Recent News

Nashville Attorney “Locked Up” for Charity

November 26th, 2017

Shuttleworth PLLC attorney, Clay Lutz, was arrested during the Muscular Dystrophy Association 2017 Lock Up to help raise funds for the Muscular Dystrophy Association.  Funds raised by Clay during his time in the slammer will help local residents with muscular dystrophy.

Shuttleworth PLLC Welcomes Clay Lutz to Our Nashville Office

October 6th, 2017

Clarence “Clay” Lutz has joined the Nashville office of Shuttleworth PLLC. Mr. Lutz is a native Nashvillian and a 1995 alumnus of the Nashville School of Law, where he served on the Student Honor Council. He received his license in 1995, and is currently admitted to practice before the U.S. Supreme Court, the Sixth Circuit and all of Tennessee’s Federal District and State Courts. He served as a Judicial Clerk for The Honorable William B. Cain before joining the Office of the Attorney General. Most recently, Clay served as an attorney and administrative judge in the Department of Health Care Finance and Administration for the State of Tennessee. His practice currently focuses in the areas of civil litigation, personal injury, and insurance defense.

A new name and a new location!

October 2nd, 2017

We are pleased to announce that we are now Shuttleworth PLLC.

Along with our new name, our Memphis office has a new address.

6077 Primacy Parkway, Suite 200
Memphis, TN 38119

Receptionist Position Available in Our Memphis Office

July 9th, 2017

Shuttleworth PLLC is in search of a Receptionist with excellent communication skills for our East Memphis office in the Poplar/Ridgeway area.  Duties include directing telephone calls for all three of our offices in Tennessee, greeting guests, accepting packages and distributing faxes.  Position will also be responsible for entering billable time into our financial system, opening and closing files, processing checks, and assisting attorneys and fellow staff members. Insured vehicle is required for this position.

Please submit résumé

  • Via email to careers@swlawpllc.com -OR-
  • Via fax to (901) 526-5056 Attention: Amy Braasch -OR-
  • Via US mail to:

Amy Braasch
Office and Accounting Manager
Shuttleworth PLLC
PO Box 3020
Memphis, TN 38173

Shuttleworth PLLC is an equal opportunity employer.

Billing Coordinator Position Available in Memphis

April 12th, 2017

The Memphis office of Shuttleworth PLLC is seeking a Billing Coordinator.  This position requires a minimum of 2 years of accounts payable, accounts receivable, and invoicing experience.  Knowledge of general ledger helpful.  Ability to handle multiple deadlines from multiple sources and communicate professionally with clients is a must.  Duties include processing daily deposits, processing firm accounts payable, preparing and submitting billing invoices to clients, enforcing billing procedures and client billing guidelines, collections, and reporting.  Other duties may be assigned.  Benefit package available.

Please send resumes to:
Amy Braasch
Shuttleworth PLLC
22 N. Front Street, Suite 850
Memphis, TN 38103

-OR-

Email to careers@swlawpllc.com
Fax to Attn: Amy Braasch at 901-526-5056

Shuttleworth PLLC is an equal opportunity employer.

Shuttleworth PLLC welcomes Alex Hall

June 14th, 2016

Alex HallOriginally from Nashville, Alex completed his undergraduate studies at the University of Georgia, where he graduated from the Terry College of Business with a concentration in Real Estate and Music Business.  He graduated from the University of Memphis Cecil C. Humphreys School of Law in 2015.

While attending law school, Alex served as President of the Student Bar Association and received the Dean’s Award for Distinguished Service to the law school.  He was a Staff Member of the University of Memphis Law Review and received the Law Review Award for Excellence in Legal Writing for Best Memorandum, the Dean’s Award for Excellence in Legal Methods I, and the CALI Award for highest grade in Litigation Drafting.  During his second and third years, Alex was awarded a Cecil C. Humphreys Law Fellowship and served as Research Assistant to Professor Lynda Wray Black and Dean Emeritus and Professor of Law Kevin Smith.  As a 3L he was selected to be a Pupil in the Leo Bearman, Sr. American Inn of Court.

Prior to joining the firm, Alex participated in the Los Angeles Dodgers Accelerator Program as a legal consultant for sports and technology startups.  Alex is a member of the Tennessee Bar Association, the Memphis Bar Association Young Lawyers Division, and the Sports Lawyers Association.

Shuttleworth PLLC Recognized By TLAP

April 14th, 2016

TLAP

Shuttleworth PLLC recently received the 2016 “Stephenson Todd Volunteer of the Year” Award from the Tennessee Lawyers Assistance Program at this year’s Camp TLAP retreat.  For the first time in TLAP’s history, the “Stephenson” was given to a group of people rather than to an individual.

The attorneys and staff of Shuttleworth PLLC were recognized for their long-standing support of TLAP, a confidential assistance program providing consultation, referral, intervention, and crisis counseling for lawyers, judges, bar applicants and law students who are struggling with substance abuse, stress or emotional health issues.  Ken Shuttleworth accepted the award on behalf of the firm.

Attorney General Opines Fantasy Sports Illegal In Tennessee

April 7th, 2016

 

By R. Joseph Leibovich
(901) 328-8269

 

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March Madness is over, and many are weeping over their busted brackets.  But could fantasy sports participants be facing something worse than picking a first round Villanova loss?  In Tennessee, theoretically, they could also face criminal charges.

Tennessee Attorney General Herbert Slatery on April 6 issued an opinion holding that all fantasy sports are illegal in the state.

According to the opinion:

Fantasy sports contests fall within the broad definition of “gambling” under Tennessee Code Annotated § 39-17-501(1). The participants pay an entry fee in order to win a prize. A portion of the fees comprise the pot of funds that are paid out to the winning participants. By proffering these entry fees, participants agree to risk something of value for a profit – a portion of the pot. Hence, the only remaining consideration is whether a participant’s ability to win a fantasy sports contest is to “any degree contingent on chance.” While participants may use skill to select players for their teams, winning a fantasy sports contest is contingent to some degree on chance. Namely, the participants do not control how selected athletes perform in actuality on a given day. Athletes’ performances are affected by many fortuitous factors – weather, facilities, referees, injuries, etc.

As a result:
…absent legislation specifically exempting fantasy sports contests from the definition of “gambling,” these contests constitute illegal gambling under Tennessee law. The General Assembly has the power to exclude from the definition of “gambling” any fantasy sports contest that is not prohibited by the state constitution or the federal constitution…

This opinion was requested by Tennessee House Minority Leader Craig Fitzhugh (D-Ripley), presumably to determine how to deal with online fantasy sites such as DraftKings and FanDuel.  Many states have addressed daily fantasy contests (which are the heart of those sites), but the Tennessee opinion is broader than many other opinions in that it applies to all fantasy sports (or, presumably, all those involving entry fees), including season long contests.  This could apply to sites such as ESPN, CBS and Yahoo as well as the daily contest sites.

An Attorney General opinion is not in itself law.  It is an interpretation.  However, such interpretations can be given weight by the courts or legislature.

And, it is possible this opinion could trigger the legislature to carve out some form of fantasy exemptions.

In the meantime, however, how should Tennessee employers deal with this?  Many offices condone March Madness brackets.  And, throughout the country, millions of people participate in various forms of fantasy sports.  Is it likely that the police are going to raid your office because of an NCAA pool?

Probably not.

But, this could create an uncomfortable issue for employers who have policies against illegal activities at work. Do you continue to condone or even encourage the brackets which can be fun and morale building?  Or do you take a hard line approach so as to be consistent in applying policy?

Some employers are already torn on this issue due to the perceived or actual productivity sink fantasy sports causes.  Some studies show that fantasy football costs companies as much as $16 billion a year in lost productivity. While others say the loss is certainly less than that and office fantasy sports can be a great team building experience.

In employment law, we often have to wear two hats – lawyer and Human Resources advisor. If strictly wearing the lawyer hat, I’d have to say that in Tennessee and other states with opinions or legislation declaring fantasy sports illegal, employers should absolutely not allow or condone participation in those activities at or through work.  Failure to ban such activities could lead to an argument that your anti-illegal activity policies are not consistently applied and could arguably lead to a disparate treatment claim at some point.

The Human Resources hat answer is probably a little more complicated.

For now, however, employers in Tennessee should at least be aware of the fact that the Attorney General has opined that fantasy sports  – all fantasy sports – are illegal in the state.  At least until the legislature acts.  And, I won’t lay odds on whether or not that will happen, as fantasy legislature contests are probably in the same bracket as fantasy sports.

The above article is meant to be a general discussion and is not intended to be legal advice.  For specific legal advice, contact an attorney.

 

DOL Issues Guidance On Joint Employment

January 20th, 2016

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By R. Joseph Leibovich
(901) 328-8269

The United States Department of Labor today issued an Administrator’s Interpretation (AI) as to when joint employment situations exist for purposes of cases under the Fair Labor Standards Act.  The DOL indicated it has issued these guidelines to protect workers in “fissured workplaces,” in which it is likely that an employee is working for multiple employers. This can often be the case is situations involving staffing companies.

The AI looks at so called “Horizontal” and “Vertical” joint employment situations.

Under the guidance, Horizontal Joint Employment “should be considered” when an individual is employed by technically separate entities that are actually related or overlapping. As an example, the AI points to a server who works for two different restaurants that are sufficiently associated. The AI lists non-exclusive factors to be analyzed to determine whether or not Horizontal Joint Employment exists.  These are:

–  Who owns the potential joint employers (i.e., does one employer own part or all of the other or do they have any common owners);

–  Do the potential joint employers have any overlapping officers, directors, executives, or managers;

– Do the potential joint employers share control over operations (e.g., hiring, firing, payroll, advertising, overhead costs);

–  Are the potential joint employers’ operations inter-mingled (for example, is there one administrative operation for both employers, or does the same person schedule and pay the employees regardless of which employer they work for);

– Does one potential joint employer supervise the work of the other;

– Do the potential joint employers share supervisory authority for the employee;

– Do the potential joint employers treat the employees as a pool of employees available to both of them;

– Do the potential joint employers share clients or customers; and

– Are there any agreements between the potential joint employers.

The AI notes that joint employment does not exist if the employers “are acting entirely independently of each other and are completely disassociated.”

In Vertical Joint Employment situations, one employer typically has made an arrangement to provide labor for another entity while handling some employer functions such as hiring and/or payroll. In determining whether or not an individual is an employee, the DOL will look at seven factors utilizing an “economic realities test”:

Directing, Controlling, or Supervising the Work Performed. To the extent that the work performed by the employee is controlled or supervised by the potential joint employer beyond a reasonable degree of contract performance oversight, such control suggests that the employee is economically dependent on the potential joint employer. The potential joint employer’s control can be indirect (for example, exercised through the intermediary employer) and still be sufficient to indicate economic dependence by the employee. See Torres-Lopez, 111 F.3d at 643 (“indirect control as well as direct control can demonstrate a joint employment relationship”) (citing pre-1997 MSPA regulation); Antenor, 88 F.3d at 932, 934; 29 C.F.R. 500.20(h)(5)(iv). Additionally, the potential joint employer need not exercise more control than, or the same control as, the intermediary employer to exercise sufficient control to indicate economic dependence by the employee.

Controlling Employment Conditions. To the extent that the potential joint employer has the power to hire or fire the employee, modify employment conditions, or determine the rate or method of pay, such control indicates that the employee is economically dependent on the potential joint employer. Again, the potential joint employer may exercise such control indirectly and need not exclusively exercise such control for there to be an indication of joint employment.

Permanency and Duration of Relationship. An indefinite, permanent, full-time, or long-term relationship by the employee with the potential joint employer suggests economic dependence. This factor should be considered in the context of the particular industry at issue. For example, if the work in the industry is by its nature seasonal, intermittent, or part-time, such industry condition should be considered when analyzing the permanency and duration of the employee’s relationship with the potential joint employer.

Repetitive and Rote Nature of Work. To the extent that the employee’s work for the potential joint employer is repetitive and rote, is relatively unskilled, and/or requires little or no training, those facts indicate that the employee is economically dependent on the potential joint employer.

Integral to Business. If the employee’s work is an integral part of the potential joint employer’s business, that fact indicates that the employee is economically dependent on the potential joint employer. Whether the work is integral to the employer’s business has long been a hallmark of determining whether an employment relationship exists as a matter of economic reality.

Work Performed on Premises. The employee’s performance of the work on premises owned or controlled by the potential joint employer indicates that the employee is economically dependent on the potential joint employer. The potential joint employer’s leasing as opposed to owning the premises where the work is performed is immaterial because the potential joint employer, as the lessee, controls the premises.

Performing Administrative Functions Commonly Performed by Employers. To the extent that the potential joint employer performs administrative functions for the employee, such as handling payroll, providing workers’ compensation insurance, providing necessary facilities and safety equipment, housing, or transportation, or providing tools and materials required for the work, those facts indicate economic dependence by the employee on the potential joint employer.

The joint employer issue is a thorny one, and the AI could subject entities to scrutiny by the Department of Labor when it seeks to enforce wage and hour laws. Potential joint employers – particularly companies that utilize temporary workers from an agency – should be aware of this potential liability, and should make sure that the employees working for their benefit are being paid as required by law.  Even if that pay is coming from a different company.

Firm Wins Case For Financial Institution

January 8th, 2016

lWolf

Shuttleworth PLLC attorney Lane Wolfenbarger recently obtained a judgment for one of the firm’s banking and financial law clients.  In that matter, a post-foreclosure collection case in the Circuit Court of Grainger County, Mr. Wolfenbarger was able to show that a borrower had defaulted on its obligations in which the bank had a valid security interest.

The Court not only awarded a judgment in the client’s favor in the amount of $59,701.45, but also granted the client possession of and the right to sell any and all property covered by and/or subject to all UCC Financing Statements the parties had previously executed.

Summary Judgment Decision On Premises Liability Upheld

January 6th, 2016

Shuttleworth PLLC attorneys Lane Wolfenbarger and Scott Hickerson recently obtained a summary judgment ruling in a premises liability matter involving a fall on a client’s property.  On appeal, the Tennessee Court of Appeals upheld the judgment finding that the defendant had negated essential elements of the plaintiffs’ claims by showing that the plaintiffs could not identify the object that caused the fall, and thus could not establish that the defendant caused the dangerous condition of which the plaintiffs complained or that the defendant had actual or constructive notice that the condition existed long enough for it to be discovered by proper diligence.

The Court of Appeals further found that while the defendant might be responsible for a myriad of conditions throughout its business, the plaintiffs could not establish that any of those conditions caused the fall without identifying the object responsible, and that without any additional evidence concerning the identity of the object, the trial court did not err in granting the motion for summary judgment under Tenn. Code Ann. § 20-16-101 because the evidence was insufficient to establish the causation element of plaintiff’s claim.

Willis v. McDonald’s Rests. of Tenn., Inc., 2015 Tenn. App. LEXIS 987 (Tenn. Ct. App. Dec. 23, 2015).

Leibovich Moderates ADR Panel

December 7th, 2015

Joe LeibovichShuttleworth PLLC member Joe Leibovich on December 5 served as moderator on a panel on the United States District Court for the Western District of Tennessee’s Alternative Dispute Resolution Plan.  United States Magistrate Judge Diane Vescovo along with Allen Blair  of Blair Mediation and Billy Ryan, partner with Donati Law Firm, also spoke on the panel.  The panel discussion was part of a day long continuing legal education seminar put together by the Memphis Bar Association’s Labor and Employment section.  The annual year-end seminar provides a comprehensive review of important developments in labor and employment law on the local and national levels.

The ADR panel discussed the history, procedures, and success rate of the Western District’s ADR plan that went into effect in September 2014.  The plan calls for mandatory mediation in most civil cases.  Under the plan, mediation should occur within 12 weeks of the Scheduling Conference in cases.

Joe is a Rule 31 listed general civil mediator in Tennessee, and serves as a mediator on the Western District’s ADR panel.  He will serve as vice-president of the Memphis Bar Association’s Labor and Employment section beginning in January.

