News

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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'Minus One' is Worse than it Sounds When Someone Is Injured or Killed On the Job

by:  Mr. Mike Mallen*

Precisely because I have practiced OSHA and environmental law for the past 30 years representing contractors and heavy manufacturers, it is not unusual for a client or a chief executive to reach out for practical advice on best practices and methods for reducing and ideally avoiding catastrophic workplace injuries, illnesses and fatalities.

Usually, I am disappointed to say, the call comes after the bad thing has happened, and the caller is desperately seeking guidance on how to deal with bereft family members, co-employees, press inquiries, medical examiners, law enforcement investigators and OSHA (or TOSHA) inspectors, all of whom have questions that require immediate answers and are focused on the loss of life or a catastrophic injury or illness which has just occurred in a manufacturing or construction setting. 

Once in a while, however, I feel lucky, fortunate and appreciative.  Those are the less frequent times when a CEO will call me to ask protectively: “How can we be safer?”

On a recent Saturday morning, I was the luckiest OSHA lawyer in the business. The CEO of a national industrial manufacturing company invited me to address his entire workforce at their monthly Saturday morning “all hands-on deck” company meeting.  I spoke last. The speakers before me offered presentations about “the numbers.” They spoke of production, quality control, shipping and receiving, customer service, employee benefits and performance.  These topics had one thing in common – math, numbers and stats: all metrics that were measured, evaluated, sliced and diced.  As I listened to the speakers who preceded me, I folded up my prepared remarks and put them in my pocket. What these managers were saying enlightened me. It changed my message.

In the linear, numeric business world, “minus one” equals “minus one.” What I decided to share with those workers, all of whom had woken early and left their families to meet with their “company family,” was the sorrow that I had observed numerous times in my career. The speakers who went before me provided me with a more meaningful way to narrate it. To make the point, minus one is not minus one when a worker is hurt or killed. Minus one equals minus infinity when that happens, because the impact affects not only the worker but also every person whom that worker loves and cares for and every person who cares for and loves that worker. 

I did share one part of my prepared remarks with the group after talking about the infinite impact that a workplace injury or fatality causes. I read from three obituaries that were related to catastrophic workplace situations in which I had recently been involved. I reminded each person who was polite enough to sit through my remarks that those obituaries did not write themselves. I asked them to think for a minute about the loved ones who were forced to sit down together to recount the lives of people that they had loved and lost because of workplace dangers or carelessness. I have had hundreds of conversations with employers and employees where I have talked about “regs.," OSHA standards, environmental regulations and company policies. Those conversations have to happen. Training is a necessity. 

Notwithstanding all of that, the conversation that I had on that Saturday morning about the infinite impact on loved ones, the opportunity to scare someone straight -- or to make someone more conscious of the consequences when the bad thing happens-was much more impactful.

_________________________

*Mr. Mallen co-chairs Miller & Martin’s Workplace Safety/OSHA Group out of its Chattanooga office. He received his J.D. from University of Tennessee in 1987. He can be reached at 423-785-8435 or mike.mallen@millermartin.com.

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Discounting Future Losses to Present Value in Employment Termination

In employment termination (ET) cases, plaintiffs will typically claim damages that include lost earnings. This is allowable in Tennessee courts.[1]  In Frye v. Memphis State University, recoverable lost earnings are defined as what the plaintiff “would have earned had the employer not dismissed him, less what would have been earned, or might have been earned, in some other employment, by the exercise of reasonable diligence.”[2]  A portion of these economic losses may occur after the trial, when reinstatement is not possible.[3]  If so, Tennessee courts will require these future losses (often referred to as front pay) to be discounted to present value.[4]

Attorneys frequently hire economists to perform these present value calculations, although an economist is not required. In this article, I discuss the rationale for discounting future losses to present value, review the formulas used to perform this calculation, and summarize which methods are acceptable in Tennessee ET cases.

I. The Rationale for Discounting

Would you rather be given a gift of $1,000 now or in 20 years? Most people would readily answer “now.” One likely reason is because the $1,000 gift received now could be invested and grow with interest to a larger sum in 20 years. This suggests an amount of money is worth more today than in the future, so a future amount’s present value is less than that future amount.

Forensic economists discount losses to be incurred in the future to their present value to identify the amount paid in the present as a lump-sum that when invested will grow in the future to the amount of the losses. For example, with annual compounding, a $10,000 loss one year in the future with a 5 percent investment interest rate could be replaced with a lump-sum payment of $9,523.81 today.

