Lexington Approves Local Minimum Wage Ordinance

Lexington2Per the Bluegrass Hospitality Association:

“As you have probably already heard, the local minimum wage ordinance was approved by Council (9 to 6) at last night’s meeting.

The ordinance will increase minimum wage in Fayette County to the following on the below dates:

July 1, 2016                  $8.20

July 1, 2017                  $9.15

July 1, 2018                  $10.10

There was over two hours of public comment prior to the almost 9:00 PM vote.  As expected, there were passionate pleas and points both in support and against.

Several Council Members spoke prior to the vote.  The consensus is that raising the minimum wage does not ultimately solve the underlying issues long-term.  As such, Council will continue to work on programs to address long-term solutions to better wages like education, housing, transportation, childcare, etc.”

For more information on the vote itself:


For more information on how this vote will affect your business, contact the attorneys at McBrayer.

New FMLA Forms Address GINA Safe Harbor

The Department of Labor (“DOL”) recently revised and updated the template forms that the agency issues for use in Family and Medical Leave Act (“FMLA”) notice and certification. Some of these new forms have received substantial revision, and all have been approved through the end of May 2018. The most notable change, however, may be that certain new forms related to medical certification (WH-380-E, WH-380-F, WH-385 and Wh-385-V) address Genetic Information Nondiscrimination Act (“GINA”) “safe harbor” language.

Medical claim form and patient medical history questionnaireGINA is an antidiscrimination law designed to prevent individuals from facing discrimination due to the release of genetic information. It prohibits employers from using genetic information in making employment decisions, and it prevents certain disclosures and requests on the part of employers and other organizations where genetic information is concerned. The law does provide a safe harbor, however. Employers are prohibited from requesting genetic information, but it is possible that they may receive it anyway in response to requests for medical information. Employers can keep from running afoul of GINA, however, by warning the employee and healthcare providers giving care to employees not to provide any genetic information to the employer as a result of an employer’s information request. If this warning is given, any genetic information obtained is deemed inadvertent and not a GINA violation.

The intersection of FMLA and GINA is particularly troublesome for employers, as the FMLA allows employers to require documentation from employees requesting FMLA leave. This documentation can inadvertently provide problematic genetic information to employers. The new FMLA forms include language that briefly warn employees and healthcare entities not to provide information about genetic tests, genetic services and in some cases, manifestation of disease or disorder in the family members of the employee.[1] The language is limited to one sentence, falling far shorter than the meaty paragraph of sample language that accompanies the safe harbor in the actual GINA regulations.[2] This reduction in verbiage is likely to provide employers more of a respite where FMLA forms are concerned, avoiding the extensive language in the regulation. For more information on GINA’s safe harbor for employers and how employers can avoid GINA violations, contact the attorneys at McBrayer.

Luke WingfieldLuke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

[1] See 29 C.F.R. §1635.3(b),(e) and (f)

[2] 29 C.F.R. §1635.3(b)(1)(i)(B)

NLRB: A Sole Employee Filing a Class Action Lawsuit is Protected Concerted Activity

The National Labor Relations Board’s (“NLRB”) definition of the word “concerted” is beginning to extend past its common sense meaning. The NLRB has been expanding what counts as “concerted” activity under Section 7 of the National Labor Relations Act (“Section 7”) to cover a multitude of activities lately, and in 200 E. 81st Restaurant Corp., it stretches the definition just a bit farther.

Gavel on court deskIn 200 E. 81st Restaurant Corp, the plaintiff believed that the restaurant he worked for violated provisions of the Fair Labor Standards Act (“FLSA”) with respect to tipped employees. He filed a class-action lawsuit on behalf of himself and others similarly-situated. Upon notification of the suit, plaintiff’s employer fired him. Instead of filing a FLSA retaliation claim, plaintiff alleged a violation of Section 7 of the NLRA which prohibits employers from interfering with concerted employee activity. Despite the fact that plaintiff filed the class action suit without the support or consent of any of the other employees, the NLRB determined that plaintiff’s actions constituted “concerted” activity. The NLRB based its decision upon language from a prior holding in D.R. Horton[1] that stated,“[c]learly, an individual who files a class or collective action regarding wages, hours or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7.”

