Category: Labor and Employment

Uber, the famous ride hailing giant, has come up against another obstacle to its business model in the UK. An employment tribunal reiterated its ruling of more than a year ago that drivers are, in fact, workers who are entitled to standard worker protections and benefits. These include routine breaks, time off, and a guaranteed minimum wage. The tribunal declined Uber’s appeal of the original ruling.

The company intends to move forward with additional appeals as necessary, including the Court of Appeal and potentially the Supreme Court.

The dispute

The disagreement between Uber and its drivers focuses on the level of control and freedom drivers retain in the performance of their work. Drivers assert that the company controls the rate at which they perform their work, penalizes them for conducting a certain number of trips in a row, and directs them to follow various instructions.

The company, on the other hand, points out that the drivers can control their own schedules and decline trips they don’t wish to take.

The case in the UK concerns whether companies providing these types of “gigs” are utilizing actual self-employed persons, or improperly classifying their employment status. Workers under the law are entitled to certain rights such as minimum wage, sick pay, etc. Self-employed individuals do not retain these rights.

From the beginning, Uber has adhered to the definition of their drivers as “self-employed” and serving customers. It has avoided and denied the use of the term “workers” to describe the tens of thousands of individuals that make the company run. It claims that its drivers have the type of flexibility that accompanies self-employment.

Uber critics hold to the view that drivers are not self-employed as is commonly understood. Some evidence they point to is the fact that drivers are not able to set their own prices, can be logged off for declining trips, and are potentially evaluated by star ratings. The original ruling by the judge accounted for the level of obligation the company places on its drivers.

The judge ultimately decided that Uber is not a group of 30,000 self-employed drivers. Instead, it is one business with 30,000 employee drivers.

Uber’s response to the ruling

In response to the denial of its appeal, Uber UK acting general manager Tom Elvidge stated:

“Almost all taxi and private hire drivers have been self-employed for decades, long before our app existed. The main reason why drivers use Uber is because they value the freedom to choose if, when and where they drive and so we intend to appeal. The tribunal relies on the assertion that drivers are required to take 80% of trips sent to them when logged into the app. As drivers who use Uber know, this has never been the case in the UK. Over the last year we have made a number of changes to our app to give drivers even more control. We’ve also invested in things like access to illness and injury cover.”

Thus the adjudication of the future of Uber’s business model continues. It remains to be seen how the setback the company suffered in the UK will affect its business process going forward in that country and also the U.S.

The attorneys of the Gilbert Firm are committed to seeing your case through to a beneficial outcome. We understand the uncertainty that can arise when employees and their employers clash over wages and other compensatory issues. From our law offices in Nashville, Jackson, Memphis, Chattanooga, and Knoxville, we are prepared to use the necessary resources to fight on your behalf successfully. To work with a Tennessee employment attorney like Jonathan Bobbitt or Justin Gilbert, please call 888-996-9731, or fill out our contact form.

The Justice Department put a formal end to the expansion of the federal overtime rule. The Department’s decision erases a significant change made by the previous administration to labor regulations.

The Justice Department, in a recent court filing, stated that District Court Judge Amos Mazzant’s ruling that the Labor Department did not have the authority to make the far-reaching change would not be appealed.

Federal law mandates that employees must receive time and a half pay when they work more than 40 hours in a week. Businesses, however, have the freedom to exempt workers from this requirement if their work duties are deemed “managerial” in nature and they achieve a certain salary threshold.

Salary threshold for eligibility

In 2016, the Labor Department announced this salary threshold, previously at $23,660 per year, would increase to more than $47,000, with regular updates made every three years to account for wage growth. Some four million additional workers under this change would gain eligibility for overtime.

The Obama administration explained that it was simply bringing the Fair Labor Standards Act up-to-date to match existing employment policies. However, a number of business groups and states opposed the rule. They claimed the threshold was set too high. Thus, a court challenge commenced, resulting in the November 2017 ruling by Texas federal judge Mazzant. As of now, the 2004 threshold of $23,660 remains in place.

Current Secretary of Labor Alexander Acosta stated that he is in favor of raising the threshold, but not to the degree that will “shock the system.”

