Frequently Asked Questions

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  • Am I eligible for leave for benefits under the FMLA?

    To be eligible for FMLA benefits or leave, an employee must meet the following criteria:

       (1) work for a covered employer;

       (2) have worked for that covered employer for at least a total of 12 months;

       (3) have worked for that covered employer at least 1250 hours over the prior 12 months; and,

       (4) work at a location where at least 50 employees are employed by the covered employer within 75 miles.

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

  • How much leave can I take under the FMLA?

    An employee eligible for FMLA leave from a covered employer is allowed up to a total of 12 work-weeks of unpaid leave during any 12 month period for one or more of the following reasons:

    • To take medical leave when the employee is unable to work because of a serious health condition;
    • To care for an immediate family member (spouse, child, or parent) with a serious health condition; or,
    • For the birth or placement of a child for adoption or foster care.

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

  • Can my employer require me to use my accrued sick or vacation leave to cover part or all of my FMLA leave?

    Yes; generally, an employer may require an employee to use of their accrued paid leave, whether it be sick leave or vacation leave, to cover some or all of their FMLA leave.  The employee may choose to cover some of their FMLA leave time with accrued paid leave. This issue should be covered when FMLA leave is initially approved and discussed.

  • Does an employee have any protection against retaliation for filing a claim for Kentucky workers compensation benefits?

    Yes.  Kentucky workers compensation law makes it unlawful to retaliate against an employee because he or she has filed a claim for Kentucky workers compensation benefits or indicated that they intend to file a claim for Kentucky workers compensation benefits.  The law is KRS 342.197.

     

  • What is the time limit to file a claim for Kentucky workers compensation benefits?

    The time limit to file a claim for Kentucky workers compensation benefits is two years from the date of injury. 

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

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

    Kentucky workers compensation law allows two (2) years from the date of the injury to file a claim for Kentucky workers compensation benefits.

    Lexington, Kentucky workers comp lawyer Robert Abell represents individuals and employees that have suffered a work injury and need a lawyer for their Kentucky workers compensation claim; contact Robert Abell at 859-254-7076. 

  • In Kentucky is vested vacation pay considered earned wages?

    Kentucky law defines "wages" to include any compensation due to an employee by reason of his employment and includes "vested vacation pay." KRS 337.010. Vested vacation pay should be considered accrued and unused vacation pay.

    Click here to read a lawsuit Complaint for Unpaid Wages -- Vested Vacation Pay  filed by Robert Abell to recover vested vacation pay that was not paid to an employee when she left employment.

    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.

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

    No.  Kentucky workers compensation does not compensate an injured worker for his or her pain and suffering.

    If a worker is off work recovering from the injury, Kentucky workers compensation provides income benefits, which are known as "temporary total disability" (TTD) benefits.

    If the injury leaves a permanent impairment, Kentucky workers compensation provides benefits for the injured workers diminished earning capacity by what are known as "permanent partial disability" benefits, or "PPD benefits." 

    Kentucky workers compensation also pays medical bills for treatment related to the injury.

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

  • What is Kentucky law on mandatory overtime?

    There is no limit under Kentucky law on the number of hours that an employee can be made to work as mandatory overtime.  However, unless the employee is exempt from overtime pay requirements, he or she must be paid at an overtime wage rate of time and a half their regular hourly wage rate for all time worked in a work week greater than 40 hours.

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

     

  • What is the average weekly wage for Kentucky workers compensation for 2014?

    The average weekly wage for Kentucky workers compensation purposes for the calendar year 2009 was $769.06. See it at the Kentucky Department of Workers Claims.

  • Does being paid a salary mean that I don't have to be paid overtime?

    No. Being paid a salary is only one factor in whether a particular employee's job is exempt from overtime requirements. 

    There are three (3) factors that determine whether or not an employee does or does not have to be paid overtime. Those factors are as follows:

         (1) that they are paid on a true salary basis meaning that their pay is not reduced for lack of work;

         (2) that they are paid a salary of at least $455 per week. Based on a 40 hour work week this comes to $11.375 per hour;

         (3) that the employee's job falls within one of the job classifications that are exempt from overtime pay requirements.

    If any of these three factors are not met, the employee has to be paid overtime for time worked in a work week more than 40 hours.

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

  • Is medical leave due to pregnancy covered by the FMLA?

    Yes.  An employee's incapacity to work due to pregnancy is a serious health condition under the FMLA as both federal regulations and court decisions have recognized.  29 CFR 825.114(a)(2)(ii); Aubuchon v. Knauf Fiberglass, 359 F.3d 950, 951 (7th Cir. 2004). 

