LOUIS W. ADAMS v. MEGAN ELIZABETH LEAMON ET AL.
Court: TN Court of Appeals

Attorneys:

Dan Channing Stanley and Eric B. Foust, Knoxville, Tennessee, for the appellant, Louis W. Adams.

Paul Campbell, III, Chattanooga, Tennessee, for the appellees, Megan Elizabeth Leamon and Cynthia Karlette Leamon.

Nathan Evans, Chattanooga, Tennessee, for the appellee, State Farm Mutual Automobile Insurance Company.

Judge: FRIERSON

This is a motor vehicle accident case wherein the jury’s verdict resulted in an award of compensatory damages to the plaintiff of $317,000.00. The defendants filed a motion seeking a new trial or, in the alternative, a remittitur of the amount of damages awarded. The trial court granted the remittitur, finding that the damages awarded by the jury were excessive and unsupported by the evidence. The trial court also ruled that if the plaintiff rejected the remittitur, a new trial would be awarded. The plaintiff accepted the remittitur under protest, subsequently filing the instant appeal. We vacate the trial court’s judgment and remand this case for a new trial solely on the issue of damages.

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CHRISTINE STEVENS EX REL. MARK STEVENS v. HICKMAN COMMUNITY HEALTH CARE SERVICES, INC. ET AL.
With dissenting opinion.
Court: TN Supreme Court

Attorneys:

Joshua L. Hunter and Kara Beth Hunter, Nashville, Tennessee, for the appellant, Estate of Halford Whitaker, M.D.

C. Bennett Harrison, Jr. and Brian W. Holmes, Nashville, Tennessee, for the appellee, Hickman Community Health Care Services, Inc. d/b/a Hickman Community Hospital.

Richard D. Piliponis and Michael Reed Griffin, Nashville, Tennessee, for the appellee, Christine Stevens, Next of Kin of Mark Stevens, deceased, and on behalf of the wrongful death beneficiaries of Mark Stevens.

Judge: LEE

More than sixty days before filing suit, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tenn. Code Ann. § 29-26- 121(a)(2)(E) (2012) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization that permits the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. Contrary to the statute, the plaintiff provided a non-HIPAA compliant medical authorization that only permitted the release of medical records to plaintiff’s counsel. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E). The trial court denied the motion, ruling that plaintiff’s noncompliance was excused by extraordinary cause. We hold that the plaintiff was required to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) and failed to do so, and that her failure to comply is not excused by extraordinary cause. We dismiss the plaintiff’s case without prejudice.

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Linda Warren Seely

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Pat Vital

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Ruth Hillis

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Stephen Shields

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Wearen Hughes

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Robert L. Arrington practices law with the Kingsport, Tennessee firm of WILSON WORLEY, P.C., where he is presently firm chairman. Heholds A.B. and J.D. Degrees from the University of North Carolina, where he was admitted to Phi Beta Kappa.  His areas of practice include commercial litigation, employment law and litigation, and arbitration and mediation.  He is a member of the Labor & Employment Law, Litigation, and Dispute Resolution Sections of the Tennessee and American Bar Associations. He has served as President of the Kingsport Bar Association. He is a member of the roster of neutrals for the American Arbitration Association for the arbitration of commercial and employment disputes. He is also a member of the neutral panels of the CPR Institute and FINRA. He is a member of the Tennessee Academy of Arbitrators and Mediators.

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Leigh Ann Robertswas raised in Jackson, Mississippi and attended undergraduate and law school at the University of Mississippi. Leigh Ann has been a trained mediator since 1998 and is a Tennessee Supreme Court Rule 31 Listed General/Civil Mediator with over 15 years of experience mediating civil lawsuits, and employment/workplace and community disputes. Leigh Ann is licensed to practice law in both Mississippi and Tennessee. In her dedication to mediation and conflict resolution, Leigh Ann has been asked to serve as a distinguished mediator and arbitrator for national organizations such as FINRA, the American Arbitration Association, the National Academy of Distinguished Neutrals as well as local organizations such as the Tennessee Academy of Mediators and Arbitrators and the Better Business Bureau. 

