By D. Wes Sullenger*

The U.S. Supreme Court has held that clothing retailer Abercrombie & Fitch violated Title VII by refusing to hire a Muslim applicant because she wore a headscarf as part of her religious practice.  The Court held the statute’s plain language bars any action motivated by a desire to avoid accommodating a religious practice. This lawsuit was filed by the Equal Employment Opportunity Commission (EEOC) on behalf of Samantha Elauf.

Company’s Policy and Applicant

Abercrombie and Fitch operates several varieties of clothing stores, each with its own style that it seeks to enforce through a “Look Policy” with which its employees must comply.  The Look Policy prohibits “caps” as too informal, without defining the term.

Ms. Elauf, a practicing Muslim who understood her religion to require her to wear a headscarf, applied for a job with the company at its store in Tulsa, Oklahoma.  She received an interview rating that qualified her to be hired but the interviewer was concerned that her headscarf violated the Look Policy.  However, during the interview, they did not discuss the headscarf.  A district manager confirmed that the headscarf – like all headwear, whether religious or not – was unacceptable.  When the interviewer informed the district manager that she believed Elauf wore the headscarf based on her faith, the district manager concluded the headscarf violated Abercrombie’s Look Policy and directed Elauf not to be hired.

EEOC Charge and Lawsuit

After Ms. Elauf filed a charge with the EEOC, the EEOC sued and won summary judgment in the trial court, which was reversed by the Court of Appeals for the 10th Circuit.

Religious Discrimination under Title VII

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion or religious practices. Unlike some other employment discrimination laws that require only workplace neutrality by an employer—i.e., treating all employees the same—Title VII affords religion “favored treatment.” The law affirmatively obligates employers to accommodate religious practices that don’t impose an undue hardship. An applicant’s religious practices can’t be a motivating factor in the employer’s hiring decision.

Abercrombie’s Arguments and Supreme Court’s Decision

Abercrombie argued that it did not violate Title VII because it lacked actual knowledge that Ms. Elauf wore her headscarf for religious purposes; thus, she needed an accommodation for her religious practice and she did not request an accommodation from the store’s Look Policy.  

The Supreme Court, however, ruled that a job applicant must only prove that his or her need for an accommodation was a motivating factor in the employer’s decision, even if the employer has only a belief or suspicion about the need for accommodation.  The language of Title VII does not include a knowledge requirement, in contrast to the Americans with Disabilities Act, for example, which requires accommodation “to the known physical or mental limitations” of an applicant. According to the court, an employer violates the antidiscrimination law when an applicant’s religion or religious practice is a factor in a hiring decision.

An employer’s motive, rather than its knowledge, is the key for a Title VII accommodation claim.  An employer violates Title VII if it intends to avoid the obligation to accommodate an applicant’s religious practice, “even if it has no more than an unsubstantiated suspicion that accommodation would be needed.”  An applicant’s religious practice, whether confirmed or not, may not be a factor in employment decisions.  Congress did not write into the statute a requirement that an employer must have actual knowledge of a conflict between an applicant’s religious practice and a work rule and the Court declined to do so.

The Court also rejected Abercrombie’s argument that a facially-neutral policy could not constitute intentional discrimination in violation of Title VII.  The Court recognized that this argument makes sense in some other contexts but not with respect to religious practices.  “Title VII does not demand mere neutrality with regard to religious practices….  Rather it gives them favored treatment,” barring employers from failing to hire an applicant because of her religious observance and practice.  While an employer generally can have a no-headwear policy that policy must give way to the need for an accommodation of an individual’s religious practice.

Takeaways from the Decision

The Supreme Court’s decision may have the unintended result of causing some employers to ask applicants and employees about their religious beliefs or trigger unfortunate workplace stereotyping. 

The following are lessons to be learned from this decision: (1) an employer is prohibited from denying employment opportunities to an applicant or employee on the basis of her confirmed or suspected religious beliefs or practices; (2) an employer should not ask applicants about religious beliefs during the interview process or assume, based on appearance, that an applicant has certain religious beliefs or requirements; and (3) an employer may be required to accommodate dress and grooming habits based on a religious practice or belief unless you have a policy against the dress or grooming habits that is justified by a business necessity. For example, you are not required to accommodate headscarves in a manufacturing plant where loose clothing may get caught in machinery.

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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.

