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Category Archives: Civil Rights

How Do Employers Observe Non-Christian/Non-Government Holidays

By | Civil Rights | No Comments

Christmas, Thanksgiving, Independence Day. Most companies, as well as all banks and government offices observe these holidays by closing down. However, there are other holidays that may be more important to some employees but are not observed: such as Rosh Hashanah, Yom Kippur, or Ramadan.

How can an employee participate in a holiday the company does not officially observe?

Jewish man in prayerThis question falls under the Kentucky Civil Rights Act, which is the same law that protects people in the workplace, such as requiring employers to make accommodations for people with disabilities, and to refrain from discriminatory hiring. This same statute also protects discrimination on the basis of religion. Therefore, an employee’s request to take religious holidays off would follow the same general rules as a disability request.

First, an employee must request religious accommodation. If an employee asks for time off during the day to pray, an employer would have to consider it and make a concession. Other concessions may have to do with appearance. For example, Orthodox Jews maintain long sideburns, called the payot, and long beards, and cannot be required to shave or cut their hair by an employer.

Second, if no official announcement is made about a “non-government holiday” that an employee wishes to celebrate or honor, the employee must make a request and then the employer must make a reasonable accommodation. Religious accommodation requests are similar to disability accommodation requests in that an employer must make a reasonable adjustment, such as allowing the time off, or allowing for breaks for time to pray.

The employer has a couple options as to how they can compensate for the time off. The employee can be required to work on a holiday that he or she does not celebrate. Otherwise, if an employee has accrued paid time off (PTO), the employer can require he or she use that PTO for the holiday. Also, an employer cannot fire or retaliate against an employee for taking that time off.

However, just like the question of disability accommodation, if the religious holidays conflict with why an employer hired a person, the employer does not have to accommodate. An example would be hiring an employee to work only on the weekends, but the employee observes the Jewish sabbath from sundown on Friday to sundown on Saturday. Another example would be hiring an employee during the holiday season to help alleviate workload, but the employee asks for the entirety of Hanukah off.

In those cases, the employer does not have to grant the employee’s request, because accommodating it will mean additional work and cost to the employer, such as hiring another worker to pick up that missed work.

If you have any questions about how you or your employer should accommodate non-government/non-Christian holidays, please contact the Cassis Law Office at (502) 736-8100.

Photo credit: John St. John (Flickr, Creative Commons)

Does an Employee Have to Prove A Disability for an Employer to Accommodate It?

By | Civil Rights, Disability, Employment Law | One Comment

According to the Americans With Disabilities Act (ADA), an employer is supposed to make reasonable accommodations for an employee who asks for them, in order to deal with or work with a disability.

For example, if a person is required to take medication at specific times of the day, the employer must allow that person to take breaks in order to take their medication. If a person needs a wheelchair ramp into the building, the employer is required to build it.

Wheelchair Access SignHowever — and this is very important — the employer does not have to make those accommodations until the employee requests them. Even if the employer knows there is a need, he or she is not required to meet them, until the employee has made an official request.

Once the employee does so, that legally begins the interactive process. The employer is obligated to engage in the interactive process, find out the employee’s condition, determine whether or not it is a disability (based on ADA guidelines), then decide if they have to accommodate the employee.

Of course, if an employer offers to make an accommodation first, it can certainly be accepted. In fact, most places of employment already have certain features in place to accommodate disabilities, such as wheelchair ramps and elevators.

There are two rules when it comes to disability accommodation requests.

1. An employee is not entitled automatically to the accommodation they want.

An employer does not have to grant every single request. There may be times where the request is unreasonable, or goes against the reason the person was hired in the first place.

For example, Bob works first shift in the plant, but has requested to go on second shift, because he needs to go to dialysis in the mornings. However, the reason Bob was hired was because they needed the help with a task that is only done on first shift. Putting Bob on second shift would mean they need to hire another employee just to do Bob’s original job. In this case, they would not need to accommodate Bob’s request.

But, if the company had three shifts, and each shift did the exact same work, it would be possible to move Bob from first to second just by moving a different employee from second to first. That’s a reasonable accommodation in that case, and the employer has to make it.

2 The employer only has to make reasonable accommodation.

Reasonable accommodation is defined as the burden on the employer, the cost to the employer, and any other factor that would be an issue for both parties. So, if an employee with a wheelchair wants a special express elevator built on the outside of the building that only she could use, with a total cost would be $750,000, that’s not a reasonable accommodation because there’s already an elevator in the building. Plus, it’s $750,000.

But if an employee asked for a wheelchair ramp, and one could be built for a few hundred dollars, that’s considered reasonable, and the employer is obligated to do it.

If you have any other questions about reasonable accommodation and the Americans With Disabilities Act, or believe you are not being treated fairly by an employer, please contact the Cassis Law Office at (502) 736-8100.

