News

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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State Seeking Workers’ Comp. Judge

The State of Tennessee Bureau of Workers’ Compensation is seeking a workers’ compensation judge in West Tennessee. The successful candidate will be appointed to an initial term that will run through June 30, 2019, and then be eligible to serve an additional three full terms. Applicants must have a valid, active Tennessee law license, be at least 30 years old and have at least five years of experience in Tennessee workers’ compensation matters. Send the required application and attachments to Janie.L.Dorris@tn.gov by Jan. 6. For more information about the position contact Bureau of Workers’ Compensation Administrator Abbie Hudgens.

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Online CLE for General Practitioners Now Available

Sessions from the TBA’s annual General Practice CLE are now available online. Topics include child welfare laws, domestic assault cases, law office dynamics, wrongful termination, writing skills and more. See the full listing here.

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TBA Activates Disaster Legal Assistance for Wildfires

In response to the wildfire disasters in Gatlinburg and Sevier County, the TBA is partnering with the Tennessee Alliance for Legal Services (TALS), Legal Aid of East Tennessee (LAET) and the Supreme Court's Access to Justice Commission to help those affected with their legal needs. Attorneys who want to help can access training resources and other materials on the TBA's Disaster Legal Assistance page. Legal clinics and outreach related to losses from the fires are anticipated and volunteers will be needed. For more information or to volunteer in the area, contact Kathryn Ellis at Legal Aid of East Tennessee. Those who are not in the area but still want to help can volunteer to answer online questions at TN Free Legal Answers or respond to calls on the HELP4TN helpline. The TBA's Young Lawyers Division Disaster Relief Committee has also been activated and will be assisting with volunteer recruitment and coordination efforts. To volunteer, complete the Disaster Legal Assistance Volunteer Form. If you know someone in need of legal assistance, please have them call the legal helpline at 844-HELP4TN, or visit help4tn.org.

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Judge Blocks Obama Overtime Pay Rule

A federal judge today granted an emergency injunction against an Obama administration rule that would require mandatory overtime pay for more than four million workers, the Hill reports. U.S. District Judge Amos Mazzant in Texas agreed with 21 states and a coalition of business groups that the rule, which was set to take effect Dec. 1, likely contradicted Congress-passed labor laws. The rule would have doubled to $47,500 the amount a worker must earn to be exempt from overtime pay.

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CLE Explores New Rules for Wellness Programs

New rules from the EEOC impacting what incentive employers may offer to employees who provide medical information as part of a wellness program under the Americans with Disabilities Act take effect Jan. 1. Nashville lawyer Fredrick Bissinger, with Wimberly Lawson Wright Daves & Jones, will cover the do’s and don’ts of the new rules at a webcast CLE on Dec. 6. Get more information or register online.

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Judge Blocks Union ‘Persuader Rule’

A Texas-based federal judge yesterday blocked the Obama administration’s “persuader rule,” which would have required third-party lawyers and other labor consultants to publicly disclose work they do for companies related to union organization efforts, even if they do not contact employees directly. U.S. Judge Sam Cummings finalized a temporary injunction he issued against the rule in June. Cummings said the rule oversteps the Labor Department’s authority under federal law. The Nashville Business Journal has more on the decision.

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Court Raises Doubts About Temporary Presidential Picks

The U.S. Supreme Court yesterday raised doubts about the temporary appointment of a former labor official in a case that could limit the president’s power to fill top government posts, the Associated Press reports. The justices are considering whether Lafe Solomon was allowed to serve as acting general counsel of the National Labor Relations Board while he was waiting for Senate confirmation to fill the role permanently. A federal appeals court ruled last year that Solomon’s tenure was invalid. A ruling from the high court is expected by the end of June. WRCB-TV has the story.

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Appeals Court Upholds City’s Right to Cut COLAs

The U.S. Sixth Circuit Court of Appeals yesterday affirmed a district court ruling dismissing a lawsuit filed against the city of Chattanooga by retired firefighters and police officers over reforms to their pension plans, the Times Free Press reports. U.S. District Court Judge Curtis Collier had granted the city’s motion for summary judgment agreeing that cost-of-living adjustments did not constitute a vested right or contract between the city and its employees. The appellate panel found that, “The retirees do not have a contractual right to a fixed three-percent COLA, because the City Code does not bind the fund to the fixed COLA.”

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Workers’ Compensation Court Holding Listening Sessions

The Tennessee Court of Workers’ Compensation Claims will hold a series of listening sessions across the state for members of the bar and public to weigh in on the new court system and to suggest areas for improvement. Chief Judge Kenneth M. Switzer and Brian Holmes, director of Mediation and Ombudsmen Services of Tennessee, will host sessions in Murfreesboro on Nov. 15, Jackson on Nov. 29, Memphis on Nov. 30, Nashville on Dec. 1, Chattanooga on Dec. 7, Cookeville on Dec. 9, Kingsport on Dec. 13 and Knoxville on Dec. 14. Those unable to attend in person may submit written comments. The March issue of the Tennessee Bar Journal looked at the new court.

