Tennessee Employment Lawyer Blog

Tennessee workers and employees across the nation are filing more workplace discrimination lawsuits. And no longer is it predominantly women claiming gender discrimination or sexual harassment. As workplaces become more diverse, a greater number of individuals are able to be singled out due to race, religion, sex, ethnic, or medical reasons. According to the Equal Employment Opportunity Commission, during 2008 there was a 15% upswing from the previous year. This equaled 13,000 more filings than 2007.

Aging Boomers are another contributing factor in the increase of illegal terminations and instances of age discrimination. A worsening economy and surplus of workers all vying for the same few positions are resulting in cases of wrongful termination and passing over for hiring.

Recent amendments to the Americans With Disabilities Act have made interpretation of "disability" a much broader term covering more conditions than ever before. Bias against an employee regarding health insurance or employment based on genetic information is prohibited under the Genetic Information Nondiscrimination Act.

Continue reading "Discrimination of All Types on the Rise" »

The statistics released by the Equal Employment Opportunity Commission (EEOC) show that sexual harassment continues to be a significant problem in the workplace. According to the EEOC, they resolved over 11,000 sexual harassment charges in 2008 and recovered $47,400,000.00 in monetary benefits for aggrieved employees throughout the country. This number only includes cases that were actually settled within the confines of the EEOC administrative system and does not include cases that were not resolved and worked their way into the Court system.

In Tennessee, like other states, sexual harassment claims are governed primarily by Title VII of the Civil Rights Act of 1964. There is a corresponding Tennessee law enforcing the rights of parties in the workplace in Tennessee, but it is largely patterned after the Civil Rights Act. Sexual harassment claims are not simply confined to instances where there are direct sexual requests or demands or even physical contact (although these claims certainly give rise to actions). More commonly, the sexually suggestive or forced atmosphere in the workplace creates an intimidating, hostile or offensive work environment that negatively affects performance. In Tennessee, the sexual harassment law is somewhat broadened to include any unequal treatment of an employee based solely upon their gender, if that treatment would make a reasonable person uncomfortable.

Sexual harassment laws are not gender specific and limited to females. The statistics show that although females continue to suffer the lion’s share, nearly 16% of all the claims filed were filed by males. The problems with sexual harassment in the workplace continue to cost companies and individuals substantial time, money and resources.

Continue reading "EEOC statistics show Sexual Harassment as Significant Workplace Problem" »

A last session ruling by the US Supreme Court has Democrat Judiciary Committee members up in arms. The ruling, they say, makes it harder for fired employees to sue on grounds of age discrimination. Claiming a violation of civil rights law, Senators Patrick Leahy, Tom Harkin and Representative George Miller have introduced legislation to overturn the ruling and ensure that age discrimination receives the same recognition as other forms of workplace discrimination.

Recalling the claims of “activist judges” and “legislating from the bench” heard in the confirmation hearing of Justice Sotomayor, Leahy termed the Supreme Court’s approach to employment law as “very very activist”. With this ruling, a “mixed motive” (meaning that age was a contributing , but not sole factor in the termination) was not a sufficient to win the case. So it seems an employer can say "we discrimnated against you because of your age but we would have fired you anyway for a legitimate reason". It is as if the court has given employers a map of how to discrimate based on age without any repercussion.

It is important that you contact your represenative and encourage them to change the law to make any age discrimination illegal. A worker should be judged on their perfomance alone, not their age.

Continue reading "Supreme Court Raises Burden of Proof For Age Discrimination Claims" »

A couple of recent events have made it easier for Tennessee employees and workers all across America who have experienced sexual assault in the workplace. A recent Supreme Court ruling has made it possible for a jury trial even if the signed contract stipulated arbitration instead of a jury trial. One problem with arbitration is the removal of the arbitrator from the adversities of everyday life whereas a jury is made up of individuals from all segments of society. Another is that often the arbitrator is chosen by the defendant leaving significant question as to impartiality.

