Tennessee’s New Employee Online Privacy Act of 2014

August 4, 2014 by Jim Higgins

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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What Does it Mean if Your Case is Chosen for Mediation at the EEOC

July 28, 2014 by Jim Higgins

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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Computer Professional Exemption and Overtime

July 11, 2014 by Jon Street

Overtime- Am I Exempt? The Computer Professional Exemption

Under the Fair Labor Standards Act (FLSA) employees are presumed entitled to overtime pay. That is, employees are entitled to receive one and one half their regular rate of pay for every hour worked over 40 in each workweek. This is true whether or not the employee is “salaried”.

There are however certain exemptions to the overtime law. These exemptions are based on the particular job duties of the employee not on whether or not the employee is paid hourly or is salaried. Courts routinely hold these exemptions are to be construed liberally in favor of the employee in determining whether an employee is in fact exempt from overtime pay.

One of these exemptions is the “computer professional” exemption.

In order for an employer to classify an employee exempt as a “computer professional”; the employee must meet both a compensation and job duties test.

The compensation test

In order to meet the compensation test, the employer must be able to show that the employee either received:

1. A minimum of $455.00 per week if salaried OR
2. A pay rate of $27.63 per hour if paid hourly

If an employee does not receive these minimum amounts in pay; then the exemption will not apply.

The job duties test

In order to meet the job duties test, an employer must show the employee is a “computer systems analyst, computer programmer, software engineer, or other similarly skilled worker” whose primary duty involves:

1. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;

2. The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; [or]

3. The design, documentation, testing, creation or modification of computer programs related to machine operating systems;

The term “primary duty” under the FLSA means the employee's "principal, main, major or most important duty." 29 C.F.R. § 541.700

Note that the actual job title of the employee does not determine if the job duties test has been satisfied; it is the actual job duties listed above that will determine if the employee is in fact exempt from the overtime requirements of the FLSA. Just because an employee works in “I.T.” does not mean they are exempt.

For the computer professional exemption to apply, an employee's primary duty must require 'theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering' not merely 'highly-specialized knowledge of computers and software.’ Chicca v. St. Lukes Episcopal Health Sys., 858 F. Supp. 2d 777, 784 (S.D. Tex. 2012)

Factors considered by the courts in determining whether an employee fit the exemption include, but are not limited to:

• the volume of data and the number of users the employee supports;
• the type and complexity of the problems handled by the employe;
• the layers of assistance below the employee to handle lower-level or simple problems, including whether there was a helpdesk below the employee to handle routine issues;
• the skill level of the employee, including certifications held, and the relevance and importance of those skills and certifications in the execution of the job;
• the level of initiative or creativity used in the execution of their job;
• the priority of the employee's work relative to the overall work of the company.

Sethi v. Narod, 2013 U.S. Dist. LEXIS 141485, 42-43 (E.D.N.Y. Sept. 30, 2013)

The sixth circuit has held an employee will NOT be exempt if they do not engage in computer programming, software engineering, or perform systems analysis. “These job duties involve making actual, analytical decisions about how a computer network should function. Installing and upgrading hardware and software on workstations, configuring desktops, checking cables, replacing parts, and troubleshooting problems are not job duties which would fall under the exemption as they are all performed to predetermined specifications in a system design created by others.” Martin v. Ind. Mich. Power Co., 381 F.3d 574, 580 (6th Cir. Mich. 2004)

Other courts have followed the lead of the sixth circuit in this approach. (Systems analysis involves making actual, analytical decisions about how a computer network should function." Karna v. BP Corp. N. Am., 2013 U.S. Dist. LEXIS 37517, 50 (S.D. Tex. Mar. 19, 2013)) (The mere fact an employee performs some tasks considered "consulting," "analysis," or "testing" relating to computers does not mean they fall within the ambit of a provision designed to exempt computer programmers, network designers, and software developers. Hunter v. Sprint Corp., 453 F. Supp. 2d 44, 52 (D.D.C. 2006))

There is undoubtedly a relatively small amount of case law interpreting the “computer professional” exemption; however it is clear one of the most important factors to consider is whether an employee is performing “help desk” or support type of job duties or actually performing work programming, developing software, or designing/creating computer networks.

