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Last March Michele Petry was told she would not be hired for a nursing position she had so eagerly awaited for. Indianapolis-based IDE Management had run a mandatory background check which had revealed Miss Petry was a convicted felon. Her crimes against her included a felony conviction for drug paraphernalia and another for theft.

The Booneville resident didn’t actually have a felony record; in fact her record was sparkling and clean. After being told she would not be hired for the position, she asked the prospective employer to view the results of the background check to which she was denied in doing so. It was this action that led Miss Petry to file a class action lawsuit against IDE Management in the U.S. District Court for the Southern District of Indiana, Evansville Division.

Miss Petry claims the employer, who operates under the business name of Cathedral Health Care Centers, refused her a position based on inaccurate results of a background check. They also denied showing her the results and further refused to give her a chance at rectifying the situation. This violated the required provision of the Fair Credit Reporting Act which governs all U.S. based background checks.

It’s hard to believe, but some employers actually will discriminate or retaliate against their employees or applicants merely because they were or may be required to spend time away from work because of their service to our country through the reserves or other military service. Congress, fortunately has enacted laws which makes such discrimination or retaliation illegal. This law is known as The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).

Specifically the law states:

“A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.”  38 U.S.C.S. § 4311

According to a recent story from the AP, the state of Tennessee has stopped taking new inmates at its newest facility in Hartsville, TN after only 4 months of operation. “We’re holding off on sending more prisoners until CCA has an opportunity to increase its recruiting efforts and staffing,” Tennessee Department of Correction Assistant Commissioner Tony Parker told the AP.

This is certainly not the first time CCA has been in trouble for overworking its employees; in 2014, CCA paid 8 million ($8,000,000.00) to settle a lawsuit for back wages for employees at its facility in California City, CA. The company also paid $260,000 to settle overtime claims in November, 2013 for shift managers at its facilities in Kentucky. The settlement was unsealed – over CCA’s objections – after Prison Legal News (PLN), a project of the Human Rights Defense Center, intervened in the case to make the settlement public.

Also, in August 2009 the U.S. District Court for the District of Kansas unsealed a $7 million settlement agreement in a nationwide class-action wage and hour lawsuit against CCA. The suit, brought under the Fair Labor Standards Act, alleged that CCA had required some employees to perform work duties “without compensating them for all such hours worked.” Specifically, the company was accused of not paying correctional officers and other employees for pre- and post-shift work that included roll calls, obtaining weapons and equipment, attending meetings and job assignment briefings, and completing paperwork.

If you are working over forty hours a week and are not currently eligible for overtime pay or wages, you may be in luck. The Department of Labor and the Obama administration are on the verge of changing an overtime pay rule that would raise the current overtime threshold of $23,660 per year to $50,440 per year. This would extend overtime pay to millions of American employees. If you feel that you have wrongly denied overtime pay, you should speak to a Tennessee overtime pay and employment lawyer with the Higgins Firm. We will fight for you to help you get the compensation that is rightfully yours.

Currently, the law states that any salaried worker who earns below the threshold must receive overtime. The current threshold of $23,660, or $455 per week, lies below the poverty line for a family of four. The new rule would raise that to $50,440 or $970 per week, which would be closer to the median household income. This rule change would mean that more American workers would qualify for overtime pay. The current overtime threshold is not indexed for inflation and only been updated once since 1975. It only covers twelve percent of salaried employees. If the threshold is raised it would bring it back in line with the 1975 threshold, after inflation.

The current rules for overtime pay exclude white collar workers with titles such as “executive, administrative and professional” from receiving overtime pay. This means that an office worker or secretary might be exempt from overtime pay. Many businesses and companies get around paying their employees overtime pay by giving them nominal supervisory responsibilities. Although the Department of Labor had stated the new rule would make changes to this definition allowing more workers to qualify for overtime pay benefits, the proposed regulation did not include this change.

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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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 Continue Reading

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?

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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Like most every type of law, employment law has many different attorneys that focus on the specific field. If you have an employment law problem, choosing the right attorney for you can be an extremely difficult and stressful situation. Here are some ideas as to what you can look for in a potential labor law attorney to represent you that can make your decision a little bit easier.

1) Expertise
The first thing that you want to look for in a potential attorney is whether or not that attorney has specific expertise in your case. But what does your case specifically entail? How am I to know if the attorney has expertise in my specific area? Well, the best advice is to meet with the attorney and ask questions. Most attorneys around the Knoxville or Nashville area offer free consultations. Take them up on this offer. Once you are in the consultation, explain your situation to the attorney and follow-up with questions regarding their experience with the type of issue. The consultation is a lot like an interview for both you and the attorney. The attorney will be interviewing you to learn more about your situation. The attorney will be asking a number of questions. Why shouldn’t you? You should be interviewing the attorney to make sure that he or she is what you want and strong in the area of your case. Learn about the legal issues in your situation and be sure to ask the attorney about their experience with those matters.

2) Honesty
When you are looking for an attorney to represent you, you should always seek an attorney that is completely open and honest about their practice, their fee and their plan for your case. Fees can vary from a fee to be paid up-front to a percentage (normally between 25% to 40%) of any amounts that you are awarded. Make sure to know this before picking an attorney. Just like anything else, you do not want to open a bill at the end of your case and be surprised by the costs. Beyond their fees, make sure you find an attorney that you feel will be honest with you about your case, including both the positives and the negatives. An honest, open relationship between an attorney and client can make the difference between a good experience with a positive outcome and a bad experience with a disappointing result.

3) Comfort Level
Mainly you need to find an attorney that you are comfortable with because you will be spending a fair amount of time communicating with them. When you go in for the initial (and typically free) consultation, make sure that you feel comfortable in the office. Make sure that you feel comfortable communicating with the attorney. A lawsuit is rarely a quick process. It takes time and effort, from both you and your attorney. Your attorney should be your partner in this case. You should feel like he or she is on your side and genuine enough to represent you in your case. If you do not feel comfortable with a potential attorney, you should keep looking.
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