Kentucky Employment Law Notes

6th Circuit Affirms SJ Granted to UAW In DFR Case

Today in Fowler v. UAW, the 6th Circuit affirmed the district court's summary judgment in favor of the UAW.   Fowler sued the UAW claiming it breached the duty of fair representation it owed him vis a vis a grievance filed over his termination by the employer, A.G. Simpson Automotive Systems.  In a nutshell, Fowler was discharged for absenteeism.  The UAW filed, then withdrew, then over one year later reinstated a grievance alleging the discharge was without just cause.  An arbitrator sustained the grievance and ordered that Fowler be reinstated and awarded him back pay, except for the period while the grievance was withdrawn.  I.e. the effect was that Fowler lost over a year's pay.  He then sued the UAW claiming it acted arbitrarily and capriciously by withdrawing the grievance.  The district court disagreed, and granted SJ to the UAW.  The 6th Circuit affirmed the district court's reasoning without elaboration.

This case was a hybrid Section 301 action, in which, of course, Fowler had to prove both that the employer breached the CBA and that the Union breached its duty of fair representation.  Pretty standard stuff.  The interesting thing about the case is the reminder that, even though an employee in a Hybrid 301 case must prove both elements, i.e. employer breach of contract and union breach of DFR, the employee need not actually sue both parties.  As the Court stated, "It is, however, of no consequence that [Fowler] has brought suit against the UAW alone, since an employee in a hybrid Section 301 action 'may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both.'"  Before today I had never had a reason to learn this interesting fact.

Judge Russell Denies Motion To Strike Expert's Statistical Analysis In Disparate Treatment Age Case

Last week in Conner v. State Farm, (click:Download Conner21706.pdf) Judge Russell (W.D.Ky.) denied State Farm’s motion to strike a statistical analysis proffered by Conner. Conner is pursuing a disparate treatment age discrimination claim against State Farm regarding a hiring decision. Conner retained an industrial and organizational psychologist to review and analyze the hiring practices of State Farm to determine the possibility of employment discrimination on the basis of age.

 Shock, Shock, Conner’s expert concluded that non-State Farm employee applicants age 40 and over were less likely to be selected to be agents. State Farm moved the Court to strike the expert’s report, arguing that: (1) at most the report has relevance solely to a disparate impact claim, which is not what Conner is pursuing; and (2) the report is irrelevant because it focused on three states (Ohio, Kentucky, and Tennessee), whereas the decision at issue was made locally in Kentucky. Judge Russell rejected both arguments.

 First, the expert’s report stated, “based on my review of information provided concerning the selection process for Agent it is apparent that most of the steps in the selection process are based on subjective judgments.” “This demonstrates,” Judge Russell said, “that when [the expert] reached his conclusion the subjective intent of State Farm was a factor, and [the expert] did not treat the analysis solely as a facially neutral process” [and therefore his report was relevant to a disparate treatment claim].”

 Second, Judge Russell held the report was not overbroad because the decision-maker at issue in the instant case “had a say” in the hiring decisions that took place in Ohio, Kentucky, and Tennessee” and therefore the study was not overbroad. Seems to me that Conner should have had to establish that her decision-maker had more than “a say” in the reviewed decisions, and in fact that he significantly influenced the decisions. That may, in fact, have been the case, but the opinion does not indicate anything more than that he "had a say" in the reviewed decisions.  One could easily argue that the report is an apples to oranges comparison that could easily mislead a jury. 

Support Lacking For The Governor's Right To Work and Prevailing Wage Proposals

As reported in the Courier-Journal today, it appears the General Assembly will not pass a right to work law or change the existing prevailing wage law this session.  Here is the AP story.

