Bass Berry & Sims Labor Talk

Sponsored Claim for Subcontractor Severance Pay Granted under Fixed-Price Service Contract

Posted in Leaves of Absence/FMLA Law and Practice

Armed Services Board of Contract Appeals logoThe Armed Services Board of Contract Appeals (ASBCA) recently granted a claim sponsored by the prime contractor for its subcontractor’s employee severance costs under a fixed-price contract. Appeal of Government Contracting Resources, Inc., ASBCA No. 59162 (March 12, 2015).

Government Contracting Resources, Inc. (GCR), sought additional compensation for severance costs it incurred, along with its subcontractor, upon expiration of its service contract with NASA for the distribution of mail at the Kennedy Space Center. A collective bargaining agreement (CBA) between GCR subcontractor Creative Management Technology Inc. (CMT) and the International Association of Machinists and Aerospace Workers (IAMAW) granted severance pay to CMT bargaining unit employees who were not rehired by a successor company at the end of the service contract. The provisions of the CBA had been incorporated, through a modification, into GCR’s service contract with NASA.

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EEOC Joins Other Agencies with Proposed Regulations on Wellness Programs Incentives

Posted in Employee Benefits

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued proposed regulations on the application of the Americans with Disabilities Act (“ADA”) to wellness program incentives. The release was followed closely by FAQs and a fact sheet. Other agencies similarly provided guidance, including joint FAQs from the Departments of Labor, Health and Human Services (“HHS”), and Treasury, and individual FAQs from HHS. Continue Reading

Stephanie Roth Authors Article on Applicant Screenings for McKnight’s Long-Term-Care News

Posted in Hiring and Recruiting

Bass, Berry & Sims attorney Stephanie Roth wrote an article on the pressure employers are facing to forgo inquiring about applicants’ criminal convictions during the initial stages of the hiring process.  Stephanie notes that the legal landscape is rapidly changing and the requirement of applicants to disclose their criminal conviction records when first submitting an application for employment is being banned (“banning the box”).  Further, Stephanie asserts that healthcare providers should not assume that the nature of work provides an exemption to compliance with these laws.  She encourages all employers to revise applications to remove “the box” unless its inclusion is required by law.

The full article, “Screening Workers for Criminal Convictions” was published by McKnight’s Long-Term-Care News on April 16 and is available online.

The Growing Risks of Non-Compliance with Wage Rate Determinations

Posted in Wage and Hour Law and Practice

A Maryland-based construction company required to pay “prevailing wages” under a Federal government contract recently settled for $400,000 claims that it had violated the False Claims Act (“FCA”) by failing to properly supervise lower-level contractors in the payment of prevailing wages to their workers. The case serves as a reminder that government contractors who fail to ensure compliance with wage requirements – whether under the Davis-Bacon Act (“DBA”), Service Contract Act (“SCA”), or Walsh-Healy Public Contracts Act (“PCA”) – can face significant liability. It also highlights the ongoing expansion of the federal government’s battle against procurement fraud. Continue Reading

Tennessee Supreme Court Clarifies Reporting Standard under TPPA

Posted in Retaliation/Whistleblower

The Tennessee Supreme Court recently clarified an important aspect of the Tennessee Public Protection Act (“TPPA”) for purported whistleblowers and employers confronted with claims of illegal activity. In a case of first impression for the Tennessee Supreme Court,[1] the Court addressed a split among the court of appeals panels regarding the reporting requirement for a whistleblower claim under the TPPA. The plaintiff in the case, relying upon one strain of case law, asserted an employee could satisfy the reporting requirement without reporting the asserted illegal behavior to anyone besides the offender if the offender were a manager, owner or highest ranking officer in the company. To fail to provide protections to employees who report to offending managers risks encouraging managers to assert they were involved in illegal activity and would deprive some employers of the opportunity to self-correct, the employee argued.

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Supreme Court Revives Pregnancy Discrimination Case

Posted in Discrimination and Harassment Law and Practice

Is the Supreme Court’s recent decision in Young v. United Parcel Service, here, a limited ruling, applicable only in the context of the Pregnancy Discrimination Act (PDA)? Or, does the decision ring in a whole new (and less employer-friendly) era in discrimination case law? It is too early to tell. Allow this explanation for why.

The Supreme Court ruled that UPS may have violated the PDA by not providing a temporary light duty assignment to a pregnant driver who was on temporary, pregnancy-related restrictions. But the Court found that neither party was entitled to their desired interpretation of the PDA. Continue Reading

Tim Garrett Authors Article on KBR Settlement for Employee Benefit Adviser

Posted in Employment Agreements/Non-Compete Policies and Practice

Bass, Berry & Sims attorney Tim Garrett wrote an article summarizing the SEC’s April  1 announcement that it had settled an enforcement action over an employer’s use of a restrictive confidentiality agreement.

Tim made the point that the SEC’s action was consistent with similar efforts by the National Labor Relations Board and the Equal Employment Opportunity Commission. “These agencies have been reviewing critically the confidentiality provisions of severance agreements and documents used as part of internal investigations,” he wrote. “This announcement from the SEC is a further reminder that employers should have such confidentiality provisions reviewed by counsel or risk similar consequences.”

The full article, “SEC Settles Enforcement Action for Overly Restrictive Confidentiality Agreement” was published by Employee Benefit Adviser on April 2 and is available online.

Tim Garrett Comments on Supreme Court Decision Related to Policies on Pregnant Employees

Posted in Discrimination and Harassment Law and Practice

Bass, Berry & Sims attorney Tim Garrett commented on the Supreme Court decision, Young vs. UPS, questioning whether an employer must provide equal accommodations regarding limited duty to employees who have pregnancy-related limitations and those whose limitations are not pregnancy-related. The Supreme Court referred the case back to the 4th Circuit for review. In light of this ruling, companies are urged to review policies related to pregnant employees. Tim commented on the status this ruling provides to pregnant employees.

The full article, “Businesses Should Review Practices, Policies for Pregnant Workers after Supreme Court Ruling,” was published by InsideCounsel on March 27 and is available online.

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