Star Flutist’s Gender-Pay Lawsuit Could Change Industry

A star flutist in one of the most prominent orchestras in the country is suing over an approximately $70,000 difference in pay between her and a male colleague, testing Massachusetts’ new equal-pay law and potentially affecting women across the U.S. workforce. The Washington Post reports that Elizabeth Rowe, a 14-year veteran of the Boston Symphony Orchestra and its principal flutist, is suing after attempting year after year to receive the same pay as her colleague, the orchestra’s principal oboist. BSO’s response to the suit is that the oboe is a more important instrument than the flute, and that there is a limited pool of great oboists as compared to flutists.
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Audit Reveals Shortcomings with Tennessee Elevator Permits and Inspections

The recently released performance audit report of the Tennessee Department of Labor and Workforce Development revealed errors made by the Elevator Unit, The Tennessean reports. The unit is responsible for awarding permits and conducting twice-yearly required inspections on the state’s public elevators, escalators, aerial trams and moving walkways, excluding those in Memphis. This results in an estimated 22,000 yearly inspections. Inspectors are able to issue warnings, citations, and even shut down elevators when code violations are found. However, the audit revealed that operating permits were often awarded to owners of elevators with code violations without notice from the owner that the defects had been repaired. Additionally, proof of repairs from the owners were not required and the department failed to conduct follow-up inspections. Auditors found that over half of a random sample of 50 inspections were conducted late by an average of 74 days. Officials from the department say they have made changes to correct these shortcomings, including the implementation of a new permit tracking system and additional staff training.

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Former Longtime Anchor Demetria Kalodimos Sues WSMV

Longtime Nashville news anchor Demetria Kalodimos filed suit this morning against the owner of her former employer, WSMV-TV, The Nashville Scene reports. Kalodimos alleged that Meredith Corporation engaged in age discrimination when it fired her in December. This is the second such action taken by former employees of the station; Kalodimos’ suit also alleges that Meredith retaliated against her for being a witness in an Equal Employment Opportunity Commission complaint filed by the plaintiffs of the other lawsuit.
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Private Prisons Using Detainee Labor Face Lawsuits

A recent class-action lawsuit has been filed in federal court against a CoreCivic correctional center located in New Mexico, The Guardian reports. Detainees earned 50 cents or less per hour for various tasks, including cooking and working in the center’s library. CoreCivic and Geo Group are two of the country’s biggest private prison companies, citing combined revenues of $4 billion in 2017. Lawsuits against both companies regarding the practice of using detainee labor have been filed in several states over the past four years; however, they are still working through the courts. Spokespeople for both companies have stated that its work programs are completely voluntary and comply with government-established standards. 

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Former Pilot President Fights Unsealing of Court Documents

Convicted former Pilot Flying J President Mark Hazelwood is fighting an effort by the Knoxville News Sentinel to unseal a transcript of a behind-closed-doors hearing during his trial, a copy of a deal he struck with his former bosses, and notes jurors sent to a judge during deliberations, the newspaper reported on Tuesday. Attorney Richard Hollow last week filed a motion on behalf of the News Sentinel challenging Hazelwood’s bid to keep under seal records in his case involving a closed-door hearing, an employment contract that led Pilot Flying J to fund his defense, and notes jurors sent to U.S. District Judge Curtis L. Collier. The news outlet contends there is no legal basis to keep the records secret.
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Board of Law Examiners Holds Deans' Summit in Nashville

Law school deans from across the state recently gathered in Nashville for the Tennessee Board of Law Examiners’ 2018 Deans’ Summit. The summit, which included deans from most of Tennessee's law schools, featured presentations and discussions on a range of topics, from law student wellness, to innovations at Tennessee law schools, to the state’s recent adoption of the Uniform Bar Exam. Other parts of the program took the form of an open discussion between members of the board and the deans. 
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December CLE in 6 Cities

TBA offers CLE in six locations during December. See offerings in Chattanooga, Knoxville, Memphis, Nashville, Johnson City and Jackson. Find last-minute by the hour through Dec. 31 or take any of the TBA's online CLE packages.
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Supreme Court Rules on the Application of Federal Age Discrimination Law

The U.S. Supreme Court ruled earlier this month that the Age Discrimination in Employment Act of 1967 does apply to state and local governments of any size, the ABA Journal reports. The case is Mount Lemmon Fire District v. Guido.  It involved the layoff of the district’s two oldest full-time firefighters. Justice Ruth Bader Ginsburg wrote the 8-0 opinion which was the first of the term. She said that only private employers with less than 20 employees are exempt from the law. Ginsburg has written the first opinion of the term for three years in a row.

