Category: Labor and Employment

An amendment to the Tennessee Healthy Workplace Act was signed on April 23, 2019 by Governor Bill Lee. The amendment to the law extends “protection” from some claims to all employers within the state. Any employer in Tennessee that decides to adopt its own anti-bullying policy will be immune from being sued for negligent or intentional infliction of mental anguish that is caused by any abusive action taken by employees.

When the original law was passed in 2014, it only dealt with state and local government agencies. The designation employer in the law is now extended to all private employers in Tennessee.

What is covered under the act?

The act purports to protect employees from abusive conduct that could occur in the workplace. The abusive conduct specifically banned by the act includes the following:

• Physical conduct of a threatening nature
• Verbal or non-verbal threats
• Humiliation
• Intimidation
• Sabotaging the performance of an employee

What the law does not do

Unfortunately, by simply putting forth a piece of paper, it seems Tennessee has granted immunity from being suit.  In simple terms, the law has no enforcement under the law. That’s right—an employer is immune from a private legal claim if it merely has the policy in place.  Thus, in the long run, one might argue the law does more damage than it does good.

However, the amended law does not protect companies against claims of discrimination based on sex, race, religion, disability or other classifications protected under federal or Tennessee statute, either. Those rights already exist and should not be confused.

Employees protected in Tennessee workplaces

Employees are already protected from a host of incidents that can occur in a workplace because of retaliation, discrimination, and hostile actions. Tennessee employees are protected from any and all of the following:

• An employer cannot make assumptions or stereotypes to determine an employee’s career path
• An employer cannot undermine or sabotage an employee’s performance or authority to work because of any protected characteristics
• Employees are protected from any unwanted or unwelcome touching or any activity that can be labeled as near-touching
• Employees are protected from jokes or slurs that demean their race, religion, age, or disability
• Employees are protected from being exposed to inappropriate or explicit videos, images, calendars, posters, emails and other media

The state of Tennessee defines a hostile work environment as any environment where an employee is subjected to pervasive conduct or comments about their religion, age, sex, disability, pregnancy, ethnicity, veteran’s status or any other protected category. Sexual harassment and retaliation for whistleblowing are also considered causes of hostile work environments in Tennessee.

The changes to the Tennessee Healthy Workplace Act are not necessarily protective. On its face, the policy and publication is a good thing. But dig a little deeper and an abused employee will have no legal recourse apart from existing laws.  If you are working in a hostile environment, a Tennessee employment lawyer may be able to help. Call the Gilbert Firm at 888-996-9731, or fill out our contact form, and schedule your consultation with Justin Gilbert or Jonathan Bobbitt. The firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

Tennessee Representative Antonio Parkinson (D-Memphis) has filed a bill in the state assembly that follows the path taken by New York and California. The bill, HB 1546, is also known as the “Create a Respectful and Open Workplace for Natural Hair (CROWN) Act of 2020.” It proposes measures to prevent racial discrimination for protective hairstyles.

New York and California

The state of New York was actually the second state, following in the train of California, to forbid discrimination based on a person’s hairstyle. Governor Andrew Cuomo signed a bill on July 12, 2019 that made changes to the state’s civil rights law, clarifying that “traits historically associated with race,” including protective hairstyles and hair texture are included in its prohibition against racial discrimination. The law includes locks, braids, and twists in these protective hairstyles.

About a week and a half earlier on July 3, 2019, California enacted a similar law as the one just implemented in New York. The California law, referred to as the “Crown Act,” makes changes to the state’s Fair Employment and Housing Act, adding to the definition of race “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The California law, as New York’s, defines protective hairstyles as including those such as braids, twists, and locks.

The purpose behind these laws is to address the problem of restrictive grooming and dress codes that prohibit these hairstyles and as a result have a particular discriminatory impact on employees and applicants who are of African American descent.

The Tennessee bill

The proposed bill in Tennessee would prohibit discrimination against any person for his or her protective hairstyle or race. Again, the protective hairstyles in the Tennessee bill include, but are not limited to locks, twists, and braids.

In the bill, race is defined as ethnic background, ethnic group identification, ancestry, and cultural or physical characteristics connected with a particular race, including, but not restricted to protective hairstyles and hair texture.

If the bill passes and is signed into law, it would go into effect on July 1, 2020.

Concerns have existed for quite some time that hair could be a factor involved in racial discrimination against individuals. However, in late 2018, the issue gained attention across the nation when a New Jersey high school student, who was also a wrestler and wore dreadlocks, was told to cut his hair. The reason given by the referee of the match was that his hair was not compliant with league rules. As a result, the state of New Jersey, under the office of the Attorney General’s and its Civil Rights Division conducted an investigation about the incident and the potential for unfairness or bias in high school sports.

The proposed law in Tennessee along with the new laws in California and New York may serve as reminders to employers in those states to check their grooming and dress code policies to ensure none of them have a disparate impact on the protected category of race.

If you have suffered unlawful employment discrimination under federal law, Title VII of the Civil Rights Acts, or of other human rights laws in the state of Tennessee, or any other state, we may be able to help you. Call us today at 888.996.9731 to get in touch with Justin Gilbert or Jonathan Bobbitt at The Gilbert Firm, or complete our contact form to arrange a free consultation at one of our offices in Nashville, Memphis, Chattanooga, Jackson, or Knoxville.

 

 

In what was a much-anticipated vote held in the middle of June 2019, workers at the Tennessee Volkswagen plant voted against unionizing. The efforts of the United Auto Workers’ (UAW) to unionize a manufacturing plant of a foreign company in Tennessee failed narrowly in the vote, according to a report from Reuters.

The vote

The vote not to unionize was very narrow, with a count of 833 to 776 against the formation of a union at the plant. This is the second time in the previous five years that employees at the Volkswagen plant have voted down the opportunity to unionize.

A representative for the UAW said that the union hasn’t determined whether or not it will challenge the results of the vote or call for a third vote of the employees at the plant. The representative also made claims that Volkswagen engaged in intimidation tactics, threats, and played games with the employees, noting that the union will not abandon the employees who were in favor of unionizing.

The UAW has been working to unionize a foreign-run plant in the Southern portion of the United States for quite some time now. Why? The UAW claims that automakers have been taking advantage of the low wages paid at plants in the South. The UAW was hoping the vote would be a successful one in order to gain leverage when negotiating contracts with all automakers operating in the country.

Volkswagen’s response

The president of Volkswagen Chattanooga, Frank Fischer, said the following in a statement after the vote: “Our employees have spoken. Pending certification of the results… Volkswagen will respect the decision of the majority.”

This is actually a bigger deal than you might think. The country has seen a marked decrease in the number of unions, and many states – including Tennessee – have instituted “right to work” laws that limit the powers of existing unions, and make it difficult for new ones to take hold. The one thing that right to work laws cannot do, however, is allow employers to disregard labor laws or collective bargaining agreements, or engage in retaliation efforts against union employees.

Do you have a grievance to file with your union? If so, it’s in your best interest to utilize your union rep as well as an experienced Tennessee labor law attorney from the Gilbert Firm. Call us at 888-996-9731 or complete a contact form to schedule an appointment in Nashville, Chattanooga, Memphis, Jackson, or Knoxville.

 

 

In a new and shocking investigation, the New York Times spoke to several women who, over the past few years, suffered miscarriages or stillbirths after working physically demanding jobs. In most of these cases, the women had either requested less strenuous work or given their supervisors letters from their doctors recommending lighter duties or shorter shifts, which their supervisors ignored.

These kinds of refusals to accommodate the needs of pregnant women on the job – putting their health, their pregnancy, and their child at risk – is often and surprisingly legal. If these stories sounds incredible (and cruel) to you, it did to the New York Times as well, and we’re glad the publication brought these stories to light.

Currently, there is only one federal law that protects pregnant individuals in the workplace: the Pregnancy Discrimination Act of 1978 (PDA). The PDA clarifies that discrimination based on pregnancy is gender discrimination. It requires that employers treat pregnancy as they treat temporary disability. The same protections, benefits, and rights offered to workers who are temporarily disabled must be offered to employees who are pregnant.

However, the PDA states that a company only has to make accommodations for a pregnant employee if they are already doing so for other employees “similar in their ability or inability to work.” What this means that if a company isn’t making accommodations like shorter shifts or lightened loads for non-pregnant employees, it isn’t required to do so for pregnant employees, either.

To put it another way, as New York congressman Jerrold Nadler told the NYT, if companies “treat their non-pregnant employees terribly, they have every right to treat their pregnant employees terribly as well.”

The ADA Amendments Act of 2008

Thought the PDA is the only federal law specifically addressing the discrimination of pregnant workers, changes to other laws have helped enhance workers’ rights. The ADA Amendments Act of 2008 (ADAAA) went into effect in 2009. Per the U.S. Equal Employment Opportunity Commission (EEOC), “The law made a number of significant changes to the definition of ‘disability’ under the Americans with Disabilities Act (ADA),” allowing for a broader interpretation of the laws.

This broader interpretation also benefits pregnant workers. Per the EEOC:

“Changes to the definition of the term “disability” resulting from enactment of the ADA Amendments Act of 2008 (ADAAA) make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under the ADA.[11] Reasonable accommodations available to pregnant workers with impairments that constitute disabilities might include allowing a pregnant worker to take more frequent breaks, to keep a water bottle at a work station, or to use a stool; altering how job functions are performed; or providing a temporary assignment to a light duty position.”

Young vs. UPS

In 2015, the Supreme Court of the United States rendered a decision on Young vs. UPS which made it, in the words of the Harvard Business Review, “significantly more likely that pregnant women denied workplace accommodations will succeed in their legal claims against the employers who denied them.”

The case involves Peggy Young, a delivery driver for UPS. When she became pregnant in 2006, she was under strict order by her doctor to avoid lifting anything heavier than 20 lbs. in her first trimester and 10 lbs. in later trimesters. “UPS informed Young that she could not work because the company required drivers in her position to be able to lift parcels weighing up to 70 pounds. As a result, Young was placed on leave without pay and subsequently lost her employee medical coverage.”

However, UPS had a history of assisting other workers who could not lift more than 20 lbs., including driver who were injured, had lost their certifications, or were otherwise protected under the Americans with Disabilities Act. This was the basis of Ms. Young’s claim of discrimination.

The Court ultimately sided with Ms. Young, thought it rejected her argument that employers must accommodate all pregnant workers. Instead, the Court concluded that pregnant workers must be treated the same as nonpregnant workers who are similarly in their abilities to perform their jobs. (You can read Justice Breyer’s opinion in full here.)

If you believe you are being discriminated against because of your pregnancy, or that you or your baby were harmed due to discrimination, please call the Tennessee employment attorneys at The Gilbert Firm today. Our team fights tirelessly to ensure you receive the compensation and justice you’re owed – and deserve. Call us today at 888.996.9731, or fill out our contact form, and schedule your consultation with Jonathan Bobbitt or another member of our team. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

 

 

 

 

Going to the salon to get your nails done used to be considered a bit of a luxury. The cost of a manicure or pedicure has dropped drastically over the past couple of decades for various reasons. Some of those reasons include the use of new tools, the demand of the market – and the incredibly low wages paid to the employees of the salons throughout Tennessee and the rest of the country, according to a new report issued by UCLA at the end of November 2018.

Labor conditions in the nail salon industry

The UCLA Labor Center released a report late in November that details the labor conditions in the nail salon industry. The report, written in conjunction with the California Healthy Nail Salon Collaborative, discovered that 78% of all the nail salon employees in the industry are labeled as low-wage employees. This data excludes those who work in the industry as self-employed workers. The 78% rate is more than double the rate of the entire country (33%) for all of the industries.

UCLA said that this report is the first of its kind to study the working conditions of the nail salon industry across the country. The lead author of the report, Preeti Sharma, told MyNewsLA.com that “Full-time workers earn less than half of what workers earn in other sectors, and at times they are paid at a low flat rate rather than hourly.”

The report from UCLA also released the following statistics:

• 81% of employees are women
• 79% of employees are foreign-born
• 68% of nail salons have fewer than five employees

The misclassification of salon employees

The salon industry has a number of issues, including violations of overtime and minimum wage laws, being forced to work when sick, and the harassment and surveillance of employees, but misclassification is one of the most prominent.

