Lynwood Pickens was a pipe inspector. He was guaranteed each week what the company called a "salary" of at least $800, which was based on an 8 hour workday at his hourly rate of $100. Pickens, however, always worked more than 8 hours a week. For every hour more than 8 in a workweek Pickens was paid at the same $100 hourly rate. The most hours he ever worked in a workweek was 83 (he was paid $8300), the least was 28 (he was paid $2800), and he averaged 52 (and was paid $5200). The employer never paid him time-and-a-half, because it claimed he was "salaried," since he was guaranteed 8 hours pay each week. 

Nice try the court ruled: "To be paid on a weekly basis an employee must be paid for a regular week's worth of work." A true, lawful "weekly salary must compensate an employee 'for the general value of services performed' over the week, as opposed to merely serving as a minor auxiliary to an employee's hourly or daily pay." 

Some more resources about overtime pay requirements:

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

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

Lexington, Kentucky overtime lawyer Robert Abell helps individuals recover the overtime pay they've earned; contact him at 859-254-7076.

Yanick was the bakery department manager at a Kroger in Michigan. She was a long-term employee that had done a good job for Kroger, according to her performance evaluations. She required treatment for cancer, was off for a while on account of that treatment, and returned to work. A new store manager, Schnepp, took over the same week that Yanick was diagnosed with cancer. Before Yanick took off for her cancer treatment Schnepp expressed dissatisfaction to Yanick about the bakery. 

When Yanick returned to work after cancer treatment and a few months absence, Schnepp again got after her. According to the Sixth Circuit's (the federal appeals court that covers Kentucky) opinion, Yanick told Schnepp that she "was struggling and needed some time to get back to normal." Yanick also told Schnepp that she had been very physically taxed by working some 53 hours on her first week back from medical leave. Yanick apparently felt forced out by Schnepp and stepped down to a lower-paying job at a different location. 

Yanick filed suit claiming that Kroger had failed to reasonably accommodate her disability, among other things. The court's analysis of whether/how Yanick had requested a reasonable accommodation is important and these were the court's key points:

• there is no bright-line rule for determining whether an employee requested an accommodation
   
• employees need not use words like “accommodation” or “disability”
   
• the general assessment is whether the employee communicated a need for an adjustment at work because of a disability. Context matters in this assessment and employers must draw reasonable inferences from what an employee says, bearing in mind the statements’ context. 

The court concluded that Yanick had requested a reasonable accommodation. Yanick's statements that she was struggling, needed more time to get back to normal and had been physically taxed by the high number of hours she'd worked One could reasonably understand these comments as a request for a reduced work schedule.

Lexington, Kentucky disability discrimination lawyer Robert Abell represents individuals in disability discrimination, Americans With Disabilities Act (ADA), failure-to-accommodate cases in state and federal courts. Contact him at 859-254-7076. 

Here's some of the key points:

many companies provide salaries just above the federal cutoff (meaning the minimum salary cutoff which is about $35,500) to frontline workers and mislabel them as managers to deny them overtime

from 2010 to 2018, manager titles in a large database of job postings were nearly five times as common among workers who were at the federal salary cutoff for mandatory overtime or just above it as they were among workers just below the cutoff (doesn't that sound like gaming the system)

the practice of mislabeling workers as managers to deny them overtime, which often relies on dubious-sounding titles like “lead reservationist” and “food cart manager,” cost the workers about $4 billion per year, or more than $3,000 per mislabeled employee

the number of managers in the labor force increased more than 25 percent from 2010 to 2019, while the overall number of workers grew roughly half that percentage

From 2019 to 2021, the work force shrank by millions while the number of managers did not budge

We've done a large number of postings on this practice of avoiding paying overtime; it is often referred to as "misclassification" meaning misclassifying an employee as exempt from overtime pay requirements based on a job title of "manager" or something similar:

Is a shift supervisor entitled to overtime?

Is a First Assistant Manager Exempt from Overtime?

Are store managers exempt from overtime in Kentucky?

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

Are assistant store managers exempt from overtime?

