News

Self-Insurers Association Seeking Director

The Tennessee Self-Insurers Association is seeking an executive director. Duties include promoting improvements in workers’ compensation law, acting as a liaison with the state departments of Labor and Insurance, keeping members informed of relevant issues, and managing association operations. Applicants should have an understanding of workers’ compensation law as well as the legislative and regulatory environments in Tennessee. Download a job description. Resumes should be submitted to Board of Directors Chair Gary Eastes.

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Applications Accepted for Workers' Comp Judges

The State of Tennessee-Division of Workers’ Compensation is requesting interested and qualified attorneys to apply for the position of Workers’ Compensation Judge. All workers’ compensation claims involving illness or injury that occurred on or after July 2014, will be heard in the new workers’ compensation court. All interested applicants must complete a questionnaire by Dec. 1. For more information, contact the Division of Workers' Compensation Administrator Abbie Hudgens.

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Columnists Cover Retaliation, How to Handle a Neighbor's Tree

In this issue of the Journal, Edward Phillips and Brandon Morrow write about retaliation claims and how standards are more difficult under "Nassar" and "Ferguson." Don Paine tells you what the law is when a neighbor's tree's limbs and roots cause problems across the property line. Paine also reviews Duel with the Devil: The True Story of How Alexander Hamilton and Aaron Burr Teamed Up to Take on America’s First Sensational Murder Mystery.

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Nashville Considering Study of Same-Sex Benefits

Nashville Mayor Karl Dean plans to appoint a Study and Formulating Committee to look at domestic benefits for same-sex partners of city employees, his office said yesterday. Dean spokeswoman Bonna Johnson said the mayor agrees with a majority of Metro Council members who signed a letter asking him to “consider the provision of domestic partner benefits for Metro employees and to make the appropriate recommendations to the Metropolitan Employee Benefit Board.” The Tennessean has more.

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Vanderbilt Sued Over Summer Job Cuts

Attorneys with Barrett Johnston LLC, including civil rights lawyer George Barrett and former U.S. Attorney Jerry Martin, have filed a lawsuit against Vanderbilt University Medical Center, claiming the hospital violated the WARN Act when it terminated up to 300 workers in July without the federally mandated 60 days notice, the Tennessean reports. The lawsuit says, “Although the letters provided to the July 2013 group of terminated employees referenced ‘performance’ as part of the basis for the terminations, this was merely a ruse designed by the defendant to intentionally avoid the WARN Act's obligation and requirements.” The 275 workers let go yesterday were given 60 days notice, the newspaper reports.

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Magazine Predicts 12 ‘Hottest’ Practice Areas

The September issue of The National Jurist predicts the 12 "hottest" practice areas for the next decade. Those deemed to be “super hot” were health care, administrative, intellectual property and family law. Food and drug law, tax litigation, privacy law and compliance law were ranked as “hot.” And employment, energy, manufacturing and immigration law were judged “somewhat hot.”

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Tennessee Workers’ Compensation Payments Decline

Tennessee is one of 22 states where both workers’ compensation payments and costs to employers decreased in 2011, according to a new report from the National Academy of Social Insurance. According to the report, the state’s employers paid $783.7 million in workers’ compensation benefits, down 0.1 percent from 2010. By contrast, workers’ compensation payments rose 3.5 percent and costs to employers rose 7.1 percent nationwide during 2011. The report also estimated that 125.8 million workers are now covered by workers’ compensation protection – up 1.1 percent from 2010. The Memphis Daily News has more.

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Workers’ Comp Law Favoring Independent Exams Upheld

In a unanimous opinion this week, the Tennessee Supreme Court upheld the constitutionality of a workers’ compensation law that gives priority to the opinion of an independent medical examiner when parties cannot agree on a disability rating. The court found that the law does not violate principles of due process and does not constitute an infringement by the legislative branch on the exclusive powers of the judiciary. With regard to the specific facts of Mansell v. Bridgestone, the court also found that the employee did not provide evidence to contradict the independent examiner’s finding. Read more from the court.

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First Wrongful Dismissal Suit Filed Against Vanderbilt

The first of what could be several lawsuits against Vanderbilt University Medical Center in relation to a recent round of job cuts was filed Monday in U.S. District Court in Nashville, The Tennessean reports. The suit alleges the hospital violated the Family and Medical Leave Act by targeting certain employees to cut. “While VUMC has yet to publicly comment on the precise criteria utilized in selecting employees to terminate, some employees were targeted as a direct result of having exercised their rights pursuant to the FMLA,” argues Nashville civil rights attorney George Barrett and former U.S. Attorney Jerry Martin, both with Barrett Johnston LLC, who are representing the plaintiff.

