Category: Labor and Employment

In employment law, I represent employees of all levels, whether it’s an entry level position – all the way up to the CEO, in matters ranging from hostile environment or retaliation, to negotiating severance agreements for CEOs, or certain buyout programs that executives might need help with.

When most people hear the words “employment law,” they think of employees suing because their rights have been violated: by their bosses, by a corporation, even by the government. At the Gilbert Firm, we handle those types of complex cases every day. Sure, Tennessee employees trust us to protect them when they have been harassed or retaliated / discriminated against because of their gender, disability, race or because they have engaged in some sort of protected activity. Also, we are called on when employees have been denied overtime compensation, or they need assistance with their employment or severance contracts.

But, “employment law” really encompasses so much more. We also help employees become their own advocates by offering solid legal counsel on a number of issues before they reach the litigation stage. For example, executives and employees often come to us to review their compensation plans, employment contracts and/or severance packages. We provide skilled counsel to employees who may be buying into or perhaps exiting their particular business entity.

One of the other services the Gilbert Firm provides deals with contract interference or interference in a business relationship by third parties. This is often referred to as the tort of intentional interference. If you or your business enjoys a contractual or business relationship (or, even a prospective such relationship) and a third-party intentionally interferes with that contract or business relationship, you may have rights that would allow you to recover damages caused.

Employment law is a multi-faceted area of law; you want a law firm that understands every part of it. At the Gilbert Firm, we protect the rights of employees at every level who have been harmed by their fellow employees, their supervisors and/or by unsavory business practices. To learn more about what we do, or to schedule a consultation with an experienced Tennessee employment law attorney, like Jonathan Bobbitt, from our firm, please call 888.996.9731, or fill out this contact form. With offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, we’re always near when you need us the most.

Any lawyer will tell you (including all of us at the Gilbert Firm) that paralegals are the backbone of our practice. They work one-on-one with our clients, serve as our right-hand men and women, and help ensure that our clients have what they need, when they need it. On October 7, 2016, Michael Russell spoke at the 65th Annual Conference of NALS (the association for legal professionals) about the ever-changing areas of Employment Law. The presentation, which provided one hour of continuing education credit, offered an introduction to the basics of federal employment law, and reviewed some of the changes we have seen over the past few months.

The presentation was a success, and the interaction with the paralegals who attended was really a lot of fun. Michael handed out his booklet, “What Everyone Needs to Know about Employment Law,” to get the ball rolling.

Addressing changes to the law

The presentation covered some of the most important laws, statutes and regulations governing employers at the state and federal level, including the Title VII, the Americans with Disabilities Act and the Family Medical Leave Act, just to name a few.

When asked about speaking at the conference, Michael commented, “Paralegals and legal assistants are so important to the legal profession and to the administration of justice. It was a thrill for me to spend the afternoon with these outstanding professionals from across the country.”

The materials from the seminar are available by emailing Michael at mrussell@gilbertfirm.com.

If you have questions about your rights as an employee, or if you believe those rights have been violated, the Gilbert Firm is here to help. You can call us at 888.996.9731 or fill out our contact form to schedule your consultation with an experienced Tennessee employee rights attorney at our firm. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

At the very end of March, we talked about the gross disparity in pay between the U.S. Women’s National Team and the U.S. Men’s National Team, prompting the team to file an EEOC Charge of Discrimination against the U.S. Soccer Federation. The Women’s team claimed that they earned almost 25% less money than their male counterparts; the USSF disputed that number, saying it was closer to 2.2%. The battle has since ensued.

But the USWNT won itself another ally in late May, in the form of the U.S. Senate. While our Senators usually don’t agree on much, they “unanimously approved a non-binding resolution calling on the U.S. Soccer Federation to ‘immediately end gender pay inequity and to treat all athletes with the respect and dignity those athletes deserve,’” according to the Huffington Post (emphasis ours).

You can read the full text of the resolution, but in summary, it mentions Title IX, percentages of young girls and women who play sports (soccer in particular), the Equal Pay Act and the truth about the wage gap. It ends, very simply, like this:

“Resolved, That the Senate—

• urges the United States Soccer Federation to immediately end gender pay inequity and to treat all athletes with the respect and dignity those athletes deserve;
• supports an end to pay discrimination based on gender and the strengthening of equal pay protections; and
• instructs the Secretary of the Senate to submit a copy of this resolution to the United States Soccer Federation.”