New DOL Opinion Letter Regarding Civic & Charitable Activities

The DOL has released a new opinion letter addressing situations in which an employer encourages, but does not require, participation in charitable or volunteer activities.  The question, obviously, relates to whether time spent on such activities is compensable.  The entire letter is worth checking out (which you can do here), but here is a good summary quote:

Therefore, the employer need not compensate an employee for time spent volunteering for charitable purposes if the work is performed outside of normal working hours and the employee is truly volunteering, not performing the volunteer work as a result of coercion or pressure by the employer.  Thus, employees who volunteer in a fundraising project of a local charity that is not connected with the employer need not be compensated for the time volunteered, provided they are not performing duties relating to their employment.  See WH Opinion Letters June 20, 1983 and July 31, 2001 (copies enclosed).  However, while the employer may occasionally sponsor a Habitat for Humanity project or a blood drive, if there is a significant connection between the employer and the charity, they may be found to be a single enterprise under FLSA section 3(r).  In that case, the hours worked for the charity must be combined with the hours worked for the employer and compensated.

 

 

6th Circuit Sends Religious Accommodation Case To The Jury

sJeff Carter observes the Sabbath from sundown Friday until sundown Saturday.  He worked for the Robert Bosch Corp. for many years without incident.  As a result of business necessity, however, in July 2002, Bosch increased production and scheduled Carter to work in a manner that would have conflicted with his observance of the Sabbath.  Neither Carter nor his union were able to find an employee willing to swap with Carter and he was eventually terminated after his fourth unexcused absence.  He filed a religious discrimination claim under Title VII, with which the EEOC found merit and which the EEOC took to court on Carter's behalf.

The lower court (W.D.Mich.) granted Bosch's summary judgment motion, finding "no dispute of material facts about Carter's claim that Bosch unreasonably refused to accommodate Carter's religion."   Today in EEOC & Carter v. Bosch, (Unpublished) the 6th Circuit reversed that summary judgment, finding there was a factual dispute regarding Bosch's willingness to reasonably accommodate Carter's religious observance.

The Court stated that "[t]he reasonableness of an employer's attempt at accommodation must be determined on a case-by-case basis and is generally a question of fact for the jury, rather than a question of law for the court."   Although the Court recognized that "one means of accommodating an employee who is unable to work on a particular day due to religious convictions is to allow the employee to trade work shifts with another qualified employee," the Court stated, "[m]erely granting employees permission to find volunteers to swap shifts, however, does not definitively constitute 'reasonable accommodation' as a matter of law in all cases."  Although each case is judged for reasonableness on its own facts, the Court suggested a reasonable employer would act affirmatively to attempt to find a replacement for the employee, or supply the employee with information needed to help find a replacement, or allow the employee to advertise his need for a replacement.

In this case, the Court found there was a fact question regarding what, if anything, Bosch did or was willing to do to accommodate Carter, other than granting him permission to try to find someone with whom to swap shifts.

Supreme Court Directs Small Businesses State Their "Smallness" Before The Trial Is Over

Title VII only applies to employers with 15 or more employees.  Today in Arbaugh v. Y & H Corp, the Supreme Court held that the 15 employee requirement is not a jurisdictional issue, but rather is in the order of a defense to the claim.  A small business (i.e. one with 14 or fewer employees) must raise the defense before the trial is over, or the defense is waived.

   

"Superior Qualification" Pretext Standard Rejected

One way to help establish pretext in a failure to hire/promote case is to offer proof that the plaintiff had superior qualifications compared to the individual selected.  But how much proof is sufficient?  Until today in the 11th Circuit, the test was that, "‘the disparity in qualifications [must be] so apparent as virtually to jump off the page and slap you in the face."  Today the U.S. Supreme Court rejected this standard.  The Court did not define the appropriate standard, but simply sent the case back to the 11th Circuit for another try.  Read Ross' Employment Law Blog and Workplace Prof Blog for more details and links to the decision.

Claims Of Aggressive, Confrontational Employee Dismissed

Tinah Mischer (African-American) was hired by Erie Metropolitan Housing Authority on April 1, 2002 to serve as the Executive Director.  She was fired two months later.  She subsequently filed race and gender discrimination claims even though she admitted "her aggressiveness was a reason for her termination and that she had confrontation with nearly everybody in her direct chain of authority [, and] that she unilaterally changed EMHA policy concerning the payment of water bills, and that she did not understand several aspects of EMHA's finances." Today in Mischer v. EMHA, the 6th COA affirmed the summary judgment dismissing Mischer's claims.

