News

A Wellness Tip from the Attorney Well-Being Committee

When working at your desk, try to incorporate break periods of 10 minutes every 50-60 minutes. Even just getting up and stretching or walking a short distance periodically will better enable you to maintain focus and positive energy.
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Antitrust Regulators Focus on Real Estate Data

The real estate sector is getting fresh scrutiny from U.S. antitrust regulators regarding a proposed centralized system, known as Upstream, that is designed to offer a single point of entry for inputting, managing, and distributing listings at the brokerage level, Bloomberg Law reports. The centralized system has been backed by The National Association of Realtors (NAR). Critics — including Trulia and Zillow — argue the project has the potential to impede competition in the market by placing a large share of valuable real estate data in the hands of one entity controlled by NAR and large brokerages. NAR settled with the U.S. Department of Justice in 2008 on similar issues.

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Trump Administration Unveils Medicaid Scorecard

The Trump Administration on Monday unveiled its initial version of a “scorecard” that compiles and publicizes data from states for both Medicaid and the Children’s Health Insurance Program (CHIP), The Washington Post reports. The scorecard will make public government measures of performance such as how long both state and federal health officials take when states request “waivers” to deviate from Medicaid’s ordinary rules and detailed, state-by-state averages on specific demographics and procedures/benefits utilized. The scorecard’s initial information is based on states that voluntarily report a series of measures about the health of their Medicaid and CHIP enrollees. You can view more information on the scorecard here

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Several States to Issue Waivers on Work Requirements for Medicaid Recipients

As more states impose mandatory work requirements on their Medicaid programs, some have come under fire for policies that would protect many rural residents from the impact of the new rules, Business Insider reports. In Kentucky, Michigan and Ohio, the waiver proposals would exempt the counties with the highest unemployment rates, which critics argue skew towards white, GOP-leaning residents. Some health law experts say the waivers — already approved for Kentucky, pending for Ohio, and advancing in Michigan — may violate Title 6 of Civil Rights Act of 1964, which prohibits race-based discrimination in federal assistance programs. The waiver in Kentucky, the first state to approve the work requirements, will exempt eight counties where the percentage of white residents is over 90 percent. Tennessee's work requirement bill for TennCare recipients, HB1551/SB1728, was signed into law on May 3.

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U.S. Department of Labor Cites Contractor, Staffing Agency Following Fatal Trench Collapse

OSHA has proposed penalties totaling $152,618 against a construction company and a staffing agency after a trench collapse killed a temporary employee installing sewer lines, according to a press release on the agency's website. Regulators issued willful and serious citations to All Power Construction Corp. for allowing employees to work in a trench without cave-in protection, failing to provide a safe means to enter and exit the trench, and not having a competent person inspect the trench to identify potential hazards. The temporary employer, Labor Finders of Tennessee, was cited for not ensuring that employees were trained on trenching and excavation hazards. The companies have 15 business days from receipt of their citations and proposed penalties to comply, request an informal conference with OSHA's area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

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Share Your Thoughts on Proposed Amendments to Tennessee Supreme Court Rule 6

The Supreme Court recently requested comment on proposed amendments to TSC Rule 6 that would require new attorneys to complete a Tennessee Law Course within one year of admission to the Tennessee bar. The Tennessee Bar Association has a working group on this issue and will be drafting comments in response to the court's Order for Comment. To ensure this comment best reflects members’ views and positions, the groups is looking for your feedback. Share your thoughts about the proposed amendments through this form by June 8.
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    May 23 Last Day to Book Hotel for TBA Convention

    Time’s running out to book your stay at The Peabody Hotel for the 2018 TBA Convention in Memphis, June 13-16. The last day to reserve a room at the TBA discounted rate is May 23. Don’t miss out on our Bench/Bar CLE, the gubernatorial forum, attorney well-being program or the Ducks! Make your reservation by calling the Peabody’s Reservation Department at 800-Peabody.
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    Supreme Court Seeking Comments for Changes to Rule 25

