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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.

Large Employers Should Be Aware of Significant Developments Impacting EEO-1 Reporting Deadlines

Large Employers Should Be Aware of Significant Developments Impacting EEO-1 Reporting Deadlines
Private sector employers with at least 100 employees, and federal contractors with at least 50 employees should be well aware of the federal law requirement that they file an annual EEO-1 Report with the Equal Employment Opportunity Commission (EEOC) setting out certain demographic data regarding its employees.  The EEO-1 reporting requirement has been in place since 1967.   The EEOC is authorized to require reporting of employee data under Title VII of the Civil Rights Act of 1964 and federal regulations implementing that statute.  The operative EEOC regulations addressing the various reporting requirements are found at 27 CFR 1602.7 through 1602.14.  The nature and number of forms to be submitted vary based on how many office locations the employer maintains and the number of persons employed at each location.
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Take Two on Overtime Rule/Changes

Take Two on Overtime Rule/Changes
We are now approaching the 3rd anniversary of the United States Department of Labor’s (DOL) efforts to raise the minimum salary of those workers who can be deemed “exempt” from federal law overtime requirements.  Under current federal law, in order to be exempt from overtime requirements, an employee (1) has to perform executive, administrative, or professional duties (the “duties test”); (2) has to be paid a set weekly salary that does not change based upon the number of hours worked (the “salary level test”); and, (3) has to be paid at least $455.00 per week ($23,660.00 annually).  This last criteria is referred to as the “minimum salary test.”  The minimum salary test is the subject of the ongoing effort to change current law.  Despite the protracted debate, most everyone agrees an annual salary of $23,660.00 is too low a threshold and that it needs to be raised. 
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The Growing Danger in Using Prior Income to Perpetuate Wage Distinctions

The Growing Danger in Using Prior Income to Perpetuate Wage Distinctions

  Many of us have been in a job interview on one side of the table or the other during which this very common question is asked - “what are you currently making?”  There is now, however, a growing movement questioning the legitimacy of inquiries regarding an applicant’s prior wages for the purpose of setting her rate of pay if she is hired. This includes an expanding body of judicial opinion holding that asking an applicant about her prior wages to set the amount of her pay once hired violates federal and state laws respecting equal pay.

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When Friend Requests on Social Media Aren’t So Friendly

When Friend Requests on Social Media Aren’t So Friendly

More businesses are requiring their employees who regularly work with customers or who possess certain types of sensitive information to sign some form of contract restricting the employee’s ability to engage in competitive activity once the employment terminates.

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Federal Appeals Court Rejects Extended Unpaid Leave as Reasonable Accommodation for a Disability

Federal Appeals Court Rejects Extended Unpaid Leave as Reasonable Accommodation for a Disability

One of the most difficult recurring problems for employment lawyers is the employee who requests an extended unpaid medical leave with the expectation that she be able to return to work when medically cleared months later. The common fact pattern involves an employer subject to the Family and Medical Leave Act (FMLA) being informed that an employee who is about to exhaust her 12 weeks FMLA leave still is not able to return to work due to a medical condition. The FMLA only guarantees to employees a maximum of 12 weeks unpaid leave within a 12 month period. It does not require an employer to extend that leave, nor does it penalize the employer for terminating an employee who is unable to return to work after exhaustion of FMLA leave.

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Employers Must Use a Revised Version of Form I-9 Starting September 18, 2017

Employers Must Use a Revised Version of Form I-9 Starting September 18, 2017

The United States Citizenship and Immigration Services (USCIS) has released a revised version of Form I-9, Employment Eligibility Verification. All employers are expected to use the revised form by September 18, 2017. Failure to use the new form after that date will constitute non-compliance with federal law and may subject the employer to potentially significant fines by USCIS.

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Tennessee Healthcare Employers Must Now Report Positive Drug Test Results For Its Licensed Healthcare Employees

Tennessee Healthcare Employers Must Now Report Positive Drug Test Results For Its Licensed Healthcare Employees

On July 1, 2017, over 130 new laws recently enacted by the Tennessee legislature became effective. One of those imposes new reporting requirements on employers in the healthcare sector whose licensed healthcare employees test positive on a drug test or refuse to submit to a drug test when directed to do so.

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Must an Employer Allow a Resigning Employee to "Work Out a Notice?"

Must an Employer Allow a Resigning Employee to "Work Out a Notice?"

As an employment lawyer, I tend to focus a substantial part of my time on the consequences that may follow employee terminations that are involuntary. From time to time, however, questions do arise in the context of voluntary resignations. For instance, I am occasionally asked whether an employer must allow a resigning employee to continue her employment for a limited period of time following a notice of resignation. The common situation is when an employee says, “I am giving you my 2-week notice.” Similarly, an employee may inform her supervisor on May 1, “I am leaving for another opportunity. My last day of work will be May 15.”

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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.

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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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