Tennessee Employment Lawyer Blog

You feel that your employer has treated you unfairly or may even have wrongfully terminated you. What is your next step? You want to find a good Tennessee Employment Law Attorney to evaluate your case, but you don’t even know what you should look for in a lawyer. Here is a short list of things you’ll want to consider:

1. Knowledge and Expertise. Employment cases can be very complicated. You may call a lawyer because you feel you’ve been treated unfairly, and the lawyer may find other violations you haven’t even considered. For that reason, it’s important to find a lawyer who focuses on this area of law. Just like doctors, lawyers have specialties. Look for a lawyer with a background in cases like yours.
2. Belief in your case. Your case is important to you. It should be important to your attorney, too. Choose someone who understands the outcome you are seeking and who believes you have a strong case.
3. Likeability. Believe it or not, you’ll be spending a lot of time with your lawyer so you want someone you like. You’ll need to follow the advice of your lawyer at every step, so make sure that it is someone you feel you can trust.
4. Fee structure. Make sure you find out from the beginning how the attorney will get paid. Most employment cases are done on a contingency basis, which means your lawyer takes a percentage out of your recovery. Many cases provide that if you win, the employer has to pay your attorneys’ fees. The lawyer should explain how it works in your first conversation.
5. Experience. Find out if your lawyer has a track record of success in matters like yours. Ask the lawyer for references or even a list of cases where she has been successful. Make sure the lawyer has handled cases in front of the court or agency where your case will be heard. Knowledge of procedure is just as important as knowledge of the law.

Continue reading "Top 5 Things to Look for When Hiring an Employment Lawyer" »

The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Dollar General Corp. earlier this week based on the company’s use of criminal background checks for new hires and employees. The civil lawsuit claims that the retailer has “engaged in ongoing, nationwide race discrimination against black applicants” for almost a decade. The EEOC contends that the use of criminal background checks affects blacks disproportionately. As a firm that handles as significant number of employment discrimination claims the outcome of this case will be interesting.

The EEOC filed suit on behalf of two black former applicants who had jobs or job offers rescinded following a background check. According to the EEOC, one case involved a woman who had disclosed a felony conviction of controlled possession six years prior to her hiring. Shortly after beginning work, she was fired when the felony conviction and a misdemeanor conviction for possession of drug paraphernalia appeared on a background report.

The other case involved a female who contends that she was fired because of a background check that wrongly included a felony conviction. The EEOC said that the company refused to hire the woman even after learning of the error. The lawsuit claims that the employees were victims of a hiring policy that unilaterally bans individuals with certain convictions within specific time frames from working for the company.

An EEOC spokesperson stated that the federal agency is seeking to overcome barriers to employment. In addition, it was the agency’s hope that the “lawsuits would further educate the public and the employer community on the appropriate use of conviction records.”

Dollar General contends that its background check process is created “to foster a safe and healthy environment for its employees, its customers and to protect its assets in a lawful, reasonable and non-discriminatory manner.”

But how could this case affect you? Looking at a much broader view, the outcome of this case could affect companies as well as potential job applicants throughout the country.

If the EEOC is successful, companies may be required to review exactly how their background checks are used in determining whether to hire an employee. While this case will certainly not require that companies hire criminals or prohibit the use of background checks, it could impact the hiring process. It is possible that an outcome favorable to the EEOC could alter the way companies automatically disqualify job applicants without any process for individualized review.

If Dollar General is successful, the hiring process for companies would remain the status quo. However, at the least, this suit brings about an awareness of potential discriminatory hiring practices in areas previously not recognized as discriminatory.

Continue reading "Tennessee Company Dollar General Sued Over Background Check Policy" »

Working mothers across the country and right here in Tennessee have certain rights that provide them protection from discrimination in the workplace. However, employers unfortunately do not always comply with the protections afforded by the law. Last week, the United States Court of Appeals for the Fifth Circuit unanimously held that firing a nursing mother for lactating is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. Congress created the Pregnancy Discrimination Act to protect women in the workforce from discrimination based on pregnancy, childbirth, or related medical conditions. While this law has been around almost three decades, both expectant and new mothers are still struggling to combat discrimination in the workplace.

The U.S. Equal Employment Opportunity Commission (EEOC) originally filed suit on behalf of Donnica Venters who claimed that she had been fired following giving birth after asking whether she would be able to pump breast milk when she returned to her job. The lawsuit claimed that Ms. Venter’s employer, Houston Funding II, LLC, had engaged in sex discrimination by terminating her employment. The federal trial court had dismissed the suit on summary judgment ruling that “lactation is not pregnancy, childbirth, or a related medical condition.” As a result, the court decided that “firing someone because of lactation or breast-pumping is not sex discrimination,” suggesting that “pregnancy related conditions” end upon giving birth to the child. The trial court determined the suit should be dismissed without a valid discrimination claim under the text of the law.

