I spent a beautiful (but cold) Saturday afternoon here in Memphis doing a focus group on an upcoming trial involving a claim for disability discrimination under the ADA. As always, I came away from the session confirming many thoughts, but also having many new questions.

One thing’s for certain: I can’t stress enough the impact that doing a focus group makes in my trial preparation. Not only does a focus group give me tremendous insight to better prepare my client’s case, it also allows me to hone trial strategy so I can see whether my instincts and beliefs about the presentation of evidence/testimony are correct.

Today’s focus group both surprised and pleased me. For one thing, a number of self identified “conservatives” were willing to award my client a substantial sum of money based on their belief that my client had been discriminated against because of her disability. I confess that I generally prefer politically liberal jurors. The thought is that they will be more sympathetic to my client’s plight, as well as the law that my client is suing under. But I am not sure that my own beliefs about the political persusasion of jurors is accurate when it comes to awarding money. In other words, it may very well be that politically conservative jurors will award as much money as politically liberal jurors once they are satisfied that liability on the part of the company has been established.

I am posting a couple of questions recently asked of me by an attorney friend, as well as my responses:

What’s the statute of limitations for retaliatory discharge cases brought under Tennessee law? One year. According to Weber v. Moses, 938 S.W.2d 387, 393 (Tenn. 1996), a claim for retaliatory discharge is a tort action and is governed by Tenn. Code Ann. § 28-3-104, which requires that a lawsuit be “commenced within one (1) year after the cause of action accrued…”

A more nuanced questions is when does the cause of action accrue in a retaliatory discharge case?

Under Tennessee law, which tracks federal law, see, e.g., Delaware State College v. Ricks, 449 U.S. 250 (1980), the statute of limitations begins to run in retaliatory discharge case (as well as discriminations cases) “when the employee is given unequivocal notice of the employer’s termination decision.” Fahrner v. S.W. Mfg., Inc., 48 S.W.3d 141, 143 (Tenn. Ct. App. 2001).

Thus, an employee who receives unequivocal notice of termination on January 1, 2010, but who works until January 15, 2010, must file suit by January 1, 2011 to have timely filed a retaliatory dischareg case under Tennesse law.

I made my first argument before the Mississippi Supreme Court this morning. The issue concerned whether Mississippi sheriffs have the power to prohibit a bail bondsman from writing bonds. My co-counsel (James Harper) (James’ Website) and I represent bail bonding agents barred by the Tunica County Sheriff from writing bonds In Tunica County. The argument seemed to go well. Appellate advocacy is generally a pretty deep intellectual exercise, but I think it is also very important that the judges hear and feel the emotion and passion you have for your client’s case. The argument was broadcast live on the net and can be viewed by going to the Mississippi Supreme Court’s website. Click here. I even managed to squeeze in the word “freakish” to describe the position advocated by Tunica County, i.e., that Mississippi sheriffs are not restained by law from serving as prosecutor, judge and jury over bail bonding agents, rather than pursuing discipline by and through the Mississippi Commissioner of Insurance, which is the agency that regulates bail bonding agents.

[This post is part 1 of a 2 part series on non-compete agreements. Part 1 will address the foundation of any non-compete agreement, i.e., the protectable business interest asserted by the employer. Part 2 will address how each non-compete agreement must reasonable with respect to temporal and geographic scope.]

A common query from clients concerns is whether non-compete agreements are enforceable in Tennessee. My standard answer is “yes, but it depends on the facts and circumstances of each particular agreement.”

First and foremost, for a non-compete agreement to be enforceable in Tennessee by an employer against an employee, the employer seeking to enforce the agreement must have a legitimate business interest, i.e., an interest that is properly protectable by a non-competition agreement. Vantage Technology, LLC v. Cross, 17 S.W.3d 637, 645 (Tenn. Ct. App. 1999).

Vantage Technology is the leading Tennessee case on the subject of protectable business interests and is must read for any attorney advising a client (whether employer or employee) in this area of employment law.

In Vantage, the Tennessee Court of Appeals noted that “[b]ecause an employer may not restrain ordinary competition, it must show the existence of special facts over and above ordinary competition. These facts must be such that without the covenant, the employee would gain an unfair advantage in future competition with the employer.”

The court then set forth three factors for courts to consider when determining whether a protectable interest exists:

(1) whether the employer provided the employee with specialized training;
(2) whether the employee is given access to trade or business secrets or other confidential information; and,
(3) whether the employer’s customers tend to associate the employer’s business with the employee due to the employee’s repeated contacts with the customers on behalf of the employer.

The Vantage court also noted that these considerations may operate individually or in tandem to give rise to a properly protectable business interest.

In my experience, employers as a whole tend to overreach concerning non-compete agreements. In other words, in addition to overly broad language concerning the temporal and geographic scope of the agreement, many employers require employees to sign non-compete agreements which lack a properly protectable business interest underlying the agreement. The law is clear in Tennessee that the employer’s burden is substantial in establishing the existence of a protectable business interest. It is not enough, for example, for an employer to hire a salesman, make him sign a non-compete, and expect to be able to enforce the non-compete when he leaves for a better opportunity, without significant proof relating to one or more of the three Vantage factors. Therefore, when it comes to reviewing a non-compete agreement, the first place to start is a sharp focus on the protectable business interest alleged by the employer.

