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Family Responsibilities Discrimination - Summer 2010

Latosha Dexter — Thu, 15 Jul 2010 20:45:00 GMT

Family Responsibilities Discrimination: The Unwritten Rule of Law

Many workers have double and sometimes triple duty - their job working for you and their job taking care of either a child or an ill spouse. As our population ages, more and more workers must spend additional time caring for their aging parents. Although there is no federal statute that expressly prohibits discrimination based on family responsibilities, creative plaintiffs’ attorneys are bringing more and more caregiver cases using a myriad of legal theories. A recent study published by The Center for WorkLife Law states that lawsuits filed by caregivers have increased by almost 400% over the past decade.¹ The EEOC has even seen the need to issue policy guidance entitled: “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.”^² Considering these statistics and the EEOC’s attention to this type of litigation, all employers should be aware of their potential liability for such claims.

Family responsibilities cases are brought under such statutes as Title VII, the Family and Medical Leave Act and under state common law theories such as wrongful discharge and violation of public policy. For example,

A male employee is denied a promotion because he has young children in whose lives he is very active, which necessitates him taking more personal and vacation time than other men in his company. He is denied a promotion. The employee files a claim of sex discrimination under Title VII alleging that he has been treated differently than similarly situated female employees.
An employee is the caregiver for her mother who suffers from a serious health condition. Upon her return from a leave to care for her mother, she is transferred to a less desirable position. She files a claim of retaliation under the Family and Medical Leave Act.
An employee has a child with bipolar disorder. On occasion, the employee must take time off work to care for this child. The supervisor makes comments to the employee on a regular basis about the amount of time he takes off work and gives him a heavier workload upon his return to work. The employee files claims of retaliation and hostile work environment under the Americans with Disabilities Act.

In light of the increase in these types of claims, employers should keep the following points in mind:

Pay attention to changes in care giving responsibilities when periodically evaluating employees.
Ensure that supervisors are aware that men, as well as women, are protected against sex discrimination. Many employers tend to forget this fact and allow stereotypes regarding men’s and women’s roles to guide decision-making.
Do not take the role of the caring employer too far. In some instances, an employer may “altruistically” lighten the workload of a female employee with small children in an effort to “help” her, while not providing similarly situated men the same benefit. Absent an express request, such actions should not be taken.
Train employees responsible for interviewing and hiring on proper interviewing techniques and the “dos and don’ts” of interviewing.
Have an effective and accessible harassment complaint process and do not disregard complaints because they do not seem to fit into the “traditional” mode of claims. Train all employees to recognize and prevent harassment.

^{^[1]} Family Responsibilities Discrimination Litigation Update 2010 by Cynthia Thomas Calvert, The Center for WorkLife Law, http://www.worklifelaw.org/pubs/FRDupdate.pdf

^{^[2]}Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, http://www.eeoc.gov/policy/docs/caregiving.html

15-Jul-10 3:45 PM

Health Care Reform Law: Whistleblower Protections - Summer 2010

Latosha Dexter — Thu, 15 Jul 2010 20:00:00 GMT

Health Care Reform Law: Whistleblower Protections

There has been so much coverage of the new health care reform that many employers are struggling to understand its practical implications for their business. One area that has not been discussed in depth but which will affect all employers is the development of another protected class of employees.

Section 1558 of the Patient Protection and Affordable Care Act amends the Fair Labor Standards Act to prohibit employers from retaliating against employees who apply for health benefit subsidies or who receive tax credits under the health reform law. There are also provisions in the law protecting employees who provide information or testimony about possible employer violations of Title I of the law. Title I contains the requirements governing health insurance including prohibitions against denying coverage based upon preexisting conditions and policy and financial reporting requirements. OSHA has been given responsibility for the investigation of complaints and can even order preliminary reinstatement. Complainants are entitled to a federal court jury trial and may be entitled to remedies such as reinstatement, back pay, special damages and attorney’s fees.

The burden of proof for Section 1558 claims is very favorable for the employee. A complainant must prove by a preponderance of the evidence that the complainant’s protected activity was a contributing factor in the employer’s adverse employment action. If the complainant meets his burden, then the employer must prove by clear and convincing evidence that it would have taken the same action in the absence of the protected conduct.

