Tennessee Employment Lawyer Blog

According to a Final rule recently adopted by the Department of Labor, same-sex couples that are legally married will now be included in the definition of spouse under the Family Medical Leave Act. This means they will be eligible to use FMLA in order to care for their spouse or a family member even if their marriage is not recognized in the state in which they live. The rule became effective on March 27, 2015, but one state’s Attorney General has filed an action seeking to enjoin implementation of the Rule.
Under the Family Medical Leave Act’s “state of residence” rule which had previously been in place since the 1990s, employees were not eligible for protections under FMLA if they were in a legal same-sex marriage in one state but moved to or resided in a state that did not legally recognize the marriage. The new rule known as “place of celebration”, determines eligibility by looking to whether the marriage was valid in the state where the couple was married, regardless of where the couple resides. According to the Department of Labor, the Final Rule’s definition of “spouse” “expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.”
On March 18, 2015, Texas Attorney General Ken Paxton commenced a lawsuit against the U.S. Department of Labor, seeking a temporary and permanent injunction to block the Final Rule. In its complaint, Texas argues that United States v. Windsor allows states to decide whether to recognize out-of-state same-sex marriages, and that the Final Rule invalidly attempts to abrogate the States’ sovereign immunity and thus “flies in the face” of the Supreme Court’s decision.
If the Final Rule goes into effect, eligible employees will be able to take FMLA leave to care for a same-sex spouse with a serious health condition, and take military caregiver leave or qualifying exigency leave when a spouse is on covered active duty. This amendment does not change FMLA rules for domestic partnerships or civil unions. Employees in same-sex marriages will also be able to take FMLA leave for step children. Before this new rule, FMLA leave could not be taken for step children of same-sex couples unless the employee was responsible for the day to day care or financially supported the child. Employees will also been able to take leave to care for a step parent who is the employee’s parent’s same-sex spouse.
If you feel that you have been wrongfully denied FMLA leave or were fired after taking leave or if you have questions about how this new rule may affect your case, it is strongly advised that you contact one of our experienced and compassionate Tennessee FMLA attorneys with the Higgins Firm. We will work with you to see to it that you receive the compensation you are entitled to for your loved ones.

Contact us online or call 800.705.2121 for your free consultation to discuss your legal needs and options.

So you have a wonderful dinner at your favorite restaurant and you would like to show your gratitude to your fabulous waiter. As such, you give him or her a generous tip. Unfortunately, these hard working waiters or waitresses do not always get to keep their tip. This is because many restaurants have what is known as a “tip pool”. Not only may this be surprising to the customer but just think how that poor hard working waitress feels. Regardless, it is important for the employees to know that not all tip pools are legal. If the tip pool is found to be illegal the employee may be entitled to a full hourly wage for hours worked, liquidated damages and attorney’s fees.

The difference between a legal and illegal tip pool depends on a few factors. These factors are often intertwined with the employer’s legal ability to take a “Tip Credit” to pay the lower hourly minimum wage of $2.13 per hour. Specifically, for a tip sharing program to be legitimate the tips can only be shared among employees that regularly and customarily receive tips. This would include employees such as bartenders, counter staff, waiters, waitresses and sometimes hostesses. It would not include cooks, managers, chefs or owners. This would be mainly those employees that aren’t paid at the $2.13 minimum wage.

Taking this a step further, for the employer to be allowed to take a credit for the tip and reduce the hourly wage to $2.13 an hour the following must occur:

1. The employer must notify the specific amount of cash wage the employee will receive. This cannot be less than $2.13 per hour.
2. The tip credit that the employer claims can’t exceed the actual amount of the tip received by the employee 3. The employee must be allowed to keep all tips earned except for the amount to be legally contributed to the tip pool 4. The tip credit will not apply to the employee unless the employee has been informed of these tip credit provision. It is important to note that this notice can be oral or written.

If an employer has set up an illegal tip pool or has not complied with the foregoing tip credit provisions they may have to pay the difference between the $2.13 an hour paid and the current minimum wage. The employee would also be allowed to keep all tips earned.

Also, if the employer decides to use the tip credit provision they must be able to show that the employee earned a minimum of $7.25 an hour. In other words, if you take the $2.13 an hour paid and all tips earned by an employee during a week and divide that amount by the number of hours worked then the average wage should equal or exceed $7.25 an hour.

Finally, do not forget about overtime. If you work over 40 hours per week you are still entitled to 1.5 times your hourly pay for the hours worked over 40. This is probably one of the most overlooked FLSA violations around.
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One way some employers will attempt to avoid the overtime and minimum wage requirements of the Fair Labor Standards Act (FLSA) is by classifying employees as “independent contractors”. This practice is more common in certain industries than others, industries such as construction.

