Tennessee Employment Lawyer Blog

New Tennessee Workers Compensation case may make it harder for Workers to recover benefits.

Thu, 17 May 2012 10:28:36 -0500

The Tennessee Supreme Court has recently denied TN workers’ compensation benefits to a lineman for Fayetteville Public Utilities who was injured on the job.
What is important, and disturbing, about this case is that the Supreme Court held that the worker, by removing his safety gloves, engaged in a “willful” act of disregard for established safety policies. They reversed an earlier court’s decision and ordered that he be denied benefits.

The reason this case is important is it changes what has always been a "no-fault" based system to help injured workers. In other words, the system was established with an understanding that accidents occur at work that are both the fault of the employee and the employer. We all make mistakes. Based upon that understanding the law was drafted so a worker does not get punished if he accidentally causes and accident nor will the employer be punished if it accidentally causes an accident. The sole consideration was whether the employee got hurt at work. With this case, however, we move away from that system and now punish an employee if they make a mistake and fell to follow a safety rule. Obviously, no one wants a life changing injury but now if you accidentally cause an accident you may be left out in the cold. To the contrary, if the employer breaks a safety rule then there is no repercussions under the Tennessee Workers Comp Act. They employer will be protected by the act regardless of fault.

As a Tennessee Workers Comp Lawyer I have been litigating these cases for almost twenty years now. Over these years I have seen the legislature and the courts take away basic benefits that will help an employee get the medical help and financial assistance they need to survive. Although there are still benefits available the fight has become harder over the years and I have seen good working men and women surfer. It is unfortunate.

Pizza Hut Delivery Driver Claims Minimum Wage Violations

Thu, 26 Apr 2012 10:16:54 -0500

A new failure to pay proper wages and overtime pay has been filed against Pizza Hut. In this case, a Pizza Hut delivery driver claims that the Pizza Hut Company violated the Fair Labor Standards Act and the Minimum Wage of Workers Act when they failed to accurately approximate his automotive expenses for reimbursement and this act led to him failing to receive the proper amount for minimum wage. According to the court case, the delivery driver delivered on average two to three orders in one hour and drove five miles for each delivery.

The Pizza Hut Company claims that the driver failed to state a claim for unpaid minimum wage using these facts. The court rejected this argument but looked to certain sections of the Fair Labor Standards Act which state that an employee regular rate of pay does not include travel or other expenses that arise during work. The court looked to the Department of Labor in deciding whether under the Fair Labor Stands Act an employee is allowed to claim that their wages are under minimum wage when they are reimbursed for expensive relating to a vehicle.

According to part of the Department of Labor under the Fair Labor Standards Act, “when an employee incurs expenses on his employer’s behalf or where he is required to expend sums solely by reason of action taken for the convenience of his employer, an employee is eligible for the reimbursement of those expenses. However, those payments are not included in the employee regular pay rate.”

This payment is not considered compensation for services performed by an employee during any hours in a work week. However, if an employer makes inaccurate or unreasonable estimates about expenses then the employee is allowed to claim that their wage was lower because expenses were not accurately reimbursed.

The court decided that the driver accurately pled his approximate costs for running his vehicle and when included with his hourly wage he had accurately claimed that the Pizza Hut Company failed to pay him at least the federal or state minimum wage.

Ingles Market Violated Wage and Overtime Pay Laws According to Lawsuit

Mon, 23 Apr 2012 09:22:14 -0500

Employees who work more than forty hours in one work week are entitled by law to receive overtime pay. However, many companies find ways around this law and many misclassify their employees as being exempt from the pay. If you or someone you know has worked more than forty hours in one work week but failed to receive your overtime pay, then you should speak to a Tennessee employment overtime pay lawyer right away.

According to this case, Nathan D. Gilliard, an Ingles Market co-manager from Madisonville, Tennessee claims that the company willing failed to follow the regulations of the Fair Labor Standards Act. The lawsuit states that the company has a policy in place which denies its salaried non-exempt employees from receiving their overtime pay as required by law.
Gilliard says that, "I worked long hours at the request of Ingles in order to serve my customers and help make Ingles Markets successful. Ingles didn't pay me what it was required to pay me for overtime. We just want to be paid a fair wage for all the hours we've worked." According to the lawsuit, the company has denied its employees overtime pay they deserve by law.

The lawsuit is seeking certification as a class action lawsuit and is seeking to get back unpaid wages, liquidated damages, interest, attorney’s fees, and court costs for eligible Ingles Market employees who wish to be part of the lawsuit.