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CNN: Why Women Have to Work Harder to be Promoted

Women have up to one-and-a-half year’s extra education, and a full year’s extra workforce experience than what is required for their job, an Australian researcher reports on CNN. RMIT University research fellow Leonora Risse labels this as an “overinvestment” in skills and capabilities. The article notes that men over-invest by up to 4 percent; however, women over-invest by up to 11 percent.  The research indicates that women’s overinvestment in themselves is not due to lower confidence nor directly connected to motherhood and childcare responsibilities. Instead, it points toward “implicit biases woven throughout workplace dynamics that create higher hurdles for women to clear along the career ladder.” Examples of these high hurdles include differences in salary between men and women with university degrees, which also includes high-earning disciplines like law, economics and medicine. Additionally, survey data reveals that women are not receiving the same outcomes as men when they ask for a promotion.  Risse concludes that women may be internalizing the need to over-invest and make certain they meet all job criteria prior to applying for jobs and seeking promotions, a behavior less commonly seen among men. 

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Nashville Police Officer Files Suit Claiming City Retaliated Over Her Rape Accusation

A Nashville police officer filed a federal discrimination lawsuit Friday against the Metro Nashville government and a police department commander, alleging the government and commander retaliated against her after she accused another officer of sexually assaulting her. The Tennessean reports that Officer Monica Blake’s lawsuit also claims that Commander Janet Pardue discriminated against her by dealing a more severe punishment to Blake than what was given to other white, male officers for the same infraction.
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Mark Your Calendars!

LSAC Found in Contempt in Accommodation Lawsuit

The Law School Admission Council was found in contempt for violating a consent decree regarding disability accommodations on the Law School Admission Test, the ABA Journal reports. The organization was ordered to pay $480,489 in attorney fees. The California Department of Fair Employment and Housing filed the contempt motion in January 2018. It alleged that the council offered less time to take the test than requested, altered internal documents by replacing the requested time with the time the council offered and wrongfully reported the requests as “granted in full.”

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Ex-Pilot President Denied Christmas Break Before Starting Fraud Sentence

A request from convicted Pilot Flying J former President Mark Hazelwood that he have until after Christmas to begin serving his 12 ½ years in prison for fraud has been denied, Knoxnews reports. "If the court attempted to set (prison) dates that did not conflict with any religious holidays, it would be unable to set any dates at all," U.S. District Judge Curtis Collier said. "Easter, the most important Christian religious holiday, would come just a few short months after Christmas." Hazelwood was convicted in a scheme to rip off small trucking companies of more than $50 million.

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Labor Department to Push Stricter Financial Disclosure from Unions

The Office of Labor-Management Standards (OLMS) put out two proposals related to union financial disclosure that mirror Bush-era policies, Bloomberg Law reports. Both of the Bush-era policies were challenged by the AFL-CIO and the National Education Association, and were eventually overturned during the Obama presidency. In this article, a former OLMS director says unions will likely also push back on these proposed rules, partly because of the financial strain of hiring additional staff to analyze financial records, fill out disclosure forms and submit within the required timeframe. The Department of Labor estimates it will publish the proposed rules by December.

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DOJ Opposes EEOC on Legal Interpretation of Transgender Protections

The Office of the Solicitor General last month filed a brief contrary to the viewpoint of the U.S. Equal Employment Opportunity Commission on the application of Title VII protections in R.G. & G.R. Harris Funeral Home v. EEOC, the ABAJournal reports. Aimee Stephens was originally hired at a Michigan funeral home when living as a man, but she told her employer that she intended to have sex reassignment surgery and live as a woman. After a vacation, Stephens informed her employer that she would return from vacation as a woman and dress according to the funeral home’s dress code for women. She was then fired. The 6th Circuit Court of Appeals found that Title VII applied in this case. However, in the brief, Solicitor General Noel Francisco argues that no federal law protects employees against discrimination based on gender identity. The article notes that this viewpoint is consistent with other positions taken by the Justice Department under Attorney General Jeff Sessions. The brief argues that the Supreme Court should wait on taking up this case until it rules on other related pending cases.

