News

Check Out Latest Corporate Counsel CLE Package

Wellness programs, legal technology and recent developments are included in the 1-Click package for corporate counsel attorneys. Speakers include Stacie Caraway of Miller Martin PLLC and Fredrick Bissinger of Wimberly Lawson Wright Daves & Jones PLLC. 

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FedEx Names New General Counsel

FedEx Corp. has named Mark R. Allen as the next general counsel of the company, the Memphis Business Journal reports. Allen will also serve as executive vice president and secretary, effective Oct. 1. He’s been with the corporation since 1982, and succeeds Christine P. Richards in the role.
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Corporate Counsel Package Now Available

Wellness programs, legal technology and recent developments are included in the 1-Click package for corporate counsel attorneys. Speakers include Stacie Caraway of Miller Martin PLLC and Fredrick Bissinger of Wimberly Lawson Wright Daves & Jones PLLC.

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Chattanooga Lawyer Named to Board of National Legal Group

Chattanooga lawyer Marc H. Harwell has been elected to the Board of Directors of the Federation of Defense and Corporate Counsel. An attorney with the firm of Leitner, Williams, Dooley & Napolitan PLLC, Harwell also serves as the appointed chair of the group’s Construction Section and vice chair of its Transportation Section, Admissions Committee and Projects and Objectives Committee.

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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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First Tennessee v. Pinnacle Financial to Head to Trial

A legal battle between First Tennessee Bank and Pinnacle Financial Partners over the latter’s entry into the Memphis market is set for a jury trial, the Memphis Daily News reports. Shelby County Chancellor Jim Kyle yesterday denied a motion for partial summary judgment made by First Tennessee. The action was first brought in 2015 originally only against Damon Bell, the First Tennessee executive vice president recruited by Pinnacle to serve as its Memphis president. The recruitment was a culmination of secret efforts to recruit Bell and others while they were still employed by First Tennessee, the 2016 amended complaint alleges.
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Wall Street Firms Score Victory in SCOTUS SEC ruling

The U.S. Supreme Court today scaled back the Securities and Exchange Commission’s ability to recover ill-gotten profits from defendants’ misconduct, finding that the SEC’s recovery method known as “disgorgement” is subject to a five-year statute of limitations, Reuters reports. The unanimous ruling sided in favor of investment advisor Charles Kokesh, and signaled a win for Wall Street firms that fought to limit the SEC’s powers. In the opinion, Justice Sonia Sotomayor said that disgorgement counts as a penalty and is subject to the same statute of limitations that already exists for all other penalties. 
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Corporate Counsel: Recent Developments in Employment Law

Corporate counsel attorneys, what do you need to know about changes in employment law? Attorney Stacie Caraway appears in a CLE available on the TBA website to give an overview of recent developments. Topics include court, agency and legislative developments.
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SCOTUS Ruling on Printer Cartridges Has Major Retail Ramifications

A U.S. Supreme Court ruling on printer toner cartridges this week protects a consumer’s “right to tinker,” The Washington Post reports. The Court found that in Impression Products v. Lexmark, Lexmark’s patent rights on their toner cartridges were not violated by Impression Products refilling Lexmark cartridges at a cheaper price. The decision has implications for companies that try to use patent law to restrict what consumers can do with their products after purchase. 
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Supreme Court Amends Rule 7

The Tennessee Supreme Court had amended Rule 7, sections 5.01(i) and 10.01(j), regarding the minimum requirements for admission of persons admitted in other jurisdictions and the registration of in-house counsel. The full amended text can be viewed here.
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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at http://www.tba.org/submit-an-article, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at http://www.cletn.com/.

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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Call For Submissions — Law Practice Pointers

One of the benefits of being a TBA Section Member is having access to information from experienced practitioners to assist in your day-to-day practice. The sharing of this information amongst colleagues is one of the best traits of the profession. It is also a way of helping each other to maneuver the evolving legal market and strengthen your legal practice.