Aflac Company agrees to pay former employee almost $17,000 in FMLA Lawsuit

Fri, 20 Apr 2012 10:43:37 -0500

When a Tennessee employee or other employee across the United States is suffering from a medical condition or one of their family members is, their employer is required by law to make them eligible for twelve weeks of unpaid, job protected leave per year under the Family Medical Leave Act. Unfortunately, some companies find ways around this law or terminate the employee when they take the leave. If you feel that your rights under FMLA have been violated, then you should talk to a Tennessee employment FMLA lawyer right away. They will work with you and make sure you get the compensation you need.

According to this lawsuit, the American Family Life Assurance Company or Aflac violated the Family Medical Leave Act when they fired an employee who took intermittent leave because of a serious medical condition. The investigation was conducted by the U.S. Department of Labor's Wage and Hour Division. Aflac claims that they failed to classify the leave under FMLA because the employee did not submit a timely request for the leave. The investigation by the U.S. Department of Labor's Wage and Hour Division showed that the request had indeed been submitted in a timely manner.

Aflac has agreed to pay the former employee $16,882. As part of the agreement, Aflac is to maintain compliance with FMLA by properly classifying employees’ FMLA leave in the future.

Supreme Court to Hear Pharmaceutical Representatives Overtime Pay Claims

Fri, 20 Apr 2012 10:39:19 -0500

In the ongoing case involving the GlaxoSmithKline pharmaceutical sales representatives as suit was filed against the company claiming that they did not actually close any sales so they were not exempt from overtime pay laws under the Fair Labor Standards Act. The GlaxoSmithKline Company claimed that if the workers acted like outside sale representatives then they were, and then therefore, they were exempt from overtime pay laws whether or not they actually closed any sales.

When the case reached the appeals court, they conflicted over the issue and the Supreme Court took the case. If the Supreme Court decides to side with the pharmaceutical sales representatives, it would mean that several lawsuits would get a head start and would be able to threaten the company and industry with millions in liability for back pay. If the court sides with the company, then the lawsuits fail and the company and others like it would be able to continue treating their representatives as salaried employees. The question in this case is how literally the Fair Labor Standards Act exemption should and will be taken.

A ruling on the case is expected at the end of June.

What does a Judge consider when ruling on a Tennessee Workers Compensation Case?

Tue, 03 Apr 2012 11:19:31 -0500

Tennessee Workers Compensation cases are unique. When a Judge decides what the case is worth there are very specific factors the law requires them to consider. This factors are set out in both the case law and by statute. They include the injured worker's age, eduction, job history, medical impairment and medical restrictions. Recently, Jim Higgins was explained these factors on an television interview. You can watch the interview by clicking below:

Company Could Face Class Action Lawsuit for WARN Act Violation

Wed, 28 Mar 2012 16:15:59 -0500

Pursuant to the Worker Adjustment and Retraining Notification Act or WARN, an employer is required to provide their employees sixty days of written notice before any major layoffs within the company or before the company closes. Unfortunately, many companies and businesses find ways around this law or fail to follow through with it at all.

According to this case, Katherine McNeel, a former employee of Trainor Glass Co., has brought a class action lawsuit against the former employer for herself and all other people in a similar situation claiming violations related to the Worker Adjustment and Retraining Notification Act or WARN.
According to the lawsuit, on or around February 21, 2012, the Trainor Glass Company fired McNeel as part of a plant closing which means that she was entitled to receive sixty days advance written notice under the WARN Act. The company never gave McNeel sixty days notice of the plant closing or before the termination which is in violation of the WARN Act.

The lawsuit is seeking recovery for McNeel and other people in a similar situation in the amount of sixty days pay and ERISA benefits because of the company’s violation of McNeel’s rights under the WARN Act. For the compensation, McNeel has requested, “an allowed wage priority claim against the defendant in favor of the plaintiff and class members equal to the sum of: (a) unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other ERISA benefits, for 60 days, that would have been covered and paid under the then applicable employee benefit plans had that coverage continued for that period."

McNeel has also asked that the lawsuit be certified as a class action lawsuit. Trainor Glass closed in February and filed for Chapter 11 on March 9th. The lawsuit was part of the bankruptcy case.

PROPOSED LEGISLATION MAKES EMERGENCY ROOMS ACCOUNTABILITY-FREE

Tue, 27 Mar 2012 16:06:40 -0500

A bill introduced in the Tennessee legislature specifically allows hospitals and doctors to provide negligent medical care in Tennessee emergency roomsUnless a patient could prove gross negligence, a standard just short of criminal behavior, there would be no accountability or protection. The legislation is sponsored by Rep. Glen Casada and Sen. Jack Johnson, both from College Grove.

