August 21, 2012

Kentucky Employment Law Cases Put Ministerial Exception Doctrine to the Test

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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August 2, 2012

Alleged Kentucky Sexual Harassment Incident Included in Police Officer's Lawsuit

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.

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July 23, 2012

Alleged Workplace Discrimination at Bass Pro Shop in Indiana

43211_fishing_pole.jpgBass 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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July 17, 2012

Kentucky Sexual Harassment Case to Cost City over $250,000

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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July 4, 2012

Wrongful Termination and "At-Will" Employment in Kentucky and Indiana

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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June 29, 2012

Kentucky Commission on Human Rights Protects Kentucky Workers from Discrimination

The Kentucky Commission on Human Rights (KCHR) was founded in 1960 to help stop discrimination of people based on their race or ethnicity. When the Kentucky Civil Rights Act was passed in 1966, KCHR took on the task of enforcing this law throughout the state. This commission is similar to the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces anti-discrimination laws that prohibit employers from discriminating against employees or potential employees based on age, gender, race, religion, ethnicity, or disability. KCHR reviews complaints filed by employees to determine if they have a valid claim of discrimination, sexual harassment, or wrongful termination under state and federal employment laws.

Not all employers are governed by the Kentucky Civil Rights Act. An employer must have at least eight full-time workers for twenty or more weeks in a year for the act to apply. Federal anti-discrimination laws also may not apply to those businesses that have a small number of full-time employees. An employee must file a claim with KCHR within 180 days of the incident to have his or her claim considered.

Once a complaint is received by KCHR, an enforcement officer is assigned to the case to act as a neutral party between the employee and employer and investigate the claim. A letter is sent to the employer who has 20 days to respond with its side of the story. The officer will conduct an investigation, talking to witnesses and reviewing documentation. If he feels that discrimination most likely occurred, the case will be referred to a staff attorney. If he does not think discrimination occurred, he will recommend that the complaint be dismissed for "no probable cause." Both sides will be encouraged to conciliate the case throughout the investigation, which is similar to settling a dispute out of court. If a conciliation agreement cannot be reached, the complaint will be heard by the KCHR and a decision will be made by the commission.

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June 12, 2012

How the Proposed Pregnant Workers Fairness Act Might Affect Female Kentucky Workers

The Pregnancy Discrimination Act (PDA) was added to the Civil Rights Act of 1964 to ensure that women were not discriminated against while pregnant. The act prohibits employers from refusing to hire a woman because she is pregnant; requires an employer to treat a pregnant woman the same as someone with a different temporary disability if she is unable to work temporarily; and requires an employer to provide the same type of health insurance at the same rate as other employees.

But there are some issues that the current act does not cover, which is why legislators introduced a new bill called the Pregnant Workers Fairness Act in May 2012. This act would essentially afford pregnant women the same protections and flexibility that those with disabilities are given. Under the current act, many employers are not accommodating to pregnant women because they don't have to be. The Americans with Disabilities Act (ADA) does not cover pregnant women because they are not actually disabled, and some companies take advantage of the difference. Many cases illustrate this discrepancy. Noreen Farrell, executive director of Equal Rights Advocates (ERA) gives this example: "We see that male firefighters who throw out their backs are given desk jobs, but women who are pregnant don't get them...There is an ability to provide accommodations, but employers don't want to."

Some women don't even request an accommodation because they are afraid their boss will force them to take their paid time off guaranteed by the Family Medical Leave Act (FMLA) too soon. If a woman takes off too soon, she may end up having to take unpaid time right before and after her delivery, something many families cannot afford. Others who have asked have been ignored or fired.

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June 5, 2012

Company Settles Kentucky Sexual Harassment Lawsuit

Known as the sponsor of the 2010 World Equestrian Games at the Kentucky Horse Park in Lexington, Alltech is an international company based in Nicholasville, Kentucky that produces animal feed, a beef product, coffee and alcoholic beverages. According to a lawsuit against the company that recently settled, it also allegedly produces a hostile work environment for female employees.

A woman who worked for Alltech for about four years filed a sexual harassment lawsuit against the company in May 2011. She had allegedly been harassed by her boss for the duration of her employment. The harassment ranged from sexual calls and emails to actually being locked in a conference room and inappropriately touched by him. She also claims that other employees were sexually harassed by her boss and others, stating "The culture and leadership at Alltech created an environment which fostered and condoned acts of sexual harassment."