However, the Fifth Circuit did not agree with the ruling of the lower court. The court found that the firing was motivated by factors clearly burdening a woman that a male employee could not suffer from. In addition, the court held that “lactation is a related medical condition of pregnancy for the purposes of the [Pregnancy Discrimination Act].” Although the Pregnancy Discrimination Act did not define what a “medical condition” is under the statute, the court looked to the plain meaning to find that lactation would be protected as a “medical condition” under the law. The court found that the EEOC had presented a valid claim for discrimination on behalf of Ms. Venters under Title VII, and the case was sent back to the trial court level to be tried in front of a jury.

What does this all mean for new mothers in the workplace? This ruling provides greater protection to employees under Title VII, as amended by the Pregnancy Discrimination Act. While the Fair Labor Standards Act requires employers to provide new mothers with a reasonable break time and place, other than a bathroom, this ruling now clearly prevents employers from discriminating against working mothers who need to utilize a breast pump or express breast milk while at work. Working mothers have a right to know what protections are afforded to them under the law. This ruling by the Fifth Circuit is just another step in preventing discrimination in the workplace all across the country.

Continue reading "Fifth Circuit Holds that Lactation Discrimination is Unlawful" »

Probably the greatest change in employment law cases over the past decade has been the impact of emails and texts when piecing together the real reasons for a termination. When we first began litigating Employment Law Cases it was often hard to get a case to a jury because an employer would claim a legitimate reason for firing the employee and unless an honest independent witness could be found, refuting the reason could be very difficult. Then that all changed. Hello computers. Now most everyone communicates via email. Although companies try to be cautious of what they write it can be hard. A quick message to a co-worker complaining about a medical leave request or the annoyance of accommodating a disability can reveal the true motives behind a termination. Of course, this is a two way street. Employees picture of a wild night out on Facebook the day before the call in "sick" can sink a case just a quick.

A great example of the impact of emails can be found in a Family Medical Leave Act retaliation case that was recently filed. In this case, a director of communications asked of FMLA leave for knee replacement surgery. He informed his boss that he would need six to eight weeks of leave to get better. Ten days after the request the boss recommended that the employee's position be elimated and he was terminated.

After the lawsuit was filed the company claimed that the FMLA request had nothing to do with the layoffs. After all the economy was sluggish and other layoffs had been made as a result. So how can the employee that this isn't true? Well a decade ago he probably couldn't have proven the real motive be an unguarded email changed everything. Specifically, after the case had started a review of the company emails revealed a message from the boss that basically said we may as well lay the employee off because he will be on leave anyway. So now the employee has enough to take his case to the jury. He can present facts that can put the termination in real light. How long had he worked there, his good employee reviews, raises, all that he did for the company.

So both employees and employers should take a lesson from this. I don't think the lesson is "be careful what you say in your emails." The lesson should be lets treat people right under the law. As a boss, don't be flippant about an FMLA request because you may be asking for it someday. People need a little help sometimes and that is okay. However, we all know there will be good employers and bad employers. As such, for the bad employers you better watch what you say in those emails because I guarantee that we are going to review them all.

Continue reading "Fired after requesting FMLA leave? Check those emails!" »

Growing up in Nashville, Tennessee you can't help be a fan of the Goo Goo Clusters. However, as a member of a Tennessee Overtime Pay and Employment Law Firm I am greatly disappointed in my beloved candy making company if a recently filed wage theft lawsuit turns out to be true. The lawsuit filed says that the Nashville based Standard Candy Company failed to pay the employees for time they were required to spend preparing for work. Specifically, it is believed that the company did not pay for the time it took their employees to put on their gear like uniforms, boots, and other safety equipment. In the labor law world these cases are technically known as "Donning and Doffing" cases. Donning and Doffing refers to the action of putting on or taking off protective gear, uniforms, etc

Okay, so what it is the big deal? It may just take a few minutes to put on the gear. What is that, a few dollars per day? Well here is the big deal. If a company that has hundreds or thousands of employees does this the nominal amount of wage theft from each employee can equal thousands or even millions of dollars. It is a way for companies to maximum their profits not by selling a better product but by taking advantage of its employees.