If future losses were not discounted, those amounts paid in the present when invested could grow to larger amounts than the future losses. Continuing our example, if $10,000 were paid today to compensate for $10,000 in losses in one year, then the plaintiff could invest this amount at the 5 percent interest rate to have $10,500 when the future loss would have occurred. This would be a $500 windfall for the plaintiff. 

Amounts in the nearer future are discounted by less than losses in the more distant future because less time is available in which to earn interest. For example, if $10,000 were lost two years in the future, then $9,070.29 paid today, when invested at the 5 percent annual compounding interest rate for two years, would replace the loss.

II. Mathematical Methods

The two most common formulas for discounting a future value (FV) to its present value (PV) are for compound annual growth,

    

and for continuous growth,

where r is the interest rate (or the discount rate) and t is the number of years into the future in which the loss occurs. Annual compounding assumes interest is paid once a year — at yearly intervals — on the principle and interest that is re-invested. Continuous growth assumes the investment (the principle and interest) grows with a continuously compounding rate of return. The examples above use annual discounting, so, for example,

With continuous compounding, these would have been

Most forensic economists do not intend to require those with losses to bear risk to attain returns high enough to be made whole from a damages award paid in the present.[5]  Most of these economists will acknowledge their intent to use the risk-free rate of return when discounting.  Otherwise, those with losses would be penalized by being forced to incur risk.  Although no investment is truly risk-free, many economists agree that U.S. Treasuries are reasonably close to being so and so will use the rate on shorter-term Treasury bills, medium-term Treasury notes, or longer-term Treasury bonds or the rates on a mix of treasuries as their discount rate.

Economists may use a discount rate based on historical averages, current rates, or forecasted future rates.  When historical averages are used, they are often calculated over a fixed period, such as the past 20 or 30 years.  Alternatively, a historical average may be based on a past period whose length is the same as the future losses period.  Current rates offer the advantage of being the rates at which a lump-sum award could be invested today, but they may not be reflective of rates in the future.[6]  Future rates are forecasted by economists for the Congressional Budget Office, the Social Security Advisory Board, and the Economic Report of the President.

Earnings typically grow over time with inflation as prices increase and with productivity increases,[7]  and Tennessee courts in ET cases allow awards of front pay to grow for these reasons[8] over one’s work life.[9]  In response, some economists may use a net discount rate in their analysis rather than separately incorporating nominal discount rates and earnings growth rates.  Formally, a net discount rate is defined as the difference in the discount rate (sometimes referred to as the nominal discount rate) and the earnings growth rate.  If the nominal discount rate were assumed to be the same as the wage growth rate, then the net discount rate would be zero and there would be no net discounting.  Economists rarely assume the nominal risk-free interest rate equals the rate of wage growth.  This is at least partially because some economic research has suggested that rates of interest and earnings growth are not equal and that the difference between the two rates is not even constant over time.[10]

III. Tennessee Case Law

When awarding damages for front pay, Tennessee courts in ET cases are guided by the present value of future lost earnings:

“Generally, in awarding front pay, the following factors are relevant: (1) the employee's future in the position from which she was terminated; (2) her work and life expectancy; (3) her obligation to mitigate her damages; (4) the availability of comparable employment opportunities and the time reasonably required to find substitute employment; (5) the discount tables to determine the present value of future damages; and (6) ‘other factors that are pertinent in prospective damage awards.’”[11]

However, the rate to use when discounting is not stipulated or defined by Tennessee courts.[12] For example, in Pollard v. E.I. Dupont de Nemours, Inc.,opposing forensic economists debated whether a 2% or a 4% net discount rate was appropriate and the court elected to use the 2% net discount rate.[13]

In at least two instances, appeals courts did not require front pay damages that had not been discounted to present value to be recalculated.[14]  These courts acknowledged that it is an error not to discount front pay losses to present value.  However, in both instances, future growth in wage and salary earnings was also omitted. These courts determined that the failure to discount, which benefited the plaintiff, was offset by the failure to include future earnings growth, which benefited the defendant.

