Category: Labor and Employment

Ownership of intellectual property (IP) can be a contentious issue. Smart employers delineate the ownership of IP created during a working relationship in writing. Without a written contract, the ownership is determined by state and federal laws, including laws on trade secrets, copyrights, and patents. Which laws apply can vary depending on the type of intellectual property involved.

Unless the employee is hired for the specific goal of inventing something for the employer, and/or has a contract that says otherwise, the employee generally owns any inventions or creative products made while employed with the company. Just being employed by the company is not enough to switch the presumption of ownership to the employer.

In copyright matters, the employer owns any “works made for hire” – works that were in the scope of the worker’s job duties. Trademarks are only owned by the entity that uses them to promote its business or service, so ownership normally resides with the employer.

Written contracts assigning employee IP rights

Most employers require that the employee sign what is called a Proprietary Information and Inventions Assignment (PIIA) which requires:

• That the employee agrees to transfer any IP rights that may mature during the working relationship.
• That the employee assigns to the employer any inventions created on the employee’s own time that are related to their day work – even when the creation occurred off of the company’s premises.
• That independent contractors also assign ownership to the employer in intellectual property created during work.

There are many ways to contest the validity of a PIIA:

• The employer may not have given proper consideration to the entirety of circumstances.
• The transfer may not have properly specified which property is to be assigned.
• The PIIA may not comply with Tennessee law

The employment contract should make clear that the employee assigns all interest in the IP to the employer. A strong contract is one which makes clear that the employment is conditioned on the employee waiving his/her rights to any inventions or intellectual property. Stronger still is an agreement that shows that the waiver was in return for some employment benefit, such as a bonus or stock option grant.

Employees who are required to sign a PIIA should seek the advice of a Tennessee employment lawyer before they sign the contract.

Assertion of IP rights when there is no contract

In the absence of a PIIA, there are ways an experienced employment lawyer can demonstrate that intellectual property was not created during the course of employment. One factor, for example, is that the employer did not give the employee any instructions or goals about the IP. Another factor is that the work was created after hours and away from the work location. A third factor is that that the work relationship was really an independent contractor relationship and not an employee relationship. In independent contract work relationships, it is generally presumed that the worker owns the patent or copyright, unless exceptions apply.

If you create something that is worthy of a patent, copyright, or other intellectual property protection, you have legal rights. Whether you signed a PIIA or not, the Tennessee employment lawyers at the Gilbert Firm may be able to show that you deserve ownership of the intellectual property. For information on your employee rights, please call us at 888.996.9731, or fill out our contact form to make an appointment with a member of our team. We have locations in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

Qui tam lawsuits are actions brought by whistleblowers (called “Relators”) to expose fraud against the government. The basis for a qui tam case is the federal False Claims Act (FCA). The FCA was originally enacted to help expose Department of Defense fraud, but it has now been expanded to include many different types of fraud, including Medicaid and Medicare fraud. Other types of fraud—such as tax and securities fraud—are handled through other statutes.

It takes courage and work for a whistleblower to bring these necessary actions. The FCA rewards Relators by paying them a percentage of the recovery if their claim is ultimately successful. Qui tam claims are encouraged, not only because they help the government recoup billions of dollars, but because they also can save lives. For example, one type of fraud that federal contractors employ is to provide sub-standard parts, which can cause serious physical harm or death.

The False Claims Act also protects workers by allowing them to bring lawsuits against employers who retaliate against them by terminating his/her employment

Retaining a TN qui tam lawyer is a necessary step in obtaining a just award

Filing a qui tam claim requires the assistance of experienced legal counsel. The claims must meet specific guidelines, such as being the first claim to cover the alleged fraud and often times the fraud should exceed a minimum sum of money. Additionally, it is critically important that the Relator have or be able to specifically identify records, documents, or other physical evidence to support the claims. If the DOJ intervenes, that means they will take the case against the wrongdoer. If the DOJ does not intervene, the claimant and his/her attorney can then bring their own claim against the wrongdoer. The DOJ only intervenes in a small percentage of cases. When they do intervene, most cases are ultimately settled.  Defendants can be required to pay treble damages.

