OSHA’s New Reporting Requirements Will Not Apply In Kentucky

In September, we told you that the U.S. Department of Labor had published its final rule amending the federal Occupational Safety and Health Administration’s (OSHA) reporting and recordkeeping regulations.  The new rule revises the reporting requirements regarding severe injuries and updates the list of industries partially exempt from recordkeeping requirements established in 29 CFR 1904.   As we explained, the new requirements go into effect in federal jurisdictions on January 1, 2015. However, since Kentucky operates an approved state plan, the new reporting requirements do not apply to employers in the Commonwealth.


Safety Inspector ChecklistIn 2006, Kentucky completely revamped its reporting regulation, 803 KAR 2:180. The state requirements differ from those in the current federal regulation, but are similar to the ones in the new rule. In order to maintain its state plan approval, Kentucky’s occupational safety and health program, KOSH, must remain at least as effective as the federal. Accordingly, Kentucky’s Occupational Safety and Health Standards Board will have to compare the state’s current reporting regulation with the new federal one to determine if any changes need to be made. Federal OSHA requires state plans to act on new federal standards within six months, so any changes will have to be made at the Board’s May 2015 meeting.



Here is a reminder about what Kentucky employers must do to report fatalities and injuries:

  • Report the death of any employee or the hospitalization of three or more employees by calling the Kentucky Labor Cabinet at 502-564-3070 within eight hours. If no one is available to speak with in Frankfort, call 1-800-OSHA (1-800-321-6742).
  • Report an amputation or hospitalization of fewer than three employees by calling the Labor Cabinet within 72 hours of the incident. An amputation means an injury in which a portion of the body including bone tissue is removed.
  • The clock starts for reporting from the time the incident is reported to the employer, the employer’s agent, or another employee.

Watch this space for information about whether Kentucky decides to change its reporting regulation. If you have questions about any OSHA recordkeeping or reporting requirement, contact counsel for advice.

Kembra Sexton Taylor





Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

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


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U.S. Supreme Court Decision in Amazon Worker Security Screening Case is Clear Victory for Employers

Gavel on court desk




Last week, the U.S. Supreme Court ruled unanimously against workers who had sued the agency that provided temporary staffing for Amazon warehouses in Nevada seeking compensation for time spent waiting to go through security screening at the end of the workday. The workers alleged that such screenings could take up to 30 minutes. Amazon disagreed, contending that “employees typically walk through security with little or no wait, and Amazon has a global process that ensures the time employees spend waiting in security is less than 90 seconds.”

Writing for the Court, Justice Clarence Thomas said that the screenings were not “integral and indispensable” to the workers’ jobs, which involved retrieving products from warehouse shelves and packaging them for delivery to Amazon’s customers. Therefore, Integrity Staffing Solutions was not required to pay for the screenings. The Supreme Court overruled the 9th Circuit Court of Appeals, which held that the screenings were for the company’s benefit and a necessary part of the workers’ jobs.

The decision centered on an interpretation of the Portal-to-Portal Act of 1947, the law that amended the Fair Labor Standards Act to define the beginning and end of the workday. Congress passed the Act in response to a flood of litigation requiring pay for a wide range of work-related activities. In 1956, the Supreme Court held in Steiner v. Mitchell that employers were required to pay only for tasks that were an “integral and indispensable part of the principal activities for which covered workmen are employed.”

Justice Thomas declared that the Court of Appeals had “erred by focusing on whether an employer required a particular activity.” Instead, the inquiry should be whether the activity “is tied to the productive work that the employee is employed to perform.” Justice Thomas went on to identify instances in which other activities some employees engage in, such as preparing tools or donning and doffing safety equipment, would qualify for payment.

Remarkably, all the members of the Court agreed with the result, although Justice Sotomayor, joined by Justice Kagan, issued a brief concurrence reaffirming the narrow basis for the ruling and emphasizing that “preliminary or postliminary” activities were not compensable under the Portal-to-Portal Act.

The Amazon decision will have far-reaching impact on other litigation. Approximately 13 class action lawsuits have been filed against Amazon and other companies involving more than 400,000 plaintiffs with hundreds of millions of dollars at stake. If you have any questions about whether certain work-related activities are compensable in light of this ruling, contact your McBrayer employment law attorney.

Kembra Sexton Taylor





Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

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

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Telecommuting Employees and Unauthorized Overtime – Must the Employer Pay?