The courts have made varying rulings on whether the employee should be paid for the time of putting on their gear. The first examination is whether the employee is putting on "clothing" or is it "protective gear" . If the Court determines it to be clothes then the Fair Labor Standards Act is clear that employee do not get paid of that time. However, if it is safety gear then the employees may get paid. If it is safety gear the court will then look to see whether the time required to put on the gear is significant or does it take so little time it is not worth getting paid for. Often this comes down to experts that will recreate the time it takes to put on all of the equipment.

So it will be interesting to see how this particular Tennessee Overtime Lawsuit will develop against The Standard Candy Company. What type of gear were these employees putting on? How long did it take them? How many employees are involved? These cases can take years to resolve but regardless we hope that it results in a better working environment of all employees.

These types of cases make every employer examine their policies and procedures. Would it really be asking too much to allow your employees to clock in and then to put on their safety gear? Every penny counts to the working men and women of our state. What would these companies do if an employee asked them to pay for time while they were with their family? Obviously, they would think the employee is crazy. So why isn't it just as crazy for the employer to require the employee to be at work and to change into their work gear for free?

Continue reading "Did the beloved Tennessee Goo Goo Candy Maker Fail to pay its Employees for Overtime?" »

If you have ever waited tables then you know, that the Fair Labors Standards Act(FLSA) allows an employer to pay an employee a lower hourly rate if they receive enough tips to put them over the minimum wage amount. This can work great for both the employer and the employee if it is a restaurant/bar with good tippers. However, we have handled numerous cases over the past years where greedy employer try to skirt the law to make it even better for them. Some of the most common tip pool violations we see are:

1. Making the employee share their tips with managment and traditionally non-tipped employees

2. Employee does not make enough tips to reach an average of minimum wage

3. Paying the server the tip wage for non-tipped work. (ex. you have to clean the restaurant after close).

4. Not paying more for overtime work.

Continue reading "Can Restaurants Use Tip Credit Wages for Non-Tipped Work?" »

Pregnant employees in Tennessee and all over the United States should not be discriminated against in the workplace, according to The Pregnancy Discrimination Act. Under this act, employers are forbidden from discrimination when hiring, terminating, paying, laying off, and giving promotions or benefits to someone because they are pregnant. Unfortunately, this kind of discrimination occurs all too often in the workplace to pregnant women. If you or someone you know has faced this or any other kind of workplace discrimination, it is recommended that you talk to a Tennessee employment discrimination attorney right away. They will help you to determine what kind of compensation you may be eligible to receive for your discrimination claim.

According to this lawsuit, model Brandi Cochran, who was a "Price Is Right" model for eight years, claims that she was discriminated against because she was pregnant. According to her claim, she states, after she got pregnant in 2007 that show producers treated her differently and started to give her less work before she was eventually terminated. Cochran says that this caused stress to her and her baby.

The show's producers argued that Cochran failed to produce any evidence proving that they didn't rehire her because of her pregnancy. In addition, the producers say they cannot be liable for discriminating against the model for her pregnancy-related depression, as they had no knowledge of the condition. However, prior to the jury deliberating the case, the judge apparently failed to instruct the jury on the necessary elements to find the producers liable.
According to the law, Cochran's "Price Is Right" lawsuit was a "mixed motive" discrimination case, meaning her termination arguably may have been based on both discriminatory and nondiscriminatory reasons. In such a case, the judge is required to instruct jurors that the employer is only liable if the discrimination is a "substantial motivating reason" for the termination, and not just a "motivating reason." The judge felt that the jury had received bad jury instructions and ordered a new trial, overturning the $7.7 million jury award for model Brandi Cochran.

Continue reading "'Price Is Right' Model's Pregnancy Lawsuit Verdict Overturned" »

Tennessee employees as well as employees all across the country are entitled to receive overtime pay for any hours worked over forty in a single work week. A company or local office might get away with not paying overtime by making their employees perform work related tasks while they are off the clock. This is made even easier for companies to do because of technological advances such as the internet and using cell phones. However, even if tasks such as checking e-mail or using a cell phone are done after hours by employees, if the work is related to their job, then under the Fair Labor Standards Act, they may be entitled to receive overtime pay.

In this case, Police Department Sergeant Jeffrey Allen originally filed his suit, alleging overtime compensation violations under the Fair Labor Standards Act in 2010. On January 14, 2013, U.S. Magistrate Judge Sidney Schenkier granted Allen’s conditional certification for a collective action under the FLSA. In his suit, Allen claims that the city violated the FLSA when it failed to compensate him, an hourly non-exempt employee, and a putative class of police officers for time spent reading and responding to emails via city-issued BlackBerries outside of normal working hours.

