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• 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
 

Production of Confidential And Irrelevant Documents Dooms Retaliation Case

An employee's production to her lawyer of confidential but irrelevant to her case doomed her retaliation lawsuit the Sixth Circuit Court of Appeals ruled in Niswander v. Cincinnati Insurance Company (No. 07-3738 decided June 24, 2008).  The plaintiff, Niswander, was a plaintiff in a class action lawsuit claiming that the  insurance company employer discriminated against women in their pay.  In response to a pretrial discovery request for documents made by the insurance company, Niswander provided her lawyer with confidential documents that she admitted were irrelevant to her equal pay claim but did serve to jog her memory about acts of retaliation toward her.  Since Niswander admitted that the documents were not relevant to her equal pay claim, the court ruled that her production of the documents to her lawyer did not constitute protected activity for which retaliation would be unlawful.  Therefore, the court ruled that the employer lawfully terminated her for violating its confidential documents policy and upheld the trial court's summary judgment dismissal of her retaliation claim. 

What doomed Niswander's claim was her admission that the documents were irrelevant to her equal pay claim, the only claim she had pending at the time of the documents' production.  The Sixth Circuit advised that an "individual's delivery of relevant documents during the discovery process or the giving of testimony at a deposition clearly falls within the ambit of participating 'in any manner' in a Title VII proceeding." 

Robert L. Abell
June 28, 2008

Age Discrimination Verdict Upheld by Kentucky Supreme Court

A jury verdict finding age discrimination and awarding damages was upheld by the Kentucky Supreme Court in Childers Oil Company, Inc. v. Adkins (No. 2007-SC-000032 and available at the Kentucky Court of Justice website here). 
Adkins was hired as a cashier and later moved to a kitchen position when food operations were started.  The kitchen was later shut down and Adkins fired, although she requested that she be returned to her cashier's job.  She, who was age 47, presented evidence that a much younger cashier had been hired only 11 days before she was fired, that management had commented that it wanted "young, pretty, and skinny" girls working as cashiers so as to attract truckdriver business.  There was also evidence that the store posted a "Now Hiring" sign in its window after Adkins was fired.   Adkins was awarded by the jury $50,000 for emotional distress damages and  $11,922 for lost wages. 

Robert L. Abell
June 23, 2008

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

Police officers must be paid for time spent putting on and taking off required uniform and equipment a federal district court in California has ruled.  Such time is compensable the court ruled in Lemmon_v_City_of_San_Leandro (U.S. District Court, N.Dist. of California, No. 06-07107).

Patrol officers were required to wear a "Class B" uniform while on duty along with attendant equipment including a gun holster, ammunition, ammunition holders, handcuffs, handcuff case, tear gas canister, taser, taser case, baton ring, radio case, radio and gun, all of which attach to a duty belt.  When not on duty officers were expected to "cover up" their uniforms.  Some officers changed at home but almost all donned and doffed their uniform and equipment at the police station where they were supplied with lockers. 
 
Under United States Supreme Court precedent "activities performed either before or after the regular work shift" are compensable "if those activities are an integral and indispensable part of the principal activities for which [the employee is] employed."  This criteria was met, the court reasoned, because the uniform identifies the police officer as an authority figure, "which is essential to the efficient performance of police work."  The officer's equipment is likewise indispensable because it is "necessary for them to perform all their law enforcement activities." 
 
The court also analogized a police officer's uniform to safety wear and equipment worn in other jobs, such as in meat=packing plants, observing that although the "uniform itself is not 'specialized' in its protective properties, its color, appearance and component parts provides a gravitas that serve as an effective deterrent against crime, thereby protecting the police officer." 

Robert L. Abell
June 18, 2008

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

Employees at chicken-processing plant must be paid for time spent putting on and taking off ("donning and doffing") safety wear and equipment a federal district court in Maryland has ruled.  Such time is compensable under the federal Fair Labor Standards Act the court ruled in Perez_v_Mountaire_Farms. (US Dist Ct of Maryland, Civil No. AMD 06-121).

At the beginning of each shift employees were required to put on protective gear including a lab coat, ear plugs, helmet, apron, hair net, safety glasses, steel-toed boots and gloves.  The time spent putting on and taking off this protective gear could not be considered merely "changing clothes" because the employer regarded them as necessary safety equipment and they were not items employees would normally wear.  Therefore, the court ruled that the time was compensable. 