There is no doubt however, each case will require a detailed look into the particular job duties the employee actually performed in determining whether the exemption applies.


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Overtime- Am I Exempt? The Computer Professional Exemption

June 17, 2014 by Jon Street

Under the Fair Labor Standards Act (FLSA) employees are presumed entitled to overtime pay. That is, employees are entitled to receive one and one half their regular rate of pay for every hour worked over 40 in each workweek. This is true whether or not the employee is “salaried”.

There are however certain exemptions to the overtime law. These exemptions are based on the particular job duties of the employee; not on whether or not the employee is paid hourly or is salaried. Courts routinely hold these exemptions are to be construed liberally in favor of the employee in determining whether an employee is in fact exempt from overtime pay.

One of these exemptions is the “computer professional” exemption.

In order for an employer to classify an employee exempt as a “computer professional”; the employee must meet both a compensation and job duties test.

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Tennessee Is an At Will Employment State. So what does that mean?

May 8, 2014 by Jim Higgins

Most people know that Tennessee is a "right to work" or "at will" employment state. However, I am not certain that people always know what that means. In the most basic sense it means that an employee can be fired for a good reason, bad reason or no reason. On that same page, an employee can quit for a good reason, bad reason or no reason. However, that doesn't mean that there aren't protections under Federal and Tennessee Employment Laws. It is still illegalt to fire someone for a protected reason such as race, gender, disability, pregnancy, etc. I was recently interviewed on this topic and you can watch it below:

https://www.youtube.com/watch?v=w0DCQq56wdY&list=UU9MLYRK1mnikglrDHEvNxSA&feature=player_detailpage

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Equal Pay for Equal Work … Seems Fair, Right?

April 14, 2014 by Jim Higgins

On Wednesday, April 16, 2014, Senate Republicans blocked—for the third time—the Paycheck Fairness Act, a bill proposing to close the pay gap between men and women. The goal of the bill—the attainment of equal pay for equal work—seems like a no-brainer, right? Women with the same job, and same qualifications, as men deserve to be paid the same. They should not discriminated against because of gender. It just seems obvious. However, not a single Republican Senator voted in favor of the Act. So right now the status quo continues, which yields women making about 77cents for every dollar men make.

Had it passed, the bill would have made it illegal for employers to retaliate against a worker who inquires about or discloses her or his wages or the wages of another employee in a complaint or investigation. And as part of this bill, the Equal Employment Opportunity Commission would be required to collect pay information from employers.
What’s a girl to do??

Even though the Paycheck Fairness Act has stalled for now, there are still ways a woman who is underpaid for the same work a man is doing can prevail. The Equal Pay Act, enacted in 1963, provides a remedy for gender-based pay inequities. Also, women can bring a case for pay inequality as part of a gender discrimination

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Genetic Information Discrimination

February 27, 2014 by Ryan Simmons

While it sounds like something that would be an issue in a science-fiction, futuristic movie, cases involving discrimination due to genetic information are popping up across the country.

On May 21, 2008 the President signed in to law the Genetic Information Nondiscrimination Act of 2008, also referred to as GINA. The law was written in order to protect Americans from being treated unfairly because of differences in their DNA that may affect their health. GINA prevents discrimination from both health insurers and employers.

The passing of GINA was important for everyone. Every person has numerous DNA differences that could increase or decrease their chance of getting a disease such as diabetes, cancer or heart disease. The research in DNA health can be used to help treat people. However, it can also be used to discriminate against people as well.

Recently, one of the first Genetic Information Act lawsuits was settled against a nursing home in New York. The nursing home would ask employees about their family medical history as part of its post-offer, pre-employment medical exam of all applicants. This kind of information request is illegal under GINA. The EEOC sued the nursing home on behalf of 138 individuals who had been asked for their genetic information and the nursing home settled for $110,400 to be payable to all of the individuals.

As cases have started popping up around the US based on genetic discrimination, people are starting to better understand the rights that are protected under GINA. People can have genetic tests done which could benefit their health while sleeping soundly knowing that the feedback provided by the tests is safely secure and unable to be used against them.

While this is still a relatively new law, both health insurers and employers do fall under the guidelines, as of 2009. However, the law as it is currently written does not cover life insurance, disability insurance or long-term health insurance.

