Author: Gilbert McWherter Scott Bobbitt PLC

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News

Gilbert & Bobbitt Get Huge Win in Discrimination Case

This appeal involves alleged employment discrimination based on gender and pregnancy. The female plaintiff was employed as a police officer by the defendant city. While off duty, the plaintiff encountered an ex-boyfriend against whom she had procured an order of protection. Based on this encounter, she filed a criminal charge against the ex-boyfriend for violating the order of protection. The defendant’s police chief ordered an internal affairs investigation, and the ex-boyfriend filed criminal charges against the plaintiff for filing a false charge. The plaintiff was suspended with pay pending resolution of the criminal charges. Soon after that, the plaintiff informed the police chief that she was pregnant. After the ex-boyfriend’s criminal charges against the plaintiff were dropped, the police chief terminated the plaintiff’s employment based on the results of the internal affairs investigation. The termination was upheld by the city’s mayor and its board of aldermen. The plaintiff filed this lawsuit against the employer city, alleging discrimination based on gender and pregnancy pursuant to the Tennessee Human Rights Act. The employer city filed a motion for summary judgment, asserting that the plaintiff had no credible evidence that she was treated less favorably than similarly situated male employees. The trial court granted summary judgment in favor of the employer city. The plaintiff now appeals. We reverse, finding that the standard for summary judgment under Hannan v. Alltel Publishing Company and Gossett v. Tractor Supply Company has not been met in this case.

Source: TBA Today, 3/25/13

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News

McWherter & Scott Receive AV Preeminent Rating

Attorneys Brandon McWherter and Clint Scott have Achieved the AV Preeminent® Rating – the Highest Possible Rating from Martindale-Hubbell®

McWherter and Scott, employment and insurance lawyers based in Jackson, TN at the firm of Gilbert Russell McWherter, have both earned the prestigious AV Preeminent® rating from Martindale-Hubbell®. McWherter and Scott join fellow Gilbert Russell McWherter attorney Justin Gilbert in being recipients of this prestigious award.

The AV Preeminent Rating is Martindale-Hubbell’s highest possible rating for both ethical standards and legal ability, even after first achieving this rating in 1998.

For more than 130 years, lawyers have relied on the Martindale-Hubbell AV Preeminent® rating while searching for their own expert attorneys. Now anyone can make use of this trusted rating by looking up a lawyer’s rating on Lawyers.com or martindale.com. The Martindale-Hubbell® AV Preeminent® rating is the highest possible rating for an attorney for both ethical standards and legal ability. This rating represents the pinnacle of professional excellence. It is achieved only after an attorney has been reviewed and recommended by their peers – members of the bar and the judiciary. Congratulations go to Justin Gilbert, who has achieved the AV Preeminent® Rating from Martindale-Hubbell®.

Categories
FLSA Overtime/Wage & Hour

Tennessee Dish Network Installers Receive Conditional Certification

The Western District of Tennessee has conditionally certified Hollis & Eberline v. Dump Cable Inc. & Raghid Baker Ardahji as a collective action under the Fair Labor Standards Act.  In this case, satellite installers and technicians who are/were employed by Dump Cable, Inc. and misclassified as “independent contractors” are seeking unpaid overtime wages.

With the court’s approval, notice will be sent to all current and former installers who meet the class definition, giving the installers a right to join the case.  

What do I do if I receive a notice?

If you receive a notice and are interested in joining the case to recoup lost overtime wages, complete the consent form and return it to our office as quickly as possible.  If you have any questions or concerns, please do not hesitate to contact our office.

Contact

If you would like additional information please call:

(731) 664-1340 or 1-888-354-3476

Categories
FLSA Overtime/Wage & Hour

Arbitration Agreements and the “Effective Vindication of Rights” Argument

                 In 2011, the U.S. Supreme Court handed down the consumer case of AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (2011). Generally speaking, Concepcion held that arbitration agreements which banned class actions are enforceable.

                After Concepcion, advocates argued that there was at least one exception to Concepcion. Importantly, Concepcion did not overrule a 1985 United State Supreme Court case called Mitsubishi Motor Corp. v. Soler Chrysler-Plymouth. That line of case effectively held that agreements which prevent plaintiffs from vindicating their rights are not enforceable.

                Therefore, some advocates argued that any arbitration agreement containing a class action waiver that was drafted in a way that it effectively prevented plaintiffs from vindicating their statutory rights were unenforceable. That was the only way, they argued, to reconcile Concepcion and Mitsubishi Motor Corp.

                In 2012, the Second Circuit handed down In Re American Express Merchants Litigation, 667 F.3d 204 (2d Cir. 2012). In this case, the Second Circuit found that the plaintiffs had proved they would be unable to effectively vindicate their rights under the Sherman Act, and thus the agreement at issue was unenforceable.

                The United States Supreme Court granted certiorari on the American Express case and recently heard oral arguments. Stay tuned.

