Kentucky Employment Lawyer Blog

UPS, based in Louisville, Kentucky and FedEx are two of the largest package delivery companies in the world. However, even this worldwide presence does not mean either company may not discriminate against their employees. Two recent lawsuits against UPS and Fed Ex allege just that.

The case against UPS involves an employee who was hired as a truck loader in New Jersey but never got to work a single day because he was fired before he could start. The new employee was a Jehovah's Witness, and he was scheduled to start in the spring on the same day as the Memorial of Christ's Death, a celebrated annually by his faith. He asked that he be able to start on a different day, start at a different time, or have an hour off during his shift to attend the service. His request was denied, and not only was he terminated, but he was also marked as someone who should never be hired again at UPS. After trying unsuccessfully to settle the matter with UPS, the Equal Employment Opportunity Commission (EEOC) filed a religious discrimination lawsuit against the company at the end of November, 2012.

In Utah, a driver employed by FedEx was allegedly terminated because of his accent. The employee had lived in Russia until 2005, when he and his family fled and became political refugees in the U.S. He started driving for a company that operates FedEx trucks in 2009 and did not seem to have any problems until the fall of 2012. Apparently someone at an Iowa weigh station sent a warning to FedEx that one of their drivers was unable to communicate. FedEx then allegedly notified the company that employed the driver that he had to be terminated. The driver was fired without ever speaking to anyone at FedEx or being given a chance to prove his English abilities and he became an independent truck driver. He filed a national origin discrimination lawsuit on November 23, 2012 in U.S. District Court in Salt Lake City, Utah.

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On November 26, 2012 the Supreme Court heard the case of Vance v Ball State, an Indiana workplace discrimination lawsuit. Their ruling on the case will likely affect not only plaintiff and defendants in the case, but also other current and future workplace harassment lawsuits.

Here is a little background on the case. Ms. Vance started at Ball State University in Indiana in the banquet and catering department in 1989. During her numerous years of employment, she was usually the only African-American employee. One of her supervisors did not seem to care for her. She allegedly threatened her physically, and at one point the plaintiff heard that the supervisor referred to her in a derogatory manner because of her race. She reported the behavior, but the only outcome was both women were required to undergo counseling. The worker contacted the Equal Employment Opportunity Commission (EEOC) and filed a discrimination and retaliation lawsuit against the university. The lower court that heard the case threw it out because they did not think the alleged harasser was an actual supervisor of the plaintiff. She then appealed to the U.S. Supreme Court.

So the matter before the Supreme Court is deciding what constitutes a "supervisor." The federal appeals courts seem divided on the issue, with some using a broader definition than others. The court that heard the case above took a very narrow approach to the meaning of the word. They ruled that because the alleged harasser did not have the power to hire or fire employees, she was not a supervisor. The EEOC and some other federal courts define a supervisor as someone who "has the authority to recommend tangible employment decisions affecting the employee or if the individual has the authority to direct the employee's daily work activities." The plaintiff in this case felt the harasser was her supervisor because she was not required to fill out time sheets like the rest of the employees.

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A whistleblower, in very simple terms, is someone who realizes something may be not quite right and decides to tell someone else about it. While kids who perform this same type of service are often called tattle-tales, adults should not be chastised or punished for doing the same. If an employer appears to be operating in a way that breaks a federal law, an employee should feel comfortable telling the appropriate people about it so the situation can be investigated, and remedied if necessary.

Most workers employed by the government and in the private sector are protected by whistleblower laws. Employees are covered by a provision of the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989(WPA). Under these acts, an employee who believes something they witnessed was in violation of a federal law, was fraudulent, was wasteful of money or resources, or might cause harm to the general public has the right to report it to the person or group of their choice without fear of retaliation. If an employee has reported some type of federal misconduct and has been retaliated against, he can take legal action under WPA and seek restitution such as repayment of lost wages if he was wrongfully terminated and other compensatory damages. This law also states that federal officials who have retaliated against a whistleblower may be subject to suspension or dismissal.