The U.S. Senate can do nothing legally to force the USSF to pay women and men the same wages; it is a non-binding resolution, and the USSF is not under Congressional control. But that a governing body so often at odds with itself could come together and stand up for equal pay on behalf of women athletes is a strong sign of solidarity.

And we need that solidarity more than ever. In May alone, the news brought us stories of NJ Governor Chris Christie vetoing “a bill barring gender-based pay discrimination” under the pretense that it could hurt NJ businesses, male teachers in Pennsylvania claiming they are paid less than female teachers in the district (not all wage discrimination happens against women, after all), and reports that both the New York Times and the Washington Post paid female reporters less than they paid male reporters. (Maryland, at least, seems to be getting it right, as they broaden the Maryland Equal Pay Law to prohibit gender identity discrimination and demand further transparency when it comes to pay.)

The gender pay gap in this country needs to be addressed. If the Senate’s letter can convince business and lawmakers that the time to end discrimination is now, then we fully support that effort.

The Tennessee employee rights attorneys of the Gilbert Firm provide comprehensive representation for victims of discrimination across the state. If you believe your employer has violated the Equal Pay Act, or if you have been discriminated against in some way, we want to hear your story. To schedule a consultation with Justin Gilbert, Michael Russell or Jonathan Bobbitt, or any of our attorneys, please contact us or call 888.996.9731. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

Folks who read our blog regularly know that we tend to write about cases that may have a long-term effect on workers, policyholders and students; after all, that’s whom we represent in our practice. But we ran across an interesting case described in the Wall Street Journal, and it struck us just how difficult it is sometimes for workers to make ends meet.

The plaintiff in the case is Ms. Tammy Nutall-Pritchard, from Memphis. Ms. Nutall-Pritchard wanted to make a few extra dollars, and thought picking up a part-time job washing hair would be a good choice. But she’s not allowed by law to pick up that part-time job, because Tennessee requires all shampooers to have a license. And in order to get that license, “a would-be professional shampooer needs to undergo at least 300 hours of schooling, covering such topics as ‘hair and scalp massage,’ ‘hair and scalp care,’ ‘product knowledge,’ how to answer phones and schedule appointments, and, of course, shampooing” (emphasis ours).

Okay, fine. You need a license to do professionally what you likely do every day (or so) at home for free. Tennessee’s Board of Cosmetology wants to make sure that, if you’re going to work with the public, you know what to do and how to do it. After all, the Board claims it “receives many complaints, both written and oral. These complaints range from unlicensed individuals employed in a shop or school to – ‘bad haircuts, bad perms, bad colors, damaged nails and dissatisfied students.’” So they want to ensure people get what they pay for. It might seem a bit silly at first, but chemicals used in perms or relaxation have been linked to long-term damage, and unsanitary conditions in nail salons can lead to bacterial or fungal infections; the Board is right to keep strict tabs on cosmetology services, regardless of what they are.

But here’s the problem: there is no school in Tennessee for just shampooing. My. Nutall-Pritchard would be unable to obtain the 300 hours of practice necessary for a license, because no one offers such a thing. That means, in order to become a licensed shampooer, she would need to purse a full cosmetology degree. To do so, she has to attend cosmetology school and train for 1,500 hours, to the tune of $15,000 – or maybe more.

Why is Ms. Nutall-Pritchard suing?

The complaint, Nutall-Pritchard v. The Tennessee Board of Cosmetology and Barber Examiners, is a “civil rights lawsuit [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”][which] seeks to vindicate the right of Tennessee to pursue an honest living…. The plaintiff simply wishes to wash hair as a part time job but cannot because of Tennessee’s arbitrary, oppressive, discriminatory, and monopolistic requirement that a person must obtain a license before engaging in the business of washing hair. Washing hair presents no threat to the public. Most children can do it.”

Cheeky? A little. Valid? Perhaps.

