Author: Gilbert McWherter Scott Bobbitt PLC

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News

Gilbert McWherter Scott Bobbitt PLC Partners Recognized by Best Lawyers in America©

The Gilbert Firm is proud to announce that all four partners – Justin Gilbert, Brandon McWherter, Clint Scott and Jonathan Bobbitt ­– have been recognized for their exemplary work in the 24th edition of Best Lawyers in America©. All four attorneys have been recognized by Best Lawyers in previous years, and the firm itself has been recognized for the 2017 edition of Best Law Firms.

In order to be selected for Best Lawyers, an attorney must be nominated by a peer, a client, a colleague: anyone but him or herself. Nominations are then reviewed by attorneys who are currently recognized by the organization. How they reach their decisions is proprietary, as is the analysis of the feedback, but those who pass through this part of the process are then subject to an eligibility check. If the candidate is confirmed as being in good standing with his or her local bar, then the selections are made, and the firms are notified.

This year, Best Lawyers reviewed more than 10 million peer evaluations. Nominees came from 75 different countries across the globe, and practiced in 145 different areas of law.

About our award-winning attorneys

Justin GilbertBest Lawyers in America© was selected for his work in the area of Litigation – Labor and Employment. For more than 20 years, Justin has advocated on behalf of workers who have been discriminated against, denied their fair pay, and been subject to harassment and retaliatory measures. He is also the head of the firm’s Education Law practice, handling complex cases on behalf of students with disabilities.

Best Lawyers in America©Brandon McWherter was selected for Best Lawyers for his work in Insurance Law and Commercial Litigation. He has obtained millions of dollars on behalf of policyholders throughout Tennessee and in Mississippi, and has, as a founding member, helped the Firm expand in size and capacity.

Best Lawyers in America©Clint Scott was once again selected for his work in Insurance Law. He is the managing partner of the firm, and works diligently on behalf of policyholders/insureds to obtain the insurance benefits to which they are entitled. He often participates in the most complex cases the firm has. Clint also handles plaintiffs’ FLSA and wage and hour claims on behalf of workers throughout Tennessee and Kentucky.

Jonathan BobbittBest Lawyers in America© was selected for his work in the area of Litigation – Labor and Employment. He often handles high-stakes claims involving harassment, retaliation, and whistleblowers. Jonathan also handles insurance disputes on behalf of policyholders throughout Tennessee as well as other contract and business disputes.

We would like to congratulate all four gentlemen on their inclusion in the 2018 edition of Best Lawyers. It speaks to their dedication and commitment to protecting their clients. They are all deserving of selection.

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News

The Gilbert Firm Has Been Named to the 2018 Edition of U.S. News – Best Lawyers “Best Law Firms”

The Gilbert Firm Has Been Named to the 2018 Edition of U.S. News - Best Lawyers “Best Law Firms”Gilbert McWherter Scott Bobbitt PLC has been named a Memphis Metropolitan Tier One firm for Insurance Law by U.S. News – Best Lawyers, in the 2018 edition of “Best Law Firms.” The is the second consecutive year that the Gilbert Firm has been listed in “Best Law Firms.” The Firm was also named a Tier Two firm in the Memphis Metro area for Commercial Litigation and Labor & Employment Litigation.

In order to be eligible for selection, a firm must have at least one practicing attorney who is currently listed in Best Lawyers in America®. At the Gilbert Firm, all four partners have been named to Best Lawyers for at least two consecutive years. A firm is then evaluated “based on a combination of client feedback, information provided on the Law Firm Survey, the Law Firm Leaders Survey, and Best Lawyers peer review.” The “Best Law Firms” list also uses information gathered from Best Lawyers about individual attorneys; this year, those evaluations numbered more than 54,000, and included attorneys from across the globe.

Understanding the Gilbert Firm’s specific rankings

U.S. News – Best Lawyers combines all of its data “into an overall ‘Best Law Firms’ score for each firm. This data was then compared to other firms within the same metropolitan area and at the national level…. The first tier in each metropolitan area includes those firms that scored within a certain percentage of the highest-scoring firm(s); the second tier, those firms that scored within a certain percentage of the next highest scoring firm(s), and so on.”

