No Southern Belle; Just a Bell Tolling

Look, y'all: it's been a loooong day, which means that my attempts to keep my southern drawl in check fell by the wayside many hours ago. That also means that this won't be a big discussion entry. Just a couple of simple pleas:

PLEASE train your staff on properly completing Form I-9.

PLEASE have them read through the instructions and go over each section block by block.

PLEASE "error-up" some sample forms and have your staff find the miscues.

PLEASE follow-up with your staff to see if any situations have arisen which weren't addressed in training (you know they have).

And PLEASE do self-audits. Better you catch the mess-ups before ICE (yes, that acronym is two syllables long by this point in my day).

I need a Pal's sweet tea.

All's Fair, Free or Equal in. . .

the title of just about every piece of legislation dealing with employment right now. The latest to be added to this roll call is the Fair Playing Field Act of 2010. This would remove safe harbor provisions currently available to employers who have unintentionally misclassified employees as independent contractors. Additionally, the bill as written would require employers who routinely use independent contractors to supply those contractors with a written statement telling them what employment protection laws do NOT apply to them, as well as informing them of their right to have their independent contractor status reviewed by the Internal Revenue Service.

It's a bill worth watching, along with the Paycheck Fairness Act/Fair Pay Act, the Employee Free Choice Act, and the Workplace Free Sodas So Everyone Has Equal Energy and Can Compete Fairly Act. Okay, so the last one isn't real. . . yet.

Is it a surprise that unions haven't re-emerged like predicted under this administration? If these types of laws keep getting introduced, unions have an argument that the administration which was supposed to breathe life into them is actually drowning them out.

You thought an arm and a leg were expensive? You were right!

From our very own Michael L. Forrester:

Employers are occasionally faced with the issue in workers’ compensation cases of what body part is affected in a work injury, and what difference it makes when it’s time to determine the amount of any permanent disability award. And the Employer and the injured Employee may be on opposite sides of the proverbial fence when confronting the extent of any medical impairment. A recent Tennessee Supreme Court Workers’ Compensation Panel decision emphasizes the point.

In Schering Plough v Plumley, the employee’s foot was run over by a forktruck at work, and after months of treatment, he was returned to his regular job without restrictions but he did have a permanent medical impairment as a result of the injury. The issue for the Court was, which body part sustained the disability? Remember, when an employee is able to return to work for the same employer, at the same or greater pay, Tennessee law may “cap” the employee’s permanent disability award. The law now provides that the “cap” applies not only to “whole body” injury cases, but also to arm and leg injury cases. The employee and his attorney in Plumley contended that his injury should be confined to his foot because the employee’s permanent disability award could not be capped by the Court. Not surprisingly, the employer contended the injury affected the range of motion in the ankle and thus should be capped as a leg claim.


The Court determined that since the injury affected the ankle, and the employee had consistent pain in his lower leg and he sometimes limped from the injury, the injury went beyond the foot and the permanent disability award should be to the leg; thus the employee’s permanent disability award was “capped” since he had returned to his job. The Supreme Court has also determined that this same analysis applies in the event of a work-related hand injury.

So, we encourage employers to prompt the treating doctor to be specific in their medical assessments and their “body parts” analysis. It matters.

Chilly Forecast Ahead

It appears that ICE is on its way this season. Immigration & Customs Enforcement ('ICE') - the division of the U.S. Department of Homeland Security responsible for Employer compliance with immigration laws- announced several days ago that it was preparing to send out Five Hundred (500) new Notices of Inspection to companies within the next week.

Typically, a Notice of Inspection will require an employer to provide access to its I-9 Forms to make sure that the Forms are properly completed and that its employees are eligible to work in the U.S. (Fines for improperly completed I-9s may range from $110 - $1,100 per violation).

By comparison, ICE sent out only 503 Inspections for the entire year of 2008.

This increased vigilance by ICE is a continuing trend in immigration enforcement that has been escalating for the past 18 months. One effect of this increased pressure on Employers is that there has been a decline in illegal immigration - but it requires all employers, (whether or not you employ a foreign national), to make sure that all of your Form I-9s are in proper order before ICE makes its arrival at your door.

Happy Autumn!

Earning its keep?

The EEOC has been busy, busy, busy! Three suits filed this month just on the Americans With Disabilities Act (as amended): http://www.eeoc.gov/eeoc/newsroom/release/9-9-10a.cfm?goback=%2Egde_147609_member_29930620

Halloween? It's not even October

Rumors are flying that the Paycheck Fairness Act will be taken up by the Senate in the very near future. The Obama Administration made it no secret that the Act is at the top of its agenda. This is concerning, given the Administration's desire to make a strong showing as mid-term elections approach. Should you contact your Senator concerning his/her vote on the PFA? Consider:

• Two store managers are hired at the same time; one is male, one is female. The jobs are offered at $40,000. The male demands  $45,000 while the female takes the offer as presented.
• Current law: The pay discrepancy can be defended by demonstrating that the difference is based upon something other than gender. In this case, it was a demand of one of the candidates.
• Proposed PFA: If the company acquiesces to the male's demands but doesn't give the female the same increase--even though she didn't demand/negotiate it--the company could only defend a PFA challenge by the female if it demonstrates that no discrimination is present (which could also necessitate a showing that no pay discrimination was present at the male's prior workplace), that paying the increased salary is job-related, and that the increased salary is consistent with "business necessity."

It remains to be seen whether the Administration can carry enough momentum into the legislature to have this Act passed. Further, it's possible that any version which does clear both bodies differs from what is presently proposed. Regardless, we are sticking with our mantra--be wary of any Act which includes "fairness," "equal," or "fair" in it--because it usually isn't for employers.

How "Hannan" Continues Its Role as a Gift That Keeps On Giving

The Hannan case from 2008 changed the way our state courts in Tennessee approach summary judgment. In essence, Hannan made it much more difficult, for example, for employers to get summary judgment in employment discrimination cases based upon state law.

A recent Tennessee Supreme Court decision all but eliminated the ability to have a case summarily dismissed (that is, without a trial) when the claim is based upon common law retaliatory discharge. In Gossett v. Tractor Supply Company, Inc., the Court held that an employer must offer evidence that disproves the employee's claim that the discharge was motivated by retaliation. This is a swing in methodology from the Court's previous use of the U.S. Supreme Court burden-shifting posture: if an employee demonstrates a reasonable jury could conclude retaliation occurred, the employer has an opportunity to refute that presumption by demonstrating a legitimate business reason existed for the discharge. Notable is that in the U.S. Supreme Court body of law, employers can have "mixed motives" in discharging employees without being liable for a violation of the law. Cases brought under state law in Tennessee are now no longer eligible for the mixed motive consideration.

In the end, it doesn't change the cautions we extend to employers concerning retaliation cases. We warned about the difficulty in getting rid of them once they appeared in court. Now we have the court language to back it up.