In Jackson v. City of Cookeville, a district court had reduced a jury’s award of front pay damages in an ET case because the jury was not thought to have discounted these future damages to present value.  However, the appeals court in Jackson overturned this and upheld the jury’s original front pay award because it was determined the jury could have assumed the rate of future pay growth was equal to the nominal discount rate, producing a net discount rate of 0% and, consequently, no net discounting.[15]  This approach — of assuming a net discount rate of 0% because the future earnings growth rate equals the nominal discount rate—is known as the “Alaska Rule,” and the court in Jackson referenced this approach by name, but it declined to uniformly adopt the rule.[16]

Conclusion

Tennessee courts in ET cases require future economic losses to be discounted to present value when calculating the lump-sum award amount that would make an injured party whole. In fact, Tennessee courts call it an error not to discount future losses to present value. This is because awarding a plaintiff an amount in the present equal to the future loss amount would result in a windfall when that award is invested. Nevertheless, Tennessee case law does not stipulate a particular discount rate to use, and damages based on no net discounting have even been upheld. This allows lawyers and economists latitude in their present value calculations.

— Charles L. Baum is a professor of economics at Middle Tennessee State University, where he has taught since 1999. Baum received his Ph.D. in economics from the University of North Carolina-Chapel Hill in 1999.  From 2008 to 2014, he served as the chair of the MTSU Department of Economics and Finance.  Baum is a member of the National Association of Forensic Economists (NAFE) and the American Academy of Economic and Financial Experts (AAEFE). He has served as an economics expert for plaintiffs and defendants in numerous cases around the southeastern United States. To contact Baum, please e-mail him at baumeconomics@gmail.com or call at 615-556-9287.


[1]Coffey v. Fayette Tubular Product, 929 S.W.2d 326, 332 (Tenn.1996); Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228, 1234 (6th Cir. 1996); Sasser v. Averitt Exp., Inc., 839 S.W.2d 422,433 (Tenn.Ct.App. 1992).

[2]Frye v. Memphis State University, 806 S.W.2d 170, 173 (Tenn.1991)

[3]Coffey, 929 S.W.2d at 332; Suggs, 72 F.3d at 1234; Sasser, 839 S.W.2d at 433.

[4]Suggs, 72 F.3d at 1234.

[5]Albrecht, Gary R.  (1997).  “The Need to Use Risk Free Discount Rates: A Comment.”  Journal of Legal Economics, 7 (1): 92-95; Gilbert, Roy F.  (1991).  “Forensic Discount Rates.”  Journal of Legal Economics, 1 (3): 40-53; and Breeden, Charles H., and Brian Brush.  (2008).  “The Plaintiff as Victim and Investor: Prudent Investing and the Calculation of Economic Damages.”  Journal of Legal Economics, 14 (3): 15-41.

[6]Rosenberg, Joseph I., and Rick R. Gaskins.  (2012).  “Damage Awards Using Intermediate Term Government Bond Funds vs. U.S. Treasuries Ladder: Tradeoffs in Theory and Practice.”  Journal of Forensic Economics, 23 (1): 1-31.

[7]Becker, Gary.  (1975).  Human Capital. New York, NY: National Bureau of Economic Research; Ben-Porath, Yoram.  (1967).  “The Production of Human Capital and the Life Cycle of Earnings.”  Journal of Political Economy, 75 (4): 352-365; and Gilbert, Roy F.  (1997).  “Long-Term and Short-Term Changes in Earnings Profiles.”  Journal of Forensic Economics, 10 (1): 29-49.

[8]Jackson v. City of Cookeville, 31 F.3d 1354, 1360 (6th Cir. 1994).

[9]Coffey, 929 S.W.2d at 332; Suggs, 72 F.3d at 1235.

[10]Ireland, Thomas R., and David G. Tucek.  (2011).  “Historical Net Discount Rates: An Update through 2010.”  Journal of Legal Economics, 18 (1): 109-122.

[12]Jackson, 31 F.3d at 1360.

[13]Pollard v. E.I. DuPont de Nemours, Inc., 338 F.Supp.2d 865, 880 (W.D.Tenn. 2003).

[14]Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 679 (6th Cir. 2008); Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549, 558 (6th Cir. 2006).

[15]Jackson, 31 F.3d at 1360.

[16]Id.

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Sixth Circuit Rejects Labor Board's Finding that a 'Protest' by a Union Equates to a Request to Bargain

By: J. Gregory Grisham*

In Ohio Edison Company; FirstEnergy Generation Corp. v. National Labor Relations Board,[i] the Sixth Circuit Court of Appeals recently considered the question of whether a union official’s “protest” over the employer’s change to an employee-recognition program (ERP) amounted to a request to bargain over the change.