How can you help your fellow Section Members?  If you have some Law Practice Pointers you would like to share with your fellow section members, write an article between 300-500 words and submit it to the Section Coordinator for review and approval. These Law Practice Pointers can be related to a court opinion, piece of legislation, or current event or industry trend that affects the practice of law as it relates to the specific Section. The main requirement is to make sure the article gives lawyers practical tips, based on experience, to include in their day-to-day practice.

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Corporate Counsel Volunteers Needed for TN Free Legal Answers

TN Free Legal Answers (formerly OnlineTNJustice or OTJ) is seeking corporate attorney's to volunteer to answer questions online. The website screens potential users and allows financially qualifying Tennesseans to post civil legal questions. Volunteer attorneys sign up, then log in to answer those questions. Learn more about the program.

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CLE Outlines How to Change Your Practice to Meet Market Demands

The fourth and final CLE in the “Modern Law Practice Series” will explore emerging trends in the delivery of legal services and how focusing on consumer behavior could benefit your law firm. This session will examine the ways in which consumer-facing companies like Avvo and LegalZoom have capitalized on tailoring services to the needs of the modern legal client and how you can adjust your practice to meet those same demands. The program will be held April 13, and will be available in person and on-demand.

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Corporate Counsel Add Support to LSC

General counsel from 185 companies sent a letter yesterday to Congress urging preservation of the Legal Services Corporation (LSC) because “access to justice is not an expendable luxury but an indispensable manifestation of our country’s most fundamental values.” The letter also notes that without the LSC, countless hours of pro bono service would lost, leaving many individuals unrepresented. Signatories include corporate attorneys from Amazon, Google, American Express and Tennessee-based Federal Express and Counsel on Call. Similar demonstrations of support have come from law firm leaders and law school deans. Learn more about the threat to LSC and show your support for vital legal aid programs via TBAImpact.

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… And Now, From the Editor, the Disclaimer

I would be remiss if I did not mention that while the articles in the Corporate Counsel Section Newsletter may express the views of the author of the article, the articles do not express the opinion of the editor, TBA or Corporate Counsel Section.  Further, the articles are given for information purposes only and not as legal advice.

Thanks, Bill Seale, Vice President General Counsel, Bush Brothers & Company

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Areas of Concern in Employee Handbooks

Employee handbooks are important communications between a company and its employees.  They are a reference for key policies of the employer and are handy guidance for employees on benefits, procedures and what is expected of them.  Due to this importance, such manuals often come under scrutiny from courts and agencies when employees complain about their treatment while working.  This article will outline some recent areas of concern arising from increased scrutiny by the National Labor Relations Board and highlight other emerging issues that are increasingly included in handbooks. Additionally, it will speculate on what trends could impact employee handbooks in our near future under the new Trump administration.

The National Labor Relations Board

The National Labor Relations Act (“NLRA”) “protects the rights of employees to act together to address conditions at work, with or without a union.”  As such, it applies to both unionized and non-unionized employers.  The NLRA is enforced by the National Labor Relations Board (“NLRB”).  In the past several years, the NLRB focused on Section 7 of the NLRA, the section that gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Even if a workplace rule does not explicitly prohibit such activity, it still would be found unlawful if (1) employees would reasonably construe the rule’s language to prohibit Section 7 activity, (2) the rule was promulgated in response to union or other Section 7 activity, or (3) the rule was actually applied to restrict the exercise of Section 7 rights.  It is the first finding – how the rule can be reasonably construed by an employee – that has led to increased determinations by the NLRD that handbook policies encroached upon protected concerted activity. For instance, in Lutheran Heritage Village – Livonia, 343 NLRD 646 (2004), the standard was set that “the mere maintenance of a work rule” may violate the NLRA if the rule “has a chilling effect on employees’ Section 7 activity.”  Such chilling effects have been found in several areas of employee handbooks, but three categories are repeatedly analyzed: confidentiality provisions, employee conduct and investigation policies, and procedures regarding communications.