Leigh Ann is a proud supporter of Nashville's CABLE Women's Organization and the Lawyers Association of Women and other community groups. Leigh Ann has also served as an adjunct instructor of mediation and negotiation courses at Belmont University's College of Law and Massey School of Business, MBA program as well as other colleges and universities in the area.  Leigh Ann also serves as professional and executive development coach and consultant to numerous Fortune 500 companies and leaders as well as for numerous nonprofit organizations and their leadership staff.

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Ken Jacksonhas served on the Executive Council for several years.  His joys include his solo mediation and arbitration practice, church work, acting in film, commercials, and theater, painting, watching football, and attempting to cook gourmet meals for my wife, Judy Jackson and son, Davis.  Challenges include age and the constant search for wisdom that is supposed to accompany age.

Ken’s degrees are B. A. and J.D., Southern Methodist University, and M. Div., Vanderbilt University.  Most of his career was in-house in contract management and as General Counsel, then he was Of Counsel for a great law firm, Neal & Harwell until he left to go to Divinity School at Vanderbilt.  Relevant to the ADR Section, he co-founded and support the Nashville Conflict Resolution Center, and is a listed Rule 31 mediator, civil and family.

He has served as an arbitrator and mediator in a wide range of cases for the American Arbitration Association, the Financial Industry Regulatory Authority, the Better Business Bureau, and NCRC.  Ken also mediates controversies in religious settings.

Ken has learned much of what he knows about mediation and arbitration from fellow ADR Section members.  If you attend or watch TBA CLE programs, read the newsletters, engage in 1-on-1 conversations, etc., your capabilities will grow even beyond your imagination.

Dear DR Section Members,

I am so happy to be this year’s DR Section Chair, having taken over from Steve Shields.   Our Executive Council is in place: Bob Arrington from Kingsport; Pat Vital from Chattanooga; Leigh Ann Robert, Ken Jackson, Wearen Hughes, and Ruth Hillis, all from the Nashville area; Linda Warren Seely from Jackson and Memphis, and our immediate past Chair, the immensely helpful and amazing Steve Shields.  We’ve been meeting by phone each month since August, and have come up with some good ideas for Section CLE, articles and other activities.  We would love some dialogue with each and every one of the Section members, so please find time to tell us what you would like to see covered over the next six months or so. 

Let me introduce myself: I’m Jackie Kittrell, I’m originally from Carthage, Tennessee (although my father was in the U.S. Navy, so I grew up by the ocean on the east coast).  I’m married, have three grown sons and a poodle, and live on a heritage farm in East Knox County.  I’ve lived in Knoxville since law school, having graduated from UT College of Law in 1988.  My practice of law has been diverse, involving public interest impact litigation, civil rights and employment cases, and doing pro bono work for Juvenile Court prior to taking over as Executive Director of the Community Mediation Center in Knoxville in 2006.  I am now challenged every day by how to use mediation services, delivered by volunteer mediators and law students we train, so that we can provide access to mediation, regardless of the ability to pay.  The disputes we handle range from those filed in General Sessions Civil Court---landlord tenant, neighborhood fences and dogs, contracts gone bad, roommates splitting up---to all manner of family cases and juvenile restorative justice matters involving bullying, assault, vandalism, theft, and more.  I believe the ability to safely and sustainably provide low cost mediation services to a largely pro se clientele, as well as screening cases out of mediation when necessary, into more appropriate social and legal service agencies, both public and private,  is worth it’s weight in gold to our overburdened justice system.    This kind of program is not unique to Knox County, and this largely invisible work is going on all across our State, in one form or another.  Just ask!

