Kentucky Employment Lawyer Blog

Earlier this month, the U.S. Department of Labor released Fact Sheet #73 about Break Times for Nursing Mothers under the FLSA. The Patient Protection and Affordable Care Act ("PPACA") went into effect on March 23, 2010 amending part of the Fair Labor Standards Act.

Under this law, employers are required to provide "reasonable break time" to a non-exempt employee to express breast milk for up to a year following the child's birth. "Reasonable break time" is flexible and varies in frequency and duration according to the mother's needs.

Further, employers need to provide a private space other than a bathroom to shield the woman from coworkers and the public. Employers are not required to pay employees for the this break time unless the employer already provides compensated break time.

Continue reading "U.S. Department of Labor Provides Guidelines for Nursing Mothers" »

Kentucky Discrimination Attorneys are anxious to hear the US Supreme Court decision in the case Thompson v. North American Stainless.The Court agreed on June 29, 2010, to hear the case. While it will not be argued until the fall, the case will take a critical look at whether employers can legally retaliate against a complainant's family members when an employee reports illegal discrimination or harassment in the workplace.

In the Thompson case, both Mr. Thompson and his finance, Miriam Regalado, worked for North American Stainless. Mr. Thompson had worked for the company for over six years, and it was known throughout the company that they were dating. Ms. Regalado complained of workplace gender discrimination to the EEOC. A few weeks later, Mr. Thompson was terminated.

Continue reading "Kentucky Case to Be Heard by US Supreme Court" »

Kentucky employment lawyers are excited about the latest Administrator's Interpretation from the Department of Labor. On June 22, 2010 Deputy Administrator Nancy Leppink clarified when an employee standing in loco parentis may take FMLA leave for birth, bonding, and to care for the child.

Typically, employees eligible for Family Medical Leave may take up to twelve weeks of leave each year to for the birth or placement of a child, to bond with a newborn or newly placed child, or to care for a child with a serious health condition. 29 U.S.C. §2612(a)(1)(A)-(C). In recent years, with ever expanding family units, more and more people wonder the extent of the definition in loco parentis.

As the opinion points out, Congress intended the definition of "son or daughter" to include children outside of traditional families, including "adoptive, step, or foster parents, their guardians or sometimes simply their grandparents or other relatives or adults." See S.Rep. No. 103-2, at 22.

Continue reading "Dept. of Labor Clarifies the Definition of In Loco Parentis for FMLA Leave? " »

Last week, the United Supreme Court did something unusual: they all agreed that text messages on pagers issued to government employees can be searched as long as the government's acts are reasonable and motivated by a legitimate work-related purpose. See Ontario v. Quon, 560 U.S. __ (2010).

Typically, employees in the private sector have a very low expectation of privacy. Public employees, however, are protected by the 4th Amendment which prohibits "unreasonable searches and seizures." This rule has been extended to include not just criminal investigations but also other actions taken by governments including investigations into their own employees. Treasury Employees v. Von Raab, 489 U.S. 656,665 (1989).

In Ontario v. Quon, employees were issued pagers with text messaging capabilities. The government was charged overages when employees used exceeded a particular character allotment on the text messages. For several months Quon, an employee issued a pager, exceeded the character allotment and personally paid the overage. His supervisors, wanting to assure that the overages were not being caused by work related text messages, reviewed a sample of texts that Quon made during work hours. Unfortunately, Quon sent some sexually explicit texts which resulted in discipline.

Continue reading "United States Supreme Court Reviews Privacy In the Workplace" »

The Kentucky Court of Appeals ruled in favor of Louisville, Kentucky firefighters in their claim filed with the Kentucky Department of Labor--Wage and Hour Division to receive back pay from the Louisville Metro Government for unpaid overtime.

The Kentucky Court of Appeals affirmed the ruling of the Jefferson Circuit Court that found Louisville Metro Government in violation of the firefighters' contract by not adding incentive and longevity pay into calculations for overtime pay for a 15 year period.

The 800 firefighters could be entitled to receive $7.6 million plus interest for the government's violation. This amount is in addition to an award of $19.7 million received in a second action filed in Jefferson Circuit Court by Louisville firefighters covering a five year period.

For more information on this ruling read the Louisville Courier Journal article.