“For example, if you go to the ER with chest pains and the doctor carelessly misdiagnoses you with bronchitis and you go home and have a massive heart attack and die, under the proposed legislation there is no recourse for this kind of sloppiness,” stated Keith Williams, President, Tennessee Association for Justice. “In effect, a doctor would have no responsibility for careless errors that could ultimately cost you your life.”

The current standard for medical negligence already affords protections to ER doctors. ER doctors are protected as long as they deliver care consistent with standards set by their peers—other ER doctors. Only if they fail to meet those standards and harm a patient will they rightfully be held accountable under the present law.

The immunity goes one step further and covers doctors in surgery and the OB unit if the patient is admitted through the ER. This means a patient who goes to the ER will have very little, if any protection from negligence during their entire hospital stay.

This legislation has an unfair impact on pregnant women, children and low-income families since they are more likely to use the ER. Kids in sports go to the ER for injuries, pregnant women often go to the ER whey they are in labor, and the elderly frequently rely on the ER for respiratory illnesses. These vulnerable citizens would be without any protection when seeking needed medical care.

HB 174/SB 360 also places a financial burden on the taxpayers. If recipients of TennCare, Medicare and the uninsured are harmed due to carelessness in the ER, Tennesseans will end up paying the bill for a person’s medical care and treatment resulting from the doctor’s careless error. Medical errors cost the Nation approximately $37.6 billion per year, and this legislation would only add to that cost.

“Should a law be passed allowing ER doctors to commit negligent acts on patients in Tennessee? That’s exactly what this bill does.” said Williams. “With 98,000 people dying each year from medical errors, clearly the answer is NO. The focus should be on improving the quality of care – not on lobbyists seeking to pass a license to harm patients.”

A Common Worker’s Compensation Mistake: Failure to Seek Medical Attention Soon After Injury:

Tue, 27 Mar 2012 14:17:16 -0500

Tennessee worker’s compensation claims may be difficult to prove in court if a specific procedure is not followed by the employee and their employer soon after the injury has occurred. In the past few blogs, I have looked at common mistakes made in Tennessee worker’s compensation cases. Another mistake I often see when clients file these claims is failing to seek reasonable medical attention soon after the injury occurred. In Tennessee, worker’s compensation law requires that the injured employee has the responsibility of proving that they were injured while at the workplace. It may difficult to prove this however, if you do not seek reasonable medical attention almost immediately after you have been injured. This is why it is best to seek the medical attention you need for injury as soon as possible.

Many people may not want to seek medical attention after a work injury because they do not think they need it or because they do not want to leave work in order to seek the medical attention they need. However, if you wait to seek medical attention for a work-related injury, insurance companies may believe that this is a sign that you did not suffer significant injury because you failed to seek treatment for it. If this happens to you, please contact one of our experienced and caring worker’s compensation attorneys immediately. Another important reason to seek medical attention as soon as possible after a work-related injury is because it may take days or weeks for you to realize how injured you are, however, if a doctor examines your injury right away, they be able to detect it shortly after the incident occurred.

White House Proposed Rule for Overtime and Minimum Wage Protections for Home Care Workers

Tue, 27 Mar 2012 12:19:33 -0500

The Fair Labor Standards act protects the overtime and minimum wage rights of most employees unfortunately, however, in some positions workers are not given these rights or protections. One common but controversial exemption is the home health worker. However, the current administration recently took aim at the Labor Department interpretation that was upheld in a 2007 Supreme Court ruling that widened the application of the Fair Labor Standards Act (FLSA) companionship exemption.

The proposed rule, announced by President Obama and Secretary of Labor Hilda Solis, would ensure that home care workers receive minimum wage and overtime.

A White House release noted that “of the roughly 2 million workers who will be affected by this rule, more than 92 percent are women, nearly 50 percent are minorities and nearly 40 percent rely on public benefits such as Medicaid and food stamps. According to the Bureau of Labor Statistics, home health care aides earn about $21,000 a year and many lack health insurance. That is unacceptable.”

“On behalf of the 2.3 million home care and personal assistance workers who are excluded from the basic federal wage and overtime protections afforded to most workers in this nation —and Evelyn Coke, who was denied overtime pay and took her case all the way to the Supreme Court — Paraprofessional Healthcare Institute (PHI) commends Department of Labor Secretary Hilda Solis for proposing revised regulations to the companionship exemption under the Fair Labor Standards Act. We wish Ms. Coke had lived to see this day,” said Steven Dawson, PHI’s president.

