Kentucky Employment Law Notes

DOL issues two new opinion letters

The DOL released two new wage and hour opinion letters today.

The first opinion letter addressed "a request for an opinion regarding English language lesson materials that [the employer] distributes to its non-English speaking staff."  Based on the facts presented, the DOL stated, "It is our opinion that time employees voluntarily spend studying these materials outside their regular work hours is not compensable working time under the Fair Labor Standards Act (FLSA)."  The letter is worth reading as it has applicability to employer provided training beyond simply "English lessons."  The heart of the opinion was the DOL's finding that, "the training is general in scope and is designed to aid the employee’s English skills, not to 'make the employee handle his job more effectively.' The training is designed to help the employee advance in society and in work.  The fact that the training may have an indirect effect on an employee’s current job does not [make the training time compensable.]"

In the second opinion letter, the DOL made clear that an employer can require an exempt employee to work a certain number of hours in excess of 40 per week, and that an employer can require the exempt employee work extra to make up the hours not worked in a prior week. The DOL held the employer could discipline an employee for failing to meet these requirements, but not a less than one week suspension.

6th Circuit Affirms Dismissal of Age/RIF Claim

Today in Sisk v. Commercial Furniture Group, the 6th Circuit affirmed the dismissal of Sisk's age discrimination claim.  The case is fairly straight forward.  As is not uncommon, the plaintiff argued that there was not actually a RIF, but a disguised reassignment of his duties to a single younger employee.  The Court rejected this theory as not supported by the evidence.  The alleged younger replacement was brought in over seven months later, and the Court noted that there was no evidence that at the time the discharge decision was made, that the decision maker had any intent to replace Sisk.

New FMLA Opinion Letter

The DOL recently published a new opinion letter regarding whether FMLA leave counts as hours worked for future health insurance eligibility.  The company was subject to collective bargaining agreements, many of which stipulated that in order for an employee to maintain group health insurance benefits for the following calendar year, the employee must work a specified number of hours in the preceding calendar year.  The inquiry was whether FMLA leave taken during the year must be credited towards qualification for the following year’s group health insurance benefits for employees subject to these agreements, or whether the employer can lawfully deny these employees’ group health insurance benefits if the required hours are not worked because of FMLA leave.

The DOL answered as follows:

If the eligible employee is not entitled to group health insurance coverage prior to the start of FMLA-qualifying leave because he or she has not worked 1500 hours in the previous calendar year as required by the CBA, the employer is not required to provide health insurance coverage during the FMLA leave.  Nor is the employer required to provide insurance coverage to an employee who does not meet the 1500 hours requirement due to FMLA leave the employee took in the prior year. 

The DOL also cautioned, however, that:

 if the contract provides that other types of leave, paid or unpaid, count as hours worked for purposes of determining eligibility for health insurance in the following year, the FMLA leave of an equivalent type would need to be treated in the same manner.

KY COA reverses summary judgment in race case.

A week ago Friday, in Lewis v. Intec Janitorial Contractor and Supplier (unpublished), the Ky. COA reversed a summary judgment entered by the Hardin Circuit Court dismissing Lewis’ race claim.  The COA held Lewis had presented sufficient evidence of pretext to allow the case to go to the jury. 

Lewis is an African-American.  He was Intec’s night crew supervisor at Ft. Knox.  He was discharged after his position was eliminated and his duties transferred to nonsupervisory union employee. He then sued claiming race discrimination under KRS 344.  Intec defended on the basis that Lewis’ employment was terminated to cut costs, which is a legitimate, non-discriminator reason to   After discovery, Intec moved for summary judgment, which was granted.

On appeal, the COA reiterated that the only way to prove a discriminatory discharge claim is through direct evidence or through circumstantial evidence which satisfies the McDonnell Douglas Corp. v. Green burden shifting standard.

The COA seemed to credit Intec’s cost savings explanation, but apparently believed that the evidence related to that issue could be argued either way, and therefore a jury should decide whether that was the true motivation.

An interesting point of the case which was only addressed by the COA in a footnote is that the person hired for the nonsupervisory union position after Lewis’s position was eliminated was also an African-American.

Summary judgment denied in religious discrimination case

Last week in Mohamed-Sheik and Hersi v. Golden Foods (click: Download Hersi0306.pdf), Judge Heyburn (W.D.Ky) denied Golden Food's motion for summary judgment on plaintiffs' religious discrimination claims.  Plaintiffs are observant female Muslims.  They are also refugees from Somalia.   This is an alleged refusal to accommodate case.  Golden Foods has a policy requiring employees to wear their uniform shirts tucked in.  Plaintiffs claim they cannot do that as it would violate a religious requirement that they not dress like a man or reveal their female shape.  Plaintiffs proposed an accommodation of wearing an extra long untucked shirt.  Golden argued this accommodation would impose an undue burden by creating a safety hazard in the plant.

