Frequently Asked Questions

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  • Is Social Anxiety Disorder a Disability Covered by the ADA?

    "Yes" appears to be the answer, according to a recent ruling by the United States Court of Appeals for the Fourth Circuit in the case Jacobs v. North Carolina Court System. While the decision is technically binding only in the states of the Fourth Circuit, North Carolina, South Carolina, Virginia, West Virginia and Maryland, it almost surely would be followed by other courts including those in Kentucky.  

    Christina Jacobs was hired on as a deputy courthouse clerk at the New Hanover County courthouse in North Carolina.  She was a good employee and was assigned to the front desk in the clerk's office, a job that caused her to have direct and frequent contact with lawyers and other individuals that did business daily with the clerk's office.  She told her bosses about her diagnosis of social anxiety disorder and requested that she be assigned to other duties in the clerk's office (it was a pretty large office with about 30 employees).  Her request for a reassignment was a request for a reasonable accomodation.

    The employer, the North Carolina court system, asserted as a defense that "social anxiety disorder" was not a disability covered by the ADA, which, if true, meant it had no duty to consider let alone grant Jacobs' request.  The Court rejected this argument and ruled that "social anxiety disorder" was a disability covered by the Americans With Disabilities Act (ADA).  

    There is a two-step process to determining whether a condition is a "disability" under the ADA: (1) whether it affects a major life activity; and, (2) if it does affect a major life activity, whether it substantially limits the person's ability to perform or engage in the activity.

    Jacobs' case was easy on the first point, since, as the Court pointed out, "Few activities are more central to the human condition than interacting with others." As to the second, the Court ruled that Jacobs did not have to prove that she could function only as a hermit.

     

     

  • Are Bonuses Considered in An Employee's Overtime Rate?

    Non-discretionary bonuses must be included and considered when calculating an employee's regular hourly rate for purposes of overtime pay.  Examples of non-discretionary bonuses include bonuses promised in an agreement (such as an employment contract or collective bargaining agreement), bonuses tied to performance evaluations, incentive bonuses, service anniversary bonuses, attendance bonuses, production bonuses and retention bonuses.  Basically, a non-discretionary bonus is one payable if the employee does something, i.e., exceeds a sales goal, or, in some cases, doesn't do something, i.e., does not miss any workdays.

    Lexington, Kentucky overtime lawyer Robert Abell helps employees and individuals recover the overtime and wages they've earned but not been paid; contact him at 859-254-7076.

  • Employee or Independent Contractor?

    The courts have labeled the test that decides whether someone is an employee or an independent contractor the "economic realities" test. This "economic realities" test has 6 factors as follows:

    1. the permanency of the relationship between the parties
    2. the degree of skill required to perform the job or provide the service
    3. the worker's investment in equipment or materials for the task
    4. the worker's opportunity for profit or loss, depending on his or her skill level
    5. the degree to which the alleged employer has the right to control the manner in which the work is done
    6. whether the service rendered is an integral part of the alleged employer's business.

    All of these factors are supposed to be given more or less equal weight and the totality of the circumstances considered to determine whether the worker is an employee entitled to overtime or an independent contractor, who is not.

    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. 

  • Does the ADA Require an Employer to Rethink its Processes?

    The Americans With Disabilities Act (ADA) requires an employer to consider what might be a reasonable accommodation for a particular, individual employee with a covered disability.  This requirement imposes a duty to make a true and thorough consideration, as the Seventh Circuit Court of Appeals describes in Miller v. Illinois Dept of Transportation, 643 F.3d 190, 199 (7th Cir. 2011):

    The ADA does not give employers unfettered discretion to decide what is reasonable. The law requires an employer to rethink its preferred practices or established methods of operation. Employers must, at a minimum, consider possible modifications of jobs, processes, or tasks so as to allow an employee with a disability to work, even where established practices or methods seem to be the most efficient or serve otherwise legitimate purposes in the workplace. ... The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work.

    This doesn't mean that anything and everything must be considered as a reasonable accommodation under the ADA; but it does obviously mean that more than lip service must be given to the process.

    Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in disability discrimination cases under the ADA; contact him at 859-254-7076.

  • Is a shift supervisor entitled to overtime pay?