Robert L. Abell
June 17, 2008

Paramedics Entitled to Overtime Compensation

Paramedics are entitled to recover overtime compensation the United States Court of Appeals for the Third Circuit recently ruled in Lawrence v. City of Philadelphia (No. 06-4564 decided May 28, 2008 and available at the Third Circuit website).  The paramedics, whose job titles were "fire service paramedics," were employed by the City of Philadelphia Fire Department.  Their eligibility for overtime turned on whether they had "legal authority and responsibility" for fire suppression activities.  The court ruled they were not for the following reasons: (1) their job descriptions did not mention any fire protection related examples of work to be performed; (2) a paramedic unit is not always dispatched to a fire scene; (3) they provide emergency medical services in all types of situations not just in response to fires; (4) there was no evidence of a paramedic engaging in active firefighting; and, (5) the paramedics were not trained in advanced firefighting techniques and were not certified firefighters.   

Robert L. Abell
June 2, 2008

Discrimination Claims Not Barred by Arbitration Decision

Is an employee barred from bringing claims in a lawsuit under anti-discrimination statutes because of an adverse ruling by an arbitrator under a union contract?  "No," the Sixth Circuit ruled and reiterated recently in Nance v. Goodyear Tire & Rubber Company (decided May 23, 2008). 

The employee, Nance, suffered from a variety of medical problems following a work-related injury.  She attempted and failed to return to work due to these problems.  The company fired her and asserted that she violated a "no call, no show" rule and had "resigned without notice" under a union contract.  She filed a grievance, it went to arbitration and the arbitrator ruled that her firing did not violate the union contract.  Nance then filed suit, claiming, among other things, that her firing violated the Americans With Disabilities Act and other laws.  The trial court dismissed the case, ruling that her claims were barred by the arbitrator's adverse decision.  This was error, according to the Sixth Circuit.

The court first noted that Nance's rights under the union contract were of a "distinctly different nature" than the "independent statutory rights" accorded by the anti-discrimination statutes.  Second, an arbitrator is not competent to adjudicate claims under anti-discrimination laws: "the expertise of arbitrators lies in the application of facts to the terms of an employee's contract or collective bargaining agreement [and] the expertise of federal courts lies in the application of facts to anti-discrimination statutes."  Furthermore, the court added, the irregular procedures used in arbitration -- the absence of the right to trial by jury, the usual absence for an arbitrator to explain their decision, the truncated and incomplete records usually generated in arbitration proceedings, the limited judicial review and the spotty application of evidence and other rules -- were generally inadequate to assure protection of the important rights guaranteed under anti-discrimination statutes.  However, the court did allow that evidence of an arbitrator's decision could be considered depending on the degree of procedural fairness, the adequacy of the record and the particular expertise of the arbitrator.

Robert L. Abell
May 27, 2008

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

 After enduring several years of having their co-workers refer to them as "boy," "hey boy," or "damn it boy" and being subjected to other forms of racial harassment, two black men, Bobby Bailey and Robert Smith, filed suit and were each awarded after a judge trial compensatory damages for emotional distress and mental anguish of $350,000.   The verdicts were upheld by the Sixth Circuit in Bailey v. USF Holland, Inc. (No. 07-5304, decided May 16, 2008).

The workplace at this company was permeated with racism.  Racist and derogatory comments were directed at the plaintiffs, racist graffiti was sprayed in the employee locker rooms and restrooms and a noose appeared in the workplace.  The employer's response was at best half-hearted.  One employee advised that he would continue to spout racist epithets and did, despite human resources training.  A lawyer was hired who wrote a white-wash report downplaying the racist atmosphere.  One employee who was fired supposedly for his racist misconduct was reinstated.  The company did not install security cameras and stop the racist graffiti until nearly a year after the suit had been filed.  The trial court judge awarded the maximum amount of compensatory damages under federal law ($300,000) and an additional $50,000 under state law. 

Robert L. Abell
May 21, 2008

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ROBERT L. ABELL
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Lexington, KY 40507

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• 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. 
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