Senator Al Franken introduced a bill that was passed by the Senate restricting funds to contractors who demand arbitration instead of trial by jury for their employees in instances of sexual assault. Senator Russ Feingold introduced legislation in April that would invalidate many clauses of binding arbitration and send many disputes involving civil rights, employment and consumer rights back to the courts.

Continue reading "Supreme Court Strengthens Rights For Victims Of Workplace Sexual Assault Claims" »

A last session ruling by the US Supreme Court has Democrat Judiciary Committee members up in arms. The ruling, they say, makes it harder for fired employees to sue on grounds of age discrimination. Claiming a violation of civil rights law, Senators Patrick Leahy, Tom Harkin and Representative George Miller have introduced legislation to overturn the ruling and ensure that age discrimination receives the same recognition as other forms of workplace discrimination.

Recalling the claims of “activist judges” and “legislating from the bench” heard in the confirmation hearing of Justice Sotomayor, Leahy termed the Supreme Court’s approach to employment law as “very very activist”. With this ruling, a “mixed motive” (meaning that age was a contributing , but not sole factor in the termination) was not a sufficient burden of proof in claiming discrimination based on age in relation to other types of discrimination. Essentially the Supreme Court has ruled that age discrimination is not as injurious as discrimination of other forms.

If you suspect discrimination of any sort has played a part in your termination, please contact the Higgins Firm at 800.705.2121 or at www.thehigginsfirm.com. Our employment law section can discuss your claim.

The Department of Justice is to receive a settlement of $8.3M thanks to qui tam whistleblowers. And to show its thanks, per the qui tam provisions of the False Claims Act, the two employees who reported the hospital's Medicare fraud (called "relators") will receive up to 15-25% of these recoveries, or approximately $1.4 million.

The whistleblower lawsuit alleges these hospitals based certain healthcare decisions on financial gain rather than medical reasons when treating Medicare patients. This allowed the hospitals to deliberately overcharge the government, through Medicare, for routine, minimally-invasive back surgery.

From 2000 to 2008, according to the whistleblower lawsuit, Medicare patients who went in for kyphoplasty, a kind of spinal surgery to treat certain spinal compression fractures, were unnecessarily kept at the hospital overnight and billed as inpatient to boost the hospitals' revenues. According to whistleblowers in the government lawsuit, kyphoplasty is a minimally invasive surgery that can safely be performed as an outpatient procedure in most cases. A few hours of successful surgery, patients are capable of walking unassisted. Rather than save taxpayers money, these six hospitals, according to the qui tam lawsuit, profited by thousands of dollars, and U.S. taxpayers bilked by thousands of dollars, each time Medicare was fraudulently billed for what amounts to unnecessary inpatient surgery.

The breakdown of the $8.3 million for fraudulent Medicare billing is as follows:

Continue reading "Whistleblowers Reveal Medicare Fraud in 6 Hospitals" »

The Fair Labor Standards Act (FLSA) sets the workweek at 40 hours before overtime wages must be paid for most wage-based employment. It also requires that, at minimum, a minimum wage be paid. Recently, various employers have faced complaints that full wages due have not been paid, which may be a symptom of companies tightening their belts--illegally--at their employees’ expense. Fortunately, FLSA provides the legal framework by which to recover unpaid wages.

One such recent unpaid wages lawsuit is against the pizza chain Papa John's. Filed in Missouri, employees claim the pizza giant violated federal law by failing to reimburse employees for expenses they incurred while delivering pizzas. The result was that delivery drivers would make less than minimum wage. (see previous Tennessee Law Blog article on Hooters workers lawsuit for more on how work-required costs can lead to being paid less than the legally required minimum wage.)

In California, a worker has sued United Parcel Service., the Atlanta-based shipping giant, claiming some $100 million in overtime wages have been withheld from its account managers across the country. According to this lawsuit, UPS required its account managers to work up to 60 hours a week but claimed that these managers were not eligible for overtime pay. The overtime lawsuit also alleges UPS does not keep accurate track of hours its employees work and fails to provide mandated meal and break periods.

