The Trial Court Vacancy Commission on Tuesday sent three individuals to Gov. Bill Lee for his consideration in filling a criminal court judge vacancy in the 13th judicial district, which includes Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White counties. Meeting in Crossville, the commission advanced Shawn C. Fry and Benjamin Marsee of Cookeville and Brandon S. Griffin of Sparta.

After more than a decade in the making, the 117th Congress passed the Pregnant Workers Fairness Act (PWFA),[i] effective June 27, expanding protections for working mothers. The PWFA is modeled after the Americans with Disabilities Act (ADA). It applies to both private and public sector employers with at least 15 employees, along with Congress, federal agencies, employment agencies and labor organizations.[ii]

The PWFA requires employers with 15 or more employees to make reasonable accommodations for known limitations related to pregnancy, childbirth or related medical conditions.[iii] Similar to the ADA, employers are required to engage in an interactive process when a pregnant employee or applicant requests a reasonable accommodation relating to medical restrictions caused by the pregnancy. “Reasonable accommodations” are changes to the work environment or the way things are usually done at work.[iv] The law requires employers to make these changes unless they result in significant difficulty or expense for the employer. 

The PWFA applies only to accommodations. Existing laws, such as Title VII of Civil Rights Act of 1964, make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth or related medical conditions. The PWFA does not replace federal, state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant workers. 

The PWFA left “reasonable accommodations” undefined because every job is different, and every pregnancy is different. Rather, it leaves the conversation up to employers and employees together to figure out the accommodation that best meets the needs of the employee. These needs could range from providing a stool to sit on to more bathroom or water breaks to a flexible schedule. “According to the American College of Obstetricians and Gynecologists (ACOG), providing reasonable accommodations to pregnant workers is critical for the health of women and their children.”[v] Other examples of simple accommodations that can address health risks related to pregnancy include closer parking, appropriately sized uniforms and safety apparel, excusing the worker from strenuous activities, and excusing the worker from activities that involve exposure to compounds. 

The PWFA helps fill in some of the gaps from the previous two main sources of federal legal protections for pregnant people prior to its passing. One is the Pregnancy Discrimination Act of 1978, which says employers cannot discriminate on the basis of pregnancy and employers have to treat pregnant workers equal to another worker. This particular legislation was hard to interpret in the courts, as there is not always another pregnant worker that an employee can prove is being treated better.

The other is the ADA, which requires employers to make accommodations, but the issue is that pregnancy is not a disability. However, pregnancy can have an impact on an employee’s ability to do various physical tasks. Under the PWFA, an employee has to simply illustrate that there’s a limitation arising out of pregnancy, childbirth or a related medical condition, and there’s a reasonable accommodation that would allow an employee to continue doing her job that would not impose an undue hardship on the employer. “It’s not just workers who benefit, the PWFA is going to make it so much easier for companies to understand and comply with the law,” says Reshma Saujani, founder and CEO of Moms First. 

At the heart of understanding and complying with the law is understanding employees. The PWFA prohibits requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and employer, so this means that companies should be willing and ready to have direct conversations with their employees about their health needs during pregnancy. Employers also cannot force an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working. Again, employers should get curious and explore alternatives so that a pregnant employee’s work environment is suitable for her condition. 

Of course, covered employers cannot deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation. Retaliation against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding, such as an investigation, is also prohibited under statute.[vi]

With the Equal Employment Opportunity Commission now accepting charges under the PWFA, employers should prepare for how to meaningfully engage with employees in the interactive process, so pregnant employees have equal access to the workplace as well.  

In first half of 2023, the National Labor Relations Board (NLRB or Board) issued a number of decisions, many of which were three to two with the Democratic appointees in the majority, that significantly changed Board law. For employers, these decisions made life more difficult while unions celebrated these decisions.

McLaren Macomb, 372 NLRB No. 58 (2023) – The Board found language related to confidentiality and non-disparagement in a severance agreement to 11 permanently furloughed employees to be unlawful. Below are the two clauses in question:

Confidentiality Agreement. Employee acknowledges terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency.

