Tennessee Employment Law

June 2015

Employer Takeaways From The Same Sex Marriage Decision

On Friday June 26th the United States Supreme Court struck down prohibitions on gay marriage in Kentucky, Michigan, Ohio and Tennessee when it issued the decision in Obergefell v. Hodges. This decision has the effect of legalizing same-sex marriage nationwide. There are several employer takeaways from this decision, including those listed below.

First, FMLA leave is now available to an eligible employee in a same sex marriage regardless of the state where the marriage was performed or where the employee seeking leave resides.

Second, any laws in your state that require employers to provide benefits to employee spouses will now apply to spouses in same sex marriages.

Third, COBRA benefits that extend to spouses will now be available to spouses in same sex marriages.

Fourth, if your employee handbook or manual defines spouse or marriage, or has other leave policies which are impacted by the decision, you should update those definitions and policies to comply with the law.

There could be other issues as well. If you have questions or concerns about other issues created by the Hodges decision call your attorney.

Tagged COBRA, FMLA, same sex marriage

May 2015

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Employment Law

WHAT QUALIFIES AS WHISTLEBLOWING UNDER TENNESSEE LAW?

Recently the Tennessee Supreme Court clarified what an employee must do to qualify as a whistleblower in order to state a claim for retaliatory discharge under Tennessee law. In Haynes v. Formac Stables, Inc., the plaintiff, a horse groomer for the defendant, claimed he suffered an injury to the head when kicked by a Tennessee Walking Horse. The plaintiff claimed that when he complained of the injury to the owner the owner only allowed for a veterinarian to seal the wound and would not allow him to receive proper medical treatment. He further alleged that he was terminated after he complained repeatedly to the owner about headaches stemming from the lack of proper medical care. The plaintiff did not complain to anyone other than the owner. The Tennessee Supreme Court, in affirming the decision to dismiss the complaint, held that in order to qualify as a whistleblower and state a claim for retaliatory discharge under Tennessee law the employee must report the employer’s wrongdoing to someone other than the wrongdoer. This means that when the wrongdoer is a manager, owner, or highest ranking officer within the company the employee may have to report the wrongdoing to an outside entity. This decision does not change the fact that under Tennessee law an employee can state a claim for retaliatory discharge by simply refusing to participate in illegal conduct, because the cause of action for refusing to participate does not require reporting of illegal conduct. It also has no impact on claim for workers’ compensation retaliatory discharge. While this decision is a win for employers it does not change the fact that all employee complaints should be promptly and thoroughly investigated. The decision also illustrates that it is important for employers to train supervisors to either (1) properly investigate complaints; or (2) report them to the persons within the organization who are responsible for doing so.

Tagged retaliation, retaliatory discharge, whistleblowing

March 2015

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Employment Law

Spring Cleaning: Get Your Employee Handbook Legally Compliant

Spring is in the air. For many of us that means Spring cleaning.

Spring cleaning for all employers should include a review of the current Employee Handbook. The review should focus on whether the current version of the Handbook complies with the law and adequately meets the needs of your business.

Make sure the Handbook does not promise more than what the law requires unless you intend to keep that promise. The recent case of Marini v. Costco (U.S. District Court of Conn.) illustrates why committing in a Handbook to do more than what the law requires might result in you having to keep that commitment.

In Marini the company’s sexual harassment policy did more than what the law requires. For example, the policy said the company would take appropriate corrective action, regardless of whether the conduct violated the law. Because of this and other language in the harassment policy, the Court denied the company’s motion for summary judgment on the employee’s breach of contract claim.

Similarly, in Tilley v. Kalamazoo County Road Commission (6th Cir. 2015) the employer’s FMLA policy said that employees were eligible for FMLA leave if they had “accumulated 1250 work hours in the previous 12 months.” The policy did not mention the FMLA requirement that the employer must also employ 50 employees within a 75 mile radius of the work location of the employee requesting leave for that employee to be eligible. As a result the Court in Tilley held that the employee was entitled to FMLA leave.

Take the time to review your Employee Handbook to insure that it complies with the law and is consistent with your intent. You will reap the benefits from this Spring cleaning for many seasons to come.

Tagged employee handbook, FMLA, sexual harassment

November 2014

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Employment Law

Social Media Postings That Justify Termination

Employers must be careful before they fire or discipline an employee because of his or her comments on social media. As a general rule, if multiple employees are using social media to discuss the terms and conditions of their employment, or one employee is using social media to speak on behalf of other employees about the terms and conditions of employment, that conduct is likely protected as “concerted activity” under the NLRA. In fact, recent NLRA decisions have shown that a social media posting by one employee about the terms and conditions of employment which is “liked” or “favorited” by other employees is likely protected as concerted activity.

