June 2016 L&E Update from Baker Donelson

Submitted by Firm:
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Firm Contacts:
Jennifer L. Anderson, Kathlyn Perez, Phyllis G. Cancienne, Robert C. Divine
Article Type:
Legal Update

Ah, June. Time to relax and let the worries slip away, right? Not exactly. Between OSHA's new recordkeeping rule affording zero secrets to employers, a tighter squeeze on the overtime headaches, clarification from the EEOC on corporate wellness programs and the possibility of not being able to rely on the ever-useful phrase "Legal said I could do it," there's not much resting heading towards employers. Plus, most Tennessee employers get a mandatory E-Verify present beginning January 2017. Read on for this month's updates, and be sure to read the spotlight on Nashville shareholder Mark Baugh.

More Overtime Headaches for Employers

Andrea Powers, 205.244.3809,

The Ninth Circuit has ruled that employer payments of cash in lieu of benefits will be included in an employee's "regular rate of pay" for purposes of overtime calculations. The California City of San Gabriel has been held in violation of the Fair Labor Standards Act by excluding cash payments made to employees in lieu of benefits from their "regular rate of pay" used to calculate overtime compensation, the U.S. Court of Appeals for the Ninth Circuit ruled.  More...

OSHA's New Recordkeeping Rule

LeAnn Mynatt, 865.549.7206,
Meghan Morgan, 865.549.7256,

In early May, the U.S. Occupational Safety and Health Administration (OSHA) finalized its controversial workplace injury and illness reporting rules. Under the new rule, all employers who are covered by the recordkeeping regulation and who have 250 or more employees must electronically submit their recordkeeping forms to OSHA. But OSHA didn't stop there … those electronic records of workplace injuries and illnesses will now be posted on OSHA's website for all to see and review.  More...

The EEOC's New Corporate Wellness Regulations

Jodi Taylor, 404.589.3413,
Drew Hutchinson, 423.975.7657,

With so much coverage of the DOL's new overtime regulations, the Equal Employment Opportunity Commission's (EEOC) new regulation affecting wellness programs has gone mostly unnoticed, but employers offering wellness plans should take notice. The rules describe how the American with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their family members, and attempt to balance the purpose of these programs while protecting employees from discrimination.  More...

In-house Bout: Company Privilege Overshadows Advice-of-Counsel Defense

Samuel P. Strantz, 901.577.8261,

"Legal told me I could do that." This phrase is one of the more common get-out-of-jail-free cards for corporate employees whose actions subject them to civil liability. A recent shift in the law, however, has determined that employees relying upon the advice of their corporate counsel may not assert the advice-of-counsel defense in civil suits unless their employer agrees to waive the attorney-client privilege.  More...

Immigration Corner: Tennessee Employers with 50 or More Employees Will Be Required to Use E-Verify Beginning January 1, 2017

Robert Divine, 423.752.4416,
Miriam Thompson, 423.209.4235,

Starting January 1, 2017, all Tennessee employers with more than 50 employees will be required to use the E-Verify system in order to verify the employment eligibility of workers hired on or after that date. The new law will eliminate the current document retention option in favor of mandatory E-Verify use.  More...