Frequently Asked Questions

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  • Can My Insurance Company Require Me to Take an Examination under Oath before It Pays My Claim?

    Probably if not almost surely your insurance policy has a clause or provision in it that says you must submit to an examination under oath if your insurance company requests one while it is considering whether or not to pay your claim. If the insurance company request that you take an examination under oath and you refuse to do so, the insurance company can probably claim that you have breached your responsibilities and obligations under the policy and, on those grounds, refuse to pay your claim.

    If you do not understand your insurance policy, or how your insurance company is handling your claim, contact an experienced insurance lawyer to get some good advice. You can reach Lexington, Kentucky insurance lawyer Robert Abell at 859-254-7076.

     

  • Can An Employer Require Employees to Disclose Their Prescription Medications?

    Generally, no. A sweeping requirement by an employer that all employees must disclose their prescription medications would likely violate the Americans With Disabilities Act (ADA). However, an employer may make employees disclose their medications where there is a safety or business reason for doing so. A safety reason might be where an employee operates machinery. 

    The answer to these type of questions is not often clear-cut and much will depend on the employee's job duties and work environment.  But a requirement that all employees no matter what they do must disclose their medications is going to raise some issues under the ADA.

    Lexington, Kentucky disability discrimination lawyer Robert Abell represents individuals and employees who have suffered discrimination on account of a disability; contact him at 859-254-7076. 

  • Is a problem concentrating a disability covered by the ADA?

    A problem concentrating can be a disability covered by the Americans With Disabilities Act.  For a physical or medical condition to constitute a disability under the ADA three (3) things must be shown: (1) that it is an impairment that (2) substantially limits (3) a major life activity. 

    Concentrating is a major life activity specifically identified under the 2008 amendments to the ADA as I discussed in an earlier post: What Is a Major Life Activity Under the ADA?  

    But just any problem concentrating does not rise to the level of one covered by the ADA: To show that the concentrating problem is a substantial limitation it must rise to the level of posing a significant restriction as to the condition, manner or duration of concentrating compared to the average person. 

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

  • Did Your Disability Benefits Insurance Company Deny Your Claim?

    Did your disability benefits insurance company deny your claim? Did your disability benefits insurance company deny your claim and tell you that it had a review of your file done by some doctor it hired? Did your disability benefits insurance company deny your claim and question your credibility?

    On this last point, the disability insurance company probably didn't call you an out and out liar. In its letter telling you that it was denying your claim, it probably said something like it had your file reviewed by some doctor it hired and file review did not find "objective evidence substantiating your complaints" or something like that. But their calling you a liar.

    Courts often take a dim view of disability insurance benefits insurance companies that turn down claims based on a file review while questioning the credibility of the claimant. One example is Javery v. Lucent Technology, Inc. Long Term Disability Plan, No. 12-3834 (6th Circuit, February 3, 2014)

    Don't just let the disability insurance benefits company come up with some bogus reason to turn down your claim; contact Lexington, Kentucky disability insurance benefits lawyer Robert Abell at 859-254-7076. 

  • Did Your Disability Insurance Company Turn Down Your Claim Based On A File Review?

    Disability insurance companies sometimes tell a claimant that their claim for disability insurance benefits is being turned down based on a file review by some doctor or other medical professional that the insurance company hired to do the review.  Aside from the fact that this type of ongoing business relationship can, shall we say, compromise the integrity of the reviewing medical professional.  But do the courts recognize the problems and weaknesses of a file review?

    Courts have recognized file reviews raise major issues in a number of situations, two in particular: (1) where the basis for the disability insurance benefits claim is a mental illness or claim; and, (2) where the insurance company disputes the claimant's credibility. Smith v. Bayer Corp. Long Term Disability Plan, 275 F. App’x 495 (6th Cir. 2008) and Evans v. UnumProvident Corp., 434 F.3d 866 (6th Cir. 2006) are court decisions recognizing the problems with file reviews. 

    Don't just allow the disability insurance benefits company tell you that they had your file reviewed and your claim is denied, especially if you have a valid claim.  Insurance companies expect that a certain number of claimants will just go away and forget about their claim. Contact Lexington, Kentucky disability insurance benefits lawyer Robert Abell at 859-254-7076. 

