Frequently Asked Questions

  • Page 4
  • Should I Sign the Confidential Medical Records Release That the Claims Adjuster Sent Me?

    It would be easiest to say that cooperating with the insurance company's claims adjuster will help get your accident claim settled the quickest and the fairest but that isn't necessarily the case.  Keep in mind that the adjuster's main job is to limit the amount of money that the insurance company has to pay out on claims including yours, so they may not be so concerned with fairness to you as you might hope or expect.  If you sign a release authorizing your doctors and any other health care provider to provide your medical records to the adjuster, you are authorizing release of all your records, which may or may not be complete or accurate.  So what you probably or may  want to do is get your pertinent records yourself and give them to the provider yourself.

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

  • Does the ADA Apply During Job Training?

    "Yes" answered the Sixth Circuit Court of Appeals, which covers Kentucky, recently in Rosebrough v. Buckeye Valley High School where the court explained as follows:

    The plain language of the ADA covers discrimination on the basis of disability during job training. 42 USC 12112(a)("No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."). The coverage provisions include this expansive list, extending beyond recognized traditional employment activities, to prevent periods -- including training periods -- during which discrimination might be undertaken with impunity.  Thus, the statutory inclusion of "job training" protects individuals while they receive the training required to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer.

    Read more about this rule and the ADA at Robert Abell's Kentucky Employment Law Blog: ADA Applies During Job Training; Is Psychological Counselling A Medical Examination Under the ADA?; Damages For Pain and Suffering Caused By Employer's Refusal To Accomodate Disability; Is Driving A Major Life Activity Under the ADA?

     

     

  • Can An Employer Lawfully Order Employees Not to Discuss An Ongoing Harassment or Discrimination Investigation?

    The EEOC's Buffalo office recently advised an employer that its policy of informing employees that they may not discuss an ongoing harassment or discrimination investigation is itself unlawful. See an earlier news posting: EEOC Warns Employer About Silencing Employees During Harassment or Discrimination Investigation.

    But don't go to far: time, manner and circumstances are very, very important in these types of things. 

  • Who Is An Ambiguous Insuance Policy Read In Favor Of?

    Kentucky law is clear that ambigous terms in an insurance policy must be read in a way that favors the insured not the insurance company.  Here's a couple of key points from Kentucky courts:

    • Kentucky law requires that an ambiguous term in an insurance policy "be liberally construed so as to resolve all doubts in favor of the insured."  Bituminous Casualty Corp. v. Kenway Contracting, Inc., 240 SW 3d 633, 638 (Ky 2008)
       
    • "A contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations."  Cantrell Supply, Inc. v. Liberty Mutual Insurance Company, 94 S.W.3d 381, 385 (Ky. App. 2002).

  • Does my employer have to pay overtime if I work through lunch in Kentucky?

    There are three points to this answer.

    First, the main point is that the employee must perform compensable work during what is an unpaid lunch break.  Both federal and Kentucky law require that an unpaid meal or lunch break be a true, bona-fide break during which the employee is relieved of significant work duties. 

    Second, you have to work more than 40 hours in a workweek for the overtime pay requirement to kick in.

    Third, you have to be paid overtime only if you are not exempt or non-exempt from overtime pay requirements. To be exempt from overtime pay requirements, you have to be (a) paid on a salary basis and more than $200 per week, and (b) your job has to fall within one of the categories (learned professional being one example) that is exempt from overtime pay requirements.  

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

  • How do I know if my employer is covered by FMLA?

    Whether or not an employer is covered by the FMLA (Family Medical Leave Act) depends on the number of employees it has. To be covered by the FMLA a private employer has to have at least 50 employees and they all have to be working within 75 miles of each other. So, the threshold number of employees for FMLA coverage is 50.

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

  • How many days of work do I have to miss because of a Kentucky work injury before I can start receiving workers compensation benefits?

    7.  Kentucky workers compensation law requires that a worker that suffers a work injury must miss work seven consecutive days before he or she is eligible to receive Kentucky workers compensation benefits, which would be temporary total disability (TTD) benefits. If the injured worker misses more then 14 days, he or she will then receive benefits covering the first 7 days missed. 

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

  • Have you been hit with a huge overdraft fee on a small debit card purchase?

