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Tennessee Trial Lawyers Association

ACA with gavelThere have been several high-powered legal battles about the Constitutionality of the Affordable Care Act (ACA) ever since the Act became a law in March 2010.1 Several of these cases have considered important Constitutional issues such as the extent of Congress’ commerce clause, necessary and proper, and tax power.2 In NFIB v. Sebelius a split supreme court narrowly upheld the constitutionality of the ACA based upon Congress tax power, yet rejected arguments that the law could be sustained based on Congress commerce clause power or the necessary and proper clause.3 Resting the Constitutionality of the ACA upon a single reason left the ACA vulnerable to future legal attack. This attack came in a two-prong approach, first in the 2017 Tax Cuts and Jobs Act (TJCA) signed into law in December, 2017, the individual mandate from the ACA was repealed by Congress and signed into law by the President.4 It did not take long for new legal challenges to mount. One of those came quite quickly after the change in the law in the case of Texas v. U.S in the Northern District of Texas on February 26, 2018.5

In Texas v. U.S., the Plaintiffs allege in the Complaint that “Because this recent amendment renders legally impossible the Supreme Court’s prior savings construction of the Affordable Care Act’s core provision—the individual mandate—the Court should hold that the ACA is unlawful and enjoin its operation.”6 The plaintiffs filed for a preliminary injunction recently. The District Court construed the motion for a preliminary injunction as a motion for partial summary judgment and granted the Plaintiffs summary judgment on count I on December 14, 2018.7 This recent decision has made a major splash in the current news cycle.8

In the Texas v. U.S. decision, the Court did not attempt to hide the ball deep in the analysis. Instead the Court was transparent in the introduction section and presented a road map for the case.9 First the Court reasoned that Article III courts must decide cases or controversies presented to them, even those of the most politically charged. Second, the Plaintiffs allege “the balance of the ACA is untenable as inseverable from the Invalid Mandate.” Third, the Court’s decision is guided by the Supreme Court’s previous decision in NFIB v. Sibelius resting on the tax power only. Fourth, Congress stated the individual mandate was unequivocally “essential to the ACA”. Thus, the District Court granted summary judgment to the Plaintiffs that the ACA is now unconstitutional in totality.10

https://www.colelawgrouppc.com/blog/wp-content/uploads/2018/12/Screen-Shot-2019-01-23-at-3.49.32-PM-2.pngOftentimes in litigation, parties continuously seek the all-important piece of evidence to help win their case. This vastly important piece of evidence is sometimes known as a “smoking gun.” Some examples of a “smoking gun” may include the video of an injury that occurred on the premises of a business that clearly shows the injury was the fault of a third party, or an important email that indicates sexual harassment or racial discrimination.  However, it is not always easy to obtain this information and unfortunately sometimes parties choose to destroy evidence in hopes of hiding any evidence that may confirm their legal liability. What happens if a party destroys relevant evidence?

In 2015, the Supreme Court addressed this issue in a case know as Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 737, 2015 Tenn (https://www.tncourts.gov/sites/default/files/tathamleeann.opn_.pdf)

In Tatham, the plaintiff was in a serious car accident. Plaintiff alleged that the car accident occurred due to the failure of a new tire purchased from Defendant. Plaintiff brought a products liability case against the seller and the manufacturer. At the instruction of her insurance company, the plaintiff transferred title to the vehicle (and tire) to a third-party wrecker service. In ordinary practice, the wrecker service destroyed the tire and car. After the car and tire were destroyed, Plaintiff filed suit against the defendants. The defendants filed a motion for summary judgment requesting the court to dismiss Plaintiffs case because the tire was destroyed, and Defendants were prejudiced because they never got a chance to inspect the tire. The trial court refused to award the sanction because it held the plaintiff did not intentionally destroy or otherwise spoliate the tire. The Defendants appealed, arguing the trial court abused its discretion. This issue was addressed by the Supreme Court. The Supreme Court upheld the Trial Court’s decision not to award sanctions and in the process developed a new four (4) factor test for the Trial Court.

