HOME   *   PRACTICE AREAS   *  FAQs  *  ABOUT ROBERT L. ABELL   *   CONTACT US   *   LIBRARY

PRACTICE AREAS

www.RobertAbellLaw.com

CONTACT US

PERSONAL INJURY

INSURANCE CLAIMS

EMPLOYMENT LAW

WORKERS COMPENSATION
 

Abell Law Blog

• American Association for Justice Reports On Insurance Companies' "Tricks of the Trade"
   
• HIPAA Violated By Defense Counsel's Interviews of Plaintiff's Prior Treating Physicians
   
• UK Students Killed in I-75 Wreck
   
• Wreck On Kentucky Highway 33 Injures 3
   
• Mislabeled Insulin Syringes Recalled
   
• I-64 Wreck Claims Mt. Sterling Man
   
• One Fatality From US 68 Wreck In Jessamine County
   
• One Killed In Henry County Wreck
   
• Paris Man Killed In Wreck On Bypass
   
• Fourth Death In US 127 Wreck Near Albany
   
• Montgomery County Men Killed In Wreck On US 60
   
• "Get Out of Jail" Free Cards For Corporations -- American Association for Justice Details Undermining of Family and Consumer Protections
   
• Drop Side Crib Recall
   
• Lincoln County Wreck Kills Husband, Injures Wife
   
• Increased Efforts To Prevent Injured Families From Holding Corporations Accountable
   
• Fen-Phen Flim-Flam: Don't Be A Victim of Lawyer Advertising
   
• Unsafe Drugs Approved & Then Pulled By FDA
   
• Nursing Home Safety & Health Violations Reported
   
• Double Fatality In Pike County Wreck
   
• Fatal ATV Crash In Jackson County
   
• Deadly Crash On Man o' War
   
• Tired Truckers Targeted By New Technology
   
• ATV Age Guidelines Unsafe
   
• Family Member Of Asbestos Worker May Sue For Cancer Death Caused By Asbestos Exposure
   
• Drugs Being Investigated Listed by FDA
   
• Pregnant & New Mothers Endangered By Proposed FDA Rule
   
• Delays Caused By Insurance Companies Harm Patients, Doctors Report
   
• Pain & Suffering Damages of $100,000 for Amputee Vacated By Court As Too Low and "A Miscarriage of Justice"
   
• Hospital Death Rates Online
   
• Drug Makers Should Be Liable For Defects Under State Law, New England Journal of Medicine Editors Argue to Supreme Court
   
• Railroad Crossing Safety Requires "Active" Warning Systems
   
• Beef Recalled By Whole Foods
   
• State Farm To Pay $74 Million More To Settle Katrina Claims
   
• Consumer Product Safety Whistleblower Protection Passed by Congress
   
• U.S. Needs National Database of Replacement Joints
   
• Congress To Ban Toxins In Children's' Toys
   
• Disability Insurers Investigated by Senate
   
• Weakening of Workplace Toxin Rules Underway
   
• Sick Truckers On Nation's Highways
   
• MySpace Photos Destroy Plaintiff's Credibility and Case
   
• Scorsone for Fayette Circuit Judge
   
• Worst Insurance Companies: The Top Ten
   
• Parents' Underinsured Motor Vehicle Coverage Applies to Vehicle Owned by Child
   
• Nurses Report Staffing Shortages Impact Patient Care
   
• Fairness of Consumer Arbitration Procedures Questioned
   
• Food-Borne Illness Case Settled
   
• Senator Charges "Criminal Negligence" In FDA's Failure to Protect Food Supply
   
• President Bush Should Support Fair Pay Law
   
• Criminal Prosecution For Worker Safety Violations
   
• FDA Chief Bypasses Bush Administration to Beg Congress for More Money
   
• Bush Administration Rules Protect Corporate Wrongdoing
   
• FDA Report Acknowledges Agency Cannot Protect American Public
   
• Drug Companies Find Shelter In Overwhelmed FDA
   
• Disability Insurers Causing Overload of Social Security
   
• Windfall Profits for Kentucky's Medical Malpractice Insurance Companies
   
• It Is Presumed That You Have Given Up Your Constitutional Rights
   
• Appeals Court Reinstates Retaliation Case of Employee Fired "Immediately Upon" His Employer Learning of His Discrimination Charge to EEOC
   