Recently the United States department of Labor obtained a judgment for $380,000.00 against an employer who had classified more than 300 employees working as drywall installers as “independent contractors” and failed to pay them overtime. The press release from the Department of Labor stated as follows:

“”The issue here-misclassifying employees as independent contractors to avoid paying required wages and benefits-is a critical one. Misclassification impacts not only employees and their families, but entire industries,” said Mark Watson, regional administrator for the Wage and Hour Division in the Northeast. “This case sends a clear message that the Wage and Hour Division will use every tool available to protect workers and to ensure a level playing field so that law-abiding employers are not put at a competitive disadvantage.”

The employees, who worked throughout central New York and the Northeast, put in as many as 60 to 70 hours per week with regularity and were paid straight time for hours worked beyond 40 in a workweek.”
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This case has been winding its way through he courts for eight (8) years. It may have a significant impact on the rights of pregnant workers. Considering almost half of our labor force are women and over 40% are the bread winners in the family this case is important to so many families.

According to this case, Peggy Young, a former employee of the United Parcel Service or UPS, was pregnant with her daughter when UPS informed her that she could not be given a temporary assignment in order to avoid lifting heavy packages as ordered by her doctor. UPS had employed Young as a part-time driver who was to deliver overnight letters by 8:30 am. This job requires drivers to be able to lift up to seventy pounds. She was informed by her doctor not to lift more than twenty pounds. She stated that, “They told me basically to go home and come back when I was no longer pregnant.” She filed a lawsuit against the Atlanta based company for discriminating against pregnant women.

Young’s lawsuit is about the Pregnancy Discrimination Act, which was passed by Congress in 1978 to include discrimination against pregnant women as a violation of the 1964 Civil Rights Act. Congress stated that workplace rules that excluded pregnant workers from disability benefits and insurance coverage did not amount to sex discrimination under the landmark civil rights law. Young’s lawsuit is to determine if UPS violated the law through its own policies that provide temporary light work jobs only to employees with on the job injuries that have a disability under federal law or to those employees that have lost their federal driver certification.
UPS spokeswoman Kara Gerhardt Ross said the law is on the company’s side. “UPS did not intentionally discriminate,” Ross said. UPS also noted in their court filings that the Postal Service is an independent agency that receives no tax dollars but is subject to congressional control has similar policies when it comes to pregnant employees. The Postal Service did not comment.

Young argued that because UPS made accommodations for non pregnant employees with work restrictions, it should have done the same for her. The lower courts dismissed the suit, agreeing that Young did not prove UPS discriminated against her because of her pregnancy. The justices agreed in July to review the case. Young stated that, “I am fighting for my two daughters and I’m fighting for women who want to start a family and provide for the family at the same time.”
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Tennessee employees and employees all across the United States are entitled to certain rights when applying for, interviewing and getting hired to perform a job. These rights include that a company or organization is not allowed by law to discriminate against employees because of race, gender, disability, sexual orientation or pregnancy. Unfortunately however, these types of discrimination occur all too often in the workplace. If you or someone you know has been rejected or fired from a job because of any type of discrimination, then you should speak with a Tennessee employment discrimination lawyer as soon as possible. They will review your case and make sure that you receive the compensation you deserve for the violation of your rights.

According to this lawsuit filed by the U.S. Equal Employment Opportunity Commission against the Crooked Investment Company doing business as Crooked Creek & Creekside Bar & Grille the job applicant had previous experience working in a restaurant. She applied for an available food server position in February of 2013. Her first interview with the Crooked Creek Company went well and she was asked to come back for a second interview. During the second interview, she told the company that she was pregnant. When this information was revealed, the Crooked Creek Company refused to consider her for the job.

If a company refuses to hire someone for a job because they are pregnant, this is a violation of the Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The Equal Employment Opportunity Commission first tried to settle this case through its pre-litigation process. When that failed to work the EEOC filed a lawsuit against the company. The lawsuit is seeking back pay, compensatory and punitive damages on behalf of the applicant and they are also seeking injunctive relief to help prevent any other cases of pregnancy discrimination occurring.

According to a statement by the EEOC’s trial attorney, “Women should not be forced to remove themselves from the labor market simply because they are pregnant.” “The EEOC will vigorously enforce a pregnant woman’s right to be fairly considered for a job.” The EEOC is responsible for enforcing federal laws prohibiting employment discrimination.
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This lawsuit which is being processed in a Tennessee federal court claims that the Lakeland-based Publix Super Markets violated the Fair Credit Reporting Act by not making legally required disclosures about background checks to job applicants. Publix has denied that they did anything wrong and was not found to be liable in court but have agreed to a settlement because of the huge cost of litigation and the cost of disruptions to their business.