By Emily Emmons*

On July 15, 2015, the U.S. Department of Labor (DOL) issued Administrator’s Interpretation No. 2015-1.  This Interpretation concluded that “most workers are employees under the FLSA’s broad definitions.”  This article will explain the substance and impact of Interpretation No. 2015-1.

The clear message of the DOL’s Interpretation is that true independent contractors are rare and the classification should likewise be used sparingly.  The substance of the Interpretation is nothing surprising or new. Rather, the DOL has clarified that the ultimate question in determining whether a person is an employee or an independent contractor under the FLSA is the multi-factor “economic realities test,” which has been used by courts for years and focuses on whether the worker is economically dependent on the employer or in business for himself. None of these factors is determinative, nor should they should be applied mechanically in an effort to tally up a winning side. The DOL emphasizes, as often as possible, that the test is broader than the common law control test and should focus on whether the worker is really in business for himself or if he is dependent on his employer.

Background

Independent contractor misclassification is an increasing problem in the American workforce.  In a commissioned study by the U.S. Department of Labor, researchers found 10% to 30% of firms audited in nine states had misclassified employees as independent contractors.  See U.S. Government Accountability Office Report to Congress, GAO-09-717 (August 2009).  As far back as 1984, the I.R.S. estimated that “U.S. employers misclassified a total of 3.4 million employees, resulting in a loss of $1.6 billion (in 1984 dollars).”  Id. Approximately 10.3 million workers, or 7.4% of the workforce, are classified as independent contractors.  Where these employees are misclassified, it results in a substantial “wage theft” in the form of unpaid overtime compensation, as well as a significant loss of government tax revenue.

DOL’s Illustrations of Factors

With an illustration of how each factor should be applied, the DOL demonstrates the ultimate goal of deciding whether it is economically realistic to view a relationship as one of employment or not.

Is the Work an Integral Part of the Employer’s Business?- Obviously, work that is integral to the employer’s business is more likely to mean that the worker is economically dependent on the employer.  Work can be integral to an employer’s business even if it is just one component of the business. Cake decorating is obviously integral to the business of selling cakes that are custom decorated. Even work performed by thousands of workers can be integral to the employer’s business. Workers answering calls in a call center, with hundreds of others are performing integral work to the call center’s business.

Does the Worker’s Managerial Skill Affect the Worker’s Opportunity for Profit or Loss? - A true independent contractor has the opportunity to make a profit, but also to experience a loss. “Profit” in this sense does not include workers who have the opportunity to work overtime hours for more pay. Similarly, “loss” does not mean a reduction in wages. Rather, the imperative analysis is whether the worker exercise managerial skills (i.e., make decisions regarding routes, acquisition of materials, advertise services) and whether those skills affect his opportunity for both profit and loss.

How does the Worker’s Relative Investment Compare to the Employer’s Investment? - Courts must look not only to the nature of the investment but should compare it to the investment made by the employer. Even if the investment is a business investment, it must be significant in nature and magnitude. For example, oil rig welders’ investments in trucks costing $40,000 are not similar to hundreds of thousands of dollars of investment made by employers.

Does the Work Performed Require Special Skill and Initiative?- The DOL provides us with ample examples of what special skill and initiative is not, and only slight guidance as to what it is. A worker’s business, skills, judgment and initiative, not his technical or special skills are indicative of this factor.

Is the Relationship between the Worker and the Employer Permanent or Indefinite?- Permanency obviously is indicative of an employee relationship. However, the DOL suggests looking also to the reason for the impermanence and whether the worker relies on the employer as his primary source of income. By way of example, the DOL cites nurses who were hired part-time by a staffing agency and had the ability to “moonlight” by working for more than one staffing agency at a time and could choose when and where to make themselves available for work. Solis v. A+ Nursetemps, Inc. 2013 WL 1395863, at *7 (M.D. Fla. Apr. 5, 2013). These nurses were nonetheless found to be employees. However, this factor can still weigh in favor of an employee-employer relationship even if the worker is only employed for a very short time, but is employed for the entirety of that industry’s “season.” (Migrant workers employed for the duration of the harvest season).

What is the Nature and Degree of the Employer’s Control? - The DOL is careful to remind us that this factor should not be overemphasized, but should be analyzed in light of the ultimate determination whether the worker is economically dependent. This factor asks whether the employer actually exercises control over meaningful aspects of the work. What employers could do is not relevant, rather courts must look to the economic realities of what sort of control employers actually exert.

