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Ear_surgery_on_a_patient-400x268A surgeon who sued a hospital after the hospital revoked the doctor’s surgical privileges when the surgeon turned 70 never got the chance to prove the existence of age-based discrimination. Whether or not the hospital made its decision based upon age, the surgeon could not succeed on his Age Discrimination in Employment Act claim. The trial court and the 11th Circuit Court of Appeals both concluded that the doctor failed to show that the relationship between the hospital and surgeon was one of employer-employee, not employer-independent contractor. Since independent contractors cannot pursue ADEA claims, the doctor’s case failed.

Moshe Ashkenazi was a surgeon who provided on-call services at the South Broward Hospital District. After the hospital revoked his privileges, the doctor sued. The septuagenarian surgeon claimed that the decision to revoke his privileges was the result of age discrimination. The hospital asked for summary judgment in the case. Ashkenazi, it argued, could not mount a successful age discrimination case because he was an independent contractor, not an employee of the hospital. The trial court agreed and ruled for the hospital.

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USMC-1In a noteworthy decision from this past June, the 11th Circuit Court of Appeals overturned a judgment in favor of an employer in an employee’s Family and Medical Leave Act lawsuit. The appeals court decision clarified that, when it came to establishing whether or not the employee had a serious medical condition as required by the law, all of the evidence should be considered, regardless of when the employee provided that information to the employer. The fact that the employer had already terminated the employee when she handed over certain doctors’ forms was irrelevant to deciding whether those forms proved the employee had the required serious medical condition entitling her to FMLA leave.

The employee in the case, Regina White, worked for Beltram Edge Tool Supply, Inc., a food industry service provider. In 2010, White hurt her knee, but the injury was not so serious that she could not continue working. Near the end of the year, White’s health caused her to begin missing work, but that absence was unrelated to her knee injury. During that five-week absence, she reinjured her knee.

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open-bible-1Most employers and employees are aware that churches may legally make certain hiring and firing decisions that would otherwise be impermissible if the employer were not a religious institution. But what about religion-related employers that are not churches or church-based entities? In a very noteworthy case for Tennessee employers and employees, the Sixth Circuit Court of Appeals ruled that an entity dedicated to collegiate campus ministry could terminate a “spiritual director” for failing to repair her failing marriage.

The case arose after InterVarsity Christian Fellowship terminated Alyce Conlon in 2011. Conlon had worked as a spiritual director for the evangelical entity since 2004, but in 2011, she confided in her supervisors that she and her husband were contemplating divorcing. The fellowship put her on leave for the purpose of working to salvage her marriage. By December, with the employee’s marriage still on the rocks, InterVarsity terminated Conlon. Conlon’s husband filed for divorce a month later.

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Nursing_home_corridorA nursing home employee, who was pursuing her employer for multiple forms of discrimination and retaliation, lost in her effort to revive her disability discrimination claim on appeal. The 11th Circuit Court of Appeals concluded that an employer’s mere knowledge that an employee had visited a doctor and that the doctor had advised the patient she could not return to work “until further notice” was not enough to prove that the employer knew the employee had a disability.

The employee, Portia Surtain, worked at Hamlin Place of Boynton Beach, a nursing home in South Florida. During her employment, Surtain submitted a request for medical leave. The employer, aware that Surtain had visited a doctor for “unknown health reasons” and that the doctor had advised her to stay away from work until further notice, terminated the employee.

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Remona-AlyIn an important ruling on what federal law requires of employers when it comes to accommodation of religious practice, the US Supreme Court ruled that a retail clothing store impermissibly discriminated against a Muslim teen when it decided that her hijab violated its company dress code and refused to hire her. The ruling makes clear that employers cannot violate the law even if employees do not explicitly ask for accommodations of their religious practice and even if the employer does not know (but merely suspects) that an employee will need an accommodation, as long as that religion-based accommodation was a motive in the employer’s action.

Samantha Elauf, when she was 17, did what many teens do. She went to a local shopping mall and applied for a sales job. In Elauf’s case, her targeted employer was an Abercrombie Kids store in Tulsa, Oklahoma. At her employment interview, the teen wore a black head scarf. She did not state why she wore the piece, and the employer did not ask.