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Class-Action Settlement Protecting Female Workers

January 8, 2014 by Ryan Simmons

Back in 2002, a woman named Shirley Ellis filed a complaint with the U.S. Equal Employment Opportunity Commission. In her complaint she alleged that Costco Wholesale Corporation denied her a promotion from assistant manager to store manager based on her gender. Due to Ms. Ellis filing her complaint, Costco retaliated and transferred her to a different store, one that could require up to a four hour daily commute.

In 2004, Ms. Ellis filed a federal class action lawsuit on behalf of herself and women similarly situated claiming that Costco methodically discriminated against women in how they managed promotions. Late last year, Ms. Ellis and Costco reached a tentative settlement agreement that will compensate Ms. Ellis and approximately 700 other women who were passed over for promotions.

Due to Ms. Ellis’ ability to file a class-action lawsuit, there are going to be real and tangible changes within Costco that will create better situations for both the company and the employees. Without this case proceeding as a class-action, is it unlikely that anyone would know anything about the fact that women comprise approximately 50% of Costco’s total number of employees but only 17% of the top management positions. Without a class-action lawsuit, it is unlikely that the 700 women who were also improperly denied promotions would be receiving any compensation from Costco. Finally, it’s highly unlikely that Costco would have agreed to wide institutional changes: to change its promotion procedures, hire a professional to evaluate its methods, create a posting process for job vacancies, and establish a system to track employee interest in promotions to management positions.

However, recently some courts have started to determine that an employee can be required to sign an arbitration agreement that bans class action lawsuits as a condition of employment. By allowing this ban, the courts have greatly increased the protection afforded to employers. The ban on class action lawsuits as a condition to employment is something that employees will have to fight for years to come.

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Independent Contractors vs. Employees

December 10, 2013 by Ryan Simmons

If you have spent time in the working arena then you are likely familiar with the terms “independent contractor” or “employee” but what is the difference? Under the law, there is a difference. Individuals who are classified as independent contractors save an employer lots of money as the employer is not required to withhold income taxes from an independent contractors pay and the employer does not have to pay FICA (Social Security and Medicare) or FUTA (federal unemployment). On the state level, employers do not have to contribute to unemployment insurance and workers’ compensation funds.

With all of these benefits for the employer, it is easy to see why so many employers are quick to claim their workers to be independent contractors and not employees. However, how do you know if you are being misclassified or not? Some questions to answer when determining if you should be considered an employee or an independent contractor include:
- Is my compensation based on something other than a project-by-project basis?
- Are my hours determined and kept by my employer?
- Does my employer provide the materials and equipment necessary to complete my job?
- Does my employer instruct me on how to accomplish the work assigned to me or am I given autonomy to complete the job as I see fit?

Misclassification of employees as independent contractors denies workers access to benefits and protections, such as Family and Medical Leave, overtime, minimum wage, unemployment insurance, and certain employer-provided benefits that are available only to qualifying employees. Remedies for this misclassification include backpay, back taxes, interest, and civil penalties.

If you think you are improperly classified and being denied benefits then contact one of our Tennessee employment lawyers. At The Higgins Firm, we are happy to answer any questions that you may have.

FLSA Exemption: Motor Carrier Exemption

November 26, 2013 by Ryan Simmons

Around 80 years ago a piece of legislation was passed that forever changed the way business was conducted in the United States. The Fair Labor Standards Act of 1938 (FLSA) was passed in order to give the workers of industry in the United States some proper protection. Generally, the FLSA established a national minimum wage, prohibited types of labor by minors, and more importantly for this current blog, guaranteed “time-and-a-half” for overtime in certain jobs.

Under the FLSA many types of workers are not guaranteed overtime pay due to different exemptions that run the gamut from computer professionals to sugar processing employees. One group that carries an exemption is that of people working in the motor carrier field. However, as with everything in the legal field, there are caveats involved with the potential exemption.

The US Department of Labor left the qualifications and maximum hours of service allowed in the hands of the Secretary of Transportation. As such, the Secretary of Transportation determined that this group of individuals is exempt from receiving overtime pay. The focus in this exemption is that an individual has duties that “affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce.”