Lexington, Kentucky overtime lawyer Robert Abell represents individuals and employees recover the overtime pay they have earned; contact him at 859-254-7076

First, the Court ruled that the university's subsequent conduct -- employing and paying the faculty member -- ratified and adopted the initial letter "as a binding employment agreement[.]" The same was true for the four following years the letters for which referenced "the continutation" of the faculty member's employment. Importantly, the Court rejected the university's argument that the annual distribution of effort (DOE) agreements for each faculty member rendered the terms too indefinite to form a contract. 

Second, Kentucky law recognizes that terms and conditions of a contract set out in another document may be incorporated by reference. All of the letters stated that the terms governing employment were contained in "the university's government document, The Redbook." These repeated and specific references incorporated fully The Redbook's provisions and personnel policies into each of the contracts. 

Lexington, Kentucky employment lawyer Robert Abell represents individuals and employees in state and federal courts all over Kentucky; contact him at 859-254-7076

According to the appeals court, the grooms and hotwalkers worked the following hours: 

• hotwalkers work 7 days a week from 5 a.m. to 10:30 a.m.
• some hotwalkers work some in the afternoon, usually 3:00 pm to 4:30 pm, every other day
• hotwalkers typically worked "approximately 44.25 hours per week"
• grooms work 7 days a week usually from 5:00 a.m. to 11:00 a.m. and then from "approximately" 3:00 p.m. to 4:30 p.m.
• grooms work and can earn extra pay one days when one of the horses they see to is racing
• grooms typically work 48.5 to 52.5 hours per week
• Both the hotwalkers and the grooms were paid a salary and received "extra compensation for additional tasks outside of their normal duties." But most of the hotwalkers and grooms did "not submit timesheets for the additional hours worked, while others submitted inaccurate time sheets." These additional duties included such things as $25 for unloading hay, $25 for transporting horses to the racetrack and $100 for doing laundry. 

The Sixth Circuit rejected three arguments from trainer Asmussen that overtime pay requirements had been complied with. First was the claim that the "payment scheme provided a premium for a fixed number of overtime hours[.]" This can comply but only when "an employee works a fixed number of overtime and non-overtime hours." Since the weekly workhours of the grooms and hotwalkers varied, this payment scheme did not comply. Second, the employer argued that its scheme met the "fluctuating work weeks" method which can apply "when employees work varying hours from week to week but are paid fixed base salaries." But this method requires accurate records regarding the hours worked by the employees, and trainer Asmussen's outfit did not do this. Trainer Asmussen last contended that overtime requirements were met because hotwalkers and grooms were paid "lump-sums for additional tasks outside of their normal duties." This didn't apply because the lump-sum payments were too regular. The overtime awarded totaled $211,541.76.

The lesson here is the need for keeping accurate time records. Had that been done the "fluctuating work weeks" overtime payment method may have been applicable. 

Lexington, Kentucky overtime lawyer Robert Abell helps workers and employees recover the overtime pay they've earned; contact him at 850-254-7076. 

Again, great credit for this goes to Jon Allison. One of the great things about trial lawyering is working with co-counsel talented as Jon.
 

Misclassified management trainees at Chipotle recently reached an $8 million settlement for unpaid overtime: Chipotle agrees to $8M settlement in manager trainee classification suit. 

The misclassification of employees as managers is a frequently-encountered overtime dodge as we've reported numerous previous times: Really a Manager? The Misclassification Scam to Get out of Paying Overtime; Walmart Assistant Store Managers Sue for Overtime; Assistant Managers Sue Jimmy John's for Overtime.

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. 

The plaintiff, Makini Jackson, was hired as human resources director by a county road commission. Part of her ordinary job duties included investigating discrimination complaints by employees and taking action to cease discrimination. The employer argued that she wasn't protected from retaliation for merely doing her ordinary job duties; it claimed that she had to do something to oppose or resist discrimination that was outside or beyond her regular job duties. 

The Sixth Circuit Court of Appeals, whose rulings apply to cases in Kentucky, ruled that a human resources employees does not have to prove that she engaged in conduct outside her job responsibilities to maintain a claim for retaliation for those actions. The ruling is strictly only under federal law, but courts applying Kentucky law would likely follow this ruling.

This is a sensible and good decision; employees whose job includes reponsibility to address and take care of discrimination complaints should have the same protections as other employees. 