After over a year of litigation, the United States Supreme Court recently upheld President Trump’s so-called “travel ban” as constitutional and statutorily permissible. See Trump v. Hawaii, 585 U.S. ____ (2018). Criticized by many as invidious, imprudent, or unnecessary, Presidential Proclamation No. 9645 attempts to improve screening procedures related to national security for individuals from countries that may present “public safety threats.” 82 Fed. Reg. 45161 (2017) (the “Travel Ban”). To this end, the Travel Ban placed certain types of entry restrictions on the nationals of eight (8) countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia, and Yemen. Although the restrictions differ from country to country and do not apply to all individuals attempting to enter the United States from those countries, many still wish to know what the Travel Ban does and whether it will affect them.

The Travel Ban prohibits entry into the United States as an immigrant for nationals of the following countries: Chad, Iran, Libya, North Korea, Syria, Somalia, and Yemen. For those seeking to enter the United States as nonimmigrants, the Travel Ban prohibits the issuance of certain business and tourist visas from the following countries: Chad, Libya, Iran, North Korea, Syria, and Yemen. Importantly, for nationals of North Korea and Syria, the Travel Ban prohibits entry into the United States regardless of whether the individual seeking entry is attempting to enter as an immigrant or a nonimmigrant. As for Venezuela, the Travel Ban’s entry restrictions only appear to apply to certain Venezuelan government officials.

However, the Travel Ban does contain exceptions. The Travel Ban does not prohibit entry of the following categories of individuals coming from the countries listed above: lawful permanent residents of the United States, foreign nationals who have been granted asylum by the United States, refugees who have already been admitted to the United States, or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The United States Government has recently come under intense scrutiny for the separation of immigrant families at the U.S.-Mexico border. Denounced by many as overly harsh, President Trump’s “zero-tolerance” policy, which calls for the criminal prosecution of those who enter the United States illegally, has undoubtedly brought the issue of family separation to the forefront of United States Immigration Law. In response to news reports and public outcry related to immigrant children being separated from their families at the border, on June 20, 2018, the President signed Executive Order No. 13,841. See 83 Fed. Reg. 29435 (2018) (the “Executive Order”). Nevertheless, many Americans are still confused as to what the Executive Order does and whether it will affect them.

First, it is important to understand the history that led to the creation of the Executive Order. After years of litigation over the issue of detention of immigrant children throughout the 1980s and the 1990s, in 1997, the Clinton administration eventually entered into a settlement agreement in the case of Flores v. Reno (the “Flores Settlement”). Seee.g.Flores v. Reno, 681 F. Supp. 665 (C.D. Cal. 1997). Under the terms of the Flores Settlement, the Government established minimum standards for initial detention of minors, created procedures allowing minors to contact detained family members, and established a policy favoring the release of minors to their close family relatives.

To make matters even more complicated, two (2) subsequent court rulings further held that the Flores Settlement applied to all minors unlawfully crossing the border, whether accompanied or unaccompanied, and that the Government had to process the asylum claims of those minors within an average of 20 days. Seee.g.Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016). Simply put, these court rulings had the practical effect of either (1) requiring the Government to release entire families from detention after 20 days and during the pendency of their removal proceedings (the so-called “catch-and-release” policy) or (2) requiring the Government to separate families via detaining adults in one set of detention facilities and sending children to be placed in the custody of other family members or the Department of Health and Human Services.

TENNESSEE has recently come into the national spotlight for its passage of House Bill 2315 (“HB 2315”), a new law that changes the nature of how municipal governments in Tennessee can control how local law enforcement agencies coordinate with federal immigration authorities. Although Governor Haslam refused to sign HB 2315, he also refused to veto it, thus allowing HB 2315 to become a law without his involvement.

But what is HB 2315, and how could it affect you? Two (2) major effects of HB 2315 are: (1) municipal governments cannot force local authorities to refuse to comply with federal immigration officials, including immigration detainers from U.S. Immigration and Customs Enforcement (“ICE”); and (2) municipal governments that do prohibit local authorities from complying with federal immigration officials through a “sanctuary city” policy are ineligible to receive any state funding.