Clerical Support Staff needed – Nashville Office

November 18th, 2015

Shuttleworth PLLC* is currently seeking a full-time, highly organized clerical support staff member to assist our attorneys and paralegal in our Nashville office.  Duties include:

  • Typing/transcription
  • Mail processing, bank deposits, time entry and client invoice processing
  • Courthouse filing and other errands**
  • Copying, scanning, faxing and filing (including use of case management software)
  • Calendaring and making travel arrangements
  • Other clerical duties as needed

Law firm experience very helpful but not required.  If you enjoy working as a member of a team, please send your resume to careers@swlawpllc.com, fax to Amy Braasch at 901-526-5056 or mail to:

Amy Braasch
Office and Accounting Manager
Shuttleworth PLLC
PO Box 3020
Memphis, TN 38173

*Shuttleworth PLLC is an equal opportunity employer

**Vehicle and insurance required

Shellie Handelsman joins Shuttleworth PLLC’ Nashville Office

October 19th, 2015

Shellie Handelsman is an attorney in the areas of civil litigation and estate planning. Shellie earned her law degree cum laude from Belmont University College of Law, where she was a founding member of both the Belmont Law Review and Board of Advocates and participated in the Willem C. Vis International Commercial Arbitration Moot, Belmont University College of Law’s American Inn of Court, the Entertainment Law Society, the Legal Aid Society, and the Women’s Law Student Organization.JEL30893-Handelsman, Michelle

Shellie has previously worked as an Associate Attorney with the Law Office of John Cobb Rochford; an Unemployment Appeals Hearing Officer for the Tennessee Department of Labor Appeals Tribunal; a Research Assistant to the Honorable Alberto Gonzales; and as an intern for the Nashville Predators, the Volunteer Lawyers and Professionals for the Arts, the Everhart Law Firm, and the Law Offices of George B. Handelsman.

Originally from Pittsburgh, Pennsylvania, Shellie received her undergraduate degree summa cum laude from Berklee College of Music in Boston, Massachusetts.

Shellie is licensed to practice law in Tennessee, Pennsylvania, and the United States District Court for the Middle District of Tennessee.

She is a member of the Tennessee Bar Association (including the Entertainment and Sports Law Section and the Young Lawyers Division), the Nashville Bar Association (including the Entertainment, Sports & Media Committee and the Young Lawyers Division), the American Bar Association, the Tennessee Lawyers’ Association for Women, the Lawyers’ Association for Women, and the Pennsylvania Bar Association.

In her spare time, Shellie plays softball on several teams (including the Nashville Bar Association’s Lawyers’ League); sings in the Vox Grata choir; and spends time with her golden retriever, Dakota.

Welcome aboard, Shellie!

IOLTA Grant Review Update

October 1st, 2015

bWilliamsReprinted with Permission.

This originally appeared in the Tennessee Defense Lawyers Association’s publication, The Ledger (Issue 1, Volume 1)

IOLTA Grant Review Update by Bruce Williams, Member – Shuttleworth PLLC

The IOLTA (Interest On Lawyers’ Trust Accounts) program was established by the Tennessee Supreme Court in 1984, and the responsibility for its administration was assigned to the Tennessee Bar Foundation. The purpose of the program is to raise funds to be distributed, in the form of grants, to organizations in Tennessee that provide direct legal services to the indigent and to organizations that seek to improve the administration of justice. IOLTA has granted over $20,390,060 to providers of these services in the state.

TDLA selects one of its members to serve on the Tennessee Bar Foundation’s Grant Review Committee, which assesses the merits of those various grant applications for awards. The Committee members are assigned individual responsibility for investigating and vetting up to three applications. Each Member reports to the full Committee at its annual meeting each November. The Committee then recommends awards to the Foundation’s Board of Trustees for final decision.

For 2015, the Committee proposed awards totaling $465,825 to providers of direct legal services such as The Legal Aid Society of Middle Tennessee and the Cumberlands and Memphis Area Legal Services. In addition, grants were made totaling much less to organizations that seek to improve the administration of justice, such as domestic violence prevention organizations and Tennessee CASA Association. The TBF Board of Trustees adopted the committee’s recommendations as proposed.

We resume our work in October, vetting applications for calendar year 2016. This process is time well spent working with top lawyers and judges from across the state. I appreciate the opportunity to serve TDLA in this role.

IOLTA Grant Update Bruce Williams

Edward Curry arrested to benefit Muscular Dystrophy Research

September 16th, 2015

Shuttleworth PLLC member, Edward I. Curry, was arrested this morning to help raise funds for the Muscular Dystrophy Association. Although his time in jail was brief, he is continuing to raise money towards:

  • Funding treatments and cures;
  • Providing life-enhancing programs like state-of-the-art clinics and support groups; and
  • Sending kids with muscle disease to MDA summer camp, where they’ll enjoy “the best week of the year,” having fun while gaining confidence and independence.

Here are some pictures from Ed’s experience:Watch movie online The Transporter Refueled (2015)

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And if you would like to contribute to the cause, you can click here: Ed Curry Fundraising Page

NLRB Decision Could Create Significant Issues For Franchisors

August 31st, 2015

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By R. Joseph Leibovich
(901) 328-8269

The National Labor Relations Board (“NLRB”) has issued a ruling that could have a profound impact on franchisors throughout the nation.  The NLRB in a case involving Browning-Ferris Industries of California (“BFI”) issued a 3-2 decision along party lines that expands the concept of who is a “joint employee”.  The decision stated:

The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may “share” control over terms and conditions of employment or “codetermine” them, as the Board and the courts have done in the past.

In applying this test, the Board found that BFI was a joint employer with a company that it contract with to provide workers at a sorting facility.

Many believe this decision will also be applied to franchisors/franchisees.  This is significant in the area of potential unionization efforts.  For example, say Tasty World, Inc. (a fictional company) is a national fast food franchisor with franchisees across the country.  One is operated in Peoria, Illinois by John Doe Enterprises, Inc.  In this hypothetical, a union campaign to organize the workers at the Peoria location based on the issue of pay in excess of the minimum wage.  The union succeeds.  Now, John Doe Enterprises, Inc. must collectively bargain with the union.  But in addition to that, under the BFI decision, Tasty World, Inc. would also be drawn into the collective bargaining process.  This is a situation that many franchisors are not happy with.

In addition to the collective bargaining issue, the BFI decision could lead to franchisors being liable for potential unfair labor practices committed by the franchisee, even if the national franchisor has no actual knowledge of these alleged violations. Using the same hypothetical, if John Doe Enterprises, Inc. improperly threatened potential bargaining unit employees during the unionization effort, Tasty World may face liability even if it wasn’t aware of the threats or, for that matter, of the union campaign at all.

Business groups are vocally critical of this decision and its potential impact on franchisors.  Furthermore, this decision could potentially lead franchisors to reconsider the entire franchisor/franchisee model.  It will be interesting to see how courts apply the joint employer definition in labor relations issues, and to see if or how franchisors adjust their business based on the potential impact of the decision.

Some states, including Tennessee, have enacted statutes that specifically state that employees of a franchisee are not employees of a franchisor.  For example, a recently enacted Tennessee law states “Notwithstanding any voluntary agreement entered into between the United States department of labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose.” (Tenn. Code Ann. 50-1-208).

For issues that come under the NLRB’s purview, however, these state laws will likely not provide insulation from the Board’s decision.

EEOC Rules Sexual Orientation Discrimination Prohibited

July 21st, 2015

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By R. Joseph Leibovich
(901) 328-8269

Employers cannot discriminate against employees on the basis of sexual orientation, according to a ruling by the Equal Employment Opportunity Commission (EEOC).  The question is, will this ruling ultimately persuade federal courts to agree?

No federal law currently explicitly prohibits employment discrimination on the basis of sexual orientation.  Several states do have such laws.

The case in question involved a federal air traffic controller who claimed he was denied a permanent position, in part, because he is gay.  In a 3-2 opinion, the Commission held that discrimination on the basis of sexual orientation because it is gender based discrimination, which is illegal under Title VII of the Civil Rights Act of 1964.

In coming to this conclusion, the Commission noted that sexual orientation discrimination directly relates to gender.  The opinion stated

For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk.  The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action.

In addition to this, the Opinion applied cases involving race discrimination to note that discrimination based on sexual orientation was “associational” discrimination.  That is, discrimination based on associating with an individual who is in a protected class.  In addition, the Commission stated that sexual orientation discrimination can be based on gender stereotypes, and is therefore illegal.

The EEOC’s decision only directly applies to federal employees.  However, federal courts do give deference to the Commission’s interpretation of Title VII.  Certainly, all the federal circuits could either accept or reject the EEOC’s interpretation.   Any courts that disagree with the Commission decision could find that had Congress intended to provide protection for sexual orientation in Title VII, it would have explicitly done so.

The likely result of this will be a split in the federal circuits, which would probably lead to the Supreme Court having the final say.  Of course, new legislation could moot this issue one way or the other.

Until this issue is clarified legislatively or by the Supreme Court, private employers covered by Title VII – those with 15 or more employees – should be aware that the EEOC’s decision has put sexual orientation discrimination on the table, and the agency will likely accept charges based on such alleged discrimination.

Now may be a good time to review policies and training to attempt to minimize potential exposure for the new charges and litigation that are almost certain to ensue.

The Shuttleworth PLLC Nashville office has moved

July 13th, 2015

Our new Nashville office address is:

Shuttleworth PLLC
L&C Tower
401 Church Street, Suite 2700
Nashville, TN 37219

The phone and fax number remains the same: Office: 615-833-3390 / Fax: 615-833-3767

Here is a great article on our move from the Nashville Post written by J.R. Lind.Watch movie online The Transporter Refueled (2015)

The Memphis and Knoxville office addresses have not changed.

Kenneth R. Shuttleworth Recognized by TBA as Senior Counselor

July 10th, 2015

Ken Shuttleworth, along with 15 other Memphis attorneys, has been recognized by the Tennessee Bar Association as a Senior Counselor.

According to the Press Release:

The designation of “Senior Counselor” is given to Tennessee lawyers who complete 50 years of law practice or attain the age of 75, and are active members of the TBA. The recognition expresses appreciation for the lawyer’s contributions to the legal profession and loyalty.

Congratulations, Ken!

The Memphis lawyers among those inducted as Senior Counselors were:

  • Walter Lee Bailey, Attorney at Law
  • Terese B. Deboo
  • Jack V. Delany
  • Joe McDaniel Duncan, Burch, Porter & Johnson
  • Thomas Ross Dyer, Wyatt, Tarrant & Combs
  • Thomas Francis Jackson, Attorney at Law
  • Reva Mark Kriegel
  • Allen Taylor Malone, Burch, Porter & Johnson
  • Lee Louis Piovarcy, Martin, Tate, Morrow & Marston
  • Julia S. Sayle, Sayle & Sayle Attorneys
  • Jerry Alan Schatz, Attorney at Law
  • Kenneth Robert Shuttleworth, Shuttleworth PLLC
  • Frank Lee Watson, Baker Donelson
  • Jocelyn Dan Wurzburg, Mediation Services
  • Thomas Dunlevy Yeaglin, Attorney at Law
  • Edward Reuben Young, Baker Donelson

 

Supreme Court Rules Religious Accommodation Does Not Require Actual Knowledge By Employers

June 1st, 2015

By R. Joseph Leibovich
(901) 328-8269

The United States Supreme Court on June 1 issued a ruling on religious accommodations under Title VII of the Civil Rights Act of 1964 that should effect how employers make hiring decisions.

In EEOC v. Abercrombie & Fitch Stores, the clothing store refused to hire Samantha Elauf, a practicing Muslim.  At the time she applied for a position she was wearing a head scarf as mandated by her religion.  The individual interviewing her was concerned this violated Abercrombie & Fitch’s “Look” policy, that forbids caps.

Although no one asked Ms. Elauf what her religion was, the interviewer told her superiors that she felt the scarf was likely due to religious reasons.  She was told that the scarf would violate the Look policy, and she was told not to hire Ms. Elauf.

The EEOC sued Abercrombie & Fitch alleging religious discrimination against Ms. Elauf, and the agency won on summary judgment.  The Tenth Circuit reversed, holding that an employer cannot be liable for failing to provide a religious accommodation if it has no actual knowledge of the need for one.

The Supreme Court reversed the Tenth Circuit in an 8-1 opinion written by Justice Scalia.  The opinion held that actual knowledge is not required, and  “Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

Therefore, a “neutral” policy can lead to a disparate-treatment claim when an employer decides not to hire a person because of potential religious accommodations.  As the Court explained,”…the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

Employers need to realize that merely avoiding asking someone’s religion will not shield them from liability if they are, indeed, refusing to hire a person to avoid a religious accommodation.  In short, a neutral policy and claiming ignorance of an applicant’s religion will not protect employers if they decide not to hire someone because of a perceived religious accommodation, even if the employer technically does not know for sure that the individual is even a member of that religion.  The courts will be analyzing an employer’s intent, and not it’s knowledge, and that can make things very interesting.

 

Michael G. Derrick appointed to Tennessee Lawyers Assistance Program

May 18th, 2015

Michael G. Derrick, member of Shuttleworth PLLC has been appointed by the Tennessee Supreme Court to serve as a Commissioner on the Tennessee Lawyers Assistance Program .

The Tennessee Lawyers Assistance Program (“TLAP”) was established by order of the Tennessee Supreme Court in 1999 to provide consultation, referral, intervention, and crisis counseling for lawyers, judges, bar applicants and law students who are struggling with substance abuse, stress or emotional health issues. TLAP’s work contributes to the protection of the public and the improvement of the integrity and reputation of the legal profession.

Mike’s three year term on the Commission begins June 1, 2015.

Supreme Court Allows Judicial Review For EEOC Conciliation Efforts

May 1st, 2015

By Joe Leibovich
(901) 328-8269

The Supreme Court in a unanimous decision this week struck a blow to the Equal Employment Opportunity Commission’s ability to file lawsuits against employers without trying in good faith to work out the issues first.

The EEOC is the federal agency that enforces the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964.  Under Title VII, if the EEOC investigates a charge of discrimination and finds reasonable cause to pursue it, the agency must make efforts to remedy the alleged discrimination through an informal conciliation process prior to filing a lawsuit in federal court.

In Mach Mining, LLC v. EEOC, a woman claimed she had not been hired as a coal miner due to her gender.  She filed a charge with the EEOC, and the agency determined that the employer had discriminated against the individual and women in general.  The EEOC did send a letter to the company and the complainant inviting them to conciliate.  The record does not indicate what happened next, but about a year later the EEOC advised Mach Mining that conciliation efforts had been attempted and were unsuccessful, and the EEOC filed suit.

Mach Mining contended that the EEOC had not properly attempted conciliation efforts as required by Title VII.  The trial court requested the opportunity to review the efforts to conciliate. The EEOC was allowed to take up an immediate appeal as to whether or not judicial review is proper.  The Seventh Circuit held it was not.  The Supreme Court, however, disagreed.

Justice Kagen’s opinion holds that a court can review the EEOC’s conciliation efforts.  She stated “Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result.”

The opinion also set forth the level of review that is appropriate, and did so narrowly.  The Court had to take into account the fact that conciliation efforts are protected by confidentiality.  Thus, the Court held that:

1.  The EEOC must inform the employer about the specific allegation, such as through a “Reasonable Cause” letter;

2.  The Notice must describe what the employer did and which employees (or classes of employees) have suffered as a result; and

3;  The EEOC must try to engage the employer in some form of discussion in an effort to give the employer a chance to remedy the alleged discriminatory practice.

The opinion states that a court should not go beyond this bare bones review to determine whether or not the EEOC complied with its conciliation obligations.

The Mach Mining decision is helpful to employers as it should afford them a genuine opportunity to address alleged discriminatory practices prior to the EEOC filing a lawsuit against them.  Nothing in this opinion affects an individual’s right to file a suit after receiving a Dismissal and Notice of Rights letter from the EEOC.  So, although this opinion only applies in certain Title VII lawsuits, it is one that can help limit lawsuits by the EEOC where an employer has truly not been given the opportunity to remedy a problem.

Interestingly in light of this week’s grand opening of the Bass Pro Shop in the Pyramid in Downtown Memphis, this was an issue in a lawsuit by the EEOC against that company.  In 2011, the EEOC filed a lawsuit against Bass Pro alleging race discrimination.  In that case, Bass Pro argued that the lawsuit should be dismissed as it claimed the EEOC did not give it a proper opportunity to conciliate the case.  A federal judge in Texas ultimately did review the conciliation efforts and determined that the EEOC had not acted unreasonably or arbitrarily, and, therefore the court refused to dismiss the lawsuit. The issue is now on appeal to the Fifth Circuit.

