Tennessee Employment Law
Providing practical advice and legal compliance for employers in Tennessee and beyond. —by Chad Hatmaker
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Tennessee Eliminates Private Suits For State Wage-Hour Law Violations
On April 23, 2013 Governor Haslam signed an amendment to Tennessee’s Wage Regulations Act (Act) which eliminates private suits for state wage and hour law violations. The amendment gives the Tennessee Department of Labor the exclusive power to enforce state wage and hour law. The amendment also provides for an award of reasonable expenses, including attorneys’ fees and disbursements for claims brought under the Act.
Will the FMLA be extended to cover same sex couples?
The U.S. House of Representatives recently introduced legislation that would broaden the employee protections of the Family and Medical Leave Act to allow workers to take unpaid time off to care for a same-sex spouse or partner and additional family members.
The proposed legislation would not change the terms of the FMLA, but would expand its coverage to permit employees to take unpaid leave to care for a same-sex spouse or partner and would also provide benefits to those who need to care for a parent-in-law, grandparent or adult child with a serious health condition.
The bill is known as the Family and Medical Leave Inclusion Act. My guess is the bill will not pass in the Senate, but stranger things have happened.
NLRB Lightens Up On At Will Disclaimers And Confidentiality Of Investigations
Recently the NLRB’s General Counsel issued two memos which greatly improve the positions the Board had previously taken on the legality of At Will Disclaimers and requiring the confidentiality of investigations.
In the memo addressing At Will Disclaimers the Board determined that the following language is lawful: ” Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.” The Board reasoned that the language is lawful because it provides that the at will relationship can be modified in the future.
In the memo addressing the confidentiality of investigations the Board provided us with the following language which it found to be lawful: ” [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”
Based on these memos employers should do the following:
1. Make sure that your At Will Disclaimer provides for the ability to modify the relationship. Limiting the ability to modify to the President and requiring that it be in writing is permissible.
2. When you impose a confidentiality requirement on an investigation have a specific, reasonable reason for doing so. Protecting witnesses from intimidation or retaliation, preserving evidence and preventing witnesses from collaborating are certainly reasonable reasons for preserving confidentiality.
Here’s hoping the NLRB continues to be reasonable!
Tennessee Tells Local Governments to Stay Out of The Wage and Benefit Arena
On April 11, Governor Haslam signed into law a bill prohibiting local governments from mandating health insurance benefits, leave policies, hourly wage standards, or prevailing wage standards that deviate from existing requirements of state and federal law as a condition of doing business with or within the jurisdiction of the local government.
The new law means that cities and towns in Tennessee may not establish prevailing wages higher than the federal minimum wage and/or state or federal prevailing wages. Any such local laws already on the books are no longer enforceable.
The new law also includes a prohibition against local governments enacting so-called wage theft laws, stating that enforcement of existing wage statutes is the right of the state and federal governments.
This is definitely a win for employers.
Lesson From Rutgers: Some Conduct Requires Immediate Termination
By now I am sure most of you have seen the video showing former Rutgers Mens’ Basketball Head Coach Mike Rice verbally and physically assaulting his players at practice. Rice’s conduct was inexcusable and it resulted in his termination last week. But to most everyone, the termination came too late.
Former Athletic Director Tim Pernetti first saw the video in November 2012. But instead of firing Rice then, which Pernetti later admitted was his first instinct, Pernetti, after consultation with human resources and in-house counsel, suspended Rice for 3 games and fined him $50,000. When ESPN released the video last week Rutgers had a public relations nightmare on its hands. Pernetti and other members of Rutgers’ administration have since resigned in the wake of the public and internal outrage.
So what can employers learn from Rutgers’ mistake? Some conduct requires immediate termination. If you have conducted a thorough investigation and the investigation establishes that the employee has engaged in theft, other acts of dishonesty, fighting, or sexual assault (to name just a few) immediate termination is almost always going to be warranted.
