“To fulfill a dream, to be allowed to sweat over lonely labor, to be given a chance to create, is the meat and potatoes of life. The money is the gravy.”

— Bette Davis

The wage and hour laws are straightforward, but many employers are still trying to avoid taking care of their legal responsibilities to their employees.  Violations of the wage and hour laws such as the Fair Labor Standards Act (FLSA) are all too common. The following are some of the most common violations by employers:

• Failing to pay overtime – This is one of the most common wage violations by employers. In Kentucky, employees are entitled to earn overtime (time-and-a-half) if they work more than 40 hours in a workweek. Not all employees are entitled to earn overtime for extra hours. While hourly, nonexempt employees have a right to overtime, other categories of employees are exempt and do not have that right. The most common exempt employees are outside salespeople and “white-collar” employees who do professional, managerial, and high-level administrative work.
• Exemption Misclassification – Employers may attempt to reclassify a worker as exempt in order to avoid paying overtime. Just because your employer calls you a manager does not necessarily mean that your employer can avoid paying you overtime. Unless your employer can prove that you fit into one of these exemptions, you are entitled to receive overtime. The difference between an exempt and non-exempt employee is the nature of their job function and how they are compensated. An exempt employee is paid to get the job done regardless of how many hours they work. They are not required to take breaks. Non-exempt employees are entitled to overtime pay at a rate of 1.5 times their hourly rate, for time worked over 40 hours in a workweek. They are also entitled to take meal and rest breaks.
• Independent contractor misclassification – If the employer has control over the conditions of the employment relationship, such as where and when the work is performed, this probably constitutes an employment relationship, not an independent contractor arrangement.
• Illegal Deductions – An employer cannot deduct from the final pay any damage to property unless the employer can prove willful or intentional disregard. The employer must also have a written authorization from the employee stating that they understand that such deductions can be made.
• Travel Time – The employer fails to pay hours spent in travel as hours worked. Time spent traveling during normal work hours is considered compensable work time; time spent in home-to-work travel by an employee in an employer-provided vehicle, or in activities performed by an employee that are incidental to the use of the vehicle for commuting, generally is not “hours worked” and, therefore, does not have to be compensated.
• Training Prior To Hire – If paperwork and/or training are mandatory, the employee should be paid for the same.
• Unpaid Wages – Employers may fail to pay for all time worked or fail to provide a final paycheck and compensation for vacation time. Point blank, if the employer allows an employee to work, the employee must be paid. Any employee who leaves or is discharged from his/her employment must be paid all wages or salary earned no later than the next normal pay period following the date of termination or 14 days following such date, whichever is later.  As to vacation pay, in Kentucky, if an employer chooses to provide such benefits, it must comply with the terms of its established policy.  If that policy is that the employer does not pay accrued vacation time at termination or unless certain conditions are met, that is legal. It is not mandatory for an employer to pay accrued vacation leave upon termination from employment if the employer’s established policy is silent on the issue.

If you are experiencing any of the above wage and hour violations, contact an employment attorney to discuss what’s been happening to you.  We’ve heard it all, we know how this works, and we want to help.

“It is precisely that requirement of shared worship that has been the principal source of suffering for individual man and the human race since the beginning of history. In their efforts to impose universal worship, men have unsheathed their swords and killed one another. They have invented gods and challenged each other: ‘Discard your gods and worship mine or I will destroy both your gods and you!’”

—Fyodor Dostoyevsky, The Brothers Karamazov

Workplace discrimination on the basis of religion involves treating an employee differently because of what they believe in (or don’t believe in).  Civil rights laws prohibit employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. These laws also require employers to (reasonably) accommodate the religious practices of an employee, unless it would create an undue hardship upon the employer.

So what is a reasonable accommodation?  A reasonable religious accommodation is any modification to the workplace that will allow the employee to practice his or her religion, such as:

• Flexible scheduling
• Voluntary substitutions or swaps
• Job reassignments and lateral transfers

Discrimination on the basis of religion can include both theistic and non-theistic beliefs that are sincerely held with the strength of more traditional religious beliefs.  A boss, supervisor, manager, human resources representative, or coworker can commit a wrong based on religious discrimination, and still be someone you don’t want to make trouble for or argue with.  However, when those wrongs have impacted on you, those same people still need to answer for the damage they have caused.

