Smoke Signals: The Proposed Smokefree Kentucky Act

by Debra H. Dawahare

Several years ago, when smoking bans in public places were just beginning to be implemented, a cartoon appeared in the New Yorker, showing a person looking quizzically at an alien who had just gotten out of a spacecraft.  “We’ve come here to smoke,” the alien explained. 

 Kentucky smokers may soon have to figure out their best strategy for continuing the habit, especially if the General Assembly adopts HB 193 (the proposed “Smokefree Kentucky Act”) as law. 

HB 193 would prohibit smoking in all public places and places of employment, and make violations punishable by citations and fines of up to $2,500 for repeated violations.  The proposed bill would mandate that an employer require an employee who is smoking to stop, to make the employee leave if he won’t stop, and to call law enforcement officers if he won’t leave. 

Kentucky and Oregon are presently the only two states that have statutory protections for tobacco users.  According to KRS 344.040, which is part of Kentucky’s Civil Rights Act,  employers cannot discriminate against workers who smoke or use other tobacco products outside the workplace, so long as the workers comply with workplace bans on smoking. Likewise, employers cannot require as a condition of employment that any employee or applicant abstain from smoking or using tobacco products outside the workplace.  Employers may lawfully require smokers to pay higher health insurance premiums in employee-sponsored health plans, and may offer smoking cessation benefits or incentives. 

If HB 193 becomes law, employers (and certainly operators of public places) may need to create a Smoke Patrol, so as to avoid penalties themselves if they fail to enforce the smoking ban.  The bill as presently drafted does not appear to cover uses of tobacco other than smoking.

HB 193 was introduced in the Kentucky House of Representatives on January 6, 2011, and went to the Health and Welfare Committee the next day.

Look For Increase in Audits For Independent Contractors

By Kim Koratsky

The employee/independent contractor question is often a thorny issue for employers, but in the next year, it could be an even bigger problem.  According to an article in Crain’s Cleveland Business, “[o]ver the past two years, the Wage and Hour Division of the U.S. Department of Labor has hired more than 350 investigators to uncover employment violations, including misclassification, and President Obama has requested $25 million in the fiscal 2011 budget to target the issue further.”  In addition to the government crackdown, class action lawsuits brought against employers accused of misclassifying employees have increased significantly in recent years.

It is much easier to solve these problems with an internal audit than to wait for an official audit by the Department of Labor (DOL).  DOL audits can be devastating to a small business.  The DOL audit process, and appeals if pursued, are long and expensive, even if companies end up not owing back pay, penalties and interest.  While the DOL seems to be looking at all businesses, sectors that are drawing particular scrutiny include trucking, construction, manufacturing, information technology, and home health care. 

A Room with a View – The Costly Consequences of Ignoring a Small Request for Accommodation

By Debra H. Dawahare

As everyone knows by now, the Americans with Disabilities Act requires covered employers to offer reasonable accommodations to employees with conditions that substantially limit major life activities.  During the statute’s early history, the courts tended to interpret the definition of “disability” narrowly.  Congress responded with the ADAAA, scolding the courts for their narrow interpretations and requiring employers to assume that almost anyone requesting an accommodation is disabled.

 In a recent federal case, a school district in Wisconsin chose to contest an employee’s claim of disability, and ended up with an adverse trial verdict of almost $2M.  In Ekstran v. School District of Somerset (WI) the complainant was a kindergarten teacher with Seasonal Affective Disorder (“SAD”), whose assignment to a windowless classroom exacerbated her condition. The symptoms of SAD include depression, fatigue, and panic attacks.

 

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.

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.

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).

Supreme Court Allows Search of Employer-Issued Pager

By Kim Koratsky

On June 17, 2010, the U.S. Supreme Court issued its opinion in City of Ontario, Calif. v. Quon, No. 08-1332, slip op., 560 U.S. ___ (June 17, 2010), upholding the municipal employer’s right to search an employee’s text messages on a city-issued pager.  In this case, SWAT Sgt. Jeff Quon used the pager issued to him by the Ontario, California Police Department, to send and receive messages that, in the trial judge’s words, were “to say the least, sexually explicit in nature.”  Police officials discovered many personal messages, including some that were sexually explicit, when it decided to audit text message usage to see whether SWAT team officers were using their pagers too often for personal reasons.  The city had a policy making clear that it had the right to monitor communications on computers, e-mail and the Internet, but one police official informally told officers that no one would audit their text messages so long as the officers paid for the charges above a monthly allowance.  After the audit disclosed the sexually explicit messages, Sergeant Quon, a second officer, the sergeant’s wife and mistress sued the department saying their Fourth Amendment Rights were violated.

Writing on behalf of a unanimous Court, Justice Anthony Kennedy said that Quon could not assume “that his messages were in all circumstances immune from scrutiny.”  Justice Kennedy specifically warned that this decision was narrow and closely tied to the facts, and went on to say that the court was uncomfortable fashioning comprehensive legal rules, given the pace of technological and cultural change.  Saying that, so long as employers have a “legitimate work-related purpose” for inspecting such communications, however, Justice Kennedy wrote that the Police Department’s  audit of pager messages on a city-issued device “was not nearly as intrusive as a search of his personal e-mail account or pager, or wiretap of his home phone line would have been.”  Justice Kennedy went on to say that, based on the general affordability of cell phones and similar devices, employees who want to avoid having such communications revealed “can purchase and pay for their own.”