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stack of dollarsEmployers may sometimes be faced with the need to get creative when their preferred methods for compensating workers don’t necessarily mesh neatly with statutory requirements. For example, balancing an interest in compensating sales workers solely on commission may sometimes present challenges when it comes to remaining compliant with the Fair Labor Standards Act and minimum wage requirements. A case recently decided by the Sixth Circuit Court of Appeals is very informative for Tennessee employers and employees in clarifying which policies will, and which won’t, trigger a FLSA violation problem. If you have questions about this area of the law, our Tennessee FLSA lawyers are ready to advise you.

The case involved a major national chain of appliance and electronics stores. The employer had a policy that said that its retail and sales employees received compensation solely on commissions they earned. Of course, that policy didn’t absolve the employer from paying those workers in accordance with minimum wage law. Therefore, the employer crafted a plan for satisfying the minimum wage requirement:  each sales employee, regardless of commissions earned, got a minimum of $290 per week. If that worker’s commissions for that week were less than $290, the employee received what was called a “draw” and worked on somewhat like what many people might see as an advance. The draw made up the difference between the worker’s commission and $290, but, as soon as the worker had a week in which he earned more than $290, the amount of the draw was deducted from that future week’s pay.

In other words, as an example, if John Doe earned $150 in commission in the first week of September, he received a paycheck for $290, representing $150 plus a $140 draw. If John then earned $500 in the second week of September, his paycheck was $360, representing the $500 minus the $140 draw he got the week before.

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gavelWhile the most common version of workplace sexual harassment that most people visualize may be a male harassing a subordinate female, that is not the only form of sexual harassment that Title VII recognizes as actionable. Sexual harassment can be male-on-female, female-on-male, or same-sex. Additionally, the employees’ sexual orientation is not necessarily the key issue, either. In other words, a male can sexually harass another male worker, even if one or both men are heterosexual. All that the law requires in this regard is that the harassment is “based on sex.” An experienced Tennessee sexual harassment attorney can help you determine how to present your case.

One recent example of male-on-male harassment was the case of David, a shift manager at a steel plant. John was a process coordinator at the plant. John had trained David and assigned David’s duties, but both technically reported to Mark, the area manager. David started having problems shortly after he and John began working together. John allegedly asked about David’s sex life, grabbed David’s posterior and commented on its firmness, and also grabbed his genitals at least twice.

After the genital-grabbing incident, David complained to human resources. They offered him a transfer to a different area of the plant, which he accepted. They also demoted John and forced him to take a leadership class. The harassment stopped at that point. Nevertheless, a few months later, David resigned his position.

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firedFor employers, complicated issues can arise from deciding to terminate an employee who is out on leave. Depending on the circumstances, executing this termination may leave the employer open to a Family and Medical Leave Act lawsuit. In the case of one city worker in Michigan, the employer went ahead with firing the employer while she was out on leave due to surgery, but the employee’s FMLA lawsuit still fell short. The Sixth Circuit Court of Appeals’ ruling, which covers Tennessee as well as Michigan, makes it clear that an FMLA plaintiff must not only connect the termination and the FMLA leave in terms of timing but also provide a clear causation linkage. Whether you are in the role of employer or employee, these types of circumstances are clear examples of the need to retain skilled Tennessee FMLA counsel to ensure that your interests are protected.

In the case originating in Michigan, Margaret was a city manager for a local government. She had to undergo surgery and took an absence to deal with her medical needs. While she was out, the city council voted to terminate the woman’s employment, allegedly for causing political strife in the community.

The fired manager sued, alleging that the termination was a violation of the FMLA. The courts, however, ruled in favor of the employer, with the trial court granting summary judgment and the Sixth Circuit upholding that outcome.

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telecommutingAs an employer, sometimes a key to defending successfully against a disability discrimination claim is having thorough proof that you engaged a disabled employee clearly and consistently throughout the entire process regarding accommodations as well as essential job functions. Experienced Georgia disability discrimination attorneys can help you determine what your rights and obligations are. In a recent case of a city worker in Florida, the employer won because the employee sought an accommodation allowing telecommuting, and the employer was able to establish that regular, full-time, and in-office work attendance was an essential function of the employee’s job.