Word Cloud Telecommuting




In today’s ever-increasing digital world, more employers than ever are turning to telecommuting to help reduce overheard and increase morale of employees. Importantly, however, state and federal laws apply equally to employers and employees, regardless of whether they work on-site or remotely. Among the most common issues and missteps which affect employers with telecommuting employees are wage and hour laws and, more specifically, overtime laws.

All non-exempt employees must be paid for all time worked, regardless of whether the work was performed on-site or remotely. Importantly, this rule typically applies regardless of whether the employer authorized the performance of the work or not. If, for instance, an employee works more than 40 hours per week at home, the employer must pay the employee overtime wages for all time worked – even if the employer did not authorize the employee to work overtime.

As a result, it is imperative that the employer have a lawful and enforceable policy with respect to overtime, particularly suitable for employees who work remotely. Such a policy should be clear that any overtime must be authorized in writing, and that any overtime worked without authorization will subject the employee to disciplinary action. Note, however, that if an employee violates this policy by working overtime, that employee remains entitled to receive overtime wages, but an employer should determine whether to retain an employee who consistently violates company policy.

Businessman working on a laptop.





Before approving any telecommuting policy, an employer should take care to ensure that its policy is not only lawful, but also enforceable. While telecommuting may be the solution to many employment-related issues, it is only as effective as the policies which govern telecommuting employees. Our employment attorneys at McBrayer can help ensure that our clients’ needs are met through appropriate telecommuting policies.

B. Koch





Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

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

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HIPAA Considerations In The Event Of Employee Death or Incapacitation

The Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA, acts in part to provide federal protection for identifiable health information retained by covered entities, which includes most businesses that offer company health plans. While many employers have policies and procedures in place to ensure HIPAA compliance in routine, every day matters relating to the management of employee health data, few employers have developed policies or even considered how to manage protected health information in the unfortunate event of employee death or incapacitation.

Benefits Folders




Importantly, HIPAA’s protection of identifiable health information does not expire in the event of incapacitation or even the death of an employee. In fact, HIPAA continues to protect identifiable health information for 50 years after death. Consequently, it is important for employers to know to whom protected health information may be disseminated during this time period in order to continue to ensure compliance and avoid the assessment of steep penalties and fines.

Covered health information for the deceased or incapacitated employee during this time may be released to their legal representative under state law. In most instances involving a diseased employee, this would be the appointed administrator of the deceased’s estate. It is permissible to release protected health information to non-representative family members, including but not limited to spouses, domestic partners, parents, children, or siblings, unless doing so is inconsistent with any prior expressed preference that is known to the covered entity. However, the information released to a non-representative family member must be limited to that information which is relevant to that person’s involvement in the decedent’s or incapacitated employee’s care or payment for care. The regulations leave the determination of this relevancy up to the entity’s “professional judgment.” 45 CFR 164.510(b)(5).

The Department of Health and Human Services gives the following example of what could be released: “For example, a covered health care provider could describe the circumstances that led to an individual’s death with the decedent’s sister who is asking about her sibling’s death. In addition, a covered health care provider or pharmacy could disclose billing information or records to a family member of a decedent who is assisting with closing a decedent’s estate. However, in both cases, a provider generally should not share information about past, unrelated medical problems.” (Click here to directed to The Department of Health and Human Services website.)

Consequently, unless protected information is requested by the legal representative of the deceased’s estate, or the information requested is directly related to the requestor’s involvement in the deceased’s care prior to death or payment for the deceased’s care prior to death, a signed HIPAA release by the legal representative is required prior to release of the protected information. Other exceptions allowing the release of protected health information covering special situations are also available, including the allowance of release to law enforcement to assist in a criminal investigation.

Medical claim form and patient medical history questionnaire




It is important that employers understand their responsibilities to protect identifiable health information covered by HIPAA and develop policies to ensure compliance. For assistance in developing a plan for your business, please contact a McBrayer employment attorney today.

B. Johnson





Brandon 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.

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Pregnancy Discrimination in the Workplace – The Supreme Court Weighs In on Employer’s Duties

In our previous blog post, we discussed and detailed the Pregnancy Discrimination Act and the stringent Enforcement Guidelines distributed by the EEOC this summer. On December 3rd, the United States Supreme Court will hear oral argument in Young v. United Parcel Service, and decide whether the EEOC interpreted the Pregnancy Discrimination Act correctly in deciding that an employer is “obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.”