Most privately employed workers are also protected if they report a situation that they think breaks a federal law. The United States Department of Labor (DOL) handles whistleblower claims brought by workers in the private sector. If the whistleblowers do not think the DOL has administered their case in a timely manner, the law allows them to then file a lawsuit and have a trial by jury.

On November 27, 2012, President Obama signed new legislation providing additional protection for federal employees. Called the Whistleblower Enhancement Act, it is meant to further encourage those already covered by WPA to continue reporting governmental abuse of power and funds and it also offers protection to some groups who were exempt under the previous acts. This new act changes the burden of proof, making it easier for a whistleblower to prove their case. The Office of Special Counsel, which handles whistleblower cases, will no longer be responsible for paying defendants' attorneys' fees if they lose the case. All airport baggage screeners are now covered by whistleblower laws as are those who work in intelligence for the government. Scientists working for the government who report alleged censorship of their work are also now protected.

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How old is too old to work? According to one teacher from South Bend, Indiana, there is no set age. When she feels like she is doing a disservice to the children that she teaches, or herself, she will call it quits. But she refuses to let a school board president decide that for her. And at 80, she does not think her time has come.

The teacher in question filed an age discrimination complaint in the summer of 2012 with the Equal Employment Opportunity Commission (EEOC). As evidence of the discrimination, she has two emails that the president of the school board sent requesting that she and another teacher be "gently escorted out of the classroom" so that two younger teachers could keep their positions rather than being let go. He specifically mentions "two teachers in our system who are 80 (or over) who by all accounts are no longer able to teach adequately."

The teacher says she is perfectly able to continue teaching and has her most recent teacher evaluation from 2010 as proof. Her March 2010 evaluation states that she is able to maintain control in the classroom and teaches effectively, and the evaluator recommends that she be re-employed for the next year.

Sometimes it does seem that younger employees are discriminated against when it comes to downsizing. But it is much more likely that a younger employee will find another position. In his email, the school board president says one of the younger teachers has already been offered a position with another school district and the other one is going to be offered a job elsewhere as well. It goes without saying that the 80-year-old teacher would have had a much more difficult time finding someone to hire her if she had been the one let go.

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Online social media and mobile communication are very prevalent in today's society and are being used in all sorts of ways. They can be used to invite friends to a party, notify faraway relatives that a new baby has arrived, find long-lost friends from high school, and share decorating ideas and silly videos with people around the globe. Even charity efforts have gone mobile as phone apps have been created as a convenient way for people to help donate to those who were affected by Hurricane Sandy. Unfortunately, it can also be used in negative ways as well, such as harassment.

Supervisors and co-workers often find each other on social networks or share cell phone numbers to allow for easier communication. Sometimes it is easier to send a text regarding a work matter than it is to have an actual phone conversation. But these technologies can also be used in an abusive manner and result in workplace harassment or sexual harassment even when an employee is not at work.

There are many different ways a worker can be harassed electronically. If a supervisor repeatedly sends texts messages to an employee asking for a date or an intimate relationship, the employee may feel uncomfortable or threatened. This constitutes sexual harassment and can create a hostile work environment. Sexual harassment can also occur when a supervisor or co-worker emails or posts pictures or jokes of a sexual nature that other employees find offensive. In a recent case, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against a company because a manager was sending sexual texts to an employee, who told her supervisor. When the supervisor reported the harassment, the company allegedly retaliated against him by firing him. A settlement for $2.3 million was made by the company for both the sexual harassment and retaliation claims.

Other types of harassment or workplace discrimination can also occur. If supervisors or co-workers are posting disparaging remarks regarding an employee's disability, race, ethnicity, gender, or religion, this may also be discrimination. An employee was recently awarded $1.6 million by a court because co-workers had posted negative comments about his disability and his employer did not take any action when he reported the discrimination.

Continue reading "Electronic Workplace Harassment Does Not Always Happen at the Workplace" »

On August 31, 2012, a Kentucky high school coach that was fired in 2008 filed a wrongful termination lawsuit against the school board. He had been employed by the school for 22 years as an assistant coach, and an additional 11 years as head coach of the boys' basketball team. Despite his long tenure, eight district championships, and a 204-117 record, the school terminated him. His lawsuit claims he was a victim of age and race discrimination.