Sixth Circuit’s Decision in Keller

Earlier this year, the Sixth Circuit decided Keller v. Miri Microsystems LLC, 781 F.3d 799 (6th Cir. 2015). Keller installed satellite-internet dishes for Defendant’s customers. Defendant is a satellite-internet-dish installation company. Defendant classified Keller as an independent contractor and therefore not eligible for overtime pay. The Sixth Circuit analyzed each of the six factors described by the DOL in its July 2015 letter, with an eye toward the ultimate question of whether Keller was economically dependent or independent from the Defendant.

Without much explanation, the Sixth Circuit held Keller’s services as a satellite-dish installer were integral to Defendant’s business as a satellite-dish installation and repair company. As to the permanency of the relationship, the Court noted that the trial court looked to three facts: (1) Keller did not have a contract with Defendant; (2) Defendant and Keller did not have an exclusive relationship because Keller could work for other companies; and (3) Keller exercised control over the number of days per week he worked. However, the Court did not find any of these reasons conclusive and specifically stated that the court should not consider the existence or absence of a contract, and that employees may work for more than one employer without losing their employee status under the FLSA. Ultimately, the Court found genuine issues of material fact but it first made clear that Keller’s investments were minimal in comparison to Defendant’s investments. Keller provided his own vehicle, paid for gas, used his own tools, purchased some cable to provide to clients and other minor equipment.

Largely, the Sixth Circuit’s discussion of each of the factors tracks identically, in both language and intent, to the DOL’s July 2015 Interpretation. The only exception is the factor which analyzes whether the work requires special skill and initiative. The Sixth Circuit focused on the degree of skill required for Keller to do his job, how he acquired these skills, and whether the level of skill affects the worker’s success. Although the DOL provides little definitive guidance, it seems to recommend that courts focus not on the level of the worker’s technical skill, but on whether the worker exercises business skill, judgment and initiative.

Conclusion

The DOL’s 2015-1 Administrative Interpretation solidifies their stance that under the FLSA’s broad definition of employment, most workers are employees. And the Court’s decision in Keller demonstrates that the Sixth Circuit is extremely close to being entirely in sync with the DOL concerning independent contractors. 

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*Emily Emmons is an associate at Gilbert Russell McWheter Scott Bobbitt’s Nashville office where she practices employee rights law and civil litigation. She is a graduate of Belmont University College of Law. Emily may be reached at 615-354-1144 or eemmons@gilbertfirm.com.

Here’s the latest newsletter from TBA’s Labor and Employment Law Section.  I want to thank this issue's authors for their wonderful articles – Emily Emmons, Wes Sullenger, Fred Bissinger, Ashley Griffith, and Stephen Darden. If you would like to write an article, contact me at bbuchanan@visalaw.com or call me at 615-345-0266.

Bruce Buchanan

by Bruce E. Buchanan*

In the first half of 2015, the Office of Chief Administrative Hearing Officer (OCAHO) has issued 10 decisions against employers in I-9 penalty cases and two substantive decisions against employers in OSC-related cases. Previously in 2014 and 2013, OCAHO issued 17 Form I-9 penalty decisions and 30 Form I-9 penalty decisions, respectively, while there were three and six decisions against employers in OSC-related cases under Section 1324b, respectively. 

2015 OCAHO Decisions under Section 1324a

The following decisions have been issued in 2015 along with penalties sought by ICE and penalties assessed by OCAHO:

An analysis of the above numbers demonstrates OCAHO lowered ICE’s proposed penalties on average by 36 %, which is lower than the reductions in 2014 and 2013.  This is partially due to no reduction in penalties in ESSG II and only a 25% reduction in the largest penalty case – Hartmann Studios.

The industries involved in these decisions were manufacturing/food processing – five; hospitality – three; construction – one; and employee staffing – one.  These are the most common industries inspected by ICE. Six of the 10 employers involved in the OCAHO decisions were classified as small employers – usually defined as under 100 employees. 

Significant Decisions

There were several significant holdings in the cases reviewed.  In ESSG II, the employer failed to have the individual, who reviewed the original employee documents, sign Section 2; rather, an individual at the corporate office did so. This led to a penalty of over $225,000. In Homestead Metal Recycling Corp., OCAHO found two minor owners were legally considered employees because the individuals did not have any control of the company.

In PM Packaging, Inc., OCAHO found common ownership alone was insufficient to pierce the corporate veil, when this was the only connection between the two entities. In Niche, Inc., the employer violated the Act by continuing to employ workers after their Employment Authorization documents (EADs) had expired and the employer failed to timely re-verify these workers, who, in fact, had timely acquired new EADs.

Common Types of I-9 Form Errors

In the 2015 OCAHO decisions, the most common errors were the failure to ensure the completion of Section 1 by the employee, and failure to properly complete Section 2. These errors occurred in eight of the 10 cases. Other common I-9 errors were the employer backdating I-9 forms; failure to prepare or timely present I-9 forms for the employees; failure to provide a document number and/or issuing authority in Section 2; and failure to list documents from Lists A or B and C.

In Hartmann Studios, the employer failed to sign the Section 2 certification on 800 occasions. This led to a penalty of over $600,000.

Reduction in Penalties

The main reason for the reduction in penalties was OCAHO’s finding that the penalties should be adjusted to the mid-range of penalties and not be disproportionate to the employer’s responses, which occurred in at least six cases.  OCAHO also cited the Small Business Regulatory Enforcement Fairness Act as a determining factor in finding the penalties excessive in six cases.  On three occasions, OCAHO found the penalties were higher than the company’s ability to pay.

Discrimination Cases under Section 1324b

OCAHO issued two substantive decisions involving actions under 8 U.S.C. §1324(b) -immigration-related discrimination – U.S. v. Estopy Farms and Gonzalez-Hernandez v. Arizona Family Health Partnership.

In U.S. v. Estopy Farms, OCAHO found the employer discriminated against a qualified U.S. citizen in favor of hiring H-2A workers. This finding was based upon Estopy Farms providing a series of “shifting, inconsistent, and mutually contradictory explanations”, which were pretextual, related to why it failed to hire U.S. citizen, who was a qualified agricultural equipment operator. OCAHO found in Gonzalez-Hernandez v. Arizona Family Health, that a DACA recipient is not a protected individual for citizenship status discrimination.

Takeaways

It is important for all employers, large and small, to conduct annual self-audits under the direction of an immigration compliance attorney, and have a written I-9 Compliance Policy.  If employers take both of these actions, their chances of knowingly employing undocumented workers and creating substantive errors on the I-9 form will be significantly reduced.

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*Bruce E. Buchanan is an attorney at the Nashville and Atlanta offices of Siskind Susser, PC.  He is a graduate of Vanderbilt University School of Law. He writes a blog on employer immigration compliance, located at http://blogs.ilw.com/blog.php?29223-I-9-E-Verify-Immigration-Compliance, and is a contributor to LawLogix’sI-9 and E-Verify Blog, located at http://www.lawlogix.com/blog and HR Professionals Magazine. Bruce may be reached at bbuchanan@visalaw.com or (615) 345-0266.

By Dawn A. Garcia*

On August 14, 2015, Secretary of State John Kerry presided over a ceremony celebrating the resumption of diplomatic relations between the United States and Cuba and the reopening of the U.S. embassy in Havana. Relations between both countries are not fully normalized, and the embargo is still in place, but this marks a significant step towards a more complete engagement with Cuba.[i] There are many who applaud this normalization as a positive move, and many others who argue that the Castro regime is still politically repressive and should not be rewarded for continuing oppression.

Cuban Adjustment Act

In 1960, President Dwight D. Eisenhower declared that all Cubans were political refugees and in 1961 severed all relations between the United States and Cuba. In 1966, Congress passed the Cuban Adjustment Act (CAA) in attempt to legalize the status of over 100,000 Cubans, who were seeking refuge in the United States.

The CAA, however, did not create a refugee status for Cubans. Instead, it created a unique, extraordinary relief. It provides that all Cuban citizens or natives who have been admitted or paroled into the United States and who have been physically present for one year and a day are eligible to apply for adjustment of status to lawful permanent residence. There are no visa caps and no immigrant visa petition requirements. The public charge ground of inadmissibility does not apply. An unlawful entry does not bar adjustment as long as the applicant subsequently obtains parole.

Spouses and children (unmarried and under 21 years of age) are also eligible to adjust status under the CAA even if not Cuban as long as they reside with the Cuban applicant and are otherwise admissible.

Although the people fleeing Cuba were seeking protection from political oppression, and President Eisenhower declared them refugees, the CAA does not require the applicant to prove he or she meets the legal standard for refugee status found in Immigration and Nationality Act (INA) § 101(a)(42) or show he or she has a well-founded fear of persecution on account of a protected status pursuant to INA §§ 207 or 208. After the applicant has been granted lawful permanent resident status, he or she is free to travel back and forth from Cuba without risk of losing status.