As the Court held, Mischer's claims were done in, in part, by the facts that: (1) EMHA had employed an African-American Executive Director for 20 years shortly before Mischer was hired; (2) the same Board that hired her fired her; and (3) two of the five Board members were African-American. 

This case is really not that significant, but it is interesting to me for a few reasons. First, the Court does a nice job of stating and applying the Manzer pretext standards.  Second, the Court gave some respect to the same-actor inference which has suffered some diminution lately.  Lastly, I empathize with the Board members who I presume are either volunteers or not highly paid for their trouble.  In exchange for giving Ms. Mischer a chance, they got a ticked off staff, years of litigation, and the pleasure of being labeled in public as racist.

Kentucky Chamber of Commerce Weekly Update

The following comes from the weekly legislative update issued by the Kentucky Chamber of Commerce.

Collective Bargaining – Two bills that would expand collective bargaining are pending on the House floor. HB 440, sponsored by Rep. Kathy Stein, would expand collective bargaining rights to fire communications/dispatch personnel in urban county governments. HB 511, introduced by Rep. Charlie Hoffman, would expand collective bargaining rights to corrections personnel in urban county governments. Contact your state representative to voice your concern over expanding public employee unions.

Right to Work for More – Employee choice will provide Kentucky an important economic development tool to bring more jobs and opportunities to Kentucky. Studies prove that real personal income is growing faster in right-to-work states. Please take a moment to call 1-800-372-7181 to leave a message for your legislator encouraging them to support employee choice legislation.

Wolf in Sheep’s Clothing – HB 399, sponsored by Rep. Joni Jenkins, creates a subjective measure, "comparable worth,” which is defined as the value of work based on skill, effort and responsibility. An employer not paying the same wages to two people holding potentially different jobs of “comparable worth” would be guilty of discrimination and open to lawsuits. The bill passed the House Labor and Industry Committee on Wednesday and awaits action on the House floor.

Fines for Employing Illegal Aliens – HB 150, sponsored by Rep. Rick Nelson, would have fined employers $5,000 per day for hiring illegal aliens. The measure failed to receive the number of votes needed to pass in the House Labor and Industry Committee on Wednesday.

New Civil Action – HB 290, Sponsored by Rep. Carolyn Belcher, makes a number of changes regarding the concealed weapon statutes. Of specific interest to business, the bill reasserts that employers cannot prohibit firearms in an employee’s personal vehicle on company property. Additionally, the bill would enable lawsuits against any employer who takes personnel action against an employee who has a weapon in their personal vehicle. The bill passed out of the House Wednesday 89-7 after lengthy debate and now moves to the Senate.

Ky. COA Affirms Dismissal Of Defamation Claim That Arose In The Context Of A Labor Dispute

Employee defamation claims against employers have gained traction over the last few years.   That progress was slowed yesterday in Gilliam v. Pikeville United Methodist Hospital of Kentucky, Inc. & Danny Briscoe (To Be Published) where the Ky. COA affirmed a summary judgment dismissing Gilliam's defamation claims against the Hospital and Briscoe on the ground that Gilliam could not establish the requisite damages.

The case arose in the context of a labor dispute.  After an anonymous flier was put out during contract negotiations, the Hospital requested Briscoe prepare a response, which he did.  The response referred to the attendance problems of a member of the Union's bargaining committee and contained the statement, "This kind of abuse must be stopped. It is not fair to all of the hard working people at this Hospital that arrive on time every day. This abuse often requires employees to work beyond their shift to cover for the person that is late."  The response was the basis of Gilliam's defamation claims.

The Pike Circuit Court granted Defendants' Summary Judgment motion.  In affirming the dismissal, the COA noted the four elements of a defamation action: (1) defamatory language, (2) about the Plaintiff, (3) which is published, and (4) which causes injury to reputation.  The Court also stated that "[b]ecause the particular defamation claim now before us occurred in the context of a labor dispute, Gilliam must also prove a fifth element of 'actual malice.'"