I also care very deeply about the state of Alternative Dispute Resolution in the State of Tennessee, especially how all of us can learn things from each other.  The practice of law (and DR) has become so full of new information, rules and ethical concerns, but much of the time, lawyers need to remain true to their “general practitioner” roots to do the best job for their client, identifying issues and looking holistically at their clients’ concerns.  In our EC meetings, we’ve talked about how we can offer CLE which will be useful to members of other sections, and how we can collaborate on articles for the TBA Journal which will be widely read and appreciated across the membership.  At the same time, we want to listen to feedback from our own DR Section membership, and invite those of you who would dare, to provide material for our Section Newsletter, edited by Ruth Hillis.

This year, our Executive Council will be drafting and publishing comments to the ADRC’s proposed changes to Rule 31 (due in January, 2014) as well as focusing our CLE on basic skills for both new and seasoned practitioners.  Stay tuned for more updates as we announce our annual CLE event to be held April 25, 2014!  Please connect with me via Christy Gibson at cgibson@tnbar.org or directly at Jackie.kittrell@gmail.com.

The TBA Mentoring Program is geared to helping the growing number of newly admitted lawyers opening solo practices. Beginning now, and running through Jan. 3, 2014, TBA members in their first three years of law practice may apply to be matched with a mentor. Those participating in the program will commit to a formal mentoring relationship for one year -- beginning in February -- with a requirement that mentors and mentees meet face-to-face at least once a month. Participants will be able to choose one of two tracks: a track that offers up to seven hours of CLE credit or one that will not include CLE. Participants will choose from a variety of curriculum topics, materials for which will be available on the TBA website. In addition to seeking mentees, the TBA is recruiting attorneys with at least eight years of legal practice experience to serve as mentors. Whether you are a new lawyer in need of a mentor or a seasoned lawyer with wisdom to share, visit the TBA's mentoring webpage to learn more about this exciting opportunity.

May - July 2013

Mini Summaries

Insurance

·      Insurance Coverage Denied When Residential Structure Damaged by Blasting: 

       Hearn v. Erie Insurance Exchange, 2013 WL 2420476 (Tenn. Ct. App. May 31, 2013).

o   Addressing whether blasting damage to residential structure was covered by homeowner’s policy based on its definition of “Earth movement”.

 

·      General Commercial Insurance Policy Does Not Provide Coverage to Personal Representative of Insured: Tenn. Farmers Mutual Ins. Co. v. W. Phillip Reed, et al., No. E2012-01392-COA-R3-CV (Tenn. Ct. App. June 10, 2013).

o   Addressing whether insurer was entitled to summary judgment based on policy’s definition of “property damage”, and whether personal representative of decedent policyholder was entitled to commence such suit.

Punitive Damages

·      Trial Court’s Finding of No Juror Misconduct Affirmed on Appeal: 

       Worley v. Rarity Communities, Inc., 2013 WL 3958444 (Tenn. Ct. App. July 29, 2013).

o   Addressing whether jurors’ use of a quotient in determining punitive damages constituted a “gambling” verdict and was therefore a form of juror misconduct.

Summary Judgment

·      Funeral Home Entitled to Summary Judgment on Liability for Auto Collision Involving “On Call” Employee:  Cooper v. Robert Ledford Funeral Home, Inc., 2013 Tenn. App. LEXIS 479 (Tenn. Ct. App. July 29, 2013).

o   Addressing whether the funeral home was entitled to summary judgment when one of its “on call” employees was involved in an automobile accident on his way to work.

Tort

·      Slip and Fall Outside Restaurant Not Caused by Dangerous Condition:  Grady et al. v. Summit Food Corp., 2013 Tenn. App. LEXIS 530 (Tenn. Ct. App. Aug. 13, 2013).

o   Addressing whether woman’s fall on concrete ramp outside restaurant constituted a “dangerous condition” which would lead to a successful motion by defendant for summary judgment.