The employee allegedly reported the situation to her boss's supervisor who told her not to worry about it because she was a strong woman and could take care of herself. In April 2011 she went to someone who worked outside the company - an auditor - and reported what had been happening. It was announced shortly thereafter that all emails over a year old would no longer be kept, and Alltech began an investigation into the sexual harassment allegations. Her boss resigned from the company, but was kept on for special projects at the beginning of May 2011.

Then on May 17, the company stated that any employee disputes would be handled through arbitration rather than through the courts. The employee was told this new policy would cover her complaints even though she had complained before the policy was put in place. The employee did not agree with this policy and she left the company and filed a lawsuit on May 20, 2011. Alltech tried to have the lawsuit dismissed based on their new arbitration policy, but the courts said the employee had not agreed to the policy and the case was allowed to proceed. To avoid having depositions taken of their executives and other employees, the company agreed to settle the lawsuit with the Kentucky worker for an undisclosed amount.

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May 30, 2012

Would the Paycheck Fairness Act be good for Female Kentucky Workers?

Equal pay for women has been an issue for many years. In 1963, the Equal Pay Act was enacted to ensure that men and women who did the same job at the same place of business and had the same experience would receive the same amount of pay. If a discrepancy in pay was found, the lower paying employee, presumably the woman, would receive an increase in pay, rather than the man's pay being reduced. The act allowed a woman to receive up to three years in back pay, or double that amount if it was discovered that she had been willfully discriminated against in her pay. The slogan for the act was "equal pay for equal work."

People disagree on whether or not the Equal Pay Act has been affective in ensuring women receive equal pay. Those who feel it has not been affective are promoting a new bill called the Paycheck Fairness Act. This new act adds on to the Equal Pay Act in the following ways:

Clarifies what reasons are acceptable for pay differences between men and women;

allows wages to be compared within certain geographical areas to determine fairness;

makes retaliating against an employee for investigating wage differences prohibited;

increases amount and type of damages that can be requested to both compensate the employee and penalize the employer;

includes small businesses in the law rather than requiring an employer to have a larger number of employees for the law to apply;

provides funds for training EEOC staff regarding pay disputes and for educating women on how to negotiate a salary;

requires federal contractors to provide employment data regarding hiring and salaries to help the Labor Department enforce the Equal Pay Act.

Proponents of the bill say all of these factors would add up to women receiving equal pay in the workplace because it would facilitate investigating the wage gap, protect those who raise the question of unequal pay, impose stiffer penalties for pay discrimination by employers and provide training to those who need it.

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May 23, 2012

Can Protective Orders Lead to Indiana Job Discrimination and Wrongful Termination?

Employees are discriminated against for many reasons, including their age, the color of their skin, whether they are male or female and their religious beliefs. Recently an Indiana court was asked to consider whether or not an employee was discriminated against because she asked for a protective order against an abusive ex-boyfriend. While the two may seem unrelated at first, there is a definite connection.

A female employee at Pitney Bowes requested a protective order from the court to keep her abusive ex-boyfriend from having any contact with her. When it was granted, she told her employer about it. Her employer put her on paid leave for about two weeks to determine how to handle the situation. When the employee called for an update on November 1, 2011, she was told she had been fired. Her supervisors did not deny that her firing was based on the protective order; rather they said that was the exact reason she was let go. They said they had to consider the safety of their other employees.

The fired employee's attorney said he tried to negotiate with the company to get her job back, but it wasn't until a discrimination lawsuit was filed that Pitney-Bowes offered to find the Indiana employee a position in a different location. The agreement has not yet been finalized. The lawsuit claimed gender discrimination under the Civil Rights Act of 1964 because the majority of people who seek protective orders are women; so a company that discriminates against employees that request protective orders is essentially discriminating against women.

Women's advocates fear that this potential discrimination will keep abused women from filing protective orders. They may feel they have to stay in an abusive relationship to keep from losing their jobs. Fifteen states currently have laws that prevent employees from being fired for seeking legal protection from an abuser, but Indiana is not one of them. The state does have a law that compensates women with unemployment benefits if they have to quit their jobs because of an abusive or violent domestic situation. Unfortunately, the state of Kentucky does not have either of the above laws to help women who were or are in an abusive relationship and want to get out. Hopefully that will change in the near future.