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Franklin Firm Launches New Practice Area

The Franklin law firm of Thompson Burton has launched an employment law practice, adding to its existing services in commercial real estate, business litigation and direct sales/advertising law. Leading the new practice group will be Nashville lawyer J.K. Simms, the Nashville Post reports. Simms previously chaired the Labor and Employment Practice Group at Cornelius & Collins. Simms graduated from the TBA Leadership Law program in 2011 and now serves on the program’s steering committee.

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Nelson Mullins Moves into New Nashville Office

Nelson Mullins Riley & Scarborough LLP has moved into a 17,000-square-foot office space at One Nashville Place at Fourth Avenue and Commerce Street. Although about the same size in square footage as the firm's previous office at the Regions Center, managing shareholder Larry Papel noted that the new space is "lighter and brighter and newer and nicer." The new space can accommodate up to 25 attorneys. Nelson Mullins, which opened in 2012 with six attorneys, added two more in April of this year and expects to add at least three more attorneys within the next few months. The Nashville Business Journal has the story.

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EEOC Lawyer Talks About Employment Trends

A former trial attorney with the Equal Employment Opportunity Commission (EEOC) who now represents employers in lawsuits, Paul Patten, says several recent EEOC cases highlight the increasing government scrutiny of employers that use blanket criminal background checks to screen applicants. The EEOC recently sued Goodlettsville, Tenn.-based Dollar General and a U.S. unit of German automaker BMW AG, alleging the companies refused to hire applicants with criminal records, when the companies should have individually considered each applicant. Patten will discuss rapidly evolving employment law trends, along with a panel of industry experts, Aug. 8 in a seminar sponsored by The Daily News.

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County Employee Wins Termination Suit

Gabriel Segovia, a former school resource officer with the Montgomery County Sheriff’s Office, won a wrongful termination case against the county in federal court Friday, the Leaf Chronicle reports. A jury awarded Segovia $79,382 in back pay after they found that his termination was in retribution for submitting a letter to the editor of the Chronicle. The letter questioned the city council’s allocation of funds for a park project. Segovia reports he was “berated” by the sheriff for expressing his opinion as a private citizen and a month later was dismissed for “dishonesty, insubordination and conduct unbecoming a member” of the sheriff’s department. The county argued that the letter played no part in the dismissal.

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Lawyers Look into Vanderbilt Layoffs

Vanderbilt University Medical Center has started what could be a two-year span of layoffs, but some employees are not walking away quietly. Civil rights and employment lawyer George Barrett will be holding a press conference tomorrow morning with former U.S. Attorney Jerry Martin to discuss their investigation of the terminations. Employees who have been affected by the layoffs contacted the lawyers with concerns of possible violations of state and federal laws, WZTV Fox News 17 reports.

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Haslam Names Head of New Workers’ Comp Division

Tennessee Gov. Bill Haslam announced that Abbie Hudgens will oversee the new Workers’ Compensation Division starting today. Hudgens will serve a six-year term leading the revamped Workers’ Compensation Division in the Department of Labor and Workforce Development. She had been handling workers’ compensation issues for the department and was instrumental in developing legislation to make changes to the states’ workers’ compensation laws. Hudgens, 67, has a Master of Public Administration degree from the University of Tennessee. Before joining the Labor Department, she was risk and insurance manager for Metro Nashville, risk and benefits manager for the City of Knoxville and a private consultant.

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Judge Allows Lawsuit Against Labor Department to Continue

Davidson County Chancellor Claudia Bonnyman ruled that former labor employee Annie Hendricks’ discrimination lawsuit against the state Department of Labor can move forward, despite the government’s effort to stop it, the Tennessean reports . Judge Bonnyman said Hendricks proved her job responsibilities were “significantly diminished” last year, which is enough to allow her case to continue. Hendricks, of Nashville, sued the state in November on grounds of racial discrimination, saying her duties were given to two less-experienced black employees. Assistant Attorney General Ashley Carter said the department’s position is that there was no racial discrimination and that Hendricks did not experience a material change in her salary or benefits.

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Supreme Court Rules on Suits Against Businesses

A sharply divided U.S. Supreme Court today decided two cases that some say will make it harder to sue and get judgments against employers for discrimination and retaliation claims, the Memphis Daily News reports. In the first case, the court defined a supervisor as a person who has the ability to hire and fire, undercutting claims that a company is responsible for the racism or sexism of an employee’s coworker. In the second case, the court said juries must find that an employer would not have taken the alleged discriminatory action but for an intention to retaliate. Justice Ruth Bader Ginsburg, in a rare move, read her dissent aloud in the courtroom and called on Congress to overturn the decisions.