Saba Waheed, the UCLA Labor Center Research Director, says that of all the nail salon workers in the country, 30% of them are classified as self-employed. This statistic is three times the average of the country. Waheed said that those who worked on the study worry that employees are being misclassified on purpose in an effort to skirt employment laws and protections afforded to employees.

Lisa Fu, director at the California Healthy Nail Salon Collaborative, believes “There is a lack of understanding of labor laws on the part of both employers and employees,” which contributes to the misclassification.

What is misclassification?

Misclassification means an employer has incorrectly categorized and employee, usually as an independent contractor. Some misclassification issues happen due to an honest mistake, but millions of workers are misclassified on purpose by their employers, in order for the employer to avoid overtime wages and state/federal taxes. Some of the most commonly misclassified workers include remote workers, restaurant employees, IT workers, and salon workers.

Recommendations from the report

The authors of the report provided recommendations for the salon industry, which is expected to grow at double the rate of other industries in the United States over the next decade. The report recommends the following for stakeholders within the nail salon industry:

• Guarantee protections in the workplace and enforcement of those protections
• Offer quality jobs for nail salon workers and labor protections
• Assure the safety and the health of all nail salon workers
• Offer support for good employers and high-road businesses

If your worker status has been misclassified, you may have been denied important labor protections, as well as overtime and back-pay. It’s important that you fight for the labor protection you deserve. The Gilbert Firm provides residents of Tennessee with honest and trusted representation in a variety of employment law areas. Call Clint Scott and our team of Tennessee wage and hour lawyers at 888.996.9731 to schedule a consultation or you can complete the contact us form on the website.

 

 

When your insurer calculates depreciation to determine how much you receive for the actual cash value of your claim, does it depreciate the value of the labor, the materials, or both? Answering this question is the one of the most frustrating elements of an insurance claim. We believe that an insurance claim should be paid in full – and that labor should not be depreciated when calculating actual cash value. Some insurance companies, however, have found a way to depreciate the value of labor through the single click of a mouse in an estimating program utilized by insurance companies across the country. And that single click could cost you thousands.

When you make a claim for property damage, you receive the actual cash value (ACV) of your loss up-front. The purpose of an ACV payment is indemnity, i.e., the amount of money it would take to place the policyholder back to where he or she was before the loss – no better and no worse. This is a different number from the replacement cost value (RCV). RCV might actually put an insured a little ahead, because it reimburses the policyholder for the full amount of the repairs, with new materials, once the work has been completed.

In a typical claim, an insurer will pay the ACV up front. ACV is calculated by subtracting depreciation from the RCV. Then, if you have a replacement cost policy, you can put in a claim to recover the depreciation once the work is completed.

The concept of subtracting depreciation to calculate ACV works something like this:

Let’s say you have a house with a 10-year-old roof that will cost $20,000 to replace. The lifetime of the roof is 20 years. There is a windstorm, and much of the roof is ripped off the house, necessitating a full replacement.

In our opinion, when making an ACV claim, the insurance company should pay:

• 100% of the cost to remove the old, damaged roof;
• The depreciated value of the 10-year-old shingles; and
• 100% of the labor costs associated with installing the new shingles.

So, utilizing the example above and assuming the cost of labor and materials are equal and that the appropriate depreciation of materials is a straight-line percentage based on age (which isn’t always the correct way to do it), the math should work like this: 100% of the labor costs associated with removing the old roof and installing a new one ($10,000) plus the depreciated value of the 10 year old shingles ($5,000), equals an ACV of $15,000. In comparison, if you depreciated both materials and labor, the ACV would be $10,000. Thus, with a single click of a mouse instructing the estimating software to depreciate labor (or non-materials, as it is often referred), an insurance company can quickly lower the ACV payment by a third. What’s worse, the estimates themselves do not reflect whether labor is being depreciated, making it practically impossible for a consumer to figure out if he or she is being treated fairly or not.

This is a bigger problem than you might realize

Over the last few years, there has been a trend across the country to ban the depreciation of labor when calculating ACV payments. However, courts in a few states still allow the practice. In Tennessee, we are fighting the practice of labor depreciation, and the Tennessee Supreme Court is currently reviewing a certified question about this very topic in one of our firm’s cases. The case is presently set for oral argument in October, and a decision can be expected in the following months. Meanwhile, many insurers across the State continue to depreciate labor when calculating actual cash value payments, effectively depriving insureds of the true value of their claims.