    Shift supervisors can be entitled to overtime pay, but only in limited circumstances depending on factors that are special or particular to their work situation.  One of the factors is whether the shift supervisor has hire or fire authority or at least their "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees [must be] given particular weight." This issue was discussed by the Sixth Circuit Court of Appeals in Bacon v. Eaton Corp., No 13-1816 (6th Cir., May 1, 2014). The Court did state one clear rule: "As a matter of law, an employee who merely carries out the orders of a superior to effectuate a change in status in not performing exempt ... duties." 

    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 are my rights as a tipped employee?

    A "tipped employee" under the law is one who customarily and regularly receives more than $30 a month in tips. For a tipped employee, his or her tips may be counted as wages toward reaching the minimum wage of $7.25 per hour (the minimum wage at present). This is known as the “tip credit” because the employer receives a “credit” toward the minimum wage requirements. However, this tip credit does not release the employer of its obligation to pay each tipped employee a minimum wage. A tipped employee must be paid at least $2.13 an hour – regardless of how much is made in tips. If a tipped employee is not paid this direct wage, there may be a claim for failure to pay minimum wage. 

    Federal law and Kentucky state law requires employers who use a tip credit to meet the following requirements: 

    1. Inform each tipped employee about the tip credit allowance (including amount credited) before the credit is utilized; AND
    2. Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined; AND
    3. Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.

    All three of these prongs must be met for a valid tip credit. If any one of these has not been met, the tip credit is invalid, and the tipped employee may have a claim for a minimum wage violation.

    For instance, even if the tipped employee's hourly rate comes out to be $7.25 (including tips and direct wages), the tipped employee may still have a claim for lost wages, if he or she is not informed of the employer's intention to apply a tip credit. Additionally, if the employer fails to adequately explain the tip credit provision to the tipped employee before it is applied to the employee, the tip credit is invalid and there may be a claim for a minimum wage violation. 

  • What is the business necessity enough to allow an employer to require an employee to submit to a medical exam?

    Under the Americans With Disabilities Act (ADA) an employer may 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).

    So what does that mean? 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.  

  • What is necessary for a finding of permanent partial disability under Kentucky workers compensation law?

    A finding of permanent partial disability under Kentucky workers compensation law must be supported by evidence of a permanent disability rating, which, in turn, requires a medical expert to determine the injured worker's degree of permanent impairment.  KRS 342.0011(11)(b), (c). What this means is that a medical expert must give evidence establishing the degree of an injured worker's permanent impairment.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents workers and employees in Kentucky workers compensation cases; contact him at 859-254-7076. 

  • When a worker has sustained multiple injuries, should a preexisting impairment be excluded from present impairment when calculating an award?

    Under Kentucky workers compensation law, when a worker has suffered multiple injuries, a preexisting impairment should be excluded when calculating a present award.  See Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003). 

    So what does that mean? Suppose a worker suffered a work injury in 1995 and another one in 2010, and the issue is the award of Kentucky workers compensation due because of the 2010 injury.  The ALJ has to determine the worker's overall impairment, then subtract the impairment attributable to the 1995 injury to reach the impairment for the 2010 injury and the award of Kentucky workers compensation benefits due for it.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents workers and employees in Kentucky workers compensation cases; contact him at 859-254-7076.  

  • Is a First Assistant Manager Exempt from Overtime?

    The answer is "it depends," as best shown by a recent decision by the United States Court Of Appeals for the Sixth Circuit, Little v. Belle Tire Distributors, Inc.

    The employee's job title was First Assistant Manager. He was paid a salary of $1100 per month. He claimed he is entitled to overtime; the employer claimed he was exempt from overtime under either the executive or administrative exemption. The court characterized the dispute as follows: "Belle Tire seeks to paint Little as influential in hiring and as actively leading employee training and other management task. Little, on the other hand, seeks to characterize himself as a salesman who provides clerical-type assistance to the store manager." The court's ruling was that the dispute was for a jury to decide.

    This case again illustrates the point that just because an employee is paid a salary and has a job title including the word "manager," he or she is exempt from overtime. Whether or not the employee is or is not exempt from overtime depends upon what their actual job duties and functions are: do they actively lead employee training and carry on other management tasks or are they a salesman who happens also to provide some clerical assistance to their store manager?

    We have discussed previously these issues: Are Shift Supervisors Exempt from Overtime Pay Requirements?What is the Administrative Exemption to the Overtime Pay Requirement? and Are store managers exempt from overtime in Kentucky?

    Lexington, Kentucky overtime lawyer Robert Abell helps individuals and employees recover the wages and overtime they have earned but not been paid; contact him at 859-254-7076.