So what is discrimination on the basis of religion?  Here are some examples of discrimination by employers that we have seen with our clients or that have been reported in court cases:

• Scheduling examinations or other applicant or promotion selection activities in conflict with a current or prospective employee’s religious needs
• Maintaining an unnecessarily restrictive dress code
• Refusing to allow observance of a religious holiday
• Biased comments, slurs, jokes
• Excluding potential employees during recruitment
• Denying certain employees compensation or benefits
• Discriminating when issuing promotions or lay-offs
• Allowing or creating a hostile work environment based on religious belief, making the workplace a difficult or offensive environment that interferes with an employee’s ability to work
• Terminating or demoting based on religious belief
• Issuing unfair discipline based on religious belief, faultfinding, nitpicking

This is of course not a comprehensive list of the ways in which discrimination can rear its ugly head at work, but it is a list that you may be more familiar with than you would like.  If you are experiencing any, or many, of the above discriminatory actions, please understand that it is in the vested interests of the wrongdoers to make you feel guilty for or hesitate to pursue potential legal claims.  Contact an employment attorney to discuss what’s been happening to you, we’ve heard it all, we know how this works, and we want to help.

“In the end, the aggressors always destroy themselves, making way for others who know how to cooperate and get along. Life is much less a competitive struggle for survival than a triumph of cooperation and creativity.”

—Fritjof Capra

 Hostile work environments are created when offensive behavior, intimidation, or abuse by a coworker or superior makes an employee feel uncomfortable, intimidated, or scared in the workplace.  Harassing conduct that is severe or pervasive can be part of this.  The hostile work environment or harassment must have been motivated by discriminatory beliefs regarding race, gender, religion, disability, age, or other civil-rights-protected category; it is not enough that a boss or coworker be hostile, rude, abrasive, or unfair, that behavior had to be motivated by discriminatory beliefs about people who belong to legally protected categories.

If you’re being harassed, then the Supreme Court says that you have to report it, if the company has a harassment policy, and give them a chance to fix the harassment.

To determine whether a work environment is hostile, an assessment is made based upon the totality of the circumstances. The severity of harassment is judged from the perspective of a reasonable person in the employee’s position.  An attorney would likely have the following questions:

• Was the conduct verbal or physical or both?
• How frequently was the conduct repeated?
• Was the conduct hostile or patently offensive?
• Was the harasser a co-worker or supervisor?
• Did others join in perpetrating the harassment?
• What happened when management became aware of the situation?
• Does the employee belong to a protected class based on race, religion, ethnicity, age, sex or disability?
• Was the harassment directly related to the employee being a member of one of these protected classes?
• Did the employer know of and fail to address the harassment?

Hostile work environment claims are very much based on the individual circumstances involved.  Generally, a hostile work environment claim has merit if the harassment is ongoing and severe, and it is offensive to not only the person being harassed, but also would offensive to any reasonable person in the same position.  For a claim to be successful, it is very important that there is evidence that the problem was reported; having documented the hostile work environment/harassment.

Contact an employment attorney to discuss what’s been happening to you, we’ve heard it all, we know how this works, and we want to help.

“Just because a man lacks the use of his eyes doesn’t mean he lacks vision.”

—Stevie Wonder

If you have a disability and are qualified to do a job, there are both federal and state laws protecting you from workplace discrimination and harassment on the basis of your disability. An individual is considered “disabled” if he or she has a physical (or mental) limitation that limits a “major life activity” such as walking, talking, concentrating, working, seeing, and learning. These discrimination laws also protect people who are not disabled but are perceived to be disabled in certain situations.

Discriminating on the basis of physical or mental disability can and does occur in various aspects of employment:

• Recruitment, firing, hiring, training, job assignments, promotions, pay, benefits, lay off, leave and all other employment-related activities
• Harassing an employee on the basis of his or her disability
• Asking job applicants questions about their past or current medical conditions, or requiring job applicants to take medical exams
• Creating or maintaining a workplace that includes substantial barriers to the movement of people with physical disabilities
• Refusing to provide a reasonable accommodation to employees with physical or mental disability that would allow them to work.

