Kentucky Supreme Court Permits Class Actions for Wage Violations

On August 24, 2017, the Supreme Court of Kentucky held that employees may bring class actions for wage violations, such as an employer's failure to pay minimum wages or overtime wages. See Mary McCann v. The Sullivan University System, Inc., 2015-SC-000144-DG, 2017 Ky. LEXIS 358.

McCann was hired by Sullivan as an admissions officer in 2006. Like other admissions officers, McCann would recruit and interview prospective students to determine if they were good candidates for admission, then enroll them.


After McCann was terminated in 2008, she filed a class action lawsuit under the Kentucky Wages and Hours Act, KRS Chapter 337, claiming that she was misclassified as an exempt employee and that she should have been paid overtime wages during her employment. KRS 337.385 states that a legal claim may be maintained for wage violations "by any one or more employees for and in behalf of himself, herself, or themselves." KRS 337.385(2). The Kentucky courts had interpreted this provision to mean that an employee, or more than one employee, could bring a legal claim on his or her own behalf, but not on behalf of others. See, e.g., Toyota Motor Mfg., Ky., Inc. v. Kelley, 2013 Ky. App. Unpub. LEXIS 910 (Ky. Ct. App. Nov. 15, 2013).

Relying on Kelley, the Jefferson Circuit Court denied McCann's motion to certify the case as a class action. The Kentucky Court of Appeals affirmed the denial.

The Supreme Court, however, reversed the decisions. The Court first determined that KRS 337.385 was not a "special statutory proceeding" that operated outside of or beyond the scope of the Kentucky Rules of Civil Procedure. Special statutory proceedings are those that comprehensively prescribe every procedural detail, such that the proceeding becomes "a wholly self-contained process." These proceedings include dependency, abuse, and neglect matters, forcible detainer or eviction proceedings, and election contests.

The Court next determined that, although KRS 337.385 neither explicitly permitted nor prohibited class actions, Rule 23 of the Kentucky Rules of Civil Procedure set forth how and when a class action may be maintained. And, in the absence of special statutory proceeding, Rule 23 permitted claims for wage violations under KRS 337.385 to be pursued as class actions.

In a class action, of course, one or more plaintiffs, or class representatives, maintain legal claims on behalf of those who are similarly situated, the absent class members, for some kind of relief or compensation. On of the hallmarks of a class action is the pursuit of claims that, on an individual basis, don't offer a high enough recovery to warrant action, but the potential recovery for hundreds or even thousands of others make the case worth pursuing.

The take-away: The availability of class-action relief for employees can open employers to significant exposure for misclassification of their workforce. Employers are advised to review their workforce-classification policies and procedures, such as whether an individual is classified as an independent contractor or employee, or whether an employee is classified as exempt or non-exempt under the Kentucky Wages and Hours Act.

If you're an employer and you'd like help reviewing your current practices, we can help. We can review your current policies and practices, provide proactive advice on how to remedy any potential issues, and take steps to mitigate any potential liability.

If you're an employee and you, and possibly your co-workers, have been denied minimum wages or overtime wages, we can help. We can investigate your potential claims and let you know your options for proceeding, either in an individual action, a class action, or through the Kentucky Labor Cabinet.

Xarelto Linked to Uncontrollable Internal Bleeding and Death

An anticoagulant, or blood-thinner, manufactured by Janssen Pharmaceuticals and marketed by Bayer Healthcare, Xarelto was represented as being the superior medication to reduce the incidence of stroke, deep vein thrombosis, and pulmonary embolisms. Studies, however, have found that Xarelto can lead to serious, uncontrollable, and life-threatening internal bleeding, and even death.


Unlike warfarin and other blood-thinner medications, for which a high dose of Vitamin K can treat bleeding events, there is no known antidote or reversing agent for the bleeding or hemorrhaging caused by Xarelto, even with a doctor's help.

To date, thousands of people -- approximately 14,000, to be exact -- have filed lawsuits across the country taking aim at Janssen and Bayer's initial failure to design and manufacture the drug to eliminate this risk and their subsequent failure to warn of this significant risk.

The lawsuits have been consolidated in a federal court in Louisiana, known as a multi-district litigation (MDL) proceeding. There is still time to take action, but time is running short.

If you, a loved one, or someone you know was prescribed Xarelto and suffered internal bleeding or hemorrhaging, including gastrointestinal and abdominal bleeding, eye bleeding, or intracranial hemorrhaging, call us today. We can talk to you about your options, how the MDL process works, and how you can potentially recover for the sustained injuries.

