Kentucky Employment Law Notes

Labor-Management Conference to remain at Kentucky Dam Village State Resort Park

Press Release:
FRANKFORT, Ky. (June 16, 2006) – The board of directors of the Kentucky Labor-Management Conference voted unanimously today to hold the 2006 meeting at Kentucky Dam Village State Resort Park. The vote reverses a decision by the board last week to move this year’s conference to northern Kentucky.

The 12-member board, appointed by the secretaries of the Environmental and Public Protection Cabinet and the Economic Development Cabinet, made the change after a lengthy discussion of several issues. “Since our meeting last week, members of the board have received comments from labor and management leaders across the state regarding moving the conference,” said Michael Donta, the labor co-chair of the board. “The vote reflects some of the comments we have received.”  The board discussed facilities required for the conference and the date the facilities in northern Kentucky were available. Traditionally held in September, the 2006 conference would have been moved to October based on the availability of meeting space.  “We have decided to survey the attendees of this year’s conference as well as our constituents to receive input on future regional conferences and the annual conference,” said Tim Mosher, the management co-chair of the board.

The 2006 conference will be held September 12-14.

The board is composed of six labor representatives and six management representatives and receives administrative support from both cabinets.

NLRB GC Issues Report on Case Developments January - March, 2006

NLRB General Counsel Meisburg has released an update memo of sorts.  Interesting if you practice labor law.  Click here.

Judge Russell denies motion to alter summary judgment

In April, Judge Russell (W.D.Ky.) dismissed the plaintiff's age discrimination claim in Conner v. State Farm.  The decision can be found on my prior post here.  Conner had claimed she was not selected for a position because of her age.  State Farm produced interview scoring sheets establishing that the successful candidates had higher scores. Judge Russell found there was insufficient evidence to overcome the scoring sheets.  Yesterday J. Russell stuck by his decision and denied Conner's motion to alter the judgment.  That decision can be read by clickng:Download Conner0606.pdf.  It was not all smiles for the defendant, however.  In a separate decision, J. Russell awarded the plaintiff $8,860 in attorney's fees as a sanction for Defendant failing to initially disclose the scoring sheets.  That decision can be read by clicking: Download Connerfee0606.pdf.  Interesting to note that J. Russell found $200/hr. to be a reasonable fee.

6th Circuit affirms DOL backpay award

Yesterday in Chao v. Akron Insulation & Supply (unpublished), the 6th Circuit affirmed a district court judgment in favor of the DOL finding the employer owed $94,000 to employees for back pay and overtime.  The case is a good primer (or at least refresher) on the issue of what is "work time."  The case should be a wake up call for any employer that requires its employees to be present for instruction prior to an official start time.  The case is also a good reminder on the importance of keeping accurate "hours of work" records -- not just for compliance, but also to aid in the defense of a back-pay claim.

Post-Script --  On generally the same topic, see today's DOL announcement, "Sterling Jewelers Agrees to Pay $1.29 Million in Back Wages to 16,820 Workers in 41 States"

Unemployment benefits for employee who didn't mean to inhale

Last week in KBR Technical Services, Inc. v. K.U.I.C. (unpublished), the Ky. COA affirmed the Hardin Circuit Court's Order affirming the award of unemployment benefits to a former KBR employee.  The employee was terminated after he tested positive for marijuana during a random drug test.  KBR had a policy prohibiting employees from, among other things, being under the influence of prohibited drugs.  At the UI Referee hearing the employee "testified that he had been assaulted by two acquaintances the day before the random drug test.  The two men held him down and blew marijuana smoke into his mouth."

The Referee didn't buy the story, but -- ultimately -- the UI Commission did.  The UI found that the employee had not knowingly violated the anti-drug policy and did not commit misconduct.  On appeal to the Hardin Circuit Court, and ultimately the COA, KBR argued that "a specific intent to violate an employer's policy is not necessary to establish a knowing violation sufficient to constitute misconduct."  Basically, KBR was arguing that, even if you believe he didn't mean to inhale the pot smoke, he did, and when he reported to work the next day he was "under the influence" -- as defined by the policy -- and thereby intentionally violated the policy.

Neither the Hardin Circuit Court nor the COA agreed with KBR.  The COA cited, repeatedly, that UI laws are to be construed in a manner to grant, not deny, benefits. The COA stated,

"for purposes of determining whether an individual is eligible to receive unemployment benefits, the entire circumstances surrounding the violation must be reviewed.  Under the unique circumstances surrounding the violation in this case, it is clear that [the employee] did not willfully disregard KBR's drug policy, in that he had marijuana in his system through no fault of his own.  Furthermore, there is no evidence that [the employee] knew he would fail the random drug test or that he still had a measurable amount of marijuana in his system when he reported to work."

Dicta Alert:  Note that KRS 341.370(6) provides that a discharge for "reporting to work under the influence of alcohol or drugs" is a discharge for misconduct.  On appeal KBR raised this statutory issue. The COA held that the issue was not preserved below, and therefore did not need to decide this case on that issue.  BUT -- the COA stated in dicta that "being under the influence" requires proof of impairment.  I.e. having trace amounts of dope in your system does not mean you are "under the influence" provided you are not impaired.

First Step Back

I'm not the first to make this observation, but "blogging" or "posting" or whatever you call it is a lot like exercising in that it comes and goes in cycles.  I just went through my first long "dry" cycle where I just could not get around to posting due to work, weather, family, apathy, etc.  In any event, this is my first day back in the gym, as it were.  I'll keep it light.  Below are posts to various recent Kentucky Federal District Court cases. 
Download Burkhart052606.pdf -- discusses a variety of claims.
Download Calloway0506.pdf    --  ADA / retaliation / "privacy"
Download holmes0506.pdf  -- "employer" status under KRS 344 / number of employees in Ky.
Download Kroger0506.pdf  -- Boys' Market injunction
Download Rose51606.pdf -- variety of claims; appears related to Burkhart, supra
Download wheatley0506.pdf -- KRS 344 age & disability / FMLA