Non-Disclosure. Employee promises and agrees not to disclose information, knowledge, or materials of a confidential, privileged, or proprietary nature of which the Employee has or had knowledge of, or involvement with, by reason of the Employee’s employment. At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents.

In so deciding, the Board held “Public statements by employees about the workplace are central to the exercise of employee rights under the NLRA;” thus, the non-disparagement provision violated employees’ Section 7 rights. Plus, the hospital’s non-disparagement provision was “not even limited to matters regarding past employment with the Hospital,” and would ultimately “encompass employee conduct regarding any labor issue, dispute, or term and condition of employment of the Hospital.”

Additionally, the Board found the confidentiality provision overly broad because it prohibited employees from disclosing terms of the agreement to “any third person,” including union representatives or other employees. Such a broad provision would prohibit employees from “disclosing even the existence of an unlawful provision contained in the agreement,” which could deter employees from ULP charges or assisting NLRB in an investigation.

Note: Neither the confidentiality clause nor the non-disparagement clause at issue contained a disclaimer regarding preservation of an employee’s rights under the NLRA; thus, the Board did not address the effect, if any, of such a disclaimer on the legality of the provisions.

2nd Note: The General Counsel recently stated her intention to seek to invalidate nearly all post-employment non-compete agreements. She argues, with extremely limited exception, any agreement that limits future employment, such as clauses improperly denying employees the ability to quit or change jobs by cutting off their access to alternative employment opportunities, interferes with employees’ Section 7 rights.

Lion Elastomers, 372 NLRB No. 83 (2023) – The Board returned to the long-established “setting-specific” standards applicable to cases where employees are disciplined/discharged for misconduct that occurs during activity otherwise protected by NLRA and overruled General Motors.

The NLRB noted labor disputes are often heated and reaffirmed principle that employees must be given some leeway for their behavior while engaging in protected concerted activity, in order to safeguard their statutory rights. These specific standards are: (1) Atlantic Steel test, which governs employees’ conduct towards management in the workplace; (2) totality-of-the-circumstances test, which governs social media posts and most cases involving conversations among employees in the workplace; and (3) the Clear Pine Mouldings standard, which governs picket-line conduct.

Atlanta Opera, 372 NLRB No. 95 (2023) – In a three to one decision, the Board returned to the 2014 FedEx Home Delivery (FedEx II) standard for determining independent contractor status under the NLRA and overruled the 2019 decision in SuperShuttle. In applying the FedEx II standard, the Board found the makeup artists, wig artists, and hairstylists who work at the Atlanta Opera are not independent contractors excluded from the Act; rather, they are covered employees. Therefore, these employees are eligible to vote in Board-conducted election.

In its decision, the Board reinstated the common-law agency test for determining worker status found in the Restatement (Second) of Agency §220. Under that test, the Board looks at the following factors with no one factor being decisive:

• The extent of control, which by agreement, the employer may exercise over the details of the work.
• Whether or not the one employed is engaged in a distinct occupation or business.
• The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
• The skill required in the particular occupation.
• Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.
• The length of time for which the person is employed.
• The method of payment, whether by the time or by the job.
• Whether or not the work is part of the regular business of the employer.
• Whether or not the parties believe they are creating the relation of master and servant.
• Whether the principal is or is not in business.

The Board expressly rejected the holding of the SuperShuttle Board that entrepreneurial opportunity for gain or loss should be the “animating principle” of the independent-contractor test. The Board further explained that entrepreneurial opportunity would be considered, along with the traditional common-law factors, by asking whether the evidence tends to show that a supposed independent contractor is, in fact, rendering services as part of an independent business.

In reviewing the facts of this case and applying the FedEx II standard in Atlanta Opera, the Board determined that the majority of the traditional common-law factors point toward employee status. The Board also determined that the evidence did not show that the stylists rendered services as part of their own independent businesses.

Noah’s Ark Processors, 372 NLRB No. 80 (2023) – The Board found a number of “special” remedies should be imposed on repeat violators/past contempt violators. Due to a broad cease and desist order, the Board ordered these remedies:

• Post Explanation of Rights;
• CEO reads Notice and Explanation of Rights;
• CEO signs Notice;
• Notice and Explanation of Rights mailed to employees;
• Extended posting period – 1 year; and
• Visitation to ensure compliance with posting.

Bruce E. Buchanan is special counsel at Littler Mendelson’s Nashville office, where he practices management-side labor law and immigration law, focusing on immigration compliance. Buchanan is a 1982 graduate of Vanderbilt University Law School. He is retiring as the editor of TBA’s Labor & Employment Law Section Newsletter. He may be reached at bbuchanan@littler.com or 615-514-4122.

Anthony Terrell Brown, Defendant, was convicted by a jury in the Robertson County Circuit Court of first degree premeditated murder. He received a sentence of life in prison without parole. On appeal, Defendant contends the trial court erred when the presiding circuit court judge appointed, by interchange, a trial judge from an adjoining district to try the case, and that the evidence is insufficient to support his conviction. After review, we affirm the judgment of the trial court.

Hawkins County Commissioners will choose among three nominees to be the next county attorney at their July meeting. The Kingsport Times News reports that the replacement comes after the county’s previous attorney, Jim Philips, died unexpectedly in April. The three candidates are Allen Coup, Jefferson B. Fairchild and Crystal Jessee.

The owners of certain real property sought a prescriptive easement over the parking lot of an adjacent neighbor. The trial court granted the prescriptive easement over the entirety of the neighbor's parking lot. The neighbor appealed. Discerning that the record contains clear and convincing evidence of all the requirements for a prescriptive easement, we affirm. We modify the trial court's judgment, however, by limiting the scope of the easement to the route followed when the route was first established.

I. Introduction

Employees have a right under the Family and Medical Leave Act (FMLA or the Act) to take a leave of absence if they or a close family member are suffering from a serious illness. In Milman v. Fieger & Fieger, P.C., the Sixth Circuit Court of Appeals recently clarified that an employee’s request for leave under the FMLA also constitutes a protected action. Further, the employee’s request is protected even if the employee ultimately is found to be unqualified for the requested leave.

Congress enacted the FMLA to balance the interests of employees in caring for their and their family members’ health with the interests of employers in maintaining a productive workplace.[1] The FMLA grants employees two substantive rights: (1) the right to take a necessary leave; and (2) the right to return to substantially the same employment after the leave is over.[2] Section 2615 of the FMLA lays out certain prohibited actions of an employer, including § 2615(a)(1), which prohibits an employer from interfering with the exercise or attempted exercise of an FMLA right and § 2615(a)(2), which prohibits discrimination against an employee who has exercised or attempted to exercise an FMLA right.[3] Conversely, however, employers are given the right to request information from the employee, including the right to request medical input regarding the employee’s justification(s) for the requested leave.[4]

II. Case Summary

In the instant case, Polina Milman was employed as an attorney at Fieger & Fieger PC (the firm). In March of 2020, Milman’s son was still recovering from a dangerous bout of Respiratory Syncytial Virus (RSV), which had resulted in nearly a week-long hospitalization and continued use of a nebulizer to address his respiratory issues. That month, a state of emergency was declared in response to COVID-19, and Milman wrote to a partner at the firm expressing concerns about her son’s vulnerable health in the face of the still relatively unknown virus. Milman requested permission to work remotely for the first part of the week out of concern for her son’s health. Her request was denied, so Milman used two of her available PTO days. That Tuesday, Milman’s son developed “a cough, runny nose, and gastrointestinal issues,” all of which were possible symptoms of COVID-19.

Milman affirmed to her supervisor that she would be returning to the office that Thursday, but reiterated concerns about her son’s symptoms. By Thursday morning, his symptoms had worsened, so Milman contacted the HR department requesting permission to stay home. The HR department responded with an offer allowing Milman to work remotely for the remainder of the week. Milman accepted that concession offer and continued working as normal throughout Thursday; however, by the end of the day, she received a termination letter citing her decision to work remotely without a valid justification as the basis for her termination.