    The Tennessee Lawyers’ Fund for Client Protection has filed a petition to amend Tennessee Supreme Court Rule 25, and the court is soliciting written comments from the public and the legal community. The deadline for submitting written comments is July 9. Written comments may be e-mailed to appellatecourtclerk@tncourts.gov or mailed to: James M. Hivner, Clerk, Re: Supreme Court Rule 46 Tennessee Appellate Courts 100 Supreme Court Building 401 7th Avenue North Nashville, TN 37219-1407. Read the petition and exhibits here.
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    USPTO Proposes Changes to the Claim Construction Standard

    The United States Patent and Trademark Office (USPTO) on Tuesday released a short “Notice of proposed rulemaking” entitled “Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal Board,” The National Law Review reports. The notice would replace the interpretation standard for construing unexpired patent claims that are used by the Patent Trial and Appeal Board in intellectual property rights, post-grant review and the transitional program for covered business method patents, with the Phillips Standard used by district courts. 

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    Understanding Workplace Experiences of Legal Professionals: Project Survey

    The American Bar Association is launching a nationwide study, conducted by the Burton Blatt Institute at Syracuse University, to identify the biases encountered by LGBT and/or lawyers with disabilities and to help develop and implement strategies to ameliorate such biases. Taking this brief survey will assist the ABA in its goal to generate a positive impact on the legal profession and on the lives and careers of LGBT lawyers and/or lawyers with disabilities. Thanks for your help with this endeavor. 

    TAKE THE SURVEY

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    Work-site Accidents: Use of Sub-Subcontractors Makes it Hard to Fix Liability

    A labor shortage has led to a fracturing of work sites, where subcontractors can’t complete projects with their normal crews, so they hire small "subs of subs" below them, The Tennessean reports. Some of these workers are sent onto scaffolding and roofs without safety equipment or training. Federal law places primary safety responsibility on the direct employer, however, experts say many companies pay construction workers as independent contractors, avoiding certain regulations. More construction workers died in the Nashville metro area in 2016 and 2017 compared with any two-year stretch in the previous three decades. Most of the 16 deaths were from falls without any harnesses or other protection.
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    UAPA Appeals Bill Passes Through Legislature

    The House and Senate have passed legislation providing that the venue for appeals of contested case hearings under the Uniform Administrative Procedures Act will be in the Chancery Court nearest the place of residence of the person contesting the agency action or alternatively, at the person’s discretion, in the Chancery Court nearest to the place where the cause of action arose, or in the Chancery Court of Davidson County. The venue for appeals involving TennCare will continue to be in Davidson County. Sponsored by Senator Mike Bell and Rep. Martin Daniel, the bills (SB2603/HB2386) have been sent to the Speakers for signature. 
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    SURVEY: Proposed Amendment to Supreme Court Rule 31, Relative to Alternative Dispute Resolution

    As you may know, the Supreme Court issued a notice requesting comment on amendments to TSC Rule 31. The Tennessee Bar Association will be filing a comment in response to the proposed amendments and we need your help in drafting our response to ensure that it best reflects our members’ views and positions. Completing this brief survey will assist us in determining specific sections' positions on the proposed changes. After completion, the survey will be sent to your section's executive council, who will review the received responses, determine the section's position and relay the final comments to the TBA.
      
    The TBA has generally summarized the proposed changes, but please read the order and proposed amendments, which are provided below, for more detailed information. Please provide your responses by Monday, April 30. Thanks for your help in this endeavor.

    TAKE THE SURVEY

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    Tennessee Supreme Court Denies Anti-Discrimination Rule Change Proposal

    After receiving more than 400 pages of public comment from members of the public and the legal community, the Tennessee Supreme Court has denied a proposed change to Rule 8.4, which would have prohibited discrimination and harassment by attorneys in relation to the practice of law. The request for adoption was made by the Tennessee Board of Professional Responsibility and the Tennessee Bar Association last November, with comments solicited on November 21.

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    Tennessee’s ‘Fresh Start Act’ Signed into Law

    Last Friday, Gov. Bill Haslam signed Tennessee SB2465, relative to occupational licenses, into law. The bill, known as the "Fresh Start Act," creates a uniform process that all licensing authorities must follow and requires that denials and refusals to renew occupational and professional licenses based on a criminal conviction must only occur when the offense relates to the offender's ability to perform the occupation or profession. This bill Amends TCA Title 62, Chapter 76, Part 1 and Title 63, Chapter 1.