Here’s why: if a state law is going to require that you obtain a license to pursue a particular career, then shouldn’t the state be required to provide that license? After all, if the state of Tennessee can require you have a license to drive, they need to supply a place where you can test for that license – right?

Aside from the common sense element of this case, though, is the use of the words “oppressive” and “discriminatory” in the complaint that really caught our eyes. Yes, the plaintiff’s attorney has filed a civil rights complaint – but this tangentially relates to what we do in our practice of the law as well, in that the state has put an impediment in the way of a potential worker that would prove to be an undue financial hardship on her – in essence, forcing her to undergo extensive training and perhaps take on substantial debt to obtain a license for a degree she does not want. Right now, the only way Ms. Nutall-Pritchard can legally wash another person’s hair for pocket money is to become a licensed cosmetologist. It seems safe to assume that a woman who is seeking part-time work for extra money does not have the funds to undergo this training, nor should she; after all, she only wants to shampoo some hair.

There’s no way of knowing exactly how this case will turn out. The court might find for the plaintiff, or it might not. Either way, it’s another reminder of how difficult it is for workers out there to get a fair shake sometimes.

At the Gilbert Firm, we understand that difficulty all too well. It is why our Tennessee employees’ rights attorneys work so hard to protect our clients. If you believe your rights have been violated, or if you feel you have been a victim of discrimination, you might have legal options available to you. We invite you to contact us to schedule an appointment with Justin Gilbert, Jonathan Bobbitt, Michael Russell, or any of our team members at our offices in Nashville, Chattanooga, Memphis or Jackson.

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On April 5, 2016, Presidential candidate Hillary Clinton said she would require employers “to review employee pay to ensure that women are being paid fairly,” according to the Washington Post. She did not mention how she would accomplish this, but she did say she wanted to “remove [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”][the] legal barriers that prevent some women from finding out what their male counterparts are paid.” If this sounds familiar, it is; Senator Clinton has supported legislation in the past to do just that. It is called the Paycheck Fairness Act, and it was introduced just over a year ago in the Senate.

It promptly went nowhere – for now.

Over the past few weeks, issues regarding wage discrimination and the gender pay gap have slowly but surely started gaining steam. The recent decision by the United States Women’s National Soccer Team to file an EEOC Charge of Discrimination has been applauded by people across the country (ourselves included) fighting for equal pay. We have seen sweeping reforms in California, where the Fair Pay Act demands justification for any discrepancies in the salaries of men and women who do “substantially similar” jobs, where minimum wage has been raised to $15 an hour (as it has in New York), and where the city of San Francisco “became the first city in the country to require employers to offer six weeks of fully paid leave for new parents.” These reforms may change the path of our country forever as more and more cities follow suit – or fight back.

Taking a closer look

As attorneys who fight on behalf of employees who have been hurt by discriminatory practices, we know full well the importance of these issues. The Paycheck Fairness Act was designed to amend the Equal Pay Act of 1963, just as the Lilly Ledbetter Fair Pay Act of 2009 was designed to address the statute of limitations in wage discrimination cases. The Paycheck Fairness Act would:

“limit when employers can pay differently to ‘bona fide factors, such as education, training, or experience.’ It would require the Equal Employment Opportunity Commission (EEOC) to collect data on compensation, hiring, termination, and promotion sorted by sex.

It would also prevent employers from retaliating against employees for inquiring about or disclosing wage information at a company — perhaps the main method employees have of discovering such a gap in the first place. And it would ‘make employers who violate sex discrimination prohibitions liable in a civil action for damages.’”

Regardless of who is elected, we hope all of the nominees will take a good, hard look at the gender wage gap in this country. Workers deserve to be compensated fairly and equally for the work that they do, and taking steps towards transparency could be what finally ends the gap.

At the Gilbert Firm, we represent Tennessee workers who have been unfairly compensated for their work. If you have been a victim of wage and/or gender discrimination, we want to help. To make an appointment with Michael Russell, Justin Gilbert or Jonathan Bobbitt, we invite you to contact us. With offices in Nashville, Chattanooga, Memphis and Jackson, you can always find an experienced Tennessee employee rights attorney when you need one the most.

