v. Milliken & Co., 406 S.E.2d 358, 360 (S.C. 1991).
Instead, “[t]he ultimate burden of persuading the trier of fact
that

the

employer

retaliatorily

discharged

the

employee

for

exercising statutory rights under the Act remains at all times
with the employee.”

Id. (quoting Buckner v. Gen. Motors Corp.,

760 P.2d 803, 807 (Okla. 1988)).
burden,

“either

discharge

was

directly

by

significantly

The employee may carry the

persuading
motivated

by

the

court

that

the

for

her

retaliation

exercise of statutory rights, or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.”
(citation omitted).

Id.

“If the employer articulates a legitimate,

nonretaliatory reason for the termination, the proximity in time
between

the

work-related

injury

and

the

termination

is

not

sufficient evidence to carry the employee’s burden of proving a
causal connection.”

Hinton, 540 S.E.2d at 97.

The district court did not adhere to these principles in
resolving the retaliation claims brought by the six plaintiffs
who reported having sore or injured hands.

It erred by failing

to hold these plaintiffs to their burden of proving that they
“would not have been discharged ‘but for’ the filing of the
workers’

compensation

claim.”

Hinton,

540

S.E.2d

at

97.

Instead, it concluded that they had established the requisite
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causal connection by showing that they would not have been fired
“but

for”

Nurse

Taylor’s

were not related to work.

determination

that

their

conditions

See, e.g., Atkinson, 874 F. Supp. 2d

at 478 (“But for Taylor’s refusal to allow Baisey to visit the
company

doctor,

Baisey

attendance points”).
suggested,

that

would

not

have

accumulated

excessive

It could be argued, as the district court

Nurse

Taylor

may

have

misclassified

these

employees’ injuries, resulting in their failing to receive the
benefit of Columbia Farms’ more lenient policies for employees
with injuries it considered to be work related.

But, without

more, this fails to establish that Columbia Farms discharged
these six individuals in retaliation for the exercise of their
statutory

rights

under

South

Carolina’s

workers’

compensation

law.
Because the district court (1) applied the wrong test under
South

Carolina

“instituted

law

for

proceedings”

determining
under

§

whether

41-1-80

the

and

plaintiffs

(2)

failed

to

demand proof sufficient to satisfy South Carolina’s test for
causation, we reverse the judgments in favor of Atkinson, Edens,
Johnson, Baisey, Bruster, and Case.
The retaliation claims brought by Billy Harris and Lisa
Jamison stand on a different footing.
fell

at

district

work

and

court

were
thus

treated
properly
36

by

the

Both of these employees
company

concluded

doctor.

that

they

The
had

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“instituted”

workers’

Pg: 37 of 45

compensation

proceedings

within

meaning of the statute prior to their discharge.
417 S.E.2d at 529.

the

See Johnson,

Indeed, Jamison actually filed a workers’

compensation claim prior to the termination of her employment,
although

the

district

court

did

not

rely

on

this

fact.

Moreover, even though Columbia Farms proffered a nonretaliatory
reason for why it terminated Harris’ employment -- that he left
the line without permission -- the district court was entitled
to

accept

Harris’s

permission

to

leave

station.

account
the

Similarly,

that

line

he

in

order

Columbia

Farms

actually
to

had

visit

represented

received

the

nurse’s

that

it

was

terminating Jamison’s employment because she had taken excessive
breaks.

But

again,

the

district

court

found

that

that

explanation lacked credence since the company doctor had advised
Jamison to take frequent breaks and she was returning from the
nurse’s station each time she was spotted outside of her work
area.

The

district

court

was

also

entitled

to

consider

persuasive “the fact that a supervisor at Columbia Farms [had]
indicated that Jamison would likely be terminated as a result of
her injury.”

Atkinson, 874 F. Supp. 2d at 481-82.

Columbia

Farms

nonetheless

challenges

the

judgments

in

favor of these two plaintiffs, arguing that an extended period
of time would have elapsed before they would have been able to
perform

their

normal

job

duties,
37

thus

justifying

their

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discharge.
does

an

that

an

employer

employee’s

work standards.”
Elec.

Pg: 38 of 45

There is some force to this position, as the statute

specify

defense”

Filed: 03/11/2014

“shall

“failure

to

have

meet

as

an

affirmative

established

employer

S.C. Code § 41-1-80; see also Horn v. Davis

Constructors,

(holding

that

§

employee

the

right

Inc.,

41-1-80
to

416

S.E.2d

“does
a

not

634,

637

singularly

reasonable

(S.C.
accord

period

of

1992)
to

time

an
for

rehabilitation to demonstrate the ability to perform his former
employment”).

But in Horn, the court also affirmed the judgment

entered in favor of an employee, even though the record showed
that he was totally disabled for almost a year as a result of an
on-the-job injury to his back and then only released to return
to work with restrictions that prevented him from performing his
former job.
controls

Id. at 634-35.