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    Supreme Court Case to Determine Constitutionality of Administrative Law Judge Appointments

    The U.S. Supreme Court on April 23 will hear arguments in Lucia v. Securities and Exchange Commission (SEC), a case that could potentially have a big impact on administrative agencies, The National Law Review reports. In this case, the court will consider arguments – including those from the U.S. Solicitor General – that the way that the SEC’s administrative law judges (ALJs) are appointed violates the U.S. Constitution’s Appointments Clause
     
    SEC ALJs are hired through the government’s civil service process and are not treated as “inferior officers” who are appointed pursuant to the Appointments Clause. Lucia asks whether hiring ALJs this way violates the Appointments Clause, because they have all the hallmarks of an “inferior officer” under Supreme Court precedent, an argument that failed to convince the D.C. Circuit Court. There the SEC argued successfully that its ALJs were not “inferior officers” because they did not issue “final” decisions and did not exercise “significant authority” under federal law.
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    D.C. Lawmakers Move to Undo Estate-tax Break

    The recent overhaul of the federal tax code that doubled the exemption from the estate tax, erasing the tax liability for individuals with estates worth less than roughly $11 million is being challenged by Democratic on the Washington, D.C., council, The Washington Post reports. Their proposal, supported by a majority of D.C. council members, would cut in half the estate-tax exemption in the nation’s capital, to $5.6 million. 
     
    The District had loosened its estate-tax exemption as part of wide-ranging tax cuts enacted in 2014. The cuts, funded by excess revenue, were intended to make the District more economically competitive with Maryland and Virginia. Under the new proposal, about $2.5 million of the resulting revenue would go to housing for victims of domestic violence, $1.5 million would be spent on housing vouchers and $1.25 million on education. An additional $500,000 would go to a program that helps poor families buy produce at farmers markets.
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    Lawsuit Involving Construction of Oak Ridge Uranium Processing Facility Moved to Knoxville

    A federal lawsuit that asks for an environmental review of the new multi-building design for the Uranium Processing Facility (UPF) at the Y-12 National Security Complex has been transferred from Washington, D.C., to Knoxville, reports Oak Ridge Today. The transfer was requested in September by the defendants, U.S. Energy Secretary James Richard “Rick” Perry and Frank G. Klotz, former administrator of the National Nuclear Security Administration, an agency within the U.S. Department of Energy that manages nuclear weapons programs and facilities. United States District Judge Dabney L. Friedrich, who was assigned the case in December, granted the motion to transfer the lawsuit from the District of Columbia to U.S. District Court for the Eastern District of Tennessee on March 23.
     
    The complaint argues that a new environmental impact statement should be prepared for the new design for the UPF, the largest federal construction project in Tennessee since World War II. The plaintiffs allege that the use of several old buildings at Y-12 to house nuclear weapons work is risky because the old buildings could collapse during a major earthquake, possibly leading to a nuclear accident that could cause the release of radiological materials. Federal officials denied that allegation and others in a 29-page answer filed Sept. 29, 2017, calling the allegations vague, ambiguous or speculative, adding that safety and technical analyses are underway at Y-12.
     
    The plaintiffs previously listed the reasons for filing their complaint in the District of Columbia, citing the fact that multi-building UPF was made by a federal agency in the Washington, D.C., area; the named defendants are (or were) located there; and the information that the NNSA allegedly failed to consider originated in other federal agencies in the nation’s capital. The plaintiffs also said the important issues raised in the litigation — issues regarding the safety of the nation’s nuclear weapons program are “issues of overriding national significance and interest,” which favored keeping the case in Washington, D.C.
     
    The defendants, however, asked to move the lawsuit to East Tennessee stating, “This question should be decided in the Eastern District of Tennessee, where the Y-12 Complex is located,” a September 28 memorandum supporting its motion to transfer. “The matters at issue, in this case, are local at every turn,” the government attorneys said.
     
    Granting the motion to transfer, Friedrich said private and public interest factors both weigh in favor of moving the case to East Tennessee.“There is a substantial local interest in having this action decided in Tennessee,” she said. “The potential health and environmental effects in the locality of the Y-12 Complex and its surrounding areas present unique hazards that gravely impact residents in the Eastern District of Tennessee."
     
