Category Archives: Employment Law

January 2013
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Employment Law

What to expect from the EEOC in 2013

Late last month the EEOC issued its Strategic Enforcement Plan for 2013.  The Plan sets forth 6 priorities:

1. Eliminating Barriers in Recruitment and Hiring;

2. Protecting Immigrant, Migrant and Other Vulnerable Workers;

3. Addressing Emerging and Developing Issues;

4. Enforcing Equal Pay laws;

5. Preserving Access to the Legal System; and

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

Based on these priorities I recommend employers take the following steps:

1. Conduct an internal “equal pay audit” to ensure that male and female employees are being paid the same for equal work;

2. Conduct anti-harassment training for your entire workforce;

3. Conduct an internal audit of your compliance with immigration laws, including Form I-9, and;

4. Conduct an internal audit to ensure that there are not discriminatory differences in pay for any employees.

Any issues that are discovered should be corrected.

Happy New Year!

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December 2012
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Employment Law

Contractual limitations period for filing suit is valid in Tennessee

The parties to a  contract can shorten the statute of limitations, which is the time for filing suit, by specifically stating a shorter time period in the contract. Recently, the Tennessee Court of Appeals upheld a contractual limitations period in the case of Skaan v. Federal Express, a copy of which can be found here.

http://www.tncourts.gov/sites/default/files/skaankopn.pdf

In Skaan the contract provided that the legal action had to be brought “within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.”  As a result the employee’s retaliatory discharge suit, which has a 1 year statute of limitations, was dismissed as untimely when he filed it 8 months after his termination, 2 months after the contractual limitations period had expired.

If you are entering into a contract with an employee consider adding a contractual limitations period to it which will shorten the length of time the employee has to file suit against you.

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December 2012
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Employment Law

Domino’s Challenges the ACA

This week Domino’s did more than deliver pizzas.  On Monday Domino’s and its founder sued several federal agencies and officials in Michigan federal court alleging the contraception mandate of the Affordable Care Act (ACA) is unconstitutional.

The company’s founder, Thomas Monaghan, contends the contraception mandate violates his strongly held Catholic religious beliefs.  Previously, Domino’s had designed its health insurance plan to exclude contraception, sterilization and abortion as reimbursable expenses.

Monaghan contends the contraception mandate of the ACA violates the US Constitution’s protection of freedom of religion and also violates the Religious Restoration Act.  He and the company seek an injunction barring enforcement of the mandate, costs and attorney’s fees.

Stay tuned.

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December 2012
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Employment Law

What does right to work really mean?

Yesterday Michigan passed a new right to work law. People often confuse “right to work” with “employment at will”.

“Right to work” means that you do not have to join a union as a condition of receiving or retaining a job.  “Employment at will” means that either the employee or the employer can terminate the employment relationship at any time, with or without cause and with or without prior notice.  Tennessee is both a right to work and an employment at will state.

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December 2012
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Employment Law

Who owns your twitter account?

The case of Phone Dog, LLC v. Kravitz settled yesterday.  Phone Dog sued their former employee, Kravitz, after he left the company and continued to use a twitter account that he had used while employed by Phone Dog.  All of the settlement terms are confidenital, except one- Kravitz gets to keep the twitter account.

How could this have been avoided?  By drafting a clear social media policy which states that the employer owns all social media accounts that are used or created during employment.  Review your social media policy to make sure it includes  language stating the employer owns the social media accounts, and if you don’t have  a policy, adopt one with this language.

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December 2012
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Employment Law

Princess Kate and the FMLA

Yesterday reports surfaced that Princess Kate is pregnant and had been hospitalized with acute morning sickness.  Congratulations to the Prince and Princess!  But what if Kate wasn’t a princess and was an employee of your company.  Would her acute morning sickness qualify her for leave under the FMLA?

The answer is yes.  The FMLA expressly provides that the mother is entitled to “leave for incapacity due to pregnancy” and cites severe morning sickness as an example.

So what are our takeaways?  If you are a FMLA covered employer (50 employees in a 75 mile radius), the pregnant employee has worked for you for at least 12 months and has worked 1250 hours in the 12 month period preceding the request for leave, she is entitled to up to 12 weeks of unpaid leave for incapacity due to pregnancy, for prenatal care, for the birth of the child, for bonding time with the child and for her or the child’s serious health condition following the birth.  In Tennessee the employee would be entitled to 16 weeks of unpaid leave for pregnancy, child birth, bonding and related conditions if she is a full time employee and the employer had at least 100 full time employees “on a permanent basis”.  This leave runs concurrently with the FMLA so the total leave is 16 weeks, not 28.  Laws in your state might provide for additional leave time as well.

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