Workers’ Compensation

·      Employee Entitled to Have Compensation Award Reconsidered After Injury Worsened:  Conatser v. Fentress Farmers Coop. and Sentry Ins., 2013 Tenn. LEXIS 629 (Tenn. July 26, 2013).

o   Addressing whether surgeries and complications subsequent to worker’s compensation award entitled plaintiff to have award reconsidered.

Judicial Recusal

·      Appellate Court Affirms Judge’s Denial of Motion for Recusal:  Van Duyn v. Electronic Innovations, LLC, et al., 2013 Tenn. App. LEXIS 383 (Tenn. Ct. App. June 10, 2013).

o   Addressing whether trial court’s denial of motion to recuse was proper based on his previous service with defendant on a non-profit board.

Contracts

·      Penalty Clause in Contract for Sale of Property Struck Down:  Bachour v. Mason, 2013 WL 2395027 (Tenn. Ct. App. May 30, 2013).

o   Addressing whether a clause providing for $75,000 to be retained by buyer if contract not completed by a certain date was a penalty clause or a liquidated damages provision.

 

Products Liability

·      Threshold Issue of Federal Preemption Leads to Reaffirmation on Appeal:  Clifton A. Lake, et al. v. The Memphis Landsmen, LLC et al., 2013 WL 1850761 (Tenn. Ct. App. May 3, 2013).

o   Addressing whether $8 million verdict against bus manufacturers was preempted by Federal Motor Vehicle Safety Standards.

 

Full Summaries

Insurance

Hearn v. Erie Insurance Exchange, 2013 WL 2420476 (Tenn. Ct. App. May 31, 2013).

The Tennessee Court of Appeals reversed a judgment in favor of the homeowners.  Plaintiffs filed suit after they made a claim with their homeowner’s insurance company because cracks developed in their home’s brick exterior.  Plaintiffs alleged the cracks were caused by commercial blasting near their home and should be covered by their homeowner’s policy.  The specific language within the policy, however, excluded coverage for earth movement “caused by natural or manmade events.”  The appellate court found that the vibrations that caused the cracks in the house were manmade earth movements, which fell within the policy’s exclusion. 

 

Tenn. Farmers Mutual Ins. Co. v. W. Phillip Reed, et al., No. E2012-01392-COA-R3-CV (Tenn. Ct. App. June 10, 2013).

This appeal involved the terms of a general liability policy issued by Tennessee Farmers Mutual Insurance Company (hereinafter “Farmers”) to Carol LaRue d/b/a Financial Resources Center (“LaRue”).  Ms. LaRue’s investment clients filed suit against her for alleged negligence when she rendered financial advice and failed to disclose the risks involved in those investments.  Farmers filed a motion for summary judgment on the basis that the general liability policy issued to LaRue did not cover economic losses to investment clients.  The trial court granted Farmers’ motion for summary judgment.  Defendants challenged the grant of summary judgment because they alleged that their economic losses were the result of negligence and constituted “property damage”, which was covered under the policy.  The Court of Appeals held that purpose of a general liability policy is not to plan for economic loss recovery, so there was no error in granting summary judgment to Farmers. 

 

Punitive Damages

Worley v. Rarity Communities, Inc., 2013 WL 3958444 (Tenn. Ct. App. July 29, 2013).

Defendants appealed on the basis of alleged juror misconduct following a trial in which plaintiffs were awarded both compensatory and punitive damages.  Defendants alleged that a quotient was used to compute plaintiffs’ damages, which resulted in a “gambling” award.  Defendants submitted affidavits from several jurors, which confirmed the use of such quotient in their mathematical calculations.  The Court of Appeals held, however, that because not all jurors agreed in advance to use such the quotient system, there was no juror misconduct.

 

Summary Judgment

Cooper v. Robert Ledford Funeral Home, Inc., 2013 Tenn. App. LEXIS 479 (Tenn. Ct. App. July 29, 2013).