     

  • Is a Lifting Restriction A Disability Covered by the ADA?

    A lifting restriction can be a disability covered by the Americans With Disabilities Act (ADA).  Can be does not mean is. For a lifting restriction to be a disability covered by the ADA, the lifting restriction has to be sufficiently severe and the lifting restriction must be significant, meaning that lifting must be significantly more difficult than it is for the average person. 

    Remember: a temporary lifting restriction can still be a disability covered by the ADA as previously discussed: Lexington Disability Lawyer: Temporary Condition Can Be A Disability.

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

  • Is A Sleeping Problem A Disability Covered by the ADA?

    A sleeping problem can be a disability covered by the Americans With Disabilities Act.  For a physical or medical condition to constitute a disability under the ADA three (3) things must be shown (1) that it is an impairment that (2) substantially limits (3) a major life activity. 

    Courts have ruled that sleeping is a major life activity, one example being Pack v KMart Corp, 166 F3d 1300, 1305 (10th Cir 1999). 

    To show that the sleep problem is a substantial limitation it must rise to the level of posing a significant restriction as to the condition, manner or duration of sleep compared to the average person. Berry v. T-Mobile USA Inc, 490 F3d 1211 (10th Cir 2007).

    The bottom line on this is that the sleep problem must be a significant problem, one that markedly distinguishes the individual from the average person, none of whom sleep perfectly.

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

  • Can A Temporary Condition Be a Disability Covered by The ADA?

    A temporary condition can be a disability covered by the Americans With Disabilities Act, often referred to as the "ADA."  Following enactment of the ADA Amendments Act in 2008 the EEOC issued some regulations that, among other things, provide that an impairment lasting less than six months can constitute a disability covered by the ADA. 

    This doesn't mean that any condition can be a disability. The condition has to be "sufficiently severe" and it must substantially limit a person's ability to engage or participate in a major life activity. In other words, the condition must be pretty bad ("sufficiently severe") and it must have a pretty big and important impact on the person's day-to-day life ("major life activity").

    The scope of protections offered by the ADA (and its Kentucky law counterpart) are very much determined by the particular and specific facts involved.  You should consult with a knowledgeable and experienced ADA and disability discrimination lawyer. Contact Lexington, Kentucky ADA and disability discrimination lawyer Robert Abell at 859-254-7076.

  • What is the Administrative Exemption to the Overtime Pay Requirement?

    There are three basic requirements for an employee to meet the administrative exemption to overtime pay requirement.  The three requirements are as follows:

            1. The employee must be paid at least $455 per week.

            2. The employee's primary duties must relate directly to the general business operations of their employer or the employer's customers.

            3. The employee must regularly exercise true discretion and judgment as to significant matters.

    Work “directly related to management or general business operations” includes, but is not 
    limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality 
    control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; 
    human resources; employee benefits; labor relations; public relations; government relations; computer network, 
    Internet and database administration; legal and regulatory compliance; and similar activities. 

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

  • Can a Job Transfer without Loss of Pay or Benefits Be Unlawful?

    There are three basic ways that a job transfer, which does not include loss of pay or benefits, can be unlawful, which means, as the courts put it, that it constitutes an "adverse employment action." The three basic ways are as follows:

          1) If the transfer would effectively constitute a demotion because of a "less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."this was how the United States Supreme Court described it in Burlington Northern Railway Company v. White, 548 U.S. 53 (2006).

           2) Where the transfer amounts to a "constructive discharge." In order for an employee to be constructively discharged, a working conditions "must be objectively intolerable to a reasonable person." This means that working conditions are not just bad but really, really bad.

            3) Where the transfer does not amount to a "constructive discharge" examples of which would include: where the employee shows a quantitative or qualitative change in the terms of the conditions of employment; where the new position is "more arduous and dirtier"; and, where an employee is transferred to "some wretched backwater." These are examples which will vary from case to case.

    The key and ultimate issue is whether the transfer constitutes an "adverse employment action." This standard will vary from case to case, employee to employee.

     

     

     

  • How long do I have to appeal the denial of my claim for disability insurance benefits?

    The answer should be 180 days. The federal law, ERISA (short for Employee Retirment Income Security Act) that applies to most disability insurance benefits claims requires 180 days be allowed for a claimant to appeal the initial denial of their claim for disability insurance benefits. 