In addressing the damages element, the COA stated "because the statements in question allege the conduct of habitual tardiness, which is incompatible with the employee's trade or profession, these statements would be defamatory per se in the normal defamation case under state law."  However, citing federal law, the COA continued and stated, "because the statements occurred in the context of a labor dispute," Gilliam must prove actual damages.  The Court stated,

Therefore, a plaintiff who endures even malicious libel during a labor dispute must present evidence of harm from defamation in order to recover, notwithstanding the fact that damages might otherwise be presumed under state law.

The COA affirmed the dismissal of Gilliam's claims because he could not meet this standard.  One final note, the Court also refused to consider a post-deposition affidavit submitted by Gilliam to prove damages because it contradicted his earlier deposition testimony.  To read the decision, click: Download Gilliam21706.pdf

New FMLA Opinion Letters From The DOL

FMLA2006-3-A: Cafeteria plan allotments and maintenance of group health benefits during FMLA leave. Click Here.  Summary Quote:

Consequently, as the FMLA and its regulations require maintenance on the same conditions of any group health plan coverage (whether or not provided through a flexible spending account or other component of a cafeteria plan), the Department takes the position that employees taking unpaid FMLA leave must have that portion of their cafeteria plan allotment allocated to group health insurance (including dental) premiums paid by the City in the same amount as paid prior to the start of FMLA leave.  See 29 U.S.C. § 2614(c)(1); 29 C.F.R. § 825.209(a). Moreover, because the City provides the money for the group health insurance coverage when employees are working, it may not recover such payments for periods of FMLA leave.  See 29 U.S.C. § 2614(c)(1).

FMLA2006-2:  Making contributions to multi-employer group health plans for employees on FMLA leave.   Click Here.  Summary Quote:

Your question assumes:  (1) that the multi-employer health plan you describe continues to provide group health insurance coverage for all employees who take FMLA-covered leave for their own serious health conditions, as if they had been continuously employed during the FMLA leave period; and (2) the health plan provides benefits through its Disability Extension of Coverage rules, which require no current employer contributions. In this particular situation, if these rules do apply to all employees taking FMLA-covered leave for any condition that meets FMLA’s definition of a serious health condition, 29 C.F.R. § 825.211(b) would not require the employer to make contributions on behalf of the employee using FMLA leave. This is because the multi-employer plan expressly provides a method of maintaining health insurance coverage during the FMLA leave through payments from the plan’s reserves.

 

Toyota Agrees To Back-Pay For Donning Time

Today's Courier-Journal includes a story entitled, "Toyota Workers To Receive Back Pay."  At issue was the time spent by certain employees to put on (i.e. don) certain protective apparel and walk to their work stations.  Last fall the Supreme Court in the Alvarez case held that such time is compensable.  A summary of Alvarez can be read here.  One lesson: if possible, locate safety apparel changing rooms close to employees’ actual work stations.

Committee approves Wal-Mart health bill

From today's Courier-Journal: Committee approves Wal-Mart health bill.

Expand The Coal Miner Labor Pool

"Unsatisfied with the work ethic of Eastern Kentucky miners, a local coal company has requested that the state mining board make it possible for the company to hire non-English speaking miners."  So begins an interesting article from the Appalachian News Express.

On a related note, see the recent U.S. DOL press release entitled, "U.S. Department of Labor Awards $4.9 Million in Grants To Improve English Language Skills in the Workplace."  It does not cover Kentucky.

6th Circuit Respects Uniformly Applied Policy

Today in Brown v. Bank One, the 6th Circuit affirmed a summary judgment for Bank One regarding Brown's race discrimination claim.  Judge Hood (E.D.Ky.) sat on the panel.  The case is not particularly remarkable, but from the perspective of a management side attorney, the following quote is something to be tucked away for future use:

The evidence reflects that, although the PVC program was likely an example of bad policy, it was not in any way racially discriminatory and the Bank did not enforce it in a discriminatory manner.