This case of first impression addressed whether an employee’s “on call” status at the time of an automobile accident created respondeat superior liability for his funeral home employer.  Funeral Home’s summary judgment was denied by the trial court.  On appeal, Funeral Home argued that it was not liable for plaintiff’s damages because its employee was not within the scope of his employment at the time of the car wreck.  The court noted in Footnote 4 and 5 of its opinion that T.C.A. § 20-16-101 was intended to abrogate the summary judgment standard set forth by Hannan, reinstating the “put up or shut up” summary judgment framework.  Although plaintiff argued against the application of this standard because of the travel that was part of employee’s job requirements, the Court of Appeals granted Funeral Home’s summary judgment because there was no vicarious liability.  Employee used his personal vehicle to the Funeral Home to “clock in” and obtain a Funeral Home vehicle before he commenced with Funeral Home business.  The Court of Appeals noted that the analysis would be different had the car wreck occurred while employee operated a Funeral Home vehicle on a Funeral Home errand.

 

Tort

Grady et al. v. Summit Food Corp., 2013 Tenn. App. LEXIS 530 (Heard on July 10, 2013 but opinion released byTenn. Ct. App. on Aug. 13, 2013).

Plaintiff Grady slipped and fell at the Pita Pit, a Nashville restaurant owned by defendant.  As a result of her fall on the concrete ramp at the restaurant’s entrance, Grady suffered injuries to her left arm.  Grady filed suit against defendant in Davidson County Circuit Court.  Defendant filed a motion for summary judgment based upon the applicable standard and evidence produced from plaintiffs’ depositions.  Plaintiffs appealed the issues of whether the concrete ramp constituted a dangerous condition, whether defendant was aware of this dangerous condition, and whether defendant failed to correct or warn about the dangerous condition .  The Court of Appeals found that the summary judgment standard was correctly applied, and that it was not foreseeable on defendant’s part that the concrete ramp may cause someone to fall.  Plaintiff admitted that she did not look at the ramp when she walked toward restaurant and there was no evidence that the ramp was slippery.   

 

Workers’ Compensation

Conatser v. Fentress Farmers Coop. and Sentry Ins., 2013 Tenn. App. LEXIS 629 (Tenn. July 26, 2013).

While he worked for the Fentress Farmers Cooperative (“Co-op”), plaintiff had 1,500 pounds of stockade gates fall on him during a delivery.  After a four-month recovery, plaintiff returned to work.  His workers’ compensation claim was settled based upon a 34.5% permanent disability and future medical expenses.  Plaintiff underwent several additional surgeries after the settlement, and stopped work completely in 2010 because of his injuries.  Plaintiff requested a reconsideration of his previous award because the subsequent complications stemmed from the initial injury.  The trial court awarded him permanent partial disability, which employer appealed.  The Court of Appeals affirmed the trial court’s decision, but reversed the finding of permanent disability.   The value of the new award was referred to the Special Workers’ Compensation Appeals Panel for review.

 

Judicial Recusal

Duyn v. Electronic Innovations, LLC, et al., 2013 Tenn. App. LEXIS 383 (Tenn. Ct. App. June 10, 2013). 

One of the defendants, Ronald Jones (“Jones”), served on a non-profit board with the trial court judge.  The judge disclosed this fact to the parties at a status hearing, but claimed that  he and Jones never socially interacted and were only at approximately four of the same board meetings.   Plaintiff filed a motion for recusal on the basis that even if no bias was present, the appearance of bias existed.  The judge denied the motion for recusal.  The Court of Appeals found that Tennessee case law only requires a judge to recuse himself when it is “truly called for under the circumstances.”  The appellate court found no evidence sufficient to question the judge’s impartiality.

 

Contracts

  Bachour v. Mason, 2013 WL 2395027 (Tenn. Ct. App. May 30, 2013).