Fact Summary

The ERP was established by FirstEnergy Generation Corp (FirstEnergy or employer) in 1973. The ERP evolved over the years with the awards for employees available at the five, 10 and 15 years of service thresholds. The value of the awards were nomina, amounting to “about five to seven dollars per year of service.”[ii] The ERP had never been the subject of bargaining nor had it been mentioned in a collective bargaining agreement.

In 2012, FirstEnergy experienced a revenue decrease and a drop in its stock price prompting the company to take steps to reduce costs. Some of the cost-cutting measures impacted employees. In September 2012, FirstEnergy’s Director of Labor Relations Eileen McNamara began calling leaders of the local unions, including Herman Marshman, to advise of the changes that impacted bargaining unit employees.[iii] McNamara called Marshman on Sept. 18 and read from a prepared script. McNamara stated, effective Jan. 1, 2013, the company would reduce its 401k matching payments by 33 percent, its retiree life-insurance benefit by 60 percent and cap its educational reimbursement benefit. Finally, McNamara advised that the ERP would provide for an award every 10 years instead of every five. Marshman responded by stating “Oh no you don’t! Again? Now you know I have to file a board charge, honey…. [I] would have to come to Akron [the company headquarters] for this one.”[iv] McNamara emailed her supervisor after the call stating that Marshman “[was] not happy” and expressing her belief that he was “serious” about filing a charge and going to Akron.[v]

Marshman never made the trip to Akron. Rather, he filed an unfair labor practice charge with the National Labor Relations Board, six weeks after he spoke with McNamara, claiming the employer violated Section 8(a)(5) of the National Labor Relations Act by making several unilateral changes without bargaining with the union. The changes referenced in the charge were changes in the 401k matching contribution, future retiree benefits, the educational reimbursement, and the ERP.[vi]

Proceedings Before the Board

The only change that was litigated before the Administrative Law Judge (ALJ) was the change to the ERP. The ALJ found that the ERP was a “mandatory subject of bargaining” under the act and that Marshman’s statements to McNamara amounted to a request to bargain over the proposed change.[vii] The ALJ’s ruling was appealed to the board where (with) affirmed the ALJ’s findings, with one member dissenting.[viii] Thereafter, the employer filed a petition for review and the board filed a cross-application for enforcement with the Sixth Circuit.

Sixth Circuit’s Opinion.

The Court of Appeals first examined the issue of whether Marshman’s comments to McNamara amounted to a request to bargain about the change to the ERP. In deciding this issue, the Sixth Circuit set forth the standard for a request to bargain “[a] request to bargain need follow no specific form or be made in any specific words so long as there is a clear communication of meaning and the employer understands that a demand is being made.”[ix]

The Court of Appeals further stated that “the bargaining representative must do more than merely protest the change; it must meet its obligation to request bargaining” noting the difference between a protest -- “seek change by disapproval” with bargaining, and “seek change by signaling a willingness to offer something in return.”[x]

In addition, the Sixth Circuit found that the Board majority “neglected to consider all circumstances” but instead nearly focused exclusively on Marshman’s comments to McNamara.[xi] The comments made by Marshman were characterized by the Court of Appeals as an expression of disapproval that would only establish “protest.”[xii] However, the key inquiry was whether the comments taken as a whole amounted to a request to bargain, which the Court of Appeals found “ambiguous” but not “clear.”[xiii] The Court of Appeals also rejected the argument that Marshman’s threat to file a board charge and go to Akron amounted to a clear request to bargain.

Moreover, the Sixth Circuit stated that the surrounding circumstances did not support the board majority’s finding noting that the ERP change was small in monetary terms (“less than four dollars per member per year”) and as compared to the other changes announced by McNamara on her call with Marshman.[xiv]  In addition, the fact that the ERP had never been a subject for bargaining further undermined the Board’s finding.

The Sixth Circuit concluded by holding that the record did not support the board majority’s finding that a request to bargain had been made.[xv] Rather, the court adopted the views expressed by the dissenting board member thus granting the employer’s petition for review and denying enforcement of the board’s order.[xvi]

Takeaways

The Sixth Circuit’s ruling in FirstEnergy made an important distinction between a “protest” and a “clear” communication that could reasonably be construed as a request to bargain. The Court of Appeals also stressed the importance of the surrounding circumstances, such as course of dealing, in assessing whether a communication amounted to a bargaining request. Despite the court’s ruling, employers should exercise caution when communicating with union leaders about proposed changes that may implicate mandatory subjects of bargaining.  If unilateral changes are made when a “clear” request to bargain has been made, a potential remedy for the resulting unfair labor practice is an order to the employer to “undo” the change which can be very costly depending on the nature of the change.