Employees Given New Cause Of Action For “Guns In Trunks”

April 23rd, 2015

 

By R. Joseph Leibovich
(901) 328-8269

Tennessee Governor Bill Haslam this week signed into law a “clarification” of the state’s so called “Guns In Trunks” Law.

The original law, passed in 2013 (Tenn. Code Ann. 39-17-1313) gave individuals with a carry permit the right to store their handguns in their cars on any parking lot they were entitled to be on, including their employer’s.

An Attorney General’s opinion stated that while the law legally allowed permit holders to store their guns, nothing in the law prohibited employers for firing individuals who did so in violation of company policy.

This week, Governor Haslam signed Tenn Code Ann 50-1-312, which, in part states “No employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearm ammunition in an employer parking area…”

The law does specifically state that an employee bringing a cause of action under this statute has the burden of proof of showing that adverse employment action was based solely on the employee’s possession or transportation of a handgun or ammunition.

The “solely” standard is often a difficult one for a plaintiff to meet, but employers do need to be cognizant of this new law and be sure that terminations or other adverse actions are for articulable, genuine reasons other than an employee’s lawful storage of a weapon in their car.Watch movie online The Transporter Refueled (2015)

Tennessee employers should review their handbooks and potentially tweak any weapons policies they may have in place.

The new law goes into effect July 1, 2015.

Photo by http://flickr.com/photos/glasgows/ (http://flickr.com/photos/glasgows/432945997/) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

 

EEOC Issue Proposed Rules on Employer Wellness Programs

April 20th, 2015

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By R. Joseph Leibovich
(901) 328-8269

The EEOC today published a Notice of Proposed Rulemaking regarding employer wellness programs and the Americans With Disabilities Act.

Many employers have started instituting wellness programs aimed at a healthier workforce, which could also have the effect of lower health care costs.

Under proposed rules, wellness programs that offer incentives to employees for achieving certain health goals would be permissible.  However, there would be limitations on them.

Such programs are aimed at issues such as weight loss, getting employees to stop smoking, and monitoring cholesterol levels.

The EEOC has not been terribly supportive of these programs – or at least in how they have been implemented, and the agency has sued employers over them.

Under the EEOC’s proposed rules, wellness programs would be significantly restricted.

According to a Fact Sheet published by the agency, such programs would have to meet the following criteria:

1.  Wellness programs would have to be reasonably designed to promote health or prevent disease.

According to the EEOC, such programs must actually have a reasonable chance of improving participants’ health or preventing disease for participants.  The programs must otherwise be compliant with the EEOC.

Furthermore, if such a program collects medical data, that data must actually provide feedback to the participants with that data or use it to properly design a program.

2.  Participation must be voluntary.

According to the EEOC, this means that employees who refuse to participate cannot be denied health benefits or face discipline, and employers cannot coerce, intimidate or threaten employees to achieve health goals.  Furthermore, there would have to be notice of what medical information will be collected, how it will be used, and how it will be kept confidential.Watch movie online The Transporter Refueled (2015)

3.  Limited incentives would be allowed.

Under the proposed rules, an incentive in the form of lessened insurance costs to the employee may not exceed 30 percent of the cost of employee-only coverage.  The example given by the EEOC explains that if employee only coverage costs an employee $5,000, the maximum reduction due to an incentive would be $1500.

4.  Medical information must be kept confidential.

Wellness programs could not disclose individually identifiable medical information for employment purposes, and there would have to be appropriate training on dealing with confidentiality.

5.  Reasonable accommodations for wellness programs would be required.

Thee EEOC gives examples of some possible accommodations, such as providing an interpreter for hearing impaired employees at nutrition classes, braille on program materials, and alternatives to blood testing if an employee’s disability would make blood testing dangerous.

The proposed rules are now in a 60 day public review period, during which individuals can provide their commentary.  This is set to expire June 19, 2015.  A final rule would follow.

Cover Photo By Brandon.wiggins (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

EEOC “Celebrates” Equal Pay Day

April 14th, 2015

By R. Joseph Leibovich
(901) 328-8269

The EEOC has noted that today is Equal Pay Day for 2015.  Equal Pay Day is the day into a new year that, on average, a woman must work to equal the wages paid to a man in just the prior year.  In other words, according to the EEOC, if a statistically average man and a woman both started work on January 1, 2014, the woman would have to work until April 14, 2015 to make the same amount of money the man did in just 2014.

This is based on statistical data which shows, nationwide, women make on average 78.3 cents for each dollar a man makes.

To address the disparity in pay, the EEOC has put out a fact sheet on Equal Pay, which can be found here.  The EEOC notes that wage disparity “not only includes discrimination in the regular rate of pay but also in overtime pay, bonuses, stock options, profit-sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and other benefits.”

Of course, the 78.3 cent figure is a national average. CNN has put together a chart showing the average disparity state by state.  Women in Tennessee, for example, make on average 82.7 cents for ever dollar men earn.

EEOC chair, Jenny Yang this week sent out a message indicating that the EEOC has taken and will continue to take action to address pay disparity through education and enforcement procedures.

According to Ms. Yang, employers can, and should, take the following steps to help eliminate pay disparity:

– Evaluate compensation systems annually and take action to correct problems;

– Designate individuals to monitor pay practices;

– Provide training to supervisors;

– Ensure that job related criteria are used to determine base pay, raises, overtime, and bonuses and in making decisions about performance evaluations, job assignments, and promotions;

– Set starting salaries that eliminate discriminatory pay gaps on the basis of prior salary or salary negotiations.Watch movie online The Transporter Refueled (2015)

Employers should carefully look at their pay practices to make sure that they have not unintentionally created pay practices that maintain or widen the gender gap in pay instead of reducing it.

 

Experienced Paralegal Needed – Memphis

March 31st, 2015

Shuttleworth PLLC is looking for an experienced paralegal for our Memphis office. Below is a summary of the job description. Resumes are being accepted via email: careers@swlawgroup.com. No walk ins or telephone calls, please.Watch movie online The Transporter Refueled (2015)

Duties include:

  • Handling Plaintiff and Defense litigation matters
  • Medicare clearance and lien resolution
  • Processing medical records requests and drafting summaries/indices
  • Preparing deposition summaries
  • Written and verbal communication with clients and case-related parties
  • Drafting of Pleadings and other documents
  • Managing workflow between lawyers, third-parties, clients, and support staff

Seeking someone who is a self-starter, highly organized and can take initiative.

Court Rules Tennessee’s Cap on Non-Economic Damages Unconstitutional

March 18th, 2015

By W. Scott Hickerson
(865) 622-7118

Hamilton County Circuit Court and former County GOP Chairman Judge Neil Thomas recently declared Tennessee’s cap on non-economic damages unconstitutional on multiple grounds.

In 2011, the Tennessee legislature passed the Tennessee Civil Justice Act of 2011, commonly referred to as Tennessee’s Tort Reform Act.  Within the Act, the legislature placed a statutory cap (a limit or ceiling), with certain exceptions, on non-economic damages that can be awarded in personal injury and wrongful death cases at $750,000 or, in cases involving catastrophic injuries (as defined by the Act) at $1 million.

Tenn. Code Ann. §29-39-101, defines non-economic damages to include damages for “physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury to reputation; humiliation; non-economic effects of disability, including loss of enjoyment of normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; and all other non-pecuniary losses of any kind or nature.”

Tennessee is among several states that have passed limitations on recoverable damages, and, invariably, constitutional challenges to such laws have been raised.  The Tennessee Supreme Court, however, has not yet had an opportunity to weigh in on the constitutionality of the non-economic damages cap.  Perhaps, now the time has come.

On March 9, 2015, Hamilton County Circuit Court Judge Neil Thomas issued a Memorandum and Order in the matter of Clark v. Cain, et al., an automobile accident case in which the defendants had moved for partial summary judgment. Defendants’ Motion requested the court limit defendants’ potential exposure pursuant to T.C.A §29-39-102 and its $750,000 statutory cap on non-economic damages as the plaintiffs had filed suit seeking $22.5 million in non-economic damages.

The plaintiffs asserted that the cap was unconstitutional, and the Attorney General’s Office for the State of Tennessee weighed in on the issues.  The State argued, as had been done in the past, that the constitutional issues were not ripe for consideration and that a constitutional review of the statute should be delayed or denied as no jury verdict in excess of the statutory limits had been awarded at the time of argument  The named defendants, however, disagreed with the state’s request that an argument on the constitutionality of the damages cap be postponed or denied and instead requested the court rule on their dispositive motion seeking an order limiting the potential damages recoverable in the case.

Declining to delay a ruling, Judge Thomas found that Tennessee’s cap on non-economic damages impinges upon the plaintiffs’ due process and equal protection rights under the Tennessee Constitution as well as the plaintiffs’ “inviolate” right to a jury trial and is therefore unconstitutional.

That a trial court has now addressed the constitutionality of Tennessee’s cap on non-economic damages is not unexpected.  After all, these very issues have been addressed in several other states that have passed similar laws.  It is surprising though that it was the defendants in the Clark matter that pushed the issue and requested the trial court to issue a ruling.  What won’t be surprising is when Judge Thomas’ ruling is appealed.

Will the Tennessee Supreme Court ultimately take up the question or will the Court find that there currently exists no case or controversy without a jury award in excess of the cap imposed by T.C.A §29-39-102?  That remains to be seen.

 

Leibovich Elected Officer to Labor and Employment Section

December 8th, 2014

Joe LeibovichShuttleworth PLLC member Joe Leibovich was recently elected to serve as Treasurer of the Labor and Employment Section of the Memphis Bar Association.

His term commences in January 2015.  In following years, he will take on various officer roles, including Secretary, Vice Chair, and ultimately Chair of the Section in 2018.

Cannon Participates In Mediation Seminars

November 21st, 2014

Shuttleworth PLLC attorney John Cannon recently participated as a panel member in two seminars on the subject of mediation. The first was a presentation to the University of Memphis Law School Mediation Class on the preparation and conducting of a mediation in a high risk or medical malpractice case.

John also participated in a seminar sponsored by the Tennessee Association of Professional Mediators on the subject of developing and marketing a mediation practice.

Leibovich Appointed To Federal Court Mediation Panel

September 30th, 2014

Joe LeibovichShuttleworth PLLC attorney R. Joseph Leibovich has been appointed to the mediation panel for the United States District Court for the Western District of Tennessee.

The panel was created to comply with rules of the Court that went into effect September 1, 2014, that refers all civil cases to mediation.  As a member of the panel, Mr. Leibovich’s name will be listed with the Court’s website from which parties may choose a mediator.  In addition, panel members may be selected by the Court when parties cannot agree on a particular mediator.

Mr. Leibovich is a Tennessee Supreme Court Rule 31 listed General Civil Mediator.

Derrick Elected As Fellow To American College Of Coverage And Extracontractual Counsel

September 29th, 2014

Derrick 2014Michael G. Derrick, Chair of the Coverage Practice Group at Shuttleworth PLLC, has been elected as a Fellow in the The American College of Coverage and Extracontractual Counsel by a unanimous vote of its Board of Regents. The College is composed of preeminent coverage and extracontractual counsel in the United States and Canada representing the interests of both insurers and policyholders. The College is focused on the creative, ethical and efficient adjudication of insurance coverage and extra-contractual disputes, peer-provided scholarship, professional coordination and the improvement of the relationship between and among its diverse members. Admission to the College is by invitation only.  Mr. Derrick holds the Charted Property & Casualty Underwriter (CPCU) professional designation and is a Tennessee Supreme Court Rule 31 Listed Mediator . For the past 21 years he has practiced law in the Memphis office of Shuttleworth PLLC.

Leibovich Appointed To Tennessee Board Of Law Examiners Committee

September 4th, 2014

Joe LeibovichThe Tennessee Supreme Court and Tennessee Board of Law Examiners has appointed Shuttleworth PLLC member R. Joseph Leibovich to serve on the Tennessee Board of Law Examiners Investigating Committee.  The appointment is for a five year term.

Mr. Leibovich will interview Tennessee bar applicants as part of the character and fitness investigation for licensing and admissions purposes.

Wolfenbarger Begins Term As Judge

September 3rd, 2014

lWolfLane Wolfenbarger, managing member of Shuttleworth PLLC’ East Tennessee office was recently elected to serve as Grainger County’s next General Sessions and Juvenile Court Judge.  Judge Wolfenbarger, with many friends and family members in attendance, was sworn into office on August 29 at the Grainger County Justice Center. Mr. Wolfenbarger is excited about his new role and is eager to serve the people of Grainger County and those that appear in his courtroom.

Mr. Wolfenbarger was elected to an 8 year term.  Grainger County is in the 4th Judicial District of Tennessee, which includes Grainger, Jefferson, Sevier, and Cocke counties.  As general Sessions and Juvenile Court Judge for Grainger County is a part-time position, Mr. Wolfenbarger will remain a member Shuttleworth PLLC and will continue to represent its clients throughout East Tennessee and the region.

John Cannon Included In Best Lawyers In America

September 2nd, 2014

John CannonShuttleworth PLLC attorney John Cannon has been listed in the 21st edition of The Best Lawyers in America for his work in Arbitration and Mediation.

Inclusion in this listing is based on peer review surveys of more than 5.5 million confidential evaluations by attorneys nationwide.  The Best Lawyers in America is not a for fee listing.

Mr. Cannon, along with Shuttleworth PLLC attorneys Michael G. Derrick and R. Joseph Leibovich provide mediation services through Memphis Mediation Group, LLC.

Memphis Mediation Group Sponsors Golf Tournament Holes

June 6th, 2014

Memphis Mediation Group, LLC, a mediation practice consisting of Shuttleworth PLLC attorneys, sponsored three prize holes at the 3rd Annual Association For Women Attorneys Foundation Golf Tournament.

The event took place May 3 at Mirimichi Golf Course in Millington, Tennessee.  Among the holes sponsored included a $10,000 prize for a hole in one.  No one claimed the prize this time around.

 

Memphis Mediation Group mediators John Cannon and Mike Derrick participated in the AWA tournament.
Memphis Mediation Group mediators John Cannon and Mike Derrick participated in the AWA tournament.

Wolfenbarger Wins Judicial Election

May 8th, 2014

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Lane Wolfenbarger, the managing member attorney for the Knoxville, Tennessee office of Shuttleworth PLLC, won the Republican primary for General Sessions and Juvenile Judge for Grainger County, Tennessee on May 6, 2014.

Mr. Wolfenbarger will not face a Democratic challenger on the ballot for the August, 2014 general election and is expected to take office on September 1, 2014. The General Sessions and Juvenile Judge position for Grainger County, Tennessee is considered a part-time position allowing Mr. Wolfenbarger the opportunity to continue to practice law.

The Donald Sterling Saga: A Breakdown Of Some Legal Issues

May 7th, 2014

By R. Joseph Leibovich
(901) 328-8269

We all know the story by now.  The girlfriend of Los Angeles Clippers owner Donald Sterling recorded a conversation with Sterling in which he made racist comments.

The recording somehow made its way to the public, igniting outrage from players and the public.  Three days later, NBA Commissioner Adam Silver announced that Sterling is banned for life from the NBA, that he must pay $2.5 million in fines and that Silver will take steps to force Sterling to sell his stake in the Clippers.

This whirlwind drama has led people to ask a lot of legal questions.  Let’s take a look at some of the interesting ones.

I.  Did the NBA violate Sterling’s First Amendment rights?

In short, the answer is no.

Public figures have routinely been smacked for making ill advised comments over the years.  And, every time a Paula Deen, a Phil Robertson, or a Donald Sterling are dealt consequences for their comments, a lot of people argue that their right to free speech has been abridged.

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment applies to federal and state governments. (There’s an explanation of how the First Amendment can apply to states. I don’t want to get into the whole thing here, but, trust me, it’s been incorporated to include state governments).    But, the First Amendment does not apply to private entities, such as the Food Network, A&E or the NBA.

So, there’s no First Amendment issue here.  Move along.

II.  How Can the NBA Get Rid Of An Owner?

Well, this is an interesting question.