Because Tennessee has so many law firms within specific regions,Best Lawyers divided our state into Metro Areas. The Gilbert Firm, though it maintains offices in five different cities, was founded in Jackson, which Best Lawyers lists in the greater Memphis Metropolitan Area.

We are all very proud to see the Gilbert Firm listed in “Best Law Firms” for 2018. Congratulations, everyone!

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News

The Gilbert Firm’s Very Own Atticus Finch

The Hamilton County Herald has published a profile of firm founder Justin Gilbert, and about the work he has done on behalf of clients whose rights have been violated. We invite you to read the piece here.

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News

Congratulations, Clint Scott, on Being Selected for Best Lawyers in America©

Congratulations, Clint Scott, on Being Selected for Best Lawyers in America©The Gilbert Firm would like to extend its deepest “Congratulations” to firm partner Clint Scott, for his inclusion in the 24th edition of The Best Lawyers in America©. This is the second year in a row that Clint has been selected for his work in insurance law.

For the latest edition, Best Lawyers narrowed down more than 12 million nominations. The nominees came from 75 countries throughout the world and more than 140 different practice areas.

About the Best Lawyers selection process

In order to be nominated for inclusion in Best Lawyers, an attorney must first be nominated by someone other than him or herself. Once the nomination is completed, the nominee is then reviewed by other attorneys on the current Best Lawyers list. If the nominee is in good standing with his or her local bar associations, and has received a certain amount of positive recommendations from reviewers (the exact rating process is confidential), then he or she is a strong contender for inclusion. Once the final attorneys have selected, the firms are informed and the result are published.

About Clint Scott

Clint Scott is the managing partner of the Gilbert Firm, and an award-winning attorney. His primary areas of practice are insurance disputes – the area of practice for which he was selected by Best Lawyers – and FLSA claims. Clint regularly handles complex claims on behalf of policyholders and employees, advocating for those who have been denied fair wages and compensation. He has obtained millions of dollars on behalf of these clients, helping them protect what matters most to them: their families, their property, and their livelihoods.

Clint is a dedicated, compassionate and thorough attorney. He works tirelessly on behalf of the people he represents on behalf of the Gilbert Firm. While we are thrilled that Clint was included in the latest edition of Best Lawyers, we cannot say we are surprised. He is positively deserving of this honor.

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Labor and Employment

Employee/Employer Ownership of Work-Created Intellectual Property

Employee/Employer Ownership of Work-Created Intellectual PropertyOwnership of intellectual property (IP) can be a contentious issue. Smart employers delineate the ownership of IP created during a working relationship in writing. Without a written contract, the ownership is determined by state and federal laws, including laws on trade secrets, copyrights, and patents. Which laws apply can vary depending on the type of intellectual property involved.

Unless the employee is hired for the specific goal of inventing something for the employer, and/or has a contract that says otherwise, the employee generally owns any inventions or creative products made while employed with the company. Just being employed by the company is not enough to switch the presumption of ownership to the employer.

In copyright matters, the employer owns any “works made for hire” – works that were in the scope of the worker’s job duties. Trademarks are only owned by the entity that uses them to promote its business or service, so ownership normally resides with the employer.

Written contracts assigning employee IP rights

Most employers require that the employee sign what is called a Proprietary Information and Inventions Assignment (PIIA) which requires:

  • That the employee agrees to transfer any IP rights that may mature during the working relationship.
  • That the employee assigns to the employer any inventions created on the employee’s own time that are related to their day work – even when the creation occurred off of the company’s premises.
  • That independent contractors also assign ownership to the employer in intellectual property created during work.

There are many ways to contest the validity of a PIIA:

  • The employer may not have given proper consideration to the entirety of circumstances.
  • The transfer may not have properly specified which property is to be assigned.
  • The PIIA may not comply with Tennessee law

The employment contract should make clear that the employee assigns all interest in the IP to the employer. A strong contract is one which makes clear that the employment is conditioned on the employee waiving his/her rights to any inventions or intellectual property. Stronger still is an agreement that shows that the waiver was in return for some employment benefit, such as a bonus or stock option grant.

