March 2024
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Employment Law

Practical Steps To Avoid And Defeat EEOC Charges

In many instances being ranked second is quite the accomplishment. But in this case it should set off alarm bells for employers.

In 2022 Tennessee ranked second in the nation in the amount of EEOC Charges filed. Tennessee workers filed 6,311 Charges of Discrimination, which is almost 89.5 charges per 100,000 residents. Only Illinois was more litigious than Tennessee, but it was a photo finish. Illinois workers filed 89.7 charges for every 100,000 residents. Retaliation was the most common claim asserted.

While an EEOC Charge is likely inevitable at some point, employers can take several proactive steps to reduce the amount of charges that are filed and defeat those that are filed. These steps include the following:

  1. Train your workforce on applicable laws prohibiting discrimination, harassment and retaliation and include realistic examples of what is and is not allowed under those laws. Separate training for managers and supervisors is also recommended.
  2. Establish clear policies prohibiting discrimination, harassment and retaliation and enforce those policies.
  3. Establish clear lines of communication for reporting discrimination, harassment and retaliation and other complaints about conduct in the workplace.
  4. Investigate all complaints received promptly and thoroughly.
  5. Take prompt, corrective action to address conduct that violates the company’s policies.
  6. Establish good rapport between Human Resources, managers and supervisors. This will lead to better cooperation and reporting of conduct which might violate the company’s policies.
  7. Foster a workplace that promotes teamwork and values the contributions of everyone.

Taking these steps will reduce the time and money spent in litigation and potentially increase the productivity of your workforce. And, hopefully it will result in Tennessee losing its ranking!

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September 2023
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Employment Law

The EEOC’s New Roadmap

On September 21st the EEOC released its Strategic Enforcement Plan (SEP) for the years 2024-2028. The SEP sets the EEOC’s subject matter priorities and is a roadmap to the areas upon which it will focus.

The SEP states that the EEOC will continue its focus on promoting pay practices to prevent discrimination, combatting pay discrimination and advancing equal pay, preventing and remedying systemic harassment and tackling retaliation. The changes to the SEP include:

  • Targeting discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals.
  • Expanding the vulnerable and underserved worker priority to include additional categories of workers who may be unaware of their rights under equal employment opportunity (EEO) laws, may be reluctant or unable to exercise their legally protected rights, or have historically been underserved by federal employment discrimination protections.
  • Updating the emerging and developing issues priority to include protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the new Pregnant Workers Fairness Act (PWFA) and other EEO laws; employment discrimination associated with the long-term effects of COVID-19 symptoms; and technology-related employment discrimination.
  • Highlighting the continued underrepresentation of women and workers of color in certain industries and sectors, such as construction and manufacturing, finance, tech and other science, technology, engineering, and mathematics fields.
  • Recognizing employers’ increasing use of technology, including artificial intelligence and machine learning, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions.
  • Preserving access to the legal system by addressing overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements when they restrict workers’ ability to obtain remedies for civil rights violations.

Employers, you now know where the EEOC will focus in the years ahead. Now is the time to be proactive and make sure you are compliant in those areas. Take steps such as conducting internal EEO and pay audits, expanding recruiting areas and reviewing and revising policies and procedures. The failure to take those steps now could prove costly in the future.

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August 2023
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Employment Law

The DOL Proposes To Raise the Overtime Threshold

Yesterday the U.S. Department of Labor announced a proposed rule to raise the minimum salary threshold tied to certain FLSA exemptions. Under the proposed rule the minimum salary to be exempt from overtime under the Executive, Administrative and Professional exemptions to the FLSA would increase to $1,059 per week, or $55,068 per year. The current rate is $684 per week, or $35,568 a year.

The proposed new salary threshold is tied to the 35th percentile of weekly earnings of full-time salaried workers in the Southern U.S. Under the proposed rule the minimum salary threshold would automatically update every three years based on the then current earnings data.

The proposed rule would also raise the minimum salary threshold for the highly compensated employee exemption to $143,988 annually. The current threshold is $107,432 annually.

According to the DOL the proposed rule would extend overtime protections to 3.6 million workers.

The next step in the process is for the DOL to publish the proposed rule in the Federal Register. But this is almost certainly headed for litigation, as was the case with the proposed overtime increase under the Obama administration. That proposed rule , which would have increased the minimum salary for the Executive, Administrative and Professional exemptions to $47,476 annually, was invalidated by a Texas court. That lead to a compromise with the current annual amount of $35,568.

Stay tuned!

