Tennessee Labor Talk

Compliance with the California Transparency in Supply Chains Act of 2010

By Lymari Cromwell on Posted in Uncategorized

The passage of the California Transparency in Supply Chains Act of 2010 has led certain retail sellers and manufacturers to take a closer look at their supply chains for potential human trafficking violations.  And as of January 1, 2012, those retail sellers and manufacturers are required by the Act to make certain disclosures to the public regarding their efforts toward eradicating human trafficking and slavery in their supply chains.    

Which entities are covered?

The Act applies to every retail seller and manufacturer doing business in California and having annual worldwide gross receipts that exceed $100,000,000.  An entity is doing business in California for the purposes of this Act if it: Continue Reading

EEOC Issues Guidance on Criminal Background Checks

By Tim K. Garrett on Posted in Discrimination and Harassment Law and Practice

On April 25, the EEOC approved enforcement guidance on an employer’s use of criminal background checks in making hiring decisions. By a 4-1 vote, the EEOC clarified that a criminal background check is not unlawful.

BUT, the Commission explained its view that the use of criminal histories can be discriminatory in “impact” on minorities and will result in liability for employers if they cannot show “business necessity” for rejecting an applicant based on the applicant’s criminal past.

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Transgender Status Now Protected Under Title VII

By Tim K. Garrett on Posted in Discrimination and Harassment Law and Practice

The EEOC recently ruled that Title VII’s prohibition of discrimination “because of . . . sex” now includes protection for any transgender individual. With this ruling, the EEOC expressly overturns earlier EEOC decisions to the contrary dating back to 1984, 1994 and 1996. Employers should be aware that, according to the EEOC’s current interpretation, any transgender applicant or employee enjoys all of Title VII’s protections against discrimination or harassment.

The complainant had applied for a job with the ATF while a male and believed she was going to be hired given certain promises made in the application process. Later, when the ATF learned she was transitioning from male to female, she was told that funding for the job was no longer available; that information, she later learned, was not accurate.

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Sixth Circuit Recognizes Potential RICO Claim If Employees Wrongfully Denied Workers’ Compensation Benefits

By Tim K. Garrett on Posted in Wage and Hour Law and Practice

Employees in Michigan, Ohio, Kentucky and Tennessee who believe they have been wrongfully denied workers’ compensation benefits now have a new weapon – RICO. In Brown v. Cassens Transport Co., 6th Cir., No. 10-2334, 4/6/12, five employees sued their employer, a claims adjuster and a doctor alleging conspiracy to deny them workers’ compensation benefits. The Sixth Circuit Court of Appeals ruled that the lawsuit stated a claim under RICO.

RICO, the Racketeer Influenced and Corrupt Organizations Act, requires that an alleged victim identify four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Each element requires an additional analysis: an “enterprise” is marked by association and control; a “pattern” requires a showing of “continuity”, which is continuous and related behavior that amounts to, or poses a threat of, continued criminal violations; and “racketeering activity” involves the violation of designated federal laws. In addition, an alleged victim must allege that he was injured in his business or property “by reason of” a violation of RICO’s substantive provisions. Continue Reading

Demanding Social Media Site Passwords Now Illegal in Maryland

By Tim K. Garrett on Posted in Labor Board Proceedings and Practice

Social media sitesSocial media continues to gain attention in the employment law field.  From recent NLRB advice memoranda to Congress considering new legislation, to every employer now being advised to at least have a “policy” on social media, the news keeps pouring in. (Read this article by Eric Yaverbaum on The Washington Post blog, or this one on Mashable, or the many other articles online.)

Now, Maryland has become the first state to ban employers from asking for the social media site passwords of employees and applicants.  Relying on privacy concerns, the Maryland General Assembly passed legislation prohibiting employers from requesting or requiring usernames or passwords to personal online social media sites.  The legislation also bans an employer from taking disciplinary action, or threatening such action, if an employee or applicant refuses to disclose such information. Continue Reading

Fourth Circuit Holds that Former Employee Can Sue for Discrimination Based on Severance Offer

By Lymari Cromwell on Posted in Discrimination and Harassment Law and Practice

Termination noticeTitle VII’s protections against gender discrimination can extend to former employees complaining about the severance package they were offered, according to a recent federal appeals court ruling.  In Gerner v. County of Chesterfield, Virginia, the Fourth Circuit Court of Appeals ruled that offering less favorable, non-contractual employment benefits can be an “adverse employment action” under Title VII and that a former employee can sue based on such a theory.

