Burley v. U.S. Foods, Inc., 233 N.C. App. 286

Background

Burley, a Georgia resident, worked for U.S. Foods as a truck driver; originally hired in South Carolina and later shifted to oversight by U.S. Foods’s Charlotte division after a 2002 merger.
After the transfer, Burley’s job title and core duties remained substantially the same, but his pay system changed from weight-based to a component/commission system and his earnings increased.
Burley completed paperwork and negotiated certain terms (e.g., drop-yard location) at a Charlotte safety meeting; final approval for the transfer was executed by HR personnel located in Charlotte.
Burley was injured in Georgia in 2009 and filed for workers’ compensation benefits in North Carolina; U.S. Foods denied NC jurisdiction and instead paid benefits under Georgia law.
Deputy Commissioner and Full Commission held the Industrial Commission lacked subject-matter jurisdiction under N.C. Gen. Stat. § 97-36(i) because the employment contract was not "made" in North Carolina; Burley appealed.
The Court of Appeals reversed: it held the Charlotte approvals modified the employment contract, the modification satisfied offer/acceptance/consideration, and the "last act" occurred in North Carolina, conferring jurisdiction under § 97-36(i).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a modification to an out-of-state employment contract can render the contract "made in" NC under N.C. Gen. Stat. § 97-36(i)	The Charlotte HR approval modified Burley’s employment contract; the last act occurred in NC, so § 97-36(i) applies	A mere modification (or acts in NC) does not change the contract’s situs; the original contract was made out of state so NC lacks jurisdiction	Modification can create a new contract for § 97-36(i) purposes; the Court holds a modification may render the contract "made in" NC
Whether Burley’s transfer constituted an enforceable contract modification (offer, acceptance, consideration)	The transfer offer (choice to transfer or severance) made at the Charlotte meeting, Burley accepted, and the change in pay method provided consideration	The transfer did not alter core employment; thus no new contract was "made" in NC	The Court found offer, acceptance, and consideration existed — a valid modification occurred
Whether the "last act" necessary to make the modified contract binding occurred in North Carolina	Final approval by Charlotte HR was the last act; paperwork/negotiations at the Charlotte meeting support NC situs	The final contract formation did not occur in NC such that NC is the situs; situs remains where original contract was formed	The Court concluded the final binding act occurred in Charlotte, satisfying the "last act" test and conferring jurisdiction
Whether the Commission’s lack of jurisdiction determination is entitled to deference on jurisdictional facts	Burley argues jurisdictional facts require independent appellate review and Court should decide de novo	U.S. Foods relied on Commission’s factual findings	Court reviewed jurisdictional facts independently and reversed the Commission

Key Cases Cited

Parker v. Thompson-Arthur Paving Co., 100 N.C. App. 367 (1990) (statutory limits on Industrial Commission jurisdiction)
Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294 (1998) (applies "last act" test for where employment contract was made)
Baker v. Chizek Transp., Inc., 210 N.C. App. 490 (2011) (lapse and rehiring with a last act in NC can make contract "made" in NC)
Hollowell v. N.C. Dep’t of Conservation & Dev., 206 N.C. 206 (1934) (application of common-law contract principles under Workers’ Compensation Act)
Spartan Leasing Inc. v. Pollard, 101 N.C. App. 450 (1991) (contract addendum can constitute a new contract when it modifies prior agreement)
NRC Golf Course, LLC v. JMR Golf LLC, N.C. App. (2012) (parties can form a new contract by agreeing to changed terms)
Cap Care Group, Inc. v. McDonald, 149 N.C. App. 817 (2002) (elements of contract formation: offer, acceptance, consideration)