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August 2023
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Employment Law

The NLRB Wants Your Employee Handbooks Too

This year the NLRB has been flexing its muscle. In its February 21st McLaren Macomb decision the NLRB attacked non-disparagement and confidentiality provisions in non-supervisor severance agreements. On May 30th the NLRB General Counsel took aim at non-compete agreements (see my June 5th blog https://tnemploymentlawblog.com/2023/06/05/the-nlrb-takes-aim-at-non-compete-provisions/). And, to complete its own unholy trinity, on August 2nd the NLRB set a new standard for deciding whether employer work rules that do not expressly restrict protected activity still violate the NLRA.

In Stericycle Inc. the Board held that a workplace rule is presumptively unlawful if an employee could reasonably interpret the rule to restrict or prohibit the right under Section 7 of the NLRA to engage in concerted activity pertaining to the terms and conditions of employment. The Board applied the reasonable employee standard because the employee is economically dependent on the employer and thus inclined to interpret an ambiguous rule to prohibit protected activity under the NLRA.

If the General Counsel meets the above standard the rule is presumptively unlawful. The employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.

Please note that Stericycle applies going forward and retroactively! As a result, employers should immediately begin a review of existing workplace rules.

Rules or policies that have a high likelihood of being presumptively unlawful include personal conduct, conflict of interest, communications with the media, non-disparagement, workplace gossip and confidentiality of harassment investigations, among others.

Rules that expressly restrict protected activity, such as rules which prohibit union activity or discussing wages and salaries, are not impacted by Stericycle and are still unlawful.

The NLRB has added a lot to employers “To Do” lists this year. Make sure you consult with your employment law attorney to help you complete that list.

June 2023
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Employment Law

The NLRB Takes Aim At Non-Compete Provisions

The NLRB has been flexing its muscle this year. First came the McLaren Macomb decision, where the Board found that confidentiality and nondisparagement provisions in severance agreements for non-supervisors violated the National Labor Relations Act. On May 30th the NLRB General Counsel issued a memorandum and took aim at noncompete agreements.

The General Counsel’s memo states that except in limited circumstances the “proffer, maintenance and enforcement ” of noncompete provisions violates the Act, because, in her opinion, noncompete provisions “reasonably tend to chill employees” in the exercise of their Section 7 rights under the Act to engage in concerted activity for mutual aid and protection in their employment. The General Counsel listed five specific types of protected activity under Section 7 that is chilled by noncompete provisions:

  1. Concertedly threatening to resign to demand better working conditions, because the threats would be futile due to the noncompete;
  2. Carrying out concerted threats to resign or concertedly resigning in an effort to secure better working conditions;
  3. Concertedly seeking or accepting employment with a local competitor to obtain better working conditions;
  4. Soliciting coworkers to go to work for a local competitor as part of a broader course of protected concerted activity; and
  5. Seeking employment, at least in part, to specifically engage in protected activity with other workers at an employer’s workplace.

The General Counsel opined that facts which are typically recognized by most courts as special circumstances which justify a noncompete, including specialized training and protecting trade secrets, are insufficient to overcome the chilling effect on Section 7 rights. Her rationale is that less restrictive means, such as a longevity bonus and a confidentiality agreement, protect those interests without the unreasonable chilling effect.

The General Counsel opined that noncompetes that only restrict managerial or ownership interests in a competing business and noncompetes with a true independent contractor do not violate the Act. She also stated that there may be other special circumstances to justify a narrowly tailored noncompete that would not violate the Act.

The General Counsel also encouraged the Board to award make whole relief, lost pay and benefits for example, if there is proof that an overbroad noncompete caused the employee to lose opportunities for other employment.

The memo is not law, but you can be certain that the Board with an existing or future case will try to make it the law in the near future.

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January 2023
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Employment Law

The 411 on the FTC’s Proposed Noncompete Ban

On January 5th the Federal Trade Commission (FTC) issued a proposed rule that would ban noncompete agreements between employers and their workers in most circumstances. While the proposed rule will almost certainly be met with legal challenges and ultimately get resolved in the courts, let’s take a look at what you need to know now.

The proposed rule would make it illegal for an employer to enter into or attempt to enter into a noncompete with a worker.

The proposed rule covers all employers.

“Worker” is broadly defined as a natural person who works, whether paid or unpaid, for an employer and specifically includes independent contractors.

Existing noncompete agreements are covered by the ban. Employers must rescind the noncompete by the “compliance date” and are required to notify the worker of the rescission. The compliance date is 180 days after publication of the final rule in the Federal Register, which has not yet occurred.

The FTC has published model language that can be used to communicate the rescission.

