Frequently Asked Questions
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Is Reporting Suspected Waste or Mismanagement to a University Vice President Protected under the Whistleblower Act?
The short and simple answer to the question is "yes," but, as with most things, content and context of the report is what really decides the question. The Kentucky Supreme Court made this decision in a recent decision, Harper v. University of Louisville, and the analysis there is helpful to look at.
Harper worked in the university's communications and marketing department. In 2009, an advertising agency quoted a production budget of $100,000 for a television commercial that would go on during a university football game. Harper had experience working with national advertising agencies and knew this was too high; among other things, another agency had done a "similar commercial" for the university the previous year for a cost of only $50,000. She told her supervisor, Griffith, that $100,000 was too much, that a lower price could be negotiated and "that an overpayment of that magnitude would be wasteful of taxpayer dollars, especially when University programs were being cut back because of budget constraints." Griffith, the boss, responded by "throwing a pencil across the desk and telling Harper to stop thinking like that." Harper then went to University Vice President John Drees regarding the matter and expressed these same concerns. Drees told Harper that she wasn't helping herself by bringing up such matters, that "she may not do herself well by going forward with those concerns" and reporting them to others.
The Kentucky Supreme Court ruled that Harper's report of the matter to Drees, the university VP, was protected whistleblowing and explained as follows:
Harper’s concern explicitly focused upon what she “suspected” to be wasteful overspending of public funds. Government employees should not be penalized for expressing such opinions. [The Kentucky Whistleblower Act) was enacted to encourage such expressions.
An employee’s report to an “appropriate body or authority” means “any public body or authority with the power to remedy or report the perceived misconduct.” … [Drees’] warning to Harper does not remove him from the class of University officials with the power and authority to act on Harper’s concern. We conclude that an objectively reasonable report of suspected waste or mismanagement to a University vice president qualifies as a protected disclosure under the [Kentucky Whistleblower Act].
So the content of Harper's report was that the university was wasting taxpayer money by overpaying the advertising agency to produce the ad, and Harper had good reason to believe this so since she had experience with national advertising agencies and the year before a similar ad had been produced for only $50,000. Harper was not venting an uninformed opinion or complaint -- she knew what she was talking about -- and she brought those concerns to someone who could act to remedy the situation, Drees, the VP.
The Court's decision and analysis in Harper is an important case under the whistleblower law; we've discussed it in other posts: Is a Complaint or Report about Nepotism Covered by the Kentucky Whistleblower Act?
What If the Company's Doctor Disagrees with Mine about My Impairment Rating?
It often happens that the doctor employed by the workers compensation insurance company disagrees with the impairment rating assigned for the work injury by the injured worker's doctor. Such a disagreement in a Kentucky workers compensation case is resolved by the ALJ, who acts as the factfinder. A recent case decided by the Kentucky Supreme Court, Toyota Motor Manufacturing v. Prichard, illustrates and helps explain how this works.
Prichard suffered a neck injury while working on the assembly line at Toyota in March 2005. She was diagnosed with a cervical strain and degenerative disc disease in her neck area. In November 2007, an ALJ found that she had a permanent impairment rating of 8% and awarded permanent partial disability benefits (PPD benefits) on this basis. Prichard's condition worsened, she reopened her Kentucky workers compensation claim, and in September 2011, the ALJ determined that her impairment rating has increased from 8% to 28%. Prichard's condition continued to deteriorate and her doctor concluded in April 2014 that she was no longer physically capable of working in any capacity, even in a sedentary job. His conclusion would support a finding that Prichard's impairment rating was 100%.
Toyota offered expert medical testimony from its own doctor, Dr. Timir Banerjee. Dr. Banerjee concluded in testified that Prichard's condition had remained unchanged with an impairment rating of 8% since he first examined her in 2009.
The ALJ agreed with Prichard and found that she was totally disabled (her impairment rating is 100%) based on the "persuasive, compelling and reliable" medical evidence. Toyota argued to the Kentucky Supreme Court that its doctor, Dr. Banerjee, was right and Prichard's doctor was wrong. That argument went nowhere as the Court explained: "Dr. Banerjee's opposing view constitutes merely a battle of the experts, the resolution of which is properly left to the ALJ as the individual privileged to view first-hand the totality of the evidence and the credibility of the witnesses."
So the answer is this: where the injured worker's doctor and the doctor hired by the company or by its workers compensation insurance company disagree as to the scope of the permanent impairment created by the work-related injury, it is up to the ALJ to decide which to credit. Only in very, very, very rare circumstances will the ALJ's decision as to this type of fact be overturned on appeal.
Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and families on Kentucky workers compensation claim; contact him at 859-254-7076.
