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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.

Must Tennessee Employers Pay Departing Employees For "Accrued" But Unused Leave?

I am from time to time asked by both employers and employees if a Tennessee employer must pay an employee for her "accrued" but unused leave days when she quits or is discharged. There seems to be an assumption by most people who ask the question that if the paid leave days are accrued as opposed to advanced, the employee must be paid for them. Surprisingly, the answer to the question is not what most people expect.

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AVOIDING THE "READY, FIRE, AIM" APPROACH TO EMPLOYEE DISCIPLINE

I regularly represent both employers and employees in litigation concerning terminations of employees for misconduct or unsatisfactory performance.  On occasion, I am also asked to mediate such disputes. After 28 years, you begin to recognize where the “trigger events” leading to lawsuits lurk.

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CHECKING EMAILS AND TEXTS AFTER HOURS MAY BE COMPENSABLE TIME

Not too long ago a client manager and I were reviewing workplace policies relating to employee use of the employer's computer system. Employers often have a number of policies or handbook statements on this topic ranging from protection of the employer's confidential information, to prohibitions on sexual and other forms of unlawful harassment.

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Basing Hiring Decisions on an Applicant’s Workers Compensation History

The Tennessee Supreme Court very recently issued a decision addressing whether an employer that refuses to hire a job applicant because of her past workers’ compensation claims with another employer violates the Tennessee workers compensation statutes and can be sued for "retaliatory failure to hire."

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WHO OWES WHAT TO WHOM? - WHEN AN EMPLOYEE UNDER CONTRACT LEAVES EARLY

Most private sector employees in Tennessee are classified as “employees at will.”  That means the employment relationship can be terminated by either the employer or employee at any time, without notice and for any reason that is not illegal or against public policy (i.e., not involving race, gender, disability or age discrimination, etc.).  Thus, absent some contractual provision to the contrary, employees classified as “at will” can walk out at any time and bear no legal responsibility for losses sustained by their employer as a result of their sudden absence.

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The US Department of Labor Provides More Warning of Crackdown on Worker Misclassification

Earlier this year I posted regarding an expanding collaboration between various state and federal agencies to combat misclassification of employees as independent contractors. This effort is being spearheaded by the US Department of Labor, which reports receiving numerous complaints of misclassification for the purposes of avoiding minimum wage and overtime compensation requirements, unemployment insurance and workers compensation coverage. Very recently, the Department of Labor's Wage and Hour Division Administrator issued an "Administrator's Interpretation" providing guidance on the factors to be analyzed when determining whether a worker should be classified as an employee or independent contractor for purposes of federal minimum wage and overtime laws and the Family and Medical Leave Act (FMLA).

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OSHA Announces New Enforcement Emphasis on Healthcare Industry

On June 25, 2015 the Occupational Safety and Health Administration (OSHA) issued a memorandum to its regional and state enforcement offices announcing a new inspection emphasis for inpatient healthcare providers such as hospitals and residential care facilities.  The impetus for this initiative is the significantly higher rates of workplace injuries in these employment settings attributable to several identified causes, including musculoskeletal injuries, slips, trips and falls and workplace violence.

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Employment Considerations from US Supreme Court Ruling on Same Sex Marriage

The United States Supreme Court's recent decision in Obergefell v Hodges striking down state law prohibitions of same sex marriage and requiring states to recognize such marriages from other states will have some immediate impact in the workplace.  That is particularly true for employers in states such as Tennessee where no prior lower federal court decision invalidated Tennessee's constitutional ban on same sex marriages.

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Employee Non-Competition Agreements Part 3: You Mean They Can Stop Me from Working?

My final post in this 3 part series addresses non-competes from the employee's perspective. I am regularly retained to review noncompetition agreements (“noncompetes”) by employees who were fired or resigned to accept another job.

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Employee Non-Competition Agreements Part 2: The Employer's Perspective

In my last post I discussed the differences between the various types of employment agreements designed to restrict an employee's post-employment activities and identified the factors Tennessee courts analyze when determining whether to enforce a non-competition agreement (“non-compete”).

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Employee Non-Competition Agreements Part 1: The Basics

This post is the first of a multi-part series discussing employee non-competition agreements ("non-competes"). This installment describes the different forms of contractual limitations employers often use in an effort to protect their business interests following a key employee's departure and the factors Tennessee courts analyze when asked to enforce non-competes. Future posts will discuss non-competition agreements from both the employer and employee's perspective and some of the unique aspects of physician non-competes.

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Beware of Payroll Offsets in Tennessee

I am often asked by employers if they can deduct from an employee's paycheck money owed the employer for payroll advances, personal loans or for lost or damaged company property issued to the employee. Another common question is whether an employer may deduct from an employee's final paycheck amounts previously advanced for vacation or sick leave that was not yet earned. Until recently, the answer to these questions was determined exclusively under federal wage and hour laws. In most instances, the very simple answer was as long as the amount of the wage payment after offset netted the employee an hourly wage in excess of the minimum hourly wage, the deduction was permissible.