This appeal involved two contracts between parties for the sale of commercial property.  The dispute arose from a clause contained in the second contract that was not in the first contract, and which gave buyer (plaintiff) a $75,000 deposit toward the contract price.  Pursuant to the clause, buyer would retain the deposit if seller (defendants) failed to complete an access road to the property by a certain date.  When the access road was not completed by the required date, plaintiff filed a declaratory judgment wherein it alleged its contractual right to retain the $75,000 deposit.  The trial court disagreed with plaintiff, and ordered him to pay the entire contract price to defendants.  Plaintiff appealed.  The Court of Appeals held that plaintiff would not have suffered damages from a delay in the access road’s completion and that the contractual clause at issue was based on a figure “plucked from thin air.”  The trial court’s ruling was affirmed.

Products Liability

Clifton A. Lake, et al. v. The Memphis Landsmen, LLC et al., 2013 WL 1850761 (Tenn. Ct. App. May 3, 2013).

After plaintiff sustained severe brain injuries in a bus accident, he filed suit against the bus’ manufacturer, franchisor, and window manufacter.  The bus was used to transport passengers between the local airport and a rental car facility.  A collision between the bus and another vehicle, which caused plaintiff’s injuries.  The jury returned a verdict in plaintiff’s favor that exceeded $8 million, but assessed 100% of the fault against the corporate owner of the concrete truck that collided with the bus.  The concrete truck’s owner settled with the passenger before trial.  As a matter of first impression, the remaining defendants argued that plaintiff’s claims were federally preempted by the Federal Motor Vehicle Safety Standards.  The Court of Appeals affirmed and found that plaintiff’s claims were preempted based on the lack of safety seat belts and the materials that were used to construct the bus’ windows.  Plaintiff appealed to the Tennessee Supreme Court, which remanded for further consideration.  The Court of Appeals reaffirmed.

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By John R. LaBar*

On August 15, 2013, the 6th Circuit Court of Appeals affirmed the National Labor Relations Board’s (“Board”) decision in Specialty Healthcare.[i]  In Specialty Healthcare, the Board overruled over 20 years of practice in how the Board determines the appropriate bargaining unit in non-acute healthcare facilities.  Of particular concern to employers is that the underlying decision in Specialty Healthcare permits unions to petition for smaller “bargaining units”, with such units consisting of only one department or even one job classification, as compared to the Board’s prior preference of favoring “wall-to-wall units” at a single site.

Under the National Labor Relations Act (“NLRA”), workers in the private sector who wish to be represented by a union must petition the NLRB to hold an election to determine if a majority of the workers want union representation.  Section 9(b) of the NLRA gives the Board wide discretion to determine an appropriate “bargaining unit” for the group of workers that will vote on union representation.  However, “[t]he Board does not exercise this authority aimlessly; in defining bargaining units, its focus is on whether the employees share a ‘community of interest.’”[ii]  In turn, the “community of interest test” requires simply that groups of employees in the same bargaining unit “share a community of interests sufficient to justify their mutual inclusion in a single bargaining unit.’”[iii]

The “community of interest test” includes five factors; “(1) similarity in skills, interests, duties and working conditions; (2) functional integration of the plant, including interchange and contact among the employees; (3) the employer’s organization and supervisory structure; (4) the bargaining history; and (5) the extent of union organization among the employees.”[iv]

In Specialty Healthcare, the employer challenged the Board’s decision claiming primarily that the Board abused its discretion in its adoption of a new “appropriate bargaining unit” approach, that of the “overwhelming community of interest test”.[v]  In its decision ruling against Specialty Healthcare, the Board stated:

We reiterate and clarify that, in cases in which a party contents that a petitioned-for unit containing employees readily identifiable as a group who share a community of interest is nevertheless inappropriate because it does not contain additional employees, the burden is on the party so contending to demonstrate that the excluded employees share an overwhelming community of interest with the included employees.[vi]

