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In Our Judgement: In Law & In Life

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Employment Law

The official Frantz, McConnell, and Seymour, LLP blog.

John M. Lawhorn (View Website Bio) of Frantz, McConnell & Seymour, LLP practices extensively in the field of Labor and Employment law and regularly advises clients concerning federal and state laws pertaining to employment discrimination, retaliation and harassment, workplace policies, OSHA/TOSHA compliance, wage and hour compliance, labor/management relations, employment contracts and in many other aspects of the employment field. He regularly represents employer and employee interests in Tennessee State and federal courts on a wide variety of employment related matters.

Federal Appeals Court Holds Title VII Prohibits Sexual Orientation Discrimination

Federal Appeals Court Holds Title VII Prohibits Sexual Orientation Discrimination

In the last 9 months, I have twice posted on efforts by the Equal Employment Opportunity Commission (EEOC) and a number of private litigants to have federal courts construe federal statutory protections against certain forms of workplace discrimination to include discrimination on the basis of sexual orientation. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate against employees on account of “race, color, religion, sex, or national origin. . ..” During the last 40 years, a number of federal courts, including federal appellate courts, regularly rejected efforts to interpret the term “sex” as including sexual orientation and thereby refused to extend anti-discrimination protections to LGBT employees. This was often done on a perfunctory basis and without much reflection or debate on the question.

More recent efforts, however, have proven to be more successful. With the EEOC’s backing, several federal trial courts have reevaluated these previous decisions refusing to extend Title VII protection and concluded that LGBT employees asserting those claims can proceed. A very significant milestone occurred on April 4, 2017, when a United States federal court of appeals held for the first time that Title VII’s prohibition against “sex” discrimination protects employees against discrimination on account of their sexual orientation. What makes this decision even more significant is it was decided by the full 7th Circuit Court of Appeals (referred to as en banc) rather than a panel of only 3 judges.

This recent decision of the 7th Circuit Court of Appeals does not directly impact Tennessee employers. Tennessee is situated within the jurisdiction of the federal 6th Circuit Court of Appeals. Current 6th Circuit precedent holds that sexual orientation discrimination is not prohibited by Title VII. That precedent, however, like in the 7th Circuit, is currently under challenge and litigants no doubt will ask the 6th Circuit to reevaluate its prior holdings within the context of 21st century American society. Ultimately, there can be little doubt this issue will proceed to the United States Supreme Court for ultimate review.

Employers need to understand that while current law in Tennessee may not expose employers to liability on account of claims of sexual orientation discrimination, one judicial decision can immediately change years of legal precedent. As this is a fast developing area of employment law, I urge employers to consider obtaining legal advice whenever addressing complaints of discrimination brought to them by LGBT employees or when considering any action that may be perceived as unfair or discriminatory on account of an employee’s sexual orientation. Experienced employment counsel can assist you when addressing these situations and hopefully in avoiding potential future liability.

If you would like to speak to John Lawhorn on this or any other matter, he may be reached at (865) 546-9321.

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Employee Beware: Understand Your Rights Before Signing or Litigating a Non-Competition Agreement or Other Employment Contract

Employee Beware: Understand Your Rights Before Signing or Litigating a Non-Competition Agreement or Other Employment Contract

I am regularly asked by employees to review various types of employment contracts, including employee non-competition agreements. More often than not these employees are Tennessee residents who work in a Tennessee-based office (or home office) and whose job duties are typically performed in Tennessee. Despite those factors, the contracts presented to them often contain two terms quite troubling to lawyers, but which go unnoticed by our clients.

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UPDATE: TEXAS FEDERAL COURT BLOCKS IMPLEMENTATION OF NEW OVERTIME RULES

UPDATE: TEXAS FEDERAL COURT BLOCKS IMPLEMENTATION OF NEW OVERTIME RULES

Public and private employers throughout the United States received an early holiday gift from a United States district court in Texas on November 22, 2016. As I have discussed previously in this blog, the United States Department of Labor (DOL) issued new rules earlier this year substantially changing the federal law criteria for determining which employees can be deemed “exempt” from overtime requirements. Those new rules were to go into effect December 1, 2016. Currently, to be considered exempt from overtime requirements, an employee had to perform executive, administrative, or professional duties (the “duties test”); had to be paid a set weekly salary that did not change based upon the number of hours worked (the “salary level test”); and, pertinent to the current discussion, had to be paid at least $455.00 per week ($23,660 annually). This last criteria is referred to as the “minimum salary test.”

