Employment Law Alert – Summer 2018

New Claim Handling Standards for Tennessee Workers' Comp Claims

Tennessee's Workers' Compensation Bureau recently amended its rule on Claims Handling Standards, effective 8/2/18. Below are some highlights from amended Rule 0800-02-.14:

• Each adjusting entity must now designate a liaison between the entity and the Bureau. The entity must report the liaison's name and contact information every January and within 15 days after any change of liaison. The liaison must be able to provide the Bureau with information about claim assignments and payment status, and must provide contact information for each individual adjuster every January and July;
• A new $500 penalty is set for any employer or adjuster who knowingly, willfully, or intentionally fails to reimburse an employee for a known compensable claim or causes it to be paid under health or accident insurance;
• Adjusters still have 2 business days after notice from the employer to contact the employee, provide their contact information, and investigate the claim. They must also mail the employee a Notice of Reported Injury and a copy of the Beginner's Guide to Tennessee Workers' Compensation within that time. This Guide is available for download at https://www.tn.gov/workforce/injuries-at-work/available-resources/redirecr-available-resources/a-beginner-s-guide-to-tn-workers--comp.html. If a file is transferred to a new adjuster, the new adjuster must notify the employee of the transfer within 2 business days. For a mass transfer of files, the time to give this required notice is extended to 7 business days;
• Adjusters have 15 days after notice of the injury to determine compensability. For any denials, adjusters must now submit a Notice of Denial within 5 business days of a decision to deny, and they must also provide the notice to the employee, employer, and treating doctor. The denial notice must include a statement regarding the basis for denial;
• Temporary disability payments are now due within 15 days after the onset of disability and every consecutive 15 days until all benefits have been paid. Each payment must indicate the time period it covers. Adjusters must also file First Report of Payment and Notice of Change or Termination of Business forms within 5 business days of such first payment or payment change/stop. Adjusters must provide such notices to the employee and employer, and must state the reasoning behind any changes;
• Notice of Controversy forms are now due 15 days after the due date of the first omitted payment if the adjuster wants to contest liability after having paid benefits;
• Adjusters will now submit information to the Bureau primarily via Electronic Data Interchange (EDI). They must maintain anti-virus software and are subject to penalties if their submissions fall below an 85% acceptance standard for a given month. If an adjusting entity hires a trading partner to handle its electronic filings, the adjusting entity must provide a Trading Partner Agreement form to the Bureau. The adjusting entity will still be responsible for timely submissions and any penalties for late filings;
• Funeral expenses are due within 30 days from submission of an invoice;
• Adjusters must now provide an employee with the treating doctor's impairment rating and MMI date, plus any other information needed to settle a claim, in writing within 30 calendar days after receiving that information. A settlement offer is also due within 30 days of receiving the treating doctor's rating and MMI date;
• Statistical Data Forms are still required for settlements and trials, with a $100 penalty per violation if the Bureau finds the Form is not complete. For cases not concluded by settlement or trial, adjusters must submit a Final Report of Payment and Receipt of Compensation within 30 days after the final payment.

U.S. Department Of Labor Releases New Opinion Letters

The U.S. Department of Labor recently issued three new opinion letters. Opinion letters are not law, but are written at employers' request to address issues where the law does not provide a complete answer. Thus, these letters offer guidance on how the DOL will enforce various statutes. The three most recent letters address the Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), and the Consumer Credit Protection Act (CCPA).

Opinion Letter FLSA 2018-18 - Employee Travel Time

This opinion letter involves employees who travel as part of their job. In Scenario 1, the employee takes a flight on Sunday for training at the corporate office and then flies home either Friday or Saturday. The employee does not have regular work hours, and the employer questioned how to determine compensable travel time with no regular work day. The DOL says that an employer should do its best to ascertain "typical work hours;" if it cannot, the employer and employee may negotiate and agree to a reasonable timeframe or time amount where travel outside the employee's home community is compensable. In Scenarios 2 and 3, the employer asked about compensability for an hourly employee's time to use a company vehicle to travel from his home to the office to get his job itinerary before traveling to the customer's location. The general rule is that "compensable worktime generally does not include time spent commuting between home and work, even when the employee works at different job sites," but an employee's travel from jobsite-to-jobsite was compensable.

Opinion Letter FLSA 2018-19 - Rest Breaks 

This opinion letter addresses the compensability of short breaks certified by a health care provider as being due to an employee's serious health condition. The DOL recalled the well-settled principle that breaks of up to 20 minutes in length are generally compensable because they benefit the employer by promoting efficiency. However, the breaks described in the opinion letter, due to a serious health condition, differ because they are solely related to the employee's needs. Therefore, such breaks are not considered compensable.

Opinion Letter CCPA 2018-1NA - Lump-Sum Earnings & Garnishment

This opinion letter addresses what constitutes "earnings" under the Consumer Credit Protection Act (CCPA). There is growing uncertainty concerning what types of payments to an employee can be subjected to garnishment, specifically lump-sum payments. The general test to determine if a payment is "earnings" is whether it was paid for the employee's personal services. It includes wages, salary, commissions, bonuses, and periodic payments from a pension or retirement program. Confusion arises when an employee gets a lump-sum payment that is not necessarily earnings in the traditional definition, such as for workers' compensation or as part of a settlement. These payments may only be partially subject to the CCPA limits on garnishments.

PRACTICE POINTER: DOL opinion letters may give additional guidance for situations where the stated law is not completely clear. For fact-specific situations such as compensable travel, break times, and reporting of earnings, it is worthwhile to consult the DOL opinion letters to determine how the DOL is currently viewing such situations, rather than relying solely upon incomplete interpretations of statutes or regulations.