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

  • Can my employer change my health insurance when I'm on FMLA leave?

    No.  An employee on FMLA leave is entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave. 29 CFR 825.100(b). This doesn't mean that an employer can't change the insurance under any circumstances. If, for instance, the employer is changing insurance plans for all employees, it would not violate the FMLA for the insurance of an employee on FMLA leave to be changed at the same time as all the other employees. 

    If your rights under the FMLA have been violated or if you have questions about those rights, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076.

  • Does a job title determine whether an employee is exempt from overtime pay requirements?

    No.  The employee's actual job duties and compensation determine whether the employee is exempt or nonexempt from overtime requirements. 

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

  • If I am receiving Social Security retirement benefits and I am hurt on the job, for how long can I receive Kentucky workers compensation benefits?

    If you are receiving Social Security retirement benefits and sustain a work injury, you can receive Kentucky workers compensation income benefits for two years from the date of your injury. 
     

  • What employees meet the "administrative" exemption to the overtime pay requirement?

    For an employee to meet the "administrative" exemption to the overtime pay requirement their job duties and compensation must meet all of the following tests:

    1. The employee must be paid on a salary basis of at least $455 per week:
    2. The employee's primary duties must be office or non-manual work directly related to the management or general business operations or the employer or its customers;
    3. The employee's duties must include the exercise of discretion and independent judgment on significant matters.

    Generally, the "administrative" exemption to overtime pay requirements apply to employees that have significant management or supervisory responsibilities. But a job title of manager or supervisor does not determine finally the question: the employee's actual job duties are the real test.

    Lexington, Kentuckyovertime lawyer Robert Abell represents individuals and employees seeking to recover the overtime pay that they have earned but not been paid; contact him at 859-254-7076.

  • Are per diem payments considered for purposes of calculating an overtime pay rate?

    Where the amount of per diem varies with the amount of hours worked, the per diem payments are part of the regular hourly rate in their entirety, according to the federal Department of Labor handbook. 

    Whether per diem payments should be considered in calculating an employee's regular hourly rate and rate of overtime pay must be determined on a case-by-case basis.  The courts have recognized that per diem payments can be used as part of a ruse to evade paying overtime at a proper rate as Robert Abell has discussed on his Kentucky Employment Law Blog, "Per Diem Payments Ruled Part of Employee's Regular Wage Rate for Purposes of Calculating Overtime Rate."

    Both the federal Fair Labor Standards Act and Kentucky law require that all non-exempt employees be paid at an overtime rate for all hours worked greater than 40 in a work week.  If you have not been paid overtime due you, contact Lexington, Kentucky overtime attorney Robert Abell at 859-254-7076.

  • What is included in an employee's "regular" pay rate for purposes of calculating their overtime pay rate?

    Determining an employee's "regular" hourly pay rate is important for determinining their overtime pay rate because the overtime rate must be at least one and one-half times their regular rate.

    "The regular rate by its very nature must reflect all payments which hte parties have agreed shall be received during the workweek exclusive of overtime payments," said the United States Supreme Court in Bay Ridge Operating Company v. Aaron, 334 U.S. 446, 461 (1948).    The determination of an employee's "regular" hourly rate is not limited by how the employer characterizes payments made to an employee such as bonuses or per diems as Robert Abell has discussed on his Kentucky Employment Law Blog, "Per Diem Payments Ruled Part of Employee's Regular Wage Rate for Purposes of Calculating Overtime Rate."

    If you have questions about overtime compensation that may be owed you, contact Lexington, Kentucky overtime attorney Robert Abell at 859-254-7076.

     

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

    The answer under Kentucky workers compensation law is "yes" and almost always you can designate your own doctor to treat you for your work injury.  There can be very limited exceptions to this general rule.  Your employer can require you to be examined by a doctor of their choosing under some circumstances also. 

    If you have questions about your rights when you have suffered a work injury or filed a Kentucky workers compensation benefits claim, contact Lexington, Kentucky work injury lawyer Robert Abell at 859-254-7076.

  • Can I be fired for reporting Medicare fraud?

    The federal False Claims Act makes it unlawful to retaliate against or fire an employee who has reported Medicare fraud in the certain circumstances that the law covers.  What this means is depending on what you report about Medicare fraud and who you report it to you may be protected from retaliation or firing.  Just any reporting may not qualify an employee for legal protection against or from being fired.

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