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Further Developments On Extending Title VII Protection To Sexual Orientation Discrimination

Further Developments On Extending Title VII Protection To Sexual Orientation Discrimination

In August 2016, I discussed a recent decision of the United States 7th Circuit Court of Appeals which held “that Title VII does not redress sexual orientation discrimination.” As I mentioned in that post, the 7th Circuit’s decision was the first federal appeals court opinion on that subject since the United States Supreme Court decision guaranteeing same sex marriage rights under the United States constitution. It is also the first decision of a federal appeals court on that subject since the United States Equal Employment Opportunity Commission (EEOC) announced its intention to file federal court lawsuits seeking extension of Title VII protection to claims of sexual orientation discrimination.

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Mandatory Flu Vaccination Policies for Healthcare Workers Are Receiving Court Approval

Mandatory Flu Vaccination Policies for Healthcare Workers Are Receiving Court Approval

As fall approaches, many employers are preparing to offer flu vaccinations to their employees. In most work settings, this is a voluntary benefit that employees may choose to accept or not, based on their own personal beliefs regarding such vaccinations. In the healthcare sector and more particularly within hospital settings, there has been a growing movement to require flu vaccinations of all hospital personnel.

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ARE CHARITABLE NON-PROFIT ORGANIZATIONS SUBJECT TO UPCOMING CHANGES TO FEDERAL WAGE AND HOUR LAWS?

ARE CHARITABLE NON-PROFIT ORGANIZATIONS SUBJECT TO UPCOMING CHANGES TO FEDERAL WAGE AND HOUR LAWS?

I have posted twice since the beginning of this year [February 18, 2016] and [May 20, 2016] concerning upcoming changes in federal wage and hour laws. The Fair Labor Standards Act (FLSA) guarantees covered workers a minimum hourly wage and overtime pay at a rate of 1.5 times their base hourly rate for hours worked in excess of 40 hours in a work week.

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Federal Appeals Court Refuses to Extend Title VII Protection to Claim of Sexual Orientation Discrimination

Federal Appeals Court Refuses to Extend Title VII Protection to Claim of Sexual Orientation Discrimination

In the last year, I have twice posted on the topic of whether federal statutory protections against discrimination on account of “sex” will be extended to claims of sexual orientation discrimination. [10/29/15 and 3/21/16 posts] This topic became a regular subject of discussion among employment law practitioners and their clients following the U.S. Supreme Court’s decision in 2015 requiring states to provide marriage rights to same sex couples.

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WAGE GARNISHMENTS FOR TENNESSEE EMPLOYERS JUST BECAME MORE COMPLICATED

WAGE GARNISHMENTS FOR TENNESSEE EMPLOYERS JUST BECAME MORE COMPLICATED

In April 2016 Governor Haslam signed a bill that became effective September 1, 2016, which will likely increase the number of wage garnishments with which many Tennessee employers will have to contend. This is particularly true for employers that make regular use of independent contractor workers.

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TENNESSEE EMPLOYERS WITH 50 OR MORE EMPLOYEES MUST USE E-VERIFY SYSTEM BY JANUARY 1, 2017

TENNESSEE EMPLOYERS WITH 50 OR MORE EMPLOYEES MUST USE E-VERIFY SYSTEM BY JANUARY 1, 2017

Before 2011, Tennessee employers only had to worry about federal immigration law requirements for verifying employee eligibility to work.

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U.S. Department of Labor Issues Final Rule Implementing Changes to Overtime Laws

U.S. Department of Labor Issues Final Rule Implementing Changes to Overtime Laws

In a February 2016 blog post, I discussed an anticipated major change in the criteria for determining who can be exempt from payment of overtime wages. 

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Many States and Now the Federal Government Are Questioning Use of Overreaching Non-Compete Agreements

Many States and Now the Federal Government Are Questioning Use of Overreaching Non-Compete Agreements

It seems that the use, or more specifically, the over use and abuse of employee non-compete agreements is now in the crosshairs of several state legislatures and the federal government.

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Most Employers Should Consider Having an OSHA Safety Consultant

Most Employers Should Consider Having an OSHA Safety Consultant

The reach of the Occupational Safety and Health Administration (OSHA) extends literally into every work place. 