    The Y-12 complex was built to enrich uranium for atomic weapons as part of the top-secret Manhattan Project during World War II, and it remains the nation’s primary site for processing and storing highly enriched uranium used in nuclear weapons.
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    New Iowa Law Allows Controversial Health Plans

    Last week, Iowa Governor Kim Reynolds (R) signed into law a bill that allows Iowa Farm Bureau to collaborate with the state’s dominant insurer to sell “health benefit plans,” a strategy that contends that not all health plans are health insurance, reports The Washington Post. The law says such plans “sponsored by a nonprofit agricultural organization… shall be deemed not to be insurance” meaning they will not have to comply with federal requirements. 
     
    The law has sparked debate over whether the strategy is a creative path to offer some residents an alternative to increasing prices in the insurance marketplace or a path to substandard coverage that will divide the healthy from the sick. Some feel that this bill is an aftereffect of Congress and the Trump administration’s declaration that Americans who flout the law’s individual insurance mandate will no longer be charged penalties. “If the ACA’s insurance rules can’t be repealed, then an alternative is to get people the option of escaping them,” said Larry Levitt, a senior vice president at the Kaiser Family Foundation, a non-profit organization that focuses on major health care issues facing the nation. “Without the penalty, the door is wide open for plans like this.”
     
    Iowa Insurance Commissioner Doug Ommen said that he is officially undecided about the new Farm Bureau law but that he sympathizes with the need for more-affordable coverage. As consumers have been “hammered” by the Affordable Care Act (ACA) rates, he said, enrollment in Iowa’s marketplace has tumbled from nearly 75,000 in 2016 to about 61,000 last fall to 46,000 last month. According to Ommen, the Farm Bureau modeled its idea after a similar arrangement sponsored by the Tennessee Farm Bureau, which began decades ago and has continued in the ACA era. The Obama administration never challenged it.
     
    The Farm Bureau plan is the state’s second attempt to circumvent the ACA. Last year, the state’s insurance commissioner asked federal health officials to allow Iowa to take about $350 million in ACA money for 2018 and use it in different ways to help people pay for plans outside the marketplace. When the government had not given approval as last fall’s ACA enrollment season neared, Iowa withdrew the proposal.
     
    In a bill-signing ceremony, the governor contended that Iowa’s individual insurance market had ample choices and “reasonable” premiums before the ACA left it “in collapse.” After urging Congress to “fix this problem,” Reynolds recounted Monday, she said “we are done waiting” and urged state lawmakers to find their own solution. “That is exactly what they did.”
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    The Government Attorney as Public Administrator

    Introduction: 
    When students studying public administration first begin to learn about the profession, they’re generally told that the field of public administration focuses on the formation and management of public agencies. Their studies most commonly focus on issues such as supervision, public resources, accountability, human resources, budgeting, public welfare, bodies politic, and the description, analysis, solutions and synthesis of contemporary management problems in public sector agencies. They hear terms like “county manager,” “city manager,” “department director,” “agency head,” etc. equated with the profession. What the seldom hear are terms like “county attorney,” “law director,” “city attorney,” or “chief legal counsel,” associated with public administration. Students either presume or are taught that public sector attorneys are too busy embroiled in litigation, conducting legal research, imparting legal advice, or drafting laws, ordinances, and resolutions to be bothered with public management and administration. This is an unfortunate misnomer. In fact, public sector attorneys are consistently called upon to perform a wide range of public management and administrative duties. 
     
    The Attorney as Public Administrator:
    During the 30-plus years I have spent serving in the public sector, I was afforded the opportunity to serve three different public entities as chief legal counsel. As you can imagine, I was called upon to provide timely legal advice to bodies politic and the various department directors and managers; study, interpret, and apply laws, decisions, rules of court, and other authorities in preparation of cases; litigate a wide range of matters in federal & state court; draft and negotiate contracts and other legal documents, and attend all public meetings, often serving as parliamentarian in the process. However, I was also required to supervise, train, lead and motivate a professional staff, prepare and defend a budget, and in one instance, contemporaneously serve as the county’s risk and insurance manager. For one large, urban county, I was likewise expected, among other things to:
     