Categories
FLSA Overtime/Wage & Hour

Donning and Doffing: What are “Clothes”?

                  What does it mean to change clothes? This was the issue in Sandifer v. United States Steal Corp., 678 F.3d 590 (7th Cir. 2012). In Sandifer, Judge Posner found that protective gear was “clothes” within the §3(o) exemption of the FLSA.

                  As you may know the §3(o) exemption excludes changing clothes from compensable time when it is part of the “express terms of or by custom or practice under a bonafide collective bargaining agreement applicable to the particular employer.” In Sandifer, the plaintiffs argued that steal workers were not changing clothes but were changing “safety equipment.” Judge Posner disagreed.

                  That was not, however, the final word. The United States Supreme Court granted certiorari on the issue. Alas, we will get to find out what the Roberts court considers to be “clothes.”

Categories
FLSA Overtime/Wage & Hour

Home Healthcare Workers: New Regulations are on the Way

                 Home healthcare workers work long hours for low pay. They are among the lowest paid employees in our workforce. Unfortunately, they are often exempt from both the minimum wage and overtime requirements of the FLSA. The reason is an accident of history. Thankfully, help may be on the way.

                It is important to note that home healthcare workers are not underpaid because the industry is broke. In 2009, the home healthcare industry had $24 billion in profit. That’s not revenue; that’s profit. They are among the five fastest growing industries in the country.

                Originally, the home healthcare workers’ exemption – known as the companionship exemption – was created for “companions.” In other words, Congress did not want grandma to have a heart attack while she was alone at home. Therefore, Congress thought it would be a good idea to encourage grandma to pay somebody to sit on the couch and watch General Hospital with her. These were companions. However, when Congress passed the exemption, they gave the Department of Labor authority to interpret “companion.”

                The Department of Labor expanded the definition to include workers to perform certain domestic services. The United States Supreme Court reviewed this interpretation and hinted it was a little quirky, but still deferred to the Department of Labor.

                At last, the Department of Labor has now proposed new regulations. While the final version is not out, the drafts did three important things: (1) they said that general household work was not included in companionship; (2) they excluded providing medical care as companionship; (3) they created a rule that no more than 20% of companions’ time can be used performing non-companionship services; and (4) they specifically provide that employees of third party home health agencies are not exempt.

                The fourth provision is especially important. For-profit companies who make a great deal of money providing “companionship services” frequently rely on the FLSA exemptions. They rake in tons of revenue while paying employees a pittance.

                The notice and comment period of the new regulations closed in 2012. We are just waiting to see if the Department of Labor will adopt them. We hope they will come out in April or May of 2013. In the interim, there is at least a bit of hope on the horizon for “companions” of the elderly.

Categories
FLSA Overtime/Wage & Hour

Private Settlements of FLSA Claims

It has always been black letter law that any settlement of an FLSA claim must be approved either by a court or by the Department of Labor. In my experience, many defendants elect to “take their chances” with a private settlement that involves a single plaintiff. As a plaintiff’s attorney, I have generally thought that is a risk the defendant can take if they so choose. If an employer wants to pay my client money without getting a valid release, what do I care? However, I have always operated off the assumption that such settlements were not operable if they were challenged.

The Fifth Circuit seems to cast doubt on my assumptions. I suppose we have to take the Fifth Circuit with a “grain of salt.” It seems to be the place where employers always run when they want to make bad law for employees. Thankfully, the rest of the country often just scratches their head and ignores them.

Bad facts make bad law. Perhaps bad movies also make bad law. In a case called Martin v. Spring Break ‘83 Productions, LLC, the Fifth Circuit recently found that a private settlement in a wage and hour case was binding even though it had not been approved by the court. Martin was an unusual situation. A group of lighting and rigging technicians on the set of a movie filmed in Louisiana filed a grievance with their union. They complained that they were not paid for all of the time they worked. The union entered into a settlement agreement, which was never signed by the plaintiffs, in which they were paid for the disputed hours. The plaintiffs also filed a lawsuit. The Fifth Circuit decided that the settlement by the union was binding because the plaintiffs “personally received and accepted compensation for the disputed hours.” Martin, 688 F.3d at 257.

A couple of courts outside the Fifth Circuit have already objected the reasoning of Martin. See e.g. Dietz v. Budget Innovations and Roofing, Inc., No. 4:12-cv-0718 (M.D.Pa. Dec. 13, 2013). However, Martin may give employers a bit of comfort if they decide to settle small wage and hours cases and forgo court or Department of Labor approval.

Categories
ADA & ADAA Age Discrimination (ADEA) Bankruptcy Discovery FMLA Overtime/Wage & Hour Retaliation Sex Discrimination Sexual Harassment Title VII Uncategorized Whistleblower Law

17th Annual TBA Labor and Employment Forum

Here’s a great CLE opportunity that will cover a ton of labor and employment topics.  The 17th Annual TBA Labor and Employment Forum is April 12 in Nashville.  I will be speaking about current developments in wage and hour law. 

