Wyatt Employment Law Report


Kentucky Supreme Court Limits Employers’ Ability to Enter Arbitration Agreements with Employees

By Marianna Michael

agreement-coffee-content-1076815Within the first week of October, the Kentucky Supreme Court issued its opinion in Northern Kentucky Area Development District v. Snyder NO. 2015-CA-001167 (Ky. Aug. 27, 2018). The court faced the decision of whether the Federal Arbitration Act (“FAA”) preempted KRS 336.700. Ultimately, the court held that: (1) employers may not condition employment on entering into arbitration agreements and (2) the FAA does not preempt KRS 366.700(2).

In this case, Danielle Snyder brought suit against her former employer, the Northern Kentucky Area Development District (“NKADD”). NKADD is a public agency that provides social programs to eight Kentucky counties. It hired Snyder on the condition that she enter into an arbitration agreement. The agreement required Snyder to resolve all disputes with NKADD through arbitration and not through the courts. Snyder was given the option to reject the agreement within five days of accepting it, but the rejection would end her employment with the company. She accepted the condition and worked for NKADD until Continue reading


Employers Have Opportunity to Comment on NLRB’s Proposed Joint Employer Rule

By Sharon Gold

The National Labor Relations Board (“NLRB”) recently proposed a rule establishing the standard for determining joint employer status under the National Labor Relations Act.  Employers have until November 13, 2018 to comment about the proposed rule.  The proposed rule, commentary and instructions on commenting are available here.

There have been several changes to the definition over the past few years, which has caused uncertainty for employers.  The proposed rule states that employers are joint employers “only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.”  Proposed Rule Part 103.40.  “A putative joint employer must possess and Continue reading


Stay Cool: Preventing Heat Illness in the Workplace

By Julie Laemmle

breathing-apparatus-dangerous-emergency-36031Heat-related hazards can affect a variety of workers and workplaces.  Without proper employer and employee precautions, exposure to heat can lead to worker injuries, diseases and fatalities; reduced productivity; and Occupational Safety and Health Administration (“OSHA”) citations and penalties.  To minimize any health or business risks, employers should be properly educated on the dangers of occupational heat exposure, understand their responsibilities and take appropriate steps to protect workers.

Heat-related illnesses include heat stroke, heat exhaustion, heat cramps, heat rash, heat fatigue and fainting.  Further, all of these illnesses can progress to much more serious conditions and could even lead to death.  Other heat-related risks Continue reading


Sixth Circuit Issues Ruling Regarding Modified Work Schedules

By Amanda Warford Edge

adult-africa-african-1089550 (1)Last week, the Sixth Circuit issued an opinion in Hostettler v. College of Wooster, — F.3d — (6th Cir. July 17, 2018), reminding employers that determining the essential functions of a position is a highly fact-specific endeavor.  In that case, the College of Wooster had hired Heidi Hostettler in 2013 when she was four months pregnant.  She worked as a full-time HR Generalist.  After giving birth to her child, Hostettler experienced severe postpartum depression and separation anxiety.  As a result, her doctor determined it was medically necessary that Hostettler work a reduced schedule, working on a part-time basis for the “foreseeable future.”  After two months of working a reduced schedule, Hostettler was fired for being “unable to return to [her] assigned position of HR Generalist in a full time capacity.”

Hostettler brought suit under the Americans with Disabilities Act (“ADA”)¹,  Continue reading


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 Continue reading


Supreme Court Hands Public Sector Unions Major Setback

By Michelle D. Wyrick

In a 5-4 decision, the United States Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 et al., held that non-union members cannot be compelled to pay agency fees to the union, delivering a blow to public sector unions.  In doing so, the Court overruled Abood v. Detroit Board of Education, a 41 year old decision.

Janus involved a dispute between an Illinois state employee, Mark Janus, and a union about whether the union was permitted to collect agency fees from him, even though Janus chose not to join the union and disagreed with many of its public policy positions, including the positions it took in collective bargaining.  Under Illinois law, state employees are permitted to unionize.  If a majority of the employees in a bargaining unit votes to be represented by a union, that union becomes Continue reading


Should Salary History be History? Circuit Court Holds Past Salary History Cannot Justify Unequal Pay

By Sharon L. Gold

In Rizo v. Yovino, the Ninth Circuit Court recently held that an employer cannot use an employee’s prior salary history as a ‘factor other than sex’ upon which a wage differential may be used under the Equal Pay Act.  The EPA prohibits employers from paying women less for the same job unless the difference is based on merit, seniority, quantity or quality of work or the catchall “any other factor other than sex.”  The court held that salary history was not a legitimate factor that was related to the job, and instead, employers should use factors such as experience, training, education or prior performance to set wages.  The en banc decision was unanimous.

This decision comes amid several states banning salary history as a permissible factor upon which to base pay.  According to the Department of Labor, women in the U.S. make on average 82 cents to a dollar of what men make in comparable jobs.  Proponents of banning the “salary history” question claim that Continue reading