• Conference on Health Care Transparency and Patient Advocacy
   

KENTUCKY EMPLOYMENT LAW

continuing Commentary and Review on Employment Law and Cases

 

Former Employees Who Have Received Their Retirement Benefits May Sue For The Reduced Value Of The Benefits

Employees who have received their lump-sum retirement benefits may sue for breaches of fiduciary duty that reduced value of those benefits, the First Circuit ruled recently in Evans v Akers (No. 07-1140).   The key issue, the court explained, was whether a former employee, despite having already received pay-out of their benefits, was a "participant" of the retirement plan within the federal ERISA law.  A "participant" in an ERISA plan includes a former employee that has colorable claim that she will prevail in a suit for benefits under Supreme Court precedent.  A right to benefits, the court continued, includes an entitlement to prudent management.  Because the plaintiffs were participants in the plan when its value was reduced by imprudent management, they could sue to recover the reduced amount of their benefits. 

Robert L. Abell
July 29, 2008

Employee Fired For Reporting Co-Employee's Illegal Acts May Sue

An employee fired for reporting a co-employee's illegal acts relating to their employment may sue for wrongful termination and retaliatory discharge, the Mississippi Supreme Court ruled recently in DeCarlo v. Bonus Stores, Inc. (No. 2007-FC-02287-SCT).

DeCarlo learned that the company CEO was defrauding the company.  He reported this information to the company's CFO and several members of the company's board of directors.  He was fired and filed a wrongful termination lawsuit for retaliatory discharge.  The court ruled that his claim presented an exception to the employment-at-will doctrine and that a wrongful termination claim arose from a "discharge in retaliation for reporting a co-employee's illegal acts that relate to the employer's business." 

Robert L. Abell
July 28, 2008

Cancer Survivor Protected from Disability Discrimination

A breast cancer survivor qualifies for protection by the Americans With Disabilities Act (ADA), the D.C. Circuit held in Adams v. Rice (No. 07-5101). The protection arose, the court concluded, because the illness and treatment had caused an enduring impairment to the plaintiff's "major life activity" of sexual relations.

The plaintiff, Adams, earned a position with the United States Foreign Service, one that required a medical clearance.  Her medical clearance was revoked when she later reported a diagnosis of stage-one breast cancer.  She underwent a successful treatment program, which included reconstructive surgery.  Despite being cancer-free, her medical clearance was not reinstated and her job was lost.  Adams claimed this violated her rights under anti-disability discrimination laws.

The court ruled that Adams had established that, despite being cancer-free, she continued to suffer a disability because of an ongoing impairment to her ability to engage in sexual relations.  To reach that conclusion the court had to first decide whether engaging in sexual relations qualified as a "major life activity."  Based on statutory text, Supreme Court precedent and applying a "hefty dose of common sense" the court concluded that "engaging in sexual relations qualifies as a major life activity." 

While this case is testament first to Adams's bravery and the "common sense" of the court majority is to be acknowledged, it also serves as an illustration of how Supreme Court and other court rulings have so limited the Americans With Disabilities Act that its protections are ever difficult to define.  Adams lost her job with the State Department because it regarded her as a liability (or at least a potential liability) since she was a breast cancer survivor.  That she qualified for protection from disability discrimination in her employment as a Foreign Service officer based only on an ongoing impairment to her ability to engage in sexual relations indicates that Congress should act and restore a healthy dose of common sense to the protections afforded by the Americans With Disabilities Act by effectively repealing a number of misguided Supreme Court decisions.