The Secretary also indicated he is intent on following the rule of law. In order to change the threshold salary level, a process must take place that involves a new notice and subsequent rulemaking. Some of the steps involve a comment period, review, and economic analysis. As Patricia Smith, the Solicitor of Labor under former President Barack Obama and current senior counsel with the National Employment Law Project, stated, “We’re talking a long time.”

Business groups pleased

Angelo Amador, executive director of National Restaurant Associations Restaurant Law Center, expressed his approval for the Justice Department’s decision: “The Obama administration’s drastic changes to the federal overtime rule would have hurt small businesses and their employees. We applaud DOJ’s decision to ask for a dismissal of the appeal. This will allow the U.S. Department of Labor (DOL) time to consider input from the business community to enact workable changes to these regulations.”

Of course, others support the original change. Celine McNicholas, labor counsel for the Economic Policy Institute, stated, “For years, as the salary threshold was eroded by inflation and congressional inaction, businesses have used the imprecision of the duties test to avoid paying overtime to low-level employees who they wrongly classify as managers or executives.”

If you are experiencing a wage and hour dispute with your employer, do not let the situation stand as is without knowing your options and obtaining the experienced legal counsel you need to secure your rights. We serve our clients from offices in Nashville, Memphis, Jackson, Chattanooga, and Knoxville with representation that produces results. Let’s discuss your case. Call the Gilbert Firm at 888-996-9731, or complete our contact form to arrange a free consultation with an FLSA attorney like Clint Scott today.

Deferred Action for Childhood Arrivals (DACA) is a United States immigration policy that was created during the presidency of Barack Obama. The policy permitted the children of people who entered America illegally to obtain a two-year period where they would be free from deportation, and eligible to obtain a work permit. The law currently covers about 800,000 minors.

DACA, and the expansion of the order to cover additional immigrants, has been the subject of various lawsuits. On September 5, 2017, President Donald Trump rescinded DACA, but delayed its implementation to see if the U.S. Congress could work out a solution. For now, Dreamers who have approved DACA status and Employment Authorization Documents that are due to expire in the next few months can have their status and documents renewed.

The effect rescinding DACA could have on employees and employers

Rescinding DACA could have a devastating effect on the job market. Business Insider reports that “a recent CAP study found that roughly 700,000 workers could lose their jobs over the next two years if DACA were repealed. The report estimates the loss of their labor could cost the country $460.3 billion in economic output over the next decade.”

Why is this? Because employers would be forced to fire productive, trained and experienced members of their workforce, and then start recruiting for new employees all over again. Furthermore, because DACA recipients contribute to programs like Social Security and Medicare – all taxed employees do – without being eligible to receive funding form those programs later, they contribute to the overall tax burden of this country without ever taking their “share.”

There is also no real proof that removing 800,000 workers from the field will help U.S. citizens get jobs. Most DACA recipients are comparable to H-1B visa recipients, as NPR puts it, which means they have a certain level of education and training, often in a specialized field. Those jobs cannot simply be “given” to another person, simply because that person is unemployed or underemployed.

Why this issue matters in Tennessee

According to the Center for American Progress, 41% of the undocumented population in Tennessee was DACA/DAPA (the also-rescinded Deferred Action for Parents of Americans and Lawful Permanent Residents) eligible in 2015; there are just under 50,000 recipients in the state. By the numbers, since DACA/DAPA were instituted:

• The state’s cumulative GDP was $2.654 billion
• The cumulative increase in earnings for DACA/DAPA recipients was $1.21 billion.
• The cumulative increase in earning for all state residents was $1.452

In short, employees across the board made more money from the implementation of DACA/DAPA in 2012 and 2014, respectively, than they did before the program started – even those who employees who were citizens.

Rescinding DACA is bound to take its toll on the economy and the job market in Tennessee. If you are an employer who has hired DACA recipients, you should make sure you are in full compliance with the law, and work with your employees to ensure they are too.

The Gilbert Firm is a Tennessee employment law firm serving clients throughout the state, with offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville. Please note that we are not an immigration law firm. To learn more about the services we offer, please call 888.996.9731 or fill out our contact form.

