Tennessee Injury Lawyer Blog

The Higgins firm represents people in Tennessee who have been discriminated against by their employers for protected reasons. Recently, we are seeing many more age discrimination claims. The Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. (ADEA) was enacted to protect people from being discriminated against in the workplace solely based upon their age. The law protects against the discrimination of people over 40 years of age and broadly prohibits discriminating in hiring, retaining, paying and providing benefit programs. However, the law is not a complete ban on discrimination of all sorts and there are several clearly defined exceptions to the law. In other words, there are scenarios where it is permissible to discriminate based upon age; however, the employer must be able to show that the employment falls into one of the following specific exceptions:

1. When age is a bona fide requirement of the position. If it is a reasonable requirement that the employee be of a certain age, like a model for teen clothing, the employer has the discretion to use a young person in that position and can logically discriminate against older workers.
2. When there are reasonable requirements other than age alone. When the nature of the work is physically very demanding, the ADEA does not apply. In other words, the law will not require you to consider employees that cannot do the job.
3. State and local governments are allowed to enforce mandatory retirement ages for policemen and firefighters.
4. Seniority based retirement funds, pension plans or insurance benefits are allowed under the ADEA. The effect of these plans may be to treat some individuals differently than other same-aged employees because the individuals have worked for the company longer.
5. Generally high policy-making positions and executives can be held to a retirement age if they have worked in the same position for over two years and have a compensation plan in place that will pay them over $44,000.00 at retirement.
6. Highly skilled positions that require a significant apprenticeship program are generally exempt from the law. The law will not require a company to hire a person over forty and invest a substantial period of time in training the employee to do a job only to realize a short period of employment after that type of investment on the company’s part.

While these exceptions have been carved out to make the law fair, there are many employers who are unwilling to follow the guidelines set out by the ADEA. Age discrimination is a significant problem because it hurts people who already have a difficult transition period into new employment. At the Higgins firm, we take seriously the charges of age discrimination and represent individuals who have been discriminated against. The ADEA is a federal law and most States, including Tennessee, have corresponding laws that apply to help protect against age discrimination.

Pzifer’s off-label marketing of their anti-inflammatory drug Bextra will cost the pharmaceutical company a record-breaking $2.3 billion, $102 million of which will be split by five qui tam relators (whistleblowers). This most recent whistleblower lawsuit is the fourth illegal marketing lawsuit Pzifer’s settled since 2002. Of the $2.3B, $1B is in civil penalties with the remaining $1.195B as the largest criminal fine in U.S. history. This settlement is part of a four-year federal investigation into the business practices of the world’s largest pharmaceutical company.

At issue, this and previous lawsuits against the drug company allege marketing Bextra for “off-label,” or non FDA-approved, uses. In 1991, Bextra received FDA approval as a treatment for arthritis and menstrual cramps. In April 2005, Bextra was recalled after FDA officials received mounting evidence that the painkiller increased risks of heart attack, stroke, pulmonary embolism, and Stevens-Johnson Syndrome, a serious and sometimes fatal skin reaction.

During these nearly 14 years of distribution, Pfizer allegedly marketed the drug to doctors as a treatment for acute pain, a treatment the FDA never approved and one which required large doses of Bextra, an increase that would accordingly raise the health risks posed by Bextra. While it is not illegal for doctors to treat patients with drugs as they see fit, it is illegal for drug companies to market off-label uses.

Part of this illegal marketing included, according to the whistleblower lawsuit, kickbacks, perks, and incentives.

In addition to the fine, Pfizer must pledge to improve its corporate behavior, including marketing practices, as part of the settlement. This is the third such pledge Pfizer has made since 1999, signing such agreements in 2002 for Lipitor and in 2004 for Neurontin. The government has also accused Pfizer of illegally marketing the antipsychotic Geodon.

Because one of the parties defrauded by Bextra’s off-label marketing was the federal government, whistleblowers were eligible to take qui tam action and receive a portion of the funds from the government lawsuit. Qui tam lawsuits require a special knowledge of False Claims laws and should be pursued through an experienced whistleblower attorney, such as my colleagues at Higgins Firm.

For more information on qui tam lawsuits, explore my TN law firm’s employment law pages on False Claims Whistleblower / Qui Tam lawsuits.

Over a dozen East Coast Hooters Girls have filed a wage and hour lawsuit suing their employer for violating minimum wage laws.

The recognizable orange running shorts and tank top uniforms are part of a wage and hour lawsuit filed by 13 Hooters waitresses (“Hooters Girls,” per company literature). At the heart of these waitresses’ lawsuit against the Atlanta, GA.-based parent corporation are violations of tipping law, specifically the garnishing of tips to pay for the company’s exclusively sold and required attire. Additionally, the wage and hour lawsuit alleges tip pooling violations and unpaid overtime.

The key concept behind most Tennessee and national tipped employee wage and hour lawsuits is whether the tipped employee earned, at minimum, the required minimum wage. Because waitresses and other tipped employees are paid less out-of-pocket by their employer (still $2.15 hourly despite this year's minimum wage rise to $7.25) and because tips are paid in readily transferred cash, there are ample opportunities for abuses.

Your Tennessee employer must ensure that you take home an hourly minimum wage after tips. If there are deductions, such as uniform expenses or tip pooling, your TN employer must ensure that your take-home pay meets the federal requirement of $7.25. As defined by Fair Labor Standards Act (FLSA) and the U.S. Department of Labor:

[I]f the wearing of a uniform is required…, the cost and maintenance of the uniform is considered to be a business expense of the employer. If the employer requires the employee to bear the cost, it may not reduce the employee's wage below the minimum wage of $7.25 per hour effective July 24, 2009.

(For more information, see Department of Labor’s Quick Fact Sheet on minimum wage and uniforms (PDF).)

Waitresses at Hooters, according to the lawsuit filed last month, were required to purchase their full attire from the company, including shirts, shorts, aprons, socks, shoes, pins, and $4 pairs of shoddy nylons that frequently had to be replaced. Also illegally deducted from the waitress’s checks were the prices of customer walk-outs, according to the lawsuit.

The wage and hour lawsuit also alleges that these waitresses were not paid for overtime hours worked to open and close the restaurants or for training and meeting hours. Additional allegations of illegal tip pooling practices, specifically, of requiring the tipped waitresses to share tips with untipped employees, are also made by the lawsuit.

This is the second wage and hour lawsuit this year brought against Hooters by waitresses for underpayment and FLSA violations.

A statement issued by Hooters spokesman Michael McNeil said the company is investigating these most recent wage abuse allegations and that Hooters is confident the company will be vindicated.

If your Tennessee employer may have paid you less than minimum wage by docking your pay or you believe you may have tips unlawfully taken from you through tip pooling or other means, I encourage you to complete our online TN wage lawsuit inquiry form or to call our Nashville, TN employment law offices directly at 615-353-0930. Our minimum wage attorneys are familiar with the intricacies of Tennessee employment law.