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Are Employees Who Travel Away from Home Overnight Entitled to Travel Time Pay?

I was recently asked by a client to explain federal wage and hour regulations addressing work travel by non-exempt employees (employees who are paid based on an hourly wage rate and entitled to overtime pay).  In the course of this exercise, I quickly remembered how certain forms of travel can make the job of a payroll administrator very difficult.

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Your Employee Handbook and Work Rules Probably Violate Federal Law

Most employers and their legal counsel pay little attention to the actions of the National Labor Relation Board (NLRB). They assume that the NLRB only concerns itself with employers whose employees are members of a union. In many instances that is correct but in fact, the NLRB has jurisdiction over all private sector employers without regard to whether their workforce is unionized. From time to time, the NLRB steps away from resolving union election disputes and renders decisions that have very significant implications for all employers. That has been taking place for the past year regarding employer workplace rules and in particular, rules that seek to limit employee communications on social media.

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UPDATE ON RECENT NEWS: Federal Court in Texas Delays Implementation of New Definition of Spouse Under the FMLA in 4 States

Several weeks ago I reported on the United States Department of Labor's final rule amending the definition of "spouse" under the FMLA to specifically include spouses in same sex marriages; even for employees working in states that do not currently recognize such marriages. That change was to become effective March 27, 2015.

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New Definition of "Spouse" Under the FMLA Includes Spouses in Same Sex Marriages - Even in States That Do Not Recognize Such Marriages

The United States Department of Labor recently published a final rule that amends the definition of "spouse" under the Family and Medical Leave Act (FMLA) to specifically include spouses in same sex marriages. More significantly, however, the new rule provides that the legality of a marriage is to be determined by the law of the state in which the marriage was entered into (the place of celebration), not the state of residence. This definition change means that employers subject to the FMLA in the 16 states that currently do not recognize same sex marriages must nonetheless extend FMLA leave rights to eligible employees who request leave to care for same sex spouses, as long as the marriage was legal in the state where it was celebrated. This rule change takes effect on March 27, 2015.

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Misclassifying Employees As “Independent Contractors” Under Increasing Scrutiny

The United State Department of Labor (DOL) has partnered with almost 20 States to pursue employers that engage in misclassification of employees as independent contractors and collect unpaid overtime, payroll taxes, benefits and penalties that may be due. 

The financial incentive to treat persons who perform services as independent contractors is significant.  While employees are entitled to wage protections such as minimum wage and overtime pay, and in some cases leave protection such as FMLA, true independent contractors are not.  In addition, employers must pay State and federal payroll taxes, unemployment taxes and provide workers compensation coverage for employees, but not for independent contractors.  More recently, as the Affordable Care Act is implemented, certain employees classified as “full-time” under that statute are also to receive mandatory health care insurance coverage.

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Employers May Face OSHA Fines For Employee Texting While Driving

We all know that the Occupational Health and Safety Administration (OSHA) issues and enforces workplace safety and health standards.

We expect to see OSHA involved in setting and enforcing safety standards in industrial and construction settings where workplace accidents unfortunately are more prevalent. While OSHA is certainly active in heavily industrialized work settings, the Occupational Safety and Health Act of 1970 ("the Act") pertains to all employment settings and requires that all employers provide their employees with a safe workplace free from known dangers. Even if there is no specific OSHA standard applicable to a particular employment practice, the Act contains a "general duty" clause which provides that all employers have a general duty to provide a safe workplace.

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Tennessee "Certificates of Employability" : A Welcome Development for both Employers and Prospective Employees with Criminal Histories

In the last few weeks I have discussed recent developments in Tennessee and federal employment laws which will either take effect on January 1, 2015, or which may soon change some employment practices in Tennessee.

One very positive recent development was the Tennessee legislature’s passage of legislation which provides a mechanism for employers to give “second chance” opportunities for meaningful employment to individuals who have criminal convictions in their past. I have often observed that a number of employers and hiring managers believe in providing these second chance opportunities when possible. Unfortunately, until now, hiring managers must weigh the desire to extend a helping hand with the risk that hiring someone with a known criminal history, no matter how distant, could provide fodder for a claim of negligent hiring in the event the employee is later alleged to have engaged in some criminal, intentional, or other inappropriate conduct. For that reason, many employers simply determine the safest course of action is to avoid hiring individuals with any criminal history.

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Tennessee Employee Online Privacy Act Takes Effect January 1, 2015

On April 29, 2014 Governor Haslam signed into law the Employee Online Privacy Act of 2014. This new law takes effect January 1, 2015 and applies to all employers in Tennessee who employ at least one person.

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