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Two very recent cases shine some – but not complete – light on this question. With the evolution of the practice of law, contract attorneys are becoming more and more prevalent in our profession. Given the difficult job market, new law graduates are frequently left to pursue contract attorney positions in order to repay significant student loans. In addition, the proliferation of document intensive discovery, including electronically stored information, has led to the need for significant man hours spent on document review projects. These are frequently farmed out to contract attorneys.

This has led to many questions and significant litigation regarding whether contract attorneys fall within the “professional exemption” of the Fair Labor Standards Act. Two recent cases, Lola v. Skadden, Arps, 2015 U.S. App. LEXIS 12755 (2d Cir. July 23, 2015) and Henig v. Quin Emanuel, 2015 U.S. Dist. LEXIS 172823 (S.D.N.Y. December 30, 2015) are illustrative.

In Lola, the Second Circuit reviewed the trial court’s grant of a motion to dismiss. The Second Circuit relied heavily on how the state of North Carolina, which was the applicable law, defined the “practice of law.” After reviewing North Carolina law and the amount of restrictions that were alleged to be placed on the contract attorney, the Second Circuit reversed the trial court. In doing so it held:

The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever – he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law. We therefore vacate the judgment of the district court and remand from further proceedings consistent with this opinion.

Lola was decided on May 29, 2015. Approximately seven months later, the Southern District of New York addressed a similar case in Henig v. Quinn Emanuel. The Plaintiff in Henig was hired to review nearly 13,000 documents while working 57-60 workweeks. He was compensated a flat $35 per hour for all of this time. In Henig, the trial judge granted summary judgment in favor of the law firm. It distinguished Lola largely by noting that New York and North Carolina have different definitions for “practice of law.” Judge Abrams of the Southern District of New York also found that the Henig Plaintiff seemed to exercise more discretion than the Lola Plaintiff alleged.

It seems that the ultimate answer may come down to whether contract attorneys are more analogous to lawyers or paralegals? These cases do not answer the question definitively. They do give some guidance. It appears that these cases will turn on two issues: (1) how the applicable jurisdiction defines the “practice of law” and (2) the amount of discretion – or lack thereof – the contract attorneys receive on any given project.

This might be especially problematic for the employers of contract attorneys, as the same contract attorney might exercise more discretion on one document review project than on another. With that, we will conclude with the following rosy thoughts from Judge Abrams in the Henig case: “The history of the law, Oliver Wendell Holmes observed, ‘is the history of the moral development of the race.’ But practicing lawyers – especially junior attorneys at large firms – know that their jobs too often have less to do with the development of the human race or the law than the tasks that are necessarily repetitive in nature, modest in intellectual scope, and banal in character.”

To learn more about the Gilbert Firm’s services, please contact Tennessee wage and hour attorney Michael Russell, or contact the firm to reserve your consultation. We maintain offices in Nashville, Chattanooga, Memphis and Jackson.

A 2015 case out of the Court of Appeals for the Sixth Circuit denied a man’s claim for compensation under the Americans with Disabilities Act. Because we handle complex ADA claims for our clients throughout Tennessee, we paid attention to the case as it was moving through the courts, and it occurs to us that the average non-lawyer might not understand why the claim was denied. The plaintiff was born with spina bifida occulta, a birth defect that “results in a small separation or gap in one or more of the bones (vertebrae) of the spine.” While some people live their whole lives without any symptoms, Michael Arthur (the plaintiff) had some mobility issues, and underwent surgery in 2002 to correct the issue, having a few of his discs fused.

In 2003, Mr. Arthur took FMLA leave, citing problems with his back. He returned to work but asked for an accommodation, which he was granted. But in 2011, the company for which he worked laid a number of employees off through a reduction-in-force (RIF), and Mr. Arthur was one of them. He brought a lawsuit against the company upon hearing that another employee who was RIFed was offered a position in the manufacturing department – the same department where he used to work before he asked for reassignment. He lost the suit, appealed the decision and then lost the appeal.

But why?

It all comes down to evidence and following the letter of the law

In this particular case, both courts agreed that the person whose job it was to let Mr. Arthur go, his direct supervisor, was never informed that Mr. Arthur had a disability. There is no doubt that he is truly disabled, but as the supervisor was never told, it could not be a discrimination case. Furthermore, Mr. Arthur was the least senior employee in his department; thus, laying him off would be following proper protocols in RIF situations.