Pregnant office worker walking with folders in the office




Young v. UPS arose because Peggy Young, a female delivery driver for UPS, became pregnant and asked for a light-duty assignment due to a twenty-pound lifting restriction recommended by her doctor and midwife. After Young approached the appropriate representative at UPS, her request was denied because her situation did not fall within the limited situations in which UPS will grant light-duty assignments. In response to UPS’s refusal to accommodate her, Young took unpaid leave and sued UPS for pregnancy discrimination. The federal district court and the Court of Appeals for the Fourth Circuit found in favor of UPS. Specifically, the Fourth Circuit held that UPS had “crafted a pregnancy-blind policy.” Subsequently, Young (the plaintiff-appellant) appealed to the United States Supreme Court for review, and the petition seeking review was granted. Two weeks later, the EEOC released new Enforcement Guidance on pregnancy discrimination in the workplace, discussed in detail in Monday’s blog.

Both Young’s and UPS’s arguments focus on the text of the Pregnancy Discrimination Act. Briefly, UPS relies on its Collective Bargaining Agreement, which establishes three situations where UPS may make alternative work assignments available to workers: (1) injuries sustained on the job, (2) employees who have a cognizable impairment under the ADA, and (3) drivers who lose their Department of Transportation certification because of a failed medical examination, a revoked or suspended driver’s license, or involvement in a motor vehicle accident. Thus, UPS asserts that light-duty assignments were unavailable under the policy to all employees, pregnant or not pregnant, who were unable to perform their normal work assignment due to lifting restrictions or other physical conditions. Likewise, UPS claims that if a pregnant worker did qualify under a category of accommodation, she would receive a light-duty work assignment. Lastly, UPS urges the Court to recognize that Young’s reading of the Pregnancy Discrimination Act would mandate special treatment for pregnant employees, obligating an employer to provide an accommodation to her if the same accommodation has ever been provided to any other employee for any reason, a difficult requirement for employers to meet.

On the other hand, Young claims that because light-duty assignments are provided for other employees, including employees who suffer off-the-job injuries or medical conditions that cause them to lose their Department of Transportation certification, UPS’s failure and refusal to provide accommodated workers who experience similar work restrictions due to pregnancy creates a disparity that violates the Pregnancy Discrimination Act’s requirement that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same … as other persons not so affected by similar in their ability or inability to work.”

As mentioned above, this important issue is now up to the United States Supreme Court to decide. However, it should be noted that the current law in Kentucky was established in a case before the Sixth Circuit, whose rulings apply to all Kentucky employers, and conflicts with the Fourth Circuit’s holding in Young v. UPS. In Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), the Sixth Circuit determined that the district court erred in granting summary judgment for the defendant and that the plaintiff had established a prima facie case of discrimination where she alleged that the United States Postal Service discriminated against her in violation of the Pregnancy Discrimination Act by refusing to grant her benefits and alternative duties, which were available to temporarily disabled employees, while she was pregnant. Therefore, the Supreme Court’s decision in Young v. UPS could reverse or solidify the law pronounced by the Sixth Circuit in 1996, and is one for Kentucky employers to keep a close eye on.

Amanda Stubblefield





Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

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

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Updated & Enhanced EEOC Enforcement Guidance – What Does it Mean for Employers and Pregnant Employees?

In 2013 alone, 5,342 discrimination claims were filed alleging pregnancy discrimination. The result – employers paid out over $17 million in monetary benefits last year. In fact, the EEOC’s statistics do not include monetary benefits obtained through litigation; thus, employers likely paid out a significant amount more than $17 million. To avoid adding to this figure, employers must pay particular attention to pregnancy discrimination in the workplace, be mindful of what is required to comply with federal and state law, and take precautions to ensure that no discriminatory practices exist in the workplace.

In 1978, Congress passed the Pregnancy Discrimination Act, providing protection for pregnant workers in hiring, firing, promotions, and fringe benefits. Specifically, the Pregnancy Discrimination Act provides that the prohibition against discrimination “because of sex” or “on the basis of sex” in Title VII of the Civil Rights Act of 1964 includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” Furthermore, the Pregnancy Discrimination Act requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related benefits, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their inability to work.”

Recently, the EEOC has breathed new life into the Pregnancy Discrimination Act. In July of this year, the EEOC released updated enforcement guidance on pregnancy discrimination, which suggests protection for pregnant workers has increased. While EEOC Enforcement Guidance is simply “guidance” and does not establish law which courts are required to follow, these guidance documents do detail the EEOC’s interpretation of the Pregnancy Discrimination Act and are highly suggestive of how the EEOC would rule in discrimination charges pending before the agency.

The EEOC’s Enforcement Guidance offers insