Ever heard of ticket fixing? Apparently it is alive and well and can lead to a retaliatory discharge claim.  Here are the facts in a recent retaliatory dischrage case decided by the Tennessee Court of Appeals:

Police Chief’s stepson is caught speeding by Captain, who writes citation.  Police Chief then asks Cap’t to change his stepson’s citation to warning.  Cap’t reluctantly does so under protest and complains to the Police Chief’s boss, i.e., the Mayor. PC then terminates Cap’t a short time later.  Guess what happened next?

The Cap’t sued his employer for violating the Tennesee Public Protection Act (“TPPA”) codified at T.C.A. 50-1-304.  The trial court granted summary judgment in favor of the defendant but the court of appeals reversed and remanded for trial.

The court of appeals held that it was illegal under Tennessee law to “fix a ticket”.  Thus, the Cap’t refused to participate in an illegal activity and was protected from retaliation under the TPPA for so refusing.

The case is Williams v. City of Burns, 2012 Tenn. Ap. LEXIS 104 (Tenn. Ct. App. Feb. 12, 2012)

Question: Does an employer’s selective enforcement of non-compete agreements amongst similarly situated employees make a difference when a judge is asked to enforce the non-compete? 

Answer: It is likely that it will. 

Other factors will certainly be considered, such as the reason why the employee’s employment was terminated, but an employer’s failure to enforce non-compete agreements entered into by similarly situated employees may result in the court finding that the employer has waived its right to enforce the non-compete agreement.  Support for this principle is found in the case of Cherry, Bekaert & Holland v. Childree, 1995 Tenn. App. LEXIS 354, 1995 WL 316257 (Tenn. Ct. App. May 26, 1995).

In Cherry, which involved enforcement of a non-compete against an accountant, the Tennessee Court of Appeals affirmed the trial court’s conclusion that the employer had waived its right to enforce a covenant not to compete because: (1) the employer did not mention the covenant for fifteen years, (2) the employer sent the employee to one of its biggest customers to seek employment, in direct violation of the covenant, (3) the employer did not comply with the provisions of the employment contract concerning termination; and (4) the employer did not seek to enforce the provisions of non-compete agreements against departing partners.

Accordingly, selective enforcement of non-compete agreements may result in the non-enforcement of a non-compete.

While researching First Amendment retaliatory discharge law, I came across an interesting opinion recently released by the 6th Circuit: Whitney v. City of Milan, 2012 FED. App. 0108P (6th Cir. Apr. 24, 2012)

In the Whitney case, the 6th Cir. held that a mayor who prohibited an employee from speaking out about a matter of public concern was not entitled to qualified immunity under the First Amendment.  Thus, the employee was permitted to proceed with the lawsuit. 

Specifically, the mayor was alleged to have barred the employee from assisting or participating in a lawsuit filed against the mayor by a former employee.  The mayor had argued that restricting the employee’s speech was an appropriate means of preventing the workplace disruption that occurs when a current employee fraternizes with a former, disgruntled employee. 

The 6th Circuit disagreed with the mayor stating that the mayor’s interest in restricting the employee’s speech on matters of public concern subjected the employee to an indefinite gag order without any showing that the employee had previously caused disruptions in the workplace.  The Court further stated that the mayor’s speculative concerns of workplace disharmony were insufficient to overcome the employee’s interest in speaking as a private citizen on a matter of public concern.

The Court then held that the employee’s right to speak publicly and participate in a lawsuit addressing workplace discrimination and public corruption in the City’s government was clearly established. Therefore, the mayor was not entitled to qualified immunity.

A couple of decisions were released in the Western District of Tennessee recently that address the recovery of attorney’s fees and costs under the Fair Labor Standards Act.

The first decision, Williams v. Hooah Sec. Serv., 2012 U.S. Dist. LEXIS 40945 (W.D. Tenn. Mar. 26, 2012), permitted the plaintiffs to recover atty’s fees in excess of the monetary judgment awarded to the plaintiffs.  Citing Fegley v. Higgins, 19 F.3d 1126 (6th Cir 1994), the court noted it was not unusual to award atty’s fees that exceed the monetary recovery in FLSA cases.

The second decision, Frye v. Baptist Mem. Hosp., U.S. Dist. LEXIS 40493 ( W.D. Tenn. Mar. 26, 2012), held that while a prevailing defendant could not recover its atty’s fees under the FLSA, it was permitted to recover its costs under Rule 54(d). The court then proceeded to award more than $50,000 in costs to the defendant in this failed collective action.

The 6th Circuit Court of Appeals issued a very nice decision for plaintiffs today in the case of Thom v. American Standard, which involved a claim under the Family and Medical Leave Act (FMLA).

Thom v. American Standard

Not only did the 6th Circuit affirm the district court’s finding of liability in favor of the plaintiff, the 6th Circuit also reversed the district court’s decision that the plaintiff was not entitled to liquidated damages under the FMLA. Reviewing the evidence, the 6th Circuit, citing to Hite v. Vermeer Mfg. Co., 446 F.3d 858, 868 (8th Cir. 2006), held that American Standard had failed to show that “it honestly intended to ascertain the dictates of the FMLA and to act in conformance with it.” Accordingly, the 6th Circuit awarded liquidated damages to the plaintiff.