Another interesting element of this case is Mr. Arthur’s request for a different position. Under the ADA, an employer must accommodate a disabled employee, but only within reason: it does not always force employers to create new positions for that employee, or to move other employees around in their companies. Mr. Arthur requested to be transferred into another position, but that position was already taken by another employee. The Court found this request to be unreasonable, and therefore upheld the lower court’s decision that there had been no discrimination against the plaintiff.

In the end, what we hope you take from this is that if you have a disability, you do have options – but you cannot infringe upon the rights of your fellow employees any more than they can infringe upon yours. If your employer and your supervisor(s) are not aware of your condition – and it is within your rights not to tell them if you don’t want to – then they may not be found to have committed an act of discrimination under the ADA.

These types of cases can be challenging. You want an attorney who can handle the complexities of your individual case. At the Gilbert Firm, we proudly represent the rights of workers throughout Tennessee. Please contact us to speak Justin Gilbert or Jonathan Bobbitt, or to schedule an appointment with a dedicated Tennessee employment attorney at one of our offices in Nashville, Chattanooga, Memphis and Jackson

The business model of today’s world is far different than the ones of even a few years ago. Now, your average businesses might have its own “core” set of employees, but also work with an outside tech team, a series of contractors and a handful of people who are technically employed by another agency, but somehow answer to the Big Wigs in this company as well.

In a nutshell, these types of arrangements fall under the umbrella term of “joint employment.” To make it easier for employers – and workers – to understand everyone’s rights and responsibilities, the Department of Labor’s Wage and Hour Division (WHD) has issued a new set of guidelines that “will be helpful concerning joint employment under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, et seq., and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. 1801, et seq.3.”

How the guidance works

The first thing the new law does is more broadly describe the scope of joint employment. It also analyzes horizontal joint employment, where “there is typically an established or admitted employment relationship between the employee and each of the employers, and often the employee performs separate work or works separate hours for each employer. Thus, the focus of a horizontal joint employment analysis is the relationship between the two (or more) employers,” and vertical joint employment, where “an employee of one employer… is also, with regard to the work performed for the intermediary employer, economically dependent on another employer.”

The real life application of these types of employments play out all the time: the IT team that services all franchises of the same restaurant (horizontal) vs. the individual IT person who is hired by a staffing agency and put to work for Company A (vertical). While these examples are pretty easy to digest, not everyone’s employment status is so cut-and-dry. This is the reason why the DoL took on joint employment guidance in the first place – to ensure that workers, regardless of their type of joint employment, will be protected under the law.

What this means for workers

If it seems a bit complicated, that is because it is: being “employed” by two different companies or agencies leads to a lot of confusion. What the new laws do is make both employers (or however many there are) responsible for compliance with the FLSA and the MSPA. So if Company A is found to have violated the law in regards to overtime wages, Company B will also be held accountable for those violations. In essence, the changes force employers to more vigilant about their own behaviors and the behaviors of their partners.

This translates to good news for workers. Since FLSA and MSPA violations come with heavy fines and penalties, employees now have added assurances that A) their employers will be more alert to potential problems, and B) regardless of which employer violates the law, the workers will have recourse to move forward with a claim, as opposed to be shuffled back and forth because no one is quite sure who should be held accountable.

At the Gilbert Firm, we handle complex wage and hour claims so that Tennessee workers can protect themselves. To make an appointment with Michael Russell or Clint Scott, please contact us. The Firm maintains multiple offices in Nashville, Chattanooga, Memphis, or Jackson.

In our years advocating for employee rights, we have discovered that certain issues tend to come up more often than others. One of those issues is the Family and Medical Leave Act – namely, that many people do not quite understand the Act nor their rights under it. We wanted to take this opportunity to explain the basics of the Act, and to hopefully give you a better idea about what you are entitled to when you take leave under it.

