Bass Berry & Sims Labor Talk

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.

In contrast, the defendant looked to other precedent that required an employee to report illegal activity to someone other than the offending party to comply with the statute’s purpose, which is to advance the public interest. The defendant argued that reporting concerning conduct only to those engaged in such conduct furthers only a private interest and is insufficient to meet the standard set forth in the statute.

After a review of the court of appeals opinions and case law from other jurisdictions, the Court sided with the defendant, holding that, to successfully state a claim under the TPPA, a plaintiff must report asserted illegal activity to an entity other than the offending party even if meeting this standard would require reporting the activity to outside parties. The public policy underlying the TPPA requires employees to seek to further the public good by exposing illegal or unsafe practices. Reporting illegal activity only to the wrongdoer does not expose the act to the light of day and, thus, does not rise to the standard of whistleblowing. By limiting the exception to those situations in which an employee has exposed an employer’s wrongful practices in furtherance of the public interest, the Court stated its holding aligned with the need to maintain the narrowness of the exception to Tennessee’s employment-at-will doctrine created by the TPPA.

Takeaways:

  • While the Court’s decision provides employers with clarification of the reporting standard under the TPPA and with grounds for challenging some claims brought by employees under the TPPA, the holding also may encourage employees to go outside the employer’s organization to report concerns to ensure they have met the whistleblower requirements, especially if they are being advised by counsel.
  • To encourage employees to provide your business an opportunity to self-correct, make internal reporting procedures clear and easy to follow. Be certain employees know how to bypass supervisors who may be viewed as wrongdoers and to whom they may report if they believe wrongdoing is being committed by high-ranking company representatives.

[1] Haynes v. Formac Stables, Inc., 2015 WL 1408917 (Tenn. Mar. 27, 2015).

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

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