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Workers’ Comp Court Considers Rules Change

Court of Workers’ Compensation Claims’ Chief Judge Kenneth M. Switzer has announced that the court has proposed combining and refining two sets of rules – the “Mediation and Hearing Procedures” and the “Practices and Procedures.” The new rules, to be known as the “Court of Workers’ Compensation Claims and Alternative Dispute Resolution,” were submitted to the Secretary of State in August as part of the process for approval. A public hearing occurred earlier today in Nashville.
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THEC Denies MTSU Acquisition of Valparaiso University School of Law

The Tennessee Higher Education Commission (THEC) decided to deny MTSU's acquisition of Valparaiso University School of Law in an eight to five vote last week, The Daily News Journal reports. THEC had a consultant conduct an independent study regarding issues surrounding the law school transfer, with results citing competition the transfer would create among existing schools in Tennessee. Attorney Evan Cope, who serves as chairman of the THEC, commented on the decision saying, “I can’t speak for the other members of the commission, but my sense is there was genuine concern about the labor supply and demand for lawyers, and that concern was legitimate."

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This Issue: Deficiency Statute, THRA and Seersucker

In this month's Tennessee Bar Journal, Chattanooga lawyer Richard Gossett examines the state of the law both before and after the enactment of the Deficiency Statute. In "The Law at Work" column, Knoxville lawyers Ward Phillips and Brandon Morrow write about a recent decision from the Tennessee Court of Appeals, reminding employment litigators of a key distinction in state law: there is no right to a jury trial on Tennessee Human Rights Act (THRA) claims in circuit court. And Memphis lawyer Bill Haltom helps us recall those lazy days of summer, just a month or so ago, when lawyers across Tennessee suited and participated in the first statewide Seersucker Flash Mob. You don't want to miss the pictures of this nostalgic end-of-summer fashion statement. Read the October issue!

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Basic Tech Checklist for Firms

Law firms attempting to stay competitive and state-of-the-art need to consistently evaluate their use of technology. In addition to staying competitive, technological competency is required. In 2017, the Tennessee Supreme Court amended Rule 8 of the Rules of Professional Responsibility to include this obligation. Above the Law presents a simple and straightforward tech checklist for law firms or lawyers seeking guidance in this area.   

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TVA Official Refuses to Testify in Coal Ash Lawsuit

A former TVA spokesperson who made public claims that the Kingston coal ash sites were safe is refusing to testify on behalf of cleanup workers who are now sick, dying or dead, Knoxnews reports. Anda Ray says she will not voluntarily testify on behalf of the hundreds of workers who labored, unprotected, to clean up the coal ash spill at the TVA Kingston Fossil Fuel Power Plant. Phase one of the toxic tort lawsuit against the TVA contractor in charge of the cleanup began today.
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Recovery of Damages Under PEPFA

Very few state appellate decisions have addressed the Public Employee Political Protection Act (PEPFA), codified at Tenn. Code Ann. §8-50-601 et seq., since the legislation was enacted in 1980. Until recently, no state appellate decision has addressed the types of damages recoverable for a violation of PEPFA. In Keeling v. Coffee County, No. M2017-01809-COA-R3-CV (Sept. 18, 2018), the Middle Division of the Court of Appeals did just that.

Melinda Keeling was employed by Coffee County in the codes and safety department, which was supervised by Glenn Darden. Eventually Ms. Keeling complained to the County Mayor that Mr. Darden was frequently not available to help the public. Mr. Darden learned of her communication with the mayor and retaliated against her by taking away duties that provided compensatory time off, giving her the cold shoulder, and putting a negative letter in her personnel file. Ultimately, Mr. Darden eliminated Ms. Keeling’s position, ostensibly because of lack of funds and/or lack of work. Upon Mr. Darden’s retirement, the mayor immediately sought and obtained an amendment to the county budget for the codes department re-establishing the position that Ms. Keeling had held.