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May 16, 2012

Kentucky Workers File Employment Lawsuit against Prison Company

1226064_prison_cells_2.jpgPrisons are often riddled with problems. It is a tough place to work. Most people would not even consider working for the prison system for a career. But many of those that do work hard for every penny they earn. Some Kentucky prison employees feel they are not being adequately compensated for their work.

The Marion Adjustment Center is a private prison in Kentucky. It is run by Corrections Corporation of America (CCA), which is headquartered in Nashville, Tennessee. Six current and previous employees have filed an employment lawsuit claiming they were not paid for extra hours they had to work. Oftentimes they were required to stay past the end of their shifts to wait for their replacements or to travel between prisons, both on their personal time. They were also expected to attend training sessions on their days off.

Why would an employer think asking employees to work more than the hours they were paid for would be okay? The employees in question are, or were, shift supervisors. According to the company, employees that hold this position are exempt. "Exempt" means they are not entitled to overtime. Businesses can claim that certain employees are exempt under the Fair Labor Standards Act (FLSA). The FLSA provides a list of categories of employees who could be exempt from receiving overtime pay as well as specific types of employees. Those who could be exempt range from babysitters to farm workers to executives. According to the Department of Labor's (DOL) website regarding the FLSA:

"Exemptions are narrowly construed against the employer asserting them. Consequently, employers and employees should always closely check the exact terms and conditions of an exemption in light of the employee's actual duties before assuming that the exemption might apply to the employee. The ultimate burden of supporting the actual application of an exemption rests on the employer."

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May 8, 2012

Women File Ohio and Indiana Discrimination Lawsuits after Being Fired for Wanting to Have Children

1365997_church.jpgA recent ruling by the Supreme Court has brought to light a legal issue regarding employees of religious institutions that was fairly unknown. "Ministerial exception" is a doctrine that allows religious institutions to make employment decisions without the interference of the federal government. Most employers are governed in part by several federal laws that prevent discrimination and wrongful termination based on age, race, religion, place of origin, and gender. However, those employees who work for church-affiliated organizations may find these laws do not protect them.

In some situations, ministerial exception appears to make sense. A Catholic church should not be forced to hire a Jewish rabbi to perform their services because they are not allowed to discriminate against anyone based on religion. But when it comes to employees such as administrators, school teachers, and hospital workers, when the exception should apply is unclear. In the case heard by the Supreme Court, a school teacher was terminated and she filed a discrimination lawsuit claiming she has been terminated because she had narcolepsy, a sleeping disorder. Officials at the parochial school claimed the lawsuit was invalid because she worked for a religious institution and their decision was covered by the ministerial exception. The Supreme Court agreed.

Two cases that were filed recently illustrate the need for greater definition as to whom the exception applies and to whom it does not apply. In an Indiana discrimination lawsuit, a woman claims she was fired from her teaching position at a Catholic school because she and her husband were attempting to have another child through in vitro fertilization. She had been undergoing the treatments for about a year when the church school didn't renew her 2010 teaching contract. She was told she was terminated because she had gone against the beliefs of the Catholic Church when she started the in vitro treatments and that "[t]he Diocese has clear policies requiring that teachers in its schools must, as a condition of employment, have a knowledge of and respect for the Catholic faith, and abide by the tenets of the Catholic Church as those tenets apply to that person."

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May 1, 2012

Manager of Kentucky KFC Yum! Center Files Whistleblower Lawsuit

The KFC Yum! Center was opened in Louisville, Kentucky with much fanfare in October 2010. Ted Nicholson, general manager of the arena, took part in the excitement and was set to manage the arena through numerous upcoming venues, including the NCAA Tournament this year. Then in February 2012, Harold Workman, president of the Kentucky State Fair Board (KSFB), fired him, much to the surprise of the rest of the fair board and Mr. Nicholson himself. The KSFB chairman tried to get him reinstated to his position, but was unsuccessful. The University of Louisville then hired him to oversee the NCAA Tournament, which appeared to be successful.

