Kentucky Employment Lawyer Blog

As the Indiana legislature enters its final session for 2011, Republicans vowed to make their "right-to-work" bill the main focus of the session. This topic is very controversial and caused Democrats to leave the state for five weeks earlier this year to avoid voting on the issue. Both parties have differing views on whether or not it would be beneficial to Indiana employees to have their state become the twenty-third "right-to-work" state.

"Right-to-work" laws are passed on a state-per-state basis and allow individuals to be employed by a company that has union workers without joining the union. Members can opt out of paying membership dues but still reap the benefits of being part of a union. This option was given to each state in the U.S. by a portion the Taft-Hartley Act that essentially gives the states the power to decide whether employers can require employees to financially support the union. Non "right-to-work" states, such as Kentucky and Indiana can have so-called "union shops," or companies that require their employees to be union members and pay dues. Recently hired employees that are not union members have a set period of time to become members; otherwise they may forfeit their employment.

Supporters of the legislation believe potential Indiana jobs are being lost because employers prefer basing their businesses in "right-to-work" states that give employees the choice of joining unions. Gov. Mitch Daniels stated "We miss about a third of the opportunities because businesses want a state where this protection is provided to workers. In this tough economy, the state needs every edge it can get." Some employees object to paying dues to a union that may support political agendas that conflict with their own personal political beliefs. Others may not wish to join a union for personal reasons. In non "right-to-work" states, potential employees are denied this choice if they consider jobs at companies that require union membership and union financial support.

Opponents of "right-to-work" laws often call them "right-to-work-for-less" laws because they feel a union is weakened when all employees are not required to participate or contribute. Employees that do not pay dues are still allowed to use union services, including legal representation, which many feel takes away money that should be used to represent dues-paying union members seeking higher wages and improved workplace safety.

Continue reading "How Passage of a "Right-to-Work" Bill Would Affect Indiana Employees" »

On November 16, 2011 the Equal Employment Opportunity Commission (EEOC) approved proposed changes to the 1967 Age Discrimination in Employment Act (ADEA), which protects employees over the age of 40. The proposed changes will now be sent to the Office of Management and Budget (OMB) at the White House. If the OMB approves the changes, they will be returned to the EEOC for final approval. The proposed changes are in response to recent Supreme Court cases regarding disparate impact claims and "reasonable factors other than age" (RFOA) defenses.

Disparate impact occurs when an employer's actions affect a protected class inadvertently. These claims frequently arise from staff-reduction cuts or the implementation of new compensation programs. While the discrimination is not intentional, a protected group is negatively affected by the decision. In response to disparate impact claims related to age, employers often use the "reasonable factors other than age" defense, stating the changes made were not based on age, but were made for other reasons. In this proposed amendment, the EEOC gives guidelines regarding whether or not a factor is reasonable and if the factor was based on something other than age.

To test reasonableness, the EEOC lists the following factors:

• whether the employment practice and the manner of its implementation are common business practices;
• the extent to which the factor is related to the employer's stated business goal;
• the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
• the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
• the severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
• whether other options were available and the reasons the employer selected the option it did.

Whether or not a decision was based on something other than age can be checked by the following:

• the extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;
• the extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
• the extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

Continue reading "Proposed Changes to Age Discrimination Law Approved by EEOC" »

They may be, according to the U.S. Supreme Court. In September, 2002, Miriam Regalado filed a complaint with the Equal Employment Opportunity Commission (EEOC) against North American Stainless that alleged sex discrimination by her superiors. At the time the complaint was filed, Ms. Regalado's fiancé, Eric Thompson, was also employed by North American Stainless. About three weeks after North American Stainless received notice of Ms. Regalado's complaint from the EEOC, Mr. Thompson was fired.

Subsequently Mr. Thompson filed his own complaint with the EEOC alleging the company was retaliating against him for Ms. Regalado's claim, which he asserted is illegal under Title VII of the Discrimination in Employment Act of 1967. Title VII states that an employer cannot retaliate against an employee who has filed a discrimination claim by terminating his employment. Mr. Thompson's complaint was dismissed by the U.S. District Court for the Eastern District of Kentucky on the grounds that he was not protected by Title VII since he did not file the initial discrimination claim. The decision was upheld by the U.S. Court of Appeals for the Sixth Circuit.

The case was sent to the U.S. Supreme Court, which overturned the lower courts' decision. The court used a "zone of interest" test to determine if Mr. Thompson had a right to file a claim under Title VII. Per the syllabus of the opinion of the Supreme Court:
"Applying that test here, Thompson falls within the zone of interests protected by Title VII. He was an employee of NAS, and Title VII's purpose is to protect employees from their employers' unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation. Hurting him was the unlawful act by which NAS punished Regalado. Thus, Thompson is a person aggrieved with standing to sue under Title VII."

Continue reading "Are Friends and Relatives Protected by Anti-Discrimination Laws in the Workplace?" »

Adolescent bullying is a hot topic right now, and includes face-to-face interactions as well as online activity. Unfortunately for some, the bullying doesn't end in their teenage years. Recent polls have shown that over 30 percent of working adults feel they have been bullied at work. No one knows for sure why people become bullies. Perhaps they were bullied themselves or they feel insecure. Some research with brain scans has shown that bullies derive pleasure from seeing someone else being hurt. Workplace bullying can include verbal, physical or emotional abuse by an employer or a co-worker.

While workplace bullying has been occurring for years, it is only recently that action has been taken to begin protecting employees both from their superiors and their co-workers. Several movements, including The Healthy Workplace Campaign, have been created to encourage legislators to take action against workplace bullying. Some forms of bullying are covered by current anti-discrimination laws. If an individual is being bullied based on his race, gender, or religious beliefs, he can take legal action under existing laws. However, if the person being bullied is not in a protected class, or if the bully is in the same protected class as the victim, filing a lawsuit becomes much more difficult.

Since 2003, 21 states have introduced workplace bullying legislation. As of today, none of the bills have become law. This legislation differs from anti-discrimination laws. It would cover all individuals, not just those in a protected class; it would make companies liable for bullying being done by co-workers, not just superiors; and it would pertain to companies of any size.

Companies are concerned that this type of legislation could lead to an enormous number of lawsuits, some legitimate, but others frivolous. Some employees may file claims simply because they were disciplined, or because they were unhappy with a review. The proposed bill in New York hopes to curb some of the unnecessary lawsuits by making employers not liable if the proper bullying prevention and correction techniques are in place. Another way a company can protect itself is to try to identify and turn away potential bullies when interviewing job applicants.

Continue reading "Bullying in Places of Employment Prompts New Legislation" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

Other changes made to the ADA include:

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

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