_________________________

*J. Gregory Grisham is apartner in the Nashville and Memphis Offices of Ford Harrison LLP and focuses his practice on the representation of employers in all aspects of labor and employment law. He received his Juris Doctor (with honors) from the University of Memphis, Cecil C. Humphreys School of Law in 1989. He may be reached at ggrisham@fordharrison.com or 615-574-6707.


[i] ___ F. 3d ____, 2017 WL 541007 (6th Cir. February 10, 2017) (recommended for publication)

[ii] id. at *1.

[iii] id.

[iv] id.

[v] id.

[vi] id. at *2.

[vii] id.

[viii] id.

[ix] id. [quoting NLRB v. Barney’s Supercenter, Inc., 296 F.2d 91, 93 (3d Cir. 1961)].

[x] id. [citations omitted]

[xi] id. at *3.

[xii] id.

[xiii] id.

[xiv] id.

[xv] id. at *4.

[xvi] id.

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You Can’t Always Get (All the Light Duty) You Want, But …

The Court of Appeals for the Sixth Circuit reaffirmed that an employee can’t always get what he or she wants under the Americans with Disabilities Act (“ADA”), so long as the employee gets what he or she [reasonably] needs.  In Meade v. AT&T, No. 15-6362 (6th Cir. Aug. 2, 2016), the Sixth Circuit again drew the line between reasonable and unreasonable requests for accommodations made by disabled employees under the ADA. According to the court, while an employee may want a permanent light-duty position, the ADA does not require employers to create such a position.   

For over 30 years, Stephen Meade worked for the BellSouth Telecommunications.  In his final position with the company, Meade served as a facility technician, which required him to lace up his boots every work day, to climb utility pole ladders in all weather conditions, and to repair and install telephone and internet services.  After Meade was diagnosed with a blood clot in his leg in 2010, his doctor instructed him to avoid climbing, wearing boots, and being outside in the cold.  Clearly unable to continue performing the duties of a facility technician, Meade informed BellSouth of his doctor-prescribed temporary restrictions.  BellSouth thereafter accommodated Meade by allowing him to perform light-duty tasks around the office.

When BellSouth learned that Meade’s restrictions were permanent, however, it terminated his employment.  Although BellSouth informed Meade that a permanent light duty position was not an option, it did offer him several possibilities for relief, including 40 weeks of termination pay, a list of all vacant positions with the company, and participation in BellSouth’s job bank, which lists job openings as they become available.  BellSouth also guaranteed Meade priority if he applied for a job listed on the vacancy list or in the job bank.  Despite this offer, Meade did not apply for any open positions with the company. 

Instead, upon the expiration of his 40 weeks of termination pay, Meade sued BellSouth, claiming that his termination violated the ADA. Specifically, Meade asserted that BellSouth should have offered him a permanent light-duty position or a job within his previous department.

The Sixth Circuit disagreed.  In denying Meade’s claim, the court reaffirmed the rule that an employer is not obligated to create a permanent light duty position for a disabled employee.  This holding should have come as no shock to Meade since the court has reached the same conclusion in past cases.  For example, the Sixth Circuit in Brown v. Chase Brass & Copper Co., Inc. 14 Fed. Appx. 482 (6th Cir. 2001), faced a situation where an employee could no longer perform the essential functions of his job due to carpal tunnel syndrome.  While the plaintiff asserted that he should have received a permanent light duty position, the court held the defendant employer “has no obligation to create a permanent light duty post when none previously existed.”  The Sixth Circuit again shot down a plaintiff’s request for permanent light duty in 2007, stating it “is simply not required to engage [its employee] in [a] temporary light-duty assignment in perpetuity.” 

In these cases, the Sixth Circuit has noted, however, that an employer may be required to transfer a disabled employee to a vacant position as a reasonable accommodation. Unfortunately for Meade, this rule of law did not save his claim, since he could point to no vacancies available at the time of his termination. 

Seemingly unimpressed by Meade’s apathy, the Sixth Circuit lastly held that BellSouth met its obligations under the ADA by offering Meade resources to view and apply for vacant positions as they became available.  At that point, the burden fell on Meade to request the position; BellSouth had no obligation to further reach out to Meade regarding vacant positions during his receipt of termination pay.

