June 30th Deadlne Approaching

REMINDER: The deadline is approaching for all businesses entities in Kentucky to file their 2013 annual reports with the Kentucky Secretary of State’s office. All for-profit and nonprofit corporations that do business in Kentucky are required to file current reports no later than June 30th of each year. Failure to file the annual report will result in the company being listed in bad standing with the Secretary of State and could lead to administrative dissolution or revocation of authority to transact business in Kentucky.

Filing via the Secretary of State’s web site at http://www.sos.ky.gov/ftselect is the quickest and simplest way to complete the yearly report which is required by state law. The $15 filing fee is payable on line or, if necessary, printed reports can be mailed to the Annual Reports Section, PO Box 1150, Frankfort Ky 40602-1150. Checks for the fee should be made payable to the Kentucky State Treasurer and they must be received by the office by the June deadline.

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Office Parties-Celebrate the Season, Without Getting Sued!

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It’s that time of year!  ‘Tis the season for toasts and traditions, presents and parties, secret Santa’s and sexual harassment, lawyers and lawsuits. . .   Santa is not the only one looking to see who’s been naughty or nice this year.  As much as we all love a good party, they create increased risks of liability for employers.  Common issues involve worker’s compensation claims, sexual harassment complaints, and social host liability.  While employers should take these risks into consideration, don’t cancel the party just yet!  There are some simple ways for employers to minimize their risks.  Without question, planning ahead and limiting alcohol consumption are two key ways to celebrate the season—without getting sued.

As you might expect, the most common liability issues arise from serving alcohol at the office party.  While this is the season to be “merry and bright,” the overuse of alcohol frequently leads to a host of potential legal headaches for the unprepared employer.  According to Tammy Meade Ensslin, an attorney who advises and represents employers on these issues, “alcohol-related issues make up the majority of the claims that I see from holiday parties.  The types of claims generally stem from the misdeeds of intoxicated employees and are pursued under a number of legal avenues such as workers’ compensation laws, sexual harassment laws, premise owner liability, and general negligence.”

Questions for employers to consider include:

1. Can our company be held responsible for automobile accidents caused by intoxicated employees on their way home?

2. Are injuries to intoxicated employees at the holiday party covered under Kentucky’s worker’s compensation laws?

3. Can our company be held liable for inappropriate behavior, including claims of sexual harassment, even when the party is held after work hours?

Unfortunately, the correct answers to these questions depend on a number of factors.   The liability determination is often fact intensive and may differ from situation to situation.  Ms. Ensslin also reports that the laws on these issues vary widely by state.  Therefore, for multi-state employers, they should seek legal advice to learn what laws and ordinances apply to their particular business location.  By way of example, some states impose liability on social hosts for over serving alcohol to guests who then cause injuries to themselves or others while other states impose no liability at all.

Social host liability is based on the concept that, under certain circumstances, a party host serving alcohol should be responsible for the acts of intoxicated guests.  On the bright side, Kentucky is one of 18 states that do not impose social host liability unless alcohol is served or provided to a minor.  And, by Kentucky statute, the General Assembly has tied liability to those who consume, sell or serve alcohol instead of the casual social host.  Thus, unless your company is in the business of selling alcohol, or serves alcohol to a minor, you might be protected from liability at least under a social host theory.  Despite that, Ms. Ensslin is quick to point out that there are other potential theories that could result in liability for the employer so proceed with caution when serving alcohol.

A big area of concern for employers, when alcohol is involved, is the potential liability for injuries to nonemployees.  Ms. Ensslin has seen claims against employers made by third parties injured by the organization’s intoxicated employee on the theory of “respondeat superior.”  Under this legal theory, an employer may be liable for its employee’s actions if they were committed within the course and scope of employment.  Therefore, employers should carefully consider this when deciding where to host the company party, whether attendance is mandatory, whether the party will be held during normal work hours, will company vehicles be used, whether alcohol will be served, and if so, who will be serving the drinks.  Ms. Ensslin states that she typically advises clients to make attendance at holiday parties entirely voluntary, host the parties after work hours, choose a venue that is off the organization’s property, and have trained servers who are not employees of the company.  She also states that “it’s generally a good idea to have a cash bar so that employees are purchasing their own drinks.  If the employer is offering complimentary drinks, then provide a limited number of drink tickets so that alcohol consumption, paid for by the company, is restricted.”

