Author Archives: chatmaker

March 2013
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Employment Law

Hold your fire! What does Guns in Cars Mean for Employers in Tennessee?

Assuming Governor Haslam signs the “Guns in Cars” Bill passed by the Tennessee General Assembly (which is a virtual certainty) the Bill will become law on July 1, 2013.  What does this mean for employers?

The bill makes it legal for handgun carry permit holders to store firearms and ammunition in their vehicle while it is in a parking lot if the weapon is (1) kept out of sight and (2) locked in the car while the permit holder is not in the vehicle. The bill makes it clear that it will be legal for handgun carry permit holders to have properly secured firearms in their cars at work.

So if the employee has a valid Tennessee handgun carry permit and keeps the weapon and ammo out of sight in a  locked car the employee would be in compliance with the law.  Glove box, trunk and under the seat are clearly out of sight.  Covered up by a blanket or other cover  on a seat may be.

Employers should review their weapons at work policies in light of this anticipated new law to make sure they will be in compliance on July 1.

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February 2013
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Employment Law

ACA Retaliation

Most “large employers” ( those employers with at least 50 employees working an average of at least 30 hours a week)  are very aware that the Affordable Care Act (ACA) imposes numerous deadlines and commitments for them  in 2013 and 2014.  But you may not know that the ACA also prohibits retaliation against employees who make complaints that the ACA has been violated.  The US Department of Labor issued an interim rule last week which provides guidance on this issue.

Workers who give their employer, the federal government or a state attorney general information about acts or omissions that they reasonably believe violate Title I of the ACA — which prohibits denying insurance because of pre-existing conditions or using factors like medical history to set premium rates — will be protected from retaliation under Section 18C.

The ACA also prohibits retaliation against employees who receive health insurance tax credits that could translate to a tax penalty for certain large employers.

Retaliation complaints under Section 18C have to be filed within 180 days of when the alleged violation occurs, which means when the retaliatory decision has been made and communicated to the worker.  The limitations clock starts ticking when the employee is aware or reasonably should be aware of that decision, OSHA said, though the time for filing a complaint can be tolled.

Complaints under Section 18C don’t have to be written down, or be in English. An oral complaint can suffice, and if the complainant can’t file in English, any language will do. As long as the employee consents, any person can file a complaint on a worker’s behalf under the rule.

The take away for employers:  If an employee complains that you have violated the ACA take the complaint seriously, investigate it, and make sure the employee is not retaliated against in any way.

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February 2013
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Employment Law

Can you fire an employee for off-duty conduct that isn’t directly related to the job?

Most events that lead to the termination of an employee are going to occur at work or relate to the employee’s job.  But can you fire an employee for off-duty conduct that doesn’t directly relate to his job? The answer is typically yes, as  this high level executive who slapped a toddler on an airplane found out.  http://www.local8now.com/home/headlines/Man-charged-with-slapping-toddler-now-out-of-a-job-191661441.html?llsms=92311&c=y

If the employee is at-will, the termination will be much easier.  In that situation you don’t have to have any reason to fire the employee.  But to put employees on notice that their off-duty conduct might come back to bite them, I recommend puttting something in your Rules of Conduct to address the possibility.  Something like ” Any conduct that may discredit you, the company, or fellow employees” should work.

If the employee has an employment contract and can only be terminated for “cause” make sure cause is defined to include the “discredit” lnaguage stated above, as well as things such as any act of dishonesty, fraud or theft, and a conviction or plea of guilty or no contest to any crime (other than speeding).

February 2013
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Employment Law

Facebook Vacation Pictures Support Terminating Employee on FMLA Leave

The case of Lineberry v. Detroit Medical Center is yet another example of how an employee’s use of social media can lead to termination.  Ms. Lineberry was on FMLA leave for severe back and leg pain.  But while on leave she took a vacation to Mexico and posted photographs of the trip which showed her doing things that were inconsistent with her alleged condition, such as riding in a motorboat.  Her co-workers saw these pictures and complained to the Hospital.

The Hospital confronted Ms. Lineberry who admitted that she lied about needing to use a wheelchair at the airport as she prepared to travel to Mexico.  The Hospital terminated her for her dishonesty and because of  its honest belief that she abused her FMLA leave.  Based on these facts the Court dismissed Ms. Lineberry’s claim that the Hospital fired her for taking the leave in violation of the FMLA.

Two takeaways for employers.  1. FMLA leave must be used for its intended purpose; and  2.  To rely on the “honest belief” rule an employer must conduct an investigation and point to specific facts which support its belief.

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February 2013
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Employment Law

Deadlines and Commitments for Employers under the ACA

Last week I had the privilege of speaking to a group here in Knoxville on the deadlines and commitments employers face under the Affordable Care Act or ACA.  Scott Insurance hosted the event and did a wonderful job.

A copy of my presentation can be found here. ACA Presentation

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February 2013
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Employment Law

Tennessee Supreme Court holds temporary employee must be treated the same as a permanent employee for workers’ compensation benefits

Recently the Tennessee Supreme Court held that an employee of a temporary agency who is injured on the job but not returned to work by the agency at a wage equal to or in excess of the pre-injury wage is entitled to benefits up to six times the medical impairment rating.  This is the same rate that a permanent employee could receive in the same circumstances.