If any of these things have happened to you on the job, you may have suffered disability discrimination.  This is of course not a comprehensive list of the ways in which discrimination rears its ugly head at work, but it is a list that you may be more familiar with than you would like.  If you are experiencing any, or many, of the above discriminatory actions, please understand that it is in the vested interests of the wrongdoers to make you feel guilty for or hesitate to pursue potential legal claims.  Contact an employment attorney to discuss what’s been happening to you, we’ve heard it all, we know how this works, and we want to help.

“Discrimination due to age is one of the great tragedies of modern life. The desire to work and be useful is what makes life worth living, and to be told your efforts are not needed because you are the wrong age is a crime.”

—Johnny Ball

Age discrimination involves the unfavorable treatment of a person based on his or her age (40 or older). Age discrimination is incredibly hurtful to employees, but it’s also such a terrible business decision, as America’s workers 40 and older are most often the source of vast experience, knowledge, connections, and general know how.  Unfortunately, many employers just don’t see this vast knowledge base and high commitment levels from older workers.  Oftentimes, a new and younger member of management will “clean house,” operating under the belief that a younger worker is a go getter, as if employees over 40 haven’t already been proving their ability to get the job done for decades.  A boss, supervisor, manager, human resources representative, or coworker can commit a wrong based on age, and still be someone you don’t want to make trouble for or argue with.  However, when those wrongs have impacted on you, those same people still need to answer for the damage they have caused.

So what is age discrimination?  Here are some examples of discrimination by employers that we have seen with our clients or that have been reported in court cases:

• Biased comments -your boss calls you “grandma” or “old man,” asks you about your retirement plans, says that they want a younger image, or says that your best days are behind you
• Excluding potential employees during recruitment
• Denying certain employees compensation or benefits
• Paying equally-qualified employees in the same position different wages
• Discriminating when assigning leave or retirement options
• Denying the use of company facilities
• Discriminating when issuing promotions or lay-offs
• Allowing or creating a hostile work environment based on age, making the workplace a difficult or offensive environment that interferes with an employee’s ability to work
• Terminating or demoting based on age, which particularly happens when new management or supervisors are brought in
• Issuing unfair discipline based on age, faultfinding, nitpicking
• Treating older employees differently and unequally
• Providing insufficient training to employees based on age
• Holding employees over a particular age to a higher standard
• Giving an impossible work load or goals to older employees
• Giving less desirable assignments to older employees
• Giving less hours on the schedule to older employees
• Bullying behavior, or the office freezing you out of meetings and assignments, refusing to provide normal assistance or interaction

This is of course not a comprehensive list of the ways in which discrimination rears its ugly head at work, but it is a list that you may be more familiar with than you would like.  If you are experiencing any, or many, of the above discriminatory actions, please understand that it is in the vested interests of the wrongdoers to make you feel guilty for or hesitate to pursue potential legal claims.  Contact an employment attorney to discuss what’s been happening to you, we’ve heard it all, we know how this works, and we want to help.

“Though the colored man is no longer subject to be bought and sold, he is still surrounded by an adverse sentiment which fetters all his movements. In his downward course he meets with no resistance, but his course upward is resented and resisted at every step of his progress. If he comes in ignorance, rags, and wretchedness, he conforms to the popular belief of his character, and in that character he is welcome. But if he shall come as a gentleman, a scholar, and a statesman, he is hailed as a contradiction to the national faith concerning his race, and his coming is resented as impudence. In the one case he may provoke contempt and derision, but in the other he is an affront to pride and provokes malice. Let him do what he will, there is at present, therefore, no escape for him. The color line meets him everywhere, and in a measure shuts him out from all respectable and profitable trades and callings.”