If the DOJ intervenes and there is a settlement or jury award, the Realtor may be entitled to approximately 15% to 25% of the recovery. If the DOJ declines the case and the law firm proceeds to get a recovery, the Relator award could be a higher percentage.

Qui tam recoveries since 2009

The Department of Justice disclosed that for the fiscal year ending September 30, 2016, the DOJ obtained over $4.7 billion in judgments and settlements for civil fraud cases involving false claims. The DOJ reported that this was the third best year for recoveries under the False Claims Act since 2009. Approximately $31.3 billion has been recovered by the DOJ since 2009 for fraudulent activities.

The allocation of the $4.7 billion dollars recovered was as follows:

• Health care – $2.5 billion. This included drug and medical device companies as well as hospitals, nursing homes, doctors, and laboratories. The DOJ stated that the $2.5 was just for federal losses. In many cases, the DOJ was also able to obtain millions more for state-run Medicaid programs.
• The housing and mortgage financial sector. Residential mortgage fraud accounted for about $1.7 billion in recoveries.
• Qui tam actions. Most of the recoveries, about $2.9 billion, came through qui tam actions which provide the percentage incentive for whistleblowers. Other recoveries were due to non qui-tam actions the DOJ discovered on its own.

Whistleblowers obtained $519  million in awards during the past fiscal year.

At the Gilbert Firm, our Tennessee qui tam attorneys work to protect workers who have been wrongly fired for asserting a qui tam claim. We demand the fired workers be reinstated, that they receive back pay, and that that the company that did the firing pay steep financial penalties and legal fees. If you or someone you know is being unduly pressured or was fired because they attempted to disclose fraud, please call 888.996.9731, or complete our contact form to schedule an appointment with a Tennessee employment law attorney like Jonathan Bobbitt or Justin Gilbert. Let us protect your rights. Our offices are based in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

In a ground-breaking decision by the 7^th Circuit Court of Appeals has ruled that Title VII of the Civil Rights Act protects employees from discrimination in the work place on the basis of their sexual orientation. This decision is consistent with previously issued guidance from the Equal Employment Opportunity Commission (EEOC). The decision by the Seventh Circuit is precedent setting, as a number of other Circuit Courts have ruled that sexual orientation was not protected under Title VII (such as this March 10 ruling by the 11^th Circuit in Atlanta, and this March 27 opinion out of New York’s 2^nd Circuit – though the 2^nd Circuit did allow that the plaintiff could sue for discrimination in that particular case.)  This circuit split sets up a potential opportunity for the U.S. Supreme Court to review this hotly contested issue.

The ABA Journal reports that this landmark decision was made “in light of developments in the Supreme Court” decision in Obergefell v. Hodges, as per Judge Diane Wood, who issued the majority opinion. In that opinion, Judge Wood writes “we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.”

You can read the full text of the decision here.

How the Court reached the decision

Kimberly Hively was a part-time adjust at Ivy Tech Community College’s South Bend campus. After being denied for full-time employment on six different occasions, Hively began to feel that her sexual orientation was the cause for the denials. On December 13, 2013, Hively filed a pro se charge with the Equal Employment Opportunity Commission, and received a right-to-sue letter. Ivy Tech filed a motion to dismiss, claiming that sexual orientation was not a protected class under Title VII.

The 7^th Circuit Court’s decision says otherwise, and points out that “the Equal Employment Opportunity Commission, in 2015 announced that it now takes the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation.” This ruling will allow Ms. Hively’s case to proceed, and opens the door for other gender and sex-based discrimination claims around the country.

At the Gilbert Firm, we fight for equal rights for employees throughout Tennessee. If you have been a victim of gender discrimination, we can help. To work with a Tennessee employment lawyer like Michael Russell or Justin Gilbert, please call 888.996.9731, or fill out our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

Regular readers of our blog know that we handle a lot of different types of claims: harassment and discrimination, FSLA violations and overtime claims, Equal Pay Act claims, etc. But, this is only a part of what we do as employment law attorneys in Tennessee. Simply stated, an employment lawyer who represents the interests of employees, works to be sure that employees (of all levels) and their rights in the workplace are protected. Sometimes that involves going to trial; sometimes it requires negotiating a severance; sometimes is requires settling a claim before the claim is filed; sometimes it requires representing a client in other types of negotiations. Some employment attorneys also work hand-in-hand with business owners and managers, crafting handbooks and offering in-house general counsel.