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NLRB Overrules Precedent Requiring Consent of Staffing Employer and Client Employer for Single Bargaining Unit

Labor Board’s Ruling

In Miller & Anderson, Inc.,[i] (“Miller”) the National Labor Relations Board (“Board”), addressed the issue of whether “employees who work for a user employer—both those employees the user alone employs and those employees it jointly employs (along with a supplier employer)—must obtain employer consent if they wish to be represented for purposes of collective bargaining in a single unit, even if both groups of employees share a community of interest with one another under the Board’s traditional test for determining appropriate units.”[ii]  In an earlier decision, Oakwood Care Center, 343 NLRB 659 (2004) (“Oakwood”), the Board held that consent of the user and supplier employer was required to have a single bargaining unit since a unit consisting of employees from two employers constituted a multi-employer unit.  The Oakwood decision overruled M. B. Sturgis, Inc., 331 NLRB 1298, 1304-08 (2000) (“Sturgis”), which had held that consent of the user and supplier employers was not required where the employees share a community of interest. 

The Board in Miller overruled Oakwood and returned to the standard established in Sturgis which is “[e]mployer consent is not necessary for units that combine jointly employed and solely employed employees of a single user employer.”[iii] Rather, the Board “will apply the traditional community of interest factors to decide if such units are appropriate.”  Sturgis, 331 NLRB at 1308.[iv]  The Board further stated that representation “petitions that seek units composed only of the employees supplied to a single user, or that seek units of all the employees of a supplier employer and name only the supplier employer” are also permissible under National Labor Relations Act (“Act”).[v]

Board’s Reasoning

The Board began its analysis by reviewing the text of the Act and concluded that the Act does not compel the holding in Oakwood that the consent of the user and supplier employers is required. Thus, the Board concluded that it had the authority to adopt the interpretation set forth in Sturgis that it believed “better serves the purposes of the Act.”[vi]

Next, the Board concluded that the standard set forth in Sturgis was consistent with Section 9(b) of the Act which gives the Board the authority to determine the “unit appropriate for collective bargaining [which] shall be the employer unit, craft unit, plant unit, or subdivision thereof…to assure to employees the fullest freedom in exercising the rights guaranteed” by the Act.[vii] The Board noted that “[a]ll the employees in such a unit are performing work for the user employer and are employed within the meaning of the common law by the user employer” and the user and supplier employer are joint employers of a portion of the unit employees.[viii] Further, the Board distinguished the situation from a “traditional multi-employer bargaining situation.” For example, in multi-employer bargaining situations “the employers are entirely independent businesses, with nothing in common except that they operate in the same industry… [t]hey are often in competition for work with each other, operate at separate locations on different work projects, and hire their own employees.”[ix]

The Board continued its analysis by concluding that the Sturgis standard better effectuates the “[f]undamental [p]olicies of the Act” in contrast to the Oakwood standard. Under the Sturgis standard, “employees [are] free to choose the unit they wish to organize, provided their desired unit is appropriate under the Board’s traditional test for determining unit appropriateness” be it a unit composed of jointly employed employees and employees solely employed by the user employer or a separate unit “if they would prefer to do so.” [x] The Board stated that the Oakwood standard “[r]equiring employees to obtain employer permission to organize in such a unit is surely not what Congress envisioned when it instructed the Board, in deciding whether a particular bargaining unit is appropriate, ‘to assure to employees the fullest freedom in exercising the rights guaranteed by th[e] Act.’”  29 U.S.C. §159(b).” [xi] The Board further noted that the Oakwood standard “also potentially limits the contingent employees’ opportunity for workplace representation.”[xii]

Finally, the Board rejected the policy arguments raised against the Sturgis standard finding them “unpersuasive.” Arguments advanced against the Sturgis standard were that it “hinder[ed] meaningful bargaining, threaten[ed] labor peace, and harm[ed] employee rights.” [xiii] The Board reasoned that the standard adopted by the Board in Sturgis had been applied without difficulty for decades and there was no evidence that difficulties arose in the years between the Sturgis and Oakwood decisions. In addition, the Board reasoned that a user employer would have no greater bargaining obligation under the Sturgis standard, since “its bargaining obligation extends only to the employees it jointly employs and only with respect to such terms and conditions which it possesses the authority to control.”[xiv] Moreover, the Board stated that federal appellate courts have approved the placement of joint employees and solely employed employees in a single unit rejecting arguments that such an arrangement is “inimical to effective collective bargaining.” [xv] The Board dismissed claims that a return to the Sturgis standard “will encourage a tyranny of the majority over minority interests” noting the requirement that a “community of interest” first be established and the union’s “duty to fairly and in good faith represent the interests of all the unit employees, including in collective bargaining.”[xvi]

Take Aways

The Board’s return to the Sturgis standard will no doubt make it easier (and more attractive) for unions to organize a single bargaining unit composed of jointly employed employees and employees solely employed by the user employer. With the contingent US workforce estimated at 60 million and growing [xvii], employers and staffing agencies should revisit existing contractual arrangements and practices to account for the potential risks created by the Board’s re-adoption of the Sturgis standard.


*J. Gregory Grisham is a Partner 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. Greg may be reached at ggrisham@fordharrison.com or 615-574-6707.


[i]364 NLRB No. 39 (2016)

[ii]id. at p. 1.

[iii]id. at p. 2.

[iv]id.

[v]id.

[vi]id. at p. 6.

[vii]id. See also 29 U.S.C.§159

[viii]id. at p. 6.

[ix]id.

[x]id. at p. 8.

[xi]id.

[xiii]id. at p. 10.

[xiv]id. at p. 11.

[xv]id.

[xvi]id. at p. 12.

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