    • Serve as a positive example to department heads and County personnel with regards to workplace actions, decisions, management skills, attitude, and adherence to County policy;
    • Embody teamwork and cooperation within and across County departments and with the public; 
    • Identify, define, evaluate, and effectively resolve problems facing county officials, department heads, and employees; determine alternative courses of action and effectively recommend the most advantageous course of action by the officer, department head, or employee faced with the problem; proceed to assist in the implementation of the solution; 
    • Remain committed to innovation, creativity, service excellence, and transforming the County through leading ideas and practices as well as serve as a key designer, promoter, motivator, and catalyst for the alignment of culture with organizational values within the County’s departments; and,
    • Serve as the council’s liaison to members of the general public, and the County’s federal & state legislative delegations.           
    It is important to note that the above duties and responsibilities were not unique to the positions I held. A review of job descriptions for public sector attorney employed at the state and local level across the United States revealed the following functions essential to such positions:
     
    • Provide holistic services to the public by seeking ways to integrate programs or services provided by other departments, divisions, and agencies; 
    • Work in partnership with other employees, departments/divisions, agencies, and the public in delivering effective and innovative services;
    • Manage the recruitment of competent employees, setting expectations and providing necessary training for new employees; coaching and mentoring; assignment of work, evaluation of work product, initiating appropriate corrective or disciplinary action and developing and motivating incumbent staff in accordance with established policy;
    • Ensures citywide staff compliance with departmental policies and procedures; and 
    • Maintain harmony among all county employees, elected and appointed officials, and resolve grievances, and assist supervisory staff in the performance of their duties;
    • Monitor and evaluate the efficiency and effectiveness of service delivery methods and procedures; recommend to city council appropriate service and staffing levels; 
    • Manage and participate in the development and implementation of goals, objective policies, and priorities for assigned programs countywide; recommend and administer policies and procedures designed to improve service delivery to the general citizenry.
    Summary:
    The days of the public sector attorney being limited to litigation, imparting legal advice, and preparing legal documents are but a memory. The fact that many law schools routinely offer joint JD/MPA programs is telling indeed. Today’s aspiring public sector attorney is well-advised to take as many courses in public administration, management, and policy as possible. Such a well-rounded, holistic approach toward providing timely legal, administrative and management advice to bodies politic and the citizens they serve, will make for good government that benefits all. 

    —Joseph G. Jarret is a public sector manager, attorney and mediator who lectures full-time on behalf of the Master of Public Policy and Administration program in the Department of Political Science at the University of Tennessee, Knoxville. He is a former United States Army Combat Arms Officer with service overseas and is a past chair of the TBA’s Local Government Section. He holds the B.S., MPA and J.D. degrees and is currently a candidate for the Ph.D. in educational leadership & policy studies.
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    Recent Ruling by Sixth Circuit Court of Appeals Gives Transgender Workers New Protection Under Title VII

    Employers are moving to adopt or strengthen policies to prevent bias against transgender people after the latest in a series of court rulings that have extended protections for an increasingly diverse workforce, The New York Times reports. A recent opinion by the Sixth Circuit Court of Appeals maintains that transgender people are protected by the civil rights law that bans workplace discrimination based on sex, rejecting the position taken by Attorney General Jeff Sessions in October 2017.
     
    The case was brought by the Equal Employment Opportunity Commission (E.E.O.C.) on behalf of a funeral director fired by a Michigan funeral home after informing the owner that she intended to transition from male to female and would dress as a woman while at work. Scott Rabe, an expert on employment law at the firm Seyfarth Shaw, said that the ruling was important because “it addresses two hot-button topics in employment law: the scope of the definition of ‘sex discrimination’ under Title VII and the impact of laws protecting the free exercise of religion in the workplace.”
     
    The funeral home maintained that it did not violate federal law by requiring the employee to comply with a sex-specific dress code. Additionally, the owner of the home, Thomas Rost, said that forcing him to employ the transgender worker would impose a substantial burden on his sincerely held religious beliefs, violating the Religious Freedom Restoration Act of 1993. In court papers, Rost said he wanted to run his business in keeping with his religious belief that “a person’s sex (whether male or female) is an immutable God-given gift and that people should not deny or attempt to change their sex.”
     