Taylor Swift's Victory in Sexual Assault Case Provides Lessons for the Workplace

Earlier this week, a Colorado jury found in favor of Taylor Swift on her counterclaim for sexual assault against former radio disc jockey, David Mueller, awarding her exactly what she asked for in damages: a symbolic $1.00. Mueller initially claimed that Swift cost him his job after she reported that he lifted her skirt and grabbed her on the buttocks while they posed for a photo in 2013.

Swift's attorney remarked in an opening statement at the trial that "she's not trying to bankrupt this man, she's just trying to tell people out there that you can say 'no' when someone puts their hand on you."

Taylor Swift

Taylor Swift

Parallels to the workplace abound. Employees must speak up and report the harassment, whether it's coming from an executive, high performer, member of management, or a co-worker. When employees remain silent about the harassment, there can be no remedy, symbolic or otherwise.

Employers must treat harassment complaints seriously, immediately conduct an investigation, and take appropriate action, including, if necessary, termination of the harasser. An employer's failure to do so could result in liability for the actions of the harasser.

If you've been subjected to sexual harassment at your place of work, give us a call today. We can talk you through the steps for reporting the harassment, protect your rights during the investigation, and we can counsel you on your options for legal action.

If your organization has received a sexual harassment complaint, and you're wondering how you should respond, give us a call today. We can advise you on investigation best practices, perform or oversee the investigation, and defend your interests in the event a lawsuit is filed.

Risperdal Side Effects and Lawsuits

Risperdal, approved by the U.S. Food and Drug Administration in 1993, is an antipsychotic medication used to treat a variety of psychiatric disorders and mental health conditions, including ADD, bipolar disorder, schizophrenia.

One side effect, initially described as "rare," is gynecomastia, or the growth and development of female breast tissue in males. There are now thousands of lawsuits around the country -- more than 19,000, to be precise -- alleging that use of Risperdal caused gynecomastia.

It has also been alleged that the drug maker, Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson, knew the full extent of the risk of gynecomastia, but failed to adequately warn patients. In late 2015, the Kentucky Attorney General settled a lawsuit against Janssen and Johnson & Johnson for $15.5 million, in which the AG alleged that the companies knew that Risperdal could cause a hormonal imbalance, resulting in breast tissue growth, but never informed patients of the significant risk.

We currently represent a young man who has developed gynecomastia after taking Risperdal, and we are preparing legal action. We are also accepting new cases. If you, a loved one, or someone else you know has been prescribed Risperdal and possibly developed breast tissue, contact us today for a free consultation and evaluation.

Beyond 9 to 5: Kentucky's Overtime Pay Requirements


Dolly Parton's 1980 hit, "9 to 5," showcases her great voice and a bubbly melody that mask a darker message about working for an inconsiderate and insensitive employer.

Employee pay from 9 to 5 is rather simple: there's an agreed upon hourly wage or salary. Overtime pay -- time-and-one-half -- is also pretty simple, right? No, not always.

Here are answers to several frequently asked questions about overtime compensation:

Can an employer require an employee to work overtime? Yes.

What compensation must an employer pay to an employee for working overtime? The Kentucky Wage and Hour Act and the Fair Labor Standards Act require employers to pay employees time-and-one-half for all time worked in excess of 40 hours in a work week.

May an employer require its employees to take "comp time" in lieu of paying overtime wages? No. "Comp time" refers to time an employee may take away from work, like vacation leave, in a future work week so that the employer may avoid paying overtime wages for a prior week. For instance, if an employee works 45 hours in one week, an employer may offer an employee five hours off work the following week to offset the overtime worked. Both Kentucky and federal law prohibit the use of comp time; employers must pay wages at a rate of time-and-one-half to those employees who work more than 40 hours in any given work week.

I am provided housing as part of my hourly wage; does this impact my overtime wages? Yes. Kentucky law sets forth the necessary calculation to determine the base rate of pay and overtime rate.

Let's suppose an employee works for a property management company; he's paid $10 per hour and receives an apartment valued at $800 per month. If the employee regularly works 50 hours per week, what overtime wages must the employer pay each pay period?

First, determine the value of the housing on a weekly basis: $800 x 12 months = $9,600 per year; $9,600 divided by 52 = $184.62 per week.

Second, determine the total wages paid by incorporating the value of the housing to the stated hourly wage: multiply the hours worked per week by the hourly wage, 50 x $10 = $500 per week, and then add the weekly value of the housing, $500 + $184.62 = $684.62 total wages paid.

Third, divide the total wages paid by the number of hours worked to determine the actual hourly wage: $684.62 divided by 50 = $13.69 actual hourly wage incorporating the housing benefit.

Fourth, multiply the actual hourly wage by 1.5 to determine the necessary overtime wage to be paid for all hours in excess of 40: $13.69 x 1.5 = $20.54.