Photo credit: WELS (Flickr, Creative Commons)

Five MORE Illegal Firings in an Employment At-Will State Like Kentucky

By | Civil Rights, Employment Law | No Comments

Last week, we talked about seven ways it’s illegal to be fired in an at-will employment state like Kentucky. For the most part, you can be fired for any reason the employer feels like. Maybe she doesn’t like your car, or you were falsely accused of stealing and later proved innocent. But you cannot be fired or not hired on the basis of “The Big Seven:” race, age, gender, nation of origin, disability, religion, or pregnancy.

In addition to those seven, there are five other ways it’s illegal to be fired in Kentucky.

1. Retaliation

This is usually a separate legal claim in part of an employment law case. If an employee makes a complaint about discrimination or violation on any of The Big Seven, that complaint gives them legal protection from retaliation. This means if they file a complaint with a government agency like the Equal Employment Opportunity Commission, they have protection from retaliation. If later that company fires the employee in retaliation for making the complaint, that will give them a separate cause of action or a separate legal claim.

I had a case that is now going to the Supreme Court that involved retaliation. My client was a track coach at a university. She went to her HR department and filed a gender discrimination complaint against the athletic department, claiming the department treated male coaches better than female coaches. Three weeks later she was fired. We took the case to a jury with two legal claims:

  1. She was subjected to harassment based on gender, which was a hostile work environment claim.
  2. She was fired in retaliation for making that complaint.

In the end, the first claim was not awarded, but she won the second one because the jury found that she was indeed fired in retaliation for making her complaint.

2. Whistleblower Statute

Whistle blowerThe Kentucky Whistleblower statute, also known as KRS 61, states that it is illegal to fire an employee who makes a complaint to a government agency for wrongdoing or illegal activity. There is a limitation on this statute in that it only applies to government employers, state employers, or employers that receive federal or state government funding. This means contractors to the federal or state government are covered by this statute, but a company that doesn’t do business with the government is exempt.

3. Worker’s Comp Claim

An employer cannot fire an employee because they got hurt on the job and filed a worker’s comp claim. Companies don’t like worker’s comp because it increases their insurance premiums, and some have eliminated an employee to keep those costs down. If an employee files a claim and the company fires them as a result, this is considered retaliation and is, therefore, illegal.

4. Wage and Hour Complaint

It is illegal to fire an employee who makes a claim that they are not getting paid properly. This could be lack of vacation pay, failure to pay bonuses, or improper pay. This would be a retaliatory discharge and also illegal.

5. Failure to Accommodate an Employee’s Disability

A disability is defined as substantially limited in their ability to perform one or more of the major life activities, but otherwise able to do the job. If a person with a disability makes a request for accommodation, the employer has to make a reasonable effort to meet it. This may include modified job duties, a hearing aid, or a wheelchair. If they refuse, that’s considered failure to accommodate. If the employer agrees to the accommodation, but refuses to pay for it, that could also be considered failure to accommodate.

There are several reasons as to why a firing can be illegal in an at-will employment state like Kentucky. They’re not very common, but they do come up many times throughout the state. If you think you’ve been illegally fired from a job, or not hired, because of The Big Seven, or any of these reasons, contact an employment law attorney to see if you have a case.

Photo credit: Leo Reynolds (Flickr, Creative Commons)

Seven Illegal Firings in an Employment At-Will State Like Kentucky

By | Civil Rights, Employment Law | One Comment

At-will employment means that an employee can be hired and fired at will, for almost any reason at all. It means an employer doesn’t have to follow specific rules to terminate you. If they wanted to fire an employee for something small, such as liking a different baseball team, or something more serious, such as making a decision based on false information, they can do it.

Here’s an example:

ABC Electronics believes that Steve stole computers from ABC’s warehouse, and so they fire him. A month later, it’s discovered that Bill actually stole the computers. He admits to it, the police are notified, and Bill is arrested. There’s no doubt that Steve didn’t steal the computers. He then files a lawsuit saying he was fired illegally.

However, the court will say that even though Steve was fired for a reason that was later found to be wrong, he was not fired illegally. That’s the issue with being fired in an at-will employment state like Kentucky. The law says that as long as an employer has a good faith basis to believe their reason for firing, they’re justified for doing it, even if they are ultimately proven wrong.

There are some exceptions though. There are a few reasons under the Kentucky Civil Rights Act that a firing can be illegal.

1. Race

In Kentucky, it’s illegal to fire someone because of their race. The statute only states ‘because of race.’ There is no specification as to what race. Therefore reverse discrimination is also applicable. If an employee is fired because he or she is white, the case is considered a wrongful discharge, just as if the employee were black, Asian, or Hispanic.

2. Age

To file for age discrimination, the employee must be 40 or older. Someone who is 39 would not qualify. There is no discrimination for being “too young.”

3. Gender

An employer cannot fire or refuse to hire an employee because of their gender, but that comes with an exception. In Kentucky, as in most states, it is still legal to fire an employee because they are transgendered. Despite everything being done in employment law, this does not violate the Kentucky Civil Rights Act.

Similarly, it is not illegal to be fired because of sexual orientation. It is possible for someone to be fired or not hired because they are gay. As we progress forward and gay marriage becomes more accepted, I think the law will finally catch up, and sexual orientation will become one of the legally protected categories.