And delaying the decision can weaken the employer’s defense if the terminated employee files suit. If you are arguing the employee’s conduct (or poor performance) resulted in the termination, but a significant amount of time elapsed between the conduct and the termination, you can bet that the employee’s lawyer will argue that the events are not connected. If that case makes it to a jury, the common sense argument that the delay means the two events are not connected might just win the case for the employee.
Decision-maker’s Lack of Knowledge of Protected Activity Negates $3 Million Retaliation Verdict
In Ferguson v MTSU the Tennessee Court of Appeals negated a $3 Million jury verdict for the plaintiff in a retaliation case because the plaintiff failed to prove that the decision-maker who allegedly retaliated against him had knowledge of the protected activity when the decision was made. The plaintiff filed an EEOC Charge and subsequently a lawsuit alleging race and national origin discrimination, and claimed the supervisor assigned him work outside of his restrictions in retaliation for those protected acts. A second lawsuit was filed alleging retaliation, and the cases were consolidated for trial. At trial the jury returned a defense verdict on the discrimination claims but awarded the plaintiff $3 Million on his retaliation claims.
The Court of Appeals reversed the jury’s verdict and dismissed the plaintiff’s case. The Court held that in a retaliation case under Title VII and the THRA the plaintiff must prove that the person who decided to take the adverse action had knowledge of the protected activity at the time the adverse decision is made. In so holding the Court of Appeals expressly rejected the argument that “general corporate knowledge” is sufficient to prove the causation element of a retaliation claim.
While this case is a significant victory for employers, (assuming it holds up on appeal) the result does not change the type of review that employers should undertake when any adverse action is proposed against an employee. Review the proposal thoroughly to make sure the action is warranted, consistent with company policy and that the employee is being treated the same as all other similarly situated employees. If the employee is known to have engaged in protected activity or is in a known protected class, make sure there is not a connection between the activity or class and the proposed action, and that everyone who has input in the decision is unbiased.
Is Your Confidentiality Policy Legal?
Most employers have a confidentiality policy that is distributed to all employees. Most of those policies broadly define confidential information. But if your policy defines confidential information to include employee wages and salaries is it legal?
A confidentiality policy that prohibits employees from discussing wages, salaries or other terms and conditions of employment is illegal because it violates the National Labor Relations Act (NLRA). This fact was reinforced in a recent ruling against Aerotek Inc. after two of its recruiters in Nebraska told several employees they were not allowed to disucss their wages as a condition of employment.
Employers need to make sure that their confidentiality policy gives specific examples of what constitutes confidential information, such as business plans and profit margins, and does not prohibit employees from discussing their wages, salaries, working conditions or other terms and conditions of employment.
Owner of Domino’s Escapes ACA Contraception Mandate
A Michigan federal judge on Wednesday exempted the founder of Domino’s Pizza from implementing the Affordable Care Act’s contraception mandate at an office complex he owns, saying he has shown that abiding by the health law would “substantially burden” his ability to exercise his religion.
U.S. District Judge Lawrence P. Zatkoff granted a preliminary injunction on behalf of Thomas Monaghan and his Domino’s Farm Corp. complex located in Ann Arbor, Mich. Monaghan, a Catholic, said providing employees coverage for contraception and abortion is immoral and at odds with his religious beliefs.
Judge Zatkoff’s order prevents the U.S. Department of Health and Human Services from enforcing the contraception mandate at Domino’s Farm. HHS failed to show that having Monaghan conform to the law served a compelling public interest that outweighed the harm caused by having him violate his religion, the ruling said.
This year the governement has exempted many religious organizations from ACA’s contraception mandate. It will be interesting to see how many other private businesses are able to convince a court that this exemption should also apply to them based on their religious beliefs.
New I-9 Form
USCIS published a new Form I-9 on March 8, 2013. Employers have until May 7, 2013 to change to the new forms. A link to the new form can be found here: http://www.uscis.gov/files/form/i-9.pdf
Tennessee Employment Law 