Section 6703(b)(3) of the law protects employees of federally funded long-term care facilities. Any long-term care facility that receives more than $10,000 in federal funds must notify all officers, employees, managers, and contractors of the facility that they are required by law to report any reasonable suspicion of a crime to at least one law enforcement agency. Failure to report a crime exposes an individual to civil fines up to $200,000. In furtherance of this duty to report, the law prohibits a facility from retaliating against an employee because of lawful actions taken by the employee, which would include making a report. Violations of the anti-retaliation provision can result in fines up to $200,000 and exclusion from federal programs for up to two years.

States will now be required to make available federally prescribed standardized complaint forms for residents of skilled nursing facilities and persons acting on behalf of residents. States must establish a complaint resolution process to track and investigate complaints and ensure that skilled nursing facilities do not retaliate against complainants. In such a case, a complainant could possibly be an employee. Provisions have also been added that expand the definition of an “original source” under the False Claims Act to include an “individual who either (i) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action under this section.”

This article is a summary of the newly enacted provisions. As regulations are issued more guidance will be provided for employers. However, as attorneys’ fees are expressly included in the available remedies be assured that plaintiff attorneys will be looking for ways to test the law.

15-Jul-10 3:00 PM

Health Care Reform: Nursing Mothers Act - Summer 2010

Latosha Dexter — Thu, 15 Jul 2010 20:00:00 GMT

HEALTH CARE REFORM

NEW REQUIREMENTS FOR NURSING MOTHERS

Since 1999, employers in Tennessee have been required to provide female employees with nursing infants a reasonable unpaid break to allow them to express breast milk while at work. In this regard, employers are required to “make reasonable efforts” to provide a location, other than a toilet stall, for that purpose. In light of existing Tennessee law, one would think that the newly enacted provisions in the Patient Protection and Affordable Care Act relating to nursing mothers would be easy to implement. Think again.

Section 4207 of the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to include significant new requirements for employers regarding nursing mothers at work. The requirements are as follows:

An employer must provide reasonable break time for nursing mothers.

The new federal provisions require “a reasonable break time for an employee to express breast milk… for 1 year after the child’s birth each time such employee has a need to express the milk.” Although Tennessee law already requires that a reasonable break be given to express milk, it only required it for the employee’s infant child. Further, Tennessee law stated that, if possible, the break time should run concurrently with any break time already provided and should not unduly disrupt the employer’s operations.

Employers must now allow reasonable breaks for up to 1 year after the child’s birth every time the mother’s states that she needs to express milk. There is no guidance provided regarding what is “reasonable” and in many cases reasonableness may depend on the varying needs of the nursing mother. It appears that the number and duration of such breaks will be dictated by the frequency and amount of time the mother subjectively claims to need to express milk. Further, when you add travel time to the selected location and sanitization and storage of equipment, the length of the necessary break is extended.

A private place other than a bathroom must be provided for the breaks.

The new law requires that the employer provide a private place where the employee is shielded from view and free from intrusion from coworkers and the public. Under no circumstances can the selected location be a bathroom. Depending on the nature of an employer’s business, finding an appropriate location may be difficult and may actually require the employer to construct a new area. For a larger employer, multiple locations may be necessary. Although

there is an undue hardship exemption for employers with fewer than 50 employees, which will be discussed below, employers should not assume that the exemption applies just because they may have to expend money to comply.

Compensation during breaks is not required.

Tennessee and federal law treat this issue similarly. An employer is not required to compensate an employee who takes reasonable break times to express milk. Nevertheless, employers should be cautious when docking the pay of employees who take such breaks. Under current Fair Labor Standards Act provisions, short breaks taken by employees (usually lasting about 5 to 20 minutes) are considered as compensable work time for which an employee must be paid. Therefore, administration of these break times with an eye toward making them unpaid will impose more administrative timekeeping responsibilities on employers.

An “undue hardship” exemption exists for small employers.

Employers with fewer than 50 employees are not required to comply with this new provision if providing reasonable break time or a private, shielded place for nursing mothers would impose an “undue hardship” by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. Note that this exemption is not automatic and the burden of proof will fall on the employer.