Our role is to ensure that state and federal laws and regulations are respected and enforced. It’s as simple as that.

If you are an employee, a contractor, a part-time worker or even a freelancer, you might call an employment law attorney if:

• You have been wrongfully terminated.
• You have been the victim of retaliation.
• You have been wrongfully denied pay or are not being paid fairly (FSLA and Fair Pay claims).
• You have been wrongfully denied leave under the FMLA or the ADA.
• You have been the victim of harassment or discrimination.
• You are being threatened with a lawsuit by your employer.
• You are being pressured to do something that you reasonably believe to be illegal.
• You suspect that your employer is engaged in some sort of illegal activity (the so-called “whistleblower claims”).

If you are asked to sign a confidentiality agreement or a non-complete agreement, it is also a good idea to have an attorney review the documentation with you before you sign it, especially if you work in an industry where your own intellectual property could be at risk. You might also need the help of an employment lawyer if:

• You wish to bring a civil action against your company for committing fraud, under the False Claim Act.
• You wish to file a whistleblower claim of any sort (state and federal law may apply).
• You work for a company with at least 100 employees, and have been part of a massive layoff that came without any advanced warning, thus violating the WARN Act.
• You need representation in arbitration for a dispute involving your severance package or your executive compensation.
• Your employer has breached your contract for employment.
• A third party has interfered with a contract or business relationship in a way that causes you financial damage.
• Your employer made you a promise that you relied upon only to have the promise broken to your detriment.

At the Gilbert Firm, our Tennessee employment law attorneys provide comprehensive counsel to employees whose rights have been violated. With offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville, we are always nearby when you need us. To learn more about our services, or to speak with an experienced Tennessee employment lawyer like Jonathan Bobbitt, Michael Russell, or Justin Gilbert, please call 888.996.9731, or fill out our contact form.

Last year, we talked about a woman named Tammy Nutall-Pritchard, who wanted to make a few extra dollars to make ends meet, and thought she could do so by working a part-time job as a shampooer. As it turns out, she could not take that job because of some pretty strict licensing requirements by the Tennessee Board of Cosmetology.

Ms. Nutall-Pritchard’s story is not unique; the Brookings Institution reports that nearly 30% of the U.S. workforce is guided by occupational licensing laws. That certain occupations require a license makes sense: you wouldn’t want an untrained plumber fixing your pipes, or an untrained surgeon fixing your heart. But as Brookings points out, many states have licensing laws that seem excessive. In Michigan, for example, it takes “1,460 days of education and training to become an athletic trainer, but just 26 to be an emergency medical technician (EMT).”

Which jobs require a license?

Most of the jobs which require a license in Tennessee fall into categories like teaching, medicine, legal services and construction, but there are a few on the list that might surprise you. You need an occupational license to be a:

• Barber or hair stylist
• Broadcaster
• Graphic designer
• Realtor
• Makeup artist

Why occupational licenses can make it difficult to find work

There are, of course, benefits to occupational licensing if you are a consumer of goods and services: you know up-front that the person you’re working with has undergone extensive training, and can handle the work you require. But for people who are looking to make a few dollars on the side, the occupational license can get in the way. After all, if you can earn extra money as a graphic designer after your normal day job, or happen to be handy with some makeup brushes (or regular paint brushes), the burden placed on you by licensing boards can be onerous. This is especially problematic when there is no school or program available to help you obtain the license for that one specific thing. It can end up costing you more money than you would have made simply picking up some jobs on the side.

Occupational licenses should be required for a lot of different fields, but we may be due for a reassessment. The additional fees tacked on for consumers, combined with the extra work and costs that are borne by people looking for work, are making life harder for Tennessee workers.

The Gilbert Firm provides comprehensive representation to clients throughout Tennessee. If you believe your rights have been violated, we may be able to help. To schedule a consultation with Justin Gilbert, Jonathan Bobbitt, or another one of our skilled Tennessee employment attorneys, please call 888-996-9731 or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

In an employment law case, what a client can win depends, of course, on the type of law. But in many civil rights cases, where there is age discrimination, disability discrimination, race, sex – to just name a few – the recoveries would include all of your lost wages. Many times, it will include your job back, if you want it. Some people do; some people don’t.

