October 31, 2010

Olan Mills Pays $3 Million in FLSA Claim

A Tennessee federal court judge approved a $3 million class action settlement agreed to by Olan Mills Inc. and its employees.


The 18 class representatives worked for Olan Mills in Tennessee, California, Florida, North Carolina, Georgia, Florida and Michigan. Most of the class members were employed as studio photographers and paid on an hourly as opposed to a salary. The claimed that Olan Mills required them to work off the clock including before their shifts and after their shifts. In addition, the employees claim that the company failed to pay overtime, failed to allow employees rest and meal breaks, and failed to reimburse employees for expenses. These violations allegedly occurred between 2003 and 2009.

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October 5, 2010

Danville Settles Wrongful Demotion Case

The City of Danville, in central Kentucky settled a lawsuit with its former chief financial officer, reports the Lexington Herald Leader.

The plaintiff, Spencer Rodgers, alleged that he was demoted after an investigation of mishandling of city finances in 2007. The lawsuit was filed in Boyle Circuit Court in October 2008.

The City has agreed to pay Rodgers a total of $125,000, with $75,000 coming from city funds and an additional $50,000 from the city's insurer. In addition, Rodgers will continue as IT technician for six weeks and will receive letters of reference.
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If you have also been demoted or fired because you participated in an investigation, you should contact an Kentucky attorney to find out if you have a case.

September 30, 2010

Kentucky Court of Appeals Reviews Wage Case

Earlier this month, in the unpublished decision of Sparks v. Wal-Mart Stores Inc., the Court of Appeals of Kentucky, affirmed a jury verdict dismissing a former Wal-Mart employee's claims for unpaid wages.

The plaintiff, Sparks, worked as a pharmacist for Wal-Mart from June 1992 through December 2008. He was compensated based on a forty-five hour workweek, or ninety hours each two weeks. In 2006, he sued Wal-Mart alleging that they owed him nearly $30,000.00 in unpaid wages. He made additional claims for retaliation for filing a complaint with the Kentucky Department of Labor.

According to Sparks, Wal-Mart had paid him for only eighty-five hours each two weeks from November 2000 and September 2005. His manager realized the error and started paying Sparks 90 hours biweekly in 2005, but did not retroactively pay the difference in wages. Sparks filed suit for the five hours of unpaid wages during the November 2000 through September 2005 pay periods.

Sparks claimed that the common law theory of equitable estoppel prevented the megastore from now denying him the additional five hours of pay biweekly. Reviewing the elements of equitable estoppel, the court held that Sparks had not proved Wal-Mart had "knowledge, actual or constructive, of the real facts."

The court also reviewed several evidentiary rulings from the lower court and found in favor of Wal-Mart.

If you believe your employer has failed to properly pay you overtime pay or wages, you should speak to a wage and hour attorney.

September 27, 2010

Justice Department to Investigate Sexual Harassment Claims in Kentucky

The Justice Department announced that it will investigate sexual harassment claims brought by three former secretaries of the probation office. These women are represented by Miller & Falkner trial attorney, Charles Miller.

The law suit, filed in September 2009 in the U.S. District Court in New Albany, alleges that the plaintiffs' were sexually harassed by Gary Collins, a Chief Probation Officer. According to the pleadings, Collins subjected the women to inappropriate sexual comments, leered at their breasts, and sent them inappropriate emails.

Collins has previously been accused of sexual harassment. In 2002, a law suit, also filed in the U.S. District Court, alleging similar facts was settled out of court for a confidential sum.

It is significant that the Department decided to engage in its own investigation. While the Justice Department ill look into claims of employment discrimination and harassment, it will typically only conduct its own investigation when the allegations are serious.

To read more about this interesting case, see the Courier Journal who reported this Kentucky discrimination case.

September 17, 2010

Employment Lawyer Appointed To Appellate Court

Employment lawyer, Jane Branstetter Stranch, has been appointed to the U.S. Court of Appeals for the Sixth Circuit. Ms. Stranch was appointed by President Obama to be a member of the Sixth Circuit in August 2009 and was affirmed by the U.S. Senate this week. The Sixth Circuit hears cases appealed from U.S. District Court in Kentucky, Tennessee, Michigan and Ohio.

Stranch worked primarily at Branstetter, Stranch & Jennings law firm, which was founded by her father. She specializing in complex labor and employment litigation. The date for her swearing in ceremony has not been set.

