The Supreme Court of Kentucky Issues Guidance Regarding Upcoming Trials

By Marianna J. Michael

Shortly after releasing its guidelines for reopening courts in the Commonwealth, the Supreme Court of Kentucky provided further guidance in regards to upcoming trials. The Order builds in time for courts to prioritize criminal proceedings that have been delayed as a result of COVID-19. As such, the Order makes the following provisions:

US Supreme Court Gives Rare Victory for Arbitration Opponents in a Narrow Case for Transportation Workers

By Sharon Gold

Over the past few decades, the US Supreme Court has become a very arbitration-friendly Court.  Indeed, in the last decade, the Court has upheld arbitration in numerous decisions.  This week, in a rare victory for arbitration opponents, the Supreme Court in New Prime Inc. v. Oliveira unanimously rejected arbitration for truck drivers who were classified as independent contractors under the narrow transportation exception.  At issue was an exception to the enforceability of arbitration clauses for “contracts of employment” of workers engaged as seamen, railroad workers or those engaged in foreign or interstate commerce under the Federal Arbitration Act.  Both parties in the case agreed that truck driver employees fell within the exception.  The questions at issue were: 1) Should the Court decide the initial issue of enforceability of arbitration or should an arbitrator; and 2) Whether the transportation exclusion applied to independent contractors rather than just employees.

The Court initially held that the decision of whether the exclusion applied was one for the Court to decide because it dealt with the statutory authority of the Court.  In another case decided by the Court this term, the Court held that the interpretation of an arbitration agreement, on the other hand, would be subject to review by an arbitrator who would then decide whether arbitration was proper.  Here, because the exclusion concerned the Court’s statutory authority to

President Trump Nominates Brett Kavanaugh to the Supreme Court: What Does This Mean for Employment Law?

By Thomas E. Travis

On July 9, 2018, President Trump nominated Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia to the Supreme Court.  If confirmed, Judge Kavanaugh will fill the seat recently vacated on July 31 by retiring Supreme Court Justice Anthony Kennedy.  Here’s what we know about Kavanaugh and how his appointment to the Court will impact emerging issues in labor and employment law.

Judge Kavanaugh has been a member of the D.C. Circuit for the past twelve years and has an extensive paper trail, especially with respect to reviewing administrative agency determinations.  He is generally perceived as contemplative and precise, with a reputation as a textualist and originalist jurist, meaning that he attempts to interpret legal texts as written and according to their original understandings at the time they were enacted.  The resulting consequence often finds Judge Kavanaugh skeptical of

Supreme Court Considers Validity of Employment Contracts Prohibiting Class or Collective Action

By Douglas L. McSwain

On October 2, 2017, the Supreme Court of the United States heard three combined cases raising an important legal question that likely will affect innumerable employment contracts used in this country.  The Court heard Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris and National Labor Relations Board (NLRB) v. Murphy Oil (USA).  The Court’s ruling in these three cases will determine the validity of arbitration clauses that waive or prohibit the employee from pursuing collective, class or joint actions in court or in arbitration proceedings.

The lower courts have differed on this question, and the oral argument before the Supreme Court indicates the Justices are likely to split in what could turn out to be a closely decided ruling, perhaps with a thin majority of Justices (i.e., potentially a 5-4 decision).  No one knows for sure how the case will be finally decided by the Supreme Court, and predictions about how the Justices will rule, at this juncture, are premature at best.  The questioning that occurred during oral argument seems to suggest

U.S. Supreme Court remands transgender bathroom case back to Fourth Circuit

By Courtney Samford

On March 6, 2017, the U.S. Supreme Court remanded a case involving a transgender high school student back to the Fourth Circuit Court of Appeals.  The case, Gloucester County School Board, Petitioner v.  G. G., By His Next Friend and Mother, Deirdre Grimm, focuses on the right of a transgender boy, Gavin Grimm, to use the bathroom that corresponds with his gender identity at his public high school.  Grimm, who was born a girl, used the boys’ restrooms with the approval of school administration until the Gloucester County School Board enacted a policy that required all students to use the bathroom that corresponded with their gender assigned at birth.

Grimm filed suit, alleging that the school board’s policy discriminated against him in violation of Title IX and the Equal Protection Clause.  The lower court dismissed Grimm’s Title IX claim.   Following an appeal, the Fourth Circuit reversed, finding that the lower court did not

United States Supreme Court to Resolve Class Action Waiver Issue

By Michelle D. Wyrick

In a matter of great interest to many employers, last week, the United States Supreme Court agreed to decide whether arbitration agreements that prohibit employees from pursuing class and collective remedies are enforceable. Courts are currently divided on the issue. The Supreme Court granted certiorari in three cases, Epic Sys. Corp. v. Lewis, from the Seventh Circuit, Ernst & Young LLP v. Morris, from the Ninth Circuit, and NLRB v. Murphy Oil, USA, from the Fifth Circuit, to resolve the question.

The dispute pits the savings clause of the Federal Arbitration Act (“FAA”), 9 U.S.C. §2, which allows invalidation of arbitration agreements only “upon such grounds as exist at law or in equity for the revocation of any contract” against employees’ rights to engage in protected, concerted activity under the National Labor Relations Act, 29 U.S.C. §157. The National Labor Relations Board (“NLRB”) takes the position that provisions in arbitration agreements requiring employees to waive their rights to pursue class or collective actions violate employees’ rights to engage in protected, concerted activity under the National Labor Relations Act (“NLRA”). In May 2016, the Seventh Circuit agreed and

21 States (Including Kentucky) and Several Businesses File Lawsuits Challenging DOL Final Rule Raising Salary for Exempt Workers

By Sharon L. Gold

This week, Kentucky, alongside 20 other states, sued the Department of Labor in a Texas Federal Court.  The states’ Complaint, 4:16-cv-00731, attacks the DOL’s Final Rule that raises the salary minimum for exempt workers.  That same day, numerous businesses and the Chamber of Commerce filed a similar Complaint, 4:16-cv-732, challenging the regulation.

The states contend that the Final Rule infringes upon state sovereignty and federalism by dictating the wages that a state must pay its employees.  The states contend that “as a result of the new overtime rules and the accompanying damage to state budgets, states will be forced to eliminate or alter employment relationships and cut or reduce services and programs.  Left unchecked, DOL’s salary basis test and compensation levels will wreck state budgets.”  States’ Complaint at 84.  As to Kentucky, the Complaint alleges that