Robert L. Abell
July 25, 2008

Pregnancy Discrimination Act Prohibits Firing Woman For Absences Related to Receipt Of In Vitro Fertilization Treatments

The Pregnancy Discrimination Act would be violated if a woman was fired because of absences caused by her receipt of in vitro fertilization treatments, so ruled the federal Seventh Circuit Court of Appeals in Hall v. Nalco Company (No. 06-3684 decided 7/16/08).  This is the first federal appeals court to decide this issue.

The plaintiff, Hall, worked as a sales secretary.  She twice took leaves of absence to receive in vitro fertilization treatment.  The employer elected to reduce its secretarial staff and decided to let Hall go because she had "missed a lot of work due to health" and, most significantly, was cited for "absenteeism - infertility treatments." 

The court ruled that her firing implicated the Pregnancy Discrimination Act (PDA) because the PDA prohibited discrimination based on a woman's pregnancy, which will always be sex discrimination, as well as based on childbirth and medical conditions related to pregnancy or childbirth.  While both men and women can receive fertility treatments, the court observed, employees "terminated for taking time off to undergo IVF -- just like those terminated for taking time off to give birth or receive other pregnancy-related care -- will always be women."  Therefore, the court concluded that Hall had presented a viable claim that she was unlawfully discriminated against based on her female sex in violation of Title VII and the Pregnancy Discrimination Act.

Robert L. Abell
July 23, 2008

Overtime and Wage Enforcment Lax, Government Reports

Overtime and minimum wage enforcement actions of the Fair Labor Standards Act have gone wanting by the Labor Department's Wage and Hour Division, according to two reports released today by the Government Accountability Office.  To review the reports click here and here.  In one inexcusable example, a truck driver was not paid overtime even though he worked 55 hours a week; his complaint sat idle for 17 months before an investigator was assigned and, when one was assigned, he did nothing until dropping the case because the statute of limitations was about to expire.  Enforcement actions declined to 29,584 from 46,758 ten years earlier.  What's the upshot: the number of investigators declined throughout the Bush Administration, the number of enforcement actions declined and, according to Representative George Miller of California, "the problem of wage theft is only getting worse because of weaker enforcement." 

Robert L. Abell
July 15, 2008

Sixth Circuit Sets Summary Judgment Standard In Mixed-Motive Cases

An employment discrimination plaintiff to defeat summary judgment on a mixed-motive claim need only present sufficient evidence of (1) an adverse employment action; and, (2) a protected characteristic (race, color, religion, sex, age, national origin, disability) was "a motivating factor," the Sixth Circuit ruled in White v. Baxter Healthcare Corp. (No. 07-1626 decided July 3, 2008).  The Court specifically rejected application of the McDonnell Douglas burden-shifting framework.

The Court also discounted the employer's explanation that the plaintiff had not been promoted owing in large part to a poor interview, observing that "any evaluation of White's interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer's true reasons for making the promotion decision." 

Robert L. Abell
July 7, 2008

Wal-Mart Found Liable for Underpaying Workers

The St. Paul Pioneer Press reports that a Minnesota state court judge has ruled that Wal-Mart violated wage and hour laws by shortening workers' meal and rest breaks and forcing them to work off the clock, see "Judge: Wal-Mart Owes Minnesota Workers $6.5 Million for Off-Clock Work, Lost Breaks." $6.5 million was awarded to cover the workers' back pay.  The employees claimed that they were forced to work through their mandated by law breaks and that managers sometimes recorded breaks on their time cards that they never took.  A further trial is scheduled in the fall to determine possible punitive damages and other penalties.  The Minnesota case follows other similar decisions against Wal-Mart in Pennsylvania, California and Colorado.  About 70 similar cases remain pending against Wal-Mart in various courts around the country. 