You know, one of the things that I think prevents people from calling us sometimes is they’re scared that calling us means that everyone is going to find out about what has happened to them, and that’s just not the case. In fact, many times, we’re able to negotiate a severance, a settlement or just figure out a solution for the individual that’s calling, without ever having to let anyone know that. And many times, the process can be handled confidentially. I often hear, and I’m saddened to hear, that sometimes people don’t call us because they’re just afraid of what someone might find out about their potential claim or what’s going on with them at work.

The Gilbert Firm represents workers throughout Tennessee who have been subjected to harassment . To schedule a consultation time with Jonathan Bobbitt, or to speak with a Tennessee employment lawyer in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form.

Personal favorite cases – I have a lot of personal favorite cases. I’ll tell you two very quickly. In the education field, early on I represented a child who was deaf. He was a star football player and had an opportunity for a college scholarship. The new administration came in with a new sign language teacher. They spoke a totally different sign language, and they said, “Ah, he’ll pick it up over the course of the year.” Of course, that was like asking him to learn a whole new language, and that was unacceptable. So we went in, we got the correct sign language teacher, and we were able to get this kid the scholarship that he deserved.

In the employment field, one of my favorite cases – because it addresses the need for simplicity – is a case involving a fellow with a pacemaker, who needed to be away from electromagnetic activity. And in that case, we were able to get him a little monitor that would beep when it came around electromagnetic materials, that he simply tied onto his forklift with a zip tie. In the closing arguments in this complex, convoluted ADA case, we were able to reduce that case to simply saying, “Forty-nine cents: the cost of some zip ties to keep him working,” and we received a substantial verdict.

The Gilbert Firm represents workers, students and policyholders throughout Tennessee. To schedule a consultation time with Justin Gilbert, or to speak with a Tennessee employment lawyer in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form.

You know, I don’t know if it’s because of my business background, or my consulting interest that I’ve had in the past, but I have handled a significant amount of – I call them exit strategies, or exit agreements, for various executives that are leaving companies.

Sometimes they’re leaving companies on very mutual and satisfying terms, and everybody’s happy. Then of course, sometimes there are incidences in which they’re not, and it’s a hostile leave, and we negotiate those severances. You know, many times we’re able to assist in negotiating more money for the severance, or just different terms, and maybe payout terms that assist that executive going forward, to maybe either retirement or their next place of employment.

The Gilbert Firm represents workers, policyholders, and students throughout Tennessee. To schedule a consultation time with Jonathan Bobbitt, or to speak with a Tennessee employment lawyer in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form.

Disability discrimination is prohibited by the Americans with Disabilities Act of 1990 (ADA). This law defines what types of employers must comply with the law, which employees qualify for protections, what acts constitute discrimination, and what the remedies are.

The ADA covers:

• Employers with 15 or more employees
• Employment agencies
• Labor organizations
• Labor-management committees
• State and local governments

The ADA, which is modeled after the US. Civil Rights Act of 1964, also governs discrimination in all aspects of public life, including education, telecommunications, and accommodations (hotels, medical offices, sports stadiums, and the like).

What kinds of acts constitute discrimination?

Discrimination does not have to be actual – meaning, the ADA law applies even if the employer thinks someone has a disability when they really do not.

Employers may not discriminate based on disability in any of the following:

• Hiring. Employers cannot ask about an applicant’s disability, and they cannot use the fact that an applicant has a disability to refuse to hire him/her.
• Employers can’t fire someone because they have a physical or mental handicap if they are capable of doing the job.
• Work accommodations. The disabled worker should be given the ability to do the job. If a worker needs equipment to manage their disability, then the employer needs to allow the worker to use that equipment and have the office space to manage the equipment.
• A worker cannot be denied a promotion solely based on his/her disability.
• Pay and benefits. A disabled worker with the same skills and experience should be paid the same wages and be entitled to the same benefits as a worker who is not disabled.

A disability includes, without limitation, physical or mental impairments that affect the ability of the worker to see, hear, sleep, walk, stand, and eat. Disability also includes medical difficulties with different bodily functions, including problems with breathing, bladder control, and other major activities of daily living.