In sum, the Sixth Circuit reiterated these four principles regarding the requirement that employers provide “reasonable accommodations” under the ADA: (1) an employer is not obligated to continue employing an employee who cannot perform the essential functions of his job, with or without a reasonable accommodation, due to a permanent disability; (2) a reasonable accommodation may include reassignment to a vacant position; (3)  ADA does not require an employer to create a new position to accommodate a disabled worker, or to extend a light-duty position in perpetuity; and (4) if an employee is terminated as a result of his inability to perform the essential functions of his position, the company is not obligated to contact the former employee to make him aware of positions that become available at the company.

_________________________

— Bradford Harvey is a member of Miller & Martin at its Chattanooga office. Brad received his law degree, Order of the Coif, from Vanderbilt University School of Law in 1995. He concentrates his practice in labor and employment law and class and collective action defense. Brad may be reached at 423-785-8210 or brad.harvey@millermartin.com.

— Megan Welton is an associate of Miller & Martin at its Chattanooga office. She focuses her area of practice on Labor & Employment law. Megan received her law degree from the University of Memphis Cecil C. Humphreys School of Law in 2015. She may be reached at 423-785-4326 or megan.welton@millermartin.com.

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Letter from Editor

Here’s the latest newsletter from TBA’s Labor and Employment Section. I want to thank this issue's authors for their insightful articles – Greg Grisham (a regular contributor), Brad Harvey, Megan Welton, Dr. Robert Baum and Mike Mallen. If you have an article, I invite you to e-mail me at bbuchanan@sblimmigration.com.

Bruce Buchanan

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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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Crime Victims’ Private Records, Elder and Labor Law in This Issue

The Tennessee Supreme Court’s majority opinion in The Tennessean v. Metro last year was a victory for law enforcement and a significant setback for the state’s news media, writes Daniel Horwitz in this month's Tennessee Bar Journal. How the ruling will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is uncertain. Also in the February Journal, Monica Franklin writes about The Special Needs Trust Fairness Act of 2016, Edward G. Phillips and Brandon L. Morrow’s column discusses times when protected activities provide a legitimate, nondiscriminatory reason for termination, while Bill Haltom enumerates the reasons why your valentine should be a lawyer. Read the entire issue.

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Chattanooga VW Employee Files Brief Against NLRB Decision

A Chattanooga Volkswagon employee is asking the U.S. Court of Appeals D.C. Circuit to overturn a National Labor Relations Board decision that allows the United Auto Workers to bargain on behalf of maintenance employees at the plant, Nooga.com reports. A spokesperson from the National Right to Work Foundation, which provided free legal help to the employee, said the decision forced workers “into a monopoly union.”
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Investigation Called for Full-time Pay for Part-time Attorney

A probe has been called for in the case of an attorney employed by Shelby County who also runs a law practice in Mississippi, with fellow county workers complaining that the lawyer is getting paid a full-time salary for part-time work, the Commercial Appeal reports. The complaint alleges that Martin Zummach earns a salary of $80,000 per year and receives benefits as a public information officer and legal adviser to Juvenile Court Clerk Joy Touliatos, but doesn’t maintain an office at Juvenile Court. A complaint was filed on Jan. 13 and a local attorney is looking into the matter, with a report expected as early as this week.
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Learn About Immigration Issues That Affect Your Practice at Forum

Dear Section Member,
 
I would like to tell you about the Immigration Law Forum 2017, a program our Executive Council designed in order to assist your practice. The Forum will be held on April 7 at the TBA Bar Center from 9 a.m. to 4 p.m., divided into two separate portions.

The morning program is titled “Immigration Benefits, Court, Enforcement and Removal."  Presentations will focus on family immigration and court issues facing both new and experienced immigration attorneys, family law and criminal law attorneys.  
 
The afternoon program is titled “Investment Immigration Government, Company, and Global Perspectives."  Sessions will focus on U.S. and international business investment immigration issues facing both immigration and non-immigration attorneys such as corporate counsel, employment law attorneys and technology law attorneys.
 