Despite these constraints certain types of social media posts provide a legitimate basis for termination. These posts include the following:

Insubordination – Two newly hired employees of a teen center used Facebook to discuss how they would ignore the employer’s rules and allow the teens to “graffiti the walls”, among other things. The NLRB held these threats of insubordination justified termination in its recent decision in Richmond District Neighborhood Center.

Threats of Violence – Credible threats of violence or comments which lead to genuine safety concerns in the workplace (e.g. “I’m bringing a bomb to work”) will likely not be protected activity.

Individual Gripes – If the employees are just airing individual gripes or venting their personal frustration and not trying to address an overall workplace problem, the behavior will likely not be protected as concerted activity. A prime example is the NLRB decision in Skinsmart Dermatology, where the terminated employee posted in a Facebook group message that the employer was “full of s—“ and wrote “FIRE ME . . . make my day.

Before an employer takes any action based on a social media post it needs to determine what is being said and how many employees are joining in the discussion. That information is the key to determining what action, if any, should be taken.

Tagged concerted activity, NLRA, social media

August 2014

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Employment Law

Does An Illegal Alien Have Standing To Bring A Retaliatory Discharge Claim In Tennessee?

In Torres v. Precision Industries, P.I., Inc., et al. the Tennessee Court of Appeals recently answered the question of whether an illegal alien in Tennessee has standing to bring a retaliatory discharge claim. Mr. Torres worked for Precision Industries as a convertor builder at its automotive manufacturing plant in Whiteville, Tennessee. Torres was injured on the job and eventually retained a lawyer to represent him in connection with his workers’ compensation claim. Torres’ lawyer called the defendants seeking the company’s fax number. After this phone call Precision Industries Safety Manager and General Manager confronted Torres about his workers’ compensation claim and his decision to hire an attorney. Later that day Torres was terminated for an alleged “lack of work”. Torres then filed suit alleging he was discharged in retaliation for asserting a workers’ compensation claim. It is undisputed that during the time he was employed by defendants Torres was an illegal alien.

The trial court granted defendants Motion for Summary Judgment and held that Torres could not assert a retaliatory discharge claim because he was not capable of employment due to his undisputed status as an illegal alien. Torres appealed this decision to the Tennessee Court of Appeals and the Court of Appeals reversed.

The Court of Appeals first reviewed whether Torres’ immigration status would prevent him from filing a claim for workers’ compensation benefits. The Court held that for workers’ compensation purposes an employee is anyone employed by another who works for wages or a salary, without regard to whether the employment is legal or illegal. The Court also relied on a previous decision by the Tennessee Workers’ Compensation Panel, Silva v. Martin Lumber Co., which held that an illegal alien is entitled to workers’ compensation benefits.

After making these finding the Court of Appeals considered defendants’ argument that Torres was incapable of performing the job. The Court of Appeals reviewed the case relied on by defendants, Leatherwood v. UPS, and held that it stood for the proposition that an employee can be legally fired because he is physically incapable of performing a job, not that an illegal alien lacks standing to bring a retaliatory discharge claim. As a result, the decision granting summary judgment was reversed and the case was remanded to the trial court for further proceedings.

This case does not mean that employers should ignore the immigration status of their employees. To the contrary, it is illegal to knowingly employee an illegal alien and doing so can result in significant monetary penalties. Additionally, terminating an employee because he or she is an illegal alien is a legitimate, non-discriminatory and non-retaliatory reason for the termination. But an illegal alien who is fired for filing a workers’ compensation claim, or in retaliation for exercising other rights, can bring a retaliatory discharge claim and recover damages regardless of his immigration status.

Tagged illegal alien, immigration, retaliation, retaliatory discharge, Tennessee, worker's compensation

July 2014

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Employment Law

Executive Order Will Ban Discrimination Against LGBT By Federal Govt. Contractors

Today President Obama will sign an Executive Order banning discrimination on the basis of sexual orientation or gender identity by federal contractors. The Order will protect lesbians, gays, bisexuals and transsexuals, commonly referred to collectively as LGBT.

The Order will not include a religious based exception other than one already in place for religious organizations. This is apparently a response to the recent U.S. Supreme Court decision in Hobby Lobby, which held that closely held companies cannot be required to provide “contraception coverage” if they object to doing so on religious grounds.

If you are doing business with the federal government make sure you check out this Executive Order and if it applies to your business, comply with it in all respects.

Tagged discrimination, Executvie Order, federal contractors, LGBT

July 2014

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Employment Law

Tennessee Employment Law Just Became More Employer Friendly

On July 1st several changes to Tennessee employment law will take effect which are employer friendly. The changes are to the Tennessee Human Rights Act (“THRA”) the Tennessee Public Protection Act or whistleblower statute (“TPPA”) and the Tennessee Disability Act (“TDA”).

