Wyatt Employment Law Report


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KY Supreme Court: “10 Days” Means Received Within 10 Days For Teacher’s Protest Of Termination

By George Miller

Wyatt attorneys Byron E. Leet, Lisa C. DeJaco, and Sara C. Veeneman recently obtained a final decision from the Kentucky Supreme Court on behalf of the Jefferson County Board of Education that is important for all school boards in Kentucky.  In Sajko v. Jefferson County Board of Education, et al, the court held that a teacher whose contract had been terminated was too late in delivering her notice of intent to contest the decision and answer the charge against her.  Under the statute (KRS 161.790(3)), a teacher must give such notice within ten days of receiving the school superintendent’s written specification of the charge against the teacher which is the basis for termination of the contract.  If the teacher gives timely notice, then the teacher is entitled to a hearing before a three person tribunal.  The teacher’s notice must be sent to both the school superintendent and the Kentucky Commissioner of Education. 

In the Sajko case, the teacher’s notice was mailed, but not delivered, to the Commissioner within ten days.  The Commissioner received it on the 11th day.  The issue before the court was whether the ten day requirement is a receipt requirement or only a mailing requirement.  The court held that the statute requires receipt within ten days.  So, henceforth, if the teacher’s notice is not received by both the superintendent and the Commissioner within ten days of the teacher’s receipt of the superintendent’s written specification of the charges, then the termination is final, and the teacher has no right to a hearing before a tribunal.  The court’s decision became final on July 8, 2010.


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CAUTION: IMPROPER HARASSMENT INVESTIGATIONS CAN RESULT IN A HOSTILE WORK ENVIRONMENT CLAIM

By LaToi Mayo

An African-American plaintiff discharged for stealing confidential HR documents that he produced during an EEOC mediation session, presented sufficient evidence to support his Title VII and applicable state claim of racial harassment despite the employer’s eventual discharge of the harasser.  (Collins v. Saurecia Interior Systems, Inc., September 3, 2010, Borman, P).  The employee asserted that a co-worker directed racially derogatory comments at him including derogatory statements relating to the employee’s work ethic, and skin color.  Comments also included the use of the “N” word, and referenced the employee “picking cotton.”

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WARNING: Outside Sales Representatives May Not Be Exempt From Overtime Pay

By LaToi Mayo

Are your overtime pay policies in compliance with the law?  The U.S. Court of Appeals for the Second Circuit ruled earlier this month that Novartis Pharmaceuticals Corp.’s (NPC’s) policy in regard to its pharmaceutical representatives (Reps) is not, and these employees are entitled to receive overtime payments if they work more than 40 hours in a workweek.  Below is a brief synopsis of the Court’s decision.

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NLRB DRILLS DENTISTS

By George J. Miller

The National Labor Relations Board (NLRB) is the independent federal agency established by Congress to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining agents under the National Labor Relations Act (NLRA).  A recent case reminds us, however, that the NLRA protects employees engaged in certain activity in non-union workplaces, even when their activity has nothing to do with organizing or joining a union.

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Department of Labor Examines New Approach for Enforcing Federal Employment Laws

By Michelle D. Wyrick

Recently, the United States Department of Labor (“DOL”) announced plans to pursue a new regulatory and enforcement strategy that would require employers to demonstrate compliance with certain federal employment laws.  The DOL’s new initiative, named “Plan/Prevent/Protect,” puts the burden on employers to prove, and will require employers to create plans and processes to show, compliance with certain federal employment laws.  Employers will have to create compliance plans, implement the plans, and periodically evaluate their plans’ effectiveness. 

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U.S. Department of Labor Issues Important New Interpretation of the Family and Medical Leave Act

By George J. Miller

On June 22, 2010, the Wage and Hour Division of the U.S. Department of Labor issued a written interpretation of the Family and Medical Leave Act concerning whether employees who do not have a biological or legal relationship with a child may nevertheless take FMLA leave for the birth, adoption, or serious health condition of a child.  The DOL’s interpretation of the law is that such employees have the right to take FMLA for these reasons as long as they stand “in loco parentis” with the child.  The FMLA regulations define persons who are “in loco parentis” as including those “with day-to-day responsibilities to care for and financially support a child.”  “A biological or legal relationship is not necessary.”  29 C.F.R. §825.122(c)(3).

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“Some Degree of Success”: ERISA and Awards of Attorneys’ Fees

By Daniel E. Hancock

The general American rule is simply this: every party in an action is responsible for his or her own attorneys’ fees.  But there are statutes that provide for awards of attorneys’ fees in the context of specific actions.  Of course, the language of these provisions is far from uniform, though most only allow the prevailing party to recover such costs. 

The Employee Retirement Income Security Act, or ERISA, is not so specific.  ERISA provides that “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.”  In Hardt v. Reliance Standard Life Insurance Co., issued May 24, 2010, the Supreme Court took up the issue of whether this statute means what it says, or whether it contains an implication that a party must prevail in order to receive such an award.  Continue reading