This is my second year to speak at this event, and it’s an honor to be included among such great employment lawyers from across the state.  This year, the line-up of speakers includes  Judge Clifford Shirley, John Bode, Bob Boston, Stan Graham, and Mark Travis.  Register at http://tinyurl.com/azdyxcl

Categories
Discovery

Proposed Changes to the Discovery Rules of the Federal Rules of Civil Procedure Get Everyone’s Attention

It is hard to get plaintiff’s lawyers and defense lawyers to agree on anything. If one likes red wine, the other will take white. If one likes red meat, the other will eat grilled chicken. If a plaintiff’s lawyer enjoys the beach, a defense lawyer would rather go to the mountains.

However, there is one thing that seems to be generating some agreement. Proposed changes to the discovery rules of the Federal Rules of Civil Procedure are gaining traction. The primary changes involve (1) limiting depositions to 4 hours; (2) limiting interrogatories to 15; and (3) limiting requests for production to 25. It seems that everyone is calling foul.

After reviewing these changes, I sent out an email to my colleagues in our law firm asking for their comments. I also sent out an email to some of my friends who are defense lawyers. The responses were somewhat mixed, but everyone seemed to have concerns.

Plaintiff’s lawyers generally like the idea of limiting the duration of depositions. There seems to be a common belief that much of a plaintiff’s deposition is a fishing expedition. There is thought that it largely harasses the plaintiff. Moreover, in sexual harassment cases, it can be viewed as a way to punish a sexual harassment victim. Defense lawyers, by contrast, are adamantly opposed to limiting the duration of party depositions. One defense lawyer told me that 4 hours would virtually eliminate the effectiveness of a deposition because a plaintiff could provide evasive answers and effectively “run out the clock. “

While plaintiff’s lawyers and defense lawyers seem to disagree on the proposal for limited duration of depositions, they seem uniformly concerned about the limitations on written discovery. A couple of plaintiff’s lawyers felt that limiting the scope of written discovery would prevent abusive discovery requests and “documents dumps.” Their belief was driven largely by the thought that a lot of discovery requests are redundant in light of the mandatory disclosure requirements of Fed. R. 26(a).

However, the majority of plaintiff’s lawyers seem to share the same concerns as defense lawyers. In other words, a 15 interrogatory and 25 requests for production limit is simply unreasonable in light of the proliferation of electronically stored information. One plaintiff’s lawyer also said, “Look, the defendants have all the documents. We should not be limited in what we can ask for when we have no way of knowing what is out there.”

It will be interesting to see what the final version of the rules look like. In the interim, plaintiff’s lawyers and defense lawyers may be sharing a cold brew at a local tavern and commiserating about one of the few things they are actually able to agree upon.

Categories
Overtime/Wage & Hour

Rule 68 Offer of Judgments in FLSA Collective Actions: An Update on the Genesis Healthcare Case

Earlier this month, the United States Supreme Court heard oral arguments in the Genesis Healthcare case, which will likely decide whether employers may use Rule 68 Offers of Judgment to “pick off” the claims of lead plaintiffs. This would result in employers being able to use a procedural device for a purpose it was clearly not intended: to deprive putative class members from the opportunity to join FLSA collective actions. To read my previous post on the case, you can follow this link: http://www.tennesseeworkplacelaw.com/2012/10/18/rule-68-offers-of-judgment-in-flsa-collective-actions-is-it-really-an-offer/

At oral argument, the justices seemed predictably split. The progressive justices appeared hesitant to allow an employer to manipulate the judicial process by making a Rule 68 Offer of Judgment which would eliminate its liability to the larger class. The conservative block appeared sympathetic to the employer’s argument. This will likely leave the swing vote with Justice Kennedy and, perhaps, Chief Justice Roberts.

It will be interesting to see how judicial philosophies will play into this decision. Because this deals with a Rule of Civil Procedure rather than a statute, there will likely be less discussion of “intent,” as Congress played no role it the drafting of the text. Rather, the courts are the guardians of their own procedures.

On a personal note, the employee’s case was argued by Neal Katyal. If you’ll forgive my shameless name-dropping, I had the great pleasure of meeting Neal at the Sixth Circuit Judicial Conference last April. We had lunch together, and I was immediately impressed by his intellect and grasp of Supreme Court jurisprudence. Neal is a graduate of Dartmouth and Yale Law School. He previously served as acting Solicitor General and successfully argued the constitutionality of the Affordable Care Act before the Sixth Circuit. He has argued many cases before the U.S. Supreme Court and is likely the most preeminent legal mind of my generation.

The Genesis Healthcare case is crucially important for employee rights advocates. Regardless of the outcome, we were fortunate to be able to trust Neal with the stewardship of this case. Neal and I exchanged emails following his oral argument. Nothing is left to do now but wait. Or, as Neal said in his email, “Fingers crossed, my friend.”