    It may be because the bank has wrongfully manipulated the order in which it processes your debit card transactions.  Some banks have been hit with class action lawsuit because they processed payment of debit card transactions from largest to smallest amounts in order to maximize any overdraft fees they could assess. See the Bucks blog on the New York Times: Chase Agrees to Settle Lawsuit on Overdraft Fees and Debit Overdraft Fees, While Voluntary, Are Still Steep.  

     

     

     

  • Does Kentucky law require a lunch break for employees?

    Kentucky law requires that an employee be allowed a "reasonable" period for a lunch or meal break as close as possible to the middle of the employee's shift. KRS 337.355.

    Neither federal nor Kentucky law requires that the meal or lunch break be paid. However, if the lunch or meal break is unpaid, it must be a "bona fide" meal break in which the employee is relieved of duties to the point that he or she is able to pursue their own interests and eat comfortably without significant interruption, which is not the same as no interruption. 

    Robert Abell currently represents some employees and former employees who were required to perform work during their meal or lunch break and were not paid for that work: Working Through Lunch Breaks and Other Breaks Is the Basis of a Lawsuit for Unpaid Overtime and Wages Against CorrectCare.
     
    If you have not been paid the wages or overtime owed you, contact Lexington, Kentucky wages and overtime lawyer Robert Abell at 859-254-7076.

  • Do credit union whistleblowers have any legal protection?

    A federal law, 12 U.S.C. 1790b, provides protection for credit union whistleblowers in certain situations.  The law reads as follows:

    No insured credit union may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to the request of the employee) provided information to the [National Credit Union Administration] Board or the Attorney General regarding any possible violation of any law or regulation by the credit union or any director, officer, or employee of the credit union.
     

    The law applies to specific types of reports, the "possible violation of any law or regulation by the credit union or any director, officer, or employee of the credit union," made to two specific entities (1) the Board of the National Credit Union Administration; and, (2) the Attorney General of the United States. It's clear what the NCUA Board is but whether a report to an agency or branch of the United States Department of Justice or other person short of the actual Attorney General will have to be decided by the courts.  

    You can learn more about legal protections for a credit union whistleblower at the Kentucky Employment Law Blog by Robert Abell: What Must A Credit Union Whistleblower Prove In a Retaliation Case?

  • What is "sex plus" discrimination?

    "Sex plus" discrimination occurs where an employer classifies employees on the basis of sex plus another characteristic.

    An example is where an employer takes an adverse job action on the assumption or stereotype that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.

    Learn more about "sex plus" discrimination on the Kentucky Employment Law Blog by Robert Abell: Stereotyping and "Sex Plus" Discrimination; Mother of Four Denied Promotion Based on Presumed Childcare Responsibilities

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





     

  • What is a permanent impairment rating under Kentucky workers compensation?

    Under Kentucky workers compensation law a "permanent impairment rating" means the "percentage of whole body impairment caused by the injury or occupational disease as determined by the AMA Guide to the Evaluation of Permanent Impairment."  In 2011 the 5th edition of the AMA guide is being used in Kentucky.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents employees that suffer a work injury and need Kentucky workers compensation benefits or medical treatment; contact him at 859-254-7076.
     

    May be this can answer some more questions that you might have about Kentucky workers compensation law and claims: 


    Who decides my claim for Kentucky workers compensation benefits?

    How are my Kentucky workers compensation benefits affected if I am injured and can still work but not in the same type job I was working when I was hurt?

    Can I choose my own doctor to treat my work injury under Kentucky workers compensation law?

    How long do I have to file my claim for Kentucky workers compensation benefits?

    If I suffer a work injury in Kentucky, does Kentucky workers compensation compensate me for pain and suffering? 

  • What is the highest impairment rating in Kentucky workers compensation?

    100% or total disability/impairment is the highest impairment rating in Kentucky workers compensation law.  Workers that have suffered really bad work injuries can have a 100% impairment and/or be considered totally disabled. 

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

     

  • How many days of work do I have to miss before I can get Kentucky workers compensation temporary total disability (TTD) benefits?

    7.  Under Kentucky workers compensation law an injured employee has to miss at least seven (7) work days because of a work injury to be able to receive temporary total disability (TTD) benefits.  If the injured worker misses fourteen (14) days of work, he or she becomes eligible to received TTD benefits covering the first seven days that were missed. 

    What are temporary total disability benefits?

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

  • What are temporary total disability (TTD) benefits under Kentucky workers compensation?