Columbia

Farms’

We conclude that this decision

argument.

We

also

note,

in

this

regard, that the district court specifically found that Jamison
was not entitled to any lost wages on the ground that she had
failed

to

mitigate

her

damages

after

her

discharge,

and

it

awarded lost wages to Harris only after finding that he “had
been on light duty before the company doctor released him to
return to full duty, and [he] did not indicate that he would not
have been physically able to return to light duty, pursuant to
any medical restrictions, if Columbia Farms had not terminated
his employment.”

Atkinson, 874 F. Supp. 2d at 481.
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Finding no error with respect to Harris and Jamison, we
affirm the district court’s judgments in their favor.

IV
For the reasons given, we reverse the judgments (including
attorneys’ fees) in favor of the 16 plaintiffs who prevailed
below on claims under the S.C. Wages Act, concluding that those
claims should have been dismissed as preempted under § 301 of
the LMRA; we reverse the judgments on the retaliation claims
brought by Atkinson, Edens, Johnson, Baisey, Bruster, and Case
for

their

failure

to

prove

their

claims;

and

we

affirm

the

judgments in favor of Harris and Jamison on their retaliation
claims.
AFFIRMED IN PART; REVERSED IN PART

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KING, Circuit Judge, concurring in part and dissenting in part:
I respectfully disagree with the panel majority’s decision
except its affirmance of the judgments in favor of plaintiffs
Billy Harris and Lisa Jamison on their workers’ compensation
retaliation claims.
court,

which

Indeed, I would fully affirm the district

carefully

and

capably

adjudicated

all

of

the

retaliation and unpaid wages claims asserted herein.
With respect to the unpaid wages claims, the district court
properly

allowed

a

jury

trial

on

whether

defendant

Columbia

Farms violated the South Carolina Payment of Wages Act by, inter
alia, providing written notice to employees that they would be
paid based on “clock time,” while compensating them for only
“line time.”

See S.C. Code § 41-10-30(A) (requiring “[e]very

employer [to] notify each employee in writing at the time of
hiring of the normal hours and wages agreed upon,” as well as to
make “[a]ny changes in these terms . . . in writing at least
seven calendar days before they become effective”); see also
Carolina
Licensing,

Alliance
&

for

Fair

Regulation,

Emp’t

523

S.E.2d

v.

S.C.

795,

1999) (“The statute is a notice statute.

Dep’t

803

(S.C.

of

Labor,

Ct.

App.

It is intended to

provide the employee with the information requisite to make an
educated

decision

whether

or

not

to

accept

employment.”).

Significantly, the evidence was sufficient for the jury to find
that — despite Columbia Farms’s practice of paying employees
40

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premised

on

Filed: 03/11/2014

“line

time,”

a

Pg: 41 of 45

practice

permitted

by

but

not

elucidated in the collective bargaining agreement (the “CBA”) —
each and every document provided to the plaintiffs indicated
that their wages would instead be for “clock time.”

The court

thus correctly determined that the plaintiffs presented valid
state law claims for recovery of unpaid wages.

See Evans v.

Taylor Made Sandwich Co., 522 S.E.2d 350, 352-53 (S.C. Ct. App.
1999) (invoking section 41-10-30(A) in upholding a jury verdict
and

treble

back

wages

award

in

favor

of

employees

who

“interpreted [a posted] document as Taylor Made’s promise to pay
[them] 0.6133 cents per sandwich produced,” but who actually
received “wages based on a per package rate, which may include
one and a half or two sandwiches”), overruled on other grounds
by Barron v. Labor Finders of S.C., 713 S.E.2d 634, 638 (S.C.
2011).
The district court was also right to rule that the unpaid
wages claims were not preempted by § 301 of the Labor Management
Relations

Act

(the

“LMRA”),

29

U.S.C.

§ 185.

That

is,

resolution of the claims did not require interpretation of the
CBA, which, again, was silent on the “line time”-“clock time”
issue.

See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399, 405-06 (1988) (explaining that § 301 preemption occurs when
“the resolution of a state-law claim depends upon the meaning of
a collective-bargaining agreement”).
41

Moreover, § 301 does not

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otherwise preempt “nonnegotiable rights conferred on individual
employees as a matter of state law” — here, the right to written
notice

of

their

normal

hours

and

wages.

See

Livadas

v.

Bradshaw, 512 U.S. 107, 123 (1994); see also Lingle, 486 U.S. at
409

(observing

federal

law

that

will

Ҥ 301

be

the

pre-emption

basis

for

merely

ensures

interpreting

that

collective-

bargaining agreements, and says nothing about the substantive
rights a State may provide to workers when adjudication of those
rights

does

not

agreements”).
to

depend

upon

the

interpretation

of

such

Simply put, the CBA did not free Columbia Farms

disseminate

misleading

wage-and-hour

notices

or

exempt

it

from the consequences of doing so.
As for the workers’ compensation retaliation claims, the
district court properly entered judgments for eight plaintiffs —
the

two

that

majority

we

affirm

reverses

(those

Edens,

Shiren

Johnson,

Steven

Case).

