Frequently Asked Questions

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  • Are you protected by the ADA if you have cancer?

    The answer is that cancer,  whether active or in remission, should be a covered disability under the Americans With Disabilities Act (ADA). Under final regulations issued by the Equal Employment Opportunity Commission on March 25, 2011, 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. But what this means is that a person with cancer has some protection under the ADA with respect to his or her job; the question then is what degree or kind of protection.

    Lexington, Kentucky disability lawyer Robert Abell represents individuals subjected to disability discrimination; contact him at 859-254-7076. 

     

  • Are police sergeants exempt from overtime pay requirements?

    Police sergeants may not be exempt from overtime pay requirements. A recently-decided case, Mullins v. City of New York, No. 09-CV-3435 (August 5, 2011), ruled that New York City police sergeants were not exempt from overtime pay requirements.

    This decision does not necessarily mean that all police sergeants are not exempt from overtime pay requirements, because differences in actual job duties could dictate a different ruling.

    Misclassification of employees as exempt from overtime pay requirements is a common violation of both the federal Fair Labor Standards Act and Kentucky wage and hour law.

    Contact Lexington, Kentucky overtime lawyer Robert Abell with your questions regarding overtime pay; reach him at 859-254-7076. 

  • Is a police officer's refusal to submit a false report activity protected by the First Amendment?

    The United States Court of Appeals for the Second Circuit, which sits in New York, recently answered this question "yes" in the case, Jackler v. Byrne, No 10-5089.

    First Amendment protected speech cases for public employees were greatly complicated by the Supreme Court's 2006 decision in a case known as Garcetti v. Ceballos and require close and careful analysis.

    You can read more about the Jackson v. Byrne decision at Robert Abell's Kentucky Employment Law Blog.

  • Can a Kentucky workers compensation ALJ disbelieve or believe the testimony of any witness?

    Kentucky workers compensation law designates an ALJ as the finder of fact in Kentucky workers compensation cases. The Kentucky Supreme Court recently described an ALJ's fact-finding authority in Kroger v. Ligon, No 2010-SC-385-WC (May 19, 2011), as follows:

    "An ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party's total proof." Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).

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

  • Can a Kentucky workers compensation ALJ reject the testimony of any witness?

    An ALJ is designated as the finder of fact in Kentucky workers compensation cases.  The Kentucky Supreme Court recently described an ALJ's fact-finding authority in Kroger v. Ligon, No 2010-SC-385-WC (May 19, 2011), as follows:

    "An ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party's total proof." Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977)

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

  • Can I Receive Future Medical Treatment for my Kentucky Work Injury Even Though I Have No Permanent Impairment Rating?

    The answer appears to be yes, according to the recent decision of the Kentucky Supreme Court in Kroger v. Ligon, No 2010-SC-385-WC (May 19, 2011).

    The injured employee, Japheth Ligon, injured his shoulder and underwent surgery that included permanent implantation of hardware in his shoulder.  But Ligon apparently recovered well, as the Court left alone a finding of no permanent impairment. However, the Court also ruled that he should be allowed future medical benefits for proper treatment of his shoulder. In support of his ruling, the Court explained its prior decision in FEI Installation v. Williams, 214 S.W.3d 313 (Ky. 2007), as follows:  "the presence of impairment demonstrates a harmful change in the human organism and 'disability,' regardless of whether the impairment and resulting disability are severe enough to warrant a permanent impairment rating or permanent income benefits." 

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

  • When is a meal break really a meal break?

    Federal and Kentucky state law both state that for a meal break to really be a meal break for which the employee does not have to be paid the following must be true:
     

       1.  The employee must be completely relieved from duty for the purposes of eating regular meals. 29 CFR 785.19(a); 803 KAR 1:065 Section 4(2).

       2.  The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. 29 CFR 785.19(a); 803 KAR 1:065 Section 4(2).


    The federal regulation, 29 CFR 785.19(a), goes on to state as follows: "[A]n office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating." These are examples.

    Contact Lexington,Kentucky wages and overtime lawyer Robert Abell about whether you are being properly compensated under federal and Kentucky state wage and hour and overtime law. You can reach Robert Abell at 859-254-7076.

  • What is an employer required to consider for a reasonable accomodation under the ADA?

    The ADA does not give employers complete and unfettered discretion to decide what is reasonable. Instead, the ADA 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. Miller v. Illinois Dept. of Transportation, No 09-3143 (7th Cir. May 10, 2011).

    If you have questions about your rights to a reasonable accommodation for disability under the Americans with disabilities act (the ADA), contact Lexington, Kentucky disability discrimination lawyer Robert Abell at 859-254-7076.

  • What kind of discrimination is prohibited by USERRA?

    USERRA has a broad protection against discrimination based on employees service commitment that includes the following:

    • Employment
    • Reemployment
    • retention in employment
    • promotion
    • any other benefit of employment

    If you have questions about your rights under USERRA, contact Lexington, Kentucky employment lawyer Robert Abell at 859-254-7076.

  • How does USERRA protect against premature termination?

    USERRA protects an employee against premature termination by prohibiting termination of employment for a period of time after they are reemployed following their service commitment except "for cause."

    If you have questions about your rights under USERRA, contact Lexington, Kentucky employment lawyer Robert Abell at 859-254-7076.

  • What is the right to reemployment under USERRA?