    Temporary total disability (TTD) benefits are income benefits paid to an employee that has suffered a work injury that causes them to miss work.  Under Kentucky workers compensation law TTD benefits payable to an injured employee are usually but not always equal to 2/3 or 66.6% of the injured worker's average weekly wage.

    How many days of work do I have to miss before I start getting TTD benefits?

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals with a work injury for Kentucky workers compensation benefits; contact him at 859-254-7076.

  • What do you have to prove in a Kentucky personal injury lawsuit?

    There are basically three things that have to be proved in a Kentucky personal injury lawsuit:


    • 1)  that a duty existed; an example is that drivers have a duty to pay attention and keep a reasonable lookout for other vehicles or pedestrians
    • 2)  a breach of duty; meaning, for instance, a driver negligently failed to pay enough attention and keep a reasonable lookout for other vehicles or a pedestrian
    • 3)  damage or injury.  This would be the damage or injury caused by the breach of duty. 

    Basically, a personal injury lawsuit in Kentucky comes down to proving that someone (an individual) or somthing (a corporation) either did something they weren't supposed to do or failed to do something they were supposed to do and, as a result, someone else was injured.  

  • Can I be fired for what I say about my company on Facebook?

    The answer is almost surely yes.

    There may be some exceptions for public or government employees, depending on what they say, because some protections arise for public employees provided that what they say regards a matter of public concern and the statement is made in the capacity of a citizen rather than an employee. The difference is complicated. But for persons employed by private companies or corporations, what they say on Facebook about their employers can be used as proper and lawful grounds for termination of employment, although there may be exceptions.

    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.

  • Are social workers exempt from overtime pay requirements?

    The short answer is that it depends on the specific education requirements applicable to the social workers in the particular situation. 

    One court has ruled that social workers are not exempt from overtime pay requirements. In Solis v. State of Washington DSHS, No 10-35590 (9th Cir., 9/9/11), the court ruled that social workers in the State of Washington were not exempt from overtime because the "learned professional" exemption was not applicable.  There was a degree requirement for the Washington social workers but the court ruled that it was not specific enough for the social workers to be exempt from overtime pay requirements. You can read more about the decision on the Kentucky Employment Law Blog.   

    Whether social workers elsewhere are exempt from overtime because they meet the "learned professional" exemption requirements may very well prove to be the case. It is a question that an exeperienced overtime lawyer should review. This question like many others having to do with exemptions from overtime pay requirements is very fact-specific to each individual situation. 


     

  • When is a tip-pooling arrangement illegal?

    Many restaurants use a tip-pooling arrangement or scheme in which all the servers, waiters, waitresses, bartenders, bussers, hosts, hostesses, etc. put together or pool their tips and then divide them either equally or in some other proportion.  These have to be done in a particular way or the tip-pool is illegal. 

    A tip-pooling arrangement is legal where the tip-pooling arrangment includes only employees that are customarily tipped, i.e., waitressess, waiters, bartenders, servers, bussers, etc.  If the tip-pooling includes employees that are not customarily tipped such as cooks and dishwashers, the tip-pool is illegal.

    What difference does it make if the tip pool is illegal? The difference is that, if an illegal tip pool arrangement is used, the employer cannot apply the "tip credit" to the employees in question. The "tip credit" allows an employer to actually an employee subject to the tip credit only $2.13 per hour the idea being that tips make up the difference between $2.13 and the minimum wage, which must be paid all employees. So a server, for instance, that has participated in an illegal tip pool should not have had the "tip credit" applied to him or her and has a claim for unpaid wages representing the difference between the amount of wages paid, which in Kentucky is probably $2.13 per hour, and the minimum wage, which in Kentucky is at present $7.25 per hour.

    If you have questions regarding the tip credit and how it is applied to you, contact Lexington, Kentucky wages and overtime lawyer Robert Abell at 859-254-7076.   

  • Are cancer patients covered by the ADA?

    The protections under the ADA for persons with cancer became stronger under the amendments to the ADA in 2009. Now cancer, whether active or in remission, should be a covered disability under the ADA. The EEOC issued regulations on March 25, 2011, stating that cancer is presumptively a covered disability under the ADA. The EEOC provided elsewhere in the regulations that an illness that would be disability when active would also be a covered disability when in remission.

    Lexington, Kentucky disability lawyer Robert Abell represents individuals subjected to disability discrimination.

    If you have been discriminated against because of a disability, contact Lexington, Kentucky disability discrimination lawyer Robert Abell at 859-254-7076.