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auto shopA recent ruling regarding an auto shop employee’s unpaid overtime claim creates an outcome that is potentially beneficial to Tennessee employees but worrisome to Tennessee employers. The 6th Circuit Court of Appeals concluded that an employee’s uncorroborated testimony, even in the absence of any additional supporting evidence, may be enough to create a dispute of fact and defeat an employer’s attempt to end the case via summary judgment.

The dispute centered around the hours worked by Jeffrey Moran, an employee at Auto Pro auto repair shop in Warren, Mich. According to the employee, he agreed to work during all of the shop’s operating hours, which spanned six days and 58 hours. In exchange, the employer agreed to pay Moran $300 per week plus “bonus-type profit sharing.”

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classroomThe 11th Circuit Court of Appeals in Atlanta issued a ruling that will likely make it easier for Georgia public school employees to pursue lawsuits against their employers for violations of federal employment laws like the Family and Medical Leave Act. The ruling concluded that public school districts are not “arms of the state” government, which means that they are not immune from federal employment actions, such as the FMLA case launched by a Georgia high school teacher who was terminated for her use of FMLA leave to deal with the effects of her sickle cell anemia.

The case involved the termination of Zaneta Lightfoot from her job with the Henry County School District south of Atlanta. Lightfoot began as an English and drama teacher, and cheerleading coach, at Woodland High School in 2007. The teacher had sickle cell anemia, which caused her to experience bouts of extreme pain and weakness. Lightfoot asked for and received permission to take intermittent periods off from work under FMLA when her condition made working untenable during the 2010-11 school year.

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cheek swabAtlas Logistics Group Retail Services (Atlanta), LLC had a relatively serious business problem stemming from what it believed was employee misconduct. The employer also had what it thought was a viable solution. It just needed DNA samples from some of its employees to identify the misbehaving worker. Unfortunately for Atlas, its plan had one major flaw:  it was against federal law. As of June 22, that flaw cost the employer $2.25 million in damages awarded to two employees for the employer’s violation of the Genetic Information Nondiscrimination Act.

The problem began when Atlas discovered several piles of human feces in one of its warehouses. While disturbing to any employer, the issue was especially problematic for Atlas as a company that warehouses food products sold to grocery stores. Atlas collected DNA cheek swabs from employees Jack Lowe and Dennis Reynolds. A lab compared the DNA of the men to DNA from the feces and found no matches.

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Security guards required by their employer to monitor the radio during their meal breaks were not entitled to pay for those breaks, as monitoring the radio and responding to possible emergencies did not transform the break into compensable time.

The case was decided by the U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction for cases in states from Michigan to Tennessee. The plaintiffs were security guards at a casino in Detroit. Their employer granted them meal breaks in accordance with the Fair Labor Standards Act (FLSA) but with some restrictions. Namely, they were required to monitor the radio, and in case of an emergency, they would have had to respond. They were also required to stay on the premises during these breaks, but they were allowed to sit down, watch television, use the internet, and engage in generally any task they wished.

Under the FLSA, employers are required to pay nonexempt employees an overtime wage of 1.5 times their normal wage for every hour in excess of 40 the employee works in a seven-day work week. The question before the Sixth Circuit in this case was whether the duty to monitor the radio, although labeled as a meal break, constituted work. If the time was counted as work, the plaintiffs would have worked about 41.25 hours per week and would have been owed overtime.

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A new rule issued by the Department of Labor (DOL) amends the Family Medical Leave Act’s (FMLA) definition of “spouse” to include same-sex couples married in states where same-sex marriage is legally recognized.

Under the new rule, codified at 29 C.F.R. § 825.102 and 825.122(b), two people are married for purposes of the FMLA if the jurisdiction in which they were married recognizes them as legally married. The old rule looked to the place of the couple’s residence, which meant that same-sex couples who resided in Georgia and Tennessee were not currently eligible for FMLA leave, even if they were married in one of the growing number of states that has legalized same-sex marriage.

The new rule also contemplates couples married outside the United States. A same-sex marriage or same-sex, common-law marriage originating in another country will be recognized under the FMLA so long as the couple could have been married or common-law married in at least one U.S. state.

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