The case involved a woman named Janet who worked as a purchasing agent for the City of Tallahassee. That job entailed interacting with outside vendors, some of whom would show up unannounced. Her job also included selecting and training vendors, which took place in the employer’s office site.

Three years into her employment, Janet’s doctors diagnosed her with fibromyalgia. Janet sought, and the city granted, numerous steps to accommodate her condition. She received a special parking space, along with an exemption from certain aspects of the employer’s dress code. Furthermore, the city allowed Janet to work a special schedule, which meant working four nine-hour days and one four-hour day.

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AR15The boundary lines separating what is not actionable versus what is impermissible employment discrimination have continued to shift and evolve. Regarding a strongly pro-employee ruling a California court entered in 2016 interpreting that state’s employment discrimination statute, one author wrote that the new opinion was a warning to employers:  don’t be a jerk. (The author used a word similar to jerk, but a little stronger.) In Tennessee, however, it is important to understand that the law is different here, and the mere fact, by itself, that a supervisory employee acts like a jerk or a bully or is generally extremely difficult may not necessarily be a winning case for the supervisor’s subordinate employee. An experienced Tennessee hostile work environment lawyer can help you, whether you’re an employer or employee, analyze your case and plot a smart path for you in these and other potential hostile work environment situations.

A recent decision handed down by the Sixth Circuit Court of Appeals highlights how this type of scenario can play out. The case centered on the conduct of a county prosecutor in rural southern Ohio. The prosecutor, allegedly motivated by a seminar he attended, decided he needed to take action to improve the level of professionalism within his office. Some of the measures he took were ones many workplaces utilize, such as the establishment of a dress code and the usage of a time-clock.

Other alleged behaviors and decisions were more…unique. Allegedly, the prosecutor entered a work area and loudly popped a large piece of bubble-wrap with the specific intention of startling and frightening the female employees. There was also the day the prosecutor allegedly appeared in the doorway of an office area holding an AR-15 rifle and called out, “Don’t worry. I’m not that mad.”

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mother and babyIn an important new ruling on the issue of discrimination against breastfeeding employees, the 11th Circuit Court of Appeals upheld a jury’s decision that a police department’s refusal to provide a breastfeeding officer with a satisfactory ballistic vest amounted to a violation of the Pregnancy Discrimination Act, and in the process, it upheld a $161,000 damages award for the employee. Discrimination against breastfeeding employees is an emerging and evolving area of the law, and, if you think you have an issue related to breastfeeding discrimination, you should promptly reach out to a knowledgeable Georgia pregnancy discrimination lawyer.

The plaintiff in the case, Stephanie, was a patrol officer who eventually rose to the position of police investigator. Early in 2012, while working within her department’s narcotics task force, she became pregnant. From August to November 2012, she took 12 weeks of FMLA leave at around the time of her baby’s birth.

Eight days after returning to work, the city reassigned her from narcotics to the patrol division. The city alleged that the change was a result of Stephanie’s failure to communicate with confidential informants; Stephanie asserted that it was a result of her new supervisor’s bias against her due to her use of FMLA leave.

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buffet restaurantThe Fair Labor Standards Act provides protections for workers when it comes to minimum wage as well as overtime. The FLSA’s protections are wide-reaching and contain few exceptions. Nevertheless, a church attempted to evade the law by having its buffet restaurant staffed mostly by unpaid “volunteers.” The U.S. Department of Labor sued the church and obtained $388,000 in back-owed wages for the workers, reported. The victory for the Labor Department demonstrates that, even if you worked for a religious employer, and even if you perhaps “thought” you were a volunteer, you may still be entitled to wages. An experienced Tennessee wage-and-hour attorney can help you decide if you have a case.

In this litigation, the business was a restaurant run by a church. The restaurant was staffed by two groups of workers; one group was a collection of employees who received an hourly wage. The other was a group of “volunteers” who weren’t paid. Generally, the volunteers did the same work as the employees did. A majority of the workers staffing the buffet restaurant were volunteers, whom the church’s minister recruited to work in the unpaid positions.