    In a memorandum to Justice Department lawyers, Sessions said that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The court disagreed, saying that employees may not be discriminated against because they fail to conform to “stereotypical gender norms” — in this case, an employer’s notion of “how biologically male persons should dress, appear, behave and identify… Job discrimination based on a person’s transgender status violates Title VII of the Civil Rights Act of 1964” the court ruled. “Discrimination based on transgender status is a form of sex discrimination,” said the decision, written by Judge Karen Nelson Moore for a unanimous three-judge panel, because “an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex.”
     
    “The ruling is a big win for the Equal Employment Opportunity Commission and for transgender people,” said Rabe. “The court sent a strong message that the Religious Freedom Restoration Act has minimal impact on the E.E.O.C.’s authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act.” The court decision is binding in states covered by the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee, but its reasoning could certainly influence future decisions. The funeral home has not said whether it will appeal the ruling. You can read the court's opinion using this link.
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    Bill Could Define How Tennessee Addresses 'Gig Economy Workers'

    The House Consumer and Human Resources Committee advanced legislation that is drawing criticism from national workers' rights advocates reports The Nashville Post. HB 1978 proposes amendment to Tennessee Code Annotated, Title 50; Title 56 and Title 62, relative to employment relationships and has already passed the Senate and is likely to pass the House, given the Republican supermajority.
     
    This would further most gig workers, ‘marketplace contractors,’  as independent contractors and not benefit eligible employees. Currently, the distinction between a contractor and an employee hinges on the idea of control. Telling a worker when and how to perform a job, providing training or supplies, monitoring their activity and determining the rate of pay are all factors that would support a finding that the worker is an employee, freeing them from having to pay workers' compensation premiums and unemployment taxes or obeying state anti-discrimination and minimum wage laws.
     
    The bills have provoked a response from the National Domestic Workers Alliance, a national nonprofit advocacy group. Palak Shah, the organization's director of social innovations, recently went to Tennessee to caution lawmakers that the bill would permanently carve many workers out of rights to which they would be entitled as employees. "It's just such a sorry excuse for a business model to make vulnerable workers more vulnerable just so you can tell your investors that one day you might be solvent," Shah said. "This legislation basically ensures that domestic workers online will never have protection."
     
    House sponsor Rep. Pat Marsh (R-Shelbyville) said most people working for gig economy platforms are doing so part-time and aren't expecting and don't need the protections offered to standard full-time employees. "We already have people who go out and do yard work on their own," said Marsh. "If they get on a platform it gives them access to more customers." Others point out that these platforms take a cut from their workers, along with possible additional fees, while the individual has to cover their own costs like equipment, transportation, insurance and self-employment taxes.
     
    Critics have said they fear the laxer regulations will drive down wages, ultimately forcing them to subcontract to compete. Rep. Dwayne Thompson (D-Cordova) voiced similar concerns, comparing some platforms to Walmart's effect on businesses in a small town. Thompson was the only vote against the legislation. One of the other platforms with an interest in the legislation passing is Brentwood-based Takl, which counts Senate Commerce Committee Chairman Jack Johnson (R-Franklin) as an executive. Johnson co-sponsored the bill in the Senate.
     
    Gov. Bill Haslam's administration was opposed to the version that passed the Senate, but a state Department of Labor official told the House committee that the amended version has addressed some of their concerns. Haslam spokesperson Jennifer Donnals said the governor "is deferring to the will of the legislature on this bill as amended." The main Senate sponsor, Sen. Bo Watson (R-Hixson), has not seen the amended wording, said his aide Tres Whittum, but is fine in "principle" with the changes.
     
    The house will vote on these amendments today. You can track the progress of this legislation using this link.
     
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    10 Essential Documents for Your Practice

    Instructions and rules for client file retention, list of current curse and copy of bank’s form for IOLTA access are three of the top 10 documents attorneys need for succession planning and practice management. Learn more in this 3-hour dual credit workshop with attorney Timothy Takacs.

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    Appeals Court Upholds Ruling that Strikes Down Residency Requirement for Liquor Store Owners

    The U.S. Court of Appeals for the Sixth Circuit this week upheld a lower court ruling that found Tennessee's residency requirements for liquor store owners are unconstitutional. State law required a liquor store owner to live in Tennessee for at least two years before being able to apply for a liquor store license, and for 10 years in order to renew one.
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