Tip pooling is the cause of a wage lawsuit between Wynn Las Vegas and its dealers. Disputed is the casino’s policy of sharing dealers tips with their floor supervisors, a pay practice instituted in 2006.

According to dealers, the payouts from the tip pool were a way for the casino to pay managers more without having to pay them out-of-pocket, a less-common violation of federal tip pooling law but nevertheless an illegal pay practice if true.

About 600 dealers have been affected by the tip pooling practice since it went into place. Real wages for dealers, according to one dealer interviewed, has dropped an estimated 25 percent.

Previous to 2006, tip pooling was in place and followed industry practice of redistributing dealers’ tips among dealers only.

Testimony was presented this month to Nevada’s labor commissioner where the casino's dealers have taken their case, asking that this tip pooling payout policy be ruled illegal and that $35 million in back pay and penalties be awarded to the nearly 500 dealers affected. The first formal complaints and wage claims go back to 2006 when the tip-pooling policy was implemented.

Labor laws governing tip pooling are pretty clear on at least one point: participants in a tip pool must be regularly tipped employees, and employment law expressly forbids managers from taking any tip pool.

Regardless of the labor commissioner's decision, this tip pooling lawsuit is expected to go to the state supreme court and its outcome affect all Nevada tip earners. The court's decision could mean restitution for tip pool abuses if the tipped employees win the lawsuit. Or, it could mean Nevada employees who depend on tips for their subsistence--busboys, waiters and waitresses, bartenders, etc.--may be subject to management's taking their tips and paying whomever they feel like with these tip moneys.

If you believe you may have tips unlawfully taken from you by your employer through tip pooling or by other means, I encourage you to complete our online TN wage lawsuit inquiry form or to call our Nashville, TN employment law offices directly at 615-353-0930.

Or, to borrow the Equal Employment Opportunity Commission (EEOC)’s less modest description from the title of its press release:
RAMPANT SEX HARASSMENT COSTS LOWE’S $1.7 MILLION IN SETTLEMENT OF EEOC LAWSUIT

Lowe’s, the nation’s second-largest home improvement retailer, has agreed to pay $1.72 million in settlement to three Washington State employees in a sexual harassment lawsuit filed by the EEOC. Lowe's Home Improvement Warehouse Inc. must, per the court's consent decree, revise store policies on discrimination, harassment, and retaliation to affect all employees at the company's stores in Washington and Oregon and report regularly to the EEOC.

According to the EEOC sexual harassment lawsuit, Lowe's store managers since 2005 actively engaged in and encouraged sexual harassment of male and female employees and then retaliated against these victims when they made objected to this unlawful, and undignified, treatment.

More specifically, one female employee was sexually assaulted in her manager’s office after having been repeatedly propositioned in innuendos. Two heterosexual male employees, like the sexually assaulted female also in their 20s, were repeatedly called gay and subjected to graphic sexual references by department heads. When these two coworkers sought the help of the store manager, he told the two they shouldn’t spend so much time together. The EEOC’s sexual harassment lawsuit asserted that Lowe’s failed to take prompt or even remedial action to stop the sexual harassment, an assertion that had Lowe's seek the counsel of four separate law firms in an attempt to disprove.

As a result of over six months of daily harassment and hostile work environments, two of the three employees were terminated. The third, one of the two straight males, resigned. This loss of employment and the sexually hostile work environment were the reasons for the EEOC discrimination lawsuit under Title VII of the Civil Rights Act.

Continue reading "Lowe’s Sexual Harassment Lawsuit Settles for $1.72 Million" »

The City of Franklin, Tennessee has settled a wrongful termination lawsuit filed against it by Joe Williams, a former City Solid Waste Director, according to an article in the Tennessean. The settlement amount included a payment of $2,000,000.00 and a formal apology to Mr. Williams from the Mayor of Franklin. Due to the City's open meeting rules, the terms of the settlement became public record when set for approval by the city aldermen.

The crux of the lawsuit involved the alleged downloading of pornography on City computers under the control of Mr. Williams. According to facts developed during the lawsuit, it was clear that any pornographic images were the result of spam e-mail. According to the plaintiff, this would have been readily apparent had the City bothered to do a rudimentary check of the computer system and the images in question. However, the City jumped right to action, publicized the allegations and promptly fired Mr. Williams after a brief, eight minute hearing. Once the source of the images was discovered and it was shown that the City did not perform their due diligence in determining an appropriate plan of action to deal with the allegations, the settlement was not far behind.

The lawsuit mixes a couple of different areas of law and potential actions. First, Tennessee is a right to work State. That means generally you can be fired for any reason or no reason at all, as long as you are not fired for an inappropriate reason, such as religious beliefs, race, gender, national origin or age. Secondly, the lawsuit touched upon workplace harassment and hostile environments. Hostile environments are not limited to physically threatening environments; they also include workplaces that are hostile because they promote a culture of sexual harassment or religious, cultural or racial bias. Thirdly, and likely more directly, the lawsuit also included libel and slander issues arising from the publicity involved in "exposing" the plaintiff's alleged accessing of pornographic images. Since the actual allegations were unfounded and proven so after a very simple check of the computer system, the disgrace of portraying the plaintiff in this bad light and the effects that had on his relationship with family and friends played heavily in the settlement.

The attorneys at the Higgins Firm represent individuals who have been the victim of workplace discrimination or harassment. If you feel you have been the victim of sexual, racial, age or religious harassment, contact our law office for a free consultation.

Tennessee wage workers’ received what will likely be their final minimum wage increase for a while when the federal minimum wage (including tipped employees') increased last month to $7.25. Tennessee, having no minimum wage statutes of its own, followed this last of three annual minimum wage increases begun in 2006.

Unfortunately, if history be any indicator, tipped Tennessee employees, such as wait staff and other hospitality workers receiving $30 or more a month in tips, may not see the benefit of this increase, and may end up taking home less than the minimum wage of even three years ago, due to a practice known as tip pooling.

Tip pooling is not in-itself an illegal practice. Though the federal Fair Labor Standards Act (FLSA) states that a tip is the exclusive property of the employee receiving the gratuity, judges have decided, through a series of convoluted court decisions, that tip pooling (requiring tipped employees to pool a portion of their tips together to pay other employees) is legal--as a general practice. What gets many Tennessee service industry proprietors in trouble is when tip pools are used to pay-off underpaid un-tipped employees at the tipped employee’s expense.

If you earn $2.13 as a tipped employee in Tennessee, it is your employer’s duty to make up the difference and ensure that your take-home after tips is at least minimum wage of $7.25 per hour. If your employer has dipped into the tip pool to pay themselves or make gifts to managers or if your Tennessee employer has required you to pay out more than 15% of your tips (especially if your take home becomes lower than TN minimum wage), you may be able to recover to unpaid wages going back three years and have court and attorney costs covered through a wage pooling lawsuits.

To pursue underpaid or unpaid wages from overtime, withheld tips, or other illegal pay practices, contact the Nashville, TN wage and hour attorneys of Higgins Firm. We have to the experience to settle fast and fair Tennessee wage cases throughout the state.