     

  • Is An Injury Sustained in the Parking Lot Covered by Kentucky Workers Compensation?

    The answer, as the Kentucky Supreme Court, recently stated once again is it depends.  This is a case-by-case issue. 

    In Hanik v. Christopher & Banks, the injured employee, Kim Hanik, slipped on "black ice" in the parking lot where she worked. The store where Hanik worked was located in a shopping center that had two lots, a front and a back. The back lot was used mostly by employees of the various stores, although customers could use it.  In reality, customers rarely used the back lot, because it would necessitate a long walk around the buildings, while the employees could enter their stores through their backdoors that faced the back lot.  Nevertheless, the Kentucky Supreme Court by a 4-3 split ruled that the parking lot where Hanik fell was not part of her workplace for purposes of Kentucky workers compensation.

    Under Kentucky workers compensation law there are four factors used to determine whether a parking lot should be considered part of the workplace:

    (1) whether the employer, either directly or indirectly, owns, maintains, or controls the parking facility or a portion thereof;

    (2) whether the employer designated where in the parking facility its employees are to park;

    (3) whether the employee parked in the designated area; and

    (4) whether the employee was taking a reasonable path from his/her car to his/her work station when injured. 

    The workers compensation ALJ will make the fact finding on this, so the evidence at the hearing is critical.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and employees in claims for Kentucky workers compensation benefits; contact him at 859-254-7076. 

  • Construction Workers - Are You Really an Independent Contractor?

    About 20% of construction workers are improperly and unlawfully misclassified as independent contractors instead of employees. This comes as part of the Lexington Herald-Leader's study on the intentional and widespread abuse and misuse of the independent contractor classification. See End Independent Contractor Tax Dodge by Construction Companies

    By wrongly misclassifying employees as independent contractors employers can competitive advantage by cheating on at least four different points: (1) they get out of paying overtime to the employees; (2) they get out of paying payroll taxes; (3) they get out of paying unemployment compensation insurance; and, (4) they get out of paying workers compensation insurance. 

    Employees that have been cheated out of overtime because they've been misclassified as an independent contractor do have some recourse: they can file suit to recover the overtime they've earned but not been paid under both federal and Kentucky state law.  

    Lexington, Kentucky overtime lawyer Robert Abell represents employees and individuals recover the overtime they have earned but not been paid, contact him at 859-254-7076. 

  • Can an Employer Fire An Employee Because the Employee Refuses to Commit Perjury?

    No.  Kentucky courts have ruled that an employee fired because he or she refuses to commit perjury in a legal proceeding may pursue a claim for wrongful discharge to recover their damages as well as punitive damages. Hill v Kentucky Lottery Corp, 327 SW3d 412 (Ky 2010) and Northeast Health Mgmt., Inc. v. Cotton, 56 S.W.3d 440, 449 (Ky App. 2001). The Sixth Circuit recently upheld a jury's verdict in a fired employee's favor where the jury found that the employee was fired for refusing to commit perjury in regard to a sex discrimination case against the employer. Burton v. Zwicker & Associates, No 13-5406 (August 22, 2014)

    The Burton decision is discussed further on Robert Abell's Kentucky Employment Law Blog: An Employer Cannot Fire An Employee Because the Employee Refuses to Commit Perjury.

     

  • What does the Pregnancy Discrimination Act protect against?

    The Pregnancy Discrimination Act offers the following protections:

         1. An employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action.

         2. The discrimination prohibition applies to all aspects of employment, including pay, job assignments,promotions, layoffs, training, and fringe benefits (such as leave and health insurance).

     

  • What are the basic protections against pregnancy discrimination?

    At their most basic the protections against pregnancy discrimination in the Pregnancy Discrimination Act are the following:

    1. Women affected by pregnancy, childbirth or related medical conditions must be treated in the same manner as other employees or applicants that are similar in their ability or inability to work.
    2. The Pregnancy Discrimination Act applies to all aspects of employment including hiring, firing, promotions, fringe benefits, etc.
    3. The protections against pregnancy discrimination apply with respect to current pregnancy, past pregnancy and potential pregnancy. 

     

  • Can An Employer Bar Employees From Comparing or Discussing Their Pay or Wage Rates?

    The answer is probably no. Recently, the United States Court of Appeals ruled in Flex Frac Logistics v. National Labor Relations Board that an employer policy that could be reasonably interpreted as forbidding employees from discussing and comparing their pay rates violated the National Labor Relations Act. 

