Tennessee Employment Lawyer Blog

As I bring out my cold cut sandwich made from the remains of Thursday’s turkey and settle in at my home office computer to write today’s Tennessee Employment Lawyer blog, I can’t help but think about the recent Department of Labor lawsuit against West Liberty Foods and Henry’s Turkey Service, an Iowa company, being sued for underpaying their mentally handicapped workers.

Back in February, officers raided an old schoolhouse where 21 men known as “Henry Boys” had been living and working for 35 years for Henry’s Turkey Service cleaning and gutting turkeys. Last Wednesday, the Department of Labor filed suit against West Liberty Foods who contracted and allegedly oversaw operations of the processing plant. This would include the decision to pay these workers a wage of $65 a month regardless of hours worked, much less pay appropriate overtime.

The Department’s wage and hour lawsuit alleges, in addition to paying less than standard minimum wage and failing to pay overtime rates, that Henry’s Turkey Service additionally failed to accurate books. This failure to keep accurate books hit another business hard this week, this time a local restaurant chain in the Great Lakes region.

Continue reading "DOL’s Wage Lawsuits Recovering
Backpay for Wage Violations across U.S. " »

It appears that the Cheesecake Factory was allowing some of its male employees to be treated more like beefcake. In a settlement agreement, Cheesecake Factory must pay six employees a total of $345,000 for sexual harassment. The suit claimed that management knew about and tolerated the behavior.

The men complained repeatedly to management that they were treated in a demeaning and degrading manner by other male members of the staff. They described inappropriate touching, simulation of rape and making sexual remarks. On one occasion managers witnessed the men being dragged, kicking and screaming, into a cooler and did nothing. Even the police department investigation got them nowhere.

Now, in order to avoid further legal action, Cheesecake Factory has signed a consent decree. While the decree does not acknowledge any wrongdoing, it agrees to have sexual harassment training for Cheesecake Factory employees and to appoint an ombudsman to investigate and deal with any complaints of this nature. Failure to do so could result in fines being levied by the court.

Continue reading "Sexual Harassment Suit Settled with Cheesecake Factory" »

Julie Tufts is feeling a bit more vindicated than she did before. Her employer, Hob Lob, LLC, operating under the name of Hobby Lobby, has been ordered by a judge to pay the fine as part of a settlement in a lawsuit filed by the Equal Employment Opportunity Commission. Hobby Lobby refused to allow Tufts to perform her work from a wheelchair.

Employed since 2005 with the company, Tufts injured herself on the job. She has a medical condition that causes diminished sensation in the legs and feet and she did not realize she'd torn tendons in her right foot. Her doctor instructed her to keep to a wheelchair and avoid any weight on that foot. Hobby Lobby's response was to come back when she was healthy and any employee had to be able to climb ladders carrying 40 pounds. Her assurances that she was healthy and could perform work from her wheelchair fell on deaf ears After weekly, then monthly requests to be allowed to return to work she was officially fired a year later.

Along with the $35,000 fine, Hobby Lobby was ordered to conduct training on the Americans With Disabilities Act and post a resolution in the branch where Tufts had previously worked. They also had pay substantial equitable relief and have injunctions against retaliation and discrimination. Their employee handbook will have to be revised to include policies for treating those with temporary disabilities. Hobby Lobby is being monitored by the EEOC for 30 months to ensure their compliance.

Discrimination is illegal in Tennessee as well as all 50 states. An employer can't fire someone for an injury suffered on the job or a disability. The Americans with Disabilities Act protects disabled workers from termination or discrimination.

Continue reading "Store to Pay $35,000 for Disability Discrimination" »

Over $1 billion of U.S. taxpayer money was defrauded by Public Warehousing Co. (PWC) according to recent whistleblower lawsuits now being pursued by the Department of Justice. According to one lawsuit filed under U.S. qui tam provisions, the Kuwait-based company, which has been doing business as Agility since 2006, knowingly through a series of schemes overcharged the U.S. government.

As the principal food supplier to the U.S. military in Iraq, PWC filed false invoices and failed to pass discounts along to the federal government. Monday, the Department of Defense suspended PWC’s ability to receive new government contracts, although the company’s present multibillion food contracts will continue to be honored.

Continue reading "Qui Tam Lawsuit News
Massive Fraudulent Billing Overcharges to Military for Food" »

In Tennessee the answer is no; An employer may not discharge or terminate an employee for refusing to participate in or remain silent about illegal activities.

In Tennessee, the general rule is that most employees may be fired at any time—for any reason or for no reason at all—under what is known as the at-will employment doctrine. However, Tennessee recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee in a manner that violates a clear public policy. An employee has a cause of action—in other words, the employee may sue—for retaliatory discharge when the motivation for the discharge violates public policy.

In order to be succesfull on a claim for retaliatory discharge and employee must show the following:

(1) that an employment at will relationship existed;
(2) that the employee was discharged;
(3) that the reason for the discharge was that the employee attempted to exercise a statutory or constitutional right, or for any other reason which violates clear public policy, including refusing to participate in or remain silent about illegal activites; and
(4) that a substantial factor in the employer's decision to discharge the employee was the employee's exercise of protected rights or compliance with clear public policy.
If an employer is found liable for the retaliatory discharge of one of their employees, the employer may be liable for all actual damages suffered by the employee as well as punitive damages.

