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Sixth Circuit: Work Restrictions Do Not Equate to a Disability Under the ADA

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June 7, 2019

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In Booth v. Nissan North America, Inc., the Sixth Circuit stated that just because an employee has physical work restrictions does not equate to being “disabled” under the Americans with Disabilities Act (ADA). A person is disabled under the ADA if they have a (1) “physical or mental impairment that substantially limits one or more major life activities,” (2) “a record of such impairment,” or (3) is “regarded as having such an impairment.”

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Tennessee: Chooses the Former IRS 20-Factor Test to Determine Independent Contractor Status

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January 1, 2020

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HB 539 rejected the state appeals court adoption of the “ABC” test, and implemented the historical IRS 20-factor test to determine independent contractor status. The bill defines employment status where “the individual performs services for an employer for wages and the services performed by the individual qualify as an employer-employee relationship” based on the 20-factor test. Although the 20-factor test is no longer the official IRS test, several states still look to the standard when determining what employment status applies.

Generally, the 20-factor test looks at the behavioral control, financial control, and the type of relationship of the parties. None of the factors are determinative of an employment relationship and there is no presumption of employee status. Although the “ABC” test is largely more restrictive than the 20-factor test, employers should still review independent contractor relationships with legal counsel before the law goes into effect.

Action Items

  1. Have independent contractor status reviewed with legal counsel for compliance.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

Tennessee: Employers Must Implement an Anti-Bullying Policy IMMEDIATELY

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April 23, 2019

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HB 856 amended the Healthy Workplace Act to allow private employers to shield themselves from abusive conduct claims. Specifically, if an employer adopts the model Abusive Conduct Prevention Policy, then the employer is immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish. Employers should note that this immunity does not change the personal liability of an employee for any abusive conduct in the workplace.

Employers should immediately implement the model policy or equivalent to avoid potential exposure. However, note that this immunity only applies to abusive conduct claims made under Tennessee law; it does not shield employers from claims made pursuant to federal law.

Action Items

  1. Review the text of the bill here.
  2. Have employee handbooks and anti-bullying policies updated immediately.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

Sixth Circuit: Full-Time Work is Not an Essential Job Function Under the ADA

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July 17, 2018

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In Hostettler v. College of Wooster, the Sixth Circuit Court of Appeal recently determined that an employer could not make full-time work an essential function of a job so as to justify failing to accommodate an employee under the Americans with Disabilities Act (ADA). There, the employee suffered from post-partum depression and, based on her physician’s instruction, obtained approval to work part-time. However, her supervisor felt that the employee’s part-time work schedule burdened others in the department. When the employee submitted an updated medical certification requiring continued part-time employment, the supervisor terminated her based on her inability to return full-time.

Sixth Circuit: Do Volunteers Have an Expectation of Compensation?

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April 16, 2018

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In Acosta v. Cathedral Buffet, the Sixth Circuit recently clarified the definition of a volunteer. There, a buffet restaurant, a for-profit corporation operated by Grace Cathedral, used volunteers to service patrons in addition to regular employees. The faith leader at Grace Cathedral told church members that God was calling on them to volunteer at the buffet, and that failing to do so was tantamount to a sin under the church’s doctrine. As a result of the church’s strategies, many members did volunteer. Employees and volunteers performed the same restaurant-related tasks; however, volunteers were not paid for their time.

Tennessee: New Reporting Requirements for Healthcare Practitioners’ Drug Tests

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All Employers with TN Employees in the Healthcare Industry

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July 1, 2017

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Tennessee employers in the healthcare industry now have increased responsibilities when conducting employee drug testing.  Healthcare practitioner (“HCP”) employers must now “promptly” report if or when (1) an HCP employee refuses to submit to any work-related testing for specific drugs, including pre-hire testing, or (2) when an HCP employee tests positive in a secondary drug test that confirms the presence of a specific drug detected in an initial test.  These new reporting requirements are specific to drug testing and do not include alcohol testing.

Sixth Circuit: Arbitration Provisions Prohibiting Concerted Protected Activity are Unenforceable

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All Employers with KY, MI, OH, and TN Employees

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May 26, 2017

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In National Labor Relations Board v. Alternative Entertainment, Inc., the Sixth Circuit court joined the Seventh and Ninth circuits in holding that mandatory arbitration provisions that contain class action waivers are unenforceable under the National Labor Relations Act (“NLRA”).  The Second, Fifth, and Eighth circuit courts took the opposite opinion.

Sixth Circuit Sets Standard for Employer Constructive Knowledge of Overtime Hours Worked

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May 19, 2016

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The Sixth Circuit recently stated in Craig v. Bridges Bros. Trucking LLC. that an employer has constructive knowledge of an employee working overtime if it would have discovered the overtime by “exercising reasonable diligence.”  The plaintiff, Donna Craig, was a bookkeeper for Bridges who processed payroll, including her own compensation.  Craig frequently worked over 40 hour weeks and recorded her hours worked in time sheets, including overtime.  However, Bridges only paid Craig overtime once.  Craig alleged that Bridges told her she was not eligible for overtime.  On the other hand, Bridges argued that Craig should have known she was eligible for overtime, and that the company was unaware that Craig worked overtime.

July Updates

June Updates

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This HR Alert addresses the following topics:
  1. U.S. Supreme Court Declines to Rule on Contraceptive Coverage Decisions
  2. U.S. Supreme Court Ruling Revises Statute of Limitations on Constructive Discharge Claims
  3. EEOC Doubles Poster Violation Penalty Fine
  4. EEOC Provides Guide for Using Leave as a Reasonable Accommodation under ADA
  5. California Businesses Now Have Time to Fix Accessibility ADA Violations
  6. California Paid Sick Leave Coverage Expanded to In-Home Workers
  7. Los Angeles, CA Doubles Paid Sick Leave, Effective July 1, 2016
  8. Santa Monica, CA’s Paid Sick Leave Implementation Delayed to 2017
  9. Georgia: Franchisors are not Employers of Franchisees or Franchisees’ Workers
  10. Many Tennessee Employers Soon Required to Use E-Verify
  11. Vermont Passes Ban-the-Box Legislation

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