The proposed rule makes no mention of non-solicitation agreements. It does, however, specifically state that a non-disclosure agreement that is so broad that it effectively precludes the worker from working in the same field is prohibited, as is an agreement to repay training costs if the worker’s employment terminates within a specified period if the required repayment is not reasonably related to the costs incurred for training.

Presumably, a narrowly tailored agreement that prohibits the solicitation of customers, the solicitation/recruiting of employees and the disclosure of trade secrets and confidential information will still be valid.

A noncompete entered into as part of a sale of business (asset or stock/ownership interest sale) is allowed provided that the individual being asked to sign the noncompete owns at least 25% of the entity being sold.

Although the proposed rule is not yet in effect and will likely be resolved in the courts, there are certain steps employers should take now.

First, if you are asking lower wage or lower level workers to sign noncompete agreements, stop. Those are most likely not enforceable under the applicable state law now, and are even less likely to survive the final outcome of the FTC’s proposed rule.

Second, ask yourself if a non-solicitation and nondisclosure agreement will give you the protection you need. If so, use that instead of a noncompete, as that will likely be enforceable.

Finally, review your existing noncompete, nonsolicit and nondisclosure agreements to see if these comply with applicable state law and if there is adequate protection in the event the noncompete is banned. If not, or if you need assistance, please contact us or call your attorney.

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October 2022
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Employment Law

New Tennessee Law Requires Employers To Provide Veterans Day as Unpaid Holiday

Veterans Day is celebrated on November 11th. In April Tennessee passed a new law that requires employers to allow employees who are veterans to take Veterans Day off as an unpaid holiday if certain conditions are met.

The law applies to all persons or entities with one or more employees. Under the law an employee is a veteran if he or she is: 1. a former member of the armed forces or; 2. a former or current member of a Reserve or a Tennessee National Guard unit that was called into active military service of the United States.

In order to qualify to take Veterans Day off as an unpaid holiday the employee must provide: 1. at least one month’s written notice of the intent to take the day off; 2. provide proof of veteran status.

If the employee meets the above requirements the employer must grant the leave unless the veteran employee’s absence, either alone or in combination with the absence of other veteran employees on that day, will impact public health or safety, or cause the employer significant economic or operational disruption, as determined by the employer in the employer’s sole discretion.

Employers can waive the notice and proof of veteran status requirements and/or treat Veterans Day as a paid holiday for qualifying employees if they choose to do so.

Veterans, enjoy the day off and thank you for your service!

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July 2022
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Employment Law

Tennessee Bans Hair Discrimination

As of July 1st Tennessee joined the states that prohibit discrimination based on an employee’s natural hairstyle. The General Assembly passed the CROWN Act- Create a Respectful and Open Workplace for Natural Hair.

The CROWN Act prohibits private employers from adopting policies or practices that restrict or ban employees from wearing ethnic hairstyles within the workplace, including braids, locs, twists, bantu knots, or other hairstyles that are part of the cultural identification of or physical characteristic of the employee’s ethnic group. Tennessee is the first state in the South to make the CROWN Act law.

Employers should review their Equal Employment Opportunity, Grooming, Dress Code and Uniform Policies and revise them as needed to ensure compliance with this new law.

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February 2022
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Employment Law

Mandatory Arbitration of Sexual Harassment Claims Will Soon Be Forbidden

On February 10th the U.S. Senate unanimously passed the so called #MeToo bill, H.R. 4445. The bill prohibits mandatory arbitration of workplace sexual harassment and sexual assault claims. The bill will become law after it is signed by President Biden. After it is signed it will take effect immediately.

Under this (soon to be) law employers can no longer require employees to arbitrate sexual harassment or sexual assault claims. Mandatory arbitration of other claims will, however, still be allowed so long as your arbitration agreement/provision complies with all state law requirements for enforceability.

Employers that utilize mandatory arbitration should take this opportunity to review those contracts and revise them accordingly.

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January 2022
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Employment Law

OSHA Vaccine Rule Is Blocked; CMS Vaccine Rule Is Not

This afternoon the Supreme Court issued two opinions pertaining to “mandatory vaccination rules” .

The Court blocked the OSHA vaccine or test mandate, which was applicable to employers with 100 or more employees. The Court voted 6-3 to stay or block the OSHA Rule.

In a 5-4 decision the Court allowed the CMS Mandatory Vaccination Rule to proceed, as it stayed two District Court decisions which had enjoined the Rule. The CMS Rule applies to facilities that receive Medicare and Medicaid Funding , their employees, and contractors who provide services to those facilities.

In Tennessee this means the Tennessee COVID Law will remain in effect, but businesses governed by the CMS Rule can apply with the Comptroller for an exemption from the Tennessee law.

Stay tuned for further developments.

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