This is a really complicated issue, and we hope that the Tennessee Supreme Court rules in a fashion that is consistent with the principles of indemnity and outlaws the practice of labor depreciation. At the Gilbert Firm, we will continue to fight on behalf of policyholders in Tennessee and the other states in which we practice. If you believe that your insurance company has denied you fair payment on your claim, we want to help. To work with an insurance dispute attorney like Brandon McWherter, Clint Scott or Jonathan Bobbitt, please call 888.996.9731, or to fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

 

Employment law has come up a lot in the news lately, especially with all the firings and resignations going on in our nation’s capital. A lot of questions have come up over whether some of these firings have been legal, so this blog will delve into the details of what wrongful termination is, and what it isn’t.

Generally speaking, wrongful termination refers to when a person is unlawfully fired from a job. It’s important to note that what many people might think of “wrongful” firings aren’t actually illegal. Tennessee is an at-will employment state and an employee can be dismissed by an employer for a good reason, a bad reason or no reason at all, and without warning, as long as the reason is not illegal. So how do you know if your firing was illegal? These laws can be confusing, and an experienced employment law attorney can help you assess the details of your situation.

Your employer may be able to terminate your employment without having to establish just cause, this is true, but they cannot fire you on the basis of any of the following:

• Retaliation/Discrimination. Employers may not discriminate against employees on the basis of race, nationality, religion, sex, age, disability status, and more. They can’t discriminate against an employee for “whistleblowing,” or reporting/refusing to participate in illegal activities of their employer. And, in Tennessee, it’s illegal to discriminate/retaliate against an employee for exercising rights under the workers’ compensation laws. Keep in mind that there are many instances in which an employer is not allowed to take an adverse employment action against an employee in retaliation against the employee. If you suspect this has happened to you, you should seek legal advice quickly.
• Breach of Contract. If an employee has an Employment Contract or Agreement with their employer, it’s likely that they can’t be fired without just cause. Certainly the language of the contract will be critical to the wrongful termination analysis. Many times, even if the seemingly wrongful termination is allowed under the contract, the terms of the contract may set forth certain benefits that the employee is entitled to at dismissal.
• Illness. The Family and Medical Leave Act (FMLA) provides employees with up to 12 weeks unpaid leave to recover from illnesses or injuries. If a company fires an employee because of an illness while they are on FMLA leave or because they exercised leave under the FMLA, this could be in violation of the law.

These are just some of the exceptions to at-will employment. It’s always prudent to check with an attorney if you feel you may have been terminated unfairly.

If you believe you were unfairly let go from your job, you need to know your rights and options. Our wrongful termination attorneys can give you the experienced legal counsel you need. We serve our clients from offices in Nashville, Memphis, Jackson, Chattanooga, and Knoxville with representation that produces results. To schedule an appointment with an employer lawyer like Jonathan Bobbitt or Justin Gilbert, please call 888.996.9731, or to fill out our contact form.

 

Legislation that recently passed the Senate and expected to pass the House is drawing some criticism from workers’ rights advocates in Tennessee. HB 1978, sponsored by Senator Bo Watson, R-Hixson, declares people hired through online apps, like TaskRabbit or Handy, are independent contractors and not employees.

This would free companies from a number of legal requirements, like providing workers’ compensation insurance, paid vacation, access to group insurance, or obeying minimum wage laws. As the new “gig economy” industry grows bigger, so does the debate on whether workers should be classified as employees or contractors.

Advocates of the bill

Bill sponsor Senator Watson said the bill is intended to bring clarity to current employment laws. He said those laws “were developed decades ago and they don’t meet the reality of how the workforce now operates and is changing.” He likens these types of apps and workers to handymen or cleaning people taking out ads in newspapers for jobs, using a common practice and applying it to technology.

Other proponents of the bill point out that many gig-based workers only do so part-time, and don’t expect or need the protections of full-time employees.

One of the companies with an interest in the passing of the bill is the company Takl, a home services for hire app. Senate Commerce Committee Chairman Jack Johnson, R-Franklin, is an executive of Takl. Johnson is a bill cosponsor, and voted in favor of the bill but declared personal interest.