    The letter you get telling you that the insurance company has turned down your claim should tell you how long to you have to appeal the denial. It could be less than 180 days. If you're not sure what to do, contact an experienced disability benefits lawyer. You can reach Robert Abell at 859-254-7076. 

  • Is Reassignment A Reasonable Accommodation For A Disability?

    There are circumstances in which reassignment  or transfer to another job can be a reasonable accommodation for a disability under the Americans With Disabilities Act (ADA). Typically, reassignment of an employee suffering from a disability is considered only when the employee's disability cannot be accommodated in his or her current position. But the courts have made it clear that reassignment to a vacant position must be at least considered: Burns v. Coca-Cola Enterprises, Inc, 222 F3d 247, 257 (6th Cir. 2000)(“[A]n employer has a duty under the ADA to consider transferring a disabled employee who can no longer perform his old job even with accommodation to a new position within the Company for which that employee is otherwise qualified.”); Bratten v. SSI Services, Inc., 185 F.3d 625, 633-34 (6th Cir. 1999)(“[T]he ADA requires an employer to consider re-assignment to a vacant position if the disabled employee cannot be reasonably accommodated in his or her current job.”).

    There are a couple of key points here: (1) reassignment is really a last resort and therefore considered typically only after efforts to accommodate teh employee's disability in his or her present job have been exhausted; and, (2) the reassignment would be to a vacant position and the employer is not required to create a position. 

    Robert L. Abell, a Lexington, Kentucky disability discrimination lawyer, has represented employees and others in cases under the Americans With Disabilities Act, one example being Christine Snipes v. Kroger Company, which included a claim that Kroger refused to accommodate her disability. You can read the complaint here.

    Contact Lexington, Kentucky ADA lawyer Robert Abell at 859-254-7076. 

  • What Does Employment At Will Mean?

    Most employees are at-will employees. Some examples of employees that are not at-will employees include tenured teachers in Kentucky, employees that work under a union contract, persons that have an individual employment contract and government employees that have a civil service status. There are other examples, of course, and these are only a few.

    So most employees are at-will employees. Employment at will does not mean that an employee can be fired at any time for any reason. For instance, it violates both federal and Kentucky law to fire an employee because of his or her race. Race discrimination is only one form of illegal firing; there are others. Employment at will can best be described as follows: an at will employee can be fired at any time for any legal reason. A legal reason can be very unfair even morally outrageous. 

    Lexington, Kentucky employment lawyer Robert Abell represents individuals and employees in employment law cases including wrongful termination and discrimination cases; contact him at 859-254-7076. 

  • Is There Any Recourse for Wage Theft?

    Wage theft occurs where an employer fails to pay an employee the wages or overtime that the employee has earned.  Wage theft is a National epidemic: the amount of wage theft is more than the total amount robbed from banks, gas stations and convenience stores put together as has been reported in the Huffington PostLow-Wage Workers Are Robbed More Than Banks, Gas Stations And Convenience Stores Combined. 

    Given the amount of wage theft each year and the frequency that it occurs it has been widely reported: Fast-Food Workers Denounce Wage Theft 'Crime Wave' At New York City HearingFlorida Wage Theft and Reagan Building Food Court Workers Allege Wage Theft In Complaint To Labor Department.

    There is recourse: both federal law, the Fair Labor Standards Act, and Kentucky law allow an individual to file suit to recover their unpaid wages and/or overtime along with attorney's fees. 

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

  • Can You Be Liable for Sending A Text Message To A Driver?

    A court in New Jersey ruled recently that a person sending a text message to a vehicle driver can be liable for injuries caused by the distracted driver.  The court ruled that the text message sender could be liable for injuries most directly caused by the driver where two circumstances were present:

    1. the text sender knew that the text recipient was driving; and,
    2. the text sender knew that the recipient would read the text when it was received.

    ‚ÄčThis court ruling applies only in New Jersey but it is just a matter of time before all states including Kentucky recognize a similar rule.  Deliberately distracting a driver has always been a basis for liability and doing so by sending a text message is just another and more modern way to do so.  Read more about the New Jersey case in the Digital Journal: New Jersey Can Hold Remote Texters Responsible For Traffic Accidents

    Lexington, Kentucky accident lawyer Robert Abell represents individuals and families in accident and personal injury cases; contact him at 859-254-7076. 