Karla Gerner was employed by Chesterfield County, Virginia for more than 25 years when her job was eliminated in a December 2009 re-organization.  The County offered her three months of severance pay, along with health benefits, in exchange for her signing a general release of all claims.  Gerner declined the offer.  The County terminated her employment and provided her with no severance benefits.  Gerner then filed a lawsuit claiming that the County discriminated against her based on her sex by offering her a less favorable severance package than that offered to similarly-situated male employees. Continue Reading

Do Bouncers Provide Customer Service? The Challenges of Tip Pooling

By Robert Horton on Posted in Wage and Hour Law and Practice

tip poolingOn Feburary 13, 2012, the federal district court for the Middle District of Tennessee granted conditional certification of a class action case under the Fair Labor Standards Act (“FLSA”) against Coyote Ugly saloons. As reported by Law360, the court conditionally certified several distinct classes, the most interesting of which is all employees who “worked as bartenders, barbacks, or waitresses at any company-owned Coyote Ugly saloon at any time within the last three years who were required to contribute their tips to a “tip pool” in which security guards also participated.” Under the FLSA, an employer may take a “tip credit” against the minimum wage owed to employees.  That is, an employer may pay a tipped employee $2.13 an hour under the FLSA (note that the amount of the tip wage can vary by state or local law), and then rely on the tips received by a server to make up the difference between $2.13 and the minimum wage. (If the tips received by the employee are insufficient to bring the employee’s compensation up to minimum wage, the employer must make up the difference.) 

The FLSA also permits a “tip pool”; that is, an employer may require servers to contribute a portion of their tips to a tip pool and then pay out the funds in the tip pool to other employees who “customarily and regularly” receive tips (See Wage and Hour Fact Sheet #15: Tipped Employees under the Fair Labor Standards Act).  Such a rule immediately reveals the nature of the challenge in complying with the FLSA regulations regarding a tip pool.  If the employees “customarily and regularly” received tips directly, they wouldn’t need to be in a tip pool!  The regulations and case law have gradually come to define an employee who “customarily and regularly” receives tips as an employee who participates in directly providing service to the customer – such as the hostess at the front door and perhaps a busboy or bartender (as opposed to the dishwasher in the “back of the house”.)  One of the factors used to determine whether an employee may be paid out of the tip pool is the extent to which they have any “face-to-face” contact with the customer.  See Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294 (6th Cir. 1998).  Continue Reading

Does Tennessee Law Now Require Employers to Use E-Verify?

By Justin Page on Posted in Doing Business in Tennessee

E-Verify program in TennesseeNo, Tennessee law does not require the use of “e-verify,” but a new Tennessee law appears to strongly encourage its use. Last year, Governor Haslam signed into law the Tennessee Lawful Employment Act (the “Act”), which is intended to curb the hiring of illegal aliens.  Because there was significant debate over prior versions of this bill (some of which contained more stringent requirements for employers), there is now some confusion about what the Act actually requires and when it becomes effective.  Previous drafts of the bill had mandated the use of the federal “E-Verify” program for documenting a worker’s immigration status, but the Act was eventually amended to encourage, but not require, the use of E-Verify.  The requirements of the Act went into effect on January 1, 2012 for government employers and private employers with 500 or more employees.  The Act becomes effective on July 1, 2012 for employers with 200 – 499 employees; and on July 1, 2013 for employers with 6 – 199 employees. Continue Reading

Texas Court Rules Against EEOC – “Lactation Discrimination” Is Not Unlawful Sex Discrimination But …

By Tim K. Garrett on Posted in Discrimination and Harassment Law and Practice, Doing Business in Tennessee, Leaves of Absence/FMLA Law and Practice

A Cautionary Reminder for Employers

A Texas Federal Court recently ruled that terminating an employee because she wanted to pump breast milk at work is not sex discrimination.  The Equal Employment Opportunity Commission sued on behalf of an individual employee who had mentioned her need to pump breast milk at work and soon thereafter was fired for job abandonment.  The employer claimed that the employee had not kept the employer informed during her leave or about her desire to return to work.  The employer explained that its decision to terminate the employee for job abandonment already had been made before the employee’s request.

The Washington Post reported on this ruling last week. Continue Reading

Employee Not Yet Eligible for Leave Still Protected Under FMLA

By Tim K. Garrett on Posted in Leaves of Absence/FMLA Law and Practice

Assume an employee asks for leave, to be taken in the future.  At the time of the request, the employee is not covered by the FMLA because the employee has not yet been employed for one year.  Later, the employee is terminated, and the termination occurs before the employee has been employed for a year.  Does the employee’s advance request for leave make the employee “protected” under the FMLA, even though the employee was never eligible for leave?

In a ruling on January 10, 2012, the 11th Circuit recently said yes.  The Court found that the FMLA “protects a pre-eligibility request for post-eligibility leave.”  The Court reversed the lower court’s dismissal of the case, explaining that the lower court’s ruling would allow an employer to terminate an employee to avoid having to provide rightful FMLA leave once the employee becomes eligible. Continue Reading