Can I Reopen My Kentucky Workers Compensation Claim If My Medical Condition Has Worsened?
The answer is yes. However and as with other legal claims, there is a time limit and other requirements. There is a four-year limitation period to reopen a Kentucky workers compensation claim.
A case, Toyota Motor Manufacturing v. Prichard, recently decided by the Kentucky Supreme Court provides a good illustration of how and when a Kentucky workers compensation claim may be reopened because of a deteriorating and worsening medical condition.
The worker, Prichard, suffered a neck injury while working on the assembly line at Toyota on March 16, 2005. She was diagnosed with a cervical strain and degenerative disc disease in her neck area. She filed a Kentucky workers compensation claim on March 14, 2007, and on November 13, 2007, and ALJ found she had a permanent impairment rating of 8% and awarded her permanent partial disability (often referred to as "PPD benefits) benefits corresponding to that impairment rating. Prichard tried to return to work, but her condition worsened and she had cervical fusion surgery performed in August 2008.
Prichard moved in April 2009, well within the four-year limitation period, to reopen her original 2007 award, because her injuring and resulting impairment had worsened. An ALJ ruled in September 2011 that her impairment rating had increased from 8% to 28%, a ruling that entitled her to a corresponding increase in PPD benefits.
Prichard's medical condition continued to deteriorate. In April 2014, her doctor concluded that she was unable to perform even sedentary work, something she had previously been thought able to perform. On August 12, 2014, Prichard moved to reopen the 2011 award. This time the ALJ in an opinion and Ward issued May 20, 2015, concluded that as a result of the further deterioration of Prichard's work-related cervical condition, she was totally disabled.
Toyota appealed and argued that Prichard's right to reopen her Kentucky workers compensation claim was cut off four years after the initial 2007 award. The Kentucky Supreme Court rejected that ruling and reiterated the rule as follows: when an order granting or denying workers compensation benefits has been entered subsequent to the date of the original award, the four-year limitation period for reopening the claim is calculated from the later date, rather than from the original award.
There is no limit on the number of times that a Kentucky workers compensation claim may be reopened, but each reopening must occur within the four-year limitation period of the date that the last order either granting or denying benefits was entered. Obviously, problems of proof – tying the worsening condition to the initial work injury – arise as more and more time passes from the date of the injury.
When Can a Kentucky Workers Compensation Claim Be Reopened?
There are a number of circumstances in which they Kentucky workers compensation claim needs to be reopened. The two most common are (1) where the problems caused by the work injury worsen and the injured worker becomes entitled to a greater amount of permanent partial disability (often referred to as PPD benefits); and/or, (2) further medical treatment is necessary to deal with the problems caused by the work injury.
There are two basic limits and requirements to reopening a Kentucky workers compensation claim. The first is a time limit. A Kentucky workers compensation claim cannot be reopened when more than four years have passed since the last order granting or denying benefits was entered. The second is the requirement of proof or evidence of a greater impairment rating and/or the need for additional medical treatment.
A case, Toyota Motor Manufacturing v. Prichard, provides a helpful discussion and illustration for when reopening a Kentucky workers compensation claim is necessary. The worker sustained a neck injury working on the assembly line at Toyota on March 16, 2005. She filed a Kentucky workers compensation claim on March 14, 2007, and later that year, on November 13, 2007, she was awarded permanent partial disability (PPD) benefits based on a permanent impairment rating of 8%. She tried to return to work but encountered continuing and escalating problems. In August 2008, she had cervical fusion surgery.
Prichard in April 2009 filed to reopen her 2007 award because her injury and the resulting impairment and worsened. More than two years later, in September 2011, an ALJ ruled that her permanent impairment rating had increased from 8% to 28%, a decision that in turn increase the amount of PPD benefits to which she was entitled.
Despite the surgery, Prichard's condition continued to deteriorate and her doctor concluded in April 2014 that she was no longer able to perform even sedentary work. A few months later, on August 12, 2014, Prichard sought to reopen the 2011 award. Notwithstanding testimony from Toyotas medical expert that her condition had not changed since 2009, Prichard was deemed totally disabled by the ALJ in an opinion issued May 20, 2015, because of further deterioration of her work-related cervical condition injury.
Toyota appealed and argued, among other things, that Prichard had only four years after the original and the initial Kentucky workers compensation award in 2007. The Kentucky Supreme Court had already rejected this type of argument in a 2008 case and did so again. The court reiterated the rule as follows: when an order granting or denying workers compensation benefits has been entered subsequent to the date of the original award, the four-year limitation period to reopen is calculated from the later date, rather than from the original award. Since Prichard sought in 2014 to reopen the 2011 award, she was within the four-year limitation period.
Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases; contact him at 859-254-7076.
Has Your Claim for Disability Insurance Benefits Been Denied Based on a Preexisting Condition?
Many disability insurance policies have a "pre-existing condition" limitation that either bars payment of any benefits or limits payment of them to some specific time period, most often 12 months. This bar or limit applies, for instance, where the claimant's disability is "caused by," "contributed to by," or "resulting from" a pre-existing condition.
It is not at all unusual for a claimant to find themself disabled due to a number of illnesses and conditions, at least one of which may be a pre-existing condition. Does this mean that the claim will be barred or payment of benefits be limited on account of the pre-existing condition? Maybe but not necessarily.
If the claimant's disability is due to a number of factors including a pre-existing condition the key question will be whether the claimant would still be disabled even if the pre-existing condition did not exist. Courts call this a "but for"test, as in but for the pre-existing condition the claimant would not be disabled under the terms of the policy. We have a good discussion of this type of "but for" analysis regarding a case involving a disability insurance policy issued by Reliance Standard, Has Reliance Standard Denied Your Disability Insurance Benefits Claim Based on a Mental Disorder or Condition?
Are government or public employees protected for their political activity?
As a general rule, the First Amendment protects public or government employees from adverse employment action based on their political activity or support. This is not an absolute rule, and there are exceptions, which most often depend on the employee's job and the activity. See Political Activity & Government Employees.
These are usually referred to as political discrimination cases.
Lexington, Kentucky employment lawyer Robert Abell represents individuals and employees in political discrimination cases; contact him at 859-254-7076.
Is Mandatory Overtime Included in Calculating FMLA-leave Allotment?
An employee's mandatory overtime should be included in calculating the employee's total FMLA-leave allotment. This was the conclusion of the U.S. Court of Appeals recently in its case, Hernandez v. Bridgestone Americas Tire Operations.
The Court also addressed what to do when, as is not unusual, the employee's number of overtime hours varied from week to week: use the weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period.
Lexington, Kentucky FMLA lawyer Robert Abell represents employees with regard to their FMLA leave and rights; contact him at 859-254-7076.
What can an employee do where the employer knows he's working overtime but isn't paying overtime?
When an employee is working overtime and the employer knows the employee is working overtime, the employer is required to pay the overtime to the employee that he or she has earned.
Here's a helpful rule from a recent decision, Craig v. Bridges Brothers Trucking, by the Sixth Circuit Court of Appeals, which covers Kentucky:
if an "employer knows or has reason to believe" that an employee "is continuing to work" in excess of forty hours a week, "the time is working time" and must be compensated at time-and-a-half, even if the extra work performed was "not requested" or even officially prohibited.
That's the standard: if an employer has reason to believe an employee is working overtime, the employee must be paid overtime. This is true even if there is a rule by the employer that prohibits overtime.
Lexington, Kentucky overtime lawyer Robert Abell helps employees and individuals recover the overtime they've earned but not been paid; contact him at 859-254-7076.
Does Kentucky workers compensation cover an injury sustained in a pre-employment physical?
The answer is "no," according to the Kentucky Supreme Court's decision in Rahla v. Medical Center.
Here's what happened in this case. Rahla was offered a job by the medical center contingent upon her passing a physical exam and a drug test. As part of the physical exam, she was required to lift some objects, as lifting was part of her regular job duties. She claimed for her Kentucky workers compensation claim that she hurt her neck doing this lifting, although she said nothing at the time and in fact passed the physical exam. But after she worked at the medical center for a number of weeks, Rahla began having problems with her neck, serious problems that required her to miss work and she was eventually terminated as a result of those absences.
But the Court ruled that Kentucky workers compensation law does not cover injuries sustained in a pre-employment physical exam, the reason being that it occurs prior to the official start of the employment relationship.
Lexington, Kentucky work injury lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases; contact him at 859-254-7076.
How Long Do I have to file an Overtime Claim Under Kentucky and Federal Law?
Kentucky law has a five (5) year limitation period on the filing of claims for unpaid overtime. In other words, you can go back the last five years from today and recover all the unpaid overtime from that period.
Federal law has a shorter limitation period, two years for sure and three years in some instances.
Lexington, Kentucky overtime lawyer Robert Abell helps individuals and employees recover the overtime they've earned but not been paid; contact him at 859-254-7076.
What is the Statute of Limitations for an Unpaid Overtime Claim under Kentucky law?
Five (5) years. You can go back five years under Kentucky law to claim and get paid the overtime that's been earned but not been paid.