One of the organizations that I belong to is the Tennessee Employment Lawyers Association, which is a state affiliate of the National Employment Lawyers Associaition. TENNELA is compromised of attorneys across Tennessee who represent individuals in employment disputes. I was recently elected to the position of Vice President of TENNELA. I also serve on the amicus committee along with attorneys Jennifer Morton, Doug Janney, Justin Gilbert, Wade Cowan, and my law partner Bryce Ashby. You can visit TENNELA’s website at www.tennela.org.

On behalf of TENNELA, our amicus committee recently filed a motion with the Tennessee Supreme Court seeking leave to file an amicus brief on behalf of the plaintiff in the case of Perkins v. Metropolitan Government of Nashville and Davidson County. A copy of our motion and the proposed brief can be accessed below. In our proposed brief, we urge the Court to hear the Perkins case.

Motion to File Amicus Brief

The issue in the Perkins case is whether the Tennessee Court of Appeals erred in holding that the plaintiff did not suffer an adverse employment action in her Title VII and ADEA retaliation claims against the defendant. Specifically, the court of appeals held that the plaintiff’s acceptance of back pay (along with waiver of reinstatement) in a related administrative proceeding negated the adverse employment action (i.e., termination) suffered by the plaintiff. In making its decision, we point out that the court of appeals did not address or acknowledge the U.S. Supreme Court’s decision in Burlington Northern v. White, which is the seminal case articulating the adverse action standard in retaliation cases. Our firm had the privilege of representing the plaintiff in the Burlington Northern v. White case. Hopefully, the Tennessee Supreme Court will grant our motion and hear the Perkins case.

It has been a while since I have posted. But I have been busy with a big trial lasting parts of the last three weeks. So it’s nice to be able to post some good news.

Yesterday, a Memphis jury came back with a verdict in favor of our clients, some 300 cable installers, against their employers, FTS USA, LLC and Unitek USA, LLC, for overtime violations under the Fair Labor Standards Act. The press release with details of the case can be accessed by clicking here.

We have been working on this case for the last few years with a couple of great attorneys (Rachhana Srey and Anna Prakash) from the Nichols Kaster firm in Minneapolis, MN. Click here to access their website.

Last week the 6th Circuit issued a decision in favor of a plaintiff in an ADA (Americans With Disabilities Act) case. Jones v Nissan — 6th Cir Opinion 8.18.11. This is pretty significant given the historic difficulty that plaintiffs have had in winning ADA cases. What’s even more significant is the fact the 6th Circuit reversed a jury verdict in favor of the defendant and entered judgment as a matter of law in favor of the plaintiff. The 6th Circuit remanded the case to the trial court for a determination of the plaintiff’s damages. The opinion is quite long due to the involved facts but I encourage you to read the case.

Congrats to my friends Doug Janney and Wade Cowan, who represented the plaintiff in this case. What a nice victory for their client in a very hard fought case.

As many folks are aware, the ADA was substanitally amended by Congress in 2008 in legislation known as the “ADA Amendments Act of 2008″. The amendments went into effect on January 1, 2009 and are widely viewed as making ADA cases easier to prove and win. Whether that is actually the case remains to be seen. In any event, that the plaintifff in the Jones v. Nissan case was unable to benefit from the allegedly more-plaintiff friendly ADA Amendments Act of 2008 is icing on the cake.

Yesterday the Tennessee Supreme Court (TSC) issued its decision in the following case: Webb v. Nashville Area Habitat For Humanity Inc.

The decision is significant because in the Webb case, which involved a claim for retaliatory discharge under Tennessee state law, the TSC addressed “the proper standard for Tennessee courts to apply in ruling on a Rule 12.02(6) motion to dismiss in light of the United States Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).”

After reviewing many years of state and federal law, as well as many policy considerations for and against the federal law standard, the TSC declined to adopt the new Twombly/Iqbal “plausibility” pleading standard. Thus, Tennessee continues to adhere to its traditional standard of notice pleading.

Lead by attorney Justin Gilbert, I was proud to be a part of an amicus brief effort of the Tennessee Employment Lawyer’s Association urging the TSC not to adopt the Twombly/Iqbal “plausibility” standard. Other attorneys pitching in on our amicus effort were Doug Janney (Nashville), Wade Cowan (Nashville) and Jennifer Morton (Knoxville).

“Sometimes it’s not about the money, but the principle.” That’s something I hear from time to time from defendant employers when fighting to the max my client’s otherwise modest claims.

I really don’t have a problem with that strategy/philosophy. After all, I believe that each party, whether plaintiff or defendant, is entitled to their day in court.

But, this strategy/philosophy can backfire on low dollar cases filed under the Fair Labor Standards Act. Case in point. Take a look at the attached case decided by the W.D. Tenn. The attorney’s fees awarded amounted to almost $49,000 where the underlying judgment was a little more than $300. Macklin v. Delta Materials – Atty’s Fee Order

At the end of the day, this case proves that litigating tenaciously may not always be the best strategy for defendant employers.