4. Nation of Origin

Just like race, it’s illegal to fire someone because of where they are from. You can’t be fired just because you’re from another part of the world. It’s also an important category to separate from race, because an employer could try to fire someone of the same race, but do it because they’re from a different country (for example, a white business owner who fires another white employee because they’re from Ireland).

5. Disability

disability_iconThe Americans with Disabilities Act of 1990 also protects employees with disabilities, as well as this statute. An employer cannot refuse to hire someone because of their disability status, assuming that disability doesn’t prevent them from doing the job at all.

6. Religion

This not only protects people from different religions around the world — Muslims, Jews, Buddhists, Sikhs, and so on — it even protects people within Christian denominations. For example, f your religious practices don’t allow you to work on certain days, you cannot be made to work on those days, and you cannot be fired because of it.

7. Pregnancy

This statute protects any woman who is pregnant and keeps her from losing her job while she is on maternity leave. It also means that a company cannot refuse to hire a woman because she’s pregnant. However, the Kentucky Civil Rights Act does not protect men who leave work when their wife has a baby. They are protected under the Family and Medical Leave Act (FMLA), but that would be a more difficult case to win, if the situation ever came up.

Those are the seven basic exceptions to the at-will employment rules for the state of Kentucky. If you have ever been told, especially if it’s been put in writing, that you’re being fired or not hired for any of these reasons, you may have a discrimination case. If you’re not sure, speak to an employment law attorney to see if you have a valid claim against your employer.

Can I Get Punitive Damages in a Kentucky Employment Lawsuit?

By | Civil Rights, Employment Law | No Comments

In an employment lawsuit filed in Kentucky, a person generally cannot get punitive damages, according to the Kentucky Civil Rights Act (also called KRS 344). The case McCullough v State Department of Corrections stated that a person cannot receive punitive damages under the Kentucky state statute even if the case is won.

Jefferson County Courthouse (Louisville)Under the Federal Civil Rights Act, a person is able to get punitive damages in a case filed here in the state. This is the main difference between the Federal Civil Rights Act and the Kentucky Civil Rights Act. (However, Kentucky requires the losing side pays the attorneys fee for the winning side. This is somewhat of a tradeoff for this key difference.

However, there is an exception. A person can get punitive damages if the lawsuit is brought under a public policy wrongful discharge instead of under KRS 344. A public policy wrongful discharge covers situations where a case does not fit under typical cases of discrimination such as age, race, disability, religion and pregnancy.

A person can file a public policy wrongful discharge if a company fires an employee because the employee refused to engage in illegal activity. Another example is if a company fires an employee because they were exercising their legal rights such as joining a union.

In situations like that, a person can get punitive damages if they win, but only if the lawsuit is filed as a public policy wrongful discharge. This is more of a collateral, secondary claim. In addition, the claim can only proceed if there is not also a KRS 344 claim that covers the same lawsuit.

In other words, if your employment lawsuit is filed under KRS 344, you may not also file a public policy wrongful discharge. A person cannot double dip a lawsuit.

 

Photo credit: Jimmy Emerson, DVM (Flickr, Creative Commons)

Three Categories of Damages in Employment Law Cases

By | Civil Rights, Employment Law | No Comments

To understand your rights in an employment law case in Kentucky, you first need to understand the damages that are available. The majority of employment law cases are brought under Kentucky Civil Rights Act, which mirrors the Civil Rights Act of 1974. Our state Act is called KRS (Kentucky Revised Statute) 344, which allows for the recovery of three general categories of damages.

1. Lost Wages

GavelThere are two subcategories under lost wages. The first is back pay. Back pay is the lost wages from the date the plaintiff was fired to the trial date. The second type of lost wages is front pay. Front pay is the amount from the trial date going forward to a designated amount of time. This time period could be one, two, or even five years, which is at the discretion of the trial judge to award. This amount is calculated by hourly rate plus benefits multiplied by the time period specified.

2. Emotional Distress

Emotional distress is defined as pain and suffering, humiliation or embarrassment. Oftentimes, emotional distress is the result of a wrongful discharge. The plaintiff may suffer from a loss of sleep, anxiety attacks, or weight loss/gain. Sometimes, the plaintiff will have medical evidence such as prescriptions or counseling. The law does not require medical evidence of their emotional distress to recover their lost wages.

3. Attorney Fees

The final category of damages is prevailing party attorney fees. When a plaintiff sues his or her employer under the statute, goes to trial, and wins, the company not only has to pay the damages the jury awards to the plaintiff, but also the plaintiff’s attorney fees. The attorney fee is mandatory but the amount is discretionary. Essentially a plaintiff could be awarded only one dollar but rack up $150 thousand in attorney fees. The defendant would be required to pay that amount, although the court could make a downward adjustment due to the little amount the attorney gained for their client. If you would like more information on damages for employment law cases, or you have questions about wrongful termination or sexual harassment, you can contact the Cassis Law Office at (502) 736-8100.   Photo credit: Bloomsberries (Flickr, Creative Commons)