Articles Posted in Employment Issues

Distracted driving as a result of cell phones has become an epidemic problem in this country. 39 of our 50 states have laws limiting the use of cell phones while driving. Now after some record civil judgments the business world is attempting to curb the use of cell phones of their employees while driving. In fact, many companies have ban their employees from using cell phones while on the job or while driving because it can cause these accidents and end up costing them large amounts of money.

In one recent lawsuits, a family was awarded $21 million following the death of a thirty-two year old woman who was killed in a cell phone related accident. In another case involving Coca-Cola, the company had to pay $21 million to a thirty-seven year old woman who suffered nerve damage to her back after she was hit by a car driven by a Coca-Cola sales person who was talking on their cell phone while driving. The company can be held accountable in cell phone related accidents if their employee is driving a company car or if the employee is driving a private car but is doing so while on the job. They can also be held accountable if the employee is using a company cell phone or if the employee is using a private cell phone for work related issues.

According to the National Highway Traffic Safety Administration using a cell phone while driving makes the driver four times more likely to be involved in an accident. Some people may state that talking on a cell phone while driving is no more dangerous than listening to the radio or talking to someone in the car but recent research has proven the opposite. A passenger in the car may help someone be more alert or tell them when to stop or go but if you are talking on a cell phone your mind is somewhere else. Many companies including UPS and Time Warner Cable have ban their employees from using cell phones while driving. The National Safety Council is currently working on making people aware of the risks of using a personal cell phone while driving.
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In Tennessee and all over the country, when employees injury themselves on the job or while performing job related tasks, they can file a workers’ compensation claim and have their medical expenses covered by their employer. In some cases however, it is difficult to determine whether or not certain injuries in specific situations should be compensated by Workers’ Compensation law. In these cases the states’ Supreme Court typically makes a ruling.

In a recent case, David Kirby was performing heating, ventilation, and air conditioning services for Memphis Jewish Nursing Home in September of 2008 and injured his right shoulder while trying to avoid falling down a flight of stairs. He had surgery for the injury in June of 2009 to repair a tendon and cartilage in his arm. Months after his surgery, David Kirby returned home after a medical appointment and found one of his dogs was running loose. He grabbed the dog by the collar and when the dog pulled away, this motion, caused David to reinjure his arm.

When the case was brought before a Tennessee Chancery Court, it was ruled that David Kirby did not act negligently when trying to restrain his dog and the re-injured arm was considered to be “a natural consequence of the original injury.” The court awarded forty percent partial disability benefits to Kirby based on the first injury and the impairment caused by the dog incident.

When the nursing home appealed the decision, the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court confirmed the Chancery Court’s decision. It ruled testimony from Kirby’s doctor which encouraged him to push past his limits while recovering from his arm surgery. The doctor’s testimony also stated that Kirby was not restricted from walking his dog after his surgery.
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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.

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.

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.

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.

Or, to borrow the Equal Employment Opportunity Commission (EEOC)’s less modest description from the title of its press release:

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.
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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.

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.

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.

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