While the “respondeat superior” legal theory deals with liability to third parties, employers should also remember potential claims for injuries to their own employees.  Employee claims are generally covered by both state and federal laws.  There are some defenses to these claims depending on the factual circumstances.  As it relates to intoxicated employees, under Kentucky’s worker’s compensation laws, injuries caused by voluntary intoxication are not compensable under the worker’s compensation statutes.  Accordingly, employers may be able to defend such claims if they can prove that the employee was intoxicated and that was the primary cause of the injury.  However, the burden is on the employer to establish the evidence of intoxication.  Additionally, there is some case law in Kentucky that allows employers to defend worker’s compensation claims for injuries occurring at employer-sponsored recreational events on grounds that they were not work related if the event is purely voluntary and held off campus.

Lastly, no matter how well planned, office parties tend to encourage employees to behave in ways that they normally would not when at work.  In fact, the Seventh Circuit Court of  Appeals, in Place v. Abbott Laboratories, 215 F.3d 803 (7th Cir. 2001), even noted in their opinion that, “office Christmas parties seem to be fertile ground for unwanted sexual overtures that lead to Title VII complaints.”  The court went on to cite approximately 20 cases where employees complained of harassment occurring at employer-sponsored parties.  These cases highlight the potential problems associated with alcohol consumption at employer-sponsored events.  And, this brings me to the issue of the employer’s anti-harassment policies and whether liability can rest with the employer for misdeeds occurring at social events.  Unfortunately, despite an employer’s best efforts to train employees, someone is bound to forget – unless reminded – that the company’s anti-harassment policies generally apply equally to office parties and to non-employees.  Mixing and mingling, with a little too much of one’s favorite holiday “spirit,” often leads to employees crossing the line in the name of “holiday fun.”  Therefore, employers should remind employees of the company’s anti-harassment and reporting policies especially at this time of the year.  Let employees know that the policies apply to company events outside of the office and to social events in the office.  Remind supervisors that conduct at employer sponsored parties can result in claims of sexual harassment against the employer and in some instances, the supervisor.

Importantly, remember that celebrating the season in the workplace doesn’t require certain holiday traditions, particularly those that could contribute to a harassing environment.  For example, hanging mistletoe typically lends itself to someone being “naughty” in the name of holiday cheer.  And, having a supervisor dress up as Santa and inviting employees to sit on his or her lap is never a good idea.  It’s only funny until the summons is served.  A sexual harassment lawsuit is probably not found on any employer’s wish list this year.

So, while there are defenses to some of these claims and regardless of actual liability, employers should remember that they remain a tempting legal target and are considered the “deep pocket” when damages are sought.  Once a lawsuit is filed, the employer will be faced with significant monetary expenses in defending the claims even if they are eventually dismissed for lack of liability.  Therefore, if employers can skip or minimize the alcohol at office parties, then they can greatly reduce their risks of liability.

If alcohol will be served, here are the TOP TEN ways that employers can keep their names off the “naughty list” this year:

1. Make attendance at the company holiday party voluntary.  If formal invitations are provided to employees, note on the invitation that attendance is optional.

2. Schedule the party after normal working hours and avoid discussing business at the party.

3. Hire bartenders and restrict drinks.  If you have an open bar, let only professional bartenders serve (and control) the alcoholic drinks.  Never let an owner or supervisor pour or mix drinks.  If complimentary drinks are provided, consider drink tickets to limit alcohol consumption.  When possible, a cash bar is recommended so that employees are purchasing their own drinks.  Make sure no minors are served.

4. Any employee who is intoxicated should be cut off from further alcohol service and provided with a ride home. Inform employees in advance that they will not be allowed to drive if they appear intoxicated.

5. Host the party off the company premises.  Suggested locations include a restaurant, bar or other venue open to other patrons during the party.  Avoid hosting the party at a private residence.

6. Make alternative transportation available for any employee who needs or wants it.  Consider paying for taxis or a shuttle service.  Make the offer in advance so that employees can plan ahead.  Announce during the party that transportation is available, even for employees who did not make an advance request.