For the time being Section 7 clearly protects employees who file class actions over employment conditions. The NLRB continues to find new and interesting ways to apply Section 7 to non-union activity, and the 200 E. 81st Restaurant Corp. decision is yet another expansion of the boundaries of the National Labor Relations Act. For more information on Section 7 and the ways the NLRB is interpreting the NLRA, contact the attorneys at McBrayer today.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of federal or state law or regulation and does not constitute legal advice.

[1] D. R.Horton, 357 NLRB No. 184,737 F.3d 344 (5th Cir.2013).

Employers, Don’t Sleep on Your Rights

There are ways of gaining a tactical advantage in Fair Labor Standards Act (“FLSA”) litigation, but sleeping on one’s rights in such a circumstance is not one of them. NPC International, Inc., a Pizza Hut franchisee, learned this the hard way in the Sixth Circuit in August. If the case of Skylar Gunn v. NPC International proves anything, it proves that courts will frown upon employers gaming the legal system to the detriment of employees bringing claims.

Serious judge about to bang gavel on sounding block in the courtThe plaintiffs in the case filed suit in January of 2013 alleging that NPC denied them lawful wages through certain policies. After fifteen months of litigating the claims directly, when more than 200 current and former employees joined the action and NPC received unfavorable rulings on its initial dispositive motions, NPC invoked a mandatory arbitration provision and moved the court to compel arbitration. According to the Sixth Circuit, this was an attempt on the part of NPC to game the system to its advantage when the litigation began to go against its favor. To skewer a familiar phrase, NPC wanted to have its pizza and eat it, too. NPC’s invocation of the arbitration provision at such a late date suggested that NPC’s actions were to gain a tactical advantage, and arbitration was a fallback in the event litigation proved to be the more costly option.

This sort of intentional gambit to cause delay or expense to the opposing party is the culmination of several cases in the Sixth Circuit that discuss delayed attempts to invoke mandatory arbitration provisions. The court in Gunn looks at these invocations in a vein similar to the equitable defense of laches, which suggests that an unreasonable delay in pursuing a right or claim in a way that would prejudice the opposing party renders such a claim void. NPC slept on its right to arbitration as a tactical maneuver, and therefore lost it.

Employers facing litigation should review employment contracts and policies for mandatory arbitration provisions and enter arbitration in a timely fashion. While the court may not require an employer to deliver a motion to compel arbitration in thirty minutes or less, an unreasonable delay in invoking such a provision can lead to a waiver of that right. The attorneys at McBrayer can help employers review employment contracts and arbitration provisions as well as represent employers in litigation, working to preserve all rights and claims to which an employer is entitled.

C. EffingerCynthia L. Effinger, attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mmlk.com or (502) 327-5400.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

Parent Companies Ready for Labor Pains? NLRB Adopts New Joint Employer Standard

The end of August saw the National Labor Relations Board (“NLRB”) issue a highly-anticipated opinion in Browning-Ferris Industries of California, Inc.[1] In that opinion, the NLRB broadened the standard for what it considers a “joint employer,” a definition that had remained unchanged since Reagan-era appointees adopted a stricter standard in the 1980s (coincidentally, the earlier standard, endorsed by the Third Circuit in 1982, came in an earlier case against Browning-Ferris Industries of Pennsylvania, Inc. It is entirely possible that Browning-Ferris Industries exists as a company entirely to set joint employer standards before the NLRB). The new standard is liable to create headaches for corporations with subcontractors or franchisees, as it has the potential for parent companies to be held liable for labor violations at lower entity levels.