Milman promptly sued the law firm, claiming that her termination violated the FMLA. The U.S. District Court for the Eastern District of Michigan granted the firm’s motion to dismiss Milman’s complaint, finding that Milman was required to show, as an initial threshold, that she was “entitled to FMLA leave” to support her claim.[5] The district court found that she was not entitled to FMLA leave because her son’s illness was not a “serious health condition.”[6] Milman appealed, arguing that her request for leave was protected by the FMLA and that the employer had taken improper retaliatory action against her for attempting to exercise her rights under the Act.[7]

III. Retaliation claims are protected by both §§ 2615(a)(1) and (a)(2).

The FMLA protects two types of claims: Entitlement/Interference claims and Retaliation/Discrimination claims.[8] Milman asserted a cognizable retaliation claim by alleging she was terminated for asserting or attempting to assert her FMLA rights.[9] In a departure from the district court, however, the Milman court found that both §§ 2615(a)(1) and (a)(2) of the FMLA cover retaliation claims.[10] The district court had found only § 2615(a)(2) to be applicable, because it explicitly prohibits discriminatory action against an employee for exercising or attempting to exercise FMLA rights.

However, the Milman court also found § 2615(a)(1) to be applicable, because it prohibits any interference with an employee’s FMLA rights. The Court found that retaliation against an employee for asserting or attempting to assert his or her FMLA rights deters potential claimants and therefore qualifies as interference.[11] Therefore, Milman’s retaliation claim falls comfortably within both §§ 2615(a)(1) and (a)(2).[12]

IV. The heart of the case: what is the scope of FMLA protection?

Prior to the Milman decision, it was not apparent whether the employee’s act of simply requesting FMLA leave was protected under the Act. The scope of employee actions protected by the FMLA was clarified by Milman to cover both the leave and the request. This step by the Sixth Circuit is in line with precedent in other circuits, which had already recognized protections for an employee’s notice of intent to take a leave.[13]

The first step towards garnering protection under the FMLA requires an employee to notify the employer of his or her request for leave, preferably 30 days before the leave but at least “as soon as practicable.”[14] The Milman court found that all the steps outlined in the FMLA must be protected in order to protect the employee’s right to necessary leave.[15] If the notification step itself was not protected, an employer can interfere with its employees’ ability to take FMLA leave by terminating or threatening to terminate any employee who makes a request — an effective deterrent for any would-be leave-takers.[16]

Consequently, an employee’s notice of a request for leave is protected, regardless of whether the employee is ultimately qualified for FMLA protection. An employee could be determined unqualified for several reasons, including an insufficient length of employment, an insufficient number of working hours the preceding year, or the determination that they or a family member are not suffering a truly severe illness.[17] However, the burden is not on the employee to know whether he or she is eligible for the protected leave before making a request. This “ask-at-your-peril” approach would deter many potentially eligible employees from attempting to take advantage of available leave.[18] The employee’s initial notice of request for leave is protected, regardless of whether he or she is ultimately qualified for that leave.

The district court had relied heavily on Branham v. Gannett Satellite Info. Network, Inc.[19] in determining that the employee needs to show eligibility for the FMLA leave in order to bring a claim against the employer for violating his or her FMLA rights.[20] However, the Milman court distinguished Branham because that employee already had taken a leave of absence before claiming a violation of her FMLA rights.[21] By contrast, Milman had merely requested a leave of absence; she never actually took the leave.[22] If an employee has already taken leave, then he or she must show that the leave was a protected right under the FMLA to support a claim that his or her rights were violated.[23] On the other hand, when an employee has not taken the leave, it becomes irrelevant whether the employee eventually would have been found eligible under the FMLA, because the initial step of giving notice is a protected action standing alone.[24]

V. What are employer’s responsibilities under the FMLA?

Because the onus is not on the employee to know whether he or she is entitled to FMLA protection before giving notice, the burden now falls on the employer to follow-up and obtain any additional information necessary to determine whether the employee satisfies the requirements of the FMLA.[25] Milman had given notice by requesting the leave and citing her son’s recent serious illness, the state of emergency created by COVID-19, and her son’s potential COVID-19 symptoms as justifications.[26] The firm then became responsible for obtaining any other information necessary to determine whether Milman qualified for rights under the Act.[27]