When it comes to disabilities, the Gilbert Firm understands more than just the law. We understand how challenging it can be just to get to work and to learn the skills for the job when you are living with a disability. We demand that employers treat disabled workers and applicants with the respect they deserve. If you have been discriminated against, please phone 888.996.9731 to speak with a caring Tennessee disability discrimination lawyer such as Justin Gilbert or Jonathan Bobbitt. You can also reach us through our contact form. We see clients at our offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

Employment cases can be emotional. They frequently are, and that’s okay. Employment cases do involve emotional distress recoveries. Our challenge as counselors sometimes is to absorb some of our clients’ stress, and to help them with what they’re going through. We want them to feel that we’re on their team, and where we can help them be comforted, we can do that as well.

At the Gilbert Firm, we understand that you might feel anxious, frustrated or angry about what you’re going through. Our experienced team of Tennessee employment lawyers works with you through every step of the process for filing a claim or lawsuit. To learn more about our services, or to work with an attorney like Justin Gilbert, please call 888.996.9731, or fill out our contact form.

Lawmakers in Tennessee have a history of punishing the University of Tennessee when they think the school isn’t in alignment with their beliefs. In April of 2016, they pulled $436,000 in funding from UT’s Office for Diversity because the Office suggested – not demanded; suggested – the use of gender neutral pronouns, held an annual event called “Sex Week,” and decided not to use the word “Christmas” at holiday parties. UT lost this funding for a full year as a result.

This bullying, oppressive behavior is in full view once again, after a 32-year-old WUTC reporter named Jacqui Helbert was fired for reporting on what lawmakers had to say about Tennessee’s transgender bathroom bill during a meeting with the Cleveland Gay Straight Alliance. This discussion took place during Advancing Equality Day, in March of 2017.

Despite Ms. Helbert wearing a press pass, holding an oversized, fuzzy microphone, and carrying around radio gear, some UTC officials and state lawmakers claim that they had no idea there was a reporter present during their meeting because Ms. Helbert didn’t identify herself verbally as a reporter. They claim she violated journalism ethics. They claim they didn’t threaten to pull funding from UT if they didn’t fire Ms. Helbert, or remove the story from the WUTC website.

As it turns out, that’s not true. The Times Free Press obtained email correspondence between UTC officials that speaks directly to their fears about funding:

“’The potential repercussions for the state representative and UTC are HUGE,’” UTC Chancellor Steve Angle wrote in an email on March 20. “’We could easily lose all funding we are providing to WUTC.’”

The Associated Press, along with the Times Free Press, obtained these emails through a records request.

To recap: Jacqui Helbert did her job and reported what lawmakers said while at a meeting with the Cleveland GSA. Despite looking, in her own words, “cartoonishly like a reporter,” lawmakers and UT officials claimed they did not know she was a reporter, because she never verbally identified herself – even though there is no rule or regulation in the NPR handbook that mandates she identify herself in this way. Lawmakers threatened to pull funding from the school, a threat substantiated through emails released via official request, and George Heddleston Charles Cantrell made the decision to fire Ms. Helbert. The story was pulled off WUTC’s website shortly after.

Justice for Jacqui

What happened to Ms. Helbert is unconscionable. That Tennessee lawmakers would, in essence, blackmail the University into getting rid of the story and its author, and that UT officials would cave to such demands, thereby violating the First Amendment, feels like something out of the Cold War.

That is why Jacqui Helbert hired Justin Gilbert, of the Gilbert Firm, to represent her in a lawsuit against the University of Tennessee itself, as well as George Heddleston and Chancellor Angle, who ultimately made the decision to fire Ms. Helbert. The defendants violated Ms. Helbert’s First Amendment rights and the Public Employee Political Freedom Act, causing her to suffer retaliation through intimidation and wrongful termination, and have hurt her professional reputation by claiming

The Gilbert Firm is proud to stand with Jacqui Helbert. Protecting the rights of those who have faced retaliation and wrongful termination is what we do. The Gilbert Firm will fight for Jacqui Helbert with the full power of our firm behind her.

The Gilbert Firm provides comprehensive counsel to victims of workplace retaliation and wrongful termination. To speak with a skilled Tennessee employment lawyer, please call 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.