With the tournament over, Mr. Nicholson has focused his energy on seeking justice for his alleged wrongful termination. On April 27, 2012, he filed a whistleblower lawsuit against KSFB. A whistleblower is someone who reports a company for a variety of reasons, including illegal activities, mismanagement of funds, corruption, and health or safety violations. This information may be divulged to someone else within the company, an outside person, or law enforcement. If the company retaliates against the whistleblower in any way, including termination, the whistleblower can file a lawsuit. Whistleblowers in Kentucky are protected by federal laws as well as the Kentucky Whistleblower Act. This state act protects employees who divulge information to the proper authorities. It does not allow employees to share confidential or incorrect information, and it gives employers the right to find out what information the employee has shared. Employees who share incorrect information can face disciplinary action.

According to the lawsuit, Mr. Nicholson believes he was retaliated against after telling an outside consultant about some of the issues the arena was having and attributing them to Mr. Workman. The consultant had been hired to review the operation of the arena and Nicholson states his answers to the firm's questions were "honest and sincere." He claims that numerous unqualified employees were hired because they were acquainted with the fair board president and events that were not profitable continued to be booked. When the negative report came back from the consultant, Nicholson claims he was reprimanded by Mr. Workman and ultimately terminated because of it in February. The board president has announced his plan to retire at the end of the year.

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April 27, 2012

Kentucky Bourbon Company Sued for Sexual Harassment and Retaliation

1072868_a_double___.jpgMaker's Mark is known across the country for its ability to make bourbon in Kentucky. On April 6, the Kentucky employment law firm of Miller & Falkner filed a lawsuit against Maker's Mark on behalf of five female employees of the distillery. The complaint, filed in the U.S. District Court for the Western District of Kentucky, alleges that Maker's Mark broke numerous state and federal laws.

The female workers allege in the complaint that their troubles started before and got worse after answering a survey distributed by Maker's Mark. The survey asked employees to tell if they had ever experienced or witnessed sexual harassment or any other type of discrimination at work. The five women answered positively, and they claim they have been treated negatively since then.

Before the survey, the women say they were subjected to a hostile work environment. This situation can occur in a variety of ways, but ultimately it makes the workers feel uncomfortable enough at work that they may consider quitting. In this case the women claim that indecent exposure occurred, inappropriate birthday cards were sent, and sexual encounters were retold while they were trying to work. This type of behavior from co-workers made Maker's Mark and uncomfortable place to work for them.

The lawsuit also alleges that they were victims of sexual harassment. One type of sexual harassment occurs when someone is subjected to unwanted sexual advances or is propositioned. This is the type of harassment that the women encountered at the distillery. Discrimination based on an employee's gender was also noted by the women. They state that they were denied certain positions and were not promoted on certain occasions simply because they were women.

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April 17, 2012

Kentucky Workers Being Worked Too Hard in Warehouses

Amazon is known worldwide for its competitive pricing and efficient shipping. Based in Seattle, Washington, the company has over 70 warehouses around the world and employs a large number of Kentucky workers in its Campbellsville site. On paper, a job with Amazon looks like a great deal. They offer a decent hourly wage, 401(k) with matching and health insurance for full-time employees.

But working for the internet giant also has a down side, as some Kentucky employees have discovered. While Amazon touts its warehouse safety records as being better than the average for warehouses and even department stores, some of their actual employees may disagree. They say the number of reported injuries is kept lower by Amazon in a couple different ways. Some employees are afraid to report incidents for fear of being written up and potentially losing their job. Others are told to attribute a certain injury to a pre-existing condition even though the current injury was work-related. At least some of the Amazon warehouses have their own medical personnel to treat workplace injuries so the employees are not seen by outside doctors, which might lead to a federal report.

Extreme temperatures are also an issue in the Amazon warehouses, as they are in other facilities. But Amazon seems hesitant to allow workers to take more breaks or to work at a slower pace, even when the temperature gets very high. An Amazon warehouse in Pennsylvania was under scrutiny when it was discovered that ambulances were parked outside the building, just waiting to take workers suffering from the heat to the hospital. One Kentucky employee who used to work as a safety official was concerned about the Campbellsville employees when temperatures reached 100 degrees, but he never talked to management about slowing production because he knew it wouldn't happen. To keep employees safe in the heat, he had people walking around offering them Gatorade. Amazon did install air-conditioning in its Lexington warehouse last year, and the rest of their Kentucky facilities should have air-conditioning this year.

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