The Family and Medical Leave Act, or FMLA, is a federal statute that allows employees to take up to 12 weeks’ worth of unpaid leave over a 12 month period for certain reasons, without fear that you will lose your job as a result. The US Department of Labor lists those reasons as:

• “The birth of a child and to care for the newborn child within one year of birth;
• The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
• To care for the employee’s spouse, child, or parent who has a serious health condition;
• A serious health condition that makes the employee unable to perform the essential functions of his or her job;
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on ‘covered active duty.’”

The Act also allows up to 26 “workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).”

Not all employees are eligible for FMLA. You must have worked for your current employer for at least 12 months, during which time you worked for at least 1,250 hours (on average, just under 30 hours per week – but there is no specific hours-per-week requirement). The company you work for has to have a minimum of 50 employees who are either employed at one location or within 75 miles of that location.

Your employer also has the right to require you to use up any accrued paid vacation, sick time or personal time you might have before you can apply for FMLA. He or she can also require that you submit proof of your need for FMLA, in the form of a doctor’s note (for example), and you have at least 15 days to secure that proof. In some cases, such as pregnancy, your employer may not ask you to supply it, but that does not mean you won’t need it to file.

“Can I get fired if I need more time than 12 weeks?”

While FMLA ensures that your job will be safe for those 12 weeks, it does not extend past that time. If you suffer a serious accident, for example, that will force you to spend at least six months in constant rehabilitation, and your employer can prove that he or she is suffering undue hardship to the business, your employer may have the right to terminate you after those 12 weeks are up. But, the American’s with Disabilities Act (ADA) may provide additional protection. It’s important to get legal assistance here.

There are some challenges involved with filing for leave under the FMLA; a skilled Tennessee employment law attorney at the Gilbert Firm can help you overcome them. If you believe your rights have been violated as a result of claiming FMLA, rely on us to help you. Please contact Jonathan Bobbitt or Justin Gilbert at the Firm to reserve a consultation at one of our offices in Nashville, Chattanooga, Memphis or Jackson.

The Worker Adjustment and Retraining Notification Act, commonly called the WARN Act, mandates that an employer give notice when a plant closing or mass layoff is about to take place. The WARN Act is administered at a federal level (though Tennessee has its own version as well; more on that to come) and requires that employers with at least 100 employees give notification 60 calendar days in advance if they plan on closing their facility.

Who is covered under the law?

Hourly and salaried workers, as well as managers and supervisors, are all covered under the WARN Act. So are “employees’ representatives, the local chief elected official, and the state dislocated worker unit.”

Who is exempt from the law?

The WARN Act does not apply to employees with fewer than 6 months of employment history (out of the last 12), not to employees who work an average of 20 hours or fewer each week. Government entities which public services at the federal, state and local levels are also exempt from the WARN Act.

How does Tennessee’s version of the WARN Act differ?

Tennessee’s version of the WARN Act applies to “any person, corporation or other entity that employs at least fifty (50) but not more than ninety-nine (99) full-time employees at a workplace located within this state, and that is not excluded or exempt from the requirements of the Employment Security Law,” when that employer plans on “permanently or indefinitely reduced by fifty (50) or more during any three-month period.”

In layman’s terms, that means that employers with between 50 and 99 employees are required to give 90 days’ notice of a mass layoff or closing. It applies to private companies as well as some public entities, provided they are not part of the government in some way.

Penalties for violating the WARN Act

One main difference between a state’s version of WARN and the federal law is the way penalties are assessed. If a company violates the Act while under federal jurisdiction, then the employer will be “subject to a civil penalty not to exceed $500 for each day of violation,” and “is liable to each affected employee for an amount equal to back pay and benefits for the period of violation up to 60 days,” according to the US Department of Labor. Whether the court chooses to award back pay for calendar days or work days varies from court to court.

Under Tennessee’s version, however, there is no guarantee an employee will see any back pay, as the state does not define any penalties for breaking the law. Because of this, having a skilled Tennessee employment law attorney on your side may be the difference between being compensated and being unable to pay your bills. If you believe your employer may have violated the WARN Act at a federal or state level, we encourage you to contact Justin Gilbert and Jonathan Bobbitt of Gilbert McWherter Scott Bobbitt PLC, and reserve a consultation time at one of the firm’s offices in Nashville, Chattanooga, Memphis, or Jackson.