Critics of the bill

Critics of the bill point out that the bill could remove protections for employees, including unemployment insurance, health insurance, minimum wage requirements, and workers’ comp. And, in response to arguments that people take out ads in newspapers for gigs, critics of the bill also point out that newspapers don’t take a cut from those people.

Small business owners also have concerns about this type of legislation. They fear the classification of gig-based workers as independent contractors could drive down wages and profits for traditional businesses, forcing them out of business or to sub-contract in order to compete.

Others, like Senate Democratic Caucus Chairman Jeff Yarbro, point out that the bill has no requirement for a background check, unlike previous legislation for Uber and Lyft workers.

CNN reports, “Currently, the distinction between a contractor and an employee hinges on the idea of control. Telling a worker when and how to perform a job, providing training or supplies, monitoring their activity and determining the rate of pay are all factors that would support a finding that the worker is an employee.” Many of the terms outlined in HB 1978 would enable employers to do many of those things while still calling their workers independent contractors.

Do you believe you’re being wrongfully classified as an independent contractor and not receiving the benefits and protections you rightfully deserve? The Gilbert Firm wants to hear from you. Our experienced Tennessee FLSA violations attorneys, like Clint Scott, are ready to advocate for your rights. Call us today at 888.996.9731, or to fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

A 2015 study was conducted by Rand Corp. in conjunction with Harvard Medical School and the University of California, Los Angeles, of 3,066 U.S. workers. It reveals that almost 20 percent of U.S. workers say they are exposed to a hostile or threatening social environment on the job.

How can a hostile work environment be accurately defined? Many employees may attribute the rudeness of a coworker, lack of certain benefits or privileges, receiving little to no recognition for a job well done, etc. as constituting a hostile environment on the job. While many of these issues may contribute to a challenging and difficult environment at work, for the work environment to be considered hostile in the legal sense, it must meet certain criteria.

Creation of a hostile work environment

It only takes one individual on the job, whether it is a boss, a coworker, or even someone else, to initiate and propagate a hostile work environment. A person who creates such an environment will, by his or her behavior, communications, or actions in some way, make it extremely difficult or impossible for you to perform your job duties. In the legal sense, the behavior carried out by the harasser alters the terms and conditions, or reasonable expectations, you or other employees have to work in a comfortable setting.

Therefore, an employee who is irritating, obnoxious, or even rude is not necessarily creating a hostile work environment. Your coworker may talk loudly or demonstrate other irritating characteristics, but those actions do not fall under the criteria of producing a hostile environment. However, if a coworker tells explicit sexual jokes and distributes inappropriate sexual images to others in the workplace, that coworker can be guilty of sexual harassment, which creates a hostile work environment.

In addition to sexual harassment, a superior who disparages you about your gender, religion, age, or race can be guilty of creating a hostile work environment. This may be true even if the comments are said in a casual tone with a smile, or are presented as a joke. A telling sign that a hostile environment is present is when the individual fails to stop the berating after you have told him or her to stop.

That which may constitute a hostile work environment that may lead to a legal case includes, but isn’t limited to, the following:

• When the behavior or actions are discriminatory against a protected classification such as religion, race, age, or disability
• When the communication, behavior, or action reoccurs over a period of time and is not limited to one or two stray or inappropriate remarks that someone found irritating and annoying.
• A problem can become severe and pervasive if the behavior occurs around a worker and continues to occur over time; and if the behavior is not investigated and effectively addressed by the organization.
• The hostile actions, communication, or behavior must be serious enough to interfere with the employee’s ability to work. Also, if the action is severe enough to interfere with an employee’s career advancement, then a hostile work environment may exist.
• If the employer had, or should have had, knowledge of the behavior or actions of the offender and did nothing to stop it from continuing, that employer may be held liable for creating a hostile work environment.

Under Tennessee and federal law, an employer may be sued for harassment when that employer creates (or perhaps allows) a hostile work condition.

At the Gilbert Firm, we know how to fight intelligently and vigorously on your behalf if you have been the subject of harassment, discrimination, or a hostile work environment in Nashville, Chattanooga, Memphis, Jackson, Knoxville, or across other parts of Tennessee. We work diligently to hold employers accountable for the harassment of our clients. You can count on us to provide you with strong advocacy with the goal of helping you obtain the lost work benefits and any other compensation today you deserve. To set up a free consultation with an experienced Tennessee employment attorney such as Jonathan Bobbitt or Justin Gilbert, call us at 888.996.9731 or complete our contact form.