At the conclusion of trial, the jury returned a verdict in favor of Ms. Keeling and awarded $10,000 in emotional distress (compensatory) damages. The trial judge trebled this amount to $30,000 pursuant to Tenn. Code Ann. §8-50-603(b). Thereafter, Ms. Keeling filed a post-trial motion requesting the trial judge to award back pay, front pay, loss of employment benefits and prejudgment interest. After much briefing by the parties, the trial court eventually entered a judgment in Ms. Keeling’s favor for back pay in the amount of $90,512.18; back benefits in the amount of $35,890.84; prejudgment interest in the amount of $11,968.39; and front pay in the amount of $16,008.00, for a total of $154,379.41 in equitable damages. Trebling the damages under PEPFA, the judgment for equitable damages was entered in the amount of $463,138.24.

The County made one interesting argument, which was rejected by both the trial court and appellate court. Because PEPFA allows for treble damages, the County argued an award of front pay would create a windfall for Ms. Keeling. In dismissing this contention, the appellate court noted that treble damages are not punitive in nature, but instead such damages under PEPFA encourage open communication by imposing increased costs on the public employer that discourages unfettered communication. Applying reasoning from Coffey v. Fayette Tubular Products, 929 S.W.2d 326 (Tenn. 1996) (punitive damages and front pay) and Trainor v. HEI Hospitality, LLC, 699 F.3d 19 (1st Cir. 2012) (treble damages and front pay), the Court determined that it would be improper to offset or limit front pay damages based upon the recovery of treble damages. Stated another way, front pay and treble damages are not mutually exclusive.

There are two other noteworthy takeaway issues from this case. First, the appellate court affirmed the trial court’s decision to refuse to offset back pay damages by the amount of unemployment benefits received by Ms. Keeling. In doing so, the court noted that “more often than not, such benefits should not be deducted,” citing Barnes v. Goodyear Tire & Rubber Co., 2001 WL 568033, at *8 (Tenn. Ct. App. May 25, 2001). While state appellate courts apply a discretionary standard to whether unemployment benefits may be deducted from back pay, the undersigned author has yet to find a case where an appellate court has affirmed deduction of unemployment benefits from a backpay award. Second, the appellate court reversed the trial court on the issue of mitigation of damages. Ms. Keeling secured employment with an insurance company after her termination from the County, but she later voluntarily left that job. The court noted the County had failed to carry its burden in showing that the insurance job was substantially equivalent employment — meaning virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the job Ms. Keeling held with the County. The Court noted that the insurance job paid less and did not afford state retirement and insurance benefits as did Ms. Keeling’s job with the County. Remember, mitigation is an affirmative defense, and the burden of proof must be borne by the defendant.

The Keeling decision confirms what many employment law practitioners have believed for a long time. That is, PEPFA’s treble damages provision applies to all available remedies, including back pay, front pay, emotional (compensatory) damages, lost benefits and prejudgment interest. Of course, PEPFA allows for the recovery of reasonable attorney fees, which Ms. Keeling’s counsel most likely will have requested by the time of publication of this article.

Doug Hamill is an attorney with the Chattanooga-based firm, Burnette Dobson & Pinchak, where he practices employment law, representing victims of employment discrimination, unlawful retaliation and sexual harassment. Doug received his law degree from the University of Tennessee in 2003. He may be reached at 423-266-2121 or

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NLRB Finds Employer Cannot Unilaterally Implement E-Verify

The National Labor Relations Board (NLRB) found in Ruprecht Co., 366 NLRB No. 179 (Aug. 27, 2018), an employer cannot unilaterally implement E-Verify if its employees are represented by a union; rather, it must give the union notice and opportunity to bargain about its implementation.

While Ruprecht Co. and UNITE HERE Local 1 were in negotiations for a collective bargaining agreement, Ruprecht Co. received a Notice of Inspection/Subpoena from Immigration and Customs Enforcement (ICE) requesting their I-9 forms. Thereafter, Ruprecht supplied 262 Form I-9s.

