Wyatt Employment Law Report


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

By Sharon 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:

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Department of Labor Weighs In In Favor of Gig Economy Employers

By Thomas 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 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 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 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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Payments and Perks: the DOL Announces a Proposal to Clarify What Qualifies as Overtime

By Marianna Michael

On Thursday, March 28, 2019, the U.S. Department of Labor (“DOL”) announced proposed changes to the overtime provisions of section 7(e) of the Fair Labor Standards Act.  In its current form, the statute generally requires employers to pay overtime if workers work more than 40 hours a week.  One exemption to the overtime rule includes the salary basis exemption, where employees generally must be paid at least $455 per week on a salary basis, unless they are outside sales employees, teachers and employees practicing law or medicine.

accounting-blur-budget-128867Overtime pay is equal to one and one half times the regular rate of pay.  In designating what is included under the regular rate of pay, the current provision makes a distinction between payments and perks.  With the proposed provision, the DOL seeks to clarify what qualifies as either a payment or perk in an attempt to discourage employers from offering incentives that are excluded from the calculation of overtime pay.

The proposed changes confirm that the following types of employer-provided benefits may be excluded from the regular rate of pay:

  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes and employee discounts on retail goods and services;
  • payments for unused paid leave, including paid sick leave;
  • reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
  • discretionary bonuses;
  • benefit plans, including accident, unemployment and legal services; and
  • tuition programs, such as reimbursement programs or repayment of educational debt.

This proposal is published for public comments and will remain open until May 28, 2019.  Comments may be submitted to the Notice of Proposed Rulemaking at www.regulations.gov. More information is available here.


Comment Period Open for DOL’s Proposed Salary Increase

By Sharon Gold

The Office of the Federal Register officially published the Notice of Proposed Rulemaking (“NPRM”) raising the salary minimum for exempt workers that we discussed last week.  The NPRM proposes to raise the minimum salary for exempt workers to $35,308 per year ($679 per week), from the current minimum of $23,660 per year ($455 per week).  The NPRM also raises the highly compensated minimum to $147,414 per year, up from the current minimum of $100,000.  Once a proposed rule is officially published, the 60 day comment period is open.  Employers have until May 21, 2019 to comment.  The link to comment is available here.

If the Rule is finalized, it is estimated that 1.1 million workers will have their salaries raised to the minimum or will be eligible for overtime.