Employees who are required to sign a PIIA should seek the advice of a Tennessee employment lawyer before they sign the contract.

Assertion of IP rights when there is no contract

In the absence of a PIIA, there are ways an experienced employment lawyer can demonstrate that intellectual property was not created during the course of employment. One factor, for example, is that the employer did not give the employee any instructions or goals about the IP. Another factor is that the work was created after hours and away from the work location. A third factor is that that the work relationship was really an independent contractor relationship and not an employee relationship. In independent contract work relationships, it is generally presumed that the worker owns the patent or copyright, unless exceptions apply.

If you create something that is worthy of a patent, copyright, or other intellectual property protection, you have legal rights. Whether you signed a PIIA or not, the Tennessee employment lawyers at the Gilbert Firm may be able to show that you deserve ownership of the intellectual property. For information on your employee rights, please call us at 888.996.9731, or fill out our contact form to make an appointment with a member of our team. We have locations in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

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FLSA Overtime/Wage & Hour

Wage and Hour FAQs for Tennessee Workers

Wage and Hour FAQs for Tennessee WorkersTennessee workers have many wage and hour rights. Asserting those rights can often mean substantial pay benefits and better working conditions. Here are a few of the questions employees often ask about in meetings and consultations with a Tennessee employment lawyer from the Gilbert Firm.

What federal or state laws govern wage and hour benefits?

Tennessee does not currently have strong wage and hour protection laws, so we use the federal laws as our guides. The Fair Labor Standards Act (FLSA) is the main law that applies to employees who want to get their fair pay. The FLSA delineates the following:

  • The standard workweek of 40 hours
  • Mandatory minimum wage
  • What constitutes overtime and how much an employee is entitled to be paid for overtime
  • Child labor restrictions

Should I be paid overtime?

Generally, Tennessee employers are entitled to overtime pay if they work more than 40 hours per week. Overtime pay is time and half, or 150% of your standard rate of pay. For example, if you normally earn $10 an hour, your overtime pay will be $15 an hour.

There are many exemptions to the overtime pay requirement. Some of the more commonly excluded groups include:

There are strict criteria for each exempt status. If the worker does not  meet the specific criteria, he/she may be entitled to overtime pay. It is best to review the criteria with an experienced Tennessee wage and hour lawyer to see if you are entitled to additional overtime income.

When should I receive my overtime pay?

Employers should make the overtime payment on your regular payday. For example, if you are paid every two weeks, then you should get your overtime pay at the end of the two-week cycle. If there are bookkeeping difficulties, then you should get your overtime income no later than the next pay cycle.

Can an employer pay someone else more than me if they are doing the same work?

The federal Equal Pay Act requires that workers who use the same skills and effort and have the same responsibility should be paid the same amount of money if they work under similar conditions in the same establishment, regardless of their gender. There are exceptions for seniority and other factors.

Employers also cannot discriminate against a worker, including their amount of pay, based on race, national origin, religion, sex, and other identity factors.

What damages are allowed for FLSA claims?

If an employer fails to pay you the full amount due, you can sue for the following items:

  • All of the back pay that is due to you
  • Your lawyer fees and court costs
  • Liquidated damages – a penalty usually equal to the amount of the back pay.

Should I be paid for meal breaks?

The FLSA requires that employees be paid for meal breaks if meal time is offered and if the meal time is 20 minutes or less. Under State law, employees are generally entitled to a meal break for any shift of six hours or longer.

Other common questions include inquiries about payment for rest breaks, payment when the work relationship is ending, how vacation time and personal days affect wage benefits, minimum wage, and the time to travel for work.

These questions are a sampling of the issues that employees in Tennessee and other states often face. Each employee’s case is different. The Tennessee FLSA lawyers at the Gilbert Firm can answer your questions and let you know if you have a case for damages. To make an appointment with Michael Russell or Clint Scott, please contact us at 888.996.9731 or fill out our contact form.  We have offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

 

 

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FLSA Overtime/Wage & Hour

Federal Contractors are Often in Violation of Overtime Pay Laws

Federal Contractors are Often in Violation of Overtime Pay LawsA recent report by the Center for Public Integrity revealed that many federal contractors are not paying their workers overtime pay, violating wage laws such as the Fair Labor Standards Act (FLSA). The investigation revealed that, despite these numerous pay violations, many contractors were being awarded new contracts.