Before ICE reached any decisions on the I-9 forms or the employees’ authorized status, Ruprecht Co. enrolled in E-Verify and began using it to check the authorized work status of new hires. Ruprecht Co. did not inform the Union of this event at that time. Ruprecht Co. said it did so “in order to avoid a catastrophic loss to its work force should another audit occur in the future.” Ruprecht Co. was not required by state or federal law to enroll in E-Verify. After enrollment, the Union was informed of the use of E-Verify by its members. Thereafter, a Union representative contacted Ruprecht Co. with suggested language from other collective bargaining agreements that precluded an employer from using E-Verify unless required to do so by state or federal law.

On July 10 and 14, ICE identified certain employees who were “deemed” to be unauthorized to work unless these employees presented valid work authorization. The company notified the Union but refused to supply the names without a confidentiality agreement. On July 16, the company and Union held a bargaining session where Ruprecht Co. made a proposal to use E-Verify and informed the Union it was already using it.

On July 17, ICE provided Ruprecht Co. with a Notice of Suspect Documents naming 194 employees who did not appear to be authorized to work. It stated those employees should be given an opportunity to present valid documentation and gave the company 10 days to verify their work authorization, terminate the employees or receive fines from ICE.

Three days later, the company called a meeting, informing the employees of the Notice of Suspect Documents and its intent to begin terminating employees within a few days. On July 22, Ruprecht Co. began notifying 62 bargaining unit employees of their termination because of the results of the ICE audit. The Union was never given a list of employees on the Notice of Suspect Documents because it refused to sign the confidentiality agreement.

The NLRB found enrollment in E-Verify was a term and condition of employment, which is a mandatory subject of bargaining with the Union. The company had an obligation to notify the Union and give the Union an opportunity to bargain about whether to enroll and use E-Verify. Instead, it unilaterally implemented E-Verify in violation of Section 8(a)(5) of the National Labor Relations Act.

In order to remedy the violation, the NLRB ordered Ruprecht Co. to withdraw from E-Verify, if requested to do so by the Union. One NLRB member, William Emanuel, dissented from the remedy. Member Emanuel stated since the parties later agreed to a collective bargaining agreement, which included E-Verify, Ruprecht Co. should not be forced to withdraw from E-Verify.

The majority disagreed because:

Once the Respondent enrolled in the program, it had greater leverage. The Union was placed in the position of offering concessions to persuade the Respondent to restore the status quo and quit the program. The Union thus had far less bargaining leverage than it would have enjoyed had the Respondent sought the Union’s agreement to enroll initially.

Takeaway:  If employees are represented by a union and their employer wants to enroll in E-Verify, the employer must give the union notice and opportunity to bargain about E-Verify. As a former NLRB attorney, I find it fascinating when immigration law and labor law collide.

Bruce E. Buchanan is the founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta, where he practices immigration law and employment law. He is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law. He may be reached at or (615) 345-0266.

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No Protections Against Retaliation for Undocumented Worker in Tennessee Courts


Born in Mexico, Ricardo Torres moved to the United States in 1997 without documentation. Later, Torres applied for a job with Precision Industries Inc. (Precision), a small company in Whiteville, Tennessee. To complete the I-9 process, Torres gave Precision a false Social Security Number. Precision hired him in early 2011, allegedly not knowing he was an undocumented immigrant.

In early 2012, Precision claimed it learned that Tennessee law required employers, by 2013, to review all employees’ documentation to ensure that they were lawfully authorized to work in the United States. Precision planned to implement the review in November 2012. In the meantime, Torres was injured on the job and sought workers compensation. Precision fired Torres in September 2012. It’s unclear why Precision claims that it fired Torres, but Precision denied knowing of Torres’s true immigration status at the time he was fired. Precision fired four other employees in April 2013 after they did not return to work with completed I-9 forms.

Torres claimed that Precision fired him in retaliation for seeking workers' compensation — something that’s illegal in Tennessee. Torres sued Precision in a West Tennessee federal court for retaliatory discharge. He also alleged Precision knew at the time that it hired him that he was an undocumented alien.


Following a trial, the federal district concluded Torres was not entitled to any relief, because he lacked authorization to work in the U.S. The Court noted, if only Tennessee state law applied, Torres could obtain relief. Indeed, the Tennessee Workers’ Compensation Law defines a covered employee as including those “lawfully or unlawfully employed.” Therefore, the Court reasoned that immigration status does not matter under Tennessee law if an employee is seeking workers' comp or is suing his employer for firing him in retaliation for seeking workers’ comp.

