Bass, Berry & Sims attorneys Bob Horton and Kimberly Veirs contributed an article for Practical Law on Tennessee laws related to the mutual agreements to arbitrate employment-related disputes. The article outlines key differences between federal and Tennessee arbitration law and cites several cases interpreting these statutes. Bob and Kimberly also provided sample language for a Tennessee-specific agreement to arbitrate employment-related claims that can be used by employers with employees in Tennessee.
Bass, Berry & Sims attorneys Bob Horton and Kimberly Veirs contributed an article for Practical Law on Tennessee laws related to the mandatory arbitration of employment-related claims. The article outlines key differences between federal and Tennessee arbitration law and provides guidance on issues associated with unconscionability, severability, waiver of class and representative actions, arbitrability, drafting considerations, EEOC challenges, and bracketed text. As part of the article, the authors provided sample language for a Tennessee compliant mandatory arbitration provision of employment-related claims that can be incorporated into a written employment agreement or employee handbook.
Texas Federal Judge Amos Mazzant has issued a final ruling striking down the overtime rule. In the August 31 ruling, Judge Mazzant used essentially the same reasoning on which he based his temporary injunction ruling. In light of this final decision, the appeal of his temporary injunction likely becomes moot. In addition, Judge Mazzant made clear that he is not finding that the DOL is prevented from ever using a particular salary level, but rather is invalidating this particular rule as going “too far” in essentially eliminating those who perform exempt duties but make less than the high salary threshold.
Just when you thought it was “safe to go back in the water,” a new flurry of class action claims based on asserted deficient COBRA notices is drawing the interest of class action plaintiff law firms.
Bass, Berry & Sims attorney Chris Lazarini commented on a case in which a former financial advisor of JPMS claimed his employment was terminated based on racial discrimination. Through application of the three-part burden shifting analysis developed in McDonnell Douglas Corp. V. Green, the court found no evidence of discrimination and upheld the termination due to the financial advisor’s violation of the company’s document integrity policies and not his race.
In an article published in the Spring 2017 edition of Employment Relations Today, Bass, Berry & Sims attorney Kimberly Veirs discussed ways employers can avoid retaliation claims in her article “Avoiding Workplace Retaliation: Guidance for Employers.” Workplace retaliation remains the most commonly reported complaint to the Equal Employment Opportunity Commission (EEOC) by U.S. employees across all industries. Following a slew of these claims and high-profile court cases, the EEOC issued detailed enforcement guidance in August 2016 – its first such guidance since 1998. With workplace retaliation included as one of the commission’s substantive priorities in the Strategic Enforcement Plan for 2017-2021, the EEOC remains focused on ensuring that employees and job applicants are able to challenge discrimination without fear of retribution.
In an article published in the Nashville Business Journal, Bass, Berry & Sims attorney Tim Garrett discussed latest developments in employment law through the first months of the Trump presidency. The article covers the following developments:
The unwinding continues. The U.S. Department of Labor (DOL) recently announced the withdrawal of the Obama administration’s previously issued informal guidance on independent contractors and joint employers.
In a very brief statement, the DOL announced that it was withdrawing a 2016 interpretation of the Fair Labor Standards Act (FLSA) which expanded the joint employer standard from one requiring a business to have direct control over an employee to a more broad and ambiguous standard of indirect control.
In an article published by Law360, Bass, Berry & Sims attorney Tim Garrett provided insight on the continued increase in employment discrimination lawsuits, which may be due in part to fee-shifting in such lawsuits. Fee-shifting is a mechanism by which a prevailing party in a lawsuit can require the losing party to pay the reasonable attorneys’ fees of the prevailing party. The concept sounds fair, but in employment discrimination cases the only party who benefits from fee-shifting is the employee. Employers are hopeful that a new law recently passed in Ohio will start a new trend to reverse what employers perceive as unfairly one-sided fee-shifting. Time will tell whether a new trend has begun, and the new law at least may spark an interesting public policy debate.
The full article, “A New Fee-Shifting Trend In Employer Discrimination Cases?,” was published by Law360 on April 18, 2017, and is available online.
Additional insights can be found in my earlier blog post on the topic, “Employer Recovery of Fees and Costs in Discrimination Cases – Is There a Trend Starting?,” published on March 31, 2017.
In an article published by the Society for Human Resource Management (SHRM), Bass, Berry & Sims attorney Bob Horton provided insight on what responsibilities franchisors have for ensuring that franchisees comply with employment laws. Bob suggests that “simply providing training to franchisees regarding employment law should not transform, by itself, a franchisor into an employer. During the course of employment law training, supervisors will often ask for advice regarding specific situations that come to mind during the training. Responding to such inquiries during the course of training should certainly be avoided as those conversations could be used as evidence of indicia of control by the franchisor.”
The full article, “Franchisors Shouldn’t Micromanage Franchisees’ Compliance Training,” was published by SHRM online on February 21, 2017, and is available online.