Articles Posted in New Developments in the Law

Published on:

Vanderbilt University Law School recently conducted a study examining the relationship between weight class and jobs. Minnesota Public Radio reported on the study, which showed that heavier women are more likely to work lower-compensated jobs as they gain weight. The reason for this phenomenon is not actually clear, but it is evident that perceived beauty or attractiveness is related to better pay for both sexes.

keep-the-weight-away-291512-m.jpgThe study’s author has suggested that a sixth category should be added to the prohibited discrimination under the 1964 Civil Rights Act. She believes that the research study is highly indicative of discrimination against obese people.

Current Kentucky Protections Against Discrimination
The Kentucky Civil Rights Act prohibits public employers from discriminating against employees or prospective employees based on age over 40, disability, smoking status, sex, national origin, religion, color, or race. Kentucky also has two other statutes that protect individuals from being discriminated against on the basis of their HIV or AIDS status or black lung disease.
Continue reading

Published on:

In a ruling that could endanger long-standing union practices, the United States Supreme Court determined that public employees cannot be required to join unions or pay dues in Harris v. Quinn.

u-s--supreme-court-roof-and-columns-658253-m.jpgThe case involved home health care workers who provided services to Medicaid patients under the Illinois Home Services Program. The home health care workers were represented as a whole by the SEIU Healthcare Illinois & Indiana, which entered collective bargaining agreements with the State that contained an agency fee provision. The agency fee provision required that all bargaining unit members that did not wish to join the union pay the union a fee for the cost of certain activities, such as collective bargaining and related activities. A group of home health care workers brought a lawsuit against the SEIU, claiming that the agency fee provision violated their First Amendment rights. While the district court dismissed their case, the Seventh Circuit ended up affirming parts of it, leading to a petition of the U.S. Supreme Court.

In a 5 to 4 decision, the Supreme Court found that the First Amendment prohibited the payment of agency fees by non-union members. The majority consisted of Justice Alito (who wrote the decision), Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Kennedy. They found that long-standing union concerns about “free riders” were not sufficient to overcome First Amendment issues. In particular, Justice Alito argued that except under rare circumstances, no person should be allowed to subsidize another person’s speech if he or she does not wish to do so. Although the majority did not overturn the 1977 Supreme Court decision Abood v. Detroit Board of Education, which permitted public employees to pay the costs of collective bargaining, the justices left the case on shaky ground.
Continue reading

Published on:

The United States Supreme Court recently determined that certain types of corporations could exercise religious beliefs at the expense of their employees in the long-awaited decision for Burwell v. Hobby Lobby.

u-s--supreme-court-1-1038827-m.jpgHobby Lobby concerned whether a corporation run by a family could avoid following the birth control mandate of the Affordable Care Act on the basis of the family’s religious beliefs. The birth control mandate requires all but religious entities to provide health insurance that covers the cost of all forms of birth control for their employees. The Green family, which founded the Hobby Lobby arts-and-crafts chain, claimed that the mandate violated the Religious Freedom Restoration Act of 1990. The Religious Freedom Restoration Act was passed in order to ensure that any law that burdened an individual’s religious liberty was given strict scrutiny. If the law did not meet the strict scrutiny requirement, it was nullified. The issue in Hobby Lobby was whether such a law also applied to a “closed corporation,” or a corporation in the hands of a few individuals, as opposed to ones whose shares could be publicly owned. In a 5 to 4 decision, the Supreme Court found that it did.