7. Invite employees’ spouses/partners and families as well as clients and business partners to the party.  Their presence will (hopefully) encourage appropriate behavior.

8. Consider implementing a dress code that maintains a professional environment.  There is nothing wrong with a “business casual” holiday party.  Santa hats are optional, but the sequined miniskirt and faux leather pants should stay at home.  Santa suits where employees are asked to sit on supervisors laps are never a good idea.  Avoid mistletoe.

9. Discourage informal “after parties” and alert supervisors to the perils that could result from said parties.

10. Discourage dirty Santa parties or similar gag gift exchanges.  They provide fertile ground for inappropriate gifts and potential claims for harassment.  [See the Kentucky case of Parker v. Pediatric Acute Care, PSC, 2008 WL 746677, that involved a lawsuit filed by an employee who received a gift card, at the annual Christmas party, to an adult store that sold lingerie, adult sex toys, and sexual movies.  In that instance, the Court found that this one-time incident was not so severe and pervasive to amount to a sexually hostile work environment.]

Although there is no way to completely eliminate the risks that come with hosting an office party, implementing some or all the above suggestions should greatly reduce your liability and, more importantly, ensure that you and your employees enjoy a safe and happy party.

For additional information on Employment or Labor Law issues,

please contact TAMMY MEADE ENSSLIN at 859-361-8348.

DISCLAIMER

These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

 

 

FMLA Win for Employers

Employers are regularly faced with the difficult decision to discipline or terminate an employee for poor performance or include an employee in a layoff on the eve of protected leave under FMLA or a sexual harassment complaint for fear of a claim of gender discrimination, interference with FMLA rights, or unlawful retaliation by the employee.  However, there is some good news for employers in our jurisdiction.  Just recently, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of an employer on such claims when the employer was able to demonstrate that other factors led to the employee’s termination.  Mann v. Navicor Group, No. 11-4028, 6th Cir., 2012.  This case is a nice win for employers faced with this difficult decision.

In Mann, the Plaintiff worked for a health care advertising agency as a senior art director.   She was hired in 2006 but as early as January 2007, her employer started documenting performance issues.  She was placed on a performance improvement plan and demoted in February 2007.  In her new position, she worked with a different team and received exceptional evaluations in July 2007.  Thereafter, the Plaintiff’s title and position were restored.  In August 2007, the Plaintiff reported that her supervisor was treating women poorly.  An investigation was completed and it was determined that the supervisor’s conduct was bad but not gender specific.  Her supervisor was reprimanded for his conduct.  The Plaintiff was offered an opportunity to transfer but opted to stay in the same department.  In July 2008, the employer decided to layoff employees due to financial concerns.  The Plaintiff was chosen for layoff by another manager who had been overseeing her department due her history of poor work performance in production.  While she did have some good evaluations, the work that she excelled in was less than 20% of the employer’s business.

In the meantime, the Plaintiff learned that she needed to take FMLA leave to care for her mother and made the request to human resources.  At that point, the decision that Plaintiff would be laid off had already been made.  The Plaintiff’s manager learned of her request for FMLA leave on the same date that he was preparing for her termination.  The employer decided to go forward with the termination but extended her severance pay from 2 weeks to 11 weeks due to her personal circumstances.  Despite that, the Plaintiff sued claiming gender discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, and retaliation and interference with her rights under FMLA.

The Court granted judgment in favor of the employer on all claims and on appeal, the Sixth Circuit upheld the decision.  The Court held that the Plaintiff failed to meet her burden of proof on claims of gender discrimination and harassment.  And, evidence for the employer proved that the decision to terminate was unrelated to her FMLA leave since the decision maker was not aware of her request for leave when the decision to terminate was made.  Accordingly, the Plaintiff’s request for leave did not shield her from the previously made decision to terminate her employment.

