Legislative Updates

Paid Sick Leave For Employees of Certain Federal Contractors

by Karen Trent, Miller & Martin

On September 7, 2015, President Obama issued an Executive Order establishing paid sick leave for federal contractors. The Executive Order only applies to the following types of contracts entered into on or after January 1, 2017:

  1. Procurement contracts for construction covered by the Davis-Bacon Act;

  2. Contracts for services covered by the Service Contract Act (which covers prime contracts, i.e., contracts entered into directly with the federal government or government agency);

  3. Contracts for concessions (i.e., contracts to furnish food, lodging, fuel, souvenirs, etc. on federal property);

  4. Contracts to provide services on federal property for federal employees or the general public.

The Executive Order will allow employees of federal contractors to earn one hour of paid sick leave for every thirty (30) hours worked, which equates to seven (7) days per year. Unused paid sick leave can be carried over from year to year, and an employer cannot cap the total accrual of paid sick leave per year at less than fifty-six (56) hours. Any accrued but unused paid sick leave does not have to be paid out to an employee upon termination of employment. However, if the employee is rehired within twelve (12) months, then the previously accrued and unused leave must be restored to him/her.

Employees will be allowed to use the paid sick leave for absences resulting from the following:

  1. Their own physical or mental illness, injury or medical condition;

  2. Obtaining a diagnosis, care or preventive care from a healthcare provider;

  3. Caring for a parent, spouse, domestic partner or any other individual related by blood or affinity whose close association with the employee is equivalent to a family relationship, who has a physical or mental illness, injury or medical condition, or who needs a diagnosis, care or preventive care; or

  4. When the employee, or his/her family member (as described above), is the victim of domestic violence, sexual assault or stalking.

The Executive Order imposes a few conditions on employees seeking to use paid sick leave. The worker must give seven (7) days' notice of the need to use leave, if the leave is foreseeable, or must provide notice "as soon as possible" if the need for leave is unforeseeable. When an employee misses three (3) or more consecutive days of work, the employer may require certification from a healthcare provider or - if the leave is due to domestic violence, sexual assault or stalking - documentation from an appropriate individual or organization which shows the minimum necessary information to establish the need for the leave. Employees may not be required to find a replacement before using paid sick leave, and employers may not retaliate against employees who use, or attempt to use, such leave.

Tennessee Passes Guns in Trunks Law

By Kara E. Shea

On March 14, 2013, Governor Haslam signed the so-called “Guns in Trunks” law, which will go into effect July 1, 2013.  The new law, which will be codified as T.C.A § 39-17-1313,  states that handgun-carry permit holders may lawfully store firearms and ammunition in their personal vehicles parked on public or private property, including while parked at work, so long as the firearms are “kept from ordinary observation and locked within the trunk, glove box, or interior of the person's vehicle or a container securely affixed to the vehicle if the person is not in the vehicle." The new law only applies to carry-permit holders, but does appear to apply to all “firearms” owned by the carry-permit holder, whether or not covered by the permit.  The law doesn’t apply to guns carried or stored anywhere except in the employer’s private vehicle; for instance, the law doesn’t impact an employer’s ability to ban weapons from company-owned vehicles or from any other part of the property other than the employee’s personal vehicle.  Nor does the law allow carry-permit holders to carry firearms on their persons while at work.  The law doesn’t contain any exemptions for specific kinds of businesses, but does state that the law will not control in areas where firearms possession is expressly prohibited by federal law. So, laws such as the Gun-Free Schools Act (GFSA) of 1995, 18 U.S.C. § 922, would still apply to schools.

This NRA-backed legislation breezed through the legislature this session, passing by a wide margin in both the Senate and House of Representatives.  Prior versions of this law faced stiff resistance from the Tennessee business community last year, and divided Republican lawmakers on an issue implicating core conservative values:  whether the right to bear arms as set forth in the Second Amendment of the Constitution trumps the rights of private property owners to control access to their land.  But this year’s version of the legislation represented more of a compromise with business groups, including a provision stating that businesses will not be liable for damages or injuries caused by firearms stored on their premises by employees in accordance with the new law.  Also, unlike prior versions of the proposed law (and over protest of some Second Amendment-focused groups), the current bill doesn’t expressly create a new “protected category” of carry-permitted gun owners, and doesn’t state that employers may not discipline or terminate employees for bringing weapons onto employer property.  But, nor does the law state that employersmay terminate employees on this basis.  The law’s silence on this issue has understandably caused some confusion among employers and other businesses who wish to comply with the law.

