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Although the Trump administration rescinded its guidance on worker misclassification earlier this year and appears to have otherwise taken a “softer approach” to misclassification enforcement, California employers should remain diligent in properly classifying their workers and should not allow lax federal enforcement to lead to similarly lax corporate policies.  California employers remain subject to strict laws governing worker misclassification.  California law presumes that all workers who render services for another are non-exempt employees unless employers prove that they are independent contractors or exempt employees. Cal. Lab. Code § 3357. Employers who willfully misclassify their workers can be subject to steep penalties.
Continue Reading California Employers Should Remain Cautious when Classifying their Workforce, Notwithstanding More Lenient Federal Policies

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.
Continue Reading Mutual Agreement to Arbitrate Employment-Related Disputes (TN)

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.
Continue Reading Mandatory Arbitration of Employment-Related Claims (TN)

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.
Continue Reading Federal Judge Issues Final Ruling Striking Down Overtime Rule

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.
Continue Reading Chris Lazarini Comments on Direct vs. Circumstantial Evidence in Discrimination Case

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.
Continue Reading Avoiding Workplace Retaliation: Guidance for Employers

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.Continue Reading DOL Withdraws Obama-era Letters on Joint Employer and Classification Guidance

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.
Continue Reading A New Fee-Shifting Trend In Employer Discrimination Cases?

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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