Invocation Of Federal Public Policy Insufficient To Create Federal Jurisdiction Over Wrongful Termination Claim

Today in Eastman v. Marine Mechanical Corp., the 6th Circuit held that, "a state-law employment action for wrongful termination in violation of federal public policy does not present a substantial federal question over which federal courts may exercise 'arising under' jurisdiction under 28 U.S.C. Sec. 1331." The question was whether the case should have been removed to federal court. The district court kept jurisdiction.  The 6th Circuit held this was a mistake, as stated above.  The following quote from the decision is interesting:

Employment litigation is a common occurrence in both federal and state courts. Federal legislation has provided access to the federal courts by aggrieved employees under specifically delineated circumstances, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., but our perception is that the bulk of the judicial business in the United States in this area is conducted by the state courts. This balance would be upset drastically if state public policy claims could be converted into federal actions by the simple expedient of referencing federal law as the source of that public policy. We believe such a dramatic shift would distort the division of judicial labor assumed by Congress under section 1331.

Docket control?

Guns In Workers' Cars

The Courier-Journal yesterday contained a story entitled, "Guns In Workers' Cars Raise Many Issues".  The article states, in part, "Over the last three years, Alaska, Kentucky, Minnesota and Oklahoma have passed laws allowing employees to keep guns in cars parked on company property...."  I'm not sure exactly what the article is referring to.  I think the issue is actually more ambiguous in Kentucky than the article implies.  The relevant statute is KRS 237.110(14), which can be read both to allow and prohibit an employer ban on weapons in cars on its parking lot.  The Attorney-General has issued an opinion letter concluding that such a ban would be unlawful.  No court has construed the statute in relevant part and, in my opinion, the issue is far from clear.  As stated elsewhere on this site, this is not legal advice and should not be relied upon as such.

Update:  See Professor Runkel's Employment Law Blog for a report on the Oklahoma law.

Governor's Safety Conference To Be Held May 9-12

The following is from the Ky. DOL's web-site:

The 2006 Governor’s Safety and Health Conference, May 9 - 12, will be another exciting and educational event. The successful workshop format has been designed to offer the delegation a choice of more than 60 workshop sessions. These sessions, all presented by safety and health professionals, focus on state-of-the-art techniques, current issues and trends in workplace safety and health.

No matter where you work in the safety and health field, the Governor’s Safety and Health Conference and Exposition has something to offer you.  Remember, employers choosing to send multiple delegates can expand the number of workshops attended, thus returning to the workplace with more knowledge and ideas.

Click here to go to the web-site for more details.

Bellsouth Granted SJ On Gender And Retaliation Claims

Last week in Tudor v. Bellsouth Telecommunications, Inc., Judge Russell dismissed Tudor's gender and retaliation claims.  As to her gender discrimination claim, Judge Russell held that Tudor could not offer sufficient evidence to overcome Bellsouth's stated reason for her discharge: poor performance.  Tudor attempted to point to three male employees whose alleged poor performance was treated differently by Bellsouth.  Applying the well accepted Mitchell standard, the Court held those individuals were not similarly situated to Tudor.  Tudor also claimed she was retaliated against by virtue of Bellsouth enforcing a rule that precluded her from selling Bellsouth products for another entitity for 90 days after her termination.   The Court held Tudor had not engaged in protected activity because the complaints she raised before her termination were not related to or based on sex discrimination.  The decision is at: Download Tudor13106.pdf

Polyone Corp. Ordered To Arbitrate LTD Benefits Issue

As discussed in a prior post here, there is a strong federal presumption in favor of arbitrability of a given dispute.  That presumption was recognized last week by Judge Russell (W.D.Ky.) in UFCW, Local 72D v. Polyone Corp., when he granted the Union's motion for summary judgment forcing Polyone to arbitrate a dispute regarding the denial of LTD benefits. Polyone argued the issue was of plan interpretation and not an issue to be resolved by an arbitrator under the CBA.  The Union argued that the plan did not conform to the requirements of the CBA.  Judge Russell concluded:

It appears from the evidence before the Court that the Union’s claim has very little, if any, merit in light of the circumstances under which it agreed to the change in insurance coverage (i.e., the fact that the union employees were simply to be added to an existing plan which contained the active work limitation). However, the merit or lack of merit of the claim is not relevant to the interpretation of the arbitration clause itself. The arbitration clause is broad. It provides, in relevant part, a grievance and arbitration procedure for “an employee [who] considers that he has any grievance, or that any provision of this Agreement has been violated...” The exclusion for “questions arising in the administration, interpretation, and application” of the plan does not apply to the Union’s assertion that the plan does not satisfy the bargained-for requirements of the CBA.