This new federal law is effective immediately. Therefore, employers should begin considering their options with regard to locations for their nursing employees to express breast milk and with regard to administration of the new requirements of the amendments as soon as possible.

15-Jul-10 3:00 PM

West Tennessee Physicians Law Alert - April 2010

Fri, 16 Apr 2010 15:00:00 GMT

This edition of the West Tennessee Physicians Law Alert covers the Health Reform Act. It contains information about what physicians may need to know. Check it out here.

16-Apr-10 10:00 AM

How Tweet It Is (Or is it?) - Summer 2010

Mon, 12 Apr 2010 15:00:00 GMT

As social media continues to make its mark on society and our interaction with each, employers should be aware of the potential legal risks associated with their employee's use of social media. This article will discuss some of the issues employers face and recommendations for implementing a social media policy. Check it out here.

12-Apr-10 10:00 AM

Where’s Wanda? Exempt Employees and Attendance Issues - Summer 2010

Mon, 12 Apr 2010 15:00:00 GMT

Many employers believe that they can't track the attendance and punctuality of exempt employees or find it a difficult task to implement. This article provides tips for employers in monitoring and disciplining exempt employees for attendance and punctuality deficiencies.
Check it out here.

12-Apr-10 10:00 AM

Medical Malpractice Newsletter - Winter 2010 Issue

Thu, 11 Mar 2010 21:30:00 GMT

The following topic is covered in this newsletter:

Recent Amendments to Tennessee's Medical Malpractice Statues

View Medical Malpractice Newsletter here.

11-Mar-10 3:30 PM

Tort and Insurance Newsletter - Fall 2009 Issue

Mon, 23 Nov 2009 17:45:00 GMT

The following topics are covered in this newsletter:

He Said, She Said: The Importance of Preserving Recorded Statements
UM Set-Offs: You're Not Seeing Double

View Tort and Insurance Newsletter here.

23-Nov-09 11:45 AM

Employment Law Alert - Fall 2009 Issue

Mon, 23 Nov 2009 16:00:00 GMT

This Employment Law Alert contains:

Worker's Compensation Update: Benefits Available To Unathorized Workers
Before Purchasing Other Companies, Employers Should Consider Past Workers' Compensation Claims

View the Employment Law Alert here.

23-Nov-09 10:00 AM

Physicians Law Alert - October 2009

Tue, 20 Oct 2009 19:00:00 GMT

The following topics are covered in this newsletter:

New Reporting Requirement for Controlled Substances
General Assembly Limits Confidentiality for Workers' Compensation Claims
Medicare Retrospective Billing Limitations
REMINDER: CMS Precludes “Per-click” and “Percentage-based” Compensation

View Physicians Law Alert here.

20-Oct-09 2:00 PM

Estate Planning Newsletter - September 2009

Mon, 14 Sep 2009 15:00:00 GMT

The following topics are covered in this newsletter:

Will there be Estate Tax Reform? What will it look like?

View Estate Planning Newsletter here.

14-Sep-09 10:00 AM

Estate Planning Newsletter - July 2009

Wed, 08 Jul 2009 20:00:00 GMT

The following topics are covered in this newsletter:

Tennessee Legislature Amends Exempton For Franchise and Exercise Tax

View Estate Planning Newsletter here.

8-Jul-09 3:00 PM

Estate Planning Newsletter - June 2009 Issue

Wed, 01 Jul 2009 18:00:00 GMT

The following topics are covered in this newsletter:

What Is The Tennessee Long-Term Care Partnership?

View Estate Planning Newsletter here.

1-Jul-09 1:00 PM

Tort and Insurance Newsletter - Summer 2009 Issue

Tue, 16 Jun 2009 18:00:00 GMT

The following topics are covered in this newsletter:

Don't Fall Into the Hospital Lien Trap - Court of Appeals Decision Requires Close Analysis
Tennessee Supreme Court Reverses Favorable Ruling for Insurers and Holds That Initiation of Foreclosure Proceedings Does Not Constitude Increased Risk of Loss or Hazard
Tennessee Supreme Court Holds Insurance Coverage Information Not Discoverable -- At Least for Now

View Tort and Insurance Newsletter here.