The main plaintiff in the case, Erin Knights, applied for a job at Publix in 2013 through an electronic kiosk at a store in Tennessee. The lawsuit states that Publix’s application process included an authorization for a background check but it violated the Fair Credit Reporting Act rule that requires companies that are receiving a consumer report for employment to notify the potential employee a document containing only the disclosure. The lawsuit states that, “disclosure requirements are important because they enable consumers to control and correct the information that is being disseminated about them by third parties.”

The lawsuit also alleges that Publix included language in their job application that would lead to certain applications waiving specific legal rights concerning the background checks.

The settlement class totals 90,633 people who would receive roughly $48 each after lawyers’ expenses. The settlement includes people who applied for work at Publix and were subjected to background checks during the period March 12, 2012, to May 13, 2014. Publix has stated that it has made changes to its applications about the background checks. A Publix spokesman declined to discuss the case.

When we apply for jobs it is easy to believe that all the forms we are completing are legitimate. Also, it can be difficult to question the forms because we want to please our prospective employers. Who wants to be someone as a “troublemaker”? It seems that it is just this position of power the employers often abuse. Fortunately, we have some laws in place that level the playing field. The Fair Credit Reporting Act is a great example of just such a law. A law that was put in place to protect all of our citizens against corporations that may abuse that information.
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By Anne Hunter Williams

If you are pregnant and you have asked your employer for light duty work, and the employer refuses, has the employer violated the law? Most likely. In most situations, an employer must provide light duty work to a pregnant employee if light duty jobs are available. Here are a few examples:

Scenario A: Annette requests light duty because of her pregnancy. Her supervisor is aware that she is pregnant and knows that there are light duty positions available that she could perform. Nevertheless, her supervisor denies her request, telling Annette that having a pregnant worker in the workplace is just too much of a liability for the company.

Result: This is a violation of the Pregnancy Discrimination Act (PDA). Because the employer made derogatory comments about her pregnancy, she doesn’t need to produce evidence it is not necessary for Annette to produce any evidence that other workers who weren’t pregnant received light duty.
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The amount of overtime pay violations occurring in this country is staggering. In our office we refer to these cases as “wage theft” cases. In other words, they involve people that have worked hard for their employer yet they are cheated out of wages that they have earned. This can come in the form of working the employee off the clock or failing to pay the employee overtime wages for working over 40 hours per week. Recently, I was interviewed about common overtime myths that we see in our office. You can watch the interview below:

 
//www.youtube.com/watch?v=B-Kg62A-CC4
 
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Do you ever worry that what you say, or post, online might haunt you at work? Recently some employers have requested that new, or even current, employees divulge which online community to which they belong and provide login information and passwords. Can they do that?
Tennessee recently passed the Employee Online Privacy Act of 2014 (Online Privacy Act) which will prohibit employers from requiring an employee or applicant to give the employer access to the employee or applicant’s personal social media account. This law will go into effect in January 2015.
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. Among other exceptions, an employer is allowed to:
• Discipline or discharge an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account.
• Conduct an investigation or require 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.
• View, access or use information about an employee or applicant that is available in the public domain.
• Conduct an investigation or require 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 up to $1,000.00 in damages for each violation, plus reasonable attorney’s fees and court costs.
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The Equal Employment Opportunity Commission (EEOC) is the federal agency that administers many federal discrimination laws. After you file a Charge of Discrimination with the EEOC, they will ask you if you want to mediate your dispute with the employer. What should you do?

What is Mediation?

Mediation is an informal, confidential process for resolving disputes by using an impartial third-party (the mediator) who meets with the employer and employee. The mediator has no decision-making authority, but rather tries to assist the parties to resolve their dispute. Often, mediation is a great way to preserve or build a better working or parting relationship.
Neither party to a dispute is required to participate in mediation, or to agree to a resolution. Mediation typically includes an opening session, followed by a joint meeting of the parties, allowing both parties to explain their point of view. Then the parties usually go into separate rooms and meet privately with the mediator. Through the mediator the parties attempt to reach an agreement. When an agreement is reached, usually it is memorialized in an enforceable, written document signed by both parties.

Do I need an Attorney?

Each party may have an attorney, friend, relative, or other support person present at the mediation. Having an attorney present will help you make sure that your rights are protected. An attorney can also offer options and solutions that you may not have considered on your own. The attorneys at The Higgins Firm have represented clients and numerous EEOC mediations and are adept at protecting client rights while obtaining a positive resolution for them.

What if We Do Not Resolve Our Case?

If you are not able to reach resolution through mediation, then you may still pursue any legal claims or defenses you have preserved. That means that there is very little downside to participating in a mediation. You can try to resolve your case at mediation, and if you can’t come to an agreement, you can continue with your case.
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