Here is a list of the speakers/panels for this year’s Forum:
 
Lynuel Dennis, Field Office Director for the United States Citizenship and Immigration Services
 
Catherine Chargualaf, Assistant Field Office Director of Immigration and Customs Enforcement-Enforcement and Removal Operations
 
Brandon Josephsen, Deputy Chief Counsel of the Department of Homeland Security/Immigration and Customs Enforcement
 
Clay Banks, Southern Middle Tennessee Regional Director of Tennessee Department of Economic & Community Development (Nashville)
                                                                 
Dale Carroll, CEO of Appalachian EB-5 Regional Center (Asheville, N.C.)
                                                                 
Jeremy Pilmore-Bedford, Consul General of British Consulate General Atlanta (Atlanta)
 
Fadi Abou-Ghantous, Executive and Global Sales Leader of General Electric Power (Chattanooga)
                                                                 
Tom Przybojewski, Owner of Astra Inc. (Miami)
 
Scott Jones, Financial Advisor at Merrill Edge of Bank America (Chattanooga)
                                               
John Anthony Castro, International Tax Attorney & Managing Partner of Castro & Co. LLC (Washington D.C.)
                                               
Marco Scanu, Managing Partner of Visa Business Plans (Miami)
 
Overall, this year will be a very dynamic year for immigration/global law issues, and it is very important that we as attorneys keep aware of the ever changing law environment and assist ourselves in remaining relevant with the changing times, and markets.
 
Sincerely,
 
Terry Olsen, Immigration Section Chair

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Harassment Suit Seeks $9.3 Million from Knox County

A Knox County woman is seeking $9.3 million in a suit filed today that claims her boss at the county procurement office sexually harassed her, Knoxnews reports. Janice Orr originally filed a formal harrassment complaint against her boss, Hugh Holt, in August of last year. After a series of interviews with county employees, the investigative body recommended Holt be terminated in October. Holt was then immediately hired by the Knox County Sheriff’s Department at a higher salary.
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Winfrey Merges Firm with Morgan and Morgan; Will Lead Employment Practice Group

Brian Winfrey, founder of The Winfrey Firm, is merging his firm into the Nashville office of Morgan and Morgan, where he will launch and lead a statewide labor and employment practice group, the Nashville Post reports. Winfrey will also work with Morgan and Morgan attorneys in other states in the employee rights group. Winfrey is a graduate of Vanderbilt University and currently serves as secretary of the Tennessee Bar Association.
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Lawmaker Requests AG Opinion on Parks Privatization

Tennessee Sen. Janice Bowling, R-Tullahoma, has requested an opinion from Attorney General Herbert Slatery III on whether Gov. Haslam’s plans to privatize hospitality services at parks violate state procedures. The Times Free Press reports that Bowling, whose district includes the Falls Creek Falls state park, asked for the opinion at the request of park employees.
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Tennessee Supreme Court Rules in Teacher Tenure Case

The Tennessee Supreme Court yesterday ruled against Rogelynn Emory, a former tenured Memphis teacher who was fired in 2005, the Tennessean reports. The case centered on whether the Memphis City Schools Board of Education (now Shelby County Board of Education) had potentially violated the Tennessee Teacher Tenure Act by holding Emory’s appeal hearing more than 30 days after her suspension. The court’s ruling didn’t address whether the law requires, or merely recommends, that a termination hearing should be held within 30 days after termination proceedings begin. Rather, the court said that because Emory didn’t raise concerns about the timing during her hearing before the Memphis school board, she was barred from arguing it on appeal. 
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Help Needed Tomorrow for Memphis Veterans’ Clinic

A free legal clinic for veterans will be held Tuesday from noon to 2 p.m. at the Memphis Veterans Center, 1407 Union Ave., 11th floor. Volunteers are still needed, especially in the practice areas of criminal defense, family law and employment law. The clinic is co-sponsored by the Memphis Bar Association and Memphis Area Legal Services and takes place the second Tuesday of the month to assist veterans with legal advice. For more information and to volunteer, contact Jake Dickerson, 901-577-8236.

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Have You Heard About the TBA Mashup?

Interested in observing a legal hackathon or getting a hands-on demonstration of the new Fastcase 7 platform? Both will be part of the first TBA Mashup, a full-day of activities and free programming set for Feb. 17 at the Tennessee Bar Center in conjunction with the annual TBA Law Tech UnConference CLE program.