Judge Heyburn was accepting of the proposition that an employer is not required to accommodate a religious concern when doing so would create a safety risk to employees or a legal risk to employers.  However, in this case, Judge Heyburn denied the summary judgment motion because, as he held, there was an issue of fact for the jury to decide regarding whether the safety concerns were the reason for denying the proposed accommodation.  Prior to 9/11, the plaintiffs had been allowed to wear extra long shirts untucked.  Plaintiffs allege that after 9/11, they were told by a company H.R. manager not to pray during break times, not to speak Somali, not to wear a head scarf, and not to wear their shifts untucked.

Judge Heyburn recognized that it is not per se unlawful for an employer to revise a policy to enhance safety.  He stated, "the fact that Golden Brands has not always enforced its tuck in policy does not mean that it may not later adopt and enforce regulations designed to enhance safety at its facility."  However, in this case, summary judgment was denied because plaintiffs' alleged that following 9/11 the company became uncomfortable with their religion, as described above.  Note -- because of the summary judgment context, the Court had to accept the allegations as true.  Obviously readers of this post are not under a similar requirement.

Last month, as noted in a previous post, the 6th Circuit also sent a religious accommodation case to the jury.  Not a trend, but worth noting. 

Subjective selection process, alone, does not establish pretext

Yesterday in Rowe v. AIG Marketing, Inc. (click:Download Rowe0306.pdf), Judge Heyburn (W.D.Ky) declined to alter an earlier summary judgment he entered dismissing Rowe's discrimination claims.  Rowe argued that AIG's subjective evaluation scoring system made the selection process sufficiently suspect to meet her Manzer "evidence of pretext" burden.  In rejecting this position, Judge Heyburn reiterated that "even where an employer uses a scoring matrix with subjective criteria to evaluate applicants for a promotion, 'such subjectivity, without more, does not establish pretext.'" 

6th Circuit affirms dismissal of RLA "Minor Dispute"

Last week in Brokate v. Express Jet Airlines, Inc., the 6th Circuit affirmed the dismissal of Brokate's state law causes of action, e.g breach of contract, i.i.e.d.  The 6th Circuit agreed with the district court that Brokate's claims "clearly rest upon a minor dispute."  Under the Railway Labor Act, which controlled in this case, a breach of a collective bargaining agreement claim is called a "minor dispute."  Federal courts are generally without subject matter jurisdiction to resolve the substance of a minor dispute.  Instead the "minor dispute" must be submitted to compulsory and binding arbitration before an adjustment board.  An exception exists if the arbitration would be futile or impossible.  Brokate claimed that arbitration was impossible because her union decided not to represent her at arbitration.  The 6th Circuit rejected this argument noting that Brokate could have obtained her own representation.  "To find otherwise," the court held, "would open the litigation floodgates to all minor disputes in which a union does not doggedly pursue each and every grievance -- for lack of merit, lack of resources, or other reasons -- through all steps of the grievance process as well as binding arbitration."

6th Circuit finds employer waived "arbitrability" argument.

The issue of whether a given dispute is arbitrable is a matter for judicial determination.  If the parties, however, agree, without reservation, to submit the issue of arbitrability to the arbitrator (which usually happens when the parties simply blend the issue in with the merits), then the parties have waived their right to have a court decide the issue.  So held the 6th Circuit today in The Cleveland Electric Illuminating Co. et al v. Utility Workers Union of America.  The decision also contains a discussion of the arbitrability of retiree health insurance disputes.  The Court stated,

We find that the presumption of arbitrability applies to disputes over retirees’ benefits if the parties have contracted for such benefits in their collective bargaining agreement and if there is nothing in the agreement that specifically excludes the dispute from arbitration. Thus, unless there is “forceful evidence of a purpose to exclude the claim from arbitration,” the arbitrator’s determination in this case that the dispute is arbitrable must stand.

Pandemic flu summits to be held around Kentucky

The Kentucky Department for Public Health announced today that it will hold local pandemic flu summits statewide to address pandemic flu preparedness. “Pandemic planning needs to address how schools, businesses, public agencies, faith-based organizations and communities across the state participate in pandemic preparedness,” said William Hacker, M.D., commissioner of the Kentucky Department for Public Health.Click here to view the press release and a schedule of locations and times for the summits.

As discussed in a recent posting at the blog, "Thoughts from a Management Lawyer," a business would be prudent to develop a contingency plan for a pandemic flu or other catastrophe.

FMLA and Kentucky civil rights claims survive death of plaintiff

Kentucky courts have not directly addressed whether KRS Chapter 344 (civil rights) claims survive a plaintiff's death.  Relying on KRS 411.140, last week in Turner v. The Sullivan University Systems, Inc. (click here: Download Turner3806.pdf), Judge Heyburn (W.D.Ky.) concluded that such claims do survive (including a claim for general injunctive relief).  Likewise Judge Heyburn concluded that FMLA claims survive a plaintiff's death, including claims for liquidated damages.  The opinion is 26 pages and addresses Sullivan's summary judgment motion on Turner's various claims.  A couple of interesting points from the decision include a finding that Turner's SSDI application did not estop her from pursuing a disability discrimination claim, and the following quote, "Review of many cases reveals that evidence of a disability requires greater proof than merely the inability to perform incidental though important life activities that involve lifting."