Articles Posted in Employment Issues

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.

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.

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.

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.

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.

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.

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.

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?
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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.