Until the Sterling brouhaha emerged, the NBA had managed to keep its Constitution and By-Laws “secret”.  However, the League has since released the document to the public.  It’s 79 pages long, and I’m not going to pretend to have read the whole thing.  If you want to, knock yourself out. Here it is.  http://mediacentral.nba.com/media/mediacentral/NBA-Constitution-and-By-Laws.pdf

Relevant to the Sterling situation is Article 13, titled, appropriately enough, “Termination of Ownership or Membership”.  This Article sets out a number of reasons the League (called “the Association” in the document) can terminate ownership interests.  It appears that the NBA will rely on this in its efforts to get Sterling to divest:

The Membership of a Member or the interest of any Owner  may be terminated by a vote of three fourths (3/4) of the Board of Governors if the Member or Owner shall do or suffer any of the following:

(d) Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.

So, if Sterling breached a contract with the League, then there’d be grounds to terminate his ownership interest.  And the League has taken the position that is the case.

But, what contractual obligations has Sterling violated?  ESPN is reporting that when Sterling bought the Clippers in 1981, he signed some documents that include a “morals clause” and a clause indicating that owners will not take any position that could materially adversely affect a team or the League. Presumably the NBA will say that Sterling’s comments fall into this category, and, therefore he violated his contract with the NBA.

Is this argument a slam dunk? (Sorry, but one basketball metaphor was inevitable).  Probably not.

Sterling will likely claim that a private conversation with his mistress should not be deemed to be him “taking a position”.  It was not a public declaration, after all.  Will this argument carry the day if this matter gets to court? That is difficult, if not impossible, to say.  But, if the parties decide this matter is to be determined through litigation, we can expect a serious fight.

III.  Does Sterling Expose The Clippers To Discrimination Claims?

For the sake of this discussion, let’s assume Sterling is a racist.  I am certainly not going to argue this fact one way or the other.  The recording speaks for itself.  Draw your own conclusions from it and give whatever weight you feel is appropriate to prior lawsuits against Sterling involving housing discrimination, and allegations of prior racist comments.  But for purposes of this discussion, let’s assume racism.

If Donald Sterling is a racist, and if his employees know it, is that a problem?

Well, sure.

The Clippers organization includes several African-Americans and other minorities.  The Clippers employ more people than the players  on the court. Apart from the players and coaching staff, there’s marketing, ticket people, administration and so on.  It’s a lot bigger of an organization than you see during a game.

What, if any, effect does having someone who is publicly deemed to be a racist have on a workplace?

Let’s take the obvious path first.  If Sterling had not been banned, and were to walk up to Clippers coach Doc Rivers (who is African-American) and were to fire him for whatever reason, could Rivers allege he was terminated due to his race and file a claim under Title VII of the Civil Rights Act or state law?  Sure he could.

 And what would part of his proof be?  It would include evidence that the guy who fired him had demonstrated racial animus, and that whatever reason he gave for the termination was a mere pretext for discrimination.   Does this mean he’d win the case?  Not necessarily.  But it could give a court a basis for denying summary judgment.  So, keeping Sterling on could have exposed the Clippers to extended litigation in the future.

But, let’s say that Sterling didn’t fire anyone.  Let’s assume he has never said a racist word to any Clippers employees, and that he has never once made an employment decision that can be attributed to race.  Could an employee somehow claim that Sterling has created a “hostile work environment” due to his private comments?

It seems highly unlikely.

In general, to establish a claim of a racially based hostile work environment, a plaintiff must show:
1.  He or she is a member of a protected class;

2.  He or she was subjected to unwelcome racial harassment;

3.  The harassment was based on race.

4.  The harassment unreasonably interfered with his or her work performance by creating an intimidating, hostile, or offensive work environment; and

5.  The employer is liable.

Examining a workplace where you have someone deemed to be a known racist as an owner or supervisor, we have to ask could the mere fact that they are a racist expose an organization to liability or that fact alone?  I think the answer is no.

As long as the individual leaves their racism at home and doesn’t spread those thoughts in a work setting, absent action, liability seems unlikely.

So, could a member of the Clippers organization who suffered no tangible job action sue the Clippers on the basis of a hostile work environment simply because Donald Sterling made racist comments privately to his paramour?  Not likely.

But , is every employment decision Sterling made in relation to an African-American now subject to attack based on his comments?  Possibly.

And, beyond the employment realm, has Sterling arguably violated Title II of the Civil Rights Act of 1964?  That section prohibits discrimination on the basis of race in places of public accommodation.  Did Sterling, by telling his girlfriend to not bring black people to games somehow violate Title II?  Seems unlikely, but it’s certainly interesting to consider the argument.

The Sterling case provides a lot of fertile ground for legal debate.

But, beyond the legalities, the key take away here is that if you own a business or work in management, it’s probably a good idea to avoid spouting off racist comments, even privately.  You never know who is recording you and when.

After all, if you can’t count on your mistress who is about a half century younger than you to be discreet, who can you trust?

Memphis Mediation Group Formed

March 7th, 2014

MMG_Horizontal_BlackShuttleworth PLLC attorneys John R. Cannon, Michael G. Derrick and R. Joseph Leibovich have formed Memphis Mediation Group, LLC.

The Group is available immediately to assist parties in all forms of alternative dispute resolution.

The three attorneys are Tennessee Rule 31 listed General Civil Mediators, and have extensive experience with the mediation process in state, federal and administrative matters.

Rob Briley Named Equity Member

February 26th, 2014

Shuttleworth PLLC is pleased to announce that Rob Briley has recently been named an Equity Member of the firm. Rob joined the firm’s Nashville office in 2009 with a focus on civil litigation as part of a general trial practice. Rob is a 1997 graduate of Vanderbilt Law School and a former member of the Tennessee General Assembly, having served from 1998-2008 where he held numerous leadership positions including Chairman of the House Judiciary Committee. He will continue to serve as the managing member of Shuttleworth PLLC’s Nashville office.

“We were excited when Rob joined us in 2009 to manage our Nashville office, and we are please at his election to the status of Equity Member,” said Ken Shuttleworth. “He is an excellent litigator and has a keen insight into the structure and functioning of state government from his experience there. He will be a key player as the firm continues to grow and expand its footprint across the state.”

Cruzen Prevails In Worker’s Compensation Matters

January 28th, 2014

In four recent worker’s compensation cases, Shuttleworth PLLC attorney, Vickie Moffett Cruzen, obtained denials of employees’ claims against the firm’s clients, which included denials of all sought worker’s compensation benefits.

In a case involving an alleged work related gradually occurring injury Ms. Cruzen successfully argued on behalf of the client that the employee did not provide proper notice of injury, failed to establish that the employer had actual knowledge of the injury as alleged by the employee, and further that the employer was prejudiced by the late notice.

Cruzen again prevailed on the defense of a spinal injury claim for medical expenses and temporary total disability benefits by asserting that the medical opinions submitted by the employee did not establish any advancement in the severity of the claimant’s preexisting conditions and that the employee had failed to prove entitlement to temporary partial or temporary total disability benefits.

In response to a claim for mental injury, Cruzen established that the incidents forming the basis of the employee’s alleged mental injury did not constitute extraordinary or unusual stress compared to stress ordinarily experienced by employees with the same type of work duties and, therefore, the requested worker’s compensation benefits were not warranted.

Another claim for mental injury was denied after the employee failed to prove that the claimed mental injury was a result of an identifiable stressful work-related event. In this case Cruzen showed that the incidents complained of fell within the job description, that there was insufficient medical proof to support the employee’s allegations, and that the employee failed to provide timely notice.

These denials resulted in dismissals of all claims brought against the firm’s clients at the administrative level.

Curry and Hawkins Obtain Dismissal Of Case

January 8th, 2014

Shuttleworth PLLC attorneys, Edward Curry and Dennis Hawkins recently tried a construction case in which they were able to obtain an involuntary dismissal for their client – a local contractor – at the end of the plaintiff’s proof.    At issue was whether or not a utility company properly located electrical lines before the contractor began its excavation.

A power line was struck and the utility sought property damages.  During cross-examination of the utility company’s witnesses, Hawkins was able to establish that the utility could not prove that they performed the required locates in the area where the line was struck.  At the close of plaintiff’s proof, Hawkins moved for and was granted an involuntary dismissal against the Plaintiff by the court.Watch movie online The Transporter Refueled (2015)

 

Cannon Speaks On Experts

December 18th, 2013

Shuttleworth PLLC attorney John Cannon recently spoke at a Memphis Bar Association-sponsored seminar titled, “How to Find, Prepare, Challenge, Cross-Examine Medical & Other Experts.”  The seminar was approved for Continuing Legal Education credit.

Leibovich Judges Advanced Moot Court Semi-Final Round

November 7th, 2013

Shuttleworth PLLC attorney Joe Leibovich served as a judge for a semi-final round of the University of Memphis’  School of Law’s Advance Moot Court competition.  The competition of second and third year law students had competitors making U.S. Supreme Court arguments over First and Second Amendment issues.Watch movie online The Transporter Refueled (2015)

The case involved two primary laws.  One restricted the carrying of concealed weapons and the other prohibited the recording of a conversation police officers were engaged in during a public demonstration.

Hawkins Obtains Dismissal For Client

October 30th, 2013

In a recent case involving serious personal injuries sustained on a construction site by workers attempting to pour concrete, Shuttleworth PLLC lawyer Dennis Hawkins cross examined both plaintiffs during their respective depositions.

Within two weeks after the depositions and facing a previously filed Motion for Summary judgment, the firm’s client-a major construction entity in the Mid-South-was dismissed from the case with prejudice, thus resulting in a dismissal on the merits of all claims brought against it.

Shuttleworth PLLC is proud to obtain results such as this for its clients by aggressively defending them at all stages of the litigation process.

Bruce Williams To Serve On Grant Review Committee

October 29th, 2013

Bruce Williams was selected to represent the Tennessee Defense Lawyers Association on the Grant Review Committee of the Tennessee Bar Foundation, which awards funding to deserving non-profits who are providers of legal services and/or improve the administration of justice in Tennessee.

This service will be for a three-year term.

Shuttleworth PLLC Attorney Wins Property Damage Case

October 14th, 2013

Shuttleworth PLLC attorney Dennis Hawkins recently obtained a defense verdict in a property damage premises liability case.  The matter was tried before a judge with allegations that a sign blew off of a pole and damaged the business invitee’s vehicle.  At issue was whether the defendant premises owner knew or should have known of the alleged defective condition of the sign.

After cross examination of the plaintiff, Hawkins moved for and was granted a directed verdict for the defendant.

Cannon Discusses Mediation Strategy

October 11th, 2013

Shuttleworth PLLC attorney John R. Cannon, Jr. was a seminar panel member for the Memphis Bar on Mediating High Risk, High Value cases this month.  Topics for the seminar included preparing for mediations to help avoid impasse.

Bruce Williams Speaks On Avoiding Claims Management Mistakes

October 8th, 2013

Shuttleworth PLLC member Bruce Williams spoke on October 4, 2013,  to the Annual Mid-South Workers’ Compensation Association Conference to claim managers, human resource officers and nurse case managers on the topic  “Avoiding Common Claim Management Mistakes:  Denial, Delay and Disorder.”

The presentation provided strategies for properly denying claims with medical evidence, providing proper Physician Panels, identifying the hazards of Utilization Review, use of strategic second medical opinions, employment of nurse case managers, good communication techniques with the claimant and doctors, and ways to avoid the upcoming increases in penalty assessment from the Tennessee Division of Workers’ Compensation.

John Cannon Attends International Mediator Conference

October 4th, 2013

Shuttleworth PLLC partner John R. Cannon, Jr. attended the fall conference of the International Academy of Mediators in Paris, France September 19-21. Mediators from more than fifteen countries attended sessions that included dealing with decision fatigue, insurance companies suggestions for improving mediation and the sharing of effective techniques. The  Academy promotes the study and understanding of the mediation process.

Hawkins Obtains Dismissal of Retaliatory Discharge Suit

July 31st, 2013

A Williamson County court recently dismissed a case for a corporate defendant represented by Shuttleworth PLLC attorney Dennis Hawkins.  The case involved allegations of wrongful termination/retaliatory discharge of an employee who was involved in a verbal altercation while on the job.  Mr. Hawkins obtained dismissal of the case for the client on the date of trial.

Shuttleworth and Webb Obtain Summary Judgment in Medical Malpractice Case

July 31st, 2013

Shuttleworth PLLC attorneys, Ken Shuttleworth and Abby Webb recently argued on behalf of an ambulance service in a case involving allegations of medical malpractice which resulted in an anoxic brain injury.  The facts at issue were whether the ambulance service complied with the standard of care in managing a patient’s airway and in the timely transport of that patient to an acute care facility.

Ms. Webb successfully argued to the court that the expert proof in the case established that the ambulance service personnel had met the standard of care required in airway management and that no act or omission of the ambulance service caused or contributed to the plaintiff’s injuries.  After the trial of the case, a jury returned a verdict of 15 Million Dollars against the remaining defendants.

Obtaining dismissal of the ambulance service represents the strong commitment by the lawyers of Shuttleworth PLLC to defend health care professionals when they face litigation.

Shuttleworth PLLC Associate Does Time For Good Cause

July 24th, 2013

Shuttleworth PLLC associate, Jeff Williams, recently participated in the 2013 Muscular Dystrophy Association Lock-Up raising money to help fight against muscle disease. Jeff, through the generous donations of his friends, raised enough funds to send one child to MDA Summer Camp.   The event culminated at Fleming’s Prime Steakhouse in Nashville. All funds raised by the MDA Lock-Up assist the Association in providing lifesaving research, a nationwide network of medical clinics and accessible summer camp experiences to individuals and families affected by neuromuscular diseases.

Jeff Williams Awaits Bail

Jeff Williams Awaits Bail

Supreme Court Limits Vicarious Liability In Harassment Cases

June 24th, 2013

By Joe Leibovich
(901) 328-8269

The United States Supreme Court has narrowed the definition of who is a supervisor for purposes of sexual harassment cases.  The effect of this is that employers will have an easier time defending sexual harassment cases.

The Court in Vance v. Ball State University, 570 U.S. _____ (2013), took on a question left open by prior decisions Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).

Both Ellerth and Faragher dealt with when a company can be held responsible for sexual harassment.  In these cases, the Court held that employers are vicariously liable for harassment by a supervisor when it leads to a tangible employment action, including firing, hiring, failure to promote, job reassignment, or loss in benefits.  In such cases, an employer is strictly liable for the harassment, whether or not the employer knew about the harassment.

Furthermore, the Court previously held that a company is vicariously liable for “hostile work environment” harassment by a supervisor, even where there is no tangible job employment action.  In such cases, employers can attempt to raise a defense (which is the employer’s burden to prove) that the employer exercised reasonable case to prevent and correct harassing behavior, and that the plaintiff failed to take advantage of such opportunities.

In cases of non-supervisor harassment, courts look to whether or not the employer knew or should have reasonably known about the harassment, but failed to take remedial action.

So, it becomes important to know who is and is not a supervisor when defending claims of sexual harassment.

Today’s decision in Vance stated:

“We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangle employment actions against the victim…”

In doing this, the Court rejected the EEOC’s definition of “supervisor,” which lower courts had been utilizing.  Under that definition, a supervisor was one who had the ability to exercise significant direction over an employee’s work. This could have led to situations where a co-worker who had some oversight, even for a short period, could be deemed to be a supervisor.

The Court’s 5-4 decision by Justice Alito is a victory for employers, but by no means signals that employers can not be liable for non-supervisory harassment.  The Court stated “As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.  And even if an employer concentrates all decisionmaking authority in a few individuals, it will likely not isolate itself from heightened liability under Faragher and Ellerth.  If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with affected employees. … Under those circumstances, the employer may be held to have effectively delegated actions to the employees on whose recommendations it relies.”

Overall, Vance does not change the landscape much.  But it does provide some help to employers for the actions of individuals who can’t directly or indirectly take tangible job actions against employees or applicants.

While Vance gives employers some comfort, it is important for employers to continue to provide an avenue for reporting harassment that will lead to proper investigations and results.  An employer can not simply turn a blind eye to an atmosphere charged with sexual harassment.  And, employers still need to be aware that even if an individual can not directly fire or discipline an employee, that individual may still be a supervisor if their input is given weight in employment decisions.  Proper policies and training remain invaluable in this context.

EEOC Files Lawsuits Over Background Checks

June 13th, 2013

By Joe Leibovich
(901) 328-8269

The EEOC has filed two lawsuits, including one against Tennessee based Dollar General Corp., over the use of criminal background checks.  The lawsuits filed this week against Dollar General and BMW essentially allege that the background checks have a disparate impact on minority employees and applicants.