Amended Law – “Wet foot/dry foot” Rule

In the early 1990s, the flow of Cuban migrants increased significantly, with more than 35,000 coming across the ocean by raft in 1994 alone. In 1995, the U.S. and Cuba negotiated an agreement in attempt to slow the migration. The U.S. law was amended and it became known as the “wet foot/dry foot” rule. If a Cuban was interdicted at sea, with “wet feet,” he or she would be repatriated to Cuba. If found in the U.S., with “dry feet,” he or she would be paroled into the United States. And one year and one day later, he or she would be able to apply for lawful permanent resident status.

The resumption of diplomatic relations has not altered the CAA and it remains in effect. On July 6, 2015, the Department of State issued a statement affirming the CAA and current migration policy.[ii] The embargo is also still in effect. Congressional approval will be required to end the embargo or to amend the CAA.

Future of CAA

While the CAA remains unchanged, the resumption of diplomatic relations may make it more difficult for arriving aliens to benefit from the CAA. In a recent article, Cyrus D. Mehta points out that under INA 235(b)(1)(F), arriving Cubans may now be subject to expedited removal rather than parole for purposes of adjustment under the CAA.[iii] Whether this concern becomes a reality remains to be seen in the coming months.

The Cuban government remains authoritarian and repressive, but allows for some limited political opposition within its single-party system. Even supporters of the continued embargo, such as U.S. Senator Marco Rubio, argue the CAA should be reviewed to address fraud and to discourage people from taking the dangerous journey. Opponents of the continuation of the CAA argue that many Cubans are now seeking economic relief rather than political relief. Further, they argue that it is illogical to grant automatic unqualified legal status to a person fleeing Cuba and not to a person fleeing other more violent, unstable, and repressive regimes.

The full effects of normalization of diplomatic relations between the U.S. and Cuba remain to be seen in the coming years. For now, the CAA and the “wet foot/dry foot” rule are still in place and still reflect the immigration policies of the U.S. It is likely that Congress soon will be called upon to determine whether the CAA should continue.

By Milen Saev*

On July 21, 2015, USCIS issued its final guidance[i] on the implementation of the Administrative Appeal Office (AAO)’s precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (2015).[ii] The AAO held that employers are required to file amended H-1B petitions when H-1B workers move to jobsites that were not listed on the original H-1B petition and when such a move represents a material change in the terms of employment.

Is this a new USCIS policy?

Federal regulations require an amended H-1B petition must be filed when there are “material changes” in the H-1B worker’s terms and conditions of employment. Until the Simeio Solutions decision, the question of whether a job location change requires filing an amended H-1B petition did not have a definitive answer. This was largely due to the different sets of regulations governing Labor Condition Applications (LCAs) and H-1B petitions, as well as prior conflicting correspondence and liaison meeting discussions with USCIS. The AAO decision is a precedent decision and it is binding on government adjudicators.

What is the new USCIS guidance on H-1B job site changes?

The relevant points of Simeio Solutions decision are as follows:

·      Changing the H-1B worker’s place of employment to a worksite that requires employers to submit a new LCA may affect the worker’s eligibility for H-1B status and is considered a material change in the terms and conditions of employment;

·      Material changes in the H-1B context require filing an amended H-1B petition along with the respective LCA.

Employers must file amended H-1B petitions if the new worksite location is outside of the Metropolitan Statistical Area (MSA) or the area of intended employment (area within normal commuting distance of the employment location) listed on the original approved H-1B petition. An amended petition must be filed regardless of whether a new LCA has already been approved and posted at the new worksite.

Are there exceptions to this requirement?

Not every worksite location change requires filing an amended H-1B petition as long as the job location change meets any of the following conditions:

Same area of intended employment: If the new worksite is located within the same MSA or area of intended employment, there is no need to file an amended H-1B petition. The employer would still be required to post the existing LCA at the new location.

Short term move: There is no need to file an amended H-1B petition in certain situations where the worker is placed at a new job location for up to 30 days (60 days if the worker remains “based” at the original location).