    The right to reemployment under USERRA has three basic parts that are as follows:

    1.  Enhanced seniority and benefits – not only is the returning employee entitled to the senior arty and other rights and benefits that he or she had when they commenced their service, there also entitled to additional senior arty, rights and benefits that they would have accrued if they had remained continuously employed.

    2.  An employee absent from employment because of military service must be treated by their employer as on unpaid leave or on a leave of absence.

    3.  When the employee returns he or she should be reemployed in either (a) the position they would have held if they had been continuously employed and not absent because of their service commitments; or, (b) position in which they were employed on the date they commenced their service.

    If you have questions about your rights under USERRA, contact Lexington, Kentucky employment lawyer Robert Abell at 859-254-7076.

  • What are the protections under USERRA?

    There are three basis protections for an employee provided by USERRA:

    1.  failure or refusal to reemploy

    2.  premature termination

    3.  discrimination and/or retaliation.


    If you have questions about your rights under USERRA, contact Lexington, Kentucky employment lawyer Robert Abell at 859-254-7076.

  • Who is covered by USERRA?

    Nearly every employer and employee is covered by USERRA. Covered employers include both state and federal governments. 

    Lexington, Kentucky employment lawyer Robert Abell represents individuals and employees covered by USERRA; contact him at 859-254-7076. 

  • Can I recover overtime compensation if my employer's records are inaccurate?

    An employer is responsible for maintaining accurate records of the hours that its employees work.  If an employer's records are inaccurate or inadequate, the United States Supreme Court has ruled that employees need only present sufficient evidence to show the amount and extent of overtime owed as a matter of just and reasonable inference. Anderson v. Mt. Clemens Pottery Company, 328 U.S. 680, 687-688 (1946). Furthermore, courts, including most recently the United States Court of Appeals for the Second Circuit, have ruled that it is possible for employee to present adequate proof of the overtime he or she has worked through estimates based on his or her own recollection. See Kuebel v. Black & Decker, Inc., No 10-2273-CV (May 5, 2011)

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

  • The Tip Credit For Waiters & Bartenders: Does It Always Apply?

    No; if waiters or bartenders spend more than 20% of their time doing non-tipped work such as setting up or prep work, the time spent performing these non-tipped duties is not subject to the tip credit and the employees must be paid at the ordinary minimum wage at least.

    The federal Department of Labor has long taken the position and a federal court of appeals has upheld the Department's position that employees who spend "substantial time" (defined as more than 20%) performing related but nontipped duties should be paid at the full minimum wage for that time without the tip credit. The court decision is Fast v. Applebee's International, Inc., No. 10-1725 (8th Cir., April 21, 2011).

    Robert Abell discussed this case on his Kentucky Employment Law Blog: Tip Credit Not Applicable to Bartenders and Servers Where More Than 20% of Work Is Performing Related But Nontipped Duties.

    If you have questions about the tip credit, unpaid wages or overtime, contact Lexington, Kentucky wages and overtime lawyer Robert Abell at 859-254-7076.

  • Who is an employee subject to the "tip credit" for wage and hour purposes?

    The "tip credit" does not apply to every employee who ever received a tip. The "tip credit" applies only to employees that "customarily and regularly" receive more than $30 a month in tips. 

    The application of the "tip credit" means that the employee can be paid as a hourly wage rate $2.13.

    If you have questions about application of the "tip credit", contact Lexington, Kentucky employment lawyer Robert Abell at 859-254-7076.

  • Are cancer patients covered by the Americans With Disabilities Act (ADA)?

    Cancer patients should be covered by the Americans With Disabilities Act (ADA), whether their cancer is active or in remission.  Cancer is presumptively a covered disability under the ADA under regulations issued by the Equal Employment Opportunity Commission on March 25, 2011. The regulations also provide that conditions that are a covered disability when active are also covered when in remission. 

    One point that always has to be made about the ADA is that ADA coverage has to be assessed on an individualized, case-by-case basis.

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

  • Is cancer in remission covered by the Americans With Disabilities Act (ADA)?

    Cancer, whether active or in remission, should be a covered disability under the Americans With Disabilities Act (ADA). Under final regulations issued by the Equal Employment Opportunity Commission on March 25, 2011, 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; contact him at 859-254-7076. 

     

     

  • Is cancer a disability under the Americans With Disabilities Act (ADA)?

    Cancer, whether active or in remission, should be a covered disability under the Americans With Disabilities Act (ADA).  Under final regulations issued by the Equal Employment Opportunity Commission on March 25, 2011, 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 and employees who have suffered disability discrimination. 

     

  • Can I be fired for being on Kentucky workers compensation?

    It is a violation of Kentucky workers compensation law for an employer to fire or retaliate in some other way against an employee that has filed or has indicated he intends to file a claim for Kentucky workers compensation benefits. It is an unlawful and wrongful termination where a worker is fired because he or she has filed a claim for Kentucky workers compensation benefits.

    Lexington, Kentucky workers compensation lawyer Robert L. Abell has represented in lawsuits workers fired because they had filed or indicated that they intend to file a claim for Kentucky workers compensation benefits.  See Kentucky Workers Compensation Retaliation - Judgment Awarding Damages & Punitive Damages, Workers Compensation Retaliation, Malicious Prosecution & Abuse of Process - Isham v. ABF Freight Systems - Complaint, Workers Compensation Retaliation - Works v. LexTran - "Dismissed LexTran Driver To Return To Work Monday"; Lexington Herald-Leader, October 14, 1995