Fifth, multiply $13.69, the actual hourly wage, by 40 hours (which equals $547.70), and multiply the overtime wage, $20.54, by the overtime hours, 10 (which equals $205.40), and add the amounts together to calculate the total straight time and overtime pay: $547.70 + $205.40 = $753.10.

Finally, subtract the value of the housing provided, $184.62, from the total straight time and overtime pay, $753.10, to determine the total monetary compensation the employee should receive for a 50-hour work week: $568.48.

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If you're an employee who has not been paid for overtime hours worked, give us a call today for a free initial consultation.

If you're an employer who has questions about overtime pay, whether an employee is exempt or nonexempt from overtime pay requirements under state or federal law, of if you simply have questions regarding the Kentucky Wage and Hour Act or the Fair Labor Standards Act, give us a call today for a free initial consultation.

Employee Meal and Rest Breaks: A Kentucky Primer

It's a familiar scenario. The deadline looms. There's lots of work to be done. There's not enough time to get it all done. May your employer deny you a meal or rest break so that the work can, in fact, get done in time?

In many instances, no.

The Kentucky Wage and Hour Act was enacted, in part, to ensure that employees subject to the Act were treated fairly and with dignity, and employed only under reasonable conditions. In this vein, the Act requires employers to provide employees with meal and rest breaks.

Meal breaks are governed by KRS 337.355, under which employees must be granted "a reasonable period for lunch," or a meal, between the third and fifth hour after their shift started. While Kentucky law does define what constitutes "reasonable," it is commonly accepted to be an unpaid period of 30 minutes or more.

Rest breaks are governed by KRS 337.365, under which an employer must provide employees with a paid 10-minute break every four hours of employment. Opinions from the Kentucky Attorney General suggest that every four-hour working period should include a 10-minute break; thus, for every four hours, an employee should work for 3 hours and 50 minutes and take a 10-minute break.

Employees who are denied their statutorily-required meal and rest breaks have two options: they can file a complaint with the Kentucky Labor Cabinet or file a civil lawsuit against their employer. Which option is best is generally a case-by-case decision based upon the particular circumstances.

If you've been denied your meal or rest breaks and want to know more about your rights, call us today for a free consultation.

If your organization wants to implement a lawful meal and rest break policy, needs assistance implementing an existing policy, or simply needs guidance, specifically, on responding to employee complaints of meal and rest break violations or, generally, on the Wage and Hour Act requirements, call us today for a free consultation.

Sexual Harassment Can Happen Anywhere

Even in the skilled, highly-educated workforce. The Hustle reports on recent harassment allegations coming from the tech industry in Silicon Valley.

For those employees enduring sex harassment, speak up. File a written complaint with human resources detailing the harassment. Request that an investigation be performed and that disciplinary action be taken against the harasser. Your employer cannot retaliate against you for filing the complaint.

For employers, draft and enforce an anti-harassment policy. Train your supervisors and workforce. Immediately investigate complaints of harassment, even if they come from habitual complainers and even if they implicate top performers or executive officers. Take prompt, appropriate action based upon the results of the investigation.

If you have questions about how to proceed, how to file a complaint, or how to investigate a complaint, we can help. Call us today.

Seventh Circuit holds that sexual-orientation discrimination violates Title VII

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person's race, color, religion, national origin, or sex. For many years, courts around the country ruled that sex discrimination did not include sexual-orientation discrimination. The Seventh Circuit Court of Appeals, based in Chicago, Illinois, is now the first federal appellate court to hold otherwise.

The plaintiff, Kimberly Hively, is openly-lesbian and a former part-time adjunct professor at Ivy Tech Community College in South Bend, Indiana. Between 2009 and 2014, she unsuccessfully applied for at least six full-time positions. In July 2014, her part-time contract was not renewed. She first filed a charge of discrimination with the EEOC and later filed suit in federal court, claiming that she was denied full-time employment because of her sexual orientation.

The district court dismissed her claims, finding that that Title VII did not protect against sexual orientation discrimination. Last year, the Seventh Circuit, in a 2-1 panel decision, affirmed the district court’s dismissal.

The Seventh Circuit, however, agreed to rehear the case en banc, and yesterday reversed years of precedent and the district court’s dismissal, allowing Hively to proceed with her claims.

First, the Court found merit in Hively’s comparative argument: all other things being equal and changing only Hively’s sex, would she been treated the same way if she were a man? That is, would she have been denied full-time employment if she were a man dating or married to a woman? The answer: no. “This describes,” the Court stated, “paradigmatic sex discrimination.”