In summary, employers should remember that those taking FMLA leave do not have greater protection from layoffs than those who do not take leave.   Nonetheless, these types of decisions are some of the most difficult for employers.  All factors must be weighed to determine whether it is in the best interest of the employer to proceed with termination since litigation might be inevitable.  Under the facts in Mann, the employer had documentation showing that the decision to terminate was made before the request for FMLA was made.  Also, the decision maker was not the target of Plaintiff’s prior complaints regarding gender discrimination or harassment.  While winning on appeal, the employer still had significant costs involved in defending the lawsuit.  Therefore, such decisions must be made carefully and with all factors considered.

For additional information on Employment or Labor Law issues,

please contact TAMMY MEADE ENSSLIN at 859-963-9049.

DISCLAIMER

These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

Kentucky Law requires the following disclaimer:  THIS IS AN ADVERTISEMENT.

Kentucky Law does not certify legal specialties.

EEO-1 Filing Deadline is Approaching

LEGAL ALERT:  Just a reminder to employers that the 2012 EEO-1 Reports are due on September 30th.  The preferred method for completing the EEO-1 reports is the web-based filing system.  Online filing requires you to log into your company’s database with a Login ID and Password. All companies should have received EEO-1 filing materials in mid August 2012.

See:  http://www.eeoc.gov/employers/eeo1survey/index.cfm

 

 

U.S. Supreme Court Upholds Affordable Care Act

The U.S. Supreme Court decided the landmark Patient Protection and Affordable Care Act decision this morning, June 28, 2012.  The decision surprised many scholars and practitioners in that the Court upheld both the individual mandate and Medicaid mandate, while narrowing the scope of the penalty for a state’s non-compliance with the latter.

The individual mandate, upheld by the Court, requires that individuals not covered by health insurance buy coverage or face a “shared responsibility payment.” This mandate was critical to the success of the Act, since the availability of affordable coverage for the millions of uninsured Americans required a large pool of customers. In reviewing the authority of Congress to require this mandate, the Court found that it falls within the taxing power of Article I, Section 8 of the Constitution.  The Court also noted that the individual mandate was not an appropriate exercise of Congressional power under the Commerce Clause or the Necessary and Proper Clause.  Writing for a plurality of justices, Chief Justice Roberts noted that the questions of the soundness of the policy is not an issue for the court to consider, but only to decide whether it is an appropriate exercise of Congressional authority. Ultimately the Court found that the mandate’s imposition of a penalty for failing to purchase insurance was not commerce that could be regulated by Congress, but would fall within its taxing power.  In finding that the mandate was a tax, the Court adopted the position of the Solicitor General, and guaranteed that the issue will continue to resonate in political debates through the November election.

A  separate part of the decision considered the constitutionality of a provision of the Act that expanded Medicaid coverage to millions of new individuals. As a result, states were required to adopt new eligibility requirements or risk losing all of their Medicaid funding. The coercive nature of this requirement was the critical feature of the review of this portion of the Act. A complicated plurality of justices held that the expansion was unconstitutionally coercive, but that the remedy for this violation is to strike down the provision allowing the federal government to withhold all Medicaid funds unless a state agrees to the expansion. Accordingly, states that do not agree to the expansion will only lose new Medicaid funding.

In other parts of the ruling, the Act’s provision that requires insurance companies to cover pre-existing conditions stands, as does an end of lifetime limits on coverage and a provision that allows children to stay on their parents’ insurance until they are 26 years old. The latter part of the law is already in effect, and a recent study found 6.6 million young adults between ages 19 and 25 stayed on or joined their parents’ health plans because of the law.

Sample Social Media Policy from NLRB General Counsel

With the NLRB’s recent decisions this year on Social Media policies and whether they violate the National Labor Relations Act, a lot of employers are questioning whether their policies are compliant.  On May 30, 2012, the General Counsel for the NLRB issued a third memorandum providing additional guidance on Social Media policies and outlining the recent decisions of the NLRB.  In fact, General Counsel attached a sample Social Media policy that meets the current NLRB findings.  The memorandum and sample policy can be found at:

https://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies

As is a good practice when issuing any company wide policy, please remember to have them reviewed by legal counsel to ensure compliance with not only federal law but also state and local laws.