“Narrowing the companionship exemption is both fair and smart,” Dawson added. “The proposed revisions are a long overdue acknowledgment that home care workers, who provide long-term care and support for our nation’s elders and people living with disabilities, play a crucial role in supporting America’s families and businesses, so that family caregivers can go to work with the peace of mind of knowing that their loved ones are getting the care they need in the setting of their choice, their homes.The White House has announced a proposed rule to mend the Supreme Court’s decision in Coke by extending minimum wage and overtime protectionsto home health care workers who are employed by third party agencies. Before this decision, Coke, impacted hard working and low paid employees all across the country. Many home healthcare workers, who provide care for the elderly and disabled, were extremely underpaid for the work that they do because of a Fair Labor Standards Act exemption and Coke made this worse by extending this exemption to third party agencies. Coke was a harsh precedent because it crushed the Fair Labor Standards Act narrow construction of the exemption rule and it made a sub-class of low wage employees who could have suffered from wage abuse by third party agencies. The White House’s proposal to mend Coke’s decision is a great decision for these employees and other employees in similar situations all across the country.

The Supreme Court Limits Lawsuits Filed Over the Family Medical Leave Act

Fri, 23 Mar 2012 11:16:51 -0500

In Tennessee and all across the United States employees by law are allowed to take leave for their own medical condition or to care for a loved one under the Family Medical Leave Act. However, a new Supreme Court ruling is now limiting the lawsuits that can be filed against the government because of a Family Medical Leave Act violation. According to the ruling, state workers are not allowed to sue for their employers for compensation for violating part of the federal Family Medical Leave Act. In 2003, the court decided that lawsuits against state employers under the part of the Family Medical Leave Act concerning caring for family members were allowed.

This recent decision concerned part of the act that entitled eligible employees to take leaves to care for their own serious medical problems. The court titled this provision “self-care provision” and it was written in general neutral terms. However, some of the justices were divided about whether or not the law meant to discuss sex discrimination. Under the court’s standards, Congress does not have the authority to take away the states’ immunity from lawsuits under its power to regulate interstate commerce. Congress must depend on its power under Section five of the 14th amendment to enforce the amendments guaranteed equal protection and due process.

According to Justice Anthony M. Kennedy, “Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the Congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs.” Two other Justices agreed with his opinion. Justice Ginsburg wrote that” Suits for money under the self-care provision are still allowed against private employers, and other kinds of actions remain available against state employers.”

Tyson Foods Reach Settlement in EEOC Disability Discrimination Lawsuit

Mon, 27 Feb 2012 10:14:14 -0500

In Tennessee and all across the country it is against the Americans with Disabilities Act not to hire an employee because of a disability. However, many companies and businesses still find ways around this law and discriminate against employees with disabilities by not hiring them or not making reasonable accommodations for them. If you or someone you care about has been discriminated against at the workplace due to a disability, then you should speak with a Tennessee employment ADA lawyer right away. They will work with you to make sure you get the compensation you are entitled to for the discrimination you have suffered.

In this case, the U.S. Equal Employment Opportunity Commission or EEOC filed a lawsuit against Tyson Foods Inc in May of 2010, claiming that the company failed to hire Mark White for a maintenance position because he had epilepsy. The EEOC claimed that when Tyson refused to hire White that they violated the Americans with Disabilities Act or ADA.

The lawsuit claims that White’s epilepsy was controlled by medication and had been for the last twelve years and that he had been a previous employee for Tyson two times during this period. The Tyson Company introduced a new medical assessment procedure since the last the last time they hired White and they refused to hire him again because he failed to pass a medical evaluation required for applicants with epilepsy in order to determine whether or not he could safely perform the job.

According to the lawsuit, the doctor who performed the evaluation did not examine White but relied on outdated medical research to determine that he could not safely perform the job. During this time, Tyson also employed other employees with epilepsy who were grandfathered in.

Tyson Foods Inc has agreed to pay $35,000 to settle the disability discrimination lawsuit. In addition to paying the $35,000, Tyson agreed to introduce a new assessment procedure for similar cases. This means that an applicant who is disqualified from Tyson’s employment because of the medical assessment will have the right to a second medical assessment at the applicant’s expense. An independent and third medical assessment will also be made for any applicant not hired after the second assessment. The settlement also provides injunctive relief, including training to individuals involved in the assessment procedure, as well as posting notices for employees and complying with and reporting to the EEOC.