Unfortunately for Torres, however, the Court found that federal law comes into play. In the 2002 Hoffman Plastic decision, the U.S. Supreme Court found the National Labor Relations Board erred in awarding back pay to an undocumented alien because it ran counter to policies embedded in the federal Immigration Reform & Control Act (IRCA). The Supreme Court found that to do so “not only trivializes the immigration laws, it also condones and encourages future violations.”     

Although other Courts have expressed skepticism about extending Hoffman Plastic to other contexts, the Federal District Court for the Western District of Tennessee found that it applies. The Court found IRCA trumps Tennessee state law and it would be counter to IRCA if illegal aliens could freely sue their employers for retaliatory discharge.

Limiting Hoffman, the Court found that undocumented people may still recover in the event that they can prove their employer was aware of their immigration status. “Limiting Hoffman’s applicability to employers that are unaware of their employees’ immigration status serves a dual purpose. First, it alleviates concerns that an employer might abuse immigration policy by knowingly hiring individuals unauthorized to work in the United States with the intent of avoiding certain liabilities down the road. And second, it maintains a consistency with federal immigration policy by ensuring that employers do not profit from their own violations of IRCA.”

At trial, Torres testified that Precision was aware of his illegal immigrant status at the outset of his employment and it knew he had provided a fake Social Security Number. Precision denied this. After judging the credibility of the witnesses, however, the Court found that Precision’s witnesses were more believable.

Consequently, the Court found that Torres’s claims should be dismissed. Interestingly, the Court also suggested that IRCA should trump Tennessee’s Workers’ Compensation Law such that illegal immigrants may not obtain workers comp. According to the Court: “If IRCA prohibits the award of backpay for an employer’s retaliatory discharge of an illegal immigrant under the NLRA in order to avoid incentivizing illegal immigration, then would it not prohibit the State of Tennessee from mandating the provision of workers’ compensation benefits to an illegal immigrant for the same reason?”

Bottom Line

Immigration has been at the forefront of the Trump Administration’s policy objectives, and employers are seeing significant increases in worksite compliance actions by U.S. Immigration and Customs Enforcement (ICE). This judicial decision will add to the pressure that undocumented workers are most certainly feeling by taking protections afforded to other workers with proper documentation.

Based on the federal Court’s decision, undocumented workers’ ability to obtain workers’ comp is also seriously in question. Based on current political sentiments, it also wouldn’t be surprising if the Tennessee legislature intervened to amend the statute. However, this defense would only be available to employers that keep their hands clean and don’t have reason to know that the worker is unauthorized. Not only may employers that are complicit in hiring undocumented workers find themselves targeted by ICE and other authorities, they may be subject to a traditional employment law suit by an undocumented worker.

This case will bolster the ability of Tennessee employers to argue they are immune from suit by an undocumented worker, but it may not be the end of the story and it shouldn’t give employers a false sense of security. Torres could be successful on appeal or other courts could rule differently. Regardless, the immunity defense should only be available to employers that keep their hands clean and don’t have reason to know that the worker is unauthorized. Also, this case came down to a credibility determination during a trial that was surely expensive. Other employers might not be so lucky. In this era of more aggressive immigration enforcement, employers should remain vigilant to ensure that their hiring practices comply with federal and state immigration laws. Violators may be subject to significant liability, including in some egregious cases, personal criminal liability, including jail time, for the hiring manager and other top management officials, who knowingly hire undocumented workers.

Todd P. Photopulos is an attorney with Butler Snow’s Labor & Employment Group. He focuses his practice on Immigration, Employment Counseling and Employment Litigation. Todd may be reached at or (901) 680-7344.

David L. Johnson is Butler Snow’s Labor and Employment Practice Group Leader and has 20 years of experience practicing litigation in a variety of practice areas, including labor and employment, commercial, intellectual property and products liability matters. David may be reached at or (615) 651-6731.

