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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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).
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.
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.
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.
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”).
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.
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.