Federal minimum wage (and Tennessee minimum wage) rose today from $7.25 from $6.55 an hour. This affects 30 states, including Tennessee, who either have minimum wage below the federal rate or, like Tennessee, have no minimum wage provisions of their own.

Congress during the Bush Administration set a three-stage, annual minimum wage increase in 2006. In 2007, the federal (and Tennessee) minimum wage rose to $5.85 an hour (from $5.15) and then to $6.55 in 2008. Today’s minimum wage of $7.25 is the final of the stage of the minimum wage increases. Despite these increases, minimum wage remains only 85 percent of what it was in the late 1960s when adjusted for inflation. And despite these increases and over forty hours worked, many Tennesseans are not being paid the overtime they’ve earned. (Read previous blogs on Tennessee overtime lawsuits

Today’s minimum wage increase affects an estimated 4.5 million wage workers and is predicted to reduce the savings rate and stimulate consumer spending to the tune of $5.5 billion annually. A household with a 40-hour minimum wage earner will increase its monthly income by about $120. Today’s minimum wage increase in Tennessee and across the U.S. was met with resistance by the National Small Business Association.

This $.70 increase applies only to non-exempt employees. The $7.25 minimum wage increase will not apply to Tennessee food servers and other tipped employees, who will remain at $2.13 an hour after the proposed increase to $3.28 an hour failed due to the efforts of Tennessee Reps. Campfield, Kelsey and Bell earlier this year.

Tennessee employers are required to update their federal minimum wage and hour notice postings. These minimum wage postings must be placarded in a conspicuous place to notify Tennessee employees about the FLSA minimum wage and overtime rules.

As more Tennessee businesses attempt to cut costs during this recession, I expect my employment law division of my Nashville, TN legal offices will experience a deluge of calls from Tennessee wage earners who have discovered that they have not been paid fairly, whether by time-shaving of their hours or false categorization. Check out our TN Employment law pages for more information on Tennessee employment law or contact my law offices by filling out our TN wage and hour complaint form.

Over the past few months, our Nashville law office has had an large increase in wage and hour cases throughout Tennessee. I do not know if it is a product of the current economy or people are just tired of being mistreated. Regardless, it is unfortunate but it is often the case the Tennessee employers try to increase their profit by cheating Tennesseans out of their wages.

One common scheme we are seeing recently are having people clock out of work while they are still required to be on the premises. Often the company will have the worker clock out and come to a mandatory office meeting. Although this may only be a few dollars for the individual employee it adds up to a significant amount of money that the employer is taking from their workers.

We are also seeing significant number of misclassification cases. Put simply, the TN employer gives a regular employee a supervisor or manager title so they do not have to pay overtime. The problem arises when the employee has no manager duties.

For instance, in one recent case our Nashville law office pursued almost every employee at a fast food restaurant was called an "assistant manager" and paid a salary. The employees worked in excess of 40 hours a week but received no overtime because of these bogus titles. Fortunately, our employment lawyers were able to recover a significant amount of lost wages for these workers. Some of the workers had been losing their overtime for several years of unpaid overtime, so the lost pay they recovered was significant.

If you have an overtime pay or other employment law question, please feel free to contact our Tennessee workplace law office.

In a follow-up to a Tennessee Law Blog’s wage and hour reporting last July (Unpaid Wages and Unrecorded Hours Subject of Local Nashville, TN Car Wash Lawsuit), I and my fellow TN employment attorneys at the Higgins Firm are glad to announce a $130,000 settlement between Shur-Brite Hi-Speed Car Wash and 120 of its current and former Tennessee wage employees.

Shur-Brite, which has operated in Tennessee for three decades, recently got into trouble with federal law on their wage and hour practices. Allegations included various violations of workplace law, but the main abuse was time card violations. Workers were forced to clock out when they were not actively working. As Tennessee Law Blog previously reported:

... the wage and hour lawsuit alleges that Shur-Brite High Speed Car Wash owners knowingly, and illegally, forced employees to clock out when there were no cars to wash... [On] slow days, workers would be forced to clock out as often as ten times during the day. Many workers would be at the car wash site for over 40 hours a week but only get paid for 15 at Tennessee’s minimum wage of $5.85 an hour. Some workers put in twelve-hour days hoping to get paid for eight. Many times it was unclear to workers whether they were on or off the clock ...

If an employer pays a wage, then that wage must apply for the time worked. Work is not simply the active performance of duties, as one California wage and hour lawsuit against Costco is teaching managers who would force workers to clock out before they were free to leave.

If your employer requires that you remain on premises or take a mandatory training, these hours must be recorded and count towards overtime. You have the right to be paid for the time you work, and federal and Tennessee employment law offers means of recovering unpaid wages. National and state employment laws overrule most verbal or written agreements you may have made with your Tennessee employer regarding wages and overtime. In other words, just because you agree to not be paid overtime does not mean that your employer is freed from accurately recording your hours or paying you for overtime.

Unfair wage payments and timecard abuses against employees often occur against those who are the most desperate and needy. This is because these employers feel they can pay unfair wages to employees who are most need a fair wage. Fortunately, a Tennessee lawyer can often keep confidential clients' reports of workplace abuses or bring together multiple workers at a store, factory, or other business in a class action wage and hour lawsuit.

If your Kentucky, Georgia, or Tennessee employer frequently changes your schedule to prevent paying you overtime or does not pay you for time that you are required to be on-site, then you should speak with a Higgins Firm wage and hour attorney about a possible wage and hour lawsuit. Typical settlement and court awards include backpay for unpaid wages, including overtime, liquidated damages, and attorney’s fees. Filing a wage and hour lawsuit with a qualified employment law attorney can help correct many unfair workplace practices and help prevent retaliation.

Costco employees have filed a unpaid wages lawsuit in California stating the company had repeatedly violated the state’s wage and labor law. Costco faces allegations similar to those Tennessee Law Blog reported last year in the nationwide unpaid overtime lawsuits against Wal-Mart stores. Specifically, Costco has allegedly required employees to work off the clock by locking employees in the store after their shifts and not paying them for this time or overtime as required under state employment laws.

Unlike earlier Wal-Mart lawsuits, Costco has apparently claimed that keeping employees after they clocked out was for security reasons. Apparently managers forced employees to remain after their shifts while they performed closing tasks, such as removing valuables from display cases and emptying cash registers. Costco employees were unpaid for this time off-the-clock during which they were not permitted to leave.

Tennessee labor law requires employees be paid for their time, including required training and, in some cases, travel time. If something similar to what California Costco employees faced is happening at your Tennessee place of employment, you may have the opportunity to recover unpaid wages under Tennessee's wage and hour law.

In other employment law news, drugmaker Wyeth faces False Claims Act penalties for overcharging Medicaid for Protonix, a popular stomach acid drug. Two whistleblower lawsuits have been joined by the U.S. Justice Department for recoveries and penalties in the millions of dollars.

