Wyatt Employment Law Report


Effective June 27, 2019, Kentucky Employers with 15 or More Employees Have Expanded Accommodation Responsibilities and Notice Obligations

By Sharon L. Gold

The Kentucky Pregnant Workers Act (“the Act”), adopted in April, amends  the Kentucky Civil Rights Act (“KCRA”), and expands protections for pregnant workers in Kentucky.  The Act applies to  employers who have 15 or more employees within the state in each of twenty or more calendar weeks in the current or preceding calendar year and any agent of the employer.  It requires employers to provide reasonable accommodations, including but not limited to the need to express breast milk, to employees with limitations related to pregnancy, childbirth, or a related medical condition, unless it would pose an undue hardship on the employer.  A “related medical condition” includes, but is not limited to, lactation or the need to express breast milk for a nursing child.  The Act provides the following examples of reasonable accommodations: Continue reading


Department of Labor Weighs In In Favor of Gig Economy Employers

by Thomas E. Travis

On April 29, 2019, the Department of Labor issued an opinion letter pertaining to individuals providing services in the “unidentified virtual marketplace,” and placed a thumb on the scale in favor of their status as independent contractors, rather than employees. The “unidentified virtual marketplace,” also known as the “gig economy,” is commonly understood to be online or smartphone-based referral sources that connects providers directly to consumers for a vast array of services. The opinion letter—which is itself intended merely as guidance and not “binding” authority—concluded that providers accessing such an online referral source are more properly considered “independent contractors” of the online platform.

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Supreme Court to Address Circuit-Split Over LGBTQ Title VII Issues

by Jordan M. White

On April 22, 2019, the Supreme Court granted certiorari and consolidated three cases involving whether Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), prohibits employment discrimination based on an individual’s sexual orientation and transgender status. The three cases are: Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. 2018); and Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). In Zarda and R.G. & G.R., the Second and Sixth Circuits agreed that Title VII bars employment discrimination based on sexual orientation and transgender status, respectively, with the Eleventh Circuit holding otherwise in Bostock. Zarda may be the most interesting case of the three. There, the Second Circuit reversed itself in an en banc decision, and it exposed a public divide between the EEOC and the Department of Justice. Both federal agencies filed briefs in the case, with the EEOC arguing that Title VII does apply while the Department of Justice argued the contrary.

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Employers Beware: Kentucky Court of Appeals Rules that Employers Must Now Have Counsel in Unemployment Proceedings

By: Mitzi D. Wyrick

In a ruling that will undoubtedly affect how employers choose to proceed with respect to unemployment claims, the Kentucky Court of Appeals held that employers must have counsel to represent them in referee hearings and before the Kentucky Unemployment Insurance Commission.  In Nichols v. Kentucky Unemployment Insurance Commission, et al., the Kentucky Court of Appeals reviewed a decision in which the claimant was denied unemployment benefits after his employment was terminated.  The claimant, Michael Nichols, was terminated by his employer, Norton Healthcare, Inc. (“Norton”), for failure to comply with instructions, falsification of records, and misfeasance of company resources.  After being fired, Nichols submitted an application for benefits saying that he had been terminated for lack of work.  Norton contested the claim.  The unemployment division determined that Nichols had been terminated for misconduct and had intentionally misrepresented this fact on his application for benefits.  Nichols appealed the decision to the referee.  An evidentiary hearing was conducted at which Norton was represented by a non-lawyer.  The referee affirmed and the decision was affirmed on appeal to the Commission and again at the Jefferson Circuit Court.

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New Kentucky Law Ensures That Employees Can Be Required To Arbitrate Claims

By Michelle D. Wyrick

On March 25, 2019, Governor Bevin signed legislation providing that an employer may require an employee to sign an arbitration agreement as a condition of employment. The legislation, which amends KRS 336.700, is designed to reverse the Kentucky Supreme Court’s decision in Northern Ky. Area Development Dist. v. Snyder,  2017-SC-000277-DG (Ky. 2018), which held that employers may not condition employment upon execution of an arbitration agreement.
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U.S. Supreme Court Finds that Lafe Solomon’s Service as Acting NLRB General Counsel Violated the FVRA

By Courtney Samford

On March 21, 2017, the U.S. Supreme Court finally resolved the issue of Lafe Solomon’s role as Acting General Counsel of the NLRB in National Labor Relations Board v. SW General, Inc.  In an opinion authored by Chief Justice Roberts, the Supreme Court held that Solomon’s position as Acting General Counsel violated The Federal Vacancies Reform Act of 1998 (“FVRA”) once he was nominated by then President Obama for the permanent position.  Generally, Article II of the U.S. Constitution requires the President to obtain Senate approval to appoint “Officers of the United States,” but the FVRA allows the President to appoint a limited class of individuals to serve as acting officers on a temporary basis until a replacement can be confirmed by the Senate.  Pursuant to the FVRA, certain individuals who are nominated for a permanent position may not serve as an acting officer.

In June 2010, a vacancy arose in the general counsel position for the NLRB.  Then President Obama appointed Solomon to serve as Acting General Counsel on a temporary basis, and several months later, nominated him to serve as the General Counsel.  Solomon’s temporary position did not require Senate confirmation, but the permanent position did.  However, the Senate refused to act on Solomon’s nomination, and Obama was forced to Continue reading


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Sixth Circuit denies request to reconsider Hardin County’s “right to work” ordinance

By Courtney Samford

Last week, the Sixth Circuit denied a request by several collective bargaining organizations to rehear a challenge to Hardin County, Kentucky’s “right to work” ordinance.  The union challengers, including the ALF-CIO, argued that the county ordinance was preempted by the National Labor Relations Act (“NLRA”).  More specifically, they claimed that Hardin County’s ordinance was preempted by the NLRA, which only permits “State or Territorial” laws prohibiting security agreements between employers and unions.  The County, on the other hand, took the position that its ordinance was valid because it was a political subdivision of the Commonwealth of Kentucky.  The lower court found in favor of the union plaintiffs and struck down the ordinance.

Hardin County appealed to the Sixth Circuit, and a three-judge panel reversed the lower court’s ruling, finding that “State or Territorial” laws include ordinances passed by Continue reading