The Cold Hard Facts

By Michael D. Hornback

A recent Kentucky Court of Appeals decision is a reminder of a litigation truism –  there is no such thing as a “motion to change the facts.” Admittedly, I have handled numerous cases over the years wherein I wished, hoped and even prayed that I could file such a motion.  Much to my chagrin, a “motion to change the facts” is not available.  However, don’t despair because plaintiffs also find themselves wishing they could change the facts.  As the Kentucky Court of Appeals recently found, the “cold hard facts” are what they are, and a plaintiff’s subjective beliefs about the reason for her termination won’t carry the day.

In Conley v. Mountain Comprehensive Care Center, Inc., 2017 WL 3129215 (Ky. App., July 21, 2017), a licensed clinical social worker was terminated and sued her employer claiming age discrimination.  This case stems from Ms. Conley’s preparation and submission of a therapeutic treatment plan for a foster child directly to the Perry County Family Court, rather than to the Department for Community Based Services (“DCBS”).  It should be noted that Ms. Conley’s therapeutic treatment plan was apparently in conflict with

Beware the Dangers in Unemployment Compensation Hearings

By Sean G. Williamson

An unemployment compensation hearing can be fraught with dangers for the unsuspecting or unprepared employer.  Many employers disregard such proceedings as low risk because any benefits will be paid from the state’s unemployment insurance fund to which all employers must contribute.  But the factual issues raised in unemployment compensation hearings closely relate to more significant sources of employer liability, such as the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.  The recent decision of the Kentucky Court of Appeals in Hicks v. Kentucky Unemployment Insurance Commission, — S.W.3d —, No. 2014-CA-001061-MR, 2015 WL 7351398 (Ky. App. Nov. 20, 2015), illustrates the potential intersection between those seemingly distinct areas of law and the need for a forward-looking strategy to avoid future claims.

Tarsis Hicks worked as an interpreter for Fairview Community Health Center (“Fairview”).  She assisted Spanish-speaking patients in communicating with medical staff.  During her employment, Hicks received a diagnosis of breast cancer.  She then took leave from work under the FMLA to undergo chemotherapy treatments.  After exhausting her twelve weeks of FMLA leave, Hicks requested that Fairview allow her to work from home by

Kentucky Court of Appeals Holds that Plaintiffs Have the Burden of Proving Missed Meal Breaks

By Mitzi D. Wyrick

In Hisle, et al. v. Correctcare – Integrated Health, Inc., Ky. App. (June 12, 2015), the Kentucky Court of Appeals addressed the issue of what test applies when employees claim to have missed meal breaks.  Plaintiffs, who were nurses and medication aids employed at a prison, sued under the Kentucky wage and hour laws alleging that they were denied rest and meal breaks and were therefore entitled to additional compensation.  Plaintiffs based their claim on the fact that they had to carry or monitor a handheld two-way radio while working inside the prison facilities, including during their 30-minute lunch breaks, which were automatically deducted from their time.

The trial court held that merely monitoring the radio during meal breaks did not amount to a denial of a meal break if employees could comfortably and adequately spend their mealtime and their time was not devoted primarily to official responsibilities.  At trial, the plaintiffs claimed that

Kentucky Court of Appeals Rules That Kentucky Wage and Hour Statute Does Not Permit Class Actions

By Michelle D. Wyrick

In an important ruling for employers, on February 27, 2015, the Kentucky Court of Appeals ruled that KRS 337.385 does not permit individuals to pursue claims for unpaid wages and overtime in Kentucky as class actions. See McCann v. The Sullivan University System, Inc., No. 2014-CA-000392-ME. The Court relied on the language in KRS 337.385(2) stating that actions for unpaid wages and overtime may only be maintained by one or more employees “for and in behalf of himself, herself, or themselves.” The Court concluded that this language does not permit plaintiffs to pursue claims for unpaid wages and overtime compensation in a representative capacity.

The Court contrasted the language in KRS 337.385 and the Fair Labor Standards Act, which expressly permits plaintiffs to

Employee or Independent Contractor?

by Debra H. Dawahare

The Kentucky Court of Appeals has recently upheld the Kentucky Worker’s Compensation Board’s decision to overturn an Administrative Law Judge’s opinion that a roofer was an independent contractor rather than an employee.  In Terry Steinrock and Glenn Coke d/b/a Glenn Coke General Contracting v. Howard C. Cook, et al, Claimant Howard Cook engaged in roofing work for T. W. Steinrock Roofing, a subcontractor of Glenn Coke General Contracting.  Cook, who also did restaurant and printing jobs and worked in warehouses, had taken up roofing to make ends meet.  He filed a workers compensation claim following an injury while working for Steinrock.  Steinrock and Coke protested that he was an independent contractor, and the ALJ agreed.  However, the Worker’s Compensation Board thought otherwise. 

Both the Board, and the Kentucky Court of Appeals in affirming the Board, looked to Ratliff v. Redmon, 396 S.W.2d 320 (Ky. 1965) to review the nine factors for determining whether an individual is an employee or an independent contractor:

These factors are: (1) The extent of control that the alleged employer may exercise over the details of the work; (2) Whether the worker is engaged in a distinct occupation or business; (3) Whether that type of work is usually done in the locality under the supervision of an employer or by a specialist, without supervision; (4) The degree of skill the work requires;  (5) Whether the worker or the alleged employer supplies the instrumentalities, tools and place of work; (6) The length of the employment; (7) The method of payment, whether by the time or the job; (8) Whether the work is part of the regular business of the alleged employer; and (9) The intent of the parties.