A friend of a friend called for advice the other day about maternity leave. Unfortunately, the woman did not work for a company required by federal or state law to offer maternity leave. As I explained to the woman, many companies are not required by law to offer maternity leave because of their size.

Under the federal Family and Medical Leave Act (FMLA), covered employers (i.e., companies that employ 50 or more employees within a 75 mile radius) must grant eligible employees (i.e., persons who worked for their employers for at least a year and who worked at least 1250 hours in the preceding year) up to a total of twelve (12) workweeks of unpaid leave during any 12-month period for the birth and care of the newborn child of the employee.

Under the Tennessee Maternity Leave Act (Tenn. Code Ann. 4-21-408), employees who have
been employed by the same employer for at least twelve (12) consecutive months as full-time employees may be absent from their employment for a period not to exceed four (4) months for adoption, pregnancy, childbirth and nursing the infant. The TMLA applies to employers who employ 100 or more employees at a single job site. Three (3) months notice is required in order to receive the leave requested.

The practical result of the FMLA is that only those persons working for employers who employ 50 or more persons will be entitled to legally mandated maternity leave. The practical result of the TMLA is that only those persons working for employers who employ 100 or more persons at a single location will be entitled to legally mandated maternity leave. By the way, the FMLA and TMLA also apply to adoptions.

Additional information about the FMLA can be found at the U.S. Department of Labor’s website: www.dol.gov.

One of the blogs that I most enjoy is attorney John Day’s blog, which is found at www.dayontorts.com. Recently, John discussed that his law firm often accepts client referrals from other law firms. My law firm, DONATI LAW FIRM, LLP, does the same. In fact, some of our best results have come in cases referred by defense counsel, who, for various reasons cannot take the case. As John pointed out in his blog entry, fee splitting among attorneys who do not practice together is allowed in Tennessee so long as you comply with Tenn. Sup. Ct. R. 8, RPC 1.5(e)(1)-(3). So if you are an attorney and you have an employment case, personal injury case, or workers’ compensation case that you would like for me to review, please do not hesitate to give me a call. My office number is 901-278-1004. Billy.

Since the passage of the 1991 Civil Rights Act, Title VII has authorized the recovery of compensatory damages (and punitive damages). 42 U.S.C. 1981a And the Tennessee Human Rights Act (THRA) also allows for the recovery of compensatory damages. Tenn. Code Ann. 4-21-306(a)(7). Unlike Title VII, compensatory damages under the THRA are not capped.

I explain to my clients that the availability of compensatory damages under these laws allows a person to recover for the non-economic harm (e.g., humiliation, embarassment, emotional distress) that they have suffered as a result of the illegal employment action. Of course, a common question that follows is “what are my non-economic damages worth?” This is a very tough question to answer because the answer lies in the collective wisdom of the jury. And it is a tough to predict what a jury will do in a given case. I have had juries award zero in compensatory damages and six figures in compensatory damages. I wish there was a rhyme or reason for these awards, but there’s not.

Interestingly, my clients have had decent results concerning compensatory damages even without expert proof. Of course, there is no requirement that expert proof be offered in order to recover compensatory damages. Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir. 1996). In other words, a plaintiff’s own testimony, along with the circumstances of the case, will sustain the plaintiff’s burden in establishing harm. While expert proof can certainly result in increased damages, I do believe that expert testimony on the issue of emotional harm can be problematic. Most experts that would offer testimony in this area (e.g., physicians or psychologists) have a tendency to be very guarded with respect to the diagnosis of emotional harm. Skilled defense attorneys generally have no problem getting agreement on the fact that many other stressors might also exist which relate to the emotional issues experienced by the client. In the end, it always depends on the facts of the case, but generally not having expert proof does not cause me to de-value my client’s non-economic injuries.

Don and I are in St. Paul, MN for the next two days at the 2007 Upper Midwest Employment Law Institute. I didn’t realize that this was the nation’s biggest employment law conference. www.minncle.com. The roster of presenters is outstanding, including Don, who is speaking on the impact of Burlington Northern. I know many of the plaintiff’s attorneys from my participation in the National Employment Lawyer’s Association (NELA). www.nela.org. I am also looking forward to meeting with attorneys from other parts of ther country (plaintiff’s attorneys, as well as defense attorney’s) to get their perspective on the practice of law and, in particular, on employment law. This is my first trip to Minnesota. St. Paul looks to be a nice town. It also has some interesting historical sites and I hope to be able to do a little sight seeing while we are here.

I have been a fan of blogging for some time and have recently decided to take the plunge. I am a plaintiff’s attorney practicing law with my family’s firm, Donati Law Firm, in Memphis, Tennessee. Visit our website at www.donatilawfirm.com. My blog will primarily be legal related with an emphasis on employment law from a plaintif’s employment attorney’s perspective. I hope to hear from you, so send me your comments. Billy.

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