The decision is at:Download UFCW2106.pdf

UPS Justified In Discharging Employee Who Reported To Work Under The Influence

Last week in Hartley v. United Parcel Service, Inc., Judge Heyburn (W.D.Ky.) granted UPS a summary judgment dismissing Hartley's gender and disability discrimination claims.  UPS stated Hartley was discharged for reporting to work while intoxicated.  Hartley claimed she had alcoholism and was a qualified individual with a disability. 

The Court first addressed Hartley's ADA claim.  Regarding her prima facie case, Hartley claimed that she was substantially limited in her ability to work because her alcoholism precluded her from maintaining a regular work schedule.  The Court accepted for argument's sake that this might qualify Hartley as disabled, but it would also render her unqualified for her job and unprotected by the ADA.  The Court expressly declined to resolve those issues, and instead dismissed the ADA claim because Hartley could not offer sufficient evidence to rebut UPS' stated reason for her discharge, i.e. reporting to work under the influence.  The Court rejected Hartley's claim that UPS forced her to report to work knowing that she was under the influence.  There was no evidence to support that allegation.

The Court also dismissed Hartley's gender claim because she offered no competent evidence that UPS treated male employees differently.  All Hartley could offer was unsubstantiated hearsay and gossip.  Congratulations to UPS and Tony Coleman and Bill Becker at FBT.  The decision is at: Download Hartley020806.pdf

Unpublished Ky. COA Decision Affirms Public Policy In Favor Of Arbitration

In Harlan County B.O.E. v. UMWA, the Ky. COA affirmed the summary judgment granted by the Harlan Circuit Court in favor of the UMWA enforcing an arbitration award.  The underlying case had to do with certain hiring decisions.  In reaching its decision, the COA noted, "[r]esolving disputes through arbitration is favored in this Commonwealth."  An interesting aspect of the case is the standard used by the Court to evaluate the arbitrator's award.  As noted in this prior post, federal courts in Kentucky use a standard that is not as deferential to the arbitrator as some might like.  The standard used by the Ky. COA was certainly more deferential than the federal standard.

The COA stated, "[t]here must be a gross mistake of law or of fact constituting evidence of misconduct amounting to fraud or undue partiality in order to impeach an award, and ..., the evidence supporting the grounds of impeachment must be clear and strong."  Given that the decision is unpublished, and that Ky. state courts have few opportunities to review labor arbitration decisions, apart from the general endorsement of arbitration, the case is mainly of academic interest.

EEOC Reports Decline In Discrimination Charges

According to today's EEOC press release, "Discrimination charges filed with U.S. Equal Employment Opportunity Commission (EEOC) against private sector employers declined last year by 5 percent, the agency reported today as part of its Fiscal Year 2005 data. EEOC officials cited the agency’s aggressive outreach and training efforts as a possible factor in the charge decrease."  Click here for more detailed information.  The following breakout is interesting:

• Race - 26,740 charges (35.5% of all filings)
• Sex - 23,094 charges (30.6% of all filings)
• Retaliation - 22,278 charges (29.5% of all filings)
• Age -16,585 charges (22% of all filings)
• Disability - 14,893 (19.7% of all filings)
• National Origin - 8,035 (10.7% of all filings)
• Religion - 2,340 (3.1% of all filings)
• Equal Pay - 970 charges (1.3% of all filings)

Additionally, there were 12,679 sexual harassment charge filings and 4,449 pregnancy discrimination filings in FY 2005 with EEOC offices and state and local Fair Employment Practices Agencies (combined). Of the total number of sexual harassment charges, 14% were filed by men.