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Letter from the Editor

Here’s the latest newsletter from TBA’s Labor and Employment Section. I want to thank this issue's authors for their wonderful articles – Donna Mikel, Todd Photopulos, David Johnson and Doug Hamill. If you have an article or an idea for an article, I invite you to e-mail me at

                                                                       - Bruce Buchanan

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A Tale of Two ADA Work Schedule Cases

In the spring of 2018, the Sixth Circuit Court of Appeals decided two ADA accommodation cases involving human resources employees. Both involved proposed accommodations to work schedules. The two cases, authored by very different judges, likewise had very different and interesting outcomes.  

In the unreported case of McDonald v. UAW-GM Center for Human Resources, 2018 WL 3081313 (6th Cir. June 21, 2018), an employee sought an accommodation to her work schedule that was actually offered to many employees without disabilities. Employees working for UAW Center for Human Resources (CHR) were permitted during a select time of year to opt between having a 30-minute lunch, beginning after 11 a.m., and two 15 minutes breaks (not tacked onto the lunch break) or one 60-minute lunch break. McDonald, a longtime CHR employee, originally selected the 30-minute lunch break. McDonald frequently opted to exercise in CHR’s on-site gym during her lunch break. During 2014, McDonald decided that 30 minutes was not sufficient for her exercise needs and made a request to instead opt for the 60-minute break. The problem was that McDonald’s request was not made during the designated selection period. 

As such, the request was originally denied and, in response, McDonald presented a letter from her doctor indicating that she needed to engage in strengthening exercises for 30 to 60 minutes Monday through Friday. McDonald was born with Crouzon syndrome, a genetic disorder that required her to undergo multiple surgeries over the years. Reading between the lines of the opinion, it appears McDonald’s doctor did not clearly specify that her need for exercise time was tied to her alleged disability and indeed, the opinion hinted that her need for increased workout time may have actually related to a romantic relationship that McDonald was purportedly having with a co-worker. While McDonald’s request was being considered by management, McDonald started taking the longer break and earlier than 11 a.m. When confronted, she cussed out her manager and was placed on suspension. While on suspension, McDonald quit her job. She later filed suit, asserting claims for failure to accommodate and retaliation under the ADA. McDonald’s case was dismissed on summary judgment by the Eastern District of Michigan and the dismissal was affirmed by the Sixth Circuit.

The Sixth Circuit rested its ruling against the plaintiff in McDonald on the proposition that the plaintiff failed to show that her requested accommodation was necessary in light of her physical limitations. The Sixth Circuit criticized McDonald’s doctor’s letter as being too vague and held that, in any event, the requested accommodation was never actually denied. Rather, McDonald quit before the final verdict was reached by the employer. 

In the other case, Hostettler v. The College of Wooster, 895 F.3d 844 (6th Cir. 2018), an employee sought an accommodation to her work schedule that required the employer to permit a full-time employee to work part time, take extended leave, and work remotely. Summary judgment was granted to the employer by the Northern District of Ohio and that dismissal was then reversed and remanded by the Sixth Circuit. 

Hostettler was an HR employee hired by the College of Wooster when she was four months pregnant. Wooster was aware of Hostettler’s pregnancy and gave her 12 weeks of maternity leave even though she did not yet qualify for it under the FMLA. Prior to her leave, Hostettler was a star employee. Although she frequently worked more than 40 hours a week, she testified that the job really required 30 to 35 hours a week and she just ordinarily went above and beyond. 

Hostettler took her full 12 weeks of maternity leave beginning in February of 2014. As her slated return to work date approached, she began to suffer from what her doctor considered to be one of the worst cases he had ever seen of severe postpartum depression and separation anxiety. The doctor initially prescribed that Hostettler return on a reduced schedule for the “foreseeable future.” Hostettler was open about her predicament with her female supervisor, who was at first supportive. While the doctor originally filled out an FMLA certification permitting work for two to three full days per week, at the supervisor’s request, the doctor revised it to permit work for five half days a week. At that time (which was later than her 12-week return date), Hostettler returned to work and was told that Wooster would accommodate her request until June 30 and then ask for a new certification.

Hostettler came back to work, allegedly struggled with leaving on time to accommodate her restriction, and allegedly suffered from panic attacks when she could not leave on time. Hostettler and a co-worker testified she could perform her basic duties during the reduced schedule and she could also do some additional work remotely during the evenings. Hostettler’s supervisor, however, testified in vague terms that the reduced scheduled put a strain on the department. 