Kentucky is an "at-will" employment state. This term means that an employer can fire an employee whenever he pleases. However, there are certain situations in which the employee is protected. If the employer and employee signed an employment contract stating the employee has to remain employed for a certain length of time, then an employer cannot terminate the employee before the contract is up without valid reason. Otherwise, this would be a breach of contract. Union employees also have some protection against being fired at the whim of them employers.

A third type of protection for employees comes under Title VII of the Civil Rights Act of 1964 and the Age Discrimination Act. These acts pertain to employees that belong to groups of people who have a history of being discriminated against because of certain characteristics such as their gender, race, religion, ethnicity, and age. If an employer terminates or otherwise negatively treats an employee based on one of these characteristics, the employee has been discriminated against and has the right to seek compensation from the employer.

Some discrimination lawsuits ask for lost income with interest, benefits, and awards for emotional distress, all of which are known as compensatory damages. Others also ask for additional money in an attempt to punish the company for its wrongdoing. This type of damages is called punitive damages, and they are often awarded to convince the employer not to discriminate against future employees.

Continue reading "Kentucky Coach Claims Age and Race Discrimination in Wrongful Termination Lawsuit" »

Once again, Darden Restaurants is in the news as employees allege that they are not being paid fairly. Darden Restaurants is a huge company, best known for its Olive Garden and Red Lobster restaurants that are located in Kentucky, Indiana, and throughout the United States.

Only two plaintiffs have been named in the unfair pay lawsuit, one in Florida and one in Virginia. However, the attorney who filed the lawsuit sees it becoming a class action lawsuit that could potentially cover thousands of previous and current Darden employees that were employed by the company anytime between 2009 and 2012. The unfair wages lawsuit was filed in Florida, where Darden is headquartered.

The lawsuit is based on the federal Fair Labor Standards Act (FLSA). FLSA was passed in 1938 and established minimum wage and the 40-hour workweek. It also stated that employees were entitled to time-and-a-half for every hour they worked over 40 hours. FSLA also states that tipped employees are allowed to keep their tips and they will not become the property of the employer. A tipped employee may be required to put their tips in a "tip pool." The tips in the pool are then shared among the employees that regularly receive tips as part of their compensation. An amendment to the Act in 1946 stated that an employee should be paid for any time spent doing work specifically for the employer, even if it was not during the employee's scheduled shift or regular work hours. Another amendment relevant to this case occurred in 1996. Up until this time, employees who received tips regularly were paid 50% of the current minimum wage. But in 1996, the tipped employee's hourly rate was frozen at $2.13 per hour by the federal government.

Continue reading "Employment Lawsuit against Restaurant Chain Claims Employees Were Underpaid" »

An Ohio company that owns Panera Bread franchises in several states, including Kentucky, has settled a race discrimination lawsuit involving an ex-employee in Pennsylvania. The settlement will cost the company at least $76,000, possible more if additional employees come forth to say they experienced discrimination too.

The employment discrimination lawsuit claimed that the ex-employee, who is African-American, was only allowed to work in the kitchen at the restaurant, per the owner of the franchise. He was not allowed to serve customers, run the register or seek a management position because he was not to be seen by anyone. As a result, he was denied any chance of being promoted, even though he worked at the restaurant from November 2009 through August 2011. He finally left because of the alleged unfair treatment.

His lawsuit was not the first filed against the franchisee. A white manager who had been fired at the same restaurant supposedly over medical leave violations filed a lawsuit claiming he had been wrongfully terminated because he refused to stop having an African-American man run the cash register. According to the suit, a district manager said the franchisee would "(expletive) if he got a look at that." The employee that was being allowed to run the register is the one who filed the above lawsuit in January 2012.