The majority consisted of Justice Alito (who wrote the decision), Justice Scalia, Justice Thomas, Chief Justice Roberts, and Justice Kennedy (concurring). The majority based its decision on the fact that the mandate violated the Religious Freedom Restoration Act, and did not address whether it violated the First Amendment of the Constitution. The majority claimed that their decision affected closely held corporations only, stating that they fall within the definition of “people” designated by Congress. Also, in a questionable addition, the majority claimed that the Hobby Lobby decision applied to the contraceptives mandate only – not to vaccines or blood transfusions. The decision should also not be considered a “shield” for illegal discrimination.
Continue reading

Published on:

In contract law, every agreement between parties requires “consideration,” or something of value, in order to be valid. In a recent landmark ruling, the Kentucky Supreme Court has held that employment alone is no longer sufficient consideration to justify enforcement of a non-compete agreement. This ruling could not only provide employees with more freedom of movement from employer to employer, but also potentially provide employees with more bargaining power at the outset of employment.

gavel-5-1409595-m.jpgNon-compete agreements are provisions within contracts that state an employee will not work for a competitor for a certain period of time after leaving employment with the current employer. In the case of Creech, Inc. v. Brown, it involved a non-compete agreement lasting three years. Donald Brown was hired by Creech in 1990 to provide hay and straw to horse farms in Kentucky and other states. In 2016, Creech requested that Brown sign a document entitled “Conflict of Interest,” which would prevent Brown from working for another company that directly or indirectly competed with Creech for three years if Brown left without Creech’s consent. Although Brown signed the Conflict of Interest, no one from Creech signed on the other end. Shortly after, Brown was transferred to a new position with the same salary but decreased responsibilities. In 2008, he resigned from Creech and took a position with Standlee Hay Company, Inc., a company that also provided hay and straw for farms. Creech did not oppose the move and in fact signed a partial waiver of Brown’s non-compete clause. However, after hearing rumors that Brown had contacted Creech employees, suppliers, and customers, Creech filed a lawsuit against Brown, claiming breach of contract and seeking injunctive relief. Brown, in turn, argued that he had received no consideration for the Conflict of Interest provision he signed.

The state trial court ruled that Brown’s continued employment alone was sufficient consideration and sided with Creech against Brown. Brown appealed to the Court of Appeals, and the trial court’s decision was reversed. The Court of Appeals suggested that a six-part test be applied in determining whether the non-compete clause was enforceable. However, the Court also took the view that Brown’s continued employment with Creech was sufficient consideration for the Conflict of Interest. Both parties sought a discretionary review from the Kentucky Supreme Court.
Continue reading

Published on:

In an unsurprising, yet disheartening, ruling, the United States Supreme Court held in NLRB v. Noel Canning that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were invalid because the United States Senate was still “in session.” In the broad sense, this will severely limit President Obama’s or any future president’s ability to evade a Senate filibuster and appoint individuals to fill government agency positions. In the more narrow sense, it not only invalidates President Obama’s NLRB recess appointments but also potentially the decisions those members made that affect workers across the country.

u-s--supreme-court-roof-and-columns-658253-m.jpgThe situation began back in 2012, when President Obama used the recess appointment power to appoint members to the understaffed NLRB. These members had already been nominated, but Senate Republicans refused to permit a Senate-wide vote, instead opting to filibuster the nominees. At the time, a filibuster of presidential appointments required a 60-vote threshold to overcome, a tough challenge in the sharply divided Senate. Since that time, the rule has been changed so that only a simple majority is required for approval of recess appointments. During the winter break, Senate Republicans held pro forma sessions every three days to prevent the body from truly going into recess in order to prevent President Obama recess appointments.

The Supreme Court justices were unanimous in their view that the recess appointments were not valid in this case, but they differed in terms of how they would have applied the recess appointment power correctly. The majority, consisting of Justice Breyer, Justice Kennedy, Justice Ginsburg, Justice Sotomayor, and Justice Kagan, stated that the President had the right to make recess appointments, but not when the Senate considered itself to be “in session.” The Senate had the right to determine when it was still in session. The remaining justices, Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito, agreed with the opinion, but stated that they would have gone further, banning all recess appointments except for when vacancies arose during the recess.
Continue reading

Published on:

The United States Supreme Court is expected to issue rulings this month on three cases that could have a significant impact on employment across the country, including Kentucky and Indiana.

u-s--supreme-court-1-1038827-m.jpgOne case that has been discussed on this blog, Burwell v. Hobby Lobby, involves whether a closed corporation can refuse to comply with the Affordable Care Act mandate that requires employers to provide health plans to their employees that include birth control coverage. The owners of Hobby Lobby, an Arkansas-based craft store chain, believe that all forms of birth control are “abortofacients” and that the birth control mandate imposes too great a burden on their free exercise of religion. Until this point, the only institutions exempt from the birth control mandate have been religious institutions, not private companies.