Eventually, the Department of Labor took action against the restaurant on behalf of the unpaid workers. The FLSA’s minimum wage and overtime rules apply to a broad range of businesses and are generally difficult to escape. For example, even if a business classifies a worker as a “volunteer,” and even if that worker considers him-/herself to be a volunteer, that still doesn’t allow the business to avoid compliance with federal minimum wage and overtime rules. This is equally true if the business is a secular one or is something run by a religious organization.

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judge's gavelA potentially significant case that began here in Georgia is working its way through the federal court system. The case involved an employee who was fired after she twice experienced certain pre-menopause menstruation-related incidents while at work. A ruling from the 11th Circuit Court of Appeals could clarify whether these types of discrimination cases require proof that the employer treated the plaintiff less favorably than other employees outside that gender group who had generally analogous health issues, or whether proof of an employer’s adverse action against an employee for an issue related to her menstruation necessarily amounts to direct discrimination based on sex. If you find yourself in a similar situation, an experienced Georgia sex discrimination attorney can help you assess your rights under the anti-discrimination laws.

The plaintiff in the case, Alicia, was a 911 dispatcher working for an institute that helped people with disabilities. Eventually, after several years on the job, the dispatcher faced a problem that most women will encounter:  menopause was closing in. For this dispatcher, her pre-menopausal condition meant that her cyclical menstrual flows became irregular and unpredictable, in terms of both timing and volume.

The dispatcher notified her employer and kept feminine hygiene products with her while at work, but infrequent major surprises still happened. The first time, in August 2015, she leaked through her clothes and onto an office chair. The employer imposed discipline against her and also issued an ominous warning:  another occurrence would result in termination. The dispatcher allegedly redoubled her efforts to prevent problems, but, eight months later, she had another accident, which soiled an area of office carpeting. The dispatcher cleaned the carpet herself, but the employer carried through on its previous warning and fired her.

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Sexual HarassmentPublicly available employment law court rulings can often be very helpful, both to employers and to employees. Unfortunately, many court case decisions are instructive in a “what not to do” sense, for one side or the other. Working with experienced Tennessee employment law attorneys is one way to make sure you don’t fall into the “what not to do” traps that often ensnare real-life litigants. In a recent Tennessee sexual harassment case, it was the employee’s evidence related to the employer’s allegedly woefully inadequate response to sexual harassment that allowed her to take her case to trial.

Tracy was a nurse at a major food company’s facility in suburban Nashville. At first, shortly after Tracy began working at the plant, a co-worker began bringing her candy every week. After a few months, things escalated. The co-worker started asking the nurse to dinner and making kissing noises whenever he entered the nurse’s work area. The nurse asked the co-worker to stop his behavior, but he did not stop.

The nurse reported the conduct to her direct supervisor at least weekly. The supervisor told the nurse that the man was “harmless” and advised her not to report the co-worker to Human Resources. By April 2014, things had worsened to the point that the nurse, on one occasion, had to lock herself in her office after the man had shown up, asked her if she was alone, grabbed her hand, and refused to let go. The nurse again reported the conduct. The supervisor again recommended not involving Human Resources.

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gas signA recent unpaid overtime case originating in Tennessee placed into conflict two competing legal concepts:  an employee’s right to pursue collective action litigation under the Fair Labor Standards Act and an employer’s right to obtain employees’ waiver of their right to sue under the terms of contractual arbitration agreements. This case highlights some of the complexities that can arise in FLSA cases and the importance of retaining skilled Tennessee employment counsel, who can help guide you through the sometimes complicated process of navigating the procedural pathways required in taking on your case.

The lead plaintiff in this collective action case was a woman named Arvion. Arvion worked for two years as an hourly employee for a national chain of truck stops. Arvion’s case, like many unpaid overtime actions, involved allegations that the employer altered her time sheets to reduce the number of reported hours she had worked in a week, thereby dodging its obligation to pay her overtime. Furthermore, she alleged that the employer rolled back the number of reported hours of its hourly employees (in order to avoid paying overtime) as a matter of policy at locations across the country.

FLSA collective actions operate somewhat similarly to class actions. A lead plaintiff brings the case, identifies a group of employees who were harmed, and then contacts all of the members of that group to give them the opportunity to “opt in” to the collective action. (FLSA collective actions differ from class actions in that, unlike class actions in which class members must proactively opt out of the class action case, members of the group of similarly situated employees must proactively opt in to a collective action.)