Can My Business Use Background Checks to Screen Candidates?


The U.S. Equal Employment Opportunity Commission (“EEOC”) recently filed race discrimination lawsuits against two large companies for use of pre-employment criminal background checks. On June 11, 2013, the EEOC filed a lawsuit against Nashville based Dollar General over criminal background checks used in its hiring practices. A copy of the lawsuit can be found here. The EEOC alleges that Dollar General has subjected a class of black job applicants to discrimination because of their race by using criminal justice information in its hiring process. The EEOC claims that Dollar General’s use of background checks has a disparate impact on black applicants because blacks have criminal convictions at a rate disproportionately greater than their representation in the general population. On the same day, the EEOC filed a similar lawsuit against BMW related to its hiring practices at a manufacturing facility in South Carolina. A copy of the lawsuit can be found […]

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Fifth Circuit Holds that Firing a Nursing Mother for Expressing Breast Milk Violates Title VII


This article was written by Thompson Burton commercial litigation attorney, Melissa Martin Burton. Melissa has represented clients before the Equal Employment Opportunity Commission and in state and federal courts. Melissa has defended employers against claims for discrimination based on age, gender, and race.  In Equal Employment Opportunity Commission v. Houston Funding II, Ltd., No. 12-20220, 2013 WL 2360114 (5th Cir. May 30, 2013), the U.S. Court of Appeals for the Fifth Circuit held late last month that “discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.” The employee, Donnicia Venters, was told that her position had been filled after she asked her employer whether she could use space in a back room at work to express breast milk.  In the opinion, the Fifth Circuit holds that “lactation is a medical condition of pregnancy for the purposes of the” Pregnancy Discrimination […]

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Tennessee’s Trade Secrets Act


In a recent blog post, I outlined the general principles governing the enforceability of non-compete agreements in Tennessee. Many well-drafted non-compete agreements contain provisions protecting the employer’s confidential or proprietary information by restricting the employee from disclosing such information to others during employment and after the employment relationship ends. Non-compete and non-disclosure agreements, especially for salespeople, often define such confidential information to include customer lists, account information, sales strategy and tactics, and pricing data. Outside the sales context, many agreements protect other important proprietary information of the employer, such as formulas, data, programs, designs and similar intellectual property. Businesses will often seek to enforce non-compete and confidentiality agreements to protect their valuable trade secrets, confidential and proprietary information. Claims for misappropriation of confidential information, interference with contract, and violations of the Tennessee Trade Secrets Act are often made in conjunction with claims for breach of a non-compete, non-disclosure or other […]

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Are Non-Compete Agreements Binding on Independent Contractors?


Most people think of non-compete agreements as a contract between an employer and an employee. However, this is not the only relationship where covenants not to compete may be valid. There are a number of other relationships in which courts have enforced non-compete agreements, including non-compete agreements between a business and an independent contractor and non-compete agreements between a buyer and seller of a business. Covenants not to compete may be included in or ancillary to a variety of business contracts, such as affiliate agreements and joint marketing agreements. One of the most common questions is whether a business can require a “1099” independent contractor to execute a non-compete, and if so, whether the agreement is enforceable as to the independent contractor. As noted in my recent blog post regarding the general enforceability of non-compete agreements, the law governing non-compete agreements is state specific. In Tennessee, the Court of Appeals has determined […]

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Arbitration: This is Not the Way It’s Supposed Happen


The U.S. Court of Appeals for the Sixth Circuit recently released an opinion with a bizarre set of facts, Thomas Kinkade Co., et al. v. White, et al., 2:09-cv-10757 (6th Cir. Apr. 2, 2013). This case concerns a federal court review of an arbitration involving a business dispute between Thomas Kinkade Co. and one of its art dealers, the Whites. The Sixth Circuit succinctly stated that the “arbitration itself was a model of how not to conduct one.” The circumstances of the arbitration are sorted and full of irregularities, including the following: During the arbitration, counsel for the Whites surreptitiously sent a live feed of the proceedings to disgruntled former employee in a hotel room to assist with the case. The arbitration panel refused to grant Kinkade any relief for the White’s outright failure to respond to pre-arbitration discovery. The panel, over Kinkade’s objections, allowed the Whites after the arbitration to submit further […]

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