Continue reading "Louisville Kentucky Firefighters Entitled to Back Pay" »

As of today, July 24, 2009, the U.S. minimum wage will increase by 70 cents to $7.25 an hour. According to the U.S. Department of Labor Secretary Hilda Solis, this is the third increase in the minimum wage in the last three years and this increase will affect between 3 million and 5 million workers. While many states have their own minimum wages that are already higher than the federal minimum wage and will thus not be affected by this increase, Kentucky and Indiana have both set their minimum wage to be the same as the federal minimum wage. Therefore employees in Kentucky and Indiana who earn the minimum wage will soon see an increase to their paychecks.

The previous federal minimum wage (and therefore the Kentucky and Indiana minimum wage) was $6.55 an hour. Therefore, employees in Kentucky and Indiana who receive the 70 cent an hour increase will receive an additional $28 per week (assuming a 40 hour work week). To see the minimum wage of other states you can visit the U.S. Department of Labor.

If you feel that you are not receiving the new minimum wage you can contact the Department of Workplace Standards of the Kentucky Labor Cabinet at (502) 564-3070 or contact an employment lawyer at Miller and Falkner.

Many injured men and women returning from military service are facing discrimination from employers as they return to civilian life.  The U.S. Department of Justice (DOJ) has noted that there has been a rise in filings against employers that discriminate against returning injured soldiers who are either being demoted or denied work altogether.  The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law intended to ensure that individuals who serve or have served in the military (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service.  

Suits are being filed nationwide against employers -- almost on a weekly basis -- for failing to promptly re-employ returning service men and women.

Read more about the rise in filings of discrimination in violation of the USERRA and know your rights under the USERRA.  For more information on the USERRA  contact an Employment Law Attorney at Miller & Falkner.

Continue reading "Suits Alleging Discrimination of Returning Soldiers by Employers on the Rise" »

In a recent article, MSNBC discussed cost cutting measures many employers are implementing as a consequence of the current economic recession.  While much attention has been placed on the rising unemployment rate which hit 8.5 percent in March 2009 with 663,000 jobs lost, the employees who have so far survived the lay offs are not out of the woods.  A recent poll by the Society of Human Resource Management found that 15 percent of employers have implemented salary reduction and that 24 percent were likely to do the same in the next half of the year. 

The poll also listed some of the top cost cutting measures employers have made in the previous six months.  These measures include:

Health Care Coverage for employees:  Reduced 78%, Frozen 22%

Health Care Coverage for Spouses/Dependents:  Reduced 72%, Frozen 24%, Eliminated 3%

Employer Match to Retirement Savings Plans:  Reduced 47%, Frozen 32%, Eliminated 21%

Paid Time Off:  Reduced 44%

While many companies are within their legal rights to make these cutbacks, employers cannot advesrsly impact an employees job or benefits based on a illegal form of discrimination, such as their race, gender age, national origin, religiion or in some instances, a disability. 

To determine if your company is justified in making a cutback, or if they are breaking the law, you can contact the Kentucky Labor Cabinet or a Labor and Employment Law Attorney at Miller and Falkner. 

While the hotel chain Motel 6 claims that they will "keep the light on" for its customers, it might be doing so at the expense of and without properly paying its employees.  That is what three employees of the Motel 6 chain in California have claimed in their lawsuit filed April 22, 2009.  In the complaint, the three employees allege that they were discriminated against and harassed, forced to skip breaks and work overtime without pay.  Specifically, the complaint stated that the motel is "understaffed to the point that employees were and are required to work through their rest and meal periods and are required to work, but are not paid, overtime."  A similar complaint was filed against the same hotel in December 2008 by four other employees with similar allegations against the hotel.

As the economic downturn continues, more and more employers will be laying off employees and relying on the remaining employees to cover the work.  Under Kentucky law, there are many protections for employees from unlawful employer practices. 

For Example:

No employer shall require any employee to work without a rest period of at least ten (10) minutes during each four (4) hours worked (except those employees who are under the Federal Railway Labor Act).  This rest period is in addition to the regularly scheduled lunch period.  Employers are also not allowed to take a reduction in pay for these rest and lunch periods. 

Many employers also are not allowed to employ an employee for a workweek longer than forty hours unless the employee receives compensation for their employment in excess of forty hours in a workweek at a rate of not less than one and one-half times the hourly rate employer.

It is important that you understand your rights as an employee.  For more information on Kentucky Wage and Hour Laws visit the Kentucky Department of Labor or contact a Wage and Hour attorney at Miller & Falkner.     

After losing a job, one of the primary concerns for many individuals is their loss of health insurance. The Consolidated Omnibus Budget Reconciliation Act (COBRA) allows workers and their families who lose their health benefits due to circumstances such as voluntary or involuntary job loss, reduction in the hours worked, transition between jobs, death, divorce, and other life events, the right to choose to continue group health benefits provided by their group health plan for a limited period of time. One main problem however for many individuals who have lost their job is how they are going to pay for this coverage as it is generally much more expensive than their health insurance premiums had been when they were employed.

The American Recovery and Reinvestment Act of 2009 (ARRA) signed into law by President Obama on February 17, 2009 provides a significant reduction in premium cost for COBRA to certain qualified individuals and also expanded eligibility for COBRA. Under the ARRA, individuals may be eligible to pay a reduced premium amount that is only 35% of the premium costs for your COBRA coverage for up to 9 months.

To qualify for this reduction the individual must be qualified for COBRA because they or their family member were involuntarily terminated between September 1, 2008 through December 31, 2009. If you qualify for this reduction but have already declined COBRA or elected COBRA but later discontinued it, you may have another opportunity to elect COBRA coverage and pay the reduced rate. For more information on COBRA and the ARRA's subsidies available, visit the Department of Labor's website. 

The Americans with Disabilities Act 42 U.S.C. Sec 12102, et seq. (ADA) was first enacted in 1990 prohibiting discrimination against people with disabilities in employment (Title I), in public services (Title II), in public accommodations (Title III) and in telecommunications (Title IV). 

After its enactment however, United Stated Supreme Court cases significantly limited the ADA's effectiveness in prohibiting discrimination based on disabilities.  Based on narrow court interpretations of the ADA, the ADA Amendments Act of 2008 was signed into law on September 25, 2008 to make the ADA consistent with its original intent of "providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and to "provide broad coverage." 

Several changes in the ADA as a result of the new Amendment are discussed below. 

One of the largest changes made by the ADA Amendments was to the definition of a "disability" under the ADA.  In Sutton v. United Air Lines Inc. (1999), the Supreme court held that in order to determine whether an impairment was a "disability" under the ADA, consideration must be given to mitigating measures available.  Mitigating measures could include a variety of items such as medication, equipment, prosthetics, mobility devices, hearing aids, and glasses.  When taking into consideration these mitigating measures, many impairments were not considered to substantially limit a major life activity and thus were not considered disabilities under the ADA. 

The ADA Amendments state that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an employee has a disability for purposes of the ADA. 

Other changes made to the ADA include:

• expanding the definition of "major life activities"
• clarification that an impairment that is in remission or episodic still qualifies as a disability if it would substantially limit a major life activity when active
• changing the definition of "regarded as" to no longer requiring the impairment to substantially limit a major life activity
  

Continue reading "ADA Amendments Good News for Individuals with Disabilities" »

The Department of Justice (DOJ) filed suit against Harrison County Indiana Sheriff ,G. Michael Deatrick, under Title VII of the 1964 Civil Rights Act after the Equal Employment Opportunity Commission (EEOC) found probable cause that Sheriff Deatrick sexually harassed, created a hostile work environment and retaliated against two female employees of Harrison County.

Under Title VII of the 1964 Civil Rights Act an employer is prohibited from discriminating against an employee on the basis of race, sex, religion, national origin and age. Also an employer is prohibited from retaliating against an employee for availing themselves of the protections afforded by Title VII.

The two female employees, Deanna Decker and Melissa Graham, sued Sheriff Deatrick and Harrison County, Indiana in 2008 for a violation of their civil rights under 42 U.S.C. 1983. The two female employees are represented by Charles W. Miller of Miller & Falkner.

To see more information regarding the Department of Justice lawsuit please visit:

Wlky.com: Judge Rules DOJ Lawsuit Against Sheriff May Proceed

The Corydon Democrat: Feds File Suit Against Deatrick, County

The Chicago Tribune: Feds say Harrison Co. sheriff harassed 2 workers