Lawn Care Workers File Federal Lawsuit Over Overtime Pay

Mon, 27 Feb 2012 10:13:12 -0500

Tennessee employees and employees all across the United States work hard for their pay and many employees work long hours in order to receive overtime pay so that they can support their loved ones. Unfortunately, many companies and businesses still find reasons not to pay their employees the overtime pay they are entitled to by law. If you or someone you work with has worked overtime hours but failed to receive overtime pay, then you should talk with a Tennessee employment overtime pay lawyer right away.

In this lawsuit, TruGreen a lawn care company based in Memphis, Tennessee is being accused by more than 10,000 of its employees for underpaying its staff. The workers claim that they were not properly paid for overtime and that sometimes the company even paid them less than minimum wage.

The TruGreen company said in a statement that, “As a matter of company policy, we do not discuss the details of pending litigation, and we look forward to responding to this case through the legal process." The lawsuit is seeking collective action status under the Fair Labor Standards Act which would mean that others could join the lawsuit. The lawsuit is also seeking three years of back pay and penalties for workers nationwide. According to the lawsuit, the company has recently changed its payroll practices. However, it is unclear if this is due to the fact that the violated the law or for another reason.

How to Decide if You Need a Tennessee Workers’ Compensation Attorney and How to Choose One

Tue, 14 Feb 2012 13:09:29 -0500

In Tennessee and in several other states all over the United States, workers’ compensation claims can be difficult and time consuming, however, sometimes deciding if you do in fact need a Tennessee Workers’ Compensation attorney and choosing the right one can be even more difficult and even confusing for many employees. As with any process though there are questions to ask yourself and I will discuss what these questions are and then how to go about choosing an attorney that is right for you if it is determined that you do need one.

When you have been injured while on the job and are deciding whether or not to hire an attorney, you need to determine if any of these are true of your injury:
• Your work-related injury is severe enough that you need surgery
• Your work-related injury is moderate to severe (If you or your doctor determine that your health will not return to the condition it was in before the injury, you may be eligible for “permanent partial disability” compensation)
• You think that you are no longer able to work on a regular basis doing any job
• You think you can no longer work at your current job but think you may be able to have some job
• You already have major pre-existing disabilities
• You would like to challenge a decision previously made by your employer, your employer’s insurance company, or Tennessee’s workers' comp division regarding your workers’ compensation claim.
• You think that you are not receiving the benefits that you should be or think that there might be more benefits that you could receive
• Your benefits have been denied
• Your employer has challenged a decision by Tennessee’s workers’ compensation division
• You do not understand the workers’ compensation process and would feel better if an expert were handling your case

If any of these factors are true regarding your work-related injury, you should speak with a Tennessee Workers’ Compensation attorney; however, now that you have determined that you need an attorney, you may be confused or unsure about how to go about choosing the right one for you. Following these simple guidelines may help make the process easier and less confusing for you.
These guidelines are:
• Talk to people who have hired a Tennessee Workers’ Compensation attorney and see if they were satisfied with their experience. Also, make sure the attorney has a good reputation in the community
• Consider how much experience the attorney has had with Workers’ Compensation cases
• Interview possible attorneys and ask them questions. Make sure that you feel comfortable and confident about their ability to handle your case

These guidelines will not only help you to determine if you need a Tennessee workers’ compensation attorney but will help you choose the one that is right for you and your case.

Another Frequent Mistake Made in TN Workers’ Compensation Cases: Failure to Create and Maintain a Personal Medical File

Tue, 14 Feb 2012 13:08:30 -0500

When a Tennessee employee is injured on the job, they will more than likely need a lawyer to help them recover their workers’ compensation because Tennessee Workers’ Compensation laws can be tricky, especially if an employee forgets or fails to follow certain steps during the process of filing a lawsuit. In my last several blog posts I have talked about the most common mistakes I have seen clients make when they want to file a workers’ compensation claim. The final and perhaps most important one of these is failing to create and maintain a personal medical file to give to your attorney.

Many people may think that attorneys only need certain information or that the information they need can be easily gathered, but unfortunately this is not always the case. However, if you are able to keep a record of all the medical providers you have seen during this process as well as every procedure you have had, all your treatments, referrals, and any work restrictions you have experienced as a result of your injury then your work comp attorney will be able to have the documents they need to put together a solid case and help you get the compensation you are entitled to for the injury you have suffered. It is also important to keep all these documents and records in your own personal medical file or folder because obtaining them from doctors or other medical facilities may take a long period of time and cause you to have to wait longer for your compensation.