The EEOC takes the position that background checks affect African Americans adversely due to disparities in arrest and convict rates between minority and White individuals.

The Agency issued guidance to employers in April 2012 regarding the use of criminal background checks.  In that guidance, the EEOC reiterated its position that the fact of an arrest has little meaning, as that does not provide proof of criminal wrongdoing.

On the other hand, a conviction is reasonable proof that the person did what they were accused of.

But, according to the Agency, that alone is not enough in light of the disparate impact on African Americans.  The EEOC turned to a 1977 Eighth Circuit case, Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977), to describe when the use of criminal background checks may be valid.  The EEOC listed three Green factors

1.  The nature and gravity of the offense or conduct;

2.  The time that has passed since the offense or conduct and/or completion of the sentence; and

3.  The nature of the job held or sought.

The guidance went in depth into each of these factors, and ultimately provided a set of “Employer Best Practices”.  The EEOC states employers should:

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

The EEOC has indicated this issue is a high priority for the Agency.  And these new lawsuits would seem to indicate that is the case.  Both Dollar General and BMW deny their policies are unlawful.

It is certainly not possible to predict whether or not the EEOC’s lawsuits will ultimately prevail.  But, it is vital for employers to note that the EEOC is looking at these policies.  Both lawsuits do stem from individual complaints, but it is possible the Agency could aggressively pursue employers over this issue.

In any event, and certainly while we wait for the results of this litigation, employers should take a look at their background check policies to see if they are in compliance with the EEOC’s guidance.

 

Vickie Moffett Completes Regal Service

June 11th, 2013

Shuttleworth PLLC associate, Vickie L. Moffett, recently served as Queen of the Grand Krewe of Ptolemy, one of ten Grand Krewes of Carnival Memphis, during Carnival Week 2013 festivities. Krewe activities included visits to various local children’s charities, nursing homes and developmental centers.

Since the inception of The Carnival Memphis Children’s Charity Initiative, Carnival Memphis and the Grand Krewes have raised over $1,500,000 with matching funds for local children’s charities. This year’s charities are Perea Pre School, Ronald McDonald House and YWCA of Greater Memphis.

New Posting Requirements For Employers

May 28th, 2013

By Joe Leibovich
(901) 328-8269

The United States Department of Labor (“DOL”) has issued new posting requirements for employers regarding the Patient Protection and Affordable Care Act (“the Act”).  These new requirements go into effect October 1, 2013.  In addition to posting the information, it must be given to employees hired on or after that date, and current employees must be given the information on or before October 1.

The DOL has provided model notices for employers who provide a health plan to all or some employees as well as one for those employers who have no such plan.

The purpose of the notices is to give employees information regarding healthcare options, including information about the Healthcare Insurance Marketplace established under the Act.

In addition, the DOL has issued a new model COBRA notice to deal with provisions of the Act.  A copy is available here.

 

MBA Board of Directors New Members

May 15th, 2013

Congratulations to Shuttleworth PLLC associate, Abby Webb, for being named one of the new members of the MBA Board of Directors. Abby Webb joined Shuttleworth PLLC in 2006 and is also a member of the American Bar Association and the Tennessee Bar Association.Watch movie online The Transporter Refueled (2015)

Shuttleworth PLLC Moves to New Knoxville Office

May 15th, 2013

Shuttleworth William PLLC recently announced it has moved to a new office in Knoxville. The firm is now located in the First Tennessee Plaza at 800 South Gay St., Suite 2031. The new space puts it closer to the Knox County Courthouse, state Supreme Court Building and U.S. District Court for the Eastern District of Tennessee.

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Ed Curry Gives Estate Planning Presentation to Greater Memphis Chamber of Commerce

February 2nd, 2013

On Friday, February 1, Ed Curry presentation on End-of-Life issues for the Greater Memphis Chamber of Commerce “Brown Bag Lunch and Learn.”   Advance directives, living wills, power of attorney, and wills were among the topics discussed.  To set up an appointment to discuss estate planning issues, please contact Ed Curry at our Memphis location.Movie All Is Lost (2013)

John Cannon named “Super Lawyer” ; To Speak at Workshop

September 6th, 2012

Shuttleworth PLLC is pleased to announce that John R. Cannon, Jr. has again been selected for inclusion in Super Lawyers magazine in the field of Alternative Dispute Resolution. The mission of Super Lawyers magazine is “to bring visibility to attorneys who exhibit excellence in practice”.

Mr. Cannon has also been asked to be a presenter at the Tenth Annual Advanced Mediation Techniques Workshop of the Tennessee Supreme Court Alternative Dispute Resolution Commission in Nashville on October 19, 2012.

John Cannon Named Super Lawyer; To Speak At Workshop

September 6th, 2012

Shuttleworth PLLC is pleased to announce that John R. Cannon, Jr. has again been selected for inclusion in Super Lawyers magazine in the field of Alternative Dispute Resolution. The mission of Super Lawyers magazine is “to bring visibility to attorneys who exhibit excellence in practice”.Watch movie online The Transporter Refueled (2015)

Mr. Cannon has also been asked to be a presenter at the Tenth Annual Advanced Mediation Techniques Workshop of the Tennessee Supreme Court Alternative Dispute Resolution Commission in Nashville on October 19, 2012.

Shuttleworth PLLC Members Listed As Rule 31 General Civil Mediators

April 27th, 2012

Shuttleworth PLLC members Mike Derrick and Joe Leibovich are now Tennessee Rule 31 Listed General Civil Mediators.  Their listings were approved on April 24 by the Tennessee Alternative Dispute Resolution Commission.   They join Shuttleworth PLLC member John Cannon, who is already a Tennessee Rule 31 Listed General Civil Mediator.

Poking Into Applicants’ Facebook Accounts Is Dangerous

March 28th, 2012

By Joe Leibovich
(901) 328-8269
jleibovich@swlawpllc.com

Some employers want to be friends with job applicants. And that’s a dangerous situation.

In an effort to get to know applicants better, some employers have started asking for potential employees’ Facebook passwords, so they can gain access to online posts and other information. The thinking is that this will really let the employer know a lot more about the people they may hire than a standard interview would.

This may sound like a good idea, but it is a volatile one.

First, privacy advocates are screaming that this is a massive violation of individual rights, and it is likely that companies that engage in this practice will receive some negative publicity.

But there are also legal issues in play.

According to the Associated Press,Senators Chuck Schumer and Richard Blumenthal of Connecticut have suggested that this practice is a violation of the federal Stored Communications Act or the Computer Fraud and Abuse Act, and are requesting the Department of Justice and the EEOC investigate the practice.  There are also states considering legislation that would prohibit such inquiries.  Having someone’s password gives you access to more than their posts.  It lets you read private correspondence and messages.  This, on its face, seems to be overreaching and an invasion of privacy.

But even if this practice is legal, is it advisable?  The answer to that question is likely no.  Facebook profiles and postings contain a gold mine of information, certainly.  But some of that information is material potential employers should not have and should not want to have.

Facebook postings can contain information on matters that employers are prohibited from asking about in an interview, such as age, religion and disability status.

“Great!” some employers think.  “This gives me data I want without having to directly ask about it!”

Well, that sounds good. But is it really?  Having this data also opens up employers to discrimination claims.  An applicant who is rejected for valid reasons could easily point to data on their Facebook postings that show they have a medical condition, or that they are over 40, and claim that is why the hiring decision was made.  Can employers eventually overcome that in court?  Maybe.  But why should they give plaintiffs that extra weapon to muddy up the water?

Employers have many perfectly legal tools to gather information on applicants that do not expose them to this potential level of liability and the expense of litigation, whether it is frivolous or not.

It seems that the best practice for employers is to be anti-social when it comes to social media and potential employees.

Medicare Compliance In Liability Settlements: It’s Important For Both Sides

March 20th, 2012

By Cheryl Montgomery
(615) 499-5129
cmontgomery@swlawpllc.com

If Medicare compliance in liability settlements is not a concern for Defense counsel, it should be, because non-compliance can put clients and their attorneys at risk.  Medicare has an absolute right of reimbursement with regard to conditional payments, which means that it can recover from the Plaintiff, Plaintiff’s counsel, Defendants, and Defense counsel.  In addition, a client’s failure to report to Medicare a settlement, judgment, award, or other payment can subject it to large monetary fines.

Thus, Medicare is no longer a subject that only concerns the Plaintiff and his or her attorneys; it should be discussed by both sides and dealt with in the best way to protect all interests.  Below is a brief summary of information about Medicare compliance and strategies that Defense counsel, in particular, should be aware of when taking steps to protect their clients and their firm.

Early in the case, Plaintiff’s counsel should call the Medicare COBC (coordination of benefits contractor)-(800) 999-1118 and provide them with information regarding the alleged incident and injury in order to obtain a conditional payment letter.  A Conditional Payment Letter (“CPL”) provides information on items or services the Medicare Secondary Payment Recovery Contractor (MSPRC) has identified as being related to the pending Non-Group Health Plan (NGHP) claim. The conditional payment amount is an interim amount, and Medicare may continue to make conditional payments while a matter is pending. Consequently, the MSPRC cannot provide a final conditional payment amount until there is a settlement or other resolution. Once the case is established with the COBC, the Plaintiff’s counsel should receive a “Rights and Responsibilities Letter.”  An initial CPL does not need to be requested because it will be generated automatically within 65 days of the “Rights and Responsibilities Letter.”

There are two instances where a Conditional Payment Notice (“CPN”) will be sent out instead of a CPL:

  1.If the MSPRC is notified of a settlement, judgment, award, or other payment through Section 111 reporting rather than from the beneficiary or their representative; and

2. If the MSPRC has been alerted to a settlement, judgment, award, or other payment by the beneficiary or their representative before the usual Conditional Payment Letter (CPL) has been issued.

A CPN provides conditional payment information and states what actions must be taken because the MSPRC has been notified of a settlement, judgment, award or other payment.  Medicare allows 30 days for a response to the CPN before issuing a demand automatically requesting all conditional payments related to the case without a proportionate reduction for fees or costs.  Conditional payments are payments that Medicare has made in the past, prior to the date of settlement, for medical treatment related to the injuries at issue that must be reimbursed as a part of the settlement.  The conditional payment claims should be reimbursed within 60 days from the date of the formal demand letter.  Medicare should not be reimbursed before the formal demand is generated because the amount of such claims is subject to change until that time. If Medicare is not reimbursed within the 60-day timeframe, interest and penalties will begin to accrue.

Defense counsel should be aware of the Section 111 Reporting Requirements as established by 42 U.S.C.S. §1395(y)(b)(8).  The reporting requirements only apply to liability insurance carriers (including self-insured entities), no-fault insurance carriers, and workers’ compensation insurance carriers dubbed “RRE’s” or Responsible Reporting Entities.  Medicare has set up a process by which an RRE can send an early “query” file to determine beneficiary status.  The query file needs nothing more than the identity of the claimant-name, DOB, SSN, and gender.  If the Plaintiff is a Medicare beneficiary, the statutory duty to report is triggered after a settlement, judgment, award or other payment regardless of whether a determination of fault was made.  Failure of an RRE to report makes them subject to a penalty of $1,000.00 per day for each act of non-compliance.  For example, if an insurance carrier had 1,000 claims by Medicare beneficiaries, it could face a $1,000,000.00 a day fine for failure to report.

In summary, Defense counsel should discuss Medicare prior to and at mediation to make sure the Plaintiff’s counsel knows that without at least a conditional lien letter or letter from CMS stating there is no lien, the Defendant will not release the check without putting Medicare’s name on the check or obtaining a Consent to Release and waiting to get information from Medicare. The Consent to Release authorizes CMS to disclose conditional payment information, but it does not give the individual or entity the authority to act on behalf of the beneficiary or the right to further release that information.  In addition, Defense counsel should notify Plaintiff’s counsel that the Defendant will be reporting the settlement to Medicare to fulfill the Section 111 Reporting Requirements.  It is important to note that Medicare may not be made a party and is not bound to any agreement between parties and should the claimant fail to repay the conditional payment claims, Medicare may legally seek reimbursement from almost any party to the action, including the Defendant and/or the attorneys.

Defense counsel may also find it necessary to contact an outside Medicare Compliance Group to review the file and complete a Medicare Set-Aside Allocation Report to show that Medicare’s interests were protected in the Settlement Release in the following situations:

1.  If the claimant is currently a Medicare beneficiary and the total settlement amount is greater than $25,000; or

2. The claimant has a “reasonable expectation” of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.

 A Medicare Set-aside (“MSA”) is money that is set aside for future medical expenses that would otherwise be covered by Medicare. MSAs are not required by law in any case. Rather, the Medicare Secondary Payer Act (MSPA) requires that the burden to pay for future medical expenses not be shifted to Medicare when another entity is primarily responsible for future medical treatment.  If Medicare is billed for treatment related to the alleged injuries in the future, it may refuse to pay for the treatment or may pay and then seek reimbursement.  If Medicare pays for treatment, it can seek reimbursement from almost any party to the action.  This absolute right of reimbursement is only one of the reasons; Medicare compliance is a hot topic among attorneys and their clients at this time.

As always, parties should consult with an attorney prior to entering into any settlement agreement which may involve Medicare’s rights.

Judicial Recusal Reform Enacted

February 22nd, 2012

By Brandi Davis
(615) 499-5131
bdavis@swlawpllc.com

Several new revisions to The Code of Judicial Conduct have been recently adopted by the Tennessee Supreme Court. One of the primary changes is the implementation of a new procedure for pursuing the recusal of a judge.   This new policy mandates that the judge that denies a request for recusal must now state the reasons for the denial in writing.  This change also provides a new method for seeking an expedited appeal if a motion for recusal is denied.   Litigants will now have the opportunity to appeal de novo to a higher court within 15 days of the judge’s ruling.  This will ensure that the challenged judge does not have the final word on recusal.  New rules also outline the process for the appointment of a new judge when a recusal is granted.

The revisions to the ethical guidelines for judges in Tennessee also attempts to eliminate the influence of large campaign contributions in judicial races. Tennessee judges can no longer preside over cases when either a litigant, their lawyer or law firm has made a substantial contribution to the judge’s campaign that would raise questions regarding a judge’s ability to remain impartial.  This new rule is one that was motivated by the United States Supreme Court ruling in Caperton v. Massey in 2009.  That case acknowledged the threats to public opinion of judicial impartiality that occur when judges preside over cases concerning their campaign supporters.

Judges are also now required to disqualify themselves from a case if they have previously presided over a judicial settlement conference or mediation in the same matter.

Chief Justice Clark stated, “We believe  these changes to the Code of Judicial Conduct will provide Tennessee judges with greater guidance for conducting the business of the courts in an impartial and ethical manner.”

These revisions to the Code were adopted by the Tennessee Supreme Court as a result of a petition filed by the Tennessee Bar Association in the hopes of ensuring judges remain neutral in their rulings.  The new Code of Judicial Conduct is to take effect on July 1, 2012.

Abby Webb Named President of Young Lawyers Division of MBA

November 29th, 2011

Congratulations to Abby Webb, who recently took over as the President of the Young Lawyers Division of the Memphis Bar Association at the Annual Meeting & Elections held on November 17, 2011.  Abby will serve as the President for the 2012 year and will also sit on the Tennessee Bar Association Young Lawyers Division Board.   She has served as a board member of the Young Lawyers Division for the past three years and has extensively participated in many public service projects including the High School Mock Trial Competition, Legal Lines at WREG Studios, and pro bono efforts at the Saturday Legal Clinics.

Additionally, at the Annual Meeting, the Young Lawyers presented the Boys & Girls Clubs of Greater Memphis with a donation and Judge Jerry Stokes of Division VI of Circuit Court with the Chancellor Charles A. Rond Memorial Award for Outstanding Judge of the Year.


Abby Webb commences her tenure as President of the Young Lawyers Division

John Cannon Inducted Into International Academy of Mediators

November 15th, 2011

Congratulations to Shuttleworth PLLC member John Cannon for his induction into the International Academy of Mediators, a fellowship of pre-eminent commercial mediators. The mission of the International Academy of Mediators is to define standards and qualifications for the professional mediator of commercial disputes and to promote the mediation process as the preferred means of resolving disputes.