Pro Se Age Case Dismissed

On January 31, Judge Hood (E.D.Ky) dismissed a pro se age discrimination case in Jones v. Smith-McKenny Co., Inc., because Jones "simply failed 'to produce evidence from which a jury could reasonably conclude that Defendant's reasons [for terminating Jones] were pre-textual.'"  Jones introduced essentially no evidence other than his own, assertion-laden, affidavits.  Jones was terminated in September, 2004.  Although not mentioned, one thing that might have factored into the decision is that Jones was 71 when he was hired in October, 2003.  The 11 page decision is here: Download Jones13106.pdf

KRS 344 Claim Remanded To State Court

On Friday in Smith v. Ramey-Estep Homes, Inc., Judge Wilhoit (E.D.Ky.) dismissed Smith's Title VII race discrimination claim because Smith did not exhaust his administrative remedies.  That's the good news.  The bad news -- not really that bad -- is that Judge Wilhoit declined to exercise his discretion to retain jurisdiction over the pendent KRS 344 race discrimination claim, and remanded the claim back to state court.  The Court stated:

This Court has rarely, if ever, retained jurisdiction of state claims after federal claims fall away, and this case presents no persuasive grounds to do so now. It is believed that the parties are entitled to have their state law claims decided by Kentucky courts. The Kentucky judiciary is in a far superior position to do this.

The decision is at: Download Smith20306.pdf

Ky. COA Rules Not All Ky. Whistleblower Claims Are Subject To 90 Day SOL

    Today in Consolidated Infrastructure Mgt. Authority, Inc. v. Allen, (Unpublished??!) the Kentucky Court of Appeals broke some new ground and ruled that not all KRS 61 Whistleblower claims are subject to the 90 day statute of limitations set out in KRS 61.103(2).

KRS 61.103(2) states:

Notwithstanding the administrative remedies granted by KRS Chapters 16, 18A, 78,90, 95, 156, and other chapters of the Kentucky Revised Statutes, employees alleging a violation of KRS 61.102(1) or (2) may bring a civil action for appropriate injunctive relief or punitive damages, or both, within ninety (90) days after the occurrence of the alleged violation. The action may be filed in the Circuit Court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has his principal place of business.

But, KRS 61.990(4) states:

A court, in rendering a judgment in an action filed under KRS 61.102 and 61.103,shall order, as it considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, exemplary or punitive damages, or any combination thereof. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees.

    Plaintiff's Whistleblower claim in this case was filed more than 90 days after his termination.   Defendant argued the claim should have been dismissed pursuant to KRS 61.103(2).  The COA affirmed the trial court's rejection of this argument.

    Relying on the principles that: (1) courts may not read a limitation into a statute that does not exist; (2) statutes are to be given a liberal construction to promote their objects; and (3) constructions that allow a greater statute of limitation are to be favored, the COA held that the 90 day limitation in KRS 61.103(2) only applies to claims for injunctive relief or punitive damages.  Claims seeking the other forms of relief specified in KRS 61.990(4) are not subject to the 90 day statute.  The COA did not state what statute would apply.  One assumes it would be the 5 year residual statute for statutory claims.

    Also in the case, the COA held that (1) "threatening to report a violation" is an activity protected by KRS 61; (2) the trial court properly reduced Plaintiff's jury award in the amount of the unemployment benefits he had received; and (3) the Authority was not required to post a supersedeas bond pursuant to the exception in CR 81A.

Retiree Health Care Protection

The Workplace Prof Blog has recently posted a couple of interesting entries regarding the protections afforded (or not) to union retirees regarding their health insurance.

New FMLA Opinion Letter From DOL

The DOL has released an Administrator's opinion letter addressing whether an employer may require an employee on FMLA to vacate lodging provided by the employer.  The DOL stated, in summary:

We believe requiring an employee to vacate the premises during a FMLA leave would not violate the Act under the circumstances you describe, which include your client adopting and applying a policy that provides similar treatment to employees on leave for both FMLA and non-FMLA reasons and restoration of the employer-provided lodging upon return from FMLA leave.  It should be emphasized, however, that such a policy must be established and uniformly applied to non-FMLA absences in order to be available for FMLA absences.  The FMLA at 29 U.S.C. § 2615(a) and the FMLA regulations at 29 C.F.R.§ 825.220(c) prohibit discrimination against an employee for taking FMLA leave.  We believe that requiring an employee who has taken FMLA leave to vacate employer-provided housing, when such action is not required of a similarly situated employee on non-FMLA leave, would constitute such impermissible discrimination. 

Read the full letter by clicking here.