Hubbard & Wells http://www.fbtemployerlaw.com/ Hubbard & Wells RSS Feed en-US Copyright Hubbard & Wells webmaster@sablaw.com Fri, 09 May 2008 19:36:45 GMT Fri, 09 May 2008 19:36:45 GMT <![CDATA[Failure to Inform Employer About Extension of Maternity Leave Precludes FMLA Interference Claim]]> http://www.fbtemployerlaw.com/BlogEntry.aspx?_entry=da10a2be-27e3-4ef7-b90d-151fe04924f0&RSS=true http://www.fbtemployerlaw.com/BlogEntry.aspx?_entry=da10a2be-27e3-4ef7-b90d-151fe04924f0&RSS=true May 5, 2008
The district court concluded that Morr’s doctor slip established a definitive return-to-work date six weeks after childbirth. Morr could have extended her FMLA leave by notifying her employer, but failed to do so. In particular, the court noted that Morr had several phone conversations with her supervisor and other company officials and failed to indicate that she intended to extend her FMLA leave. Accordingly, the court concluded that Morr was not entitled to FMLA leave for the period between May 7 and May 11. The court granted the employer’s motion for summary judgment and dismissed the case. 





 ]]> Blog Entry <![CDATA[Non-compete Agreements - Tennessee Court of Appeals]]> http://www.fbtemployerlaw.com/BlogEntry.aspx?_entry=f7c16071-92f0-4aeb-b37f-004d80472ff8&RSS=true http://www.fbtemployerlaw.com/BlogEntry.aspx?_entry=f7c16071-92f0-4aeb-b37f-004d80472ff8&RSS=true April 22, 2008
In early 2002, two sales employees of Packers Supply House Company started working for the company while it was a sole proprietorship and signed non-compete agreements with that company. The non-competes provided that the employees were prohibited from competing with Packers Supply House for five (5) years following their leaving employment with the company. No specific provision in the agreements allowed for assignment. Later in 2002, the company became a Tennessee corporation called Packers Supply Company. No specific written assignment of the non-compete agreements was ever made by the sole proprietorship to the corporation.

The duties of the employees, their compensation formulae, and their positions with Packers Supply Company continued unchanged after the incorporation.

In late 2005, the Company presented the two salesmen with new non-compete agreements. They refused to sign and quit. Soon thereafter, they started a new company in direct competition with Packers Supply.

In early 2006, the Company sued to enforce the non-compete agreements. The trial court granted summary judgment to the employees because the Company, now a corporation, could not sue based on the agreements between the employees and the sole proprietorship with whom they had the non-compete agreements. Essentially, the trial court held that the corporation was not a party to the non-compete agreements.

On April 14, 2008, the Court of Appeals reversed. The Court found that the non-compete agreements were assigned by the sole proprietorship based merely on the testimony of the owner of the sole proprietorship that he transferred all of the assets of the sole proprietorship to the corporation. No specific assignment needed to be made, said the Court of Appeals.

Given that the assignment of the non-compete agreements by the sole proprietorship to the corporation, the corporation has the ability to enforce the non-compete agreements against these two former sales employees. Accordingly, the case was remanded to the trial court for further proceedings in conformance with the Court of Appeals ruling.

This opinion highlights the continued viability of non-compete agreements in Tennessee despite potential legal obstacles to their enforcement.


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Packers Supply v. Eric H. Weber.pdf]]> Blog Entry <![CDATA[Kentucky Court Addresses Strict Liability for Sexual Harassment]]> http://www.fbtemployerlaw.com/BlogEntry.aspx?_entry=49aa61cb-0704-4fdc-a7f2-0280f8d3692f&RSS=true http://www.fbtemployerlaw.com/BlogEntry.aspx?_entry=49aa61cb-0704-4fdc-a7f2-0280f8d3692f&RSS=true April 16, 2008

Kentucky employers retain the right to prove they acted reasonably to prevent sexual harassment where an employee grants sexual favors in response to a supervisor’s threats.  The Kentucky Court of Appeals reaches this conclusion in an unpublished decision, Cobb v. Community Action Council, issued Friday afternoon, April 11, 2008.

Federal and Kentucky law alike hold an employer strictly liable where a worker suffers a “tangible employment action” (firing, demotion, failing to promote, etc.) for refusing a supervisor’s sexual overtures.  In Cobb, however, the employee allegedly granted sexual favors to her supervisor in response to his threats.  Such an employee may sue her employer for the supervisor’s sexual harassment, the Court found, but the employer is not automatically (“strictly”) liable for the supervisor’s actions. 

The employer may assert as an affirmative defense the worker’s failure to report her supervisor’s misconduct.  In the absence of an “official act,” such as the supervisor carrying out his threats to harm the “victim’s” employment, an employer is not automatically (“strictly”) liable for the supervisor’s sexual harassment.  If the employer has a proper sexual harassment policy, but the “victim” unreasonably fails to use it, the employer may escape liability.

If followed by other Kentucky courts, the Cobb decision retains for employers an important legal defense where the employer has no prior notice of a supervisor’s sexual misconduct because the employee succumbs to the supervisor’s pressure rather than seek the protection of the employer’s sexual harassment policy.


 
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