Robert L. Abell
July 2, 2008

>>> more >>>

ROBERT L. ABELL
271 West Short Street
Suite 200
Lexington, KY 40507

866-578-5302 TOLL FREE

859-254-7076 Phone
859-231-0691 Fax

• Retirement Plan Stock Losses Are Basis For Employees' Suit Against The Hartford
   

• Interrupted Lunch Breaks Cited In Wage Class Actions
   

• Failure To Fully Pay Life Insurance Benefits Breached UNUM's Fiduciary Duty Under ERISA
   

• Pregnancy Discrimination Act Marks 30 Year Anniversary
   

• Retirement Plan Manager Breached Fiduciary Duty By Secretly Increasing Retirees' Medical Insurance Premiums
   

• Injured Workers May Sue Under Racketeering Law Based On Scheme To Deny Them Workers Compensation Benefits
   

• Protections For Disabled Workers Enhanced By ADA Amendments
   

• Police Sick Leave Suit Granted Class Action Status
   

• Retaliation & Age Discrimination Complaints Increase Most, EEOC Reports
   

• Retaliation Against Employee Taking Family Medical Leave Held Unlawful
   

• $10 Million Police Overtime Case Settled
   

• Religious Discrimination Compliance Manual Issued By EEOC
   

• Employee Can Sue For Constructive Wrongful Discharge
   

• Former Employees Who Have Received Their Retirement Benefits May Sue For The Reduced Value Of The Benefits
   

• Employee Fired For Reporting Co-Employee's Illegal Acts May Sue
   

• Cancer Survivor Protected From Disability Discrimination
   

• Pregnancy Discrimination Act Prohibits Firing Woman for Absences Related to Receipt of In Vitro Fertilization Treatments
   

• Overtime and Wage Enforcement Lax, Government Reports
   

• Sixth Circuit Sets Summary Judgment Standard in Mixed-Motive Cases
   

• Wal-Mart Found Liable for Underpaying Workers
   

• Production of Confidential and Irrelevant Documents Dooms Retaliation Case
   

• Age Discrimination Verdict Upheld by Kentucky Supreme Court
   

• Police Officers Must Be Paid For Time Spent Putting On and Taking Off Required Uniform and Equipment
   

• Employees Must Be Paid For Time Spent Putting On and Taking Off Safety Wear and Equipment
   

• Paramedics Entitled to Overtime Compensation
   

• Discrimination Claims Not Barred By Arbitration Decision
   

• Two Employees Each Awarded $350,000 In Race Discrimination Case
   

• Fired Because of A Sick Family Member: Protection Against "Association Discrimination"
   

• Release of Discrimination Claims Valid In Absence of Duress, Fraud or Bad Faith
   

• Employer's Retaliation Against Fiancee of Employee Charging Discrimination Violates Title VII
   

• Employer's Toleration of Co-Worker Retaliation Can Lead to Liability
   

• Retirement Funds In Defined Contribution 401(k) ERISA Plan Lost Due to Investment Manager's Failure to Follow Directions or Failure to Notify May Be Recovered
   

• Appeals Court Terminates Benefits by Crediting Consulting Nurse's Opinion over Treating Doctor's

Robert L. Abell is a  Personal Injury and Accident lawyer for Lexington, Winchester, Paris, Georgetown, Frankfort, Versailles, Nicholasville, Richmond, Lancaster, Stanton, London, Corbin, Shelbyville, Danville, Lawrenceburg, Williamstown, Jeffersontown, Louisville, Harrodsburg, Campbellsville, Liberty, Bardstown, Covington, Columbia, Elizabethtown, Newport, Pikeville, Ashland, Morehead, Jackson, Cynthiana and other communities located in central and eastern Kentucky and Fayette County, Scott County, Clark County, Madison County, Laurel County, Powell County, Morgan County, Breathitt County, Harrison County, Woodford County, Bourbon County, Jessamine County, Mercer County, Boyle County, Anderson County, Shelby County, Jefferson County, Owen County, Franklin County, Grant County, Boone County, Kenton County and elsewhere in Kentucky. 
This website does not constitute and is not intended to be legal advice.  You should consult with a lawyer regarding your own situation. 
KENTUCKY SUPREME COURT RULE 3.130 (7.09) REQUIRES THE FOLLOWING LANGUAGE: THIS IS AN ADVERTISEMENT
© Robert L. Abell, 2008, All Rights Reserved