Tag Archives: worker’s compensation

August 2015
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Employment Law

Tennessee Supreme Court Refuses To Recognize A Claim For Retaliatory Failure to Hire

In Yardley v. Hospital Housekeeping Systems, LLC the Tennessee Supreme Court declined to recognize a cause of action under the Tennessee Workers’ Compensation Act for retaliatory failure to hire.  Beginning in 1998 Ms. Yardley had worked as a housekeeping aide for a hospital in Lebanon.  In 2010 Ms. Yardley was injured on the job and began receiving workers’ compensation benefits.  In January 2012 the hospital entered into a contract with Hospital Housekeeping Systems (“HHS”) whereby HHS would provide housekeeping services for the hospital.  Ms. Yardley applied for employment with HHS and was not hired.

In an email an HHS Vice-President stated in pertinent part that “Ms. Yardley had been out on workers’ comp with the hospital . . . that her shoulder was hurting her again, and that bringing her onboard would seem to be a workers’ comp claim waiting to happen.”  After not being hired Ms. Yardley filed suit claiming that the failure to hire her stated a claim under the Tennessee Workers’ Compensation Act.

In declining to recognize a cause of action for retaliatory failure to hire the Supreme Court relied on the plain language of the Workers’ Compensation Act.  Based on the plain language of the Act, Ms. Yardley was not an employee of HHS and HHS was not her employer.  The Supreme Court also noted that the employment at will doctrine is a bedrock principle of Tennessee Employment Law.  Thus, the Tennessee Supreme Court declined to recognize another exception to the employment at will doctrine.

The biggest take away from the Yardley case for employers is, even though Ms. Yardley cannot state a claim for retaliatory failure to hire under the Tennessee Workers’ Compensation Act, she may very well be able to state a claim for disability discrimination under the American’s With Disabilities Act (“ADA”) and the Tennessee Human Rights Act (“THRA”).  Ms. Yardley may be able to prove that she was not hired because of an actual disability or because HHS regarded her as being disabled.  If she is successful under either theory she would be able to prevail under both the ADA and THRA.

To avoid failure to hire claims under the ADA and THRA do not base hiring decisions on an applicant’s medical condition or disability unless the condition prevents the applicant from performing the essentials functions of the job with or without reasonable accommodation.  Additionally, do not ask questions about an applicant’s medical history unless you have extended the applicant a conditional offer of employment, the same questions are asked of all applicants for that position who have received a conditional offer of employment and the questions are narrowly tailored to the essential functions of the job in question.

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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.

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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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