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Court Will Hear Recess Appointment Dispute

The U.S. Supreme Court today agreed to decide whether President Barack Obama’s January 2012 appointments to the National Labor Relations Board violated the Constitution. The administration is challenging a ruling from the U.S. Court of Appeals for the D.C. Circuit that the appointments were made while Congress was technically in session and therefore were not allowed. The government argues that because the Senate had ceased business for an extended period of time, the president’s use of the recess appointments clause was appropriate. Read more in the Blog of Legal Times.

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Obama Endorses Employment Non-Discrimination Bill

President Barack Obama is endorsing the Employment Non-Discrimination Act, legislation that would bar employers from discriminating against workers based on their sexual orientation or gender identity. The endorsement came last week at a White House reception honoring LGBT Pride Month and was warmly received by the crowd. According to the Memphis Business Journal, gay rights groups have been waiting for Obama to throw his weight behind the legislation.

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'Guns in Trunks' Article Updated After AG Opinion Issued

In the new Tennessee Bar Journal, Edward G. Philips and Brandon L. Morrow write about the recent "guns in trunks" law. However, after the article went to print, Tennessee Attorney General Bob Cooper issued an opinion on what limitations, if any, 2013 Tenn. Pub. Acts, Chapter 16, places on employers’ rights to terminate an employee who brings a firearm or firearm ammunition onto the employer’s property. In the opinion, Cooper says the law does not impact the employer/employee relationship ”and does not prohibit an employer from terminating an employee for possession of a firearm or ammunition on the employer’s property. This opinion, Phillips and Morrow say, would have significantly, but not completely, altered the article. "Our advice to employers," they write in an updated electronic version of the article, "would be to tread lightly in this area, or risk being a test case for a terminated permit carrier. In the end, the Tennessee appellate courts will have to decide."

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AG: Employees Violating Company Gun Laws May Be Fired

State Attorney General Robert Cooper has said in an advisory opinion that the new “guns-in-trunks” law does not forbid employers from firing employees who bring a gun onto company parking lots in violation of company policy, the Commercial Appeal reports. The law, which goes into affect July 1, “only decriminalizes the carrying and storage of firearms and firearm ammunition in a permit holder’s privately owned motor vehicles in public and private parking areas” under the circumstances defined in the law but it “does not address and thus has no impact on the employment relationship between an employer and an employee,” the opinion says.

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Wimberly Lawson Opens Chattanooga Office

The Knoxville-based law firm Wimberly Lawson Wright Daves & Jones PC has opened an office in Chattanooga. The firm is currently sharing space with the law office of Bob E. Lype & Associates at 6181 Vance Rd. Wimberly Lawson, which focuses on labor and employment, commercial, business, insurance and immigration law, has offices in Knoxville, Nashville, Cookeville and Morristown. Chattanoogan.com has more on the firm’s plans.

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Workers' Comp Overhaul Adopted; McNally Amendment Still Alive

The bill (SB 200) to overhaul the workers’ compensation system, transfer responsibility to an administrative judiciary and narrow the range of discretion in the system received easy final passage in the state House today.

Meanwhile, budget deliberations, which will formally resume on Monday afternoon, continue to include the McNally amendment. With only one week likely left in the session, and most notice and other rules suspended, advocates must now expand their focus to all members of the Senate Finance Committee to try to head off quick adoption of the proposal by the chair.

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Unions Fight Workers’ Comp Overhaul

Union groups on Monday blasted Gov. Bill Haslam’s plan to create a new workers’ compensation office and place it under the troubled the Department of Labor and Workforce Development, the Tennessean reports. “We are calling on the governor to put the brakes on moving such a vital process for injured Tennessee workers into the most dysfunctional department in the state,” the Tennessee AFL-CIO Labor Council said in a statement. The bill, which has already cleared the Senate and is progressing in the House, would completely overhaul the workers’ comp program by moving claims out of the courts.

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Workers’ Comp Bill Set For Finance Consideration

The administration’s bill to overhaul Tennessee's Workers’ Compensation system (SB 200 by Norris / HB 194 by McCormick) is set for its next major legislative consideration this week. Both the Senate and House Finance Committees are expected to take up consideration of the matter, and review, in particular, its fiscal impact. Fiscal estimates for the bill have indicated that the state expects to collect filing fees that now go to court clerks, and that those fees are expected to be sufficient to offset the cost of the new department-based system. As amended, the new legislation would be effective as to cases commenced on or after July 1, 2014. The TBA has continued to emphasize that a change to a more formulaic, purely administrative system is unwise because it does not employ our best dispute resolution mechanism -- the courts -- and does not permit enough discretion to prevent injustice.

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