The African-American employee will receive approximately $10,000 from the settlement. In addition to paying damages and attorneys' fees, the franchisee was also ordered by the judge to place a notice in local newspapers in every state he has a restaurant, notifying other employees of the settlement in case they were discriminated against as well. They will have the opportunity to join the lawsuit and receive 70 cents per hour for every hour they worked after their first year. This amount represents the extra money they could have earned if they had been given the chance to be promoted after their first year of employment. One attorney estimates that 200-300 current and former employees that were employed by the franchisee between January 2008 and January 2012 may be entitled to this compensation.

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In two separate cases, a former Louisville, Kentucky public works director has been accused of sexual discrimination and sexual harassment. The director resigned at the end of August 2012. Although he denies his departure was in connection with any of the allegations, it certainly seems to be the case.

Sexual discrimination is illegal under Title VII of the Civil Rights Act of 1964. This portion of the act prohibits employers and supervisors from treating employees differently because of their race, religion, ethnicity, or gender. Employees cannot be turned down for employment, denied promotions, paid less, terminated, or otherwise treated unfairly because of any of these factors. The Equal Employment Opportunity Commission (EEOC) enforces this portion of the act by determining if an employee has a valid claim and contacting the company. If the company refuses to resolve the issue, a lawsuit will most likely be filed.

In the Kentucky sexual discrimination case, a public works employee claimed she was discriminated against because she was female. The lawsuit states she was denied a promotion for 18 months and was only given the job after complaints of potential sexual discrimination were made to the mayor. She was finally awarded the position in June 2012, but allegedly at a lower salary than her male predecessors.

According to the EEOC, "Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964." Sexual harassment involves actions by a supervisor or co-worker that makes an employee uncomfortable. Unwanted sexual advances, inappropriate touching, and the distribution of pictures, cartoons, or jokes of a sexual nature are just a few examples of sexual harassment. A one-time incident involving something of a mildly sexual nature is generally not enough to constitute harassment; it must be either frequent or serious enough to cause a hostile work environment.

In the Kentucky sexual harassment complaint against the public works director, he allegedly entered the employee's cubicle on more than one occasion and hugged and kissed her without her consent. Non-consensual touching like this is quite serious, and the fact that it happened more than once makes it even worse.

Continue reading "Possible Sexual Harassment and Discrimination in Louisville, Kentucky Public Works Department" »

Recently, many of the workplace discrimination lawsuits filed have involved people over 40 who feel they have been discriminated against because of their age. Employers seem to be favoring younger employees who will most likely work for less pay and benefits. However, in a recent discrimination case, the worker that filed a lawsuit was only 17 years old, and the lawsuit did not have anything to do with her age.

The teen had applied at a Burger King in Texas for a cashier position. She follows the Christian Pentecostal faith, which does not allow women to wear pants. She mentioned this to the person interviewing her and was told that she could wear a long skirt instead of pants. She was hired and reported to work for her first day. The manager handling the orientation not only told her she was required to wear pants, but also told her to leave. The Equal Employment Opportunity Commission (EEOC) agreed that the teen was discriminated against because of her religion and a lawsuit was filed. The suit asks for damages to cover lost wages with interest as well as punitive damages.

This lawsuit is based on Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against potential or current employees based on their religion, among other things. The act states that employers should do their best to accommodate employees' needs based on their religion as long as it does not cause undue hardship on the employer. Undue hardship might be caused by the employer having to spend large amounts of money to make an accommodation or putting other employees in harm's way. In this case, the employee simply wanted to wear a long black skirt instead of black pants to work. How that might cause undue hardship on a fast-food employer is unknown. What is known is that the teen was denied the right to make a little money while she finished up high school.

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Earlier this year, the U.S. Supreme Court ruled in a case where a teacher at a Lutheran School had filed a wrongful termination suit under the Americans with Disabilities Act. The district court dismissed the case, stating she could not file a workplace discrimination lawsuit because she was covered by the "ministerial exception." The Court of Appeals overturned the ruling based on the fact that the majority of her day was not spent in a ministerial capacity. However the U.S. Supreme Court ruled that she was indeed covered by the doctrine and that the school had the right to terminate her.