Frequently, there’s an emotional aspect to recovery as well, such as if you’ve suffered worry, trauma, financial distress; there can be an economic component to that as well. In rare cases, there can be what’s called “punitive damages,” which is sort of like a fine or a penalty that is given to an employer. / END TRANSCRIPT

How much is my employment case worth?

There is no “set worth” when it comes to employment law cases. Every case is different, so every verdict or settlement will be different. When you seek compensation, or damages, in a civil lawsuit, they are generally divided into two categories:

• Economic damages, including lost wages, loss of earning potential, medical expenses (if applicable), and property damage (if applicable), and
• Non-economic damages, such as mental and/or emotional trauma, or pain and suffering.

In rare cases, where a judge or jury has found the defendant to be in gross violation of the law, our clients (the plaintiffs) may be awarded punitive damages in addition to economic and non-economic damages. These “penalties” are designed to keep the company or individual who caused you harm from taking such an action again, so that others will not suffer the way you have.

Though we cannot guarantee an outcome for your claim, the Gilbert Firm has been very successful in obtaining significant verdicts and settlements on behalf of Tennessee employees, policyholders and students whose rights have been violated.

If you have been hurt, or if your rights have been violated, you have options. The Gilbert Firm represents clients throughout Tennessee, and fights to uphold their rights in the courtroom and in negotiations. To work with Justin Gilbert, or to make an appointment with any of our Tennessee employment law attorneys in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form.

In April of 2016, we talked about the class-action lawsuit filed against Kroger for violating the Fair Labor Standards Act (FLSA) and the Ohio Minimum Fair Wage Standards Act because of its overtime policies. Now Kroger is facing a new class-action suit because of its policies regarding workplace accommodations for pregnant women – and the Gilbert Firm’s very own Justin Gilbert is leading that charge as lead counsel in the lawsuit.

The suit was filed in the U.S. District Court in the Middle District of Tennessee, and its outcome could affect workers in 90 different stores across Tennessee, Alabama and Kentucky. Kroger is one of the largest employers in the United States.

Kroger sends pregnant women home rather than accommodate their restrictions

The story begins with Jessica Craddock, a Kroger employee who was facing a difficult pregnancy. Her doctors gave her a note for her employer that said she could not lift heavy items, because she was at risk of a pre-term delivery if she engaged in that type of activity. For two weeks, a store manager put her on light duty. But after another visit to the doctor, Craddock returned to work and was told that “such lifting restrictions were against Kroger policy and sent her home [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][on unpaid leave], Craddock said. She could return when she had no restrictions, according to the filing,” as reported by The Tennessean.

Craddock’s situation is not unique. Kroger’s policies are in direct violation the Pregnancy Discrimination Act and new case law from the United States Supreme Court in Young v. UPS. Under that Act:

“If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.”

Kroger’s “send them home” policy runs afoul of the law. So, Craddock is now part of the class-action lawsuit against Kroger to force the company to change its policies, so that A) it follows federal laws, and B) treats pregnant women equally to other workers with medical restrictions. Kroger has denied any wrongdoing. They claim it was a “clerical error” that put Craddock on unpaid leave, and that they have not received a copy of the pending suit against them. However, according to Mr. Gilbert, Kroger’s treatment of Craddock is not unique, nor “clerical,” and that the “send her home” result stems directly from its corporate policies.

This case is important for many reasons: not only was Jessica Craddock wrongfully sent home, leading to lost wages and undue stress, but as Justin’s co-counsel points out to the paper, this particular tactic – forcing pregnant women out of their jobs – appears to be more and more common. Kroger is not the only business that engages in these types of illegal activities, but this case could force the grocery store giant to treat its workers equally.

That is what the Gilbert Firm does. We hold Tennessee employers accountable when they violate the laws. For more information about our work, or to schedule an appointment with a Tennessee employee rights attorney like Justin Gilbert, please call 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, so we are always close by when you need us the most.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]