From 2000 and 2006, according to court papers, Wyeth offered dramatic discounts (up to a 94% discount) to thousands of hospitals nationwide for its stomach acid drug that weren’t offered to state Medicaid programs. By doing so, the whistleblower lawsuits and federal government claim, Wyeth avoided hundreds of millions of dollars of rebates that would have cut costs to the program for the poor--prescription costs that state and federal taxes had to pay. Simply put, Medicaid programs in Tennessee and throughout the U.S. were forced to pay significantly more for their Wyeth drugs than they should have. These overcharges violate Medicaid programs’ “best price reporting requirements” and can be recovered under False Claims law.

In addition to Tennessee, the other states joining the lawsuit are (alphabetically) California, Delaware, Florida, Illinois, Indiana, Louisiana, Massachusetts, New York, Michigan, Nevada, New Hampshire, Texas, Virginia, and Wisconsin.

In this economy and era of big pharmaceuticals and contractors working with the military and disaster recovery, False Claims law needs greater qui tam awards to protect our federal and Tennessee tax moneys.

For unpaid overtime, whistleblower actions, and other Tennessee workplace legal issues, visit Higgins Firm’s workplace lawyers’ Tennessee Employment Law pages. To speak directly with an employment lawyer about a potential Tennessee workplace lawsuit, contact our Nashville, TN law offices.

Today marks a critical point in the year, a date that should make us as a Tennesseans and as U.S. citizens not simply ashamed but motivated to action. April 28 (known as Equal Pay Day) marks the point into the year a woman would have to work to in order to catch up with her male counterpart's pay in 2008.

Large steps in closing the pay disparity between man and women have been made since the Equal Pay Act of 1963, which made it illegal for employers to pay women less than men for equal work. And Tennessee lawmakers took a strong step forward in 2004 with The Equal Pay Remedies and Enforcement Act that put teeth in Tennessee discrimination law. Then, in January this year, even further progress was made with the The Lilly Ledbetter Fair Pay Act. This law, designed to reduce employers' ability to continue unfair, sex-based discriminatory pay practices, expanded the statute of limitations and closed the legal loophole that allowed employers to continue discriminatory pay practices if previously they haven’t been caught.

Continue reading "Nondiscriminatory Pay – After Ledbetter,
the Next Steps to Stopping Sex-Based Pay Discrimination" »

Our firm has filed several new Tennessee cases over the past few months involving employees who are not being paid overtime. It seems that some employers are cutting corners in these hard economic times. It is too bad that some are doing so illegally and at the workers expense.

In several of these cases the workers have been classified as "managers" or "supervisors". Unfortunately, it is our belief that these workers are not managers and should therefore be receiving 1.5 times what they normally earn for all hours over 40 hours per week.

There are multiple factors to consider when determining if you should be receiving overtime or if you are exempt as a manager. One of the key factors is simply to look at your job duties. Does the worker really "manages" or "supervises" other employees. A supervisor who has no control over co-workers, can't control how they do their work, or who has no decision making authority with regard to how the work is conducted may not be exempt from overtime.

If you just are not sure if you should be receiving overtime I would suggest you contact attorney who has experience with these case. Feel free to contact one of the lawyers at our Tennessee office to have a confidential discussion of your potential claim

Wal-Mart wage employers in South Carolina filing a class action wage and hour lawsuit will find justice for their unpaid wages--justice to the tune of a $49 million settlement.

This latest wage and hour lawsuit settlement, by no means the first for Wal-Mart (check out the $352M wage and hour lawsuit settlement last year), Carter v. Wal-Mart was filed over six years ago and settled on Wednesday. As part of the settlement, Wal-Mart has agreed to ensure compliance with national and state wage and hour laws by maintaining electronic time clocks and posting notices to workers regarding workers’ rights.

Wal-Mart employs over 1.3 million worldwide, the majority of whom are wage earners who qualify for overtime and wage protections.

Wal-Mart’s wage settlements announced at end-of-the-year 2008, which were to resolve 63 of its 73 pending wage and hour lawsuits, is estimated to run $640 million. This week’s class action $49 million settlement in South Carolina was included in this amount.

If you have employee wage and hour issues or questions about employment law in TN, KY, or GA, contact my Nashville, Tennessee employment law office to discuss your options.

I am not sure if it is the economy or just some strange coincidence but it seems my office is fielding more calls than usual with regard to workers not receiving overtime pay. Most people know that they are to receive overtime pay if they exceed 40 hours in a work week. However, we are seeing many employers attempt to cheat their employees out of this pay. There are a few common schemes we see over and over again.

One common example is an employer will give their worker the title of "manager" or "supervisor" They believe since they call the employee a manager they do not have to pay overtime. However, it is not your title that is important but what you actually do at work that is important. Do you actual manage employees; do you hire workers; set their schedule, etc. or do are you like every other worker but for your fancy title? If so, you may be due overtime pay.

Another common practice is to call the employee an "independent contractor" The key factors in determining if you are really an independent contractor in Tennessee is the extent of control. Do you provide your on tools, set your own hours, work for other employers? If not, you may just be a regular employee and entitled to overtime pay.

If you have employee wage and hour question, feel free to contact my office to discuss.

Discriminated workers and workplace discrimination lawyers in Tennessee and across the U.S. received a boost last week when the Lilly Ledbetter Fair Pay Act became law, allowing discriminated employees facing unequal wages to sue for disparate pay. (Read more in last week’s Tennessee Law Blog’s Pay Discrimination Law Passes Senate). But this wasn’t the only big event in Tennessee employment law last week.

On Monday, the U.S. Supreme Court (the same Court that in 2007 found against Ms. Ledbetter and previous lower courts' decisions on the statute of limitations allowed by EEOC inquiries) found unanimously in favor of Nashville, TN-local Vicky Crawford in her sexual harassment retaliation lawsuit.

Crawford, former payroll manager for and 30-year employee of Metro Nashville, sued the school district for harassment she claims was based on her testimony during a sexual harassment investigation. While discrimination law allows retaliation protections to the sexually harassed person who files a discrimination lawsuit, federal workplace law was previous to last week unclear whether it offered retaliation protections to persons not directly sexually harassed, as Crawford’s case. The U.S. District Court in Nashville had previously dismissed the lawsuit as did the 6th Circuit Court of Appeals. (Read the original Tennessee Law Blog story on the Crawford discrimination retaliation lawsuit here)

The High Court’s decision allows Crawford to proceed with her sexual harassment lawsuit against the City of Nashville. According to the Tennessean, Attorney Frank Young, who is representing Metro government in this harassment case, has stated that the Court’s decision “clarified the law" but does not decide Crawford’s case, which will now be heard in federal court in Nashville.

If you have suffered TN workplace sexual harassment or have been fired or your career has suffered from retaliation for your speaking out against sexual discrimination or other discrimination at your workplace and would like a free consultation with a Tennessee workplace attorney, contact the Higgins Firm.

Our lawyers at Higgins Firm's employment law branch specialize in federal employment law, including workplace discrimination and harassment, and state employment law in Georgia, Tennessee, and Kentucky. Contact me, Attorney Jim Higgins, or one of my employment law associates by calling our Nashville law offices at 615-353-0930 or by filling our employment law attorney contact form. No loyal worker should be treated unfairly by another's bigotry or be forced to suffer retaliation for only doing the right thing.