The ministerial exception doctrine gives religious institutions the freedom to hire individuals that they think are most qualified to minister to their members without worrying about discrimination charges. But who constitutes a "minister" at a church-affiliated school or hospital and exactly what employment law issues are covered is still unclear. Three recent Kentucky employment law cases involving ministerial exception had differing results.

The first two cases involved two professors at the Theological Seminary in Lexington, Kentucky. Both taught at the Protestant school, but neither were followers of the school's faith. In 2009, the seminary cut staff. Both men filed wrongful termination lawsuits, stating they were tenured professors and that they could only be terminated for failing to do their jobs or for misconduct, not for budgetary reasons. But both the district and appeals court ruled against the professors because of ministerial exception, stating the school has the right to decide who to terminate and that the government cannot intervene.

In the third case, a Louisville, Kentucky pastor was fired by the church he led from 2005 to 2010. In this case, the pastor was not claiming wrongful termination, but rather a breach of contract. A breach of contract occurs when and employer and employee agree to certain terms and sign a contract, the one party does not uphold their part of the agreement. In this case, the pastor claimed he was over $64,000 in salary and benefits by the church and he wants the church to pay him this amount. The Jefferson County Circuit Court refused to hear the suit based on the ministerial exception. In this case, the employee was an actual minister, so the court's decision makes sense in that respect.

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An ex-employee of the Hyattsville Police Department in Maryland has filed a sexual harassment lawsuit against the city of Hyattsville. She joined the force in 2005 when she was 21 and stayed until she was allegedly forced to retire in 2009.

According to the lawsuit, the female police officer was frequently the victim of sexual harassment from her supervisors and coworkers while on the job. Perhaps the worst incident allegedly occurred in 2007 in Louisville, Kentucky. The officer was invited by her superior officer to attend a Fraternal Order of Police Conference there. During the conference, the suit claims that the superior officer took her into a men's restroom and forced her to touch his crotch. Then later that night he allegedly came into her hotel room, climbed on top of her and tried to have sex with her. The female officer's roommate allegedly helped to get him off of her. The female officer claims that nothing was done when she reported the incident and that she was even assigned to the offending officer's squad after it happened. The city of Hyattsville disagrees with her claim, stating disciplinary action was taken against the superior officer, but they did not provide any details.

The female officer said the repeated sexual harassment and hostile work environment forced her to go on short-term disability because she suffered from post-traumatic stress syndrome. The suit also claims that she was retaliated against after reporting the harassment and she was eventually forced to retire and relocate in 2009.

Her lawsuit seeks an unknown amount of damages. The damages would cover her lost wages and benefits as a result of supposedly being forced to retire early. They would also compensate her for any mental or emotional distress incurred because of the harassment and retaliation. If a jury would rule in her favor, the police department would likely have to provide training to all personnel regarding avoiding sexual harassment in the workplace, and how to handle sexual harassment complaints when they occur. The Equal Employment Opportunity Commission's (EEOC) goal is not only to obtain justice for those who have been mistreated, but also to prevent that type of behavior in the future, so training and supervision from an outside party is frequently part of the award or settlement in this type of case.

Continue reading "Alleged Kentucky Sexual Harassment Incident Included in Police Officer's Lawsuit" »

Bass Pro Shop is known for providing equipment of all types to those who love the outdoors. Their stores are filled with camping, hunting, and fishing gear, and often have indoor fish ponds and activities to keep children occupied while their parents shop. According to the Equal Employment Opportunity Commission (EEOC), one thing you may not find there is a large number of minority employees.

In a lawsuit initially filed in 2011, the EEOC alleges that Bass Pro Shops in several states, including Indiana, practice racial discrimination. Minorities had been denied retail positions in the stores since at least 2005, the lawsuit claimed. In May 2012, the federal court ruled against the EEOC, stating there was not enough evidence provided in the initial case to prove discrimination occurred. The case was dismissed without prejudice, which meant the EEOC could file an amended complaint.