First, under the new law a cap now exists on the amount of compensatory damages that can be awarded under the THRA the TPPA, and the TDA for future monetary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-monetary losses. The caps depend on the size of the employer and are as follows:

$25,000 for employers who have between 8 and 14 employees.
$50,000 for employers who have between 15 and 100 employees.
$100,000 for employers who have between 101 and 200 employees.
$200,000 for employers who have between 201 and 500 employees and
$300,000 for employers who have more than 500 employees.

These caps do not apply to back pay, interest on back pay, front pay or any equitable relief.

Second, the new law eliminates individual liability under the THRA. Previously individuals could be liable under the THRA under certain circumstances. Now, no individual employee or agent of an employer can be liable for an employer’s violations of the THRA.

Finally, the new law eliminates the common law cause of action for retaliatory discharge. As a result, the TPPA will be the only source of Tennessee law available for retaliatory discharge claims that are not based on a violation of the THRA or the TDA. This is a significant win for employers because under the TPPA the employee must prove that his or her protected activity was the “sole reason” for the termination. The common law claim only requires the employee to prove that the protected activity was a “substantial factor” in the termination, which is an easier standard to meet.

Even though these changes are employer friendly employers should still continue to implement and enforce policies and practices that are designed to treat everyone equally and avoid discrimination and retaliation claims.

Tagged damages cap, retaliation, retaliatory discharge, TDA, THRA, TPPA

June 2014

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Employment Law

Christian Care Center of Johnson City to Pay $90,000 to Settle ADA Case Filed by EEOC

The EEOC has the power to, and will, sue employers who it believes have violated the laws it enforces. It recently sued the Christian Care Center of Johnson City, Tennessee for disability discrimination based on the Center’s firing of an HIV positive LPN. The case settled for $90,ooo. You can read more about it in the EEOC Press Release which is linked below.

www.eeoc.gov/eeoc/newsroom/release/5-9-14.cfm?utm_content=bufferc501c&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

Tagged ADA, disability, EEOC

May 2014

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Employment Law

Tennessee Passes The Employee Online Privacy Act of 2014

Several states have laws which prohibit employers from requiring an employee or applicant to give the employer access to the employee or applicant’s personal social media account. Tennessee has joined that list with the recent passage of the Employee Online Privacy Act of 2014 (Online Privacy Act).

The Online Privacy Act, which will take effect on January 1, 2015, applies to any person or entity that employs one or more employees and includes the state and its political subdivisions as well as an agent, representative or designee of the employer. The Online Privacy Act prohibits an employer from:

Requesting or requiring an employee or applicant to disclose a password that allows access to a personal internet account;
Compelling an employee or applicant to add the employer or an employment agency to his or her list of contacts associated with a personal internet account;
Compelling an employee or applicant to access a personal internet account in the presence of the employer in a manner that enables the employer to observe the contents of the personal internet account; or
Discharging, failing to hire, or taking adverse action or penalizing an employee or applicant because of a refusal to disclose the password or comply with a request for one of the above prohibited actions.

There are, of course, some exceptions. An employer is not prohibited from:

Requesting or requiring an employee to disclose a user name or password required to gain access to an electronic communications device supplied by or paid for wholly or in part by the employer, or to gain access to an account or service provided by the employer that is obtained by virtue of the employment relationship or that is used for the employer’s business purposes.
Disciplining or discharging an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account.
Conducting an investigation or requiring an employee to cooperate in an investigation if there is specific information on the employee’s personal internet account regarding compliance with applicable laws or prohibitions against work related employee misconduct, or the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.
Restricting or prohibiting an employee’s access to certain websites while using an electronic communications device supplied by or paid for wholly or in part by the employer, or while using an employer’s network or resources.
Monitoring, reviewing, accessing or blocking electronic data stored on an electronic communications device that is supplied by or paid for wholly or in part by the employer, or stored on the employer’s network.
Complying with the duty to screen employees or applicants before hiring, or to monitor or retain employee communications, in accordance with applicable law.
Viewing, accessing or using information about an employee or applicant that is available in the public domain.
Conducting an investigation or requiring an employee to cooperate in an investigation regarding compliance with applicable law or prohibitions against work related employee misconduct, or an investigation about the unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.

Individuals whose rights are violated under this law may sue the employer and recover not more than $1,000.00 in damages for each violation, plus reasonable attorney’s fees and court costs.

I have advised for several years that employers should not require employees to disclose passwords for personal social media accounts or grant them access to those accounts. Now, Tennessee has a law which will penalize those employers who do so.

Tagged Online Privacy Act, personal internet account, Tennessee

Providing practical advice and legal compliance for employers in Tennessee and beyond. —by Chad Hatmaker