Bass Berry & Sims Labor Talk

DOJ’s “Fairyland Damages” Calculation Rejected in Prevailing Wage Rate False Claims Act Case

Posted in Wage and Hour Law and Practice

In a February 4, 2016, decision, United States ex rel. Wall v. Circle C. Construction, LLC, the Sixth Circuit summarily rejected the government’s assertion that the measure of damages in a False Claims Act (FCA) suit involving a violation of prevailing wage rate requirements was the total amount paid for the work.  The Sixth Circuit’s rejection of the “total contract value” theory of damages in the prevailing wage rate context is a welcome development for FCA defendants who are faced with increasingly creative damages theories asserted by the government and the relator’s bar.

Circle C’s Army Contract

For a case that involved a relatively minor non-compliance with the prevailing wage rate requirements applicable to federal construction contracts, the Circle C. Construction case has a long history.  Circle C entered into a contract to construct warehouses at the U.S. Army base at Fort Campbell, located in Kentucky and Tennessee.  Pursuant to the Davis-Bacon Act, Circle C was required to pay electrical workers at least $19.19 per hour, plus a fringe benefit rate of $3.94 per hour.  Circle C was also required to submit certified payroll for itself and its subcontractors.

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Managing Social Media in the Workplace: 5 Thoughts for Hospital Executives

Posted in Employee Handbooks and Policies

Bass, Berry & Sims attorney Michael Moschel provided insight for an article in Becker’s Hospital Review detailing the use of social media in the workplace. While the article focuses on social media within the context of a hospital setting, the general principles are applicable across a variety of industries. In the article, Michael outlines five helpful tips for employers to follow when utilizing social media:

  1. Focus on business purposes.
  2. Don’t follow a subordinate on social media.
  3. Implement some type of centralized management of the hospital’s disciplinary policy for social media.
  4. Have a compliant social media policy in place and train employees on it.
  5. No double standards.

The full article, “Managing Social Media in the Workplace: 5 Thoughts for Hospital Executives,” was published by Becker’s Hospital Review on December 31, 2015 and is available online.

Workplace Conflicts: How Involved Must An Employer Be?

Posted in Uncategorized

Bass, Berry & Sims attorney Tim Garrett analyzed an employer’s obligations in responding to workplace conflict among employees. Conduct on social media between colleagues and domestic violence situations that can spill over into the workplace have blurred the lines of what is considered on-duty and off-duty behavior. This new landscape has left many employers wondering how involved a company should be in responding to these situations. In the article, Tim outlines some practical guidelines for balancing these concerns.

This article is the last in a three-part series on the topic of how the culture war in America is playing out in the workplace. The full article, “Workplace Conflicts: How Involved Must An Employer Be?,” was published by InsideCounsel on December 23, 2015 and is available online.

Use the links below to access the other two articles in the series published by InsideCounsel earlier this year:

Confederate Flags in the Workplace: How Should an Employer Respond?

Posted in Discrimination and Harassment Law and Practice

The Equal Employment Opportunity Commission (EEOC) has taken the position that Confederate flag displays in the workplace constitute evidence of a racially hostile work environment; some courts (but not all) have agreed. In light of these developments and the public debates regarding the Confederate flag and other (potentially) offensive symbols, how should an employer respond? Continue Reading

UAW Wins Vote Among ‘Cherry-Picked’ Unit of Maintenance Workers

Posted in Union Organizing and Collective Bargaining

The United Auto Workers (UAW) is celebrating a rare win among Southern auto plants, after a small unit of maintenance workers at the Volkswagen plant in Chattanooga, Tennessee voted to unionize.  The unit makes up only 12% of the 1,400 production and maintenance workers, and they voted 108-44 in favor of the UAW.  VW is appealing an earlier ruling by the National Labor Relations Board (NLRB) that allowed a vote of such a small unit of workers within the much larger plant.  This appeal sets the stage for a possible legal battle for years to come. 

This victory comes almost two years after the UAW lost a much-publicized plant-wide vote in February 2014.  Tennessee Governor Bill Haslam, when asked for his reaction to the most recent vote, down-played the UAW win, claiming that the victory came because the union was able to “cherry-pick” the employees who were included in the vote.

This UAW win further informs employers about the impact of the NLRB’s ruling allowing such “micro-units.”

Tennessee Governor Dismissive of ‘Cherry-picked’ UAW Victory

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

Bass, Berry & Sims attorney Bill Ozier commented on the outcome of the latest union vote at the Volkswagen (VW) plant in Chattanooga, Tennessee. The company’s skilled maintenance employees at the VW plant in Chattanooga voted last week to designate the UAW as their collective bargaining representative. The vote among this smaller group of employees follows the vote against union representation by the company’s entire hourly work force in February 2014. Volkswagen has indicated that it will appeal the decision by the NLRB’s Regional Director to allow the vote among the smaller group to the full NLRB in Washington, D.C., although Bill projects that the Board will follow its recent precedent and not overturn the vote.

The full article, “Tennessee Governor Dismissive of ‘Cherry-picked’ UAW Victory,” was published the Associated Press on December 7, 2015 and is available online.

Arbitration Provision in Employee Handbook Not Enforceable

Posted in Employment Agreements/Non-Compete Policies and Practice

Employers should not rely on handbook provisions to create enforceable obligations on employees.  The employers who do so took another loss recently. In Lorenzo v. Prime Commc’ns, LP, 2015 BL 386874, 4th Cir., No. 14-1622, 11/24/15, the federal Fourth Circuit Court of Appeals ruled that an arbitration provision, contained in an employee handbook, was not enforceable. The provision, said the Court, did not require an employee to take her wage and hour claims to arbitration. Rather, the employee was free to pursue those claims – including a collective action – in federal court.

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2015 ERISA Welfare Plan Checklist

Posted in Employee Benefits

We recognize that many of our clients sponsor ERISA welfare benefit plans and are currently undergoing their open enrollment process and issuing related participant communications. To assist our clients with that process, we have prepared an Automatic Participant Disclosures Checklist for use during open enrollment and throughout the plan year.

Please note that many of the disclosure requirements, links, and/or other information provided in the checklist may change from time to time; therefore, please check our Employee Benefits Practice Group thought leadership page periodically for the most current version of this checklist.

If you have questions regarding the information in this checklist, please contact any of the attorneys in our Employee Benefits Practice Group.

Download Document – 2015 Welfare Plan Disclosure Checklist

Should Gay Employees Have to Put a Ring on It?

Posted in Employee Benefits

Bass, Berry & Sims attorney David Thornton offers guidance on the recent Supreme Court decision in Obergefell v. Hodges, and how public and private sector employers are struggling with its legal and financial implications. As David explains, “‘[t]hey’re worried that if they keep the same-sex partner benefits, there’s a pretty good argument that opposite-sex partners are being discriminated against.'” Initially, many companies planned to change their coverage plans to cover only married couples, but now many big companies are deciding to extend benefits to unmarried couples in a committed relationship. As David emphasizes in the article, by extending coverage to unmarried couples, companies can attract and retain quality employees.

The full article, “Should Gay Employees Have to Put a Ring On It,” was published by U.S. News & World Report on November 10, 2015 and is available online.