Ken Shuttleworth to Address Grocery Manufacturer’s Association

October 27th, 2011

The Grocery Manufacturer’s Association (GMA) has invited Ken Shuttleworth to address its membership concerning recent developments in the foodborne illness arena. GMA, based in Washington, D.C., is the voice of more than 300 leading food, beverage, and consumer product companies. GMA’s member organizations include internationally recognized brands as well as steady growing, localized brands. The presentation is scheduled for Wednesday, November 2, 2011. The subjects covered will include the recently enacted Food Safety Modernization Act and its impact on foodborne illness litigation.

Mike Derrick Elected To Bar Foundation

October 6th, 2011

Congratulations to Shuttleworth PLLC member Mike Derrick for his induction as a fellow into the Memphis Bar Foundation.  The organization inducted Mike “in recognition of devoted and distinguished service to the legal profession and the administration of justice and adherence to the highest standards of professional ethics and personal conduct.”Watch movie online The Transporter Refueled (2015)

 

NLRB Imposes Posting Requirement On Most Employers

October 3rd, 2011

By Joe Leibovich
(901) 328-8269
jleibovich@swlawpllc.com

Beginning January 31, 2012, most private employers will be required to post information on employee rights under the National Labor Relations Act (“NLRA”).  This information is to be posted along other mandated postings, such as those describing minimum wages and rights under Title VII.  The requirement is a result of regulations promulgated by the National Labor Relations Board (“NLRB”)

Most private employers  (except very small ones) and most private employees are covered under the NLRA, with some exceptions, such as most governmental employees, agricultural workers, individuals employed by a spouse or parent, and, in most cases, supervisors.  The posting requirement applies to unionized and non-unionized workplaces.

The posting, among other things, informs employees of their rights to form a union, to collectively bargain, to discuss wages and benefits and other conditions of employment with co-workers or a union, or to choose not to join a union or take other collective actions, and gives employees contact information for the NLRB.

The posting also must set out various acts that are illegal by both employers and unions.  For example, the posting must state it is illegal for an employer to prohibit employees from talking about or soliciting for a union during non-break time, or from distributing union literature during non-work time in non-work areas such as parking lots and break rooms.  There are other specific requirements as to what the posting must contain.  Fortunately, the NLRB has a free, downloadable copy of the poster on its website, http://www.nlrb.gov/poster.

Many employers have criticized the new posting requirement, arguing that the rule is too pro-union, and that it is unfair for an unelected government agency to be able to mandate what employers must do.  Nonetheless, the rule will be in effect, and employers who fail to put up the required notice could be charged with an unfair labor practice.

As always, if you have any questions about whether or not your business should post this new notice, you should contact an attorney.

 

UPDATE:  This report has been updated to note that the posting requirement has been postponed until January 31, 2012.

Damages Caps v. Pre-Suit Notice and Certification – And the Winner Is?

September 12th, 2011

By Rob Briley
(615)833-3390
rbriley@swlawpllc.com

Runaway juries.  Frivolous lawsuits.  Meritless claims.  Defensive medicine.  For years, we have all heard the reasons as to why some action needed to be taken to stem the tide of lawsuits being filed against the medical industry.  Now, by a convergence of forces never before seen in Tennessee, we will have the ability to compare, side-by-side, whether reducing the number of medical malpractice lawsuits or limiting the amount of money that can be awarded in medical malpractice cases will have the greater impact on the single best measure of either’s success – insurance rates.  My money is on reducing the number of lawsuits that are filed.  Here’s why.Watch movie online The Transporter Refueled (2015)

When we say that we are going to reduce the number of “frivolous” lawsuits filed against doctors, nurses and hospitals, what we mean in practice is the development of a system that requires more effort on the front end by a potential claimant to investigate the validity of his claim, and to attempt an early resolution of that claim without filing a lawsuit.  In 2008, the Tennessee Legislature passed a statute that required just that.  In its simplest form, before a claimant can file a medical malpractice lawsuit, he must first notify the medical provider of his intent to do so and then wait for a period of 60 days before filing it.  This period of time is designed to give the parties a chance to work their differences out, if at all possible.  Then, if no resolution is reached, the claimant may file the lawsuit, but only if it comes with a certification by the claimant or claimant’s lawyer that the case has been reviewed by a suitable expert who has opined that a valid malpractice claim exists.

When first passed, some who analyzed the legislation were skeptical that it would have any impact on the number of lawsuits filed, many of which would ultimately have been dismissed on summary judgment because no competent expert would support the claim of malpractice.  One commentator even went so far as to call the pre-suit notice and certification concept “ludicrous.”

Fast forward to today.  As more data becomes available, it becomes more and more clear that the pre-suit notice and certification requirements imposed by the Legislature have been far more successful than anyone imagined.  The year before this statute took effect, there were 644 medical malpractice lawsuits filed in Tennessee.  As of September 30, 2009, the first full year of the new law’s impact, only 263 medical malpractice cases were filed, and in its second full year, only 313 cases were filed.  No matter how one analyzes these figures, no one can dispute the success of this approach on reducing the number of lawsuits filed against medical practitioners in this state.

Now let’s talk about capping damages awards, arguably the “holy grail” of the medical industry in Tennessee for years.  Limitations on damages caps, many argue, are necessary because we can no longer trust the jury system to be fair and reasonable.  Runaway juries are driving up the cost of malpractice insurance, they say.  Now let’s look at the facts.

In 2011, the Tennessee Legislature passed a tort reform law that limits the amount of non-economic damages that one may recover to $750,000 in all cases, including those sounding in medical malpractice.  Let’s see how many times that law would have been triggered during the 5 year period of 2004-2008.  During this time, there were 14,363 medical malpractice claims closed in Tennessee.  Of those, only 26 were closed by final judgment in favor a claimant.  Of that 26, only 4 had an award of $750,000 or greater in non-economic damages.[1]  Even if the limit is reduced to the $250,000 amount proposed by some members of the Legislature, there would only be 8 cases to which it would have applied during this 5 year period.  Those 8 claims represent less than six one hundredths of a percent.  Those to which a $750,000 cap would apply represent less than three one hundredths of a percent.  I think you get the picture, even with a cap of $250,000, limiting the amount of awards will not touch enough cases to produce a measurable impact on the malpractice climate in Tennessee.  Reducing by almost half the number of malpractice cases filed, however, did produce those results.

Now, the ultimate measure of success for either of these plans is the cost of insurance.  That’s where the rubber meets the road.  You reduce claims, you reduce rates.  State Volunteer Mutual Insurance Company represents the lion’s share of the doctors in Tennessee.  If you look at the company’s financial statements for the year following implementation of the pre-suit notice and certification statute, SVMIC reduced its rates by more than 20% and declared a $20,000,000 dividend.  I am anxious to see what type of impact that caps on damages will have after one year, if any.  Of course if premium costs are reduced there should also be a corresponding increase in the affordability and availability of quality healthcare to the citizens of Tennessee. Only time will tell.


[1] The earlier Medical Malpractice Claims Reports did not distinguish between economic and non-economic damages.  Therefore, any award of $750,000 or more is included in this figure.

New Tennessee Summary Judgment Standard

August 25th, 2011

By Abby Webb
(901) 328-8223
awebb@swlawpllc.com

The Tennessee General Assembly passed a new summary judgment standard for all civil actions filed on or after July 1, 2011 in state court.  The new standard  set forth in Tennessee Code Annotated § 20-16-101, will theoretically make it easier to obtain summary judgment on meritless lawsuits than the prior standard articulated in the Tennessee Supreme Court opinion, Hannan v. Alltel Publishing Company.  In 2008, the Hannan decision sought to clarify the summary judgment standard in Tennessee making it clear that Tennessee did not adopt the “put up or shut up” standard that had long been applied in Federal Court.   Now the new statute will serve to overrule Hannan and adopt the “put up or shut up” standard through the second of its two prongs.Watch movie online The Transporter Refueled (2015)

 

The new statute will allow the Defendant to prevail on a Motion for Summary Judgment if he:  1) Submits affirmative evidence that negates an essential element of the nonmoving party’s claim; or  (2) Demonstrates to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.  In comparison, the Hannan decision required that the moving party either: 1) Afffirmatively negate an essential element of the nonmovant’s claim; or 2) show that the nonmoving party cannot prove an essential element of its claim at trial.  The addition of the “at trial” language in Hannan caused confusion as to when a trial judge could safely dismiss a meritless case making it more difficult to have a case dismissed at the summary judgment phase.  However, under the new statute, if a Defendant can show after discovery that the Plaintiff does not have sufficient evidence to establish one of the elements of their claim, the burden will shift to the Plaintiff to “put up” the proof or summary judgment will be granted. Therefore, the new standard will hopefully weed out frivolous claims prior to the trial phase of litigation and deter the filing of the more difficult cases to prove.

 

However, the Hannan standard should not be shelved by attorneys too quickly as it will still be utilized in cases filed prior to July 1, 2011.  We can also expect that there will likely be constitutional challenges to the new statute in the future as cases are appealed. Other interesting questions of law will likely emerge such as which standard applies, especially in cases which are nonsuited and refiled after July 1, 2011. If one reads the Myers v. AMISUB (SFH), Inc., opinion, which addressed whether the new notice and certificate of consultation requirements applied in a medical malpractice case nonsuited and refiled after the new statute went into affect, there is a good chance that the better argument will be that the new summary judgment standard will apply to nonsuited cases refiled after July 1, 2011.  This could also affect the amount of nonsuits filed by Plaintiffs in cases filed prior to July 1, especially if they have concerns that they could not survive the new standard.

Jessica Hackett Joins Firm

August 12th, 2011

Shuttleworth PLLC is pleased to welcome attorney Jessica Hackett as the firm’s most recent associate.  Jessica is licensed in Tennessee state courts, and in federal courts in the Western District of Tennessee and the Sixth Circuit Court of Appeals.  Jessica has previously worked as a clerk for Hon. Karen R. Williams in the Circuit Court for Shelby County, Tennessee.

Click here to learn more about Jessica Hackett.

Shuttleworth PLLC Attorney Profiled For Book

August 8th, 2011

Shuttleworth PLLC’ attorney Joe Leibovich has authored a humorous book, “Too Fat For Europe,” which Memphis’ newspaper, The Commercial Appeal profiled in advance of a book signing to be held Tuesday night at a local bookstore.  You can read the article here.

Tennessee Tightens the Rules on What is Considered a Work-Related Injury.

July 13th, 2011

By Bruce Williams
(901) 328-8236
bwilliams@swlawpllc.com

Under legislation signed into law and effective June 6, 2011, the opinion of the physician selected by the employee from a panel of three employer-designated physicians shall be presumed correct on the issue of causation (whether the workcaused the condition in an incident or incidents identifiable by time and place). This presumption may be challenged by another doctor, but the employer’s panel doctor is rebuttably presumed to be correct on causation.

Cumulative trauma conditions such as hearing loss, carpal tunnel syndrome, and other repetitive motion injuries (“gradual injuries”) are not deemed work related unless the panel doctor says the condition “primarily” arose out of and in the course of the employment. Again, another doctor can attempt to challenge afinding by the panel doctor, but the panel doctor is rebuttably presumed to be correct, i.e. unless the authorized doctor is felt to be wrong with a reason demonstrated in evidence, the judge is bound to accept the employer‐authorized doctor’s opinion. This makes the need for compliance with the Dept. of Labor Rules on offering medical care for work injuries all the more important.

The employer must use theC‐42 Panel of Physicians Form and get the employee to sign the form after the employee makes his/her choice of treating doctor from the panel of threephysicians (five choices including a chiropractor for claims of back injury). If the employer does not provide a proper panel, using proper paperwork offered on a timely basis, an otherwise good defense to the claim will be forfeited. Under this law change, the employer takes a great risk in denying a claim without having the employee evaluated by a panel doctor chosen by the employee, so that the employer has the benefit of the authorized doctor’s opinion oncausation, and whether the condition “primarily” relates to the work.

For more information on the new Tennessee requirements, call Bruce Williams at 901-328-8236.

Ken Shuttleworth To Address Security Professionals

May 31st, 2011

ASIS International, the largest organization for security professionals worldwide, has invited Ken Shuttleworth to be a guest lecturer at its 2011 Annual Meeting to be held in Orlando, Florida on September 18, 2011. The program will deal with identification and preparation of a company witness to be offered for deposition under Rule 30(b)(6) of the Federal Rules of Civil Procedure.  Jon Groussman of CAP Index, Inc will also participate.  This follows a similar presentation he made to  the Asset Protection Conference/Food Marketing Institute in Orlando, Florida on March 8, 2011.  The subjects to be covered include witness selection, preparation for deposition, presentation at deposition, and why these issues require a team approach including the roles of management, defense counsel, and the identified company representative.

 

John Cannon Outlines Commitment To Service

December 29th, 2010

Incoming Memphis Bar Association President and Shuttleworth PLLC attorney John Cannon is focused on service to the community.  In an article in the December 30 Daily News, Cannon discussed outreach programs to high school students and the general community, as well as opportunities for the Memphis Bar to assist other programs in the city.  The article can be found here.

John Cannon Begins Tenure As Memphis Bar Association President

December 6th, 2010

Congratulations to Shuttleworth PLLC member John Cannon, who has begun his tenure as the President of the Memphis Bar Association.  John’s term began last week at the MBA’s annual bar meeting, which was attended by many members of the city’s legal profession as well as Memphis mayor A.C. Wharton.Watch movie online The Transporter Refueled (2015)

John is looking forward to serving the MBA and it’s membership over the next year, and said,  “I am honored to be chosen to lead the Memphis Bar Association in 2011. I hope to increase the participation of our members in efforts to improve our community and profession.”

Abby Webb Elected To Leadership Role

November 22nd, 2010

Abby Webb, attorney at Shuttleworth PLLC, was elected to serve as the 2011 Vice President/President-Elect by the Memphis Bar Association Young Lawyers Division (YLD) at its annual meeting held on November 18, 2010.  Ms. Webb has served on the Board of Directors for the YLD for the past two years.

Shuttleworth PLLC Opens Knoxville Office

November 1st, 2010

Shuttleworth PLLC is proud to announce that effective November 1, 2010, the firm has opened a new office in Knoxville, Tennessee.  The firm is also pleased Lane Wolfenbarger has joined the Shuttleworth PLLC team and will be working out of the new Knoxville office.

The address of the Knoxville office is 200 Prosperity Drive, Knoxville, TN 37923.  The telephone number is: 865-622-7118.

Shuttleworth PLLC now has offices in Memphis, Nashville and Knoxville to serve our clients’ needs on a state-wide basis.

Presentation Takes Honors

October 14th, 2010

Shuttleworth PLLC’ attorney Joe Leibovich’s presentation on utilizing improvisational skills in business took second place in the inaugural Ignite Memphis event.  The event, which featured 15 presentations that were hand selected from those who submitted ideas, took place October 12 at Playhouse on the Square.

The presentations at Ignite Memphis included a diverse range of topics, from political issues, to health concerns, to artistic endeavors.

For more on the event, check out this article in the Commercial Appeal.

Shuttleworth PLLC Moves Into New Nashville Office

October 5th, 2010

Shuttleworth PLLC has moved into its new Nashville offices.  The firm is now located in the Wells Fargo Building (formerly the Wachovia Building) in the heart of Downtown Nashville.

Our Nashville address and other contact information is now:

230 4th Avenue North
Suite 500
Nashville, TN 37219

(615) 833-3390  Telephone
(615) 833-3767  Facsimile

Tennessee Flood Victims Need Help

May 5th, 2010

Last weekend’s devastating flooding in the Mid-South has hit Nashville particularly hard.

It may be a very long time before the city and its residents fully recover from the astonishing floods that struck Nashville. In the meantime, a lot of people need a lot of help.

Attorneys and staff members of the Shuttleworth PLLC Nashville office have pitched in to help one family recover from the flood.    This week the Shuttleworth PLLC team helped a Nashville School of Law student and his family remove carpet and drywall from their flooded home.

There are many ways to help out victims of the flood.  If you want to volunteer your time, you can contact Hand On Nashville.  Among the organizations taking monetary donations to assist in flood relief is the Community Foundation of Middle Tennessee.