Immigration detainers are requests by ICE for local authorities to hold undocumented individuals who have been charged with a crime and who are already in jail for an additional 48 hours after they otherwise would have been released. From ICE’s perspective, immigration detainers allow ICE a window of time for federal authorities to detain individuals for immigration proceedings when they may otherwise not be able to apprehend such individuals before they are normally released. However, this perspective has been harshly criticized, with many arguing that such immigration detainers unlawfully or immorally commandeer state law enforcement officers for federal law enforcement purposes.

The United States Government has ramped up its enforcement efforts in the area of Immigration Law significantly in recent years. As one tactic to increase its enforcement activities, the Government has begun to increase the number of Form I-9 Inspections. In April 2018, federal officials arrested or detained 97 Tennessean workers at a meat-processing plant outside of Knoxville as part of a Form I-9 Inspection, arguably the largest workplace raid that the Government has conducted in approximately ten (10) years. If you are an employer seeking to employ immigrant workers, it is imperative that you understand what Form I-9 Inspections are, and perhaps most importantly, how they can affect you and your business.

The Immigration and Nationality Act (“INA”) requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. See 8 U.S.C. § 1324a(b). The Government accomplishes this verification task by using the Employment Eligibility Verification Form I-9 (“Form I-9”). See 8 C.F.R. § 274a.2. By law, employers are required to maintain for inspection original I-9 Forms for all current employees. In the case of former employees, employers are required to retain I-9 Forms for a period of at least three (3) years from the date of hire or for one (1) year after the employee is no longer employed, whichever is longer. After this period has elapsed, the records can be purged.

When the Government decides to perform a Form I-9 Inspection, it will first send an employer a Notice of Inspection (“NOI”). Federal officials have the power during the course of the inspection to arrest or detain any undocumented workers located in the workplace. Depending on the nature of any violations that are found, as well as the employer’s participation in the ICE Mutual Agreement between Government and Employers (“IMAGE”) program, regular penalties for employing unauthorized workers can range from $224 – $4,473 per worker. Although the Government can impose criminal penalties on employers for these violations under certain circumstances, it appears that the Government has been reserving criminal prosecutions only for employers engaged in a repetitive pattern of misconduct.

This article summarizes important considerations that an employee or business must bear in mind before inadvertently or deliberately signing a non-compete agreement with an employer or business.

1Am I signing a hidden non-compete agreement?

Employers will occasionally attempt to hide non-compete agreements inside employee contracts that contain an increase in salary, benefits, a severance package, or other consideration. The employer’s purpose in doing so may be to entice the employee into signing an agreement that includes a non-compete clause. Therefore, employees must think carefully before signing any document that even mentions the word “non-compete” because that document could have a drastic effect on their future employment opportunities.

Disclaimer: This article is not legal advice. It is intended to give a bit of background information about the state action requirement for First Amendment claims. Each case is different, and there are tactical considerations about when to sue and what claims to bring. For legal advice applicable to your specific situation, always contact an attorney licensed in your state.

What is the State Action Requirement to Make a First Amendment Claim?

The United States Constitution is primarily concerned with issues regarding which branches of government have authority over certain matters, and specifying procedures for conduct and limitations of government power. Individual rights are provided for in the Bill of Rights and other amendments to the Constitution, including the First Amendment.

Employment Discrimination Claims in Tennessee

Authored by Paul Tennison, Law Clerk, Cole Law Group, P.C.

Disclaimer: This article is not legal advice and is only intended to give a bit of background information about employment discrimination law under Federal and Tennessee statutes. Each employment discrimination case is different, and there are tactical considerations about when to sue and what claims to bring. For legal advice applicable to your specific situation, always contact an attorney licensed in your state.

Imagine you are driving home after work. You slow down to stop for a red light and suddenly, everything goes black. You come to and realize another driver hit you from behind.

These situations are unfortunately common thanks to unsafe behaviors like distracted driving and following too closely. In fact, more than a million rear-end collisions occur every year. However, while it may be obvious who is to blame for these crashes, the extent of the damage they cause can be much less clear.

Late-onset injuries

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