Lexington, Kentucky overtime lawyer Robert Abell helps individuals and employees recover the overtime they've earned but not been paid; contact him at 859-254-7076.
What is the Purpose of Punitive Damages under Kentucky law?
The Kentucky Supreme Court recently issued an extraordinary and inspiriting decision regarding punitive damages under Kentucky law. In St. Joseph Healthcare v. Thomas, our High Court explained the purpose of punitive damages under Kentucky law:
The purpose behind any award of punitive damages is "to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition. Historically, "punitive" or "exemplary" damages are given to the plaintiff over and above the full compensation for his injuries, for the purpose of punishing the defendant, or teaching him not to do it again, and of deterring others from following his example.
Lexington, Kentucky injury lawyer Robert Abell represents individuals and families injured by the intentional and negligent wrongdoing of others; contact him at 859-254-7076.
Are Restaurant Workers In Kentucky Exempt from Overtime?
Almost all restaurant workers in Kentucky are not exempt from overtime. A few restaurant workers in Kentucky, however, are exempt from overtime, but those are only the very few restaurant employees that work at a restaurant with less than $95,000 in sales for the five preceding years. This exclusion is found at 803 Kentucky Administrative Regulation 1075 Section 3.
So, a very few restaurant workers in Kentucky are exempt from overtime pay requirements but nearly all are not; almost all restaurant workers in Kentucky must be paid overtime if they work more than 40 hours in a workweek.
Lexington, Kentucky overtime lawyer Robert Abell helps individuals, workers and employees recover the wages and overtime they've earned but not been paid; contact him at 859-254-7076.
Protesting Discriminatory Treatment – What Is Protected Activity?
Both federal and Kentucky state law protect an employee or individual against retaliation when they have protested, complained of and/or opposed what they reasonably and in good faith believed to be unlawful discrimination directed either at themselves or a coworker. Such statements that protest, complain and/or constitute opposition to unlawful discrimination are considered "protected activity." But in the real world it is rare for people to couch their protest in the terms of legal argument and verbiage. So what kind of statement/protest may be sufficiently specific to indicate that it is a statement in fact protesting discriminatory treatment?
The federal court of appeals that covers Kentucky, the United States Court Of Appeals for the Sixth Circuit, discussed in a recent case whether the employee's statements were sufficiently specific to constitute protected activity, the statements being as follows:
- "I'm going to respond with counsel."
- "I'm going to bring you up on charges before..."
- "Bring a lawsuit against [the supervisor]"
- "Hostile work environment."
- "I will have an attorney respond."
- "I will be responding with charges."
The case is Yazdian v. ConMed Endoscopic.
This court decision, however, does not mean that such statements will always in any and every case be protected activity. Context means everything. The employee or person making the statements must be acting reasonable, which means they must have some legitimate basis for making such a statement, because such a statement out of the blue with no context would not be protected activity. These issues necessarily must be reviewed and decided on a case-by-case basis. There is no bright line.
Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in discrimination and retaliation cases; contact him at 859-254-7076.
How Do You Prove You Worked the Overtime Hours?
Although an employer is legally required to maintain accurate records of the hours an employee works, it is not unusual for employers to fail to do this, like when they coerce an employee to work off the clock, or just in some other way engage in wage theft. What if the individual's own testimony about the hours he or she worked is the only evidence that can be presented to support an overtime claim? Is this enough?
The answer is "yes," at least according to a recent decision by the United States Court of Appeals for the Sixth Circuit, which covers Kentucky, in Moran v Al Basit LLC (June 1, 2015).
Keep in mind that this doesn't mean that the employee will always win the case where the only evidence they can submit in support of their overtime claim is their own testimony: a jury may not choose to believe them or may only accept their testimony in part. But if fully credited an individual's testimony alone that he or she worked the claimed overtime hours is enough to prove the claim.
Lexington, Kentucky overtime lawyer Robert Abell represents individuals and employees in recovering the wages and overtime they've earned but not been paid; contact him at 859-254-7076.
Can Religious Practice be Considered in Employment Decisions?
Both federal and Kentucky state law prohibit religious discrimination in employment. But what does this mean? Can an employee's or an applicant's religious practice be considered in employment decisions such as hiring, promotions, raises?
The answer is "no" and the Supreme Court stated the simple rule recently:
An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
This simple rule was announced in the recent decision, EEOC v Abercrombie & Fitch, which is further discussed in another post: Religious Discrimination-the Supreme Court Announces a Rule.
Is High Blood Pressure a Disability Covered by the ADA?
The answer is yes, according to the ruling of a federal appeals court in the case, Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1173 (7th Cir. 2013).