In addition to suing an employer for retaliatory discharge, Tennessee has enacted the Tennessee Public Protection Act. This act clearly states “No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities”. Note the language is different under the statute than in the retaliatory discharge claim in that to prevail under this statute; an employee must be able to prove they were discharged solely for refusing to participate in, or refusing to remain silent rather than the action playing only a substantial factor in the termination. Should an employee prevail under this statute, they would be entitled to recover their actual damages as well as attorney fees and the costs of the lawsuit.

Continue reading "Can I be fired for refusing to participate in or remain silent about illegal activities?" »

Las Vegas is a great city to visit, partly due to its heavy dependence on the service industry. Recently, though, some professions in its service industry that rely on tips (and whose employers count on those tips to exceed minimum wage in order to not pay regular minimum wages) have been making the news. Most noticeably, card dealers and adult dancers.

Earlier this year, Tennessee Law Blog reported on Vegas wage lawsuits filed by dealers against casinos for illegal tip pooling. (More information on tip pooling available on our Tennessee Employment pages.) Of recent invention, and one major cause of the tip pooling lawsuit, was the casinos’ policy of having dealers’ tips pooled and, allegedly, illegally distributed to pay non-tipped floor supervisors. Like many tip pooling cases employment lawyers see, this was allegedly done to boost pay to the supervisors at the expense of those dealers who legally qualify as tipped employees.

Continue reading "Vegas, Vegas, Vegas,
(And the Vulnerability of Tipped Employees for Minimum Wage Underpayment in the Silver State)" »

In Tennessee, as in other parts of the country, sexual or gender discrimination is a hotly contested issue. The Equal Employment Opportunity Commission (EEOC) keeps statistics on filed claims and resolutions within their system. In 2008, there were over 28,000 claims filed alleging gender discrimination. For the claims that were successfully resolved, over $109 million was paid out to aggrieved employees. While it is arguable that the country has made progress on gender issues, these statistics show that there is still significant gender and sexual discrimination.

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of sex as well as race, color, national origin, and religion. Title VII applies to employers with 15 or more employees, including federal, state and local governments. In Tennessee, the law is further strengthened to protect employees who take action to enforce their rights. Under Tennessee’s law, it is unlawful for an employer to take adverse action against an employee who asserts her rights. If they do, the employee has a further claim for unlawful retaliation.

The Equal Pay Act of 1963 requires that men and women receive equal pay for equal work as long as the jobs are “substantially equal.” Title VII takes it one step further and does not require a substantially equal job at the same employer, but can analyze pay on a more industry-wide standard.

In Tennessee, the damages recoverable can be considerable. For a first violation of the Equal Pay provision under the law, the employee can recover their unpaid wages, attorneys’ fees and court costs. If the violation is knowingly done by the employer, the employee can also recover further damages, called liquidated damages, in an amount equal to the unpaid wages awarded. If the employer does it a second time, the employee can recover their damages again, plus two times the amount of wages as liquidated damages. For a third knowing violation, the employee can recover up to an additional three times their wages in liquidated damages.

Continue reading "Sexual Discrimination in the Workplace" »

With the widespread availability of cell phones, blackberries, e-mail, fax machines and other modern day tools; we are tied closer to the workplace than ever before. We can be called into work at a moment’s notice and many companies required employees to be available for what they call “on call” time. So when should an employee be compensated for time they have spent “on call”? The answer will depend on each specific case, however the Department of Labor and the United States Supreme Court in interpreting the FLSA (Fair Labor Standards Act) have given us some guideposts to help in this determination.

The key question in determining whether or not an employee should be compensated for time spent “on call” is whether the employee is “waiting to engage” or “engaged to wait”. In other words, how much freedom does an employee have while “on call”. Under the Fair Labor Standards Act and the corresponding rulings by the Department of Labor and the United States Supreme Court, “An employee who's required to stay so close to the workplace in time and distance that they have very little freedom to use the time as her own has been "engaged to wait," and the on-call time constitutes "hours worked" for purposes of the FLSA.”

Some other questions that should be considered when determining if an employee should be compensated include:
• What's the geographic or response-time limitation placed on an on-call employee? A narrow geographic or time restriction, such as staying within two miles of the home or workplace or being required to respond within 10 minutes, is indicative of a person “engaged to wait” and therefore entitled to compensation.
• How often is the employee actually required to respond to calls while on call? If it's virtually certain that the employee will be required to respond to a call every time he's on call, the on-call duty is more disruptive to his nonworking time and is more indicative of a person “engaged to wait” and therefore entitled to compensation
• Are employees on call 24/7, or only certain hours per week or month, and can they switch their on-call time with colleagues if necessary for their personal purposes? If there is a set schedule for times when you are on call and you are allowed less freedom to change these times, this may be indicative of a person “engaged to wait” and therefore entitled to compensation.
• Does the “on-call” obligation significantly limit the employee’s use of the time for personal purposes? The less freedom an employee has while “on call” increases the likelihood that a person is “engaged to wait” and therefore entitled to compensation, however if the employee is able to use the on-call time for substantial personal projects and affairs, then court may find this time to be non-compensable under the FLSA.

Also, remember, if your “on call” time is compensable and increases the hours you spend at work beyond 40 hours, you may also be entitled to overtime pay as well. However each case is different and there are very few “bright line” rules as to when an employee is owed money or overtime pay for time spent on call.

Continue reading "Should I be paid for “on-call” time?" »