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EEOC Files Its First Lawsuits to Extend Title VII Coverage to LGBT Employees Who Claim Discrimination Due to Sexual Orientation

EEOC Files Its First Lawsuits to Extend Title VII Coverage to LGBT Employees Who Claim Discrimination Due to Sexual Orientation

In an October 2015 post, I discussed whether the federal statute that prohibits discrimination on account of “sex” may be extended to protect employees who suffer discrimination or harassment due to their sexual orientation.  Will Protections Against Sex Based Discrimination Be Extended to Sexual Orientation?  There currently are no federal or Tennessee anti-discrimination statutes that expressly address sexual orientation as a prohibited basis for workplace discrimination or harassment. There also is very little likelihood of new legislation being enacted for that purpose either by the Tennessee legislature or United States Congress (at least as presently constituted). Consequently, a number of litigants, including the United States Equal Employment Opportunity Commission (EEOC), are asking the federal courts to extend the definition of discrimination on account of “sex” within Title VII of the Civil Rights Act of 1964 to include workplace discrimination on account of sexual orientation. As I previously discussed, a number of federal appeals courts have in the past refused to extend the definition of “sex” beyond gender based considerations. Those decisions, however, pre-date the recent judicial victories achieved by the LGBT community on issues such as same sex marriage. Consequently, these litigants are hopeful that federal courts might be willing to undertake a fresh analysis of the issue given the significant gains achieved by the LGBT community in other areas of the law.

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Major Change in Criteria for Determining Who Can Be an Overtime Exempt Employee Expected This Year

Major Change in Criteria for Determining Who Can Be an Overtime Exempt Employee Expected This Year

The Fair Labor Standards Act (FLSA) was enacted in 1938 for the primary purposes of guaranteeing workers a minimum hourly wage and overtime pay at a rate of 1.5 times their base hourly rate of pay for hours worked in excess of 40 in a work week.

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Employment Law Considerations for Inclement Weather Days

Employment Law Considerations for Inclement Weather Days

Winter finally arrived in Tennessee following repeated record high temperatures throughout December and the first few days of January.  Once cold weather and the first instances of winter precipitation arrive, employers will often ask me if there are any employment law considerations to inclement weather and inclement weather policies.  While there indeed are some legal considerations, this is an area where most employers should exercise a degree of common sense. 

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The Basics of Pay for Employee Break Periods Under Tennessee and Federal Law

The Basics of Pay for Employee Break Periods Under Tennessee and Federal Law

The laws addressing compensation for employee breaks are not that difficult to understand and properly apply.  As one recent court decision reminded me, however, some employers unfortunately choose either not to learn those rules, or to simply ignore them until the United States Department of Labor becomes involved. Before discussing that decision, let's review the basic legal requirements.

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OSHA ADDRESSES WORKPLACE VIOLENCE IN THE HEALTHCARE SECTOR

OSHA ADDRESSES WORKPLACE VIOLENCE IN THE HEALTHCARE SECTOR

Earlier this year I commented upon a new enforcement emphasis by OSHA in the healthcare industry.  At that time, OSHA issued a memorandum to its regional and state enforcement offices announcing a new inspection emphasis for inpatient healthcare providers, including hospitals and residential care facilities.  The new inspection regime was designed to identify and correct causes of musculoskeletal injuries, slips, trips and falls, as well as workplace violence.

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Lessons from Good News - Analyzing Recent Non-Compete Cases

Disappointment often presents us with difficult but valuable learning opportunities. Every now and then, however, we can enjoy some good news and still take in a lesson or two.

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OSHA Fines May Increase by More Than 80% - And No One Heard about It

On November 2 Congress passed and President Obama signed into law a budget agreement that received a substantial amount of media attention (The Bipartisan Budget Act of 2015). What was not so widely reported was an obscure provision within that legislation that authorizes the Occupational Safety and Health Administration (OSHA) to significantly increase its fines for the first time since 1990.

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Will Protections Against Sex Based Discrimination Be Extended to Sexual Orientation?

 

Since the United States Supreme Court's recent rulings resulting in state recognition of same sex marriages, a number of employers have asked me if they should expect an extension of workplace anti-discrimination protections to gay and lesbian employees.

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