16-Jun-09 1:00 PM

Employment Law Alert - Spring 2009 Issue

Mon, 04 May 2009 19:00:00 GMT

This Employment Law Alert contains:

Don't Get Bitten By The New "Cobra"
Supreme Court Expands Employer Liability for Retaliation Under Title VII

View the Employment Law Alert here.

4-May-09 2:00 PM

WHEN IS IT A LOAN? WHEN IS IT AN ADVANCEMENT? WHEN IS IT A GIFT? - April 2009 Issue

Tue, 14 Apr 2009 13:00:00 GMT

In the case of Poss v. Turner, the Tennessee Court of Appeals dealt with the issue of the legal effect of when a parent transfers money to a child. Mrs. Turner, the decedent, was the payee on a check for $16,000.00. She endorsed it and gave it to her son, Charles Turner, who also endorsed it and deposited it into an account at the Circuit Court Clerk’s Office to pay a delinquent judgment against him for child support arrearage. When Mrs. Turner died, the Executrix of her Estate sued Charles Turner for the $16,000.00 check amount claiming that it was a debt owed by Charles Turner to his mother’s estate. The Trial Court found in favor of the Estate that the check was a loan and found that Charles Turner was “an unbelievable witness, unworthy of belief.”

The Court of Appeals reversed the Trial Court’s judgment holding that the mere fact that the mother transferred $16,000.00 to her son did not, without more, establish an indebtedness. The Court of Appeals wrote that Tennessee follows the view in numerous other jurisdictions that “an unexplained transfer of property from a parent to a child renders a rebuttable presumption that a gift was intended.” The Court of Appeals defined a gift as “a voluntary transfer of property to another made gratuitously and without consideration.” Correspondingly, the Court of Appeals held that the $16,000.00 check did not constitute an enforceable debt of Charles Turner to his mother’s Estate.

The Estate also argued that the check was an advancement of Charles Turner’s anticipated inheritance, and the amount of the advancement should be offset against Charles Turner’s inheritance. The Court of Appeals ruled that the Doctrine of Advancement did not apply in this circumstance because it does not apply to wholly testate estates in Tennessee.

[Will Bell Comment: Advancements can be provided for in Wills in Tennessee. However, for a lifetime transfer to be considered an advancement to a person who will be a beneficiary under a Will, the Will must clearly identify the lifetime transfer as an advancement.]

MY ADVICE: Advise your clients to be careful and consider fully whether they intend money they are giving to a family member to be a gift, a loan, or an advancement. Proper documentation and legal processes should be followed to clarify what the intent is of the person making the transfer.

RAINEY, KIZER, REVIERE & BELL, P.L.C.

William C. Bell, Jr.

14-Apr-09 8:00 AM

Banking Law Alert - Winter 2009 Issue

Sun, 01 Mar 2009 19:00:00 GMT

This Banking Law Alert contains:

Foreclosure Notice Requirements
Notice to Insurance Company of Foreclosure
Introducing the Healthcare Practice Group

View the Banking Law Alert here.

1-Mar-09 1:00 PM

Basic Estate and Financial Planning Tips - February 2009 Issue

William C. Bell, Jr. — Mon, 09 Feb 2009 19:30:00 GMT

In continuing with the basic estate and financial planning tips I pointed out in my January, 2009 Newsletter, I point out some additional things to consider:

1. Businesses owned by more than one individual (not in a family) should be sure and have a working understanding of and a knowledge of how business succession will be handled. Business owners should consider buy-sell arrangements, funding for buy-sell arrangements, and any restrictions on the operating business if the payments for a departing business owner are made in installments. If done at arms length, the value set in a Buy-Sell Agreement can establish an estate tax value for the business as well.

2. Each spouse should take as much benefit as possible in the Federal Estate Tax Exemptions. The Federal Estate Tax Exemption for 2009 is $3.5 million. The Tennessee Inheritance Tax Exemption for 2009 is $1 million. If all assets are left to the surviving spouse, the first spouse who passes away will lose the benefit of the Federal Estate Tax and Tennessee Tax exemptions. One simple method of getting the benefit of the exemptions is to make an outright bequest to the children. However, often those assets that might be left to children are necessary for the surviving spouse’s use and benefit for the remainder of his or her life. Planning that provides for income and principal benefits for the surviving spouse and yet passes assets to children for Estate and Inheritance Tax purposes can be accomplished through a Credit Shelter or By-Pass Trust. Because of the differences in the exemptions in Tennessee and the Federal tax laws, often specialized drafting of trusts is necessary in an estate plan in Tennessee to take into consideration the “Tennessee Gap.”