In this case, the plaintiff had a blood pressure spike that created a short-terms problem that quickly passed. The court mainly decided what the transitory nature of the spike meant in terms of whether the high blood pressure was a condition constituting a disability under the ADA with the following analysis:
Gogos's episode of a blood-pressure spike and vision loss are covered disabilities. He attributes both problems to his longstanding blood-pressure condition, and the ADA's implementing regulation lists hypertension as an example of an “impairment[ ] that may be episodic.” Under the 2008 amendments, “[t]he fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity.” 29 C.F.R. Pt. 1630, App. at Section 1630.2(j)(1)(vii). Instead, the relevant issue is whether, despite their short duration in this case, Gogos's higher-than-usual blood pressure and vision loss substantially impaired a major life activity when they occurred. See id. Construing the complaint generously and drawing reasonable inferences in Gogos's favor, we conclude that they did. Gogos alleges that his episode of “very high” blood pressure and intermittent blindness substantially impaired two major life activities: his circulatory function and eyesight. 42 U.S.C. § 12102(2). Accordingly, he has alleged a covered disability.
Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in disability discrimination cases under the ADA; contact him at 859-254-7076.
Is Telling a Supervisor To Stop His Sexual Harassment Protected Activity?
Both federal and Kentucky state law make it unlawful to retaliate against an employee that has opposed some unlawful employment practice such as sexual harassment. The courts characterize the key question as whether the employee engaged in "protected activity"; if so, the anti-retaliation provisions apply.
If an employee tells her supervisor to stop sexually harassing her is it protected activity? That simple question was decided recently by the Sixth Circuit, which covers Kentucky, in EEOC v New Breed Logistics.
Three employees, Pete, Pearson and Hines all were sexually harassed their supervisor, Calhoun, and, in one way or another, told him to stop it. Another employee, Partee, a male, told Calhoun that he should stop sexually harassing the female employees or he would get in trouble.
The employer, New Breed Logistics out of Memphis, argued that what these four employees, Pete, Pearson, Hines and Partee, said and/or did was not "protected activity" and, therefore, they had no basis for any retaliation claim arising from their subsequent firing. The Sixth Circuit rejected this argument and explained as follows:
we conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct.
This ruling as to the employees' protected activity was one part of a decision that upheld a jury's verdict awarding and assessing some $1.5 million to the four employees.
When is a disability covered by the ADA?
For a medical or other condition to be a "disability" covered by the Americans With Disabilities Act (ADA) two basic things are necessary: the condition must be (1) substantially limit the for the person (2) a major life activity.
Here's an example from a recent case, Jacobs v North Carolina Administrative Office of Courts. Jacobs worked as a deputy courthouse clerk at a county courthouse in North Carolina. She was diagnosed with and had long suffered from a condition known as Social Anxiety Disorder. She requested a reasonable accommodation, to be assigned to work elsewhere in the clerk's office aside from the front desk where she was called upon to interact with lawyers, defendants, and other members of the public throughout the day. Her employer refused and instead made up a reason to fire her. Jacobs filed suit claiming that the refusal to reassign her and her firing violated the ADA.
The court first considered whether Jacobs' condition affected a "major life activity." This was an easy question, since a "major life activity" is one of "central importance to daily life" and "few activities are more central to the human condition than interacting with others."
Then the employer argued that Jacobs was not substantially limited in interacting with others because she “interact[ed] with others on a daily basis,” “routinely answered inquiries from the public at the front counter,” “socialized with her co-workers outside of work,” and engaged in social interaction on Facebook. This argument when nowhere and too far as the Court observed:
The [EEOC] regulations define a substantially limiting impairment as one that “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” ... A person need not live as a hermit in order to be “substantially limited” in interacting with others.
The key here, the main test is whether the condition substantially limits the individual's ability to do the activity "as compared to most people in the general population." I'd put it, does the condition make it harder for the individual than it does for most people in the general population?
When Can an Employer Require a Medical Exam under the ADA?
An employer may consistent with the Americans With Disabilities Act (ADA) require an employee to submit to a medical exam where the exam or the related medical inquiry is both job-related and consistent with business necessity. 42 USC 12112(d)(4)(A).
This means at least two things: (1) the business necessity standard cannot be satisfied by an employer's bare assertion that a medical examination was merel convenient or expedient. (2) the individual who decides to require a medical examination must have a reasonable belief based on objective evidence that the employee's behavior threatens a vital function of the business. These points were discussed by the Sixth Circuit, the federal appeals court that covers Kentucky, in its case, Kroll v. White Lake Ambulance Authority.
Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in cases under the Americans With Disabilities Act (ADA); contact him at 859-254-7076.