September 5, 2010

Seventh Circuit Decides Race Discrimination Case

Indiana employment lawyers are pleased with the July 20, 2010 Seventh Circuit Decision reversed the District Court's decision in favor of a healthcare facility which was honoring the racially motivated preferences of residents.

The case, Chaney v. Plainfield Healthcare Center, reviewed the summary judgment motion granted by the trial court. According to the decision Chaney alleged that she was 1) prohibited from providing assistance to nursing home residents who requested "white-only" care, 2) subjected to comments by coworkers including the use of racial slurs and profanity, and 3) subjected to a suspicious and unexplained termination.

The defendant argued that it needed to adhere to the patients' requests to not be assisted by African-American CNAs, that catering to these requests amounted to a bona fide occupational qualification. The Seventh Circuit, however, did not agree.

Instead, the Court held that law does not support race as bona fide occupational qualification. The Court reversed, returning the case to the lower court for further proceedings.

If you have been a victim of discrimination in the work place, or subjected to discriminatory comments by your coworkers, you should contact an discrimination attorney as soon as possible to learn more about you rights.

September 2, 2010

EEOC Releases New Work Force Report

Kentucky employment lawyers are interested to read the Equal Employment Opportunity Commission released its Work Force Report on July 26, 2010. This report reviews work statistics about the federal workforce.

Some of their findings included some slight changes to the work force over the last ten years. A few of these changes included:

  • The number of women in the federal work force increased from 42.3% to 44.06%

  • The number of Hispanic/Latinos in the federal work force rose from 6.81% to 7.9%

  • The number of Asian Americans in the federal work force rose from 5.22 to 5.84%

  • Also, the total number of people in the federal workforce increased by 15.09%

What is particularly striking about the report is that 16,947 complaints were filed with the EEOC in the 2009 fiscal year. Of those complaints, in only 2.98% of the cases did the EEOC investigations result in findings of discrimination. At the same time, approximately 21% of the complaints resolved in early settlements.

If you are a federal employee who feels that you have been treated unfairly, you should contact an experienced attorney to learn more about your rights.

August 27, 2010

Wal-Mart Asks the United States Supreme Court to Review Class Action

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Employment lawyers across the country, including Kentucky and Indiana, are waiting to learn whether the Supreme Court will review a 9th Circuit decision upholding a class action of approximately 1.5 millon female employees of Wal-Mart from across the country. Attorneys for the women argue that Wal-Mart engaged in a pattern of discriminatory treatment against women including paying women less than men and promoting women less frequently than men.

The trial court granted certification of this huge class, including millions of current and former Wal-Mart employees across the country. Certifying the class is the first step in a class action lawsuit. The certification process involves a judge determining, essentially, if the class members are vast in number and have similar grievances.

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August 22, 2010

Proposed Legislation Could Change Minimum Wage for Home Healthcare Workers

Wage and hour attorneys are pleased with the proposed legislation by California Representative Linda Sanchez which will give more protection to home healthcare workers across the country, including Indiana and Kentucky.
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Direct care workers are not currently covered by the Fair Labor Standards Act, the federal statutes which regulates the wages and hours of workers. Currently, "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" is considered exempt from the law. The addition to the law, known as the Direct Care Workforce Empowerment Act will require workers to be paid at least minimum wage and overtime if they work at least twenty hours per week.

According to the Bureau of Labor Statistics, this is a very fast growing industry likely due to the rising numbers of Baby Boomers soon to be in need of in-home care.

If you believe that you have not been paid the required minimum wage or overtime, you should contact a wage and hour attorney to learn more about what remedies you have under the FLSA as well as Kentucky and Indiana law.

July 28, 2010

U.S. Department of Labor Provides Guidelines for Nursing Mothers

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. 947420_our_precious_baby_girl.jpg

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.

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July 22, 2010

Kentucky Case to Be Heard by US Supreme Court

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.

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July 13, 2010

Dept. of Labor Clarifies the Definition of In Loco Parentis for FMLA Leave?

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. ยง2612(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.

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July 1, 2010

United States Supreme Court Reviews Privacy In the Workplace

1038827_u_s__supreme_court_1.jpgLast 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.

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September 4, 2009

Louisville Kentucky Firefighters Entitled to Back Pay

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.

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July 24, 2009

Kentucky and Indiana Employees to See a Rise in the Minimum Wage

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.