Workers like Karla Quezada, who worked 11 years for a Subway restaurant shop in the Ronald Reagan Building and International Trade Center in Washington D.C., rely on the government to provide justice. She and many other workers like her rely on the Wage and Hour Division of the U.S. Department of Labor to do its job and police the nation’s businesses. The Wage and Hour Division has the authority to enforce laws that affect wages, family and medical leave, and visas; but cuts in funding and changes in Washington have made it harder to find the resources to investigate and pursue violations. The Trump administration’s budget proposal calls for additional cuts of over 20%.

The Obama administration tried to remedy the problem by providing that federal contractors would have had to disclose wage and safety violations and demonstrate that they were in compliance with the laws before they could be granted new contracts or be allowed to continue doing business with the government. The Trump administration and Congress undid this measure, stating that it would impede the federal procurement process.

Workers like Ms. Quezada can file their own complaints but often they fail to have the necessary documentation and understanding of how to process a legal claim. Ms. Quezada said she regularly worked 15 hours overtime each week, but was never paid the time-and-a-half pay she deserved. Extra pay would have made a significant difference in her life, including her living options. The additional wages would have also increased opportunities for her children.

The Center for Public Integrity report

The Center studied some of the most egregious violators of federal pay laws – those who had a history of large fines and a high number of violations. The Center cross-checked the records of the Department of Labor database where the violations are listed, with over 30,000 contract records in the databases of the U.S. Treasury. Between January 2015 and July 2015, it was discovered that:

  • 68 contractors with a history of violations were awarded $18 billion in contract modifications or grants. Some of the violators included Cornell University and Sterling Medical Associates.
  • The U.S. Department of Defense had working contracts with 49 violators. These violators were awarded $15 billion in contracts even though they owed $4.7 million in back pay.
  • About 11,000 workers across the country were affected by the violations.

Many workers who are not paid fairly fear losing their jobs if they file a complaint and, thus, never seek recourse. Some do not understand that employers may be required to pay them for overtime work, provide reasonable breaks, and compensate them for meal breaks. At the Gilbert Firm, our Tennessee wage and hour attorneys like Michael Russell and Clint Scott file claims when violations of the law occur. We demand that the worker be paid for his/her losses and that the employer pays the worker according to the law going forward. To talk with one of our lawyers in Nashville, Chattanooga, Memphis, Jackson, or Knoxville, please call us at 888.996.9731, or complete our contact form. We are ready to help you get justice.

Categories
Labor and Employment

New Ruling Says that Title VII Does Protects Employees from Sexual Orientation Discrimination

New Ruling Says that Title VII Does Protects Employees from Sexual Orientation DiscriminationIn a ground-breaking decision by the 7th Circuit Court of Appeals has ruled that Title VII of the Civil Rights Act protects employees from discrimination in the work place on the basis of their sexual orientation. This decision is consistent with previously issued guidance from the Equal Employment Opportunity Commission (EEOC). The decision by the Seventh Circuit is precedent setting, as a number of other Circuit Courts have ruled that sexual orientation was not protected under Title VII (such as this March 10 ruling by the 11th Circuit in Atlanta, and this March 27 opinion out of New York’s 2nd Circuit – though the 2nd Circuit did allow that the plaintiff could sue for discrimination in that particular case.)  This circuit split sets up a potential opportunity for the U.S. Supreme Court to review this hotly contested issue.

The ABA Journal reports that this landmark decision was made “in light of developments in the Supreme Court” decision in Obergefell v. Hodges, as per Judge Diane Wood, who issued the majority opinion. In that opinion, Judge Wood writes “we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.”

You can read the full text of the decision here.

How the Court reached the decision

Kimberly Hively was a part-time adjust at Ivy Tech Community College’s South Bend campus. After being denied for full-time employment on six different occasions, Hively began to feel that her sexual orientation was the cause for the denials. On December 13, 2013, Hively filed a pro se charge with the Equal Employment Opportunity Commission, and received a right-to-sue letter. Ivy Tech filed a motion to dismiss, claiming that sexual orientation was not a protected class under Title VII.