3. Asset protection planning for a business. If a business is a proprietorship or partnership, the proprietor or partners have personal liability for all business liabilities. However, by forming a corporation or limited liability company, the shareholders of a corporation or members of a limited liability company can avoid personal liability for business obligations (except those personally guaranteed). Business owners should consider the form of entity for the operation of their business, and business owners may consider separate entities for different businesses, depending upon the nature of the businesses, and the risk factors associated with each.

4. Regular record keeping. All business entities should maintain regular record keeping for their regular shareholders/members/partners/board of directors/governing body meetings. Having adequate records maintained timely can be a good defense to an IRS audit and also to creditors attempting to “pierce the corporate veil” to impose business liability on an individual shareholder.

RAINEY, KIZER, REVIERE & BELL, P.L.C.

William C. Bell, Jr.

9-Feb-09 1:30 PM

Basic Estate and Financial Planning Tips - January 2009 Issue

Mon, 12 Jan 2009 19:00:00 GMT

As we enter a new year, it is a good time to take stock of estate planning and financial positions. In this letter and the next newsletter, I will point out several things that people should consider regarding their personal situation.

1. Naming Successor Attorneys-In-Fact, Executors, Trustees, and Guardian. Many people spend the time to do estate planning documents such as Durable Powers Of Attorney, Advance Directives For Health Care, Health Care Powers Of Attorney, Wills, and Trusts. Often people think about who they want to serve in the appropriate fiduciary capacities. However, people frequently do not think about who would be the alternates if the primary designee could not serve. It is important to name successors in estate planning documents so in the event the primary designee cannot serve, you have a back up. Also, it prevents you from having to return to a lawyer to prepare an alternative document if the prime designee is unable to serve.

2. Be sure and have beneficiary designations consistent with your financial plan. It is important to remember how assets are transferred at death. A Will will cause a transfer only of assets in the decedent’s name. A Living Trust transfers only assets titled in the name of the Living Trust. Many assets have beneficiary designations for transfer at death: such as life insurance policies, IRA’s, pension and profit sharing plans, and annuities. It is important to have the beneficiary designations of all of these assets arranged to meet your total financial and estate plan.

3. Consider when Trusts adequately meet the client’s estate planning needs. Historically, estate planning has involved trusts, and a big reason for that has been to plan to minimize estate tax consequences. However, with the Federal Estate Tax Exemption now at $3.5 million, and the Tennessee Inheritance Tax Exemption at $1 million, many families are not using trusts. Alternatively, spouses are leaving all assets to each other, and then the second spouse is leaving all assets to the children. One major benefit of having a trust is asset protection. Creditor deterrence can be needed on account of remarriages, in-laws, “out-laws,” and others who may notice than an heir is now worth millions of dollars. A trust can keep the trust beneficiary “out of the middle” and serve as a controlled release of family wealth. Additionally, trusts with a typical “spendthrift” clause provide creditor protection for the trust beneficiary.

4. Be sure and plan for family business succession. Frequently, a younger generation is involved in the family business. A parent oftentimes has a desire to leave the family business to one or more children working in the family business. Yet the parent still wants to treat all children equally, including those not involved in that business. Special planning needs to be considered to treat all children fairly and equitably in handling the family business. This planning is in addition to any estate tax planning that may be necessary associated with that business being a significant part of the parents’ assets.

RAINEY, KIZER, REVIERE & BELL, P.L.C.

William C. Bell, Jr.

12-Jan-09 1:00 PM

Tort and Insurance Newsletter - Winter 2009 Issue

Thu, 01 Jan 2009 19:00:00 GMT

The following topics are covered in this newsletter:

Tennessee Supreme Court Expands Potential Liability for Claims of Negligent Infliction of Emotional Distress
Handling Information Requests From Other Insurers

View Tort and Insurance Newsletter here.

1-Jan-09 1:00 PM