Workplace discrimination lawyers in Tennessee and across the U.S. were expectantly watching coverage or checking our Blackberries for live reports last week as Senate voted 61-36 for the Lilly Ledbetter Fair Pay Act of 2009. This important piece of legislation plugs a two-year hole in workplace pay discrimination law and Tennessee employees' rights put there by a 2007 Supreme Court decision.

Nearly two years ago, workplace discrimination lawyers and their pay-discriminated clients received a blow from the Land’s highest court when the 5-4 ruling in the case Ledbetter v. Goodyear Tire & Rubber Co. set new precedent for the already strict time limits for filing with Equal Employment Opportunity Commission (EEOC). The decision against Ms. Ledbetter--a Goodyear supervisor in Alabama who worked hard and forgave the long-term sexual harassment she encountered until nearing her retirement she learned her male counterparts had been receiving 15-30% more pay than she had over her 19 years of employment--created a 180-day limitation for filing a discrimination lawsuit. This meant that Ledbetter, and other unequal pay discriminated persons like her, cannot take action against an discriminating employer for pay discrimination if they have been discriminated against for longer than six months after the fact--even though they still earning unequal pay and may have no way of knowing what their coworkers make. Most disheartening of all, the Court’s bizarre interpretation of the discrimination law’s six-month limit stripped Ledbetter of the back pay and compensation for mental anguish a lower court had awarded her for her gender-based pay discrimination and harassment.

Last year, working under the six-month limitation the Court had created, the EEOC (U.S. agency charged with ending employment discrimination) still received 24,826 gender-based discrimination complaints. Women in the U.S. still earn 77 cents to the dollar their male counterparts make, and minority women even less. And this is the case even after the passage of the Equal Pay Act sought to balance out the pay disparities between the genders and reduce discrimination 45 years ago.

Interesting, some Senators argued against the Ledbetter Bill (Tennessee’s Lamar Alexander and Bob Corker both voted against it), suggesting that giving employees more time to discover they have been unequally promoted or unequally paid in the past (which usually means they are still receiving unequal paid at present) would increase employment lawsuits and the punitive damages awarded in pay discrimination lawsuits. Like the nursing home lobbyists and Tennessee legislators in last week’s Tennessee Law Blog, instead of forcing companies to clean up their act to avoid lawsuits for their abuses, the lobbyists and corporate lawyers want to keep the problems and do away with lawsuits. Of course, instead of facing lawsuits, employers guilty of discrimination could chose to admit their wrongs and pay backpay to correct their unequal and discriminatory workplace practices on their own. If the Lilly Ledbetter Fair Pay Act of 2009 passes the House, perhaps they will. (UPDATE (1/27/09): House passes Lilly Ledbetter pay equity bill, President to sign.)

If you’ve discovered your Tennessee, Kentucky or Georgia employer has been paying you and other employees unequally based on your gender or race, my fellow Nashville-based workplace attorneys and I would like to offer our services. Give us a call at 1.800.705.2121 or complete our workplace discrimination form. Initial consultations with our employment lawyers are always free of charge.

Wal-Mart, in an exciting follow-up to Tennessee Law Blog’s Wal-Mart wage and hour lawsuit story posted earlier this month, said Tuesday that it will settle its numerous unpaid wage lawsuits in Tennessee and across the nation. These unpaid Wal-Mart wage and hour lawsuits’ damages amount to at least $352 million and are largely the result of Wal-Mart managers forcing Wal-Mart employees to work off-the-clock.

Many of these wage and hour lawsuits filed by thousands of present and former Wal-Mart employees in 42 states have been in court for years. Wage and hour violations include forcing employees to clock out but continue to work, manipulating time cards to reduce overtime pay, and disallowing lunch and other breaks. Payment to each employee could be in the hundreds of dollars with their respective wage and hour attorneys receiving lawyers fees as separate from their recovered unpaid wages.

Continue reading "Numerous Wal-Mart Wage-and-Hour Lawsuits Settled" »

In an ongoing class action wage and hour lawsuit, Wal-Mart Stores Inc. may be given a break, despite breaking employment law by having its employees work overtime and skip breaks without pay. Filed in Minnesota court in 2002, the lawsuit alleges break and wage violations and represents about 100,000 current and former hourly Wal-Mart employees who claim they were forced to work without pay before and after their shifts so Wal-Mart managers could meet profit and productivity goals.

Earlier this year in July, the state judge threatened to impose a fine of $1,000 per violation; Wal-Mart would then owe more than $2 billion in fines, with a majority of this money being returned to unpaid hourly employees and a part going to the state. At that time, the judge had also ruled that Wal-Mart owed $6.5 million to 56,000 employees for failing at least 1.5 million times to give workers promised rest breaks and that the company had failed to provide time to eat a meal 73,864 times.

As in many wage and hour lawsuits, systematically missed breaks add up, which is why a company try to cut corners will work their wage workers without pay. While a single missed break can be worth less than a dollar, the failure to allow a break repeated many times over comes to a substantial amount of unpaid wages.

Additionally, the Minnesota judge ruled that Wal-Mart managers had broken wage and hour law by having employees take required training off-the-clock.

All this legal action and compensation came from the courage of four women who filed the original lawsuit stating that Wal-Mart managers had made them work off the clock and had denied their meal and rest breaks.

The $54.3 million wage and hour settlement is still subject to court approval.

Tennessee and federal wage and hour laws set minimum wages, establish the requiremefor salaried pay, and provide for overtime and other rules governing pay for work.

If your Tennessee employer has repeatedly pressured you or fellow employees to work off the clock, then you, too, may have unpaid wages coming your way. If your Tennessee employer was inconsistent about when your workweek began and ended to prevent paying you overtime, you may have unpaid overtime wages coming your way. If your Tennessee employer labeled you as a salaried employee to prevent paying you overtime or a minimum wage, you may have unpaid wages coming your way.

For more on Tennessee wage and hour law, or if you suspect you may be a victim of time card fraud or unpaid wages, contact the Nashville law offices of the Higgins Firm. Our wage and hour attorneys know Tennessee labor law and can offer a free evaluation of your complaint of an illegal pay practices by a Nashville or other Tennessee employer. Call our employment lawyers at (615) 353-0930 or fill out our quick TN wage and overtime attorney form.

Nashville circuit court received Friday a sexual harassment lawsuit against Tennessee Highway Patrol from Martha Sanders, a woman who conducts sexual harassment training for THP, and her attorney. This harassment lawsuit follows an investigation earlier this year into charges of sexual harassment against the Tennessee agency. The present lawsuit claims retaliation occurred after Sanders spoke of the sexual harassment she endured..

Another Tennessee employee issued the original sexual harassment complaint, a male employee who retired shortly thereafter. When questioned by Tennessee investigators, Sanders retold the two instances of harassment, including one instance in which she was put in an inappropriate headlock. Sanders reportedly was so upset by her Tennessee coworker’s sexually inappropriate comments and sexual advances that she vomited afterwards.