Those

because

the

today,

court

in

favor

Shirley
latter

heeded

plus

the

of

Baisey,

judgments
controlling

six

that

Natasha

panel

Atkinson,

Tamortha
also

the

Anna

Bruster,

merit

principles

affirmance
of

South

Carolina law, including the following:
●

“‘In order to prove a claim [of workers’
compensation discrimination under South Carolina
Code section] 41-1-80, a plaintiff must establish
three elements:
(1) the institution of workers’
compensation
proceedings,
(2)
discharge
or
demotion, and (3) a causal connection between the
first two elements,’” Atkinson v. House of
42

and

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Raeford Farms, Inc., 874 F. Supp. 2d 456, 475
(D.S.C.
2012)
(quoting
Hinton
v.
Designer
Ensembles, Inc., 540 S.E.2d 94, 97 (S.C. 2000));
●

“Proving a claim under section 41-1-80 does not
require
a
formal
filing
of
a
workers’
compensation claim,” as “[t]he Supreme Court of
South Carolina has held that conduct sufficient
to
be
considered
instituting
a
proceeding
includes ‘the employer’s agreement to pay or
payment of medical care or the employer’s receipt
of written notice from an independent health care
provider in the form of a bill for medical
services rendered to an injured employee,’” id.
(quoting Johnson v. J.P. Stevens & Co., 417
S.E.2d 527, 529 (S.C. 1992)); and,

●

“To establish causation under section 41-1-80,
the employee must show that he would not have
been discharged ‘but for’ the institution of the
workers’ compensation claim” — a burden that the
employee may satisfy “either by ‘persuading the
court
that
the
discharge
was
significantly
motivated by retaliation for her exercise of
statutory rights, or indirectly by showing that
the employer’s proffered explanation is unworthy
of credence,’” id. at 475-76 (quoting Hinton, 540
S.E.2d at 97).

The district court sensibly predicted that the Supreme Court of
South Carolina would add to Johnson’s non-exhaustive list of
proceeding-instituting

conduct

“an

employee’s

seeking

or

receiving of medical treatment from the employer accompanied by
circumstances
workers’

which

would

compensation

lead

claim

the

is

likely

Atkinson, 874 F. Supp. 2d at 475.
reasonably

determined

that

the

employer
to

to
be

infer
filed.”

that

a

See

Concomitantly, the court
six

plaintiffs

instituted

proceedings by seeking treatment from the Columbia Farms nurse’s

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office, requesting to see the company doctor, and ultimately
resorting to private care for conditions regularly incurred in
the

workplace

those

and

conditions

typical
being

of

workers’

“sore

compensation

hands”/carpal

claims

tunnel

—

syndrome

(Atkinson, Edens, Johnson, and Baisey), an injured and infected
finger

(Bruster),

recognized,

and

injured

notwithstanding

hands

the

(Case).

company

As

the

nurse’s

court

professed

beliefs “that carpal tunnel syndrome is [not] a work related
injury” and that Bruster’s and Case’s injuries were sustained
elsewhere, see id. at 462, 465, 467, the six plaintiffs had all
expressly

attributed

their

conditions

to

their

labors

at

Columbia Farms.
Finally, the district court’s causation rulings were also
legally

and

factually

sound.

The

court

concluded

that

the

reason articulated by Columbia Farms for discharging Atkinson,
Edens, and Johnson — that they failed to secure notes from their
private physicians permitting them to return to work without
restrictions — was unworthy of credence.

In that regard, the

court pointed to the company nurse’s testimony “that Columbia
Farms generally made accommodations, such as light duty, for
employees with workers’ compensation injuries.”

See Atkinson,

874 F. Supp. 2d at 476-77 (explaining that “where an employer
sets forth the employee’s inability to perform his job duties as
the

employer’s

reason

for

terminating
44

the

employee,

evidence

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that the employer had a policy of accommodating employees with
workers’
failure

compensation
to

injuries,

accommodate

the

coupled

with

plaintiff[,]

the

may

employer’s

support

that

plaintiff’s assertion that the employer’s proffered reason for
termination was mere pretext”).

The court further found that,

in firing Baisey, Bruster, and Case, Columbia Farms pretextually
invoked their excessive attendance points — points that they
would not have accumulated but for the company nurse’s flimsy
appraisal
workplace.

that

they

sustained

their

injuries

outside

the

See, e.g., id. at 478 (“Although Baisey’s employment

at Columbia Farms included repetitive use of her hands, [the
company nurse] independently determined that Baisey’s injury was
not work related and refused to allow her to visit the company
doctor for further assessment.

As a result, Baisey received

attendance points for the absences associated with her injury,
and was terminated from employment.”).
Simply put, because I agree with its cogent analysis, I
would affirm the district court across-the-board.

45