—-Frederick Douglass

It’s obvious to say that workplace discrimination happens when an employer mistreats an employee or job applicant because of that person’s race.  However, most employees go for a long time being mistreated simply because they don’t want to believe Supervisor Who Can Fire Me is a racist.  (particularly in a society that uses offensive language like “pulling the race card” to discourage good people from standing up for fair treatment)  But if you are feeling like you are being treated badly, and nothing really explains why it is happening, the idea that you are being discriminated against starts to become more of a reality.  The wrongdoer can be a boss, supervisor, manager, human resources representative, or coworker. You don’t have to think that the person who has mistreated you is the most evil person who has ever walked the earth; even people who present themselves as being fair-minded can make bad decisions.  It’s when those bad decisions have impacted on you that the decision maker, either Evil Incarnate Manager or Just Kinda Backwards Boss, need to answer for the damage they have caused.

So what is workplace discrimination?  Here are some examples of race discrimination by employers that we have seen with our clients or that have been reported in court cases:

• Employers stating or suggesting preferred candidates in a job advertisement
• Excluding potential employees during recruitment
• Denying certain employees compensation or benefits
• Paying equally-qualified employees in the same position different wages
• Discriminating when assigning leave or retirement options
• Denying the use of company facilities
• Discriminating when issuing promotions or lay-offs
• Allowing or creating a hostile work environment based on race, making the workplace a difficult or offensive environment that interferes with an employee’s ability to work
• Terminating or demoting based on race, which particularly happens when new management or supervisors are brought in
• Issuing unfair discipline based on race, faultfinding, nitpicking
• Treating employees of one race differently and unequally
• Providing insufficient training to employees based on race
• Holding employees of a particular race to a higher standard
• Giving an impossible work load or goals to employees of a particular race
• Giving less desirable assignments to employees of a particular race
• Giving less hours on the schedule to members of a particular race
• Racial slurs, offensive jokes and comments
• Displaying racially offensive imagery, websites, songs, items
• Bullying behavior, or the office freezing you out of meetings and assignments, refusing to provide normal assistance or interaction

This is of course not a comprehensive list of the ways in which discrimination rears its ugly head at work, but it is a list that you may be more familiar with than you would like.  If you are experiencing any, or many, of the above discriminatory actions, or some other form of mistreatment, please understand that it is in the vested interests of the wrongdoers to make you feel guilty for or hesitate to pursue potential legal claims.  Contact an employment attorney to discuss what’s been happening to you, we’ve heard it all, we know how this works, and we want to help.

“Culture does not make people. People make culture. If it is true that the full humanity of women is not our culture, then we can and must make it our culture.”

—Chimamanda Ngozi Adichie

Gender discrimination, also referred to as “sexual discrimination,” involves the unfavorable treatment of a person based on his or her gender. Gender discrimination has been such an accepted part of our culture that weeding out the vast dead zones of discrimination that still remain sometimes seems an impossible project.  An aspect of gender discrimination that is particularly malevolent is making persons of a particular gender feel that they DESERVE certain conduct or conditions, or to not even think to question or even see the inequalities culturally imposed by gender.  Plus, who wants to be the employee who is considered “shrill,” or a “bitch,” or other gendered offensive labels that work extremely well to make people quiet.  A boss, supervisor, manager, human resources representative, or coworker can commit a wrong based on gender, and still be someone you don’t want to make trouble for or argue with.  However, when those wrongs have impacted on you, those same people still need to answer for the damage they have caused.

So what is gender discrimination?  Here are some examples of discrimination by employers that we have seen with our clients or that have been reported in court cases:

• Employers stating or suggesting preferred candidates in a job advertisement
• Excluding potential employees during recruitment
• Denying certain employees compensation or benefits
• Paying equally-qualified employees in the same position different wages
• Discriminating when assigning leave or retirement options
• Denying the use of company facilities
• Discriminating when issuing promotions or lay-offs
• Allowing or creating a hostile work environment based on gender, making the workplace a difficult or offensive environment that interferes with an employee’s ability to work
• Terminating or demoting based on gender, which particularly happens when new management or supervisors are brought in
• Issuing unfair discipline based on gender, faultfinding, nitpicking
• Treating employees of one gender differently and unequally
• Providing insufficient training to employees based on gender
• Holding employees of a particular gender to a higher standard
• Giving an impossible work load or goals to employees of a particular gender
• Giving less desirable assignments to employees of a particular gender
• Giving less hours on the schedule to members of a particular gender
• Slurs, offensive jokes and comments
• Displaying offensive imagery, websites, songs, items
• Bullying behavior, or the office freezing you out of meetings and assignments, refusing to provide normal assistance or interaction