In addition to the hackathon and Fastcase 7 demo, the TBA Mashup will feature sessions on: 

  • Current State of Health Insurance for the Small Firms
  • Professional Liability Insurance - What to look for in YOUR Policy
  • A Demo of Fastcase TopForm, a powerful bankruptcy filing software
  • Retirement Planning Guidance from the ABA Retirement Funds
  • Pro Bono in Action: How to help with pro bono events and how to take part in online options

At the annual TBA Law Tech UnConference CLE program, you can take as many or as few hours as you need. Registration will be open all day. Payment will be determined at checkout based on the hours you need. Topics will include: 

  • Bill & Phil Tech Show
  • Ethical Considerations for Cyber Security in Law
  • Evolution of the Legal Marketplace
  • Making e-Discovery Affordable 
  • Drone Law
  • Encryption for Lawyers

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Workers' Comp Court Adopts New Rules, Revises Others

The Tennessee Court of Workers' Compensation Claims has adopted several new rules and revised others, according to a blog post by the judges. Among the changes is a new rule regarding promptness for court. Under Rule 1.03, those running late for a scheduled court appearance should alert both the staff and opposing counsel. Failure to do so may lead the court to proceed without the attorney. A second new rule, Rule 2.03, requires notice to the court clerk and the judge’s legal assistant or staff attorney when a case settles prior to the hearing date. Finally, the court has revised procedures in Rule 4.03 for seeking a disqualification or recusal of a judge and in Rule 8.04 for inquiring about a status conference. The court also reports that there will not be settlement approvals on Jan. 5 and 6 due to a judicial conference.

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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, 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 Tennessee Commission on Continuing Legal Education or access an Affidavit of Sole Authorship or an Affidavit of Joint Authorship from the Commission's website.

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Vanderbilt to Study Impact of LGBT Policies

Researchers at Vanderbilt University will examine how public policy impacts the health and economics of LGBT people, Nashville Public Radio reports. Funding for the study will come from a $400,000 grant from the Robert Wood Johnson Foundation. According to the university’s proposal, researchers will compare data across states to study issues such as how North Carolina’s transgender bathroom bill has impacted economic livelihood, or how non-discrimination policies impact diversity in the workforce. They also will look at the impact of legalizing same-sex marriage and passing laws designed to protect religious freedom. 

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Workers’ Comp Judge to Retire

The Tennessee Court of Workers’ Compensation Claims has announced that Judge Jim Umsted, who serves on the bench in Memphis, will retire soon. However, he will continue to assist on a part-time basis with the review and approval of settlements. The court and the Bureau of Workers’ Compensation expressed gratitude to Umsted for his years of service. Applicants to fill the post can get information from the state Department of Labor and Workforce Development.

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State Still Slow Paying Unemployment Claims

For the past eight months, Tennessee has failed to meet a federal mandate to pay unemployment insurance claims within 21 days of approval. In the last month, the state Department of Labor and Workforce Development processed 12,000 claims within 21 days and has 9,000 claims pending that are greater than 21 days old. For its part, the department blames the delays on upgrades to its online system that were made last spring. They say issues should be resolved by mid-January, WBIR reports.

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Law Firms Join Statewide Anti-Discrimination Coalition

Nearly 200 Tennessee-based businesses have joined Tennessee Thrives, a new anti-discrimination coalition that will “serve as a watchdog for the General Assembly,” the Nashville Business Journal reports. Among the group are five law firms: Baker Donelson, Bass, Berry & Sims, Bone McAllester Norton, Frost Brown Todd, and Waller. The coalition hopes to educate and unite businesses across the state on potential legislation – such as North Carolina’s bathroom bill – that could adversely impact Tennessee’s economy. The coalition will not directly lobby legislators but will rely on individual members to do so. Members are asked to sign a statement that they support an “inclusive workforce statewide, regardless of race, sex, national origin, ethnicity, religion, age, disability, sexual orientation or gender identity.”

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Trump to Tap Tennessee Fast Food CEO for Labor Secretary

President-elect Donald Trump is expected to nominate restaurant chain executive Andy Puzder to be Labor Secretary, the Tennessean reports. Puzder, CEO of CKE Restaurants, which owns fast food restaurants Carl’s Jr. and Hardee’s, worked as a Trump campaign adviser and is a major critic of what he calls unnecessary federal regulations. A second story highlights five things to know about Puzder, who worked as a corporate lawyer before making his name as a turnaround specialist. Puzder recently relocated to the Nashville area and is in the process of moving the company’s headquarters to Williamson County.

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Workers’ Comp Court Adopts New Rules

The Tennessee Court of Workers’ Compensation recently issued new rules governing deadlines for filing wage statements, medical records and interrogatories as well as responding to requests for expedited hearings; filing of documents previously filed with a mediator; obligations on the party opposing a request for expedited hearing; use of e-signatures; and use of causation letters.

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