NLRB Poster Rule Postponed-Will NOT Take Effect on April 30, 2012

Legal Alert:  The NLRB’s “Notification of Employee Rights” poster rule, scheduled to take effect on April 30, 2012, has been postponed due to an injunction ordered today by the U.S. Court of Appeals for the D.C. Circuit.  In addition, on Friday, a federal District Court judge in South Carolina (5th Circuit) ruled that the NLRB notice posting requirement was unlawful, citing the Board’s lack of statutory authority.  The injunction places the rule on hold indefinitely while the appeals court considers the appeal.  Thus, the rule’s previous compliance date of April 30th is no longer in effect.

NLRB Poster Requirement Takes Effect April 30, 2012

Legal Alert:  As of April 30, 2012, most private sector employers will be required to post a notice advising employees of their rights under the National Labor Relations Act. (The original effective date was postponed.)  The notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there.

A federal judge recently ruled that implementation of this rule will not be stayed pending an appeal of the court ruling allowing it to proceed.  The recent Court ruling was not a total loss for employers.  While allowing the posting requirement, the Court held that the NLRB did exceed its authority by including a provision in its rule that an employer’s failure to post would automatically be considered an actionable unfair labor practice.  Barring any intervening action by the Court, employers will be required to post the 11-by-17-inch notice on April 30, 2012. The notice is available from the NLRB through its website, http://www.nlrb.gov, and available from commercial providers.

For additional information on Employment or Labor Law issues,

please contact TAMMY MEADE ENSSLIN at 859-963-9049.

DISCLAIMER

These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

Kentucky Law requires the following disclaimer:  THIS IS AN ADVERTISEMENT.

Kentucky Law does not certify legal specialties.

 

 

NLRB Poster Requirement Still in Effect for April 30, 2012

A federal judge has ruled that implementation of a rule, requiring most private sector employers to post notice of employee union rights, will not be stayed pending an appeal of the court ruling allowing it to proceed.

On Friday, March 2, 2012, the U.S. District Court for the District of Columbia upheld the authority of the National Labor Relations Board (“NLRB”) to require employers to display posters, informing employees of their right to join unions and engage in other activities under the National Labor Relations Act.  On Monday, March 5, 2012, litigants opposing the posting requirement asked the Judge to stay implementation of the rule while their appeal of her decision is pending before the United States Court of Appeals for the DC Circuit. On Wednesday, March 7, 2012, the Judge rejected the request, requiring employers to comply with the posting requirement as of April 30, 2012.

The March 2, 2012 ruling was not a total loss for employers.  While allowing the poster requirement, the Court held that the NLRB did exceed its authority by including a provision in its rule that an employer’s failure to post would automatically be considered an actionable unfair labor practice.  Hence, some good news for employers.

Barring any intervening action by the DC Circuit, employers will be required to post the 11-by-17-inch notice on April 30, 2012. The notice is available from the NLRB through its website, www.nlrb.gov and available from commercial providers.  Should you have any questions concerning the notice requirement, please contact Tammy Meade Ensslin.

Final Rule: Temporary Non-Agricultural Employment of H-2B Aliens in the U.S.

On February 21, 2012 the Department of Labor’s Employment and Training Administration and Wage and Hour Division issued a Final Rule on the H-2B program that amends its regulations governing the certification of the employment of nonimmigrant workers performing temporary or seasonal non-agricultural labor or services and the enforcement of the obligations applicable to employers under the H-2B program. This Final Rule revises the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status. The final rule also introduces new regulations that provide increased worker protections for both U.S. and foreign workers.

Major features of the final rule include the creation a national electronic job registry for all H-2B job orders to improve U.S. worker access to these temporary jobs. The final rule also enhances recruitment of U.S. workers from across the country, increases the amount of time for which U.S. workers must be recruited and hired, and requires the rehiring of former employees when available.

The Final Rule is effective April 23, 2012.

For a side-by-side comparison of the 2009 and 2012 regulations, please visit:

http://www.dol.gov/whd/immigration/H2BFinalRule/H2BSideBySide.htm

For additional information on Employment or Labor Law issues,

please contact TAMMY MEADE ENSSLIN at 859-963-9049.

DISCLAIMER

These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

Kentucky Law requires the following disclaimer:  THIS IS AN ADVERTISEMENT.

Kentucky Law does not certify legal specialties.