This is of course not a comprehensive list of the ways in which discrimination rears its ugly head at work, but it is a list that you may be more familiar with than you would like.  If you are experiencing any, or many, of the above discriminatory actions, or some other form of mistreatment, please understand that it is in the vested interests of the wrongdoers to make you feel guilty for or hesitate to pursue potential legal claims.  Contact an employment attorney to discuss what’s been happening to you, we’ve heard it all, we know how this works, and we want to help.

“Everyone has been made for some particular work, and the desire for that work has been put in every heart.”

—Rumi

A wrongful termination claim in Kentucky is a very specific way for a former employee to bring a lawsuit against an employer for being fired.  It is sometimes called a wrongful discharge in violation of public policy claim, if you want to be wordy.  Below you will find a basic outline that may help you understand whether you have experienced illegal wrongful discharge (for which you can sue and have some likelihood of success), or wrongful discharge that is just wrong (but for which you would have a really hard time making out a successful legal claim).

So, what is a general overview of illegal reasons to fire an employee that are NOT a legal wrongful discharge claim?

• Many people know that Kentucky is an employment-at-will state, meaning that your employer can fire you for any reason, no reason, a bad reason, even a morally indefensible reason SO LONG AS that reason does not violate the law. (If your boss wants to fire you because you wear red shirts, and his office is coated in Big Blue paraphernalia, that is unfortunately legal.  It’s not nice, might not even be ethical, but it’s legal.)  There are a lot of reasons an employer can terminate you that don’t violate the law.
• It is illegal for an employer to fire you for discriminatory reasons, i.e., race, gender, age, disability, pregnancy, religion, etc., for which you can bring a lawsuit. This would be an employment discrimination civil rights claim.  The discrimination civil rights statutes provide their own laws that allow people to sue for being discriminated against.
• It is illegal for an employer to terminate you for having reported or complained about discrimination, or for having participated in an investigation of someone else’s discrimination complaint (such as giving an eyewitness account of discriminatory conduct). This would be an employment retaliation civil rights claim. The retaliation civil rights statutes provide their own laws that allow people to sue for being retaliated against.
• It is illegal for an employer to fire you when doing so violates an employment contract that you have with your employer. This would be a breach of contract claim.
• It is illegal for an employer to retaliate against an employee for asserting their rights under certain statutes, such as under the Family Medical Leave Act and the Kentucky Workers’ Compensation Act. These and other statutes that protect employees provide their own laws that allow people to sue for those laws being broken.

So what IS a legal wrongful discharge in violation of public policy claim?

• Here is the definition of the claim in legalspeak:

“The limitations to the wrongful discharge exception to the terminable-at-will doctrine are carefully set out in Firestone. We state: ‘employers as a group have a legitimate interest to protect’ which requires that ‘the cause of action for wrongful discharge [be] clearly defined and suitably controlled.’ Id.  We embraced Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983), to establish the limitations on ‘any judicial exceptions to the employment-at-will doctrine.’ 335 S.W.2d at 835. They are:  1) The discharge must be contrary to a fundamental and well-defined public policy as evidenced by existing law.  2) That policy must be evidenced by a constitutional or statutory provision.  3) The decision of whether the public policy asserted meets these criteria is a question of law for the court to decide, not a question of fact.”

• Here is the same definition in regularspeak:

Employees can sue when their employers fire them for a reason that the state of Kentucky has shown it feels strongly about by putting it clearly in a law, and the court gets to decide if that reason qualifies.

So what are some examples of an employer illegally wrongfully firing an employee?

• An employee cannot be legally fired for refusing to violate the Kentucky constitution or Kentucky laws. One example of this would be an employer firing an employee because that employee refused to falsify business records, as falsifying business records is a crime in Kentucky.  Kentucky has shown that it holds truth in business records to be very important (an important public policy), so it made the falsification of those records a crime.
• An employer cannot legally fire an employee because the employee refuses to commit perjury, which is a crime in Kentucky.
• An employer can’t legally terminate an employee for refusal to condone irregular medical billing.
• Employees in the healthcare industry cannot be legally fired for registering complaints about patient care and safety problems, because the Kentucky Patient Safety Act is a law that shows Kentucky has a strong public policy regarding the safety of patients in healthcare settings.