Also recently filed class action lawsuits include those against AutoZone and Wells Fargo Bank for allegedly fraudulently categorizing employees as exempt from overtime. They did so, according to the unpaid overtime lawsuit, by the unfortunately common practice of creating titles that do not fit employees' work duties to avoid paying overtime wages for work performed in excess of 40 hours a week or 8 hours a day. Allegations were also made that certain Wells Fargo employees were required to work off-the-clock.

The Fair Labor Standards Act allows for recovery of unpaid wages, plus any related legal fees. Recovered wages could cover a two- or three-year period, depending on whether a violation is deemed willful. You do not need to be a current employee of a company breaking wage law to pursue a wage recovery lawsuit.

Find out more on Tennessee wage lawsuits by visiting our Employment Law pages or by completing our unpaid overtime/underpaid wage inquiry form.

In light of the new Steven Soderbergh movie The Informant! starring Matt Damon as real-life (though no role model) corporate whistleblower Mark Whitacre, I’d like to revisit a topic I’ve blogged about on our sister Tennessee Law Blog for my contribution to this week’s Tennessee Employment Law Blog, that workplace law topic being TN qui tam (whistleblower) lawsuits.

The False Claims Act’s qui tam provision goes back to the Civil War when Abraham Lincoln saw the Union being bled to death by government contractors audaciously bilking the government. President Lincoln saw this theft of tax dollars as a national threat, understanding that these financial hemorrhages could cost them the war. What the qui tam provision allows, both under federal and Tennessee False Claims Act laws, is for the whistleblower to share in the portion of the moneys the government recovers. In federal funds fraud cases, that can be up to 30% of the total damages. In Tennessee whistleblower cases, that can be up to 33%.

Continue reading "Whistleblowers Protected and Rewarded for Right Actions by False Claims Act " »

In June of this year, the United States Supreme Court issued a ruling that required workers to prove that age was the deciding factor for an adverse employment decision and not just one of many factors such as cost savings or performance. In other words, the employer could be shielded from liability from age discrimination lawsuits by claiming that "yes, we did fire Ms. Jones because she is old but that wasn't the only reason." Fortunately, the legislature is looking to repair this injustice.

The new bill that has been introduced would require employers to prove that they have complied with age discrimination laws. This would help insure our aging population is treated fairly. That a person is rewarded for hard work alone and treated differently as a result of age. It would help our workers in Tennessee and throughout the country.

I would hope that you would contact your congressman to say you support this bill. If you have any questions about this bill or employment law, please feel free to contact my Tennessee law offices.

The number of overtime cases my office has received has greatly increased over the past year. I am not sure why but I can only assume it is a product of the slow economy. Whatever the reason it is important for workers to remember that they are entitled to at least one and one-half their regular pay rate after 40 hours of work in a workweek. Of course, most employees know this so to get around the law we see employers avoid overtime pay by creative means. We have seen employers make workers clock out early or not clock in until a certain time, clock out for meetings and other work events, but most common is to classify an employee as a supervisor and pay them a salary.

When an employee is an actual supervisor or manager they can be paid a salary and do not receive overtime pay. However, to be a manager the person must really have supervisor duties. In other words, the work duties will include decision making duties such as setting schedules, telling other employees their job duties, hiring, firing, etc. A manager generally does not expect to routinely perform the same Jobs that the workers they supposedly manage do. If a person has been classified as a manager but is really just doing the same job as every other hourly worker they may be entitled to unpaid overtime pay.

As an example, recently we had a Tennessee case involving a fast food restaurant. Almost every employee in the manager was given the title of assistant manager. There were more "managers" than hourly workers. There was even one young man who did nothing but fry cook duties but he was also called "assistant manager". This was an obvious attempt by the employer to increase their profits by cutting there labor costs. However, it was illegal and the workers were being exploited.

The wage and hour laws can be complicated. Often people just want to know if they have a claim or not before confronting the situation. If you just are not sure please feel free to contact our law firm.