EEOC Issue Proposed Rules on Employer Wellness Programs


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 (], via Wikimedia Commons

EEOC “Celebrates” Equal Pay Day

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.


Cannon Participates In Mediation Seminars

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.

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

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.

Wolfenbarger Begins Term As Judge

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

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

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


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

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.

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?

Rob Briley Named Equity Member

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.”