  • What is the import of an employee's belief or testimony that her position is exempt from overtime pay requirements?

    This can come up if an employer makes an employee sign an agreement that their position is exempt from overtime, or if an employer tricks or misleads an employee into testifying in her deposition that her position was exempt. Fed Ex argued precisely this in Boaz v. FedEx, No 12-5319 (6th Circuit, 8/6/13), but the Court was having none of it:

    An employee's subjective belief that her position was exempt from FLSA, however, does not mean the position was exempt as a matter of law. Cf. Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 300-01 (1985)(witnesses' testimony that they were volunteers was not dispositive of whether they were actually employees under the FLSA). Were it otherwise, an employer could obtain waivers of FLSA claims merely by having its employees sign a form stating that they are exempt.

    The Boaz case was also important, because the Sixth Court court also rejected FedEx's arguments that the employee had waived her claims under the Fair Labor Standards Act (FLSA) and Equal Pay Act, which have been discussed on the Kentucky Employment Law BlogAgreement To Shorten Limitations Period for Wage and Overtime Claims Not Enforceable, Sixth Circuit Rules and Employee Cannot Waive Claims Under the Equal Pay Act, Sixth Circuit Rules.

    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.

  • Can A Landlord Be Liable For A Tenant's Injuries Caused By A Leaky Roof?

    A landlord can be liable for a tenant's injuries caused by a leaky roof in the rental property if the landlord knew or should have known that the roof was leaking and that it created a dangerous condition. This was the ruling recently by the Kentucky Court of Appeals in Warren v Winkle, No 2012-366 (May 24, 2013)

    This ruling does not mean that a landlord will always be liable for a tenant's injuries caused by a leaky roof; the landlord's conduct and liability will be always be subject to a reasonableness test. Liability for the landlord will have to be assessed on a case-by-case basis.

    There is a discussion of this case by Robert Abell at Abell's Kentucky Law Blog: Landlord Can Be Liable for Tenant's Injuries Caused By Leaky Roof, Kentucky Court of Appeals Rules.

    Contact Lexington personal injury lawyer Robert Abell at 859-254-7076.

  • What is negligence under Kentucky law?

    What is negligence under Kentucky law for which someone can be legally liable is a question that will vary depending on the circumstances. But here is a general and elegantly stated definition of negligence under Kentucky law:

    "Negligence, as used in law, may be defined as the failure to discharge a legal duty, whereby injury occurs. There can be no negligence where there is no duty imposed." Franklin v. Tracy, 117 Ky. 267, 77 S.W. 1113, 1115 (1904).

  • Do Interns Have To Be Paid Minimum Wage or Overtime?

    In light of a number of lawsuits filed on behalf of persons who worked as unpaid (or nearly unpaid) interns for unpaid wages and/or overtime pay, as reported in the New York Times, Conde Nast Faces Suit From Interns Over Wages, the pertinent question is: do interns have to be paid minimum wage and/or overtime?  The federal Department of Labor has issued guidance in a fact sheet and it identifies the following six factors as determinative of whether an internship may be paid or unpaid:

    1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

    2. The internship experience is for the benefit of the intern;

    3. The intern does not displace regular employees, but works under close supervision of existing staff;

    4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

    5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

    6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

    So there is no clear-cut answer; whether or not an intern should or must be paid will depend upon the circumstances applicable to each situation.

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

     

     

  • Can An Employer Require Employees To Provide Specific and Confidential Medical Information?

    If there is a real business need and it is necessary for everyday, ongoing business, employers can require their employees to provide specific medical information.  But if it's not, an employer can't require an employee to provide specific medical information.

    An illustration comes in a recent $2 million settlement of a class action Americans With Disabilities Act (ADA) suit by former and present employees of Dillards' department stores.  Dillards' required employees to provide specific medical information regarding mental illness, cancer and gynecological information in order to have their sick leave approved. If the employee refused to provide the specific details of their medical treatment, they were fired.  This resulted in a $2 million class action settlement for present and former Dillards' employees.

    You can read more about the Dillards' case: Requirement that Employees Explain Sick Leave Results in $2 Million Settlement.