Suitable employment has been defined as “any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills and experience.” Shah v. Howard Johnson, 140 N.C. App. 58, 68, 535 S.E.2d 577, 583 (2000) (internal marks and citation omitted). However, the job position must be a bona fide position, and not “make-work. “The fact that an employee is capable of performing employment tendered by the employer [post-injury] is not, as a matter of law, an indication of Plaintiff’s ability to earn wages.” Saums v. Raleigh Community Hospital, 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997). For example, make-work positions are those which have been “so modified because of the employee’s limitations” that they do not “accurately reflect the [employee]’s ability to compete with others for wages.” Peoples v. Cone Mills Corp., 316 N.C. 426, 438, 342 S.E.2d 798, 806 (1986).
Central to determining whether employment constitutes make work is whether or not the postinjury job is “ordinarily available on the competitive marketplace.” Id. at 437-38, 342 S.E.2d at 805-06. The NC Supreme Court in Peoples reasoned that earning capacity “must be measured . . . by the employee’s own ability to compete in the labor market, . . . [because] [w]ages paid by an injured employee out of sympathy, or in consideration of his long service with the employer, clearly do not reflect his actual earning capacity…The ultimate objective of the disability test is . . . to determine the wage that would have been paid in the open market under normal employment conditions to [the employee] as injured.” Id. (emphasis in original). The Court went on to note, “[i]f the proffered job is generally available in the market, the wages earned in it may well be strong, if not conclusive, evidence of the employee’s earning capacity.” Id. at 440, 342 S.E.2d at 807.
Based largely on the precedent set out in Peoples, North Carolina courts have often looked to whether an employer can show that the position in question was advertised on the company website, or some other public job posting source, to show that it is suitable employment and not make-work. If the employer is not able to produce evidence that the position was listed publicly, this lack of evidence has hefty probative value in proving a claimant’s argument that the job is make-work, and thus not suitable employment.
The holding in the recent Court of Appeals case of Stacy Griffin v Absolute Fire Control, Inc., however, diminishes the probative value of a non-existent job posting. No. COA19-461, 2020 WL 64485, at *1 (N.C. Ct. App. Jan. 7, 2020). In Griffin, the Plaintiff returned to work following his injury, and it was undisputed he could not perform his pre-injury job of pipe-fitter. He was offered a job in the employer’s fabrication shop, which he accepted. When he eventually reached maximum medical improvement, he claimed the fabrication shop position was not suitable employment because it was make-work. He further argued that if employment with Defendant-Employer were to end, he would be unable to earn his pre-injury wages in the competitive marketplace. To support his argument, Plaintiff cited the lack of any showing by the Defendant-Employer that the fabrication shop position was ever publicly posted as an available position within the company.
The Court of Appeals ultimately found for Defendant-Employer on this issue, holding that the employer’s “unique hiring practices of hiring based upon word of mouth and personal recommendations does not render the fabrication shop position not suitable. Albeit confined to Defendant-Employer’s unique ‘advertisement,’ the positions available with Defendant-Employer, including the fabrication shop position, are available to individuals in the marketplace.” The Court looked to the fact that the position was a permanent position with the company, was essential to Defendant-Employer’s business, and was a position that Defendant-Employer had a regular and constant need to keep staffed. Further, the fabrication shop position was not tailored or created specifically to fit Plaintiff’s restrictions. The lack of public advertisement for the position did not prevent it from being deemed suitable employment, which is a helpful point for any defendant dealing with an allegation of make-work.