In deciding Timmy Dale Britt v. Dyer’s Employment Agency the Supreme Court reversed the trial court which held that Mr. Britt was limited to one and one-half times the medical impairment rating, which is the rate that applies if the injured employee is returned to work at a wage equal to or in excess of the pre-injury wage.  The trial court based its holding on the fact that Mr. Britt was a temporary employee.  The Supreme Court held that the Tennessee workers’ compensation statutes do not distinguish between permanent and temporary employees.  Since Mr. Britt was never offered the opportunity to return to work the Court held the lower rate did not apply.

Governor Haslam has announced a plan to review and possibly overhaul Tennessee’s workers’ compensation system.  It will be interesting to see if this temporary employee issue will be addressed as part of that process.

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January 2013
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Employment Law

Obama’s NLRB appointments struck down

Today the D.C.  Circuit Court of Appeals held in a unanimouns ruling that President Obama’s appointments to the NLRB while the Senate was in recess were unconstitutional.  The Court based its holding on the fact that the Senate technically remained in session during the  20 day “recess” and thus the President could not appoint a member to the NLRB without Senate confirmation.

Expect this decision to be appealed to the United States Supreme Court.  If the decision is upheld, or the Supreme Court doesn’t take the case, all the decisions by this improperly appointed Board will be invalid.  The majority of those decisions, including decisions on social media policies and at-will disclaimers, are very anti-employer.  This will be interesting to watch, so stay tuned.

You can read more about the decision at this link.  http://www.chamberlitigation.com/noel-canning-v-national-labor-relations-board-nlrb

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January 2013
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Employment Law

Where’s the beef? Veganism may be entitled to protection as a religion under Title VII.

Title VII requires employers to reasonably accomodate an employee’s sincerely held religious belief unless doing so would create an undue hardship.  A recent federal court decision in Ohio reminds us that this requirement extends beyond what are typically viewed as mainstream religions.

In Chenzira v. Cincinnati Childrens’ Hospital a nurse refused to be vaccinated for the flu.  She objected on religious grounds because she is a vegan and the flu vaccine is grown in chicken eggs.  The Hospital then fired her.  Ms. Chenzira filed suit and the Hospital moved to dismiss the case on the grounds that veganism is not a religion.

In denying the Motion to Dismiss the Court held that veganism may be entitled to protection as a religion becuase the definition of “religious practices” in the EEOC regulations includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views”.   The Court also relied on Ms. Chenzira’s citation of biblical passages supporting veganism, her citation of those passages when she requested an accomodation,  and that many others are vegans.  Since the Court was ruling on a Motion to Dismiss this does not mean that it will find that veganism is a religion after discovery is completed.  The ruling also did not address whether the termination was for the legitimate, nondiscriminatory reason of protecting the safety of patients.

The take away for employers is that non-mainstream beliefs may be entitield to protection as religious beliefs under Title VII and state law.  As a result, if an employee refuses to comply with a work requirement and cites a religious basis for doing so, seek legal counsel for advice.

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January 2013
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Employment Law

You mean I can reasonably accomodate that?

Employers often struggle with whether they can reasonably accomodate an employee or applicant’s disability.  Sometimes, the employer decides that the disability can’t be accomodated but does not engage  in the interactive reasonable accomodation process in reaching that decision.

Today’s post comes from Eric Meyer, an employment law attorney in Philadelphia.  Click on the link to learn how an employer’s failure to properly engage in the reasonable accomodation process resulted in a very expensive lawsuit and what steps all employers should take as part of that process.  http://www.theemployerhandbook.com/

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January 2013
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Employment Law

How can you defeat a claim for unemployment benefits in Tennessee?

The Unemployment Insurance Accountability Act of 2012 took effect on September 1, 2012.  The Act significantly expands the definition of misconduct for the purposes of determining eligibility for unemployment compensation in Tennessee.  A claimant that is discharged for misconduct is not eligible for unemployment benefits.

“Misconduct” includes, but is not limited to, the following conduct by a claimant:

(i)  Conscious disregard of the rights or interests of the employer;

(ii)  Deliberate violations or disregard of reasonable standards of behavior that the employer expects of an employee;

(iii)  Carelessness or negligence of such a degree or recurrence to show an intentional or substantial disregard of the employer’s interest or to manifest equal culpability, wrongful intent or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employee’s employer.

(iv)  Deliberate disregard of a written attendance policy and the discharge is in compliance with such policy;

(v)  A knowing violation of a regulation of this state by an employee of an employer licensed by this state, which violation would cause the employer to be sanctioned or have the employer’s license revoked or suspended by this state; or

(vi)  A violation of an employer’s rule, unless the claimant can demonstrate that:

(a)  The claimant did not know, and could not reasonably know, of the rule’s requirements; or

(b)  The rule is unlawful or not reasonably related to the job environment and performance;

“Misconduct” also includes any conduct by a claimant involving dishonesty arising out of the claimant’s employment that constitutes an essential element of a crime for which the claimant was convicted.

“Misconduct” does not include:

(1)  Inefficiency, or failure to perform well as the result of inability or incapacity;

(2)  Inadvertence or ordinary negligence in isolated instances; or

(3)  Good faith errors in judgment or discretion.

In light of this expanded definition employers should make sure their rules of conduct and policies are distributed to all employees. Additionally, when responding to a claim for unemployment benefits employers should specify the rule or policy that was violated and how the claimant was made aware of it.  Finally, if the conduct did not clearly violate a rule or policy employers should specify how the conduct disregarded the rights or interests of the employer, or how it violated reasonable standards of behavior that the employer had the right to expect.

Spending a few extra minutes filling out the response to the unemployment claim will hopefully save employers thousands of dollars in unemployment benefits.

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