Bass Berry & Sims Labor Talk

Tim Garrett Authors Article on Policies to Safeguard the Workplace

Posted in Discrimination and Harassment Law and Practice

Bass, Berry & Sims attorney Tim Garrett authored an article outlining steps that companies should consider to provide a safe workplace. In the wake of recent incidents of violence at the workplace, Tim asserts, employers should adopt policies and procedures to foresee issues and be prepared when situations arise. The article discusses some factors contributing to employers’ concerns and what practical steps employers should take in response.

The full article, “Subduing Violence at Work: Setting Policies to Help Safeguard the Workplace,” was published by Workforce magazine on March 18 and is available online.

DOL Issues Final Rule Revising the Definition of “Spouse” Under the FMLA

Posted in Leaves of Absence/FMLA Law and Practice

As of March 27, “spouse” under the Family and Medical Leave Act (FMLA) will include same-sex spouses for any legally recognized marriages based on the laws of the state of celebration. On February 25, as expected, the Department of Labor (DOL) published its final rules on the definition of spouse under the FMLA in light of the Supreme Court’s Windsor decision. Based on this final rule, the definition of spouse will be based upon the law of the jurisdiction where the marriage was entered into (place of celebration) rather than based on the law of the state of the employee’s residence (or work) “to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live.” Continue Reading

Michael Moschel Comments on Independent Contractor Misclassification

Posted in Labor Board Proceedings and Practice

Bass, Berry & Sims attorney Michael Moschel was interviewed for an article about the Department of Labor’s (DOL) recent crackdown on the misclassification of independent contractors. The article outlines the warning signs employers can look for to determine if an employee is misclassified; explains how memorandums of understanding are being used to share information with DOL on misclassification; and recommends what an employer should do if an employee is misclassified.

The article, “DOL Takes Aim at Independent Contractor Misclassification,” was published on February 3 and is available to subscribers on the Society for Human Resource Management’s website.

What You Need to Know: Non-Competition and Non-Solicitation Agreements

Posted in Employment Agreements/Non-Compete Policies and Practice

On December 3, 2014, Bass, Berry & Sims hosted a General Counsel Forum for a discussion of key issues that arise in the drafting and enforcement of restrictive covenant agreements.  Attorneys Bob Horton and Stephanie Roth, from the Labor & Employment Practice Group, launched the event by addressing the need to begin with the end in mind.  When drafting a non-compete or non-solicitation agreement, what interests is the agreement intended to protect?  In what jurisdiction might a challenge to the agreement be brought, often years after its drafting? Continue Reading

U.S. Supreme Court Rejects Sixth Circuit’s Long-Standing Presumption Treating Healthcare Benefits as Vested for Life

Posted in Employee Benefits, Uncategorized

Employers in Michigan, Kentucky, Ohio and Tennessee may now have more freedom to alter, reduce or eliminate healthcare benefits provided to retired union workers.  On January 26, 2015, the Supreme Court in M&G Polymers USA, LLC v. Tackett unanimously decided that the Sixth Circuit’s long-standing “Yard-Man” presumption violates traditional principles of contract law. 2015 U.S. LEXIS 759 (2015).  Under Yard-Man, courts should presume that healthcare benefits provided to union employees are vested for the life of the retired employee unless the collective-bargaining agreement clearly states to the contrary. See United Auto Workers v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983).  As Justice Clarence Thomas noted, however, such a presumption distorts any attempt to ascertain the actual intent of the parties.  As a result, it effectively disregards ordinary contract principles and “plac[es] a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.” M&G Polymers, 2015 U.S. LEXIS, at *18. Continue Reading

Lisa Rivera Provides Insight on Hiring of Prohibited Employees

Posted in Hiring and Recruiting

Bass, Berry & Sims attorney Lisa Rivera provided insight for the article “OIG Steps Up Enforcement Against Providers Hiring Prohibited Employees,” that was published on January 28 by Modern Healthcare. The article analyzes the rise in fines being levied against companies that hire people on government exclusion lists. According to the article, fines totaling $9 million were levied against 75 healthcare companies in 2014, a significant increase from the prior year. To read the full article, visit the Modern Healthcare website.

California District Court Asked to Determine Retroactive Applicability of United States v. Windsor: Decision Could Impact Employers Who Relied on DOMA to Deny Same-Sex Benefits Claims

Posted in Discrimination and Harassment Law and Practice, Employee Benefits

When the Supreme Court decided United States v. Windsor, 133 S. Ct. 2675 (2013), finding Section 3 of the Defense of Marriage Act (DOMA) unconstitutional for precluding recognition of same-sex marriage under federal law, the Court did not address the extent to which the decision would apply retroactively.  More federal guidance may emerge, however, with Schuett v. FedEx, No. 15-cv-189 (N.D. Cal. 2015), the outcome of which could potentially impact numerous employers who relied on DOMA to deny employee or spousal benefits. Continue Reading

Affirmative Action Plans – Your Common Questions Answered

Posted in Labor Board Proceedings and Practice

Bass, Berry & Sims attorney Bob Horton authored the article, “Affirmative Action Plans – Your Common Questions Answered,” that was published by Contract Management magazine in the January 2015 issue. In the article, Bob answers some of the most common questions that are asked when a company is tasked with preparing an affirmative action plan. The answered questions include:

  • What is affirmative action? What is an AAP?
  • What does affirmative action mean?
  • Who has to prepare an AAP?
  • What about Medicare/Medicaid reimbursement? TRICARE participation?
  • Are all of my facilities covered?
  • What is in the AAP?
  • What happens after you prepare the AAP?

To read the full article and get answers to these questions, click here.

Wellness Programs Face Muddy Regulatory Waters

Posted in Employee Benefits

Bass, Berry & Sims attorneys Sarah Krause and Stephanie Roth authored the article “Wellness Programs Face Muddy Regulatory Waters,” that was published by Employee Benefits News on December 23.  In the article, the authors discuss the EEOC’s recently filed complaints alleging that employers’ wellness programs violate the ADA. To read the full article, click here.

The article was also run in Employee Benefits Adviser.

You’ve Been Hacked: Media Frenzies, Credit Monitoring, and Unfair Labor Practice Charges?

Posted in Union Organizing and Collective Bargaining

Employers have long been concerned about the privacy of their confidential data.  Part of this concern, of course, relates to hackers who, for malicious or profit-driven motives, gain unlawful access to the employer’s system.  This can lead to a host of problems, including liability for failing to take proper precautions to protect the data and loss of revenue as consumers – even temporarily – avoid additional purchases for fear of identity theft.  The latest, attention-grabbing cyber-attack looted Sony Pictures.  While thousands of people are enjoying a bit of schadenfreude seeing the private thoughts of movie executives splashed across social media sites, many employers are following Sony’s legal troubles in the wake of the hack, including a class action lawsuit filed in federal court by current and former employees who allege the company failed to secure its computer network and protect the employees’ confidential information, including home addresses, birth dates, Social Security numbers, and healthcare data.  Continue Reading