According to his claim, Allen’s proposed group of plaintiffs for the collective action included “All Police Department members . . . who worked ‘off the clock’ using Police Department issued PDA’s or other electronic communication devices without receiving compensation for each hour worked . . . .” Allen alleged that he and roughly 200 other officers in the Police Department’s Bureau of Organized Crime were required to use their police department issued devices to perform work outside of normal business hours and were then pressured into not reporting the overtime worked. The city responded by stating that it had in place procedures for reporting overtime and that the plaintiff failed to take advantage of them.

Allen claimed that, the bureau had an “unwritten” rule which held that officers who wanted a promotion were expected not to report overtime for hours spent responding to emails and calls while they were off-duty. Having obtained conditional certification, Allen now must notify other potential plaintiffs of the suit, who then have until April 8 to opt in. Following the April 8 deadline, the court will hold a status hearing and proceed with the case.

To determine that Allen had made a modest factual showing that he and other officers were subjected to an unwritten policy of not being paid for the off-duty use of their Blackberries, the court focused on the depositions of eight Chicago Police Department officers. These depositions, the court said, indicated that “Sergeants and Lieutenants in the Bureau of Organized Crime believed that they were expected to check and possibly respond to emails and calls made to their department-issued BlackBerries while they were off-duty without being compensated for these activities.”

Continue reading "Police officers claim checking emails outside of work should be compensated as overtime" »

In Tennessee and all across the United States employees are entitled by law to receive overtime pay if they work more than forty hours in a single work week. Unfortunately, many companies and businesses find ways around this law or just fail to pay their employees overtime pay altogether. If you or someone you work with has worked overtime hours but not received your overtime pay, then you should speak to a Tennessee employment overtime pay lawyer right away. They will hear your case and make sure you get the compensation you deserve. Reducing employees wages is one easiest ways for a corporation to increase its profits. However, this type of behavior is nothing more than stealing wages from hard working people that have earned the money by giving a fairs days work to their boss. However, one intersting thing about these case is they are not limited to factory workers or other standard types of employment. In fact, in a recently filed case a group of news paper reporters file a lawsuit claiming they are owed wages under the Fair Labor Standards Act for overtime work they provided.

This lawsuit claims that over the past four years reporters, who worked for local paper’s suburban edition, weren’t paid for their overtime hours, and ultimately the paper decided to settle and pay $660,000. The forty-six employees will split $425,000, while the rest will go to lawyers and Carolyn Rusin, the reporter who first brought the suit, according to the report.

According to the report about the settlement, the newspaper reported that Rusin and the other reporters were not exempt from overtime pay under the Fair Labor Standards Act because their work, primarily covering local government and school board meetings, was determined to not involve “invention, imagination and talent”. Therefore, a person doing that job could not be considered a “creative professional” and so should have been paid 1.5 times her hourly wage for every hour over forty hours per week.

It is true that not every employee is entitled to overtime pay for working more than forty (40) hours per week. However, it is also true that the standards do apply to a majority of the workers in Tennessee and throughout the country. According to the Department of Labor the FLSA applies to over 130 million workers across the nation. This includes full time and part time workers in both the private and public sector. If the Fair Labor Standards Act (FLSA) does apply to you and you have been denied overtime pay you may be entitled to back pay, double damages and attorney's fees. The act also protects you from being terminated for standing up for your rights under the FLSA. These protections are needed as even though the employee is asking nothing more than to be treated fairly under the law many unscrupulous employers will try to punish the employee. As such, before if you believe you are being denied overtime pay feel free to contact our office so we can discuss the best way to stand up for your rights and protect your employment.

If you or someone you work with has worked overtime hours but not received your overtime pay, then you should speak to a Tennessee employment overtime pay lawyer right away. They will hear your case and make sure you get the compensation you deserve.

Continue reading "Newspaper Settles Overtime Pay Lawsuit with Reporters" »

In Tennessee as well as across the United States it is against the law to discriminate against an employee or potential employee because of age, gender, sexual orientation, or disability. Unfortunately however, many companies and businesses find ways around these laws and discriminate against these employees anyway. According to a recent Americans with Disabilities Act (ADA) employment law case, Windell Rutherford started work with the city in 1998 and was promoted to lead lineman in 2002. He became disabled after an on-the job injury in June 2006. In December of 2006, Rutherford was told to return to work, but the city refused to return him to his job as lead lineman when he asked for accommodations that would have allowed him to do the job.

Rutherford claims that the electrical superintendant stated twice that he didn’t want him in his department. Once, he said it was because of Rutherford’s injury and disability. A second time he said it was because “all linemen are white.” Rutherford is black.