Sanders was reassigned after the investigation proved inconclusive. Her reassignment placed her among the very supervisors against whom she reported engaged in inappropriate sexual comments. Additionally, many of her training duties were taken from her and, she and her attorney claim, her new, less respectable duties are a form of retaliation. According to the Tennessee employment attorney now involved in the sexual harassment case, the very reason Sanders didn’t report the sexual harassment in the first place was that she was afraid of retaliation from her superiors.

This most recent charge of sexual harassment comes after other instances of sexually inappropriate conduct from Tennessee Highway Patrol, including a male Tennessee trooper fired in September for making unauthorized background checks on Tennessee women and the reassignment of another employee last year after an adult movie “actress” claimed he offered to exchange arrest for drug charges in return for oral sex.

It still amazes me even all these years practicing Tennessee employment law when I receive a call from a victim of sexual discrimination or harassment. I am amazed that any Tennessee worker, but especially our women, are treated as second class citizens or that Tennessee employers would allow a matter other than performance to inform their hiring or promotion decisions. It appalls me whenever I learn that any Tennessee supervisor, male or female, has abused the power of his or her position to sexually harass an employee.

If you have been sexually harassed by your Tennessee employer, you owe it to not only yourself but others who work with you and future employs to give HHP a call. Our Tennessee employment law attorneys have the experience and the resources to find justice for sexually harassed employees.

The U.S. Supreme Court, whose 2008-09 term began last week, announced this week its sympathy for a Nashville, Tennessee employee who filed a Title VII anti-retaliation lawsuit (workplace anti-discrimination protections) when her employer fired her allegedly for testifying about her sexual harassment by her boss. The Court hinted that it intends to expand sexual discrimination protections, this positive action after so many absurd and hurtful workplace law decisions from the Court the past eight years, including Ledbetter v. Goodyear Tire Co.

This historic civil rights case, Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., 06-1595, arose when a payroll coordinator for Nashville, Vicky Crawford, was fired in 2003 after 30 years of dedicate employment. The discriminated Tennessee employee mentioned during an investigation instigated by another female employee that she had been subject to unwanted sexual advances by her male superior. When Metro officials in subsequent investigations asked for details of sexual harassment, Crawford reported that the harasser in the same Tennessee department had grabbed his crotch in front of her multiple times, asking to see her breasts, and had once forced her head towards his groin. But Crawford had not filed an official sexual harassment complaint.

When both Crawford and the harassed woman filing the sexual harassment complaint were fired a few months later, Crawford took what she felt to be workplace retaliation (click for more on Tennessee retaliation law) to federal court. Yet while her harasser remained employed by Nashville and Davidson County and she was the one being punished for doing right, the circuit court decided against Crawford.

Title VII of the 1964 Civil Rights Act does allow for limited anti-retaliation protections but lower courts (including the 6th U.S. Circuit Court of Appeals, which governs appeals in Kentucky, Michigan, Ohio, and Tennessee) have interpreted Title VII’s anti-retaliation provisions to only apply to those directly affected by and filing a discrimination or sexual harassment charge.

Click hear to read more about Tennessee discrimination law.

If your Tennessee employer has sexually harassed you or has let your age, race, religion, gender, or other factor external to your work performance determine your pay, decide who is promoted, or is otherwise guilty of Tennessee workplace discrimination, Higgins, Himmelberg & Piliponis wants to help. Call our Nashville law offices at (615) 353-0930 or fill out our Tennessee employment law attorney form for a free initial consultation with an employment law attorney experience in Title VII discrimination lawsuits.

Wage and hour law is back in Tennessee legal news after car wash workers at local Shur-Brite locations filed a wage-based federal lawsuit filed under the Fair Labor Standards Act against the Nashville company in May for unpaid wage from the company's unfair timecard practices. As of July 4, over 50 present and former car wash employees have joined in the wage and hour lawsuit that would require payment of wages withheld by Shur-Brite’s allegedly illegal pay practices.

According to both the Nashville City Paper and The Tennessean who have covered this story, the wage and hour lawsuit alleges that Shur-Brite High Speed Car Wash owners knowingly, and illegally, forced employees to clock out when there were no cars to wash; on slow days, workers would be forced to clock out as often as 10 times during the day. Many workers would be at the car wash site for over 40 hours a week but only get paid for 15 at Tennessee’s minimum wage of $5.85 an hour. Some workers put in twelve hours days hoping to get paid for eight. Many it was unclear to workers when they were on or off the clock and not earning minimum wage.

Who would want this kind of job? Well, probably no one wants a job where they’re unfairly paid, but it appears many law-abiding people need it. These needy persons include those who know no better, such as teenagers, and those in need of immediate employment, including persons on parole or probation, former convicts with records that keep them from better paying jobs, and people whose unemployment has run out. Perhaps, as some claim, the convicts and many homeless whom Shur-Brite employed are paying their debt to society, but we have wage and hour laws in our democracy to prevent unfair pay practices, and the rights of our labor laws apply to all, as exploitive employers across the country are learning.

The present Nashville wage and hour lawsuit against Shur-Brite mirrors a class action lawsuit filed two months ago in Los Angeles against four California car washes for failure to pay minimum wage, to provide overtime pay, and to allow breaks and meals. It also reflects the growing number of federal lawsuits being filed under national wage and hour laws, which more than doubled between 2003 and 2006.

Unless you’re a wage and hour attorney, you’d be amazed how quickly unpaid hours add up, especially overtime hours, and how much pay an unethical employer can withhold through illegal timecard pratices. I’ve worked a number of these claims, including class action lawsuits to see that wrongly categorized Tennessee construction workers have receive the proper pay for their work through Tennessee’s prevailing wage law.

If your employer frequently changes your weekly schedule or does not pay you for work-required activities, you may have a wage and hour lawsuit on your hands. If your Tennessee employer requires you to be on-site but doesn’t pay you for this time, then you should speak with a wage and hour attorney about a possible wage and hour lawsuit. If your Tennessee employer has docked your pay, repeatedly refused to pay you overtime, or required you to work without pay, then you most definitely need to speak with one our Nashville-based employment law attorneys.

Typical settlement and court awards include backpay for unpaid wages, including overtime, liquidated damages, and attorney’s fees. To speak with a Higgins, Himmelberg & Piliponis wage and hour attorney about Tennessee labor law or to report illegal pay practices by a Nashville or other Tennessee employer, give us a call at (615) 353-0930 or fill out our quick wage and overtime attorney form.

After the past few years the state of Tennessee and my office has seen more age discrimination cases. There is some debate as to why. The most commonly given reason I hear for the rise in job related age discrimination is that the work force is simply getting older. Whatever the reason for the rise in claims it is very unfortunate that it is occurring.

Under the law employers may not discriminate against employees in hiring, firing, or other terms and conditions of employment if they are 40 years of age or older. This law applies to all employers with 20 or more employees. Tennessee has some laws that applies to employers with less than 20 employees.