    But this court decision is not necessarily the last word and other employers may have differences in the language of their policies that make a difference.  

  • Does Receiving Social Security Disability Benefits Bar an ADA Claim?

    Either receiving or having applied for Social Security disability benefits does not necessarily bar a claim under the Americans With Disabilities Act (ADA), although most often and usually it will.  This is because a claim under the ADA requires that the employee be physically capable of doing his or her job, with or without a reasonable accomodation, and a Social Security disability benefits claim may be (and often is) inconsistent with this, since a disability claim is based on a person's inability (to some degree or another) to work.

    But the Supreme Court has ruled that claims for Social Security disability benefits are not inherently inconsistent with ADA claims because a disabled worker might be able to perform essential job functions with reasonable accommodations in Cleveland v Policy Mgmt Sys Corp, 526 US 795, 797-98 (1999).

    Keep in mind that it will be the rare case in which someone who is receiving or has applied for Social Security disability benefits will still be able to go forward with their ADA claim. 

    Lexington, Kentucky disability rights lawyer Robert Abell represents individuals and employees in cases under the ADA; contact him at 859-254-7076. 

  • Are Shift Supervisors Exempt from Overtime Pay Requirements?

    The answer is maybe. Whether or not a shift supervisor is entitled to overtime will turn on whether or not the "executive" exemption applies to them. The "executive" exemption is sometimes referred to as the "manager" or "supervisor" exemption.  There is a four-part test that decides whether the application applies. The parts are as follows:

    1. the employee must be compensated on a salary basis of at least $455 per week;
       
    2. the employee's primary duty must be management of the enterprise or of a customarily recognized department or subdivision of it;
       
    3. the employee must customarily and regularly direct the work of two or more other employees; and,
       
    4. the employee must have  hire or fire authority or their "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees [must be] given particular weight."

    How these criteria apply is going to be different from employee to employee and will turn on their actual job duties and role in the workplace. For instance, a recent case regarded shift supervisors for the Eaton Corporation. Although there was evidence that they did evaluations for probationary employees, the Court ruled that the exemption may not apply if the employer did not really pay much attention to them. This case is discussed in greater length and detail on Robert Abell's Kentucky Employment Law Blog: Shift Supervisors and Overtime Pay.

    Lexington, Kentucky overtime lawyer Robert Abell represents individuals and employees seeking to recover the overtime and wages they've earned but not been paid; contact him at 859-254-7076. 

  • Should an Employee Request a Specific Accommodation for His or Her Disability?

    Yes; an employee that has a disability and requires a reasonable accommodation for that disability should be prepared to propose to his or her employer one or more specific accommodations for the disability. The accommodation may be a slight change in job duties or tasks, a reassignment to another position or something else. Keep in mind that what will be a reasonable accommodation is going to vary on a case-by-case basis because of the differences in an employee's disability, job duties and the employer's business.

    Once an employee proposes a specific reasonable accommodation, the employer can violate the Americans with Disabilities Act (ADA) if it fails to engage in an "interactive process" with the employee to determine how and whether the proposed reasonable accommodation can be achieved. Robert Abell discussedthis process and to post on his Kentucky Employment Law BlogADA: Should An Employee Propose a Specific Reasonable Accommodation? and ADA: An Employer's Good Faith Obligation.

    Lexington, Kentucky disability lawyer Robert Abell represents individuals and employees in cases and claims under the Americans with Disabilities Act (ADA); contact him at 859-254-7076.

  • What Is an Examination under Oath?

    An examination under oath is a device or procedure used by insurance companies that are investigating whether or not to pay a claim. An examination under oath requires a claimant to submit to questioning usually by a lawyer hired by the insurance company and answer the questions under oath. Many insurance policies have provisions in them that require an insured to submit to an examination under oath if the insurance company requests it. If the insurance company makes such a request and the claimant refuses to submit to the examination under oath, the claimant may very well breach the insurance policy and provide the insurance company with grounds for refusing to pay the claim.

    An examination under oath can have a legitimate purpose. Just because one is requested does not mean that the insurance company is being unfair or is trying to get out of paying a claim. If you do not understand how the insurance company is handling your claim, get in contact with an experienced insurance lawyer. You can reach Lexington, Kentucky insurance lawyer Robert Abell at 859-254-7076.