Non-worksite locations: One is not required for H-1B workers who are visiting non worksite locations, as follows:

·      Visiting a new location for training, conferences or seminars;

              ·      Spending little time at any one location; or

·      Peripatetic jobs: Where the worker’s primary job is at one location but the nature of the job requires occasional travel of short duration to other work locations, there is no need to file an amended H-1B petition. The U.S. Department of Labor defines such types of job location changes as being of “casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).”

What should H-1B employers do now to remain in compliance with the new USCIS policy?

Under the new policy guidance, H-1B employers may be required to file amended I-129 petitions to reflect employment location changes for existing or new H-1B workers depending on when the employee moved to the new location:

On or before April 9, 2015: Where H-1B workers moved to a new area of employment on or before the Simeio Solutions decision date, USCIS has confirmed that they will generally not initiate new adverse actions, including revoking the H-1B petition, solely based on the employer’s failure to file an amended petition based on this new guidance. However, USCIS may still deny or revoke such H-1B petitions for other violations that are not related to the change of employment location. Any adverse actions initiated by USCIS before July 21, 2015 remain in effect.

April 10, 2015 to August 18, 2015: USCIS has extended a “safe harbor” filing period for employers whose H-1B workers have already moved to new work locations between April 10 and August 18, 2015. If such employers file new or amended H-1B petitions to reflect the work location change by January 15, 2016, USCIS will consider them to be in compliance upon the new H-1B petition approval.

On or after August 19, 2015: For work location changes on or after August 19, 2015, employers are required to file amended or new H-1B petitions before the employee moves to the new site.

What if the amended H-1B petition is denied?

As long as the original H-1B is valid at the time the amended petition is denied, the H-1B worker may be able to continue working at the initial worksite under the terms and conditions of the original H-1B petition.

What if the job location changes again while the amended H-1B petition is pending?

If the worksite location changes again after an amended H-1B petition is filed but before it is approved, the employer may file another amended petition to reflect the new work location. The worker may move to the new worksite as soon as the new petition is filed. However, each of the filed amended H-1B petitions must eventually be approved. The denial of any H-1B petition in a chain of several pending cases will result in all successive petitions being denied as well.

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*Milen Saev is a partner with Saev Hernandez Immigration Practice, PLLC in Nashville, TN. His practice is focused primarily on business immigration law with emphasis on PERM labor certification applications, temporary and permanent employment-based cases for multinational company employers, consular visa applications, investment visas and related immigration matters for businesses, universities, and individuals. Milen may be reached at (615) 647-8628 or milen@shipvisa.com.

I would like to thank Milen Saev and Dawn Garcia for their insightful articles in this issue. If you would like to write an article, please feel free to contact me at bbuchanan@visalaw.com or 615-345-0266.

Bruce Buchanan

John Williams has a diverse practice involving government relations and regulatory work, as well as litigation in state and federal courts. He represents clients on issues that involve compliance with local, state and federal environmental laws and rules. He appears frequently before state and local environmental boards and in state and federal courts on issues involving compliance with statutes and rules governing water, air, solid waste, and hazardous waste.

John assists clients with the registration of their trademarks and copyrights in the U. S. Patent and Trademark Office and the U. S. Copyright Office, respectively. He also represents clients in trademark and copyright infringement matters, which often involve litigation in federal courts.

John represents the firm's clients in other areas of litigation in state and federal court. He has handled cases under several federal statutes, including the Civil Rights Act, the Medicare statute, the Cable Piracy statute, and the Fair Labor Standards Act. He has represented clients in state court matters involving covenants not to compete, contract disputes, annexation disputes, easement and road disputes, defamation, and other business torts.

Another area of John's practice involves the representation of health care organizations at the state legislature and before state regulatory boards. He has drafted legislation for those clients and lobbied it successfully to passage by the Tennessee General Assembly.

In 2003 John was certified by the Tennessee Supreme Court's Alternative Dispute Resolution Commission as a mediator in the field of General Civil Mediation.

Nathan Horton is an attorney with Portfolio Recovery Associates, LLC, primarily representing the company with litigation and retail collections. Licensed since 2006, his office is located in Nashville, Tennessee. Mr. Horton received a JD in 2006 at the University of Dayton School of Law, Dayton, Ohio. In 2002 he received a BS in Logistics at University of Tennessee, Knoxville, Tennessee. Mr. Horton is a member of the Tennessee Bar Association, where he currently serves as chair of the Creditors Practice Section. Mr. Horton is admitted to practice in Tennessee and U.S. District Court, Western, Middle and Eastern Districts of Tennessee.