At First Rutherford was placed in a light duty position in the Public Works Department without a pay cut. He claims that e Public Works director and city administrator tried to force him to sign a form in April 2010 saying he would accept a demotion to Public Works clerk and a pay cut of more than fifty percent. The city had allowed a white lineman to stay on the job with medical restrictions. Rutherford accepted the demotion in lieu of being fired. He applied for a transfer to an open lineman position later that year, but the job was given to two less qualified, non-disabled white men, Rutherford alleged.

In May 2012, raises were proposed for Rutherford and three other employees. His raise was not approved because he had filed a discrimination complaint with the U.S. Equal Employment Opportunity Commission, according to the lawsuit. Rutherford sought to be reinstated to his lead lineman job and $22.50-per-hour salary or damages for future lost wages and benefits. He also sought other monetary damages.The city electrical department and Rutherford settled the case March 5, according to court records. Rutherford will be placed in an inventory clerk position. He will be reimbursed for his portion of mediation expenses, in addition to the $160,000.

Continue reading "City Electrical Department Lineman Gets $160,000 Settlement for Federal Discrimination and Retaliation Lawsuit" »

In Tennessee and all across the United States employees are entitled by law to receive overtime pay if they work more than forty hours in a single work week. In a recently filed case, assistant branch managers for the Citizens Financial Group claim that they were misclassified under the federal Fair Labor Standards Act and were denied overtime pay. The law requires that hourly workers must be paid overtime if they work more than forty hours a week, salaried workers are exempt. According to court reports, Citizens Financial has denied the basic claim of worker misclassification and contended that the plaintiffs' situations are different enough that they shouldn't be allowed to pursue the case as a group. It cited "widely disparate employment circumstances" among the plaintiffs, who have worked at hundreds of different Citizens Financial branches throughout the East Coast.

The workers' case turns on the assistant bank managers' job duties and whether they assumed managerial duties as the bank contends, or whether they consistently performed the uniform work of lower-level employees, such as opening customer bank accounts and handling customer service, which would mean they were entitled to overtime pay. If the case doesn't settle and a jury determines that the workers acted as managers, they would be exempt from the FLSA and they would not be entitled to overtime. If, however, the jury sides with the plaintiffs, they could be entitled to as much as $14.4 million in damages. The bank has declined to discuss a settlement.

Unfortunately, many companies and businesses find ways around this law or just fail to pay their employees overtime pay altogether. If you or someone you work with has worked overtime hours but not received your overtime pay, then you should speak to a Tennessee employment overtime pay lawyer right away. They will hear your case and make sure you get the compensation you deserve.

Continue reading "Assistant branch managers seek overtime pay" »

In Tennessee and all across the country, it is against the law to discriminate against an employee or customer on the basis of gender, race, disability, or sexual orientation. Unfortunately, however, our Tennessee Employment ADA and Discrimination Lawyers regularly find that companies to do just that either by not providing proper accommodations, pay, or fair treatment for each of their employees.

According to this class-action lawsuit, blind individuals claim that they were denied services by certain banks as the result of ATMs that are not accessible to the visually impaired. One of the plaintiffs, Robert Jahoda, has now filed 35 ADA ATM lawsuits in federal district court. All the claims quote a March 2012 Wall Street Journal article that states that nearly 50 percent of the more than 400,000 ATMs in the United States are inaccessible to the visually impaired, despite the fact that new standards pertaining to accessibility to ATMs for the visually impaired took effect on March 15, 2011, and all ATMs were required to be upgraded to meet these new requirements by March 15, 2012.

Some of the ADA ATM requirements include but are not limited to: machines shall be speech enabled, speech shall be delivered through a mechanism that is readily available to all users, including but not limited to, an industry standard connector or a telephone handset. Speech shall be recorded or digitized human, or synthesized. The requirements for input controls include: at least one tactilely discernible input control shall be provided for each function. Where provided, key surfaces not on active areas of display screens shall be raised above surrounding surfaces.

The requirements for numeric keypads and display screens include: numeric keys shall be arranged in a 12-key ascending or descending telephone keypad layout. The number five key shall be tactilely distinct from the other keys. The display screen shall be visible from a point located forty inches above the center of the clear floor space in front of the machine. Characters displayed on the screen shall be in a sans serif font. Characters shall be 3/16 inches high minimum, based on the uppercase letter "I." Characters shall contrast with their background with either light characters on a dark background or dark characters on a light background. Finally, Braille instructions for initiating the speech mode shall be provided.

Continue reading "First ADA ATM accessibility class action lawsuit is filed" »