Which is exactly what the EEOC has done. On July 20, 2012, an amended complaint was filed against the retailer with 247 pages of information that was allegedly gathered over a two-year period. The suit states that the discrimination starts all the way at the top with the founder and owner of the entire chain, who supposedly said, "This company will never have a [racial] quota system because that's not the kind of people I want working in my stores." Specifically in Indiana, the lawsuit says a manager of the Bass Pro Shop there was throwing away certain employment applications because the names of the applicants sounded like they were minorities and that they "don't make good employees." The lawsuit also states that retaliation occurred against Bass Pro Shop employees that spoke out about or tried to stop the discrimination.

The company has responded to the lawsuit by stating the EEOC is stereotyping Bass Pro Shop and its customers. It says those who love the outdoors are being stereotyped as discriminating people who don't support equal opportunity for everyone. The EEOC denies this claim.

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In 2009, an employee at the Fayette County Detention Center in Kentucky alleges that her supervisor sexually harassed her. Her lawsuit stated that he humiliated her in front of her co-workers and an inmate on separate occasions. She also claimed that he touched her breast. When she reported this behavior, she was supposedly a victim of retaliation as well. The lawsuit named the director of the detention center and the city. She was one of three women who filed lawsuits against the detention center alleging sexual harassment, racial discrimination, and retaliation.

This Kentucky sexual harassment case went to trial in March 2012. The jury handed down a split decision, which means they agreed with the plaintiff on some points and agreed with the defendants on others. The detention center director was excused from the case by the judge because he did not think the director played a role in the harassment. The jury found that the supervisor had indeed harassed the employee, but did not find any evidence that he actually touched her breast. Jurors also did not think there was enough evidence to prove her supervisor had retaliated against her after she complained about his behavior. They awarded the sexual harassment victim $60,000, most likely to cover any lost wages and to compensate her for any emotional or mental distress the alleged harassment may have caused her. Some of the damages may have been awarded simply to punish the city for allowing this to happen and to persuade city officials not to allow this to happen again at the detention center. Damages of this type are called "punitive damages." The employee that was allegedly harassed says she is thankful that someone listened to her.

As a further blow to the city and its bank account, the judge agreed that the city was responsible for the plaintiff's attorneys' fees that accrued during the preparation and attending of the trial. They totaled just over $200,000. If the city decides to appeal this decision and loses, it will likely be held responsible for those additional attorneys' fees as well.

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Kentucky and Indiana are both "at-will" employment states. What this means is that employees can be demoted or fired by their employers at any time. Workers who have certain types of contracts with their employers or are union workers may be more protected when it comes to being demoted or fired by their employers. If it is legal for employers to fire employees for pretty much any reason, how do Kentucky and Indiana wrongful termination lawsuits even exist?

An employee can claim wrongful termination for a variety of reasons. The most obvious is if an employee has a written contract to work a certain length of time and the employer fires him before the contract is up. Breaking a union contract through firing may also lead to a wrongful termination lawsuit, but only after the proper grievance procedure of the union is followed.

Most often, wrongful termination cases arise from other situations. If someone thinks they have been let go because of their race, religion, age, gender, or disability, this may constitute workplace discrimination and they may be able to take legal action. In a recent Kentucky wrongful termination case, a former vice president of the Courier-Journal has filed a lawsuit stating he was wrongfully terminated because of his age. He was let go at age 62 and was told that his job was being eliminated. Subsequently the newspaper allegedly hired someone who was younger than him to fill the position. Employees over the age of 40 are covered by the Age Discrimination in Employment Act (ADEA), which prohibits employers from terminating employees based only on their age.

If an employee is fired for trying to protect their legal rights, that may also qualify them for wrongful termination. For example, if someone with a disability requests a reasonable accommodation at work and they are fired, they may have been wrongfully terminated as retaliation for asserting their rights. In the case of an Indiana tennis coach who just settled a wrongful termination lawsuit against Ball State, her suit alleged that she was fired as retaliation for her sexual discrimination complaint. The university recently settled with her for $710,000.

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