The U.S. Supreme Court on January 8, 2018 refused to hear a petition from DirecTV that would seek to overturn the U.S. Fourth Circuit’s decision regarding the joint employer test in connection with the Fair Labor Standards Act. Consequently, employers will continue to be responsible to various joint employer standards from different federal circuits.

The question seems simple: under the Fair Labor Standards Act (FLSA), is whomever is defined as an “employer” liable for providing minimum wage and overtime pay? When two potential joint employers exist, this is not always a simple question to answer. One reason is due to the fact that the law on this matter is not the same between different jurisdictions.

The parties in the recent Supreme Court case were hoping the Justices would resolve the issue and institute a uniform joint employer test nationwide. However, as stated, the Court declined to hear the case of Hall v DirecTV.

What was this case about?

The case concerned thousands of technicians who provided satellite system work for DirecTV customers across the nation, including installation and repair services. These technicians were designated and paid as independent contractors. The satellite-TV company contracted with various home and secondary service providers (Providers). Over time, DirecTV acquired some of these Providers. Others were not acquired and remained independent.

DirecTV utilized these Providers as middle managers between itself and the technicians. These Providers enforced and implemented DirecTV’s hiring criteria, utilized the company’s centralized work assignment system to relay scheduling decisions, and supervised and maintained work files on the technicians.

The allegations put forth by these technicians in their lawsuit against DirecTV and its Providers assert that they were incorrectly classified and treated as independent contractors rather than employees. In doing so, their lawsuit seeks to place joint liability on DirecTV and the Providers for minimum wage violations and unpaid overtime.

Ruling of the Fourth Circuit

The Fourth Circuit’s ruling explained the joint employment inquiry as involving a single foundational question: “whether two or more persons or entities are not completely disassociated with respect to a worker such that the persons or entities share, agree to allocate responsibility for, or otherwise codetermine – formally or informally, directly or indirectly – the essential terms and conditions of the worker’s employment.”

In determining the question of whether putative joint employers are “completely disassociated,” the panel pinpointed six non-exhaustive factors that courts should consider when analyzing this question. They are:

1. The putative joint employers, whether as a matter of practice or formally, share, jointly determine, or allocate the power to supervise, control, or direct the worker, whether directly or indirectly.
2. The putative joint employers, whether as a matter of practice or formally, share, jointly determine, or allocate the power to fire or hire the worker or change the conditions or terms of the worker’s employment – either through direct or indirect means.
3. The duration and degree of permanence in the relationship between the putative joint employers
4. One putative joint employer, whether through direct or indirect ownership, or shared management, controls, is controlled by, or operates under common control with the other putative joint employer
5. Whether the work is carried out on a premises controlled or owned by at least one of the putative joint employers, in connection with one another or independently
6. The putative joint employers, whether as a matter of practice or formally, share, determine, or allocate responsibility over roles generally carried out by an employer. This may include paying payroll taxes, providing workers’ comp insurance, handling payroll, or providing the tools, equipment, materials, or facilities required to fulfill the work

The Fourth Circuit narrowed its lens on the question of whether the two entities are completely disassociated. This completely disassociated test issued by the Fourth Circuit, as opposed to almost all other joint employment standards, focuses on the two entities and their relationship with each other rather than the relationship between the employee and the putative joint employers. According to the Court, the only way to precisely pinpoint the “joint” element of the joint employer doctrine is to analyze the relationship between the two entities.

As it typically does, the United States Supreme Court issued its decision declining a review of DirecTV’s joint employer case without an explanation as to its reasoning. Thus, employers are currently left to follow varying joint employer standards based on the applicable Circuit Court jurisdiction.

If you have been the victim of unfair employment or insurance practices, our team at Gilbert Firm can review your situation and explain your legal remedies going forward. Let’s discuss your complaint. Call us today at 888.996.9731 or send us an email through our contact form. Our Tennessee FLSA attorneys like Clint Scott serve clients across the state of Tennessee, including in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.