Closeup of Management and Labor handshake in front of building aThe standard rejected by the NLRB centered on whether a business exercised direct control of another business’ employees. In its stead, the NLRB adopted an expansive test, once which creates joint employer liability status when the businesses “share or codetermine those matters governing the essential terms and conditions of employment.” The test begins with an analysis of whether a business has a common-law employment relationship with the employees of the other business. If so, the analysis then shifts to whether the business has a threshold level of control over the essential terms and conditions of employment. This control must be expansive enough to permit meaningful collective bargaining, and the Board noted that businesses found to be joint employers will only be required to bargain with respect to those specific terms and conditions that it does possess control over.

In rejecting the old standard, the NLRB has expanded the reach of liability for labor violations. This is significant because the NLRB has been expanding its interpretation of the National Labor Relations Act to cover more and more activities by employees in non-union businesses, so not only is the pool of potential violations greater, the quantity of employers that may come under fire for such violations will now increase as well. This new standard may have the effect of spurring union activity in businesses traditionally run by independent franchises, and employers and businesses with subcontractors or franchisees should evaluate the relationships with those lower-level businesses for labor liability under the new standard. The attorneys of McBrayer can assist businesses with determining joint employer liability under the new NLRB standards, giving those businesses much needed warning on potential trouble.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

[1] BFI Newby Island Recyclery, 362 NLRB No. 186 (2015)

Rethinking the 24/7 Response

Always connected. Always available. Always responsive. In an era where personal electronic devices have become more of a technological appendage than merely a handy gadget, a growing number of employers are grappling with the question of how well-connected their employees should be. Employers certainly benefit from the ability of employees to be available at all times and through instantaneous connection. The instant problem is the way in which this constant connectivity begins to warp the work-life balance. Should employees respond to employment-related emails after hours? Should they text back to the boss in the evenings to respond to work inquiries? Should employers expect employees to be responsive around the clock? Some employers are beginning to change their expectations for employee responsiveness after hours, and possibly just in time to stave off impending wage and hour law implications.

Mobile devices, wireless communication technology and internet web concept: business laptop or office notebook, tablet computer PC and modern black glossy touchscreen smartphones with colorful application interfaces isolated on white background

Vynamic, a health care consulting firm in Philadelphia, has been in the spotlight lately for a practice it refers to as “zmail.” The company bans the sending and receiving of email from 10 p.m. to 6 a.m. on weekdays and all weekend. It does this, it says, to reduce employee stress by providing a safe harbor for employees to rest and not contemplate workplace communications. The company reports less than 10% attrition in the last few years, so maybe this type of policy is working. Employees are not just given time in the evenings and weekends to relax, they are actually banned from communicating on work-related matters. This is not a ban on doing actual work for the company if the employee so desires, but it is a way to ensure that employees are receiving a legitimate break from the office.

Such measures will become increasingly important when the Department of Labor issues its final rule on the revised overtime exemption sometime in 2016. Under the new regulations, the minimum salary level for the “white collar” overtime exemption to take effect will more than double from the current level of $23,660. That means more than an estimated 5 million employees will suddenly require overtime pay for work done after hours. Reading and responding to email and texts and taking work-related calls will become activities that can create liability for employers that don’t adequately compensate non-exempt employees for such tasks once the new regulation takes effect.

Employers should begin to re-evaluate policies concerning after-hours work-related communication of employees, as the new regulations will likely prompt a sea change in how employees are compensated for what may seem like minor actions on behalf of the workplace done after the standard 40-hour workweek has been logged. Policies like “zmail” and even the shuttering of email servers during certain hours will become increasingly ubiquitous when the possibility of overtime liability becomes ever-present. The attorneys of McBrayer can assist employers with evaluating such policies in light of the impending overtime regulations, providing clear advice to reduce overtime liability and ensure regulatory compliance.

Amy CubbageAmy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of state and federal law and does not constitute legal advice.