Kentucky Employment Lawyer Blog

The Worker Adjustment and Retraining Notification Act (WARN) is a federal law that was passed in 1988 and became effective in 1989. According to the Department of Labor, the act "protects workers, their families, and communities by requiring most employers with 100 or more employees to provide notification 60 calendar days in advance of plant closings and mass layoffs." While this quote gives a general description of what the act does, more information is needed to understand which employers are required to follow the WARN Act and which employees may benefit from its protection.

As the quote says, a company must employ at least 100 workers for the WARN Act to apply. All 100 workers must have been employed by the company for at least six months and average at least 20 work hours per week. For example, a company that employs 65 people year-round and hires another 40 seasonal workers for three months would not be governed by the WARN Act.

Even companies that have 100 qualifying employees may be exempt in certain circumstances. If a company is trying to find investors to help keep the company afloat, and giving a 60-day notice to its employees would hinder this activity, the company may not be required to give the notice. If Mother Nature causes the company to be shut down due to a disaster such as a tornado, hurricane, or flood, the notice is not required because the closure could not be anticipated. In a similar vein, if a company suddenly loses a main source of income because of a cancelled contract or other unforeseeable issue, a 60-day notice may not be possible. In these cases, the companies are still required to provide notice of the layoffs or closure as soon as possible, and they must provide a viable reason why the full 60-day notice could not be given.

The next part of the act to consider is which employees are covered. In general, anyone working for a company that fits the criteria above would be covered, including salaried and hourly employees, managers and supervisors. There are exceptions though. Anyone working for a branch of the government - federal, state, or local - is exempt. Those who have accepted a position knowing it is temporary and those who are hired as self-employed contractors do not qualify. Individuals who are involved in a labor dispute lock-out or who participate in a strike are also not entitled to the 60-day notice.

Continue reading "How the Worker Adjustment and Retraining Notification Act affects Kentucky Workers" »

In 2003, Gloria Garcia's employment as a school secretary was terminated by the principal of a school in the Mission school district. She had been employed by the school for 17 years and was 48 years old. In a regular story about age discrimination, the next bit of information would be how much younger her replacement was. But this case is unusual in that Ms. Garcia's replacement was actually three years older.

The school district has tried twice to have the case thrown out, partly because they claim schools cannot be sued for discrimination, and partly because age appears to be a non-issue in the firing of Ms. Garcia since her replacement was older. The school appeals took so much time that Ms. Garcia will not get to personally hear the final verdict in the case because she passed away in 2010. But the decision will still be important to other employees who are over 40, including two women who were let go by the same school district.

Ms. Garcia's attorney contends that the school district can definitely be sued for discrimination because it is regulated by individuals elected in to office, it runs on money collected from taxpayers, and it provides a public service. She also explains how an age discrimination claim could be valid when the new employee is older than the one terminated. One scenario would be that the supervisor responsible for the firing did not hire the replacement. So in this case it is possible that the principal had an issue with Ms. Garcia's age and wrongfully terminated her, but it was left up to human resources to find a replacement, which they did. The individual just happened to be older. Another possibility brought up by one of the chief justices reviewing the case is that an attorney for the school district realized they could be in trouble for firing Ms. Garcia based on her age, so he recommended that she be replaced by an older person.

These questions could be answered through depositions and documents, if the school system would stop filing appeals so discovery could continue. Ms. Garcia's attorney admits that if it is proven that the same principal that fired Ms. Garcia also hired her older replacement, then she would most likely no longer have a case. But for now, the questions still remain.

Continue reading "Can You Claim Age Discrimination if Your Replacement is Older than You?" »

In an attempt to make the city of Louisville, Kentucky greener and save money, officials announced in September 2009 that Metro would implement more energy-efficient measures. Eric Garrett, a Public Works employee was involved in the effort, writing hundreds of work orders for updating or replacing equipment. Upon noticing that some of the recommended work was not being done, Mr. Garrett contacted Louisville's government ethics tip line and Councilman Hal Heiner in 2010. About two weeks later, he was suspended from work, initially for three days, then indefinitely, because a co-worker had supposedly filed a complaint against him.