If you feel that you are being treated differently solely on the basis of you age it is important that you take every step necessary to protect yourself. It is not an easy task to prove age discrimination so it is advisable that you contact an attorney, the EEOC or both if you are uncertain as to what you should do.

Amendments to The False Claims Act in 1986 as well as Tennessee’s own Tennessee Medicaid False Claims Act (TMFCA) allow qualified whistleblowers to earn a portion of the government’s recoveries (called “qui tam provisions”) when whistleblowers, known as “relators,” appropriately report their company’s defrauding the government. Two examples of False Claims Act fraud found settlement in court and received media coverage this week for their substantial moneys awarded their whistleblowers who reported the fraud.

Military Contractor Fraud

A False Claims whistleblower led Justice Department officials to investigate from a company producing inferior-quality Kevlar cloth for our military’s combat helmets for the past 12 years. This military contractor fraud investigation led to a $2 million settlement after whistleblowers’ testimony during the False Claims Act lawsuit revealed that the company under military contract was knowingly producing inferior quality goods that did not meet military specifications. Instead, they wove up to 10% fewer than the minimum safety standard of 35 x 35 strands of Kevlar in order to save on production costs and time, that is, stealing federal tax dollars to provide an unsafe product to our troops.

Defense Department officials have not presented any evidence of troop from these inferior materials, but this could be due to the helmets the cloth was used in being phased out.

The two relators for this case had previously approached management concerned about the lives they were endangering by producing the inferior Kevlar. When that didn’t work, they sued.
From qui tam provisions under the False Claims Act, the two will receive $406,350 of the government’s award.

Health Care Fraud

A district sales manager for Merck finally found completion to her 7 year False Claims lawsuit alleging billing fraud by the drug pharmaceutical maker. But the wait was worth it. Merck, the U.S.’s third largest drug pharmaceutical company, agreed to pay over $400 million in one of the largest sums ever collected by various state and federal governments. The qui tam relator will receive about $68 million.

The relator in the Merck’s lawsuit had inside information about corporate practices--information the government relies on when it contracts with or subsidizes an industry. This is especially true in the health care industries, where whistleblowers have helped recover just under $9 billion (and to the $1.4 billion benefit of the relator).

In Merck’s case, the whistleblower reported that the pharmaceutical company was using unfair pricing practices to overcharge Medicaid (tax funded healthcare for the poor).

Working with a False Claims Attorney

One whistleblower can make all the difference in the immediate lives of soldiers or in the tax dollars available for bona fide health care programs. Relators can earn upwards of 30% of the total government fraud recoveries--just for doing the right thing. As an added bonus, federal and Tennessee law protects False Claims whistleblowers from retaliation, even if their case is not won.

But protections and payoffs only come if you appropriately file your False Claims lawsuit.

To speak with either myself, Attorney Jim Higgins, or of HHP’s Tennessee government fraud specialists, fill out our quick online form or call our Nashville, TN offices at (615) 353-0930.

There’s a certain conception of workplace discrimination that I’d like to correct in this week’s Tennessee Law Blog. Too often Tennessee workers whom HHP partner Attorney Rick Piliponis and I have met with do not realized that they were being discriminated against, though they were passed over for promotions or denied benefits, because no one was mean to them or made inappropriate comments.

There are two main requirements in Tennessee workplace discrimination lawsuits, and neither of them requires that your employer be mean to you. These two Tennessee workplace discrimination requirements are:

1. Protected class - Federal and Tennessee employment law prevents discrimination in the Tennessee workplace on the basis of race, color, religion, age, gender, or disability.
2. Financial loss – a determinable financial loss whether this is denial of time off, promotion, or transfer or other prejudicial treatment based on your protected class. If you quit your job because of workplace discrimination and found a higher paying one, then it will be difficult to demonstrate losses in a Tennessee discrimination lawsuit.

In fact, your Tennessee employer can be mean to you and can treat you unfairly and different from the other workers. Title VII and other federal and Tennessee discrimination laws only state that your employer can’t be mean or unfair because of your protected class. When your protected class causes you and others of your protected status to suffer unfair or unequal pay or perks, then you should speak with a Nashville, Tennessee discrimination attorney.

Disparate Impact and Tennessee Discrimination

On a basic level, workplace discrimination lawsuits are the same: they require proof of discrimination based upon a characteristic protected by law (protected class). Because they are similar, I am going to focus on workplace age discrimination, though age, sex, veterans’ status, and another characteristic protected by discrimination law when I discuss disparate impact.

Disparate impact occurs when corporate policy creates a situation in which members of a protected class are put at a disadvantage. Often, this discrimination is unintentional, though it often takes legal representation to force the company’s hand and provide backpay for wages, promotions, or other moneys Tennessee employees would have earned if they weren’t a member of a protected class.

Disparate impact developed through a 1971 Supreme Court case that decided:

“[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."

Disparate impact is not always easy to detect. Its standards are applied to all employees, though it indirectly discriminates as can be shown through losses in pay or promotion. A famous case of this involved providing incentives that put workers 40 years of age or older at a distinct disadvantage.

Mr. Smith Goes to Washington

Age discrimination as an unintended effect of employment policies was the basis of the 2004 Supreme Court case Smith, et al. v. City of Jackson, Mississippi, et al. Mr. Smith and other police officers in the lawsuit were over 40 years old, a characteristic protected by law under ADEA (Age Discrimination in Employment Act). While the City of Jackson did not mention age as a requirement for its benefits, a new policy it enacted put older officers at a disadvantage.

City officials wanted a positive revision to their police officer pay program. They wanted to retain the new officers they had recruited, so they offered wage increases to all officers and dispatchers, though a larger wage increase to those police officers with less than five years of service. This had the effect of putting employees with more than five years at a disadvantage--and most of these employees were 40 or older. Although on paper no specific group was being discriminated against and although city officials might never have meant to put older employees at a disadvantage, protected workers found themselves not being paid fairly.

Nashville, Tennessee Workplace Discrimination Attorneys

If you believe you have been a victim of age or other employment discrimination in Nashville or anywhere in Tennessee, the Nashville employment attorneys at Higgins, Himmelberg & Piliponis at (615) 353-0930 or fill out our contact form to speak with a qualified Tennessee discrimination attorney about the possibility of a discrimination lawsuit.

This last fiscal year (10/01/06 – 09/30/07), federal False Claims lawsuits (which I’ve previously written about here, here, and elsewhere) recovered over $2 billion in taxes through settlements and judgments, according to figures released last week by the U.S. Department of Justice.

Of this amount, $1.45 billion was recovered by False Claims lawsuits initiated by qui tam whistleblowers who themselves were awarded $177 million last year. These whistleblowers, known as “relators,” are offered special legal protections including anonymity during initial proceedings and anti-retaliation protections regardless of the district court’s judgment in the False Claims lawsuit.

Under the 1986 False Claims Act Amendment, relators are awarded 15% - 25% (and in some cases more) of the government’s recoveries. Corporations who knowingly defraud the federal government ("false claims") are liable for up to thrice the government funds falsely billed plus $5,500 to $11,000 for each false claim. Since the passing of the 1986 amendment to the False Claims, over $20 billion has been recovered.