Shuttleworth PLLC Attorneys Help Potential Future Lawyers

March 10th, 2010

Shuttleworth PLLC attorneys John Cannon and Abby Webb were highlighted in this article in the Memphis Commercial Appeal for their efforts with the Shelby County High School Mock Trial Competition.  Abby serves on the Board of the Young Lawyers’ Division of the Memphis Bar Association, which organizes the annual competition.  John was one of the judges of the finals, which saw St. Mary’s take first place and White Station High School garner second place honors.

Other Shuttleworth PLLC attorneys who assisted in the judging during the competition include Ed Curry, Amy Hickerson, Joe Leibovich, and Robert Talley.

Amy Hickerson Joins Shuttleworth PLLC

February 23rd, 2010

Shuttleworth PLLC is pleased to welcome Amy Hickerson as the newest associate to the firm. Amy has a distinguished academic background and served as a judicial law clerk to Magistrate Judge Diane K. Vescovo of the United States District Court for the Western Division of Tennessee.Watch movie online The Transporter Refueled (2015)

Click here to learn more about Amy.

Shuttleworth PLLC Member Becomes Vice President of Memphis Bar Association

February 8th, 2010

Shuttleworth PLLC’ managing member John Cannon has taken the position of Vice President of the Memphis Bar Association. He will serve as President next year.Watch movie online The Transporter Refueled (2015)

In addition, John has been named to the Tennessee Super Lawyers in ADR for the second year in a row.

Jury Finds In Favor of Shuttleworth PLLC Client

December 18th, 2009

Shuttleworth PLLC attorney Robert Talley successfully defended a driver in a six day jury trial in Shelby County Circuit Court. Plaintiff, who suffered a significant brain injury and loss of earning capacity in the collision was found by the jury to be 90 percent at fault. Plaintiffs had requested a judgment of $5,000,0000.00.

Rob Briley Joins Shuttleworth PLLC

December 7th, 2009

Attorney Rob Briley has joined the Shuttleworth PLLC office in Nashville. Learn more about Rob through his bio.

Shuttleworth PLLC Attorney Re-Elected to Board

November 20th, 2009

Shuttleworth PLLC attorney Abby Webb has been re-elected to serve on the Board of the Memphis Bar Association’s Young Lawyers’ Division. Abby is one of only nine board members.

Employment Discrimination Based on Genetic Information Can Lead to Employer Liability

November 10th, 2009

By R. Joseph Leibovich
Shuttleworth PLLC
(901) 328-8269
jleibovich@swlawpllc.com

I. GINA

Questions about family medical histories could cause employers serious problems beginning later this month. The Genetic Information Nondiscrimination Act of 2008 (GINA) was passed by congress to prohibit discrimination in health insurance and employment on the basis of genetic information. The portion of GINA applying to employers takes effect on November 21, 2009.

For employers with 15 or more employees, GINA prohibits discrimination in hiring, firing or other terms or conditions of employment based on genetic information related to an employee, and it further prohibits requesting, requiring, or purchasing genetic information related to an employee or family member of an employee.

The term “genetic information” includes an individual’s genetic tests or such tests of a family member as well as the manifestation of a disease or disorder by an employee or an employee’s family members. “Genetic information” does not include age or gender. Genetic testing can include analysis of such things as an individual’s DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or changes to one’s chromosomes.

The anti-discrimination portion of GINA has no exceptions as some other laws do. The EEOC takes the position that GINA is to be strictly enforced.

In addition to anti-discrimination provisions, GINA has significant confidentiality provisions related to employers. While GINA prohibits most acquisition of genetic information, this prohibition is not absolute. For example, an employer may inadvertently obtain such information, a wellness program may collect such information (with restrictions), it may be obtained when necessary to certify Family and Medical Leave Act leave, or through commercially and publicly available sources such as magazines, newspapers, and books. Genetic information may also be obtained with certain safeguards when genetic monitoring is used to measure the effect of toxic substances in the workplace or where employees are involved in DNA analysis for law enforcement purposes.

When an employer does obtain genetic information, that information must be treated confidentially, similar to how medical records are treated under the Americans With Disabilities Act (ADA). Such records must be kept in separate medical files, and can only be disclosed under certain circumstances.

The EEOC takes the position that harassment against individuals based on genetic information is prohibited by GINA, even though there is no such language in the statute. However, the statute does specifically state that there is no disparate impact cause of action under GINA. However, under the terms of the law, that issue will be revisited by a Commission in six years.

Violations under GINA can lead to a lawsuit in which the alleged victim can seek all the remedies he or she could seek under Title VII of the Civil Rights Act of 1964, as amended, including reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and compensatory and punitive damages, and attorneys’ fees and costs. Title VII’s cap on compensatory and punitive damages also apply under GINA.

The EEOC has published a new anti-discrimination poster incorporating GINA as well as recent changes in the ADA. Employers can obtain these new posters for free here.

II. WHAT DOES THIS MEAN TO EMPLOYERS?

Covered employers should print out the new posters and post them appropriately. Employers should also be very careful to avoid discrimination against individuals based on genetic factors, and should take steps to avoid improperly obtaining and disclosing such information. As always, if an employer is faced with an issue of whether or not to disclose such information, that employer should seek specific legal advice.

It is also worth noting that GINA does not replace or overturn prior laws, such as the ADA or the FMLA.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.

How Do Businesses Manage Violent Crime Risks?

October 23rd, 2009

Ken Shuttleworth of Shuttleworth PLLC presented a one hour webinar on Managing Violent Crime – From Prevention to Litigation. The webinar was attended by over 400 persons nationwide.

The risk of violent crime occurring on a company’s property is on the rise. Serious violent crime undermines an organization’s reputation, employee morale and leads to costly litigation. Savvy executives know that effectively managing violent crime requires a strategic approach – one that spans the spectrum from crime prevention to litigation.

The 60-minute webinar covered:
• The proper methodology to assess risk throughout a portfolio of properties
• How to articulate a risk assessment program and enhance crime prevention
• Post-incident response and consequence containment
• A legal overview of Premises Security Liability
• Preparing for litigation and understanding the discovery process
• Working with outside counsel to maximize a positive outcome
• A case study to remember: The pitfalls and triumphs of trial

You may view the webinar in its entirety at this link.

Shuttleworth PLLC Member Profiled

September 2nd, 2009

The Memphis Commercial Appeal has profiled Shuttleworth PLLC member Joe Leibovich and his wife in a September 1, 2009 feature article. A copy of this story is located here.

Shuttleworth PLLC Attorney Named to Inns of Court

July 30th, 2009

The Leo Bearman, Sr. Memphis Chapter of the American Inns of Court has elected Shuttleworth PLLC attorney Scott Hickerson into the group. Scott joins fellow Shuttleworth PLLC attorneys John Cannon and Abby Webb in the Memphis Chapter.

The American Inns of Court have chapters in cities throughout the United States, and is modeled after the British Inns. Membership is comprised of attorneys and judges who are deemed to to exemplify the highest standards of professionalism.

New Minimum Wage Takes Effect

July 27th, 2009

By R. Joseph Leibovich
Shuttleworth PLLC
(901) 328-8269
jleibovich@swlawpllc.com

On July 24, the federal minimum wage increased from $6.55 per hour to $7.25 per hour. This is the third increase in the past three years. Some states have minimum wages higher than that set by the federal government, and some have a lower minimum wage. Other states have no specific minimum wage law. In those cases where there are different minimum wages under state and federal law, employers must pay the higher rate. Tennessee has no state-specific minimum wage law. The United States Department of Labor has posted a map of the various states’ minimum wage laws here.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.

Ricci v. DeStefano: Putting Employers Between a Rock and a Hard Place

July 2nd, 2009

By R. Joseph Leibovich
Shuttleworth PLLC
(901) 328-8269
jleibovich@swlawpllc.com

The United States Supreme Court has put employers in spot where they may not be able to tell which way to go if they want to avoid Title VII litigation.

I. The Case

On June 29, 2009, in Ricci v. DeStefano, the Court reversed a decision from the Second Circuit (which, interestingly, Supreme Court nominee Sonia Sotomayor heard as part of a panel).

At issue in Ricci were tests administered by the city of New Haven, Connecticut, to determine which members of the fire department are eligible for lieutenant and captains positions. In 2003, 118 New Haven firefighters took the qualifying examinations. The passage rate for White applicants was significantly higher than it was for Black and Hispanic applicants.

Following heated discussions, the city threw out the tests for fear of facing a disparate-impact race discrimination claim. Some of the White applicants who passed the test sued, and the district court granted the city summary judgment. The Second Circuit affirmed.

The Supreme Court, however, took a different view.

Initially, Title VII of the Civil Rights Act of 1964 did not contain a “disparate-impact” cause of action. That is, it only addressed intentional discrimination based on race, among other factors. However, the United States Supreme Court in cases such as Griggs v. Duke Power Co., 401 U.S. 424 (1972) and Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) recognized a cause of action for disparate-impact claims, in which a facially neutral practice is discriminatory in effect. Employers could defend such practices by showing that the practice is job-related. In such cases a plaintiff would then have to show legitimate alternatives to the practice that had less of a discriminatory impact.

As part of the Civil Rights Act of 1991, Congress codified these concepts.

In the Ricci case, the city of New Haven faced a real dilemma. There was no question that test did have a disparate impact on minority candidates. This ultimately led the city to decide to throw out the test results. However, in doing this, the City actively discriminated against White applicants who had successfully taken an objective test. So, the City appeared to be in a position of avoiding either intentional discrimination against the White employees, or of avoiding unintentional discrimination of the minority candidates.

The United States Supreme Court held that the City’s decision violated Title VII.

The Court noted that there is an apparent conflict in Title VII’s intentional discrimination and disparate-impact provisions. And, the Court set out to try and provide guidance in how to deal with such conflicts. The Court adopted a “strong-basis-in-evidence” standard. Under this standard, an employer can only make race-based decisions in cases where “there is a strong basis in evidence of disparate-impact liability, buit it is not so restrictive that it allows employers to act only when there is a provable, actual violation.”

In Ricci, the Court determined the City did not have a strong-basis-in-evidence to believe that it would face liability under a disparate-impact claim. The Court acknowledged that there was a prima facie claim of disparate-impact based on the passing percentage of minority applicants. However, the Court concluded that although a prima facie case could have existed, the City could not show a strong basis to show it would have ultimately been liable for such claims as it appears that the tests likely would have been deemed to be consistent with job necessity, and it appears that there likely were not less-discriminatory methods than the tests that would have served the City’s needs.

Therefore, the Court held the White firefighters were entitled to summary judgment on their Title VII claim for intentional discrimination. Based on this, the Court decided it need not address the issue of whether or not the City’s actions violated the Equal Protection Clause of the U.S. Constitution. And, interestingly, the Court noted that it specifically did not hold that the very standard it announced would satisfy the Equal Protection Clause. This remains a very open issue.

II. What Does This Mean To Employers?

Ricci may well put employers in a quandry. Employers who utilize objective test or application standards that have a disparate-impact on minority applicants now can not simply err on the side of caution and boot the results of those standards. An employer that finds itself in this position must now go through a legal analysis and, essentially, determine how it would fight and either win or lose a disparate-impact claim before deciding if it can ignore the results of the facially neutral standards. But, either way an employer decides in these cases, there is a real risk of litigation.

Of course, the best plan of action is to try to make standards as “bullet proof” as possible. Make sure employment or promotion testing or standards are absolutely necessary for the position. Analyze whether or not such standards are likely to have a disparate-impact, and, if so, determine whether or not there are other ways to reach the same goals that likely have less of a potentially discriminatory impact.

This is, admittedly, easy to say on paper. Sometimes it is impossible to know for sure what may or may not have a disparate-impact that favors one protected group over another. So, when the spectre of disparate-impact discrimination appears after standards have been applied, employers need to take a step back and really balance out the potential dangers of a disparate-impact claim on one hand and an intentional discrimination claim on the other. If the employer does not have a strong basis – based on the facts of the case – that it would lose a disparate-impact claim, then that employer would be facing real danger in erring on the side of avoiding the disparate-impact liability and in taking action that amounts to intentional discrimination against the protected group that was not adversely affected by the standards in question.

Unfortunately, Ricci will likely lead to employer confusion and make it difficult to decide which way to move. This is one of those situations where an employer simply has to make an educated guess as to which path is less dangerous. And, of course, that provides employers little comfort. It puts employers in the position of essentially having to figure out how they would fare in a non-existent lawsuit before deciding which way to lean in a conflict inherent in Title VII. But, being able to legally analyze these issues should at least help employers head in the right direction, which is why this is an area where consultation with an attorney prior to making a decision could be invaluable.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.

Changes in the Tennessee Workers’ Compensation Law

May 28th, 2009

By Bruce E. Williams
Shuttleworth PLLC
(901) 328-8236
bwilliams@swlawpllc.com

The Tennessee Legislature has passed legislation aimed at reversing the impact of a 2007 Tennessee Supreme Court ruling that awarded death benefits to the widow of a worker who suffered a fatal heart attack while playing basketball on company property.

The new law prohibits compensation awards for an injury or death due to participation in recreational, social, athletic, or exercise activities, whether or not the employer picks up some or all of the cost.

But it would allow compensation when:

– Participation was expressly or impliedly required by the employer.
– Participation produced a direct benefit to the employer beyond improvement of its employees’ health and morale.
– Participation was during work hours and was part of the employee’s job duties.
– The injury or death was caused by an unsafe condition, known by the employer, but unwarned by the employer to others.

A summary of the bill and a history of actions are here.

The Legislature has also passed a new law governing communication by employers, insurers and attorneys with physicians in WC claims, effective for claims arising after July 1, 2009.
Read the new law here.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.

14 Penn Plaza LLC v. Pyett: The Supreme Court Bolsters Arbitration Clauses in Collective Bargaining Agreements

April 13th, 2009

By R. Joseph Leibovich
Shuttleworth PLLC
(901) 328-8269
jleibovich@swlawpllc.com

The United States Supreme Court recently issued a ruling that arguably represents a drastic change in the enforceability of arbitration clauses in collective bargaining agreements (CBAs). In 14 Penn Plaza LLC v. Pyett, a sharply divided Court all but reversed a line of cases going back more than 30 years.

In Pyett, a group of employees who were members of the Service Employees International Union were employed by a maintenance service and cleaning contractor in a New York building. The building hired a security firm, which led the employer to reassign some of the employees to other duties and locations within the building. Ultimately, some of the employees sued under the Age Discrimination in Employment Act (ADEA) as well as state and local laws, alleging age discrimination.

The employer and the building owners (collectively “Petitioners”) filed a motion to compel arbitration, based on a clause in the relevant CBA which stated, in part “There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, … or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures … as the sole and exclusive remedy for violations.”

The District Court denied the motion, and the Second Circuit upheld the denial on the basis of the U.S. Supreme Court’s 1974 decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), which the Second Circuit noted held that a CBA could not waive an individual employee’s rights to file a cause of action when such a cause of action is created by Congress. The Second Circuit noted that there exists some tension between Gardner-Denver and a 1991 U.S. Supreme Court decision, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), which held than individual employees could waive the right to a private cause of action under the ADEA in the face of an individually entered into arbitration agreement.

The Pyett Court reversed the Second Circuit.

Writing for the majority, Justice Thomas noted that under the National Labor Relations Act (NLRA), the Union is the exclusive representative of employees for the purposes of collectively bargaining over rates of pay, wages, hours of employment and other terms and conditions of employment. The Court stated that claims of discrimination, including those under the ADEA, are clearly conditions of employment and therefore subject to mandatory bargaining. Thus, the Court reasoned, an arbitration clause regarding claims under the ADEA, are enforceable.

The Pyett Court held that unless a statutory cause of action specifically bars mandatory arbitration agreements, then such agreements are enforceable. The ADEA has no such bar.

The Court further stated that Gardner-Denver and its progeny do not prohibit such mandatory arbitration clauses in CBAs. The majority opinion stated that Gardner-Denver refused to enforce an arbitration provision because the clause in question did not specify that statutory claims must be arbitrated.

The majority opinion recognized that Gardner-Denver and the cases that followed contained dicta critical of arbitration. The Court dismissed several concerns over the efficacy of arbitration.

The Pyett Court held that a “collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.”