Mr. Garrett felt that the suspension coming so soon after his reporting of alleged mismanagement by the department was more than coincidence. The attorney he hired agreed, and he filed a whistleblower retaliation suit on Mr. Garrett's behalf. The state of Kentucky has a whistleblower law that pertains to employees of the state and its "political subdivisions." A 2010 Kentucky Supreme Court case decided that city governments are "political subdivisions," so Mr. Garrett would be covered under this law. The law prohibits employers from retaliating against employees that report inappropriate behavior to the proper authorities. In this case, Metro Public Works allegedly retaliated against Mr. Garrett by suspending him supposedly for another reason no more than two weeks after he reported what he felt was mismanagement by them. The law also states that employees are not required to notify their employers that they intend to make a report. The law does not allow employees to make false accusations or divulge confidential corporate information. If this occurs, legal action can be taken by the employer.

The city of Louisville investigated the complaint against Mr. Garrett and determined there was not enough evidence to show he did anything wrong. Mr. Garrett was given back pay and benefits for the time he was suspended. He was also allowed to go back to work, but was told he would have to submit to a psychiatric evaluation to confirm he was fit to return. His attorney fought the evaluation requirement and won, stating his client had been suspended, not on medical leave. Mr. Garrett returned to work, but the whistleblower suit remained.

Continue reading "Louisville, Kentucky Employee Settles Whistleblower Suit" »

Former Harrodsburg, Kentucky Police Chief, Rodney Harlow, was terminated by the city commission at the end of 2011. Mr. Harlow filed a wrongful termination lawsuit against the city's mayor and commissioners. He also filed a motion for temporary injunction, which the judge denied earlier this week. The temporary injunction would have allowed Mr. Harlow to maintain his position as police chief during the litigation, but because of the judge's denial, he has been removed, pending the outcome of the suit.

Mr. Harlow's lawsuit is based largely on a Kentucky state law called the policeman's bill of rights. This law requires officers to be notified of complaints and entitles them to a hearing and an opportunity to appeal a termination related to a specific charge. Allegedly, complaints were made to a couple of the commissioners, but the information was never relayed to Mr. Harlow, so he was never given the opportunity to respond to them. Counsel for the city contends that Mr. Harlow was not covered by this law because he was a part-time employee and the law only applies to full-time employees. Mr. Harlow's attorney believes he is covered because the law pertains to any police department that receives assistance from the Kentucky Law Enforcement Foundation Program, which Harrodsburg does. Also, several employees have stated that Mr. Harlow worked 40-60 hours per week, which constitutes full-time hours.

Both compensatory and punitive damages have been requested in the lawsuit. Compensatory damages cover losses not associated with pay. In Mr. Harlow's case the compensatory damages are being sought for the negative effects this firing may have on his professional reputation. Punitive damages are meant to punish the defendants and hopefully deter them from acting in the same manner in the future. Punitive damages can only be awarded if it is determined the defendants acted maliciously, which Mr. Harlow alleges both the mayor and the commissioners did in this case. He is also seeking lost wages and wishes to be reinstated to his position as police chief.

Continue reading "Kentucky Police Chief Pursuing Wrongful Termination Lawsuit" »

Two women formerly employed by the city of Corydon in Kentucky, Gloria Mills and Jenna Kavanaugh, have filed a whistleblower suit against the city and its mayor, Larry Thurby. The suit alleges that they were wrongfully terminated for questioning some discrepancies they found in the city's accounting. When they brought the matter to Mayor Thurby's attention, he allegedly told them to keep quiet about what they had found. Neither of the women felt comfortable with keeping the information to themselves, so they notified Kentucky State Police who investigated the matter. Both women were terminated in July, supposedly for claiming they worked more hours than they did.

A state auditor's report in February showed that $81,000 of city money was missing. The Corydon city sewer clerk was terminated and indicted in September for theft of over $10,000. She faces up to five to ten years in prison if convicted. It would appear that Ms. Mills' and Ms. Kavanaugh's feelings that something illegal was occurring were accurate.