Specialty Healthcare argued this “overwhelming community of interest test” represented a material change in the law.  The Court was not convinced by this argument and upheld the Board’s power to adopt such a test.[vii]

Specialty Healthcare also objected to the allocation of the burden of proof on the party arguing that the petitioned-for unit was inappropriate.  However, the Court also dismissed this argument finding that “[w]hile prior Board decisions did not expressly impose the burden of proof on the party arguing that the petitioned-for unit is inappropriate because the smallest appropriate unit contains additional employees, allocating the burden in this manner is appropriate for several reasons which were set forth in the Board’s decision.”[viii]

The first reason set forth by the Board was that “it is well established that ‘the Board looks first to the unit sought by the petitioner, and if it is an appropriate unit, the Board’s inquiry ends; [thus,] the Board should find the proposed unit to be an appropriate unit under the circumstances here unless the employer both contends and proves that a larger unit is the smallest appropriate unit.”[ix]  The second reason set forth by the Board was that “when the petitioned-for unit is presumptively appropriate, after there has been a showing that the petition describes employees who are readily identifiable as a group and share a community of interest, the Board can and should find the proposed unit to be an appropriate unit unless an opposing party proves otherwise.”[x]  And the final reason set forth by the Board was that “the allocation of the burden is appropriate because the employer is in full and often near-exclusive possession of the relevant evidence.”[xi]

While the underlying Board Decision is Specialty Healthcare was initially decided in August 2011, the full effect of “micro bargaining” units or “micro unions” and union efforts to create such units/unions is still relatively unknown.  However, now that the NLRB is at full strength for the first time in years, the Board could be ready to expand the rationale in Specialty Healthcare to eliminate other long standing special industry and occupation rules in order to encourage the formation of such “micro bargaining” units.  Of particular concern to employers would be a change by the Board to the long standing requirement in the retail sector of a single store requiring a “wall-to-wall unit” at a single location.

As a final note, while the decision in this case may be troubling for employers across the country, employers in Tennessee, Kentucky, Ohio and Michigan should be especially concerned in that the 6th Circuit is responsible for hearing Federal Court appeals from these states.  As such, this case will be controlling precedent for any litigation before this Court.

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John R. LaBar is a named member at Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. in Tullahoma, Tennessee and is a member of the Labor & Employment Law Section of the TBA.  He is a frequent speaker at legal and human resource seminar on employment law topics.  He can be reached at jlabar@henry-mccord.com or (931) 455-9301.

 

By D. Wes Sullenger*

On September 17, 2013, the Department of Labor issued a final rule that will extend the Fair Labor Standards Act’s minimum wage and overtime protections to most individuals who provide home care to elderly and disabled individuals.  DOL stated this rule fulfilled President Obama’s promise to ensure direct-care workers received fair pay.  Direct-care workers include home health aides, personal care aides, and certified nursing assistants who visit elderly and disabled individuals in their homes to provide services essential to allowing the individuals to live outside an institutional setting. 

Application of the FLSA’s minimum wage and overtime provisions to these employees had been a controversial issue with laws originally intended to apply to live-in nurses, butlers, and other “companionship workers” extended to direct-care workers assigned by home health agencies to provide periodic care to individuals.

The new rule extends minimum wage and overtime protections to all such workers by clarifying that direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.  The rule retains the original intent of the companionship worker exemption, however, by providing that individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection (providing company, visiting, or engaging in hobbies) and care incidental to such activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.

The new rule will become effective on January 1, 2015.  DOL has posted the rule, fact sheets, and other materials to help with the transition on the Internet at http://www.dol.gov/whd/homecare/.

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* D. Wes Sullenger is the founder of the Sullenger Law Office in Paducah, Kentucky.  His practice focuses on Fair Labor Standards Act collective actions and representing individuals in discrimination and other employment law matters.  Wes is licensed in Tennessee and Kentucky. He may be contacted at wes@sullengerfirm.com or (270) 443-9401.