Four Justices disagreed with this decision, and Justice Stevens and Justice Souter both authored dissents (with Justices Ginsberg and Breyer joining) very critical of the majority’s decision. Justice Stevens wrote that the opinion disregard’s the Supreme Court’s precedent. Justice Souter noted that Gardner-Denver expressly forbade the enforcement of an arbitration clause in a CBA regarding an individual’s Title VII claim. Justice Souter’s strong dissent added “The majority evades the precedent of Gardner-Denver as long as it can simply by ignoring it.”

Justice Souter does note that the majority opinion reserved the question of whether a CBA’s waiver of claims is enforceable when the union controls access to and presentation of employee claims.

However, the dissent strongly argues that this decision blatantly ignores precedent established by Gardner-Denver and numerous subsequent cases.

The majority opinion, of course, does not agree. However, the Court noted that even if the dissent’s interpretation of Gardner-Denver is correct, then that case would “appear to be a strong candidate for overruling…”

What Does This Mean to Employers?

The Pyett case is confusing. While it is technically limited to ADEA claims, the majority’s analysis would appear to be applicable to all claims, despite the language in Gardner-Denver. If employers want a mandatory arbitration clause in a CBA (or, for that matter, in a private agreement), the clause should be clear and explicitly name the statutory rights which are to be covered by the clause. It is not enough to simply say “all claims must be arbitrated.” The clause should specifically list all statutory claims that are subject to arbitration. Employers must also be cognizant that Pyett may not reach Title VII claims. However, it appears that a good argument could be made that Pyett should apply to all statutory claims in which the statute does not prohibit mandatory arbitration. Of course, it will take some time before we know whether or not that is the case, and employers should be aware of this concern. In any case, all arbitration clauses, whether in a CBA or in an individual agreement outside the union setting, should be as clear and explicit as possible.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.

New FMLA Regulations Give More Coverage to Military Families and Change Other Rules of the Game

April 1st, 2009

By R. Joseph Leibovich
Shuttleworth PLLC
(901) 328-8269
jleibovich@swlawpllc.com

The Department of Labor issued new regulations to the Family and Medical Leave Act (FMLA) that provide greater coverage for military families while clarifying some long standing FMLA issues. The regulations, which went into effect earlier this year, present employers with significant changes in FMLA related issues.

Generally speaking, the FMLA applies to employers with 50 or more employees, and only employees with one year or more of service to the employer with 1,250 hours of service in the 12 months prior to the leave are entitled to FMLA leave. Under the FMLA, qualified employees are entitled to twelve weeks of unpaid leave during a year:

– for the birth and care of the newborn child of the employee;
– for placement with the employee of a son or daughter for adoption or foster care;
– for the care of an immediate family member (spouse, child, or parent) with a serious health condition; or
– for an employee’s own serious health condition.

Covered Servicemember Leave
Recent changes in FMLA regulations incorporate the National Defense Authorization Act for FY 2008 (NDAA). Under the new regulations, there are two types of new leave. The first is for family members of covered members of the armed services due to that service member’s serious illness or injury that was incurred in the line of active duty. The regulations provide 26 weeks of leave for this purpose. In addition to extending the 12 week period for this purpose, the regulations also extends coverage for this purpose to the servicemember’s next of kin, as opposed to the more narrow coverage provided under the FMLA for those eligible for leave to care for a relative’s serious health condition.

Qualifying Exigency Leave
The new regulations also allow for Exigency Leave for qualified family members of an individual serving in the National Guard or Reserves. This provision provides that such qualified employees can utilize their FMLA leave (up to 12 weeks unpaid) in the following exigencies that are related to the service member’s active duty or contingency operations:

– Short-notice deployment
– Military events and related activities
– Childcare and school activities
– Financial and legal arrangements
– Counseling
– Rest and recuperation
– Post-deployment activities
– Additional activities agreed to by the employer and employee

The Department of Labor has created forms for these military related leaves.

Other Changes and Clarifications
While the military leave issues have garnered the most attention, the new regulations touch on other areas. These include:

Break in Service
In order to qualify for FMLA leave, an employee must have worked for an employer for 12 months. However, these do not have to have been 12 consecutive months. Under the new regulations, if the employee has worked for the employer for 12 months over a seven year period, that employee is eligible for FMLA leave if all other requirements (including 1,250 hours worked in the 12 months prior to leave) are met. Different rules apply for servicemembers that essentially require an employee to count periods prior to a break in employment due to military service.

Applying Ragsdale: The Department of Labor changed the regulations to indicate that an employer is not liable under the FMLA unless the employee demonstrates actual, individual harm for an FMLA violation. This is to comport with the United States Supreme Court’s decision in Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002).

Light Duty Work: Light duty work does not count against an employee’s FMLA leave.

Release of Claims: Employees may voluntarily release FMLA claims with court or Department of Labor approval, however future FMLA claims can not be waived.

Serious Health Condition: The new regulations clarify issues related to what constitutes a serious health condition under the FMLA. The FMLA provided one definition as more than three consecutive days of incapacity plus two visits to a health care provider. Under the new regulations, this is clarified to mean that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit must take place within seven days of the first day of incapacity. This same seven day rule applies to another definition of aserious health condition which requires more that three consecutive days of incapacity plus a regimen of continuing treatment. The regulations also define that “periodic visits” to a health care provider for purposes of FMLA leave for chronic health conditions means two or more visits in a year.

Paid Leave: An employer must allow employees to take accrued paid leave in lieu of unpaid leave under the same rules that would apply to all other employees. This applies to vacation as well as “personal leave” or any other paid leave policies. An employer may waive any procedural requirements for the taking of paid leave if it is to be utilized for FMLA purposes.

Perfect Attendance Awards: Employers do not have to provide perfect attendance award when an individual only misses work due to FMLA leave, provided that all other leave is treated similarly.

Employer Notice Requirements: The new regulations place various notification requirements on how employers must advise employees of FMLA rights. These include a general notice through a poster and either an employee handbook or other notification upon hire, eligibility notices, rights and responsibilities notices, and designation notices. The notification period for employers has been extended from two business days to five.

Reporting Absences: Employees are required to follow usual procedures for reporting an absence occasioned by an unforeseeable need for FMLA, unless unusual circumstances exist.

Certification: The Department of Labor has created forms for certification of serious health conditions. If an employer feels that a medical certification does not provide enough information, the employer must specify in writing what is lacking and give the employee seven days to cure the issue. When an employer needs to seek clarification or gather information from a health care provider about an employee’s condition, only a health care provider, human resources professional, leave administrator or management official may make such contact. However, an employee’s direct supervisor can not request such information. When such information is requested, it can not exceed what is required by certification forms. The new regulations have updated model forms for employers to use for this purpose. Furthermore, if the health care provider is covered under HIPAA, the employer must obtain a HIPAA compliant authorization form from the employee before contacting the health care provider. If the employee refuses to provide

Recertification: When a medical condition lasts for more than a year, an employer may request recertification each year. For other ongoing conditions, recertification may be requested every six months (previously, this was every 30 days).

Fitness-For-Duty: Employers may require fitness for duty certifications that address the employee’s ability to perform the essential functions of their job, and may require certification when an employee returns from intermittent leave where reasonable job safety concerns exist.

The Department of Labor has provided various forms for dealing with various aspects of the FMLA, including those in the new regulations. These are available here.

What Does This Mean to Employers?

The FMLA has never been the easiest law for employers to administer. The new regulations certainly do not change that.

In light of the new forms of leave as well as the changes and clarifications to the prior regulations, employers need to review and revise their FMLA policies, as well as policies related to absenteeism, “call in” procedures, and how paid leave is utilized.

Employers should also review the forms they use for FMLA certification purposes, or, better yet, obtain and utilize the forms created by the Department of Labor.

The changes in the regulations provide employers with a very good reason to take care of what should be regular maintenance and review of existing policies.


The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.

The Lilly Ledbetter Fair Pay Act: Paycheck Discrimination Claims Get A Longer Life

March 18th, 2009

By R. Joseph Leibovich
Shuttleworth PLLC
(901) 328-8269
jleibovich@swlawpllc.com

The first bill President Obama signed into law shortly after taking office was the Lilly Ledbetter Fair Pay Act of 2009. The law was specifically designed to nullify a Supreme Court decision, and to extend the reach of potential claims regarding disparate pay discrimination claims under Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

History

The legislation was triggered by the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). Lilly Ledbetter (“Ledbetter”) worked at a manufacturing facility as a salaried employee from 1979 through 1998. In March 1998 she filed a charge with the EEOC alleging discrimination based on her gender. After retiring in November 1998, Ledbetter filed a charge of discrimination with the EEOC. Ultimately, she filed a lawsuit under Title VII and under the Equal Pay Act (“EPA”). The EPA claim was dismissed by the trial court, while the Title VII claim went forward.

Ledbetter alleged that decisions regarding pay were based on supervisor evaluations, and that during the course of her employment, she was given negative evaluations due to her gender. The jury awarded her backpay and damages.

The case went through the appellate process, and ended up at the United States Supreme Court. The issue before the Court involved a statutory requirement for claims under Title VII. Specifically, Title VII requires that before a plaintiff may file a case in court, that individual must file a charge of discrimination with the EEOC. The individual must file that charge within 180 days of the alleged discriminatory act (or, in states such as Tennessee where there is also a state law protecting the same rights, the filing period is extended to 300 days).

In Ledbetter’s case, the negative evaluations in question took place more than 180 days before she filed her charge.

The issue was whether or not a new 180 day period commenced with each paycheck, or whether the evaluations represented “discrete acts” of discrimination from which the 180 day began to run.

The Ledbetter Court held that the pay system, which was based on supervisor recommendations, was not established for discriminatory purposes. Therefore, the Court reasoned that the supervisors’ recommendations stood as discrete acts. Since these acts occurred more than 180 days prior to the charge, the Court ruled that Ledbetter’s claim was not timely.

The Lilly Ledbetter Fair Pay Act of 2009

This decision, along with a strongly worded dissent by Justice Ginsburg, set legislative wheels in motion. The Lilly Ledbetter Fair Pay Act was initially shot down in the Senate in 2008, but was re-introduced, and ultimately passed the House and Senate in January 2009 as The Lilly Ledbetter Fair Pay Act of 2009. President Obama signed the bill into law days after that.

The law explicitly legislatively reverses the Ledbetter decision. Under the law, each paycheck triggers a new 180 (or 300) day period within which to file a charge of discrimination when the amount of the paycheck is affected by a discriminatory reason. This is a reintroduction of the “paycheck accrual rule” that the EEOC and most federal courts of appeals had applied prior to the Ledbetter decision.

The law does not only apply to discrimination based on gender. It applies to all categories protected by Title VII, the ADA, the ADEA and the Rehabilitation Act.

Under the Act, back pay of up to two years is recoverable where the acts earlier than 180 (or 300) days prior to the charge are similar or related to the acts within the statutory period.

The Act was enacted so as to retroactively apply to May 28, 2007 forward.

It is important to note that this law does not affect the Equal Pay Act, which is separate from Title VII. The EPA does not require the filing of an EEOC charge. In Ledbetter, the plaintiff’s EPA claim had been dismissed on summary judgment and she did not pursue that issue in appeals.


What Does This Mean to Employers?

The Act gives Title VII claims a significantly longer shelf life. Actions from the distant past can continue to haunt employers for as long as an individual draws a paycheck. In an effort to potentially limit liability, employers should look at how compensation decisions have been made. Where there has been subjectivity that could have been influenced by discriminatory intent, employers should consider make sure individuals’ compensation is not inequitable or influenced by discrimination. By fixing past mistakes now, employers can possibly break the links of the chain 180 (or 300) days after the appropriate changes are made.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.

Amendments to the Americans With Disabilities Act – Putting Teeth Back Into the ADA

March 11th, 2009

By R. Joseph Leibovich
Shuttleworth PLLC
(901) 328-8269
jleibovich@swlawpllc.com

President George H.W. Bush signed The Americans With Disabilities Act (“ADA”) into law in 1990.  The law was designed to eradicate employment discrimination against qualified individuals with a disability.

What Congress likely did not anticipate in the passage of the ADA is that the key issue that would end up being argued about in the courts is whether or not an individual does or does not have a disability.

In the years following the passage of the ADA, lawsuits began to make their way through the court system that focused on the issue of disability.

In 1999, the United States Supreme Court issued decisions in three cases that have become known as “the Sutton trilogy”. These cases all had an enormous impact on the ADA.

In Sutton v. United Airlines, 527 U.S. 471 (1999) the Supreme Court reviewed a case involving twin sisters who were denied employment with United Airlines due to their severe myopic vision. However, when the women wore glasses, they could see fine. The Supreme Court held that whether or not an individual is disabled under the ADA should be determined in such individual’s mitigated state. In other words, since the myopia was mitigated by glasses, the individuals were deemed by the Court to not be disabled. The other two Sutton trilogy cases also held that a court must look at an individual in their mitigated state to determine if they have a disability under the ADA.  Murphy v. United Postal Service Inc., 527 U.S. 516 (1999) involved an individual taking blood pressure medication, while Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999) dealt with person with monocular vision who was able to mentally compensate in the use of his vision.

In 2002, the Supreme Court decided another case which employers saw as a victory in the ADA arena. In Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002), the Court looked at a case of an individual with tendonitis and bilateral carpal tunnel syndrome which she claimed restricted her ability to do her job. The Court held this was not an impairment under the ADA, and added “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term.” The Court noted that although someone may be unable to perform a class of jobs, if they could do activities central to one’s daily life – such as taking care of personal hygiene and household chores – such individuals would not qualify under the ADA.

Between the Sutton trilogy and Williams, employers were able to much more easily prevail in summary judgment motions arguing plaintiffs were not qualified individuals with a disability under the ADA.

In 2008, Congress passed the ADA Amendments Act of 2008 (“ADAAA”), which went into effect January 1, 2009. Among the stated purposes of the ADAAA was to legislatively overturn Sutton and Williams, and to focus on employers’ obligations more than on whether or not an individual has an impairment.

The ADAAA specifically states that the definition of “disability” should be broadly construed. As part of this broad construction, the Act states that an impairment limiting one major life activity need not limit other major life activities to be deemed an impairment. Furthermore, an individual can still be deemed to have a disability, even if the condition is episodic in nature or is in remission.

Furthermore, the ADAAA includes a non-exclusive laundry list of things that constitute “major life activities”.  These include caring for oneself, manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  Additionally, the ADAAA lists majorly bodily functions that can trigger coverage, including, but not limited to:  normal cellular growth, immune system, digestive system, bowel, bladder, reproductive system, neurological system, brain, respiratory system, circulatory system, and endocrine system.

The ADA and ADAAA prohibit discrimination against individuals “regarded as” having a disability.  The ADAAA, however, presents employers with potential problems.  Under the ADAAA, discrimination is prohibited against someone who is regarded as having a physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.  Commentators disagree on what the impact of this provision of the ADAAA will have.  Disability rights advocates argue this merely resets the ADA to its original intended purpose.  Others, however, argue that this is a vast expansion of coverage, and that there will be a flood of litigation from indviduals who claim they are regarded as having a disability, regardless of how inconsequential that perceived disability may be.   One point the ADAAA does clarify in relation to “regarded as” cases is that an employer is not required to provide a reasonable accommodation for perceived impairments.  Such accommodations remain legally necessary for actual disabilities.

Congress shot down the Sutton trilogy in the ADAAA, which states that a determination of disability shall be made without regard to mitigation, such as medication, medical supplies, or behavioral or neurological adaptations to a condition. Ordinary glasses and contact lenses, however, may still be taken into account for this purpose.

The ADAAA prohibits employers from utilizing hiring criteria related to uncorrected vision unless such requirements are job related and consistent with business necessity, and the Act mandates that the EEOC issue new regulations consistent with the ADAAA.

What does this mean to employers?

Employers need to be aware of these significant changes.  Hiring, discipline, and termination decisions must be made on an individualized basis.  Employers should be very cautious that they do not actually or arguably discriminate against individuals with actual or perceived disabilities.  One area to watch closely is how courts will deal with the new “regarded as” standards.   There is a very real possibility that this could become a growing area in employment litigation cases.

Employers must realize that they will not have as easy a time prevailing in ADA cases as they have in previous years. Employers should utilize proper hiring, discipline, and termination practices in conjunction with other best practices regarding such things as proper record keeping and accurate employee evaluations if they want to avoid getting bitten by the new teeth the ADA has recently grown.

Joe is presenting a free webinar on the ADAAA on March 18, 2009 at 2:00 p.m. Central time. Click here to sign up.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.