Lexington, Kentucky discrimination lawyer Robert Abell represents employees and individuals in discrimination cases in state and federal courts in Kentucky.  

The case began with two requests by the Kentucky Kernel newspaper under the Open Records Act for the university's investigative file regarding sexual harassment allegations made toward a former faculty member. 

The university's stonewalling so offended the Court that it was moved to discuss the basic workings and duty of public universities and agencies to comply with the Open Records Act (ORA):

We also take this opportunity to reiterate the ORA obligations of a state agency, statutory obligations that were ignored or minimized by the University at every step in this case.

The Court also rejected the University's contention that a federal law, FERPA, applied to the entirety of the investigative file and precluded its production completely and totally, noting that:

Most courts have concluded that records relating to employee misconduct do not constitute student educational records because they directly relate to the activities and behaviors of employees[.] 

...

The FERPA "education record" exclusion was clearly not intended as an "invisibility cloak" that can be used to shield any document that involves or is associated in some way with a student, the approach taken by the University in this case.

The case was sent back to the Fayette Circuit Court with directions. 

 

• Since at least November of 2014, Craig [the owner of the restaurant] has routinely made sexual comments to Werthen [the chef]. Such comments from Craig include but are not limited to telling Werthen that he thought about having sex with her “while jacking off a million times,” telling her that he thought about her in the shower, telling her that she “looked like a professional woman,” referring to her as “baby,” telling her, “I love your mouth” while openly and blatantly staring at her, telling her, “I’d like to lick your butt,” and asking her if she wanted him to “suck on your bottom lip.” Craig also told Werthen (who is above average in height) that she was his “only chance to have tall children.”
   
• While working in the kitchen with Werthen, Craig would loudly and with coarse language identify female guests he would like to have sex with.
   
• Werthen made clear to Craig that these comments were  unwelcome, but he persisted.
   
• Craig routinely made inappropriate sexual comments to other female employees. These include, but are not limited to telling them repeatedly that he wanted to have sex with them, talking about their physical features and which ones he found desirable, and ordering them to approach restaurant guests he found sexually desirable and obtain their phone numbers for him.
   
• Craig had inappropriate physical contact with female employees. This includes touching them on the buttocks, legs, hips, chest, and/or crotch areas, forcing them to sit on his lap, and kissing and/or hugging them without consent.
   
• When Werthen complained about Craig’s conduct either to Craig, other managers, or other employees, Georgina’s unlawfully retaliated against her by subjecting her to different conditions of employment and subsequently terminating her employment. This unlawful retaliation included, but was not limited to, the following: a. Werthen verbally complained about Craig’s sexual commentary to Craig and another manager in early January 2016. Immediately following this verbal complaint, Craig began treating Werthen differently and less favorably. Specifically, he stripped her of authority in the kitchen, gave her less favorable shifts, cut her hours, and was openly hostile and verbally abusive towards her;  

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

The employee, Willard, was 63 years old. He was a long-time and successful new car salesman, winning awards and ranking in the top 125 of some 3,500 new car Ford salespeople. The court's opinion indicated that he was at times pushy even obnoxious toward some of his co-workers, who themselves often acted the same. This resulted ultimately in a blow-up that led to another employee pushing Willard and otherwise escalating the matter. Willard himself was suspended for about a week. The dealership claimed that he was fired because he didn't report back to work from the suspension when he was supposed to.

The appeals court ruled that Willard had a good case of age discrimination for three reasons. First, Willard had a good work record; he'd worked a long time for the dealership and had performed at a very high level, as noted above. Second, the reason or reasons the employer offered up for firing Willard didn't make sense; put more bluntly, the appeals court ruled that a jury could find them to be a pack of lies. Third, even though Willard made the dealership a lot of money and, therefore, made his supervisors look good, they insulted and ridiculed him, sometimes in front of his peers, by referring to him as "grandpa," "dinosaur," "over-the-hill," and "old and fat", statements that obviously refer negatively to Willard's age. When Willard complained about these statements, he was welcomed to find another job, a response that indicates a wish that he just leave his job at the dealership.

Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in discrimination cases in state and federal court throughout Kentucky; contact him at 859-254-7076.

Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in age discrimination cases in state and federal courts throughout Kentucky; contact him at 859-254-7076. 

This gets kind of complicated because Title VII has two limitation periods, one of 300 days in states like Kentucky that have a state agency, the Kentucky Commission on Human Rights, that also enforces employment discrimination laws, while in states lacking such an agency the limitation period is 180 days. Title VII also requires that an administrative charge of discrimination be filed with one of these agencies as a predicate to filing suit in federal court. 

The employer in the Logan case tried to force the employees to agree to shortening the limitation period. This was unlawful the Sixth Circuit ruled.

The upshot of this for employees in Kentucky is that an employer may not compel an employee to agree to shortening the limitation period for filing a discrimination charge.

Lexington, Kentucky discrimination lawyer Robert Abell represents individuals in employment discrimination cases throughout Kentucky; contact him at 859-254-7076. 

The individuals involved worked for a company called Off Duty Police Services (ODPS). They provided private security and traffic control services around Louisville; for instance, a typical day might consist of "sitting in a car with the lights flashing or directing traffic around a construction zone." Some of the workers were sworn police officers who worked for ODPS as a side job; some were not and ODPS was their full-time job. ODPS provided them with some of the equipment and gear, but they were required to buy some with their own money. All were required to use police-style vehicles which they had to buy or provide themselves in their work. ODPS had some work requirements and did some supervision, although the amount and degree was disputed. 

A worker would be contacted when a job came up, which they could accept or reject. There was much testimony that if a worker rejected a job, he or she would be penalized by not getting called for a while, a process referred to "as being placed in 'time out.'"

There are six factors used in what is called the "economic reality" to determine whether a worker is an employee or an independent contractor for purposes of overtime:

(1) the permanency of the relationship between the parties;

(2) the degree of skill required to render the services;

(3) the worker's investment in equipment or materials for the task;

(4) the worker's opportunity for profit or loss, depending on their skill level;

(5) the degree of control exercised by the alleged employer; and,

(6) whether the service is integral to the alleged employer's business.

The weight assigned these factors will vary depending on the circumstances.

The case is Acosta v. Off Duty Police Services. 

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

First, Kentucky House Majority Leader John “Bam” Carney has filed House Bill 210 which does two bad things: (1) it requires that management be present when state inspectors interview a nursing home employee; the purpose of this is to give management an opportunity to intimidate the employee into lying or failing to be fully truthful about conditions in the nursing home that pose danger to the residents' welfare and health. (2) it prohibits inspectors from disclosing to anyone but their bosses at the Cabinet what they encountered, saw or heard during a nursing home inspection. This gives politically-connected and influenced managers at CFHS opportunity to hide bad practices at nursing homes and to try and silence inspectors when they see violations being swept under the rug. Rep. Carney acknowledges that the bill was written for him by the Kentucky Association for Health Care Facilities, the state’s nursing home lobbying group and one of Frankfort’s larger campaign donors. 

Second, Rep. Steve Riley has filed House Bill 289, which eliminates any accountability for those who profit from substandard care that injures or kills patients unless they were directly involved in patient care. In other words, make the money and avoid reponsibility. Betsy Johnson, a lobbyist for the Kentucky Association of Health Care Facilities, brags that the group wrote this bill also. 

John Cheves covers these developments in the Lexington Herald-Leader, Nursing home lobbyists write bills to restrict inspections, lawsuits against owners. 

Here's what the Kentucky Supreme Court said in the Harper decision:

We can agree that in some circumstances, nepotism could fit within the general categories of "suspected mismanagement" or "abuse of authority" under KRS 61.102(1).

So a complaint or report regarding nepotism won't in all but can be in some circumstances protected by the Kentucky Whistleblower Act. Context, again, is everything as well as the content of the report.

Some other things to consider:

• What is protected by the Kentucky Whistleblower Act?
• What is the Kentucky Whistleblower Act?
• Do whistleblower laws protect a private company employee in Kentucky?
• Can I be fired for reporting Medicare fraud?
• Do credit union whistleblowers have any legal protection?

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

An excellent article in the Washington Post, Age Discrimination Is More Common Than You Think. Why Aren't We Doing Anything About It? discusses the problem and some solutions or at least actions toward solutions. 