So, what does the new law mean to Tennessee employers and other property owners?  As a refresher, currently, the law (prior to addition of the new Section 1313) states that: “[a]n individual, corporation or business entity is authorized to prohibit the possession of weapons by employees otherwise authorized by this subsection… on premises owned, operated or managed by the individual, corporation or business entity.  Notice of the prohibition shall be posted or otherwise noticed to all affected employees.”  T.C.A. 39-17-1315(b)(1).  This language has been widely interpreted to mean that, if an employer posts a “No Weapons” policy, it can ban weapons on its property, including in employee vehicles parked on employer property.  This language is found in Section 1315 of Title 39.  The “guns in trunks” bill adds a Section 1313 to Title 39, leaving the current language in 1315 intact. So, as of July 1, 2013, the law will state that an employer can prohibit guns on their premises if they post, but will also state that carry-permit holders have a right to have guns properly stored in their vehicles parked on the employer’s property.  Because the statutory language is ambiguous (and arguably conflicting), a court called upon to decide this issue would likely look to legislative history (recorded statements of lawmakers) to determine the intent of the law’s authors.  But, here too, there are contradictions.

Legislative history

The law’s sponsor in the House of Representatives, Rep. Jeremy Faison (R-Cosby), has gone on record stating that the new law’s purpose is to prevent criminal prosecution of employees, not to infringe on employer rights.  He said Tennessee would remain an “at will” employment state and an employer would be free to fire someone for having a gun – or for any other reason, or no reason at all.  A legislative attorney supported Faison’s view in committee testimony, comparing the measure to a drinking law: anyone 21 or older may lawfully possess alcoholic beverages in Tennessee, but that doesn’t mean an employer can’t prohibit alcohol on its premises or fire someone for violating company policy, he said.  But Senate sponsors, including Sullivan County Republican Ron Ramsey, the speaker and lieutenant governor, took a different view.  Ramsey stated that that case law makes it problematic for an employer to fire someone solely for exercising a lawfully conferred right.  And, the same day Governor Haslam signed the bill into law, several Senators took the rare step of submitting to the Senate clerk an “explanation of vote” for publication in the Senate Journal.  Their explanation, in part: “This bill did not change the employment-at-will doctrine in the state.  However, by creating a statutory right for permit holders to transport and store firearms or ammunition in accordance with this bill, employers who terminate employees just for exercising this right may violate the state’s clear public policy that handgun carry permit holders are allowed to transport and store firearms or ammunition under the described circumstances. An employee may have a claim for retaliatory or wrongful discharge if the employee is fired just for exercising this right.”

Bottom line

So, can employers with broad “no weapons” bans continue to enforce those policies against carry-permit holder employees after July 1, 2013?  The bottom line is that, presently, there is no definitive answer to that question.  A case certainly could be made that, notwithstanding the emphatic legislative history from the Senate side, if the framers of the law meant to create a cause of action for retaliatory discharge, they would have, or should have, said so in the statute itself.  But, ultimately, this is an issue that will be decided in the courts.  Therefore, employers who are not eager to be the test cases for this new law should exercise extreme caution when enforcing broad no-weapons bans.  And, even employers who don’t have broad weapons bans and who have no intention of testing the law should proceed with caution.  This is because, if carry-permit holders are a new protected class (which we don’t know yet), then, as with any protected category or conduct, any termination involving a covered individual might potentially involve an allegation that the stated reason for the termination is pretextual.  (“You say you fired me because I was a bad employee, but I think the real reason is you found out I have a gun in my car.”)  Thus, prudent employers need to add this potential protected criteria (if known) to their “checklist” –similar to race, gender, age, workers compensation claims activity, and so forth—when evaluating the risk of any particular termination.   

Employers will also need to wrestle with the question of whether it is advisable to gather information on which workers have gun-carry permits and are bringing their weapons to work.  There is no prohibition in the law on gathering this information.  Having this information about who has weapons at work might contribute to a safer work environment, and could also protect carry-permit holders from being mistakenly subjected to disciplinary action.  But, on the other hand, taking deliberate steps to gather this information means obtaining knowledge of a possibly protected criteria, making an employer an easier target for a wrongful discharge claim.  There’s not necessarily a “one size fits all” answer to these questions, as employers of different sizes and with different workforces and cultures may reach different solutions to balancing the various issues, risks, and interests in play.  In any event, Tennessee employers should review their weapons policies prior to July 1, determine their approach to this issue, and educate their supervisory workforces on the employer’s enforcement position.  And, it’s probably a good idea to get some expert advice prior to taking adverse action against an employee where a carry permit may be in the picture.

Kara E. Shea is the Labor & Employment Practice Group Leader for Butler, Snow, O’Mara, Stevens, & Cannada, PLLC, in the firm’s Nashville, Tennessee office, and  currently serves as the Legislative and Legal Chair for the SHRM State Council.  She may be reached at 615-651-6712, or Kara.Shea@butlersnow.com