The key phrase there is “affect the safety of operation.” How do we determine what is considered to be “affecting the safety of operation?” That is a question that is open for discussion in the courts. Would an individual who loads and unloads a tractor trailer with no official training fall under the exemption? What about someone who merely rides in the motor vehicle?

This has been touched on by courts in the past though no specific decision has been made. In 2011, the Middle District of Pennsylvania the District Court stated, “However, if the safety-affecting activities are so trivial, casual, and insignificant to be de minimis, the exemption will not apply in any workweek so long as there is no change in his duties. It is the character of the activities rather than the proportion of either the employee’s time or his activities that determines the actual need for the Secretary of Transportation’s power to establish reasonable requirements. The character of the duties performed by the employee, and their relationship to safety operation is controlling.” In 2010, the Northern District Court of Georgia allowed a Plaintiff’s case to survive summary judgment by focusing on what the Plaintiff’s duties were, “The regulations’ definition of a ‘loader’ includes a de minimis exception to the rule: The mere handling of freight at a terminal, before or after loading, or even the placing of certain articles of freight on a motor carrier truck may form so trivial, casual or occasional a part of an employee’s activities, or his activities may relate only to such articles or to such limited handling of them, that his activities will not come within the kind of ‘loading’ which directly affects ‘safety of operation.”

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Employment At-Will, What Does It Actually Mean?

November 21, 2013 by Ryan Simmons

People here in Tennessee often have questions with regards to what being an “employee at-will" means. In simple terms, it means that an employee can be fired at any time, regardless of ii the employer has a legitimate excuse or not. However, this cuts the other way too, an employee can quit their job at any time, even if they have no specific reason for quitting.

One catch with the employment at-will notion is if you have signed an employment contract of some kind with the employer. These are often known as a “contract for employment”, though they can be called any number of names. The idea is to legally bind you to the company and the company to you. In the cases that involve these contracts, an employer is unlikely to be able to fire you without giving you some sort of compensation.

One bit of advice that we can give you is to make sure that you read any contract that is given to you by your employer and that you are expected to sign. If you want, get an attorney to read it and walk you through everything that the contract stipulates. You have to remember that these contracts are drafted by attorneys for your employer so the contract will likely serve the employer’s interests more than yours.
With all of that said, there are some issues that being at-will cannot defend an Employer against. Based on Federal law, Employment at-will policies cannot be used by Employers in any discriminatory manner. For example, it is still illegal for Employers to fire you because of your national origin, sex, religion, color or race. Further, an employer cannot legally fire you because of your age if you are over 40 years old. Finally, another example is that a disabled person cannot be fired due to their handicap, or even the perceiving of a handicap.

As with most every law on the books, there are always little things that are or are not allowed depending on a specific situation. Always make sure to consult with friends, family and an attorney as to your situation to make sure that you are being protected and no Employer is able to take advantage of you. Contracts for employment are not things that you should take lightly. In the future, if you have prepared properly then this contract can help you. But if you did not pay attention, then it could cause some difficulties for you.

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Employment Non-Discrimination Act (ENDA): One Hurdle Passed

November 12, 2013 by Ryan Simmons

Late last week the United States Senate passed the Employment Non-Discrimination Act. This Act prohibits hiring and employment discrimination based on the sexual orientation and sexual identity of an individual. Essentially, this Act takes the law prohibiting discrimination on the basis of race, sex, religion or national origin, found in Title VII, and extends it to lesbian, gay, bisexual and transgender individuals.

The bill passed the Senate with a 64-32 vote with ten Republicans voting in favor of its passage. ENDA is not in effect yet, though it has passed one major hurdle in being passed by the Senate. Now the amended version of the bill will go to the House of Representatives for approval. The House presents another hurdle as many Republicans have spoken out against it. Further, Speaker of the House John Boehner has previously indicated that he is against the bill and will likely not even bring it up for a vote.

If the bill is indeed brought before the House and passed, then ENDA could greatly change how discrimination is defined across the country affecting both employers and employees alike. This new bill would create an entire new group of protected individuals from discrimination. However, as of now, we are waiting to see what the House does with the passed bill and we could be waiting a while.

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