One difference in Kentucky law from the federal Age Discrimination In Employment that makes it slightly easier to remedy age discrimination under Kentucky law is that Kentucky law requires age discrimination to be a substantial but not the sole or only factor for the employment action harming the older worker. 

We beat Columbia Gas on behalf of one of a long-term employee in an age discrimination case; you can see the verdict and the successful appellate brief that explains the case.

Lexington, Kentucky age discrimination lawyer Robert Abell represents individuals and employees in state and federal courts throughout Kentucky; contact him at 859-254-7076. 

The recent case, EEOC v. Dollar General, is a good example. The employee, Linda Atkins, was diabetic and needed to keep orange juice close to her work station at the cash register "in case of an emergency." She asked her manager if she could keep orange juice in a cooler near to her work station for such an emergency and was told no. Atkins had two emergencies that she addressed by taking a bottle of orange juice from a nearby store cooler, drinking it and paying for it. Both times she told her manager what she had done.

But this wasn't good enough for two of Dollar General's higher-up management people, Scott Strange, a district manager, and Matt Irwin, a regional loss prevention manager. They were investigating "shrinkage" in the store and interviewed Atkins, who told them of the two times she had consumed the orange juice on account of her diabetes and paid for it. Strange and Irwin decided that Atkins had "violated Dollar General's 'grazing policy' which forbids employees from consuming merchandise in the store before paying for it." Strange and Irwin fired Atkins.

Atkins sued Dollar General and claimed that her firing was disability discrimination caused by Dollar General's refusal to allow a reasonable accommodation, allowing her to have orange juice nearby for emergencies. A jury awarded her $27,565 in back pay and $250,000 in compensatory damages.

Dollar General argued on appeal that the jury was wrong because it had fired Atkins because she had violated its "grazing policy," not because of her disability. The Court - the Sixth Circuit Court of Appeals that covers Kentucky -- rejected this argument and explained as follows:

• Once Atkins requested this reasonable accommodation, the employer had a duty to explore the nature of the employee's limitations, if and how those limitations affected her work, and what types of accommodation could be made.
   
• A company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing her.
   
• Failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.

So: the employer could not invoke or hide behind a policy it claimed Atkins had violated when it refused to even consider any type of reasonable accommodation that would have avoided or precluded any need for Atkins to violate the policy. Dollar General lost and should have.
 

We've done a number of previous posts and FAQs on these issues: 

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

When Is a Disability Covered by the ADA?

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

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

Demetre's bad faith insurance claims resulted in the following verdict, which was upheld by the Kentucky Supreme Court: $925,000 in emotional distress and $2,500,000 in punitive damages. Let's look at how Kentucky bad faith insurance law led to that result.

Claims based on bad faith insurance practices have three sources in Kentucky law: (1) breach of the covenant of good faith and fair dealing; (2) the Kentucky Consumer Protection Act, KRS 367.170; and, (3) the Unfair Claims Settlement Practices Act, KRS 304.12-230.

Indiana Insurance argued that it had provided Demetre with a defense to the claim and had paid it off in any event, so there was no bad faith claim against it. Not so the Kentucky Supreme Court ruled for the following reasons: (1) Indiana Insurance falsely asserted that Demetre had misled it, even though it was "uncontested" that Demetre informed it that the property had been used previously as a gas station, it had happily taken Demetre's premium payments and there was no evidence that the property was contaminated or that Demetre was told that it was; (2) Indiana Insurance's conduct amounted to "a sustained effort ... to deny coverage long after it could and should have been determined that it was legally obligated under its contract with Demetre."

Demetre paid out nearly $400,000 to his own lawyer which was an "ascertainable economic loss" required under the Consumer Protection Act.

The Court ruled that Demetre was not required to present expert testimony to support his emotional distress damages.

So here's what this case boils down to: (1) Demetre was honest and forthright about the property when he sought coverage; (2) nevertheless, when the claim arose against Demetre, his insurance company turned against him, falsely claimed that he had been deceptive and drug its feet from well over a year about actually defending him and investigating the claim made against him. And so it cost Indiana Insurance, as it should have.