Concerns regarding confidentiality are validly held by employers.  Many handbooks provide restrictions upon what can or should be discussed among the employees.  However, the NLRB contests any limitation on conversations regarding the working conditions of the employees as such is protected concerted activity.  Examples of frequently found rules that are deemed unlawful by the NLRB include:  (1) Do not discuss customer or employee information outside of work, including phone numbers and addresses; (2) Employees may not discuss wages with co-workers; and (3) Sharing of overheard conversations at the work site with your co-workers, the public or anyone outside of your immediate work group is strictly prohibited.  Recognizing the legitimate concerns of employers to protect valuable, confidential and/or proprietary information, rules that are acceptable on these same topics would be:  (1) Employees may not discuss confidential proprietary information with competitors; (2) Do not disclose confidential financial data, or other non-public proprietary Company information; or (3) Do not share confidential information regarding business partners, vendors or customers.

Limitations on employee’s conduct or behavior, particularly during investigations, are often imposed in employee manuals.  However, the NLRB has sought action against companies that prohibit statements that “damage the Company or the Company’s reputation” or that “disrupt or damage the Company’s business relationships.”  Prohibitions that employees not make “negative comments” or act in a “positive and professional manner” have drawn the critical attention of the NLRB, as have bans against discussing confidential complaints or investigations or requirements to follow the “chain of command” with any issues or concerns.  Instead, handbooks can prohibit “abusive or threatening language to anyone on Company premises” or “discourteous or disrespectful” behavior to customers or the public while in the course and scope of company business.  Further, employers can ask that employees not discuss internal investigatory interviews with co-workers if it is necessary to protect a witness, prevent fabrication of testimony, prevent a cover-up or prevent destruction of evidence.  In sum, general prohibitions should be tailored to instead reflect specific, defensible needs of the company to ensure no encroachments on protected activity.

This same analysis carries to electronic communication and social media policies.  Public comment cannot be stifled and social media policies barring any critique or disparagement of the employer drew action from the NLRD on more than one occasion in the past few years.  Nor can a company exclude an employee from making statements to the media, although it can validly limit who can speak on behalf of the company.  Employers who do adopt social media policies are encouraged to include a disclaimer or savings clause noting that nothing in the policy is designed to interfere with, restrain or prevent employee communications regarding wages, hours, or other terms and conditions of employment.

Emerging Trends

Many handbooks today include standard language that was never addressed in the past as the political winds shift and new issues emerge.  One prime example are technology policies that constantly need review as technology itself, and what can be done with it, change.  Many companies today highlight restrictions to prohibit phone calls or texts while driving to limit liability and ensure employee safety.  Management must determine whether they want to address issues such as employees using the company’s Internet to stream to their own devices or using company computers for personal tasks such as shopping or checking Facebook.  Anti-harassment and discrimination policies should clearly encompass email, text or other messages sent electronically or through social media.  Smoking policies should be reviewed to ensure whether they cover E-cigarettes, a more recent substitution that an employer may still want to limit at their workplace.  Gun prohibitions were common, but now multiple states across the country have statutes that allow weapons to be maintained in vehicles.  Thus, any such policies should be reviewed and compared to any states in which the employer maintains employees.  State by state reviews are also necessary to address medical marijuana use to ensure drug free workplace policies meet any use allowed by statutes.  Such use can raise issues regarding accommodation and disability inquiries, as can employer wellness programs – another hot topic at companies nationwide.  In sum, a scan of the headlines on any given day can reveal the next area that companies need to address, with the employee handbook oftentimes the strongest tool to reflect that focus.

