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.

For an employee who is discriminated against by their employer because of their association with a disabled person, the Americans with Disabilites Act (ADA) may provide relief.

Indeed, section 12112(b)(4) of the ADA prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4).

Granted, these claims are rare, but they do occur. To determine what it takes to succeed on such a claim, read the opinion issued today by the Sixth Circuit in the case of Stansberry v. Air Wisconsin.

The Sixth Circuit notes that there are three general theories into which “association discrimination” plaintiffs generally fall: (1) “expense”; (2) “disability by association”; and (3) “distraction.”

The “expense” theory covers situations where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer’s health plan, which is costly to the employer.

The “disability by association” theory encompasses two related situations. Either the employer fears that the employee may contract the disability of the person he or she is associated with (for example the employee’s partner is infected with HIV and the employer fears the employee may become infected), or the employee is genetically predisposed to develop a disability that his or her relatives have.

Finally, the “distraction” theory is based on the employee’s being somewhat inattentive at work because of the disability of someone with whom he or she is associated.

While the plaintiff in the Stansberry v. Air Wisconsin case failed on their claim, the opinion is a must read for any attorney bringing one of these claims.

In a FLSA case, Magistrate Judge Bruce Guyton from the E.D. of Tenn. recently held that the defendant employer was not entitled to discover the immigration status of the plaintiffs. The court held that the plaintiffs’ immigration status was not relevant to the plaintiffs’ claims since they were merely seeking to be compensated for work already performed. Accordingly, the plaintiffs were not required to respond to discovery relating to their immigrations status. A copy of the decision can be accessed here: Almanza v. Baird Tree Service

The Eleventh Circuit issued a decision last week affirming the principle that undocumented workers are not prohibited from suing for minimum wage or overtime viiolations under the Fair Labor Standards Act. A copy of the decision can be accessed here: Galdames v. N & D Investment Corp.. The Court held that despite the plaintiffs’ immigration status, they were entitled to sue to recover for work already performed.

In a multi-plaintiff case involving allegations of age discrimination and retaliatory discharge, the Eastern Section of the Tennessee Court of Appeals recently reversed a trial court’s grant of summary judgment in favor of a defendant/employer. The case can be accessed here: Williams v. WCTI.

One interesting issue involved the retaliatory discharge claims brought by one of the plaintiffs. Specifically, the court addressed whether a plaintiff alleging termination for refusal to participate in an illegal activity must “show that her motivation in avoiding violation of a statute was concern for the public.” (Opin. at 15).

The court answered the question in the negative holding that Tennessee law does not require a plaintiff who refuses to participate in an illegal activity to establish that the refusal to participate in the illegal activity was motivate by a concern for the public good or welfare. In support, the court relied on a Western Section Court of Appeals case, VanCleave v. Reelfoot Bank, W2008-01559-COA-R3-CV (Tenn. Ct. App. Oct. 30, 2009).