Kentucky Employment Law Notes

Discharged Plaintiff Failed To Prove Public Policy Requiring Cooperation With Law Enforcement

Today in Maiden v. North American Stainless, L.P., the 6th Circuit upheld Judge Hood's previous dismissal of Maiden's wrongful termination claim.  Maiden was an at-will employee.  To support his wrongful termination claim, therefore, he needed to point to a well defined public policy to which his charge would have been contrary.  He claimed that his discharge "was substantially motivated by retaliation ... for [his] having lawfully cooperated with the Sheriff in recovery of the stolen property." That is, he alleged that there is a public policy requiring cooperation with law enforcement.  But he could not prove the existence of that policy.  As the 6th Circuit stated, "Maiden failed to identify any fundamental and well-defined public policy as evidenced by existing law requiring that Kentuckians cooperate with law enforcement."  The court did not say that such a policy does not exist.  It just said that Maiden did not prove it in this case.  All in all, a good case for employers.  But I would certainly still be cautious about discharging an employee for cooperating with law enforcement.  A Kentucky state court might not see the issue the same way.  Also, this is an unpublished decision, so its usefulness is limited.

Ky. Ct. of Appeals Tosses Out $164,000 Judgment

It is fundamental that a plaintiff cannot have two bites of (at?) the apple. Meaning that if you file a claim in a lawsuit and lose, you cannot refile the same or essentially identical claim later.  Nor can you hold one claim in reserve while you pursue very similar claims.  The plaintiff in Smith v. Housing Authority of Middlesborough learned this lesson today when the Ky. Court of Appeals tossed out a $164,000 verdict that had previously gone in his favor.  In a nutshell, Smith was discharged by the Housing Authority and sued.  He initially claimed that the Housing Authority had terminated him in violation of the Ky. Whistleblower Act.  That claim was dismissed as untimely.  Smith then filed a wrongful termination claim under common law.  The trial court refused the Housing Authority's request to dismiss the suit on the grounds that the second claim was essentially a disguised version of the first claim.  The trial court allowed the case to go to the jury, which awarded Smith $164,000.  Today the Ky. COA held the trial court committed an error and the case should have been dismissed before it ever went to the jury for the reasons initially argued by the Housing Authority.  Unfortunately, the decision is unpublished, which means it cannot be cited to a Kentucky state court. 

Age Discrimination: Wake Up Call For Foreign Parents

The corporate parents of many companies operating in Kentucky are based outside of the United States.  It is very important that non-U.S. based executives understand and appreciate the various Kentucky and federal anti-discrimination laws and that such executives do not "shoot the messenger." A $500,000 settlement announced yesterday by the EEOC in an age discrimination case (click here to see the announcement) should help deliver this message.

2006 General Assembly: Pre-Filed Bills

As of today, here are the Labor and Employment related bills pre-filed in advance of the 2006 General Assembly. 

Creation of certain form to be filled out by employers and employees, responsibility of - BR471

Education institutions, construction, exempt from paying prevailing wage - BR152

Employers, health benefits for - BR194

Genetic testing, prohibition against employer's use of - BR91

Human trafficking - BR155

Illegal aliens, prohibit employment of - BR47

Labor organization, mandatory membership or financial support prohibited, penalty - BR199

Workers' compensation unfair claims practices, increase penalties for - BR368

Unions: Heirs To The Civil Rights Movement?

If Martin Luther King Jr. can violate the law to secure racial equality, surely the Transport Workers can do likewise to secure a better contract.  Huh??  As reported by the AP, the TWU leaders are likening themselves to civil rights leaders.  I don't see the connection, but you can decide for yourself.

Wage & Hour: Wal-Mart Found Liable In Cal. Regarding Meal Periods

Most states require employees to receive an unpaid meal period if they work over a certain length of time.  As reported by the Associated Press, earlier today a California jury awarded $172 million to thousands of employees at Wal-Mart Stores who claimed they were illegally denied lunch breaks. Wal-Mart was ordered to pay $57 million in general damages and $115 million in punitive damages to about 116,000 current and former California employees for violating a 2001 California law that requires employers to give 30-minute, unpaid lunch breaks to employees who work at least six hours.

If you are wondering, the Kentucky meal period law is KRS 337.355, which states:

Employers, except those subject to the Federal Railway Labor Act, shall grant their employees a reasonable period for lunch, and such time shall be as close to the middle of the employee's scheduled work shift as possible. In no case shall an employee be required to take a lunch period sooner than three (3) hours after his work shift commences, nor more than five (5) hours from the time his work shift commences. This section shall not be construed to negate any provision of a collective bargaining agreement or mutual agreement between the employee and employer.

A "reasonable period" is not defined in the Kentucky Statute. The applicable regulation (803 KAR 1:065), however, states:

Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purpose of eating regular meals. Ordinarily, thirty (30) minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. It is not necessary that an employee be permitted to leave the premises if he is otherwise completed freed from duties during the meal period.

FMLA: Discharge Upheld

In Frazier v. Honda of America, the 6th Circuit upheld the discharge of an employee for attendance issues and held the FMLA was no protection to the employee because he failed to submit a medical certification in a timely fashion.  The Court stated,

We find that Frazier’s claim fails since he did not submit a certification form by the deadline set by Honda, a deadline which complied with the FMLA.

Holiday Party Suggestions From The DOL

The U.S. Department of Labor offers the following "Tips for Employers on Safe and Sober Workplace Parties."

Feds Grant $3 Million for Kentucky Mining Training

According to the U.S. Department of Labor press release:

"The grant, awarded to the Pennyrile Area Development District, will equip the community and technical college system with expedited training so students can use mining simulators and take advantage of distance learning and mobile classrooms. In addition, outreach to students will raise awareness of the high-paying careers that can be pursued in coal mining."

Strong Presumption of Arbitrability

If a collective bargaining agreement contains an arbitration clause (which they almost all do), then there is a strong presumption that disputed issues between the employer and the Union are subject to that clause.  Employers sometimes argue that certain issues are not subject to the the arbitration clause for one reason or another.  There is, however, a strong federal presumption that any given issue is arbitrable, i.e. must be arbitrated.  In a recent unpublished decision, Steelworkers Local 9423 v. Century Aluminum of Kentucky, the 6th Circuit Court of Appeals reiterated this strong presumption.  The case dealt with an employee who the employer believed violated a Last Chance Agreement.  A reasonable interpretation of the LCA would have excluded the termination from arbitration under the CBA.  The employer therefore refused to arbitrate the discharge grievance.  The Court, however, concluded that the LCA was subject to more than one reasonable interpretation (i.e. could also be reasonably interpreted to make the termination arbitrable) and therefore upheld a lower court's order compelling the employer to arbitrate the dispute.  This is not an earth shattering case, but certainly emphasizes that if an employer does not want an issue to be subject to arbitration, it must extra, extra, extra clearly state that intention.