Keep in mind that an employee faced with TRULY intolerable conditions of employment (and it would have to be truly intolerable to ANY reasonable person in their position), who is therefore compelled to quit because of those conditions, is “constructively” discharged.  So if an employer imposes truly intolerable working conditions on you and causes you to quit, you would still have a wrongful discharge claim IF the employer imposed those conditions for reasons that would otherwise fit into a wrongful discharge claim, like your refusal to violate a law.

If your employer is getting up to something illegal and wants to make you part of it, you have the right to refuse.  If your employer fired you because you refused to violate the law, it may be time to contact an employment law attorney.

“Vengeance would have us assault an enemy’s pride to beat him down. But vengeance hides a dangerous truth, for a humbled foe gains patience, courage, strength, and greater determination.”

― Richelle E. Goodrich

At some point in your life, you probably had an experience that made you believe it was not safe to speak up at work.  You learned to be a good girl/boy—to behave, be nice and do things by the book. But being nice, and quiet, stopped serving you when you realized that you, or someone you work with, has been judged and treated badly.  It became crystal clear that you were being treated like a lesser person, because of the shade of your skin, because you’re a woman, because you have a disability, or because of any other category protected under our civil rights statutes, and it no longer deserved your tolerance.  And you spoke up.  

• You spoke to a manager about your line leader’s racial comments
• You went to human resources when the supervisor assumed you couldn’t do a job because of your disability
• You sent an email to the personnel office about all the substantially younger workers who you have trained being promoted above you
• You registered a complaint with the company of harassment by a coworker who cornered you for the 10th time with unwelcome and offensive sexual comments
• You commented on your unduly negative performance evaluation that your boss has made it clear he really does not care for the religion you practice
• You made a charge of discrimination with the EEOC when a new manager decided you, the only woman in the department, need to be demoted to a less challenging position, despite your history of good results

You spoke up with strength and integrity, despite being scared of the consequences, which is only human.  You ACTED.

Your employer REACTED.

• Suddenly, it’s like you can’t do anything right.   
• Your workload increases more than others
• You got demoted out of your department
• You are placed on a performance improvement plan or written up
• You are getting less hours on the schedule
• You get unfairly negative evaluations
• You are held to a higher standard than other coworkers in the same position
• The promotion that was in the bag is suddenly yanked out from under you
• You are suddenly given impossible work goals
• Your employer ignores your complaint of discrimination or harassment, failing to investigate, or at least failing to even talk to the witnesses whose names you have provided
• Management tells you that the supervisor who patted you on the behind is just being “silly,” or that’s “just who he is, it doesn’t mean anything,” and “you really need to let this go if you want to be successful in this job”
• Human resources suddenly starts investigating YOU for anything they can find to use against you
• The supervisor who you complained about has made it clear that he WILL find a way to get you fired
• You quickly become the target for bullying behavior, or the office is freezing you out of meetings and assignments, refusing to provide normal assistance or interaction
• You are unexpectedly terminated within weeks, or even days, of making your complaint

You acted, speaking out against discrimination or harassment, because you could no longer tolerate being silent. Your employer reacted, treating you badly in a measurable and significant way simply because you spoke up. This reaction from your employer has impacted on you like a bomb, causing you definite damage in your workplace, your money, the respect of your coworkers, your self respect, your blood pressure, your career path, your emotions, your sleep, your anxiety about your future, your medication, your emotions, your ability to get another similar job, your resume, your tears, your EVERYTHING.  That is in all likelihood ILLEGAL under our civil rights statutes. If you’ve spoken up, and in response your employer has slapped you down, you strongly need to consider contacting an employment law attorney.  You have already ACTED before, making your complaint, showing that you have the courage to speak up. Don’t let fear stop you from ACTING AGAIN to make your employer responsible for their reactions against your bravery.