About half of the total federal recoveries are from Medicare and Medicaid fraud. The remaining portion of False Claims recoveries are from false billing to the federal government, whether the Department of Defense or other government entity. In recent years, Lockheed Martin, Conoco Phillips, PacifiCare Health Systems, OfficeMax, Oracle, and Hewlett-Packard have all been brought to court from qui tam relator’s whistleblowing.

In the 2006 fiscal year, federal qui tam relators were awarded over $190 million. Tennessee False Claims relators receive an even larger percentage of qui tam awards, usually between 25%-33% of the decision or settlement.

Contact HHP if you have information on Medicare/Medicaid or other false claims receiving federal or Tennessee state funds and wish to speak with a Nashville qui tam lawyer about taking action as a False Claims whistleblower.

Leaving the Tennessee Mornings studio earlier today, I realized there were still a few points that I wasn’t able to cover on-air concerning Tennessee non-compete contracts.

Unfortunately, I still don’t have the time right now to go into most of them. Besides, each contract is unique.

Instead, what I would like to do for you Tennessee Law Blog readers is emphasize one essential point underlying the validity of any Tennessee covenant not to compete (another name for a non-compete contract) and the basis for valid disputes and negotiations. However intuitive the following might seem in the often counterintuitive Tennessee Law, the essence of any non-compete is whether the contract answers the following in the positive or the negative:

Is the non-compete clause/contract fair?

Continue reading "Tennessee Mornings Follow-Up: TN Non-Compete Contracts" »

This coming from The City Paper, a former Tennessee executive for Iasis Healthcare, one of Tennessee’s largest health care companies, has blown the whistle in a False Claims lawsuit.
Jerre Frazier worked for Iasis in Franklin, Tennessee for four years, becoming vice president for ethics and compliance and as its chief compliance officer. During this time, Frazier discovered that many of the top Iasis executives had previously worked for Nashville-headquartered HCA, a for-profit hospital chain which itself was guilty of defrauding the government through Medicare fraud totaling $1.7 billion (yes, a b as in bullion and in boy that’s a lot of money).

The allegations in the present False Claims lawsuit against Iasis Healthcare is that these executives from HCA brought their dirty business with them. Specifically, the False Claims charges are that Iasis compensated doctors for their referrals and for performing unnecessary medical services that were charged to Medicare. In return, doctors received discounted rent for office and lab space from Iasis.

Iasis owns 15 hospitals, none located in Tennessee, along with other medical facilities. If the court sides in his favor, Frazier will be awarded 15-30% of the government’s total recoveries (remember that b-illion number above) for blowing the whistle on Iasis and helping the federal government reclaim its stolen Medicare funds. The percentage depends on if the Department of Justice will pursue this matter or turn it over to private qui tam attorneys.

Walter Klepacz went to sleep last week with a clean conscience and roughly $1.466 million richer.

A few years ago, Klepacz was working as Quality Assurance Manager for Crane, Co., a manufacturer of various machine fittings and parts, when he began asking questions about some shady business practices for obtaining government contracts, honest questions that led him to be fired.

Klepacz knew there were specific regulations regarding government contracts, laws regulating who gets the project and the quality of materials sold to the military and where they were produced, and he knew his employer was bending and sometimes breaking these laws. He knew Crane, Co. knew it was selling substandard valves to the U.S. Navy and other parts that would be used in combat. They also were manufacturing a portion of these substandard parts with materials from outside of the United States in violation of the Berry Amendment and Buy America Act. What Klepacz didn’t know until he met with a workplace lawyer was that not only was his firing illegal but he could also file a lawsuit on behalf of the U.S. to recover the moneys Crane, Co. had made by defrauding the government.

U.S. District Court Judge Kenneth Hoyt found Crane, Co. had acted illegally with its use of government money, and Klepacz was rewarded for his actions as a few dozen brave Americans are every year through whistle blowing and filing a False Claims Act.
Click if you suspect your employer of defrauding the government and would like learn more about filing qui tam cases. We are located in Tennessee but work with firms throughout the country. Click to speak with a workplace lawyer.

It’s not been publicized, but it’s earned honest citizens around the country tens and hundreds of thousands of dollars for blowing the whistle and protecting fellow Americans. It’s kept on the q.t., but the Department of Justice relies on it for the protection for our tax dollars. It’s the fear of every corrupt corporation. It’s called “qui tam” from a Latin phrase meaning “to sue for the king as well as for oneself,” and it’s time word got out.

As of the last fiscal year, the U.S. has recovered over $6 billion as a result of the False Claims Act lawsuits, of which over $960 million has been paid to qui tam whistleblowers. Under the False Claims Act, a corporation guilty of defrauding the government can be sued for three times the government’s damages plus $5,500 to $11,000 per instance of fraud. The qui tam whistleblower, who has firsthand knowledge of the corporate abuse and files with an attorney, is entitled to 15% to 30% of these awards.

The number of qui tam cases is increasing.

Too often those in the private sector see the government as one big cookie jar. Corporations and employees lose little sleep charging for services never performed or for equipment never installed because they believe government bookkeeping agencies are too big or slow to find the error. Some believe government won’t care or think they aren’t doing anyone (except that vague idea of the taxpayer) any direct harm. While computer manufacturers, military contractors, and oil companies have all been brought to trial by qui tam whistleblowers, the biggest culprit is the health care industry. And here harm from corporate fraud abounds.

Tennesseans suffer more than just financially when federal tax dollars are misused. Last year, because of a qui tam case involving shocking mistreatment and neglect of elderly veterans in two Tennessee veterans’ homes, these abuses, including one homicide, were made public. In another False Claims Act case, a Tennessee oncologist guilty of defrauding Medicare, TennCare and BlueCross and BlueShield was found to have been diluting chemotherapy medications given to her cancer patients and instructing her nurses to give only partial doses of medications to patients. She has sentenced to over fifteen years’ imprisonment for actions.

There are a number of provisions protecting qui tam whistleblowers from retaliation from their employer. The first step in any qui tam claim is to contact a qualified attorney, such as myself or my HHP associates, to begin the filing process.

Here are some common questions I receive from an employee being harassed at the work place are: How do I stop it? What do I do? Should I quit? Should I just stay quiet?

The answers to these questions vary with each situation. There are a few things we must consider. For the purposes of this blog, however, I well tell you where we always start. Is the behavior actually sexual harassment? There are some cases that are obvious but often the behavior can be more in a grey area.

To give you some guidance, as to what is sexual harassment, the EEOC defines sexual harassment as:

* unwelcome sexual advances;
* requests for sexual favors;
* other verbal or physical conduct of a sexual nature-when:

o submission to such conduct can be either explicitly or implicitly a term or condition of an person's employment or academic success (man or woman), or

o submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting such individuals, or

o the conduct has the purpose or effect of unreasonably interfering with an individuals work or academic performance or creating an intimidating, hostile, or sexually offensive working environment.