Wyatt Employment Law Report


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Senate Bill 18: Will the General Assembly Finally Clarify the Reach of the Peer Review Privilege?

By Rachel K. Mulloy

A bill passed in the Kentucky Senate (by a vote of 22-12) and currently awaiting House action in the Judiciary Committee proposes to amend the portion of KRS 311.377 pertaining to the confidentiality of certain medical records.  If passed, Senate Bill 18, sponsored by Senator Ralph Alvarado of Senate District 28, will prevent records of an entity, group, or individual performing a professional review function from being admissible in any civil action or administrative proceeding, including, specifically, medical malpractice actions.

Under the proposed amendment, KRS 311.377(2) reads as follows:

At all times in performing a designated professional review function, the proceedings, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity, as referred to in subsection (1) of this section shall be Continue reading


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Qualified Small Employer Health Reimbursement Arrangements

By Rachel K. Mulloy

Small employers now have the ability to assist employees with the cost of health care through a qualified small employer health reimbursement arrangement (QSEHRA).  Prior to the Affordable Care Act (ACA), small employers were able to offer stand-alone health reimbursement arrangements (HRAs) to help employees pay for medical care expenses, including health insurance premiums, on a tax-free basis.  This changed with the passage of the ACA, under which stand-alone HRAs were generally considered group health plans that violated the ACA’s annual dollar limit prohibition (some stand-alone HRAs, such as retiree-only HRAs, remained valid).  Consequently, employers who continued to offer such arrangements could face fines of up to $36,500 per employee per year (with a $500,000 total limit).  With the passage of the 21st Century Cures Act, which incorporates key components of the Small Business Healthcare Relief Act, small employers  may again offer this benefit to employees.

Eligible Employers   To be eligible to offer a QSEHRA, an employer (1) cannot be an “applicable large employer” under the ACA, i.e., had fewer than 50 full-time employees, including full-time equivalent employees, on average during the prior year, and (2) cannot offer a group health plan to any of its employees.  Qualified employers must offer the Continue reading


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New I-9 Form

By Glen Krebs

Photograph of a U.S. Department of Homeland Security logo.Beginning January 22, 2017, Employers must use the new Form I-9 when hiring a new employee. The new form is dated 11/14/2016. The old form (dated 03/08/2013) will not be acceptable for a date of hire after January 22, 2017. The old and new forms are not too different. Regarding the new form, United States Citizenship and Immigration Services (“USCIS”) states as follows:

“Among the changes in the new version, Section 1 asks for ‘other last names used’ rather than ‘other names used,’ and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other Continue reading


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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 Continue reading


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Update: Right-to-Work Law

By Amanda Warford Edge

Last Friday, January 6, 2017, Wyatt reported that Kentucky was poised to join 26 other states that have enacted right-to-work laws, as Kentucky’s new GOP House majority passed HB1. Over the weekend, HB1 was approved by the GOP Senate majority, and on Monday, January 9, 2017, Governor Matt Bevin signed HB1 into law. The new right-to-work law, which takes effect immediately, is available here.


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Kentucky Poised to Pass Right-to-Work Law

By Michelle D. Wyrick

Now that Republicans control the Executive Branch as well as both Houses of the Kentucky General Assembly, Kentucky will soon join 26 other states that have enacted right-to-work laws.  In states with right-to-work laws, no employee can be required as a condition of employment, to join a union or to pay dues to a labor union.

House Republicans filed a right-to-work bill as HB1, signaling that passage of right-to-work legislation is a top priority.  The House passed the right-to-work bill on January 5, 2017.  The Senate is expected to pass the bill in a rare Saturday session on January 7, 2017.  The bill will take effect immediately after the Governor signs it.

As currently drafted, Kentucky’s right-to-work law will not apply to agreements between employers and employees or labor organizations that were entered into before the effective date of the law, but it will apply to any new contracts and to extensions or renewals of existing agreements entered into on or after the effective date of the law.


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Kentucky’s “Gender Pay Gap”

By Amanda Warford Edge

According to a new study and report from PayScale.com, working women in Kentucky earn 22.2% less than men, with the median pay for a male worker being $48,900, compared with $38,100 for a female worker. This “gender pay gap” — as it is often termed — is slightly smaller than the pay gap nationwide.

The report states that across the 50 states and the District of Columbia, women earned 23.7% less than men in 2016, with a median pay of $58,000 for male workers and $44,300 for female workers. These figures are representative of the raw gender pay gap — which looks at a median salary for all men and women, regardless of job type or worker seniority.

The same study and report also took into account factors such as years of work experience, education, company size, job title, and job level to determine a “controlled” gender pay gap. In so doing, it found that Continue reading