Hobby Lobby asks the question of whether corporations can have “religious beliefs,” even closed corporations. Furthermore, what does it say if the Supreme Court allows private employers to always exercise their religious beliefs at the expense of their employees’ beliefs? Is it fair for an employer’s freedom of religion to outweigh the employee’s?
Continue reading

Published on:

A recent problem in Illinois with employment and medical marijuana could foreshadow problems for Kentucky, which has its own medical marijuana legislation pending.

dutch-weed-2-jpg-1206038-m.jpgIllinois’s new medical marijuana law, which took effect this past January, protects patients from being arrested or prosecuted for using marijuana for medical purposes. However, it does not prohibit employers with zero tolerance policies from terminating employees found to use medical marijuana.

It is unknown how many employees could be affected, but one concern is that in states with medical marijuana laws that are less restrictive — such as California, Oregon, and Washington — the courts have sided with employers when employees have sued over the law. While Illinois’s new law protects employees from being disciplined by employers solely for acknowledging that they have a medical marijuana card, it offers no protection against other strict measures. Companies with government contracts are even more likely to have zero tolerance policies than other companies because the federal government requires such policies.
Continue reading

Published on:

This month, President Obama issued an executive order that would increase the minimum wage for federal contract employees from the current $7.25 per hour to $10.10 per hour beginning next year. While the number of employees affected is small, the gesture could have wider implications across the United States, including in Kentucky and Indiana.

million-buck-cheque-1-531970-m.jpgPresident Obama first announced the executive order during his State of the Union address in January. When he signed the order, he did so surrounded by employees who could possibly benefit. Even so, both the President and supporters of the executive order acknowledged that the number of employees it would help was just a drop in the bucket compared to the number of employees who were not earning sufficient income despite working full time. The executive order would apply only to a small percentage of the two million federal contractors across the country.

However, both President Obama and supporters of the executive order hope that it creates momentum both in the states and in Congress to raise the minimum wage. President Obama pressed Congress to pass legislation that would raise the minimum wage for all workers, calling it “the right thing to do.” That said, Congress has shown little willingness to pass minimum wage legislation, though the President and allies are working on strategies to convince both houses.
Continue reading

Published on:

The United States Supreme Court recently agreed to hear the case concerning whether corporate employers are required to provide free birth control, as mandated by the Affordable Care Act (ACA), even if their “consciences” do not support it. While religious institutions and non-profits are exempt from this provision, this case will test whether private corporations are “people” enough to have religious convictions that trump the needs of their employees. Oral arguments are expected to take place in March 2014.

cross-with-shadow-1-1356536-m.jpgThe Supreme Court agreed to hear the argument after the Circuit Courts of Appeal offered split decisions on the issue — including the Seventh Circuit in early November. In Korte v. Sebelius, a two-judge majority found that small, closely held corporations were “people” within the meaning of the Religious Freedom Restoration Act and were entitled to assert that the mandate substantially interfered with their rights.

The case involved two Catholic families with closely held corporations, one a construction company in Illinois and the other a manufacturing company in Indiana that produces automobile safety systems. Although the companies are both secular and devoted to earning profit, the Seventh Circuit still noted that they operated according to their owners’ Catholic beliefs. Therefore, the owners should not have to condone “abortion, sterilization, and the use of abortifacient drugs and artificial means of conception.”
Continue reading

Published on:

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.
Continue reading