June 30 passed with no new certification from Hostettler, and the supervisor began trying to get her back full time. Although her doctor provided a new certification in mid-July indicating that she could not return to full-time employment until September, Hostettler testified that she talked to her supervisor and said she would try extending from half days to three-quarter days. Hostettler was fired the next day. Wooster said it was because Hostettler was unable to return to work in a full-time capacity. Hostettler then sued under the ADA, FMLA and Title VII. 

In Hostettler, the Sixth Circuit reasoned that, in order to determine the proper result, it first had to employ the appropriate legal analysis and choose between using the indirect or direct evidence tests. The Sixth Circuit faulted the district court for not opting between the two and held that the direct standard applied. In so holding, the Court deduced:

Claims that allege a failure to accommodate “necessarily involve direct evidence.” Kleiber, 485 F.3d at 868. Inversely, then, termination for no reason other than alleged problems with an already-in-place accommodation should involve the same direct standard of proof. That squares with our settled law because it “does not require the fact finder to draw any inferences,” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 916 (6th Cir. 2013), that the disability was at least a motivating factor.

(emphasis added). 

The Court then analyzed Hostettler’s claim using the direct evidence method and concluded there was a question of fact precluding summary judgment as to whether Hostettler was qualified to perform her position when she was doing it in a part-time capacity. In so holding, the Court made clear that a job description showing a 40-hour a week requirement, a past history of employees working 40 hours at the job, and evidence that the employer wanted someone full time are not sufficient to show that full-time presence at work is an essential function. Instead, “an employer must tie time-and-presence requirements to some other job requirement.” Because there was this question of fact, and thus one could infer pretext, the Court also reversed the Title VII dismissal. Finally, the Sixth Circuit also revived Hostettler’s FMLA claim, reasoning that although Wooster provided her with more than the prescribed 12 weeks, Hostettler could show that she detrimentally relied upon Wooster’s representation that her leave in excess of 12 weeks would be FMLA-protected. 

At first glance, the outcomes of the two cases appear unfair. In McDonald, the employee only sought a schedule accommodation that was actually offered to her at certain times of the year. How could an employer claim that it would be an undue burden to give her what was already offered to all employees? 

On the other hand, in Hostettler, Wooster might be able to show that it went above and beyond what was required. It hired Hostettler knowing she was pregnant, gave her more leave than was required, and offered her the chance to work her way back to what was originally a more- than-full-time job. How can one fault Wooster and let CHR off the hook?

The outcomes of the two cases may be reconciled as being determined by the severity of the medical impairments at issue, the extent to which the plaintiffs’ doctors went to bat for the two plaintiffs, and how the two plaintiffs acted in trying to resolve the issues.[i] McDonald’s doctor did nothing to tie her requested accommodation to her medical condition and McDonald acted with disrespect and quit too soon. The issue of undue burden never even had to be reached as a result.

On the other hand, Hostettler was suffering from a serious condition, she was transparent with her employer about it, and her doctor took the time to carefully present requests that benefitted her. Hostettler tried her hardest, from what the record reflects, to do her job and overcome her need for what would likely be a temporary accommodation. 

So, what are the lessons learned from contrasting these two cases? Good lawyering and advice could have influenced or changed the outcome of either. Had McDonald gone to a lawyer before she quit, perhaps her physician could have authored a letter that tied her need for the accommodation to her disability or perhaps she would have waited out the process long enough to get a final verdict. Had Wooster consulted with an attorney before it fired Hostettler, it could have undertaken an in-depth job analysis, clearly communicated the lack of FMLA protection, and could possibly have found ways to get the job done for a couple of extra months, thus avoiding an expensive lawsuit.         

[i]Of course, one could instead argue that the outcomes of the two cases were dependent upon who authored the opinions for the Sixth Circuit.  Perhaps the first several pages of each opinion signaled a different perspective of the purpose and function of the ADA in the modern workforce.   

Donna Mikel is a partner in the Chattanooga law firm of Burnette, Dobson & Pinchak, where she practices plaintiff-side employment law and criminal law. She is the 2018-2019 chair of the Executive Council of the Tennessee Bar Association’s Labor & Employment Section. She graduated with honors from the University of Georgia School of Law in 2000. Donna may be reached at or (423) 266-2121.

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