Second, the Court addressed Hively’s associational argument: if discrimination on the basis of the race of a person with whom an employee associates constitutes race discrimination, why is discrimination on the basis of the sex of a person with whom an employee maintains a sexual relationship not sex discrimination? The answer: it is.

In reaching this answer, the Court looked at various developments in the law governing Title VII over the last several decades. For instance, Title VII’s prohibition against sex discrimination has been held to include a prohibition of sexual harassment, same-sex harassment, and even gender stereotyping. According to the Court, Hively’s case “represents the ultimate case of failure to conform to the female stereotype: she is not heterosexual.”

The Court also looked at various Supreme Court decisions resolving the rights of same-sex couples. In 2003, the Supreme Court found unconstitutional a Texas statute that criminalized consensual homosexual intimacy; in 2013, it found unconstitutional the part of the Defense of Marriage Act that excluded a same-sex partner from the definition of a “spouse” in other federal statutes; and in 2015, in held that the Equal Protection and Due Process Clauses of the 14th Amendment protect the right of same-sex couples to marry.

How can these cases possibly be reconciled with the counterargument that Title VII historically prohibited sex discrimination but not sexual orientation discrimination? The answer: they can’t.

In March of this year, the Eleventh Circuit held that Title VII does not prohibit discrimination on the basis of sexual orientation. Our coverage of that case is here. With the circuit split now created by the Seventh Circuit’s decision, the issue will likely make its way to the Supreme Court.

Federal Court of Appeals Holds that Title VII Does Not Prohibit Sexual Orientation Discrimination

On March 10, 2017, the 11th Circuit Court of Appeals, which hears appeals from the federal district courts in Alabama, Florida, and Georgia, held that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of sexual orientation.

In Evans v. Georgia Regional Hospital, the plaintiff, Jameka Evans, alleged that she was terminated because she was a lesbian and did not conform to gender norms. She asserted claims for discrimination on the basis of gender non-conformity and sexual orientation. The Court dismissed the latter, noting that it was bound by a 1979 case, Blum v. Gulf Oil Corp., which held that Title VII did not prohibit "discharge for homosexuality."

Judge William Pryor, who many will recall was considered by President Donald Trump to fill the late-Justice Antonin Scalia's seat on the U.S. Supreme Court, stated in a concurring opinion that Congress, not the Courts, should designate sexual orientation as a protected class under Title VII, just as race, sex, gender, and national origin are explicitly protected.

In contrast, Judge Robin Rosenbaum, in her dissent, stated that sexual orientation already is protected by Title VII's prohibition against sex discrimination. "[W]hen a woman alleges ... that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer's image of what women should be--specifically, that women should be sexually attracted to men only."

Judge Rosenbaum's position closely aligns with the position the EEOC has taken since 2015, and that other federal district courts around the country have taken in denying motions to dismiss sexual-orientation discrimination claims under Title VII.

We anticipate that Ms. Evans will file a motion to have her appeal heard by the entire 11th Circuit and that, at some point in the very near future, this issue will make its way to the Supreme Court.

EEOC 2016 Year-End Report

The U.S. Equal Employment Opportunity Commission has released in year-end report for 2016, which, in part, provides statistical data regarding the discrimination charges filed with the agency.

Here in Kentucky, there were 911 total charges filed, which consisted of 325 disability discrimination claims, 323 race claims, 273 sex (including sexual harassment) claims, and 233 age claims. Within the 911 total charges, nearly 41% -- 371 of them -- included a retaliation component.

Kentucky's filings generally correspond with the national statistics. Across the country, 91,503 charges were filed, of which 35% included a race discrimination claim, 31% included a disability claim, 29% included a sex claim, and 23% included an age claim. Further, of the total charges, 46% included a retaliation claim.

Two statistics in particular stand out in this year's report. The EEOC received 1,768 charges of sexual orientation discrimination, and it resolved 1,649 of them, either through the reconciliation process or litigation. Both figures are record highs, reports the National Law Journal (sub. req.). The EEOC, of course, has taken the position -- contrary to the vast majority of federal courts -- that sexual orientation discrimination is prohibited by Title VII. The recent trend, however, looks rosy for the LGBTQ community, as more and more federal courts are, upon a more thorough analysis, finding that sexual orientation discrimination is included in Title VII.

No matter how you look at it, these figures identify a lot of disgruntled if not mistreated employees.

If you're an employee and you believe you've been harassed, discriminated against, or retaliated against, we can help. The initial consultation is free and, if we accept your case, you won't pay anything unless we obtain a recovery for you.

If you're an employer and you want to learn about ways you can reduce the number of EEOC charges, or employment-related lawsuits generally, we can help. If you need someone to conduct training for your management team or workforce, or simply assist with state and federal compliance, we can help. Call us today.