VI. Conclusion

Employers should extract two critical take-aways from Milman: (1) an employee’s notice of intent to exercise an FMLA right is a protected action in and of itself; and (2) once notice has been given, the employer is responsible for seeking any additional information necessary to verify whether the employee qualifies for FMLA protection. Employers should not take any adverse action against an employee who requests a leave due to their own or a family member’s serious illness, regardless of whether that employee is likely to meet the FMLA’s requirements, until it fully exhausts its inquiry regarding eligibility under the Act. The employer’s best option is to immediately seek any additional information necessary to ascertain whether the employee falls within the scope of the FMLA. At that point, the employer can assess whether to accept or deny the employee’s request for leave. The FMLA empowers employers to request medical certification and even a second or third medical opinion from other healthcare providers.[28] Employers should utilize this protective mechanism to evaluate whether the FMLA is applicable.

Scott Simmons is a member in the Labor and Employment Department in the Chattanooga office of Miller & Martin PLLC. He may be reached directly at Scott.Simmons@millermartin.com. Danyel Bigger, a rising third-year law student at Vanderbilt University Law School and a summer associate at Miller & Martin, assisted in the writing of this article. 

The plaintiff filed a complaint against the defendant timeshare corporation in the trial court, alleging certain statutory violations committed by the defendant during the timeshare purchase transaction and requesting rescission of the purchase agreement, restitution, and punitive damages. The defendant filed a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(3), arguing that the forum selection clause included within the purchase agreement dictated that any dispute would be brought exclusively in the courts located in Orange County, Florida. The trial court granted the motion to dismiss. The plaintiff has appealed, and the defendant has requested costs, expenses, and attorney's fees on appeal. Discerning no reversible error, we affirm. We decline, however, to award costs, expenses, and attorney's fees to the defendant.

This is a health care liability case. George Gary Ingram ("Ingram") filed a health care liability action in the Circuit Court for Hamilton County ("the Trial Court") against, among others, Dr. Michael Gallagher ("Dr. Gallagher") and Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System ("Erlanger") ("Defendants," collectively). Plaintiff later filed an amended complaint naming Dr. Gallagher as the sole defendant. He thus removed the other defendants, including Erlanger, from the lawsuit. Dr. Gallagher then filed an answer asserting, as a defense, that his governmental employer, Erlanger, was not made a party to the action. Consequently, Plaintiff filed a motion to alter or amend the Trial Court's order of dismissal as to Erlanger, which was denied. Plaintiffs claims were dismissed. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV, 2021 WL 3028161 (Tenn. Ct. App. July 19, 2021) ("Ingram I"), we reversed the Trial Court, holding that the Trial Court erred in denying Plaintiffs motion to revise the order of dismissal. We pretermitted all other issues. The Tennessee Supreme Court then reversed this Court, holding that Erlanger was removed from the lawsuit when Plaintiff filed his amended complaint and that the order of dismissal had no legal effect so there was no order to amend. Our Supreme Court remanded for us to address the remaining issues. We hold, inter alia, that the savings statute is inapplicable as the Governmental Tort Liability Act ("the GTLA") is implicated; that the Trial Court did not err in dismissing Erlanger for lack of pre-suit notice and a certificate of good faith; and that the Trial Court did not err in granting summary judgment to Dr. Gallagher as his governmental employer, Erlanger, was not made a party. We affirm.

Plaintiff appeals the trial court’s decision to dismiss its class action allegations against two defendants on the basis of collateral estoppel. Specifically, the trial court ruled that while a prior determination that Appellant was not entitled to class action certification was not a final judgment on the merits, due to a dismissal of that case without prejudice, the ruling was “sufficiently firm” to have preclusive effect, citing the Restatement (Second) Of Judgments. Because Tennessee law requires a final adjudication on the merits for a judgment to be entitled to preclusive effect, we reverse.