The 7th Circuit Court’s decision says otherwise, and points out that “the Equal Employment Opportunity Commission, in 2015 announced that it now takes the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation.” This ruling will allow Ms. Hively’s case to proceed, and opens the door for other gender and sex-based discrimination claims around the country.

At the Gilbert Firm, we fight for equal rights for employees throughout Tennessee. If you have been a victim of gender discrimination, we can help. To work with a Tennessee employment lawyer like Michael Russell or Justin Gilbert, please call 888.996.9731, or fill out our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

 

 

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News

The Gilbert Firm continues to fight for justice for Jacqui Helbert

Justin Gilbert of The Gilbert Firm continues to fight for justice for Jacqui Helbert. We invite you to read more about Jacqui here.

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FLSA

Labor Secretary Nominee Alexander Acosta One Step Closer to Confirmation

Labor Secretary Nominee Alexander Acosta One Step Closer to ConfirmationWhen Andrew Puzder, President Trump’s original choice for Secretary of the Department of Labor, withdrew his name, employee rights advocates let out a collective sigh of relief. Now that the President’s newest nominee, Alexander Acosta, has been advanced to a full Senate vote, many of us are wondering exactly what his stance will be when it comes to the rights of workers, here in Tennessee and across the country.

Responses to his nomination appear mixed. Politico called him an “independent voice on a panel known for extreme partisanship,” in regards to his tenure on the National Labor Relations Board. While he is identified as a conservative, Acosta has shown that he is willing to “break rank” to side with unions, and wrote a paper in 2010 “that advocated for a more regulatory, less adjudicatory NLRB.”

In contrast, The Nation claims that Acosta is just as dangerous to workers because, the writers, feel, “his comfort with [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][President] Trump’s plans to radically diminish worker protections could harm millions of American workers.” During his hearings, Acosta repeatedly refused to answer certain questions, and often fell back to some version of “I will defer to the President” when he did respond.

Are employees at risk?

The jury appears to be out on Acosta. Though less of a firebrand than Puzder, his evasiveness during the confirmation hearings leaves some people worried, because it’s unclear whether he would engage in the robust enforcement of employee rights. President Trump eliminated the Obama-era Fair Pay and Safe Workplaces rule, “which barred companies from receiving federal contracts if they had a history of violating wage, labor or workplace safety laws.” His executive order that requires any new regulation be accompanied by two regulatory cuts could put the revamping of the overtime rules in jeopardy, too.

Based on Acosta’s testimony, it is safe to assume that, had he been confirmed as Secretary at the time, he would not have pushed back on the President’s repeal of the Fair Pay and Safe Workplaces rule. However, Acosta has “admitted the Obama administration’s revision would ‘create a stress on the system… [but] The world has gotten more expensive, and salaries have changed since 2004. If you were to apply a straight inflation adjustment, I believe the figure if it were to be updated would be somewhere around $33,000, give or take,’” as per The Hill.

Cuts in funding to the DoL could hurt people seeking jobs

Most problematic for the DoL right now, however, is the current budget proposal. The White House released its 2018 budget a few weeks ago, calling for a 21% decrease in funding for the Department of Labor. The majority of these cuts would be made to federal grant programs. This includes:

  • Senior Community Service Employment Program (SCSEP) grants, which help low-income and/or unemployed seniors transition into unsubsidized jobs
  • Grant funding for the Bureau of International Labor Affairs
  • Job training and employment service formula grants
  • Occupational Safety and Health Administration’s training grants

The budget also aims to close centers run by the Job Corps for disadvantaged youth that the White House feels are doing “a poor job educating and preparing students for jobs.”

There is no way of knowing how Alexander Acosta will react to these cuts, though his record leads people to believe he would simply accept them on move on.

No matter who is the next Secretary of Labor, the Gilbert Firm will continue to advocate for employee rights. If you have been denied overtime or fair wages, or if your rights have been violated, we can help. To schedule consultation with an experienced Tennessee FLSA attorney like Michael Russell or Clint Scott, please call 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

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