The Kentucky Whistleblower Act is labeled as KRS 61.102 and states "No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of...any...appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety. No employer shall require any employee to give notice prior to making such a report, disclosure, or divulgence."

What this means is that an employee should be able to report to an appropriate party anything that seems illegal or dangerous at the place of employment without the threat of being fired or somehow retaliated against by the employer. The act goes on to say that it does not allow employees to leave their place of employment during work without following the proper protocol and that employers still have the right to request information regarding what the employees have reported. Employees that knowingly report false or confidential information can face disciplinary action from their employer.

Continue reading "Whistle-blowing Case filed by Two Terminated Employees in Kentucky" »

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.

• 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" »

In previous articles, various forms of employment discrimination that are covered under Title VII of the Civil Rights Act of 1964 have been discussed. One that has not been covered is disability discrimination. The Americans with Disabilities Act of 1990 (ADA) was also enacted to protect employees and potential employees from discrimination based on a physical or mental disability. Employers with more than 15 employees are required to give potential employees with disabilities the same opportunity to obtain a position as those without a disability. Once employed with a company, disabled employees should enjoy the same benefits, such as equal pay, opportunities for advancement, and job selection. They should feel welcome at work and have certain accommodations made to enable them to do the job if necessary.

These laws do not mean that a disabled individual has to be considered for every type of position. If a disability would put the employee, co-workers or the general public in harm's way, he or she is not entitled to the same consideration. The individual must also have the qualifications, experience and skills necessary for the job.

In a Kentucky disability discrimination case last year, an employee at a Waffle House in Mount Vernon was wrongfully terminated after she informed her employer she had Hepatitis C. The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against the owner of the Waffle House and reached a settlement out of court. The settlement included back pay for the terminated employee and required the employer to provide anti-discrimination training and to refrain from future discrimination or retaliation.

More recent cases involve individuals who were discriminated against because of their diabetes. In August of this year, the EEOC filed a lawsuit on behalf of Pamela Manning, an employee of Kohl's , who had diabetes. Ms. Manning's set work schedule suddenly changed to an irregular one. She began suffering from complications from her diabetes because of the irregular schedule and asked to be returned to a set schedule. Kohl's refused, even after seeing a note from Ms. Manning's doctor. Because of her health, she was forced to quit. According to the EEOC press release, the suit "seeks monetary relief for Manning, the adoption of strong policies and procedures to remedy and prevent disability discrimination by Kohl's, training on discrimination for its managers and employees, and more." An 18-year employee of Walgreens who had diabetes was fired in California because she ate a bag of chips when she felt her sugar levels dropping. She paid for the chips as soon as she was able, but was still terminated. According to the ADA, employers are required to make reasonable accommodations for those with disabilities, and allowing an employee to eat a bag chips to avoid a medical emergency would seem like a "reasonable accommodation."

Continue reading "Disability Discrimination in the Workplace Leads to Termination, Hostile Work Environment" »

The Family Medical Leave Act (FMLA) was enacted in 1993 to allow employees to take time off work without pay for certain family or medical reasons. In order to qualify for FMLA, an employee has to have worked for the employer for 12 months over the previous seven years, and worked 1250 hours during the last 12 months. Employers that have fewer than 50 employees who have worked 20 weeks during the last year are not required to provide leave under this act. According to the Department of Labor website, qualified employees are eligible for 12 weeks of unpaid leave for the following reasons:

• for the birth and care of a newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for a spouse, son, daughter, or parent with a serious health condition;
• to take medical leave when the employee is unable to work because of a serious health condition; or
• for qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

An additional 12 weeks of leave are available to certain relatives of injured service members.

FMLA pertains to several different types of situations, as shown by recent cases in the news. In Southern California, an executive chef for a country club went into septic shock after surgery and was in a medically induced coma for two months. While he was ill, the country club replaced him with another chef. Under FMLA, the country club was required to keep his job for him until he returned. Late last week, the U.S. District Court agreed with Mr. Caupain, the chef, and granted summary judgment in his favor. This means the case will move forward to the damages phase without a trial to determine if Mr. Caupin was wrongfully terminated under FMLA. The trial to determine damages is scheduled for January 2012.

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