What to Expect Under the Trump Administration

Many of the recent trends and changes in employee handbooks stemmed from a more employee-friendly administration under President Obama.  With President Trump, the pendulum should swing the opposite way.  In particular, the pro-union stance of the NLRB and its aggressive review of policies highlighted above is poised for change.  At the time of this writing, President Trump has named Philip Miscimarra – the sole Republican among the three current Board Members – Acting Chairman of the NLRB.  Additionally, there are two vacancies on the Board which Trump must fill.  Once those nominees are in place, it is probable that the expansion of what constitutes a “chilling effect” will start to narrow from the expansive interpretation common in the past several years.  For instance, Miscimarra himself indicated in a November 2016 decision that he believed a balancing test weighing an employer’s reasons for adopting a policy against the adverse impact on protected activity should be utilized, rather than simply determining how an employee could “reasonably construe” the language.

Additionally, Equal Employment Opportunity language in handbooks could be affected by changes in the EEOC itself.  While LGBT protections were strengthened under past EEOC guidance, indications from the current administration would indicate there may be a reduction in time and resources that are allotted to investigating any such discrimination.  Ultimately, whether Title VII protections extend to members of the LGBT community, and should be incorporated within any such handbook policies, will likely be determined by which federal court circuit in which employees reside as circuit courts across the country are already addressing this issue and any such court ruling would be determinative over EEOC guidance, at least until Congress enacted legislation addressing the issue.

Conclusion

In conclusion, employee handbooks are valuable tools that allow companies to clearly detail their expectations and provide employees with guidance on important policies.  However, they should not be considered static documents.  Instead, ongoing review and adjustments must be made as different government agencies such as the NLRB and the EEOC provide guidance and courts across the country issue rulings affecting the meaning of those policies.  This ensures that such manuals will continue to provide a vital link between the employer and its employees.


— Yvonne N. Maddalena is Of Counsel in the Birmingham, Alabama, office of Jackson Lewis PC. Her practice is concentrated in litigation and litigation avoidance, particularly harassment, discrimination, retaliatory discharge and non-compete and non-disclosure matters.  She also spends an increasing amount of her practice drafting and reviewing employee handbooks for clients in many different industries. Maddalena has practiced all aspects of litigation in state and federal courts on the trial and appellate levels and is licensed to practice in state and federal courts in Alabama and Tennessee. Prior to joining Jackson Lewis, she obtained broad experience in the areas of commercial and consumer finance, banking, utility, insurance litigation and insurance coverage disputes, as well as general litigation matters.

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Next Week: Corporate Counsel Forum

Join your colleagues March 3 for the 2017 Corporate Counsel Forum, with topics ranging from technology's influence on the modern law practice to recent developments in employment law. Speakers will address cyber security and privacy, as well as productivity tools for the present-day corporate counsel. Another session covers the EEOC's new rules on what incentives employers may provide to employees who provide medical information as part of a wellness program under the Americans with Disabilities Act. 
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Corporate Counsel Forum, Pro Bono Event and Gala Set for March 3-4

The TBA's Corporate Counsel Section members are invited to participate in three coordinated upcoming events to be held March 3 and 4 in Nashville. 

Corporate Counsel 2017 Fourm - Friday, March 3

Featuring topics ranging from technology's influence on the modern law practice to recent developments in employment law, the forum will highlight speakers who address cyber security and privacy, as well as productivity tools for the present-day corporate counsel. Another session covers the EEOC's new rules on what incentive employers may provide to employees who provide medical information as part of a wellness program under the Americans with Disabilities Act. A roundtable discussion will also be included. Lunch will be provided.

Corporate Counsel Pro Bono Service Event Saturday, March 4

Learn more about pro bono projects at a brief training and opportunity for direct volunteer service, including the innovative online TN Free Legal Answers and the upcoming HELP4TN Day of Service. Co-sponsored by the TBA’s Access to Justice Committee and Corporate Counsel Section, and the Tennessee Chapter of the Association of Corporate Counsel (ACC). More information is available on the TBA website. Lunch will be provided.

Corporate Counsel Pro Bono Initiative Gala - Saturday, March 4

The Corporate Counsel Pro Bono Initiative was launched as a joint effort by the TBA Access to Justice Committee, the TBA Corporate Counsel Section and the Association of Corporate Counsel (ACC) to help foster a coordinated approach to pro bono work and support for the access to justice community by corporate counsel in Tennessee. Over the last 10 years, the Corporate Counsel Pro Bono Initiative has raised over $500,000. This money has funded corporate counsel pro bono project grants across the state.

The funded projects offer in-house and corporate lawyers specific pro bono opportunities tailored to their situations, skills and interests and facilitate partnerships among corporate legal departments, law firms, access to justice and other community service organizations to help meet local legal service gaps. This year’s CLE is held in conjunction with the TBA’s Corporate Counsel Pro Bono Initiative Gala. Participants who attend the gala will learn about special pro bono opportunities for corporate counsel and help raise money to facilitate the development of new and exciting pro bono projects for in-house corporate counsel and their outside counsel around the state.

Tennessee law firms and corporations are invited to support the Corporate Counsel Pro Bono Initiative by becoming recognized sponsors. Participants may also purchase tickets and attend the gala as individuals. Learn about sponsorship opportunities and ticket options on the TBA website.

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Pilot Flying J Informant Claims Company Cheated Feds

The Pilot Flying J diesel rebate fraud scheme cheated not just trucking companies across the U.S. but also the federal government, according to a former Morgan Stanley broker who claims he helped the FBI in the original case. Knownews reports that John Verble, who is now asking the U.S. Supreme Court to grant a request for federal whistleblower protection, alleges that Pilot Flying J swindled the U.S. Postal Service out of large sums in promised fuel rebates. Pilot’s attorney said the accusation is not true.
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TBA Mashup and Mini Legal Hackathon this Friday

In conjunction with the Law Tech UnConference CLE this Friday, the TBA is also offering a variety of free events and programs for lawyers we’re calling a Mashup. One program will teach you about Legal Hackathons and see one in action. A Legal Hackathon is a collaborative effort of experts in the legal profession collaborating with a computer programmer to find a technology assisted solution to a problem in the legal industry. Join the TBA Special Committee on the Evolving Legal Market for a mini legal hackathon that will demonstrate the power of collaborative minds at work. We will have tasty beverages and snacks to help you get your collaborative juices flowing.  
 
Other programs that will be a part of the Mashup include Pro Bono In Action which will show you various pro bono programs you can participate in to help your fellow Tennesseans and Member Benefit Programs that will provide you information on  Fastcase 7, health insurance options for small firms, ABA retirement funds and professional liability insurance.
 
Please sign up now to let us know you are coming.

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Settlement Requires Western Union to Develop Anti-Fraud Program

Tennessee Attorney General Herbert H. Slatery III announced today a multistate settlement with the Western Union Company, following an investigation which focused on complaints from consumers who used Western Union’s services to send money to third parties involved in schemes to defraud consumers. The settlement requires Western Union to develop and put into action an anti-fraud program. Forty-eight states and the District of Columbia participated in this settlement. Read more here.
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Register for the 2017 Corporate Counsel Forum

Obtain the most up-to-date information at this year's Corporate Counsel Forum on March 3 in Nashville. Speakers will address cyber security and privacy, as well as productivity tools for the present-day corporate counsel. Another session covers the EEOC's new rules on what incentive employers may provide to employees who provide medical information as part of a wellness program under the Americans with Disabilities Act. More details and registration information can be found on the TBA's website.

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Tennessee Supreme Court Amends Pro Hac Vice Rule

The Tennessee Supreme Court today issued an order amending TN. Sup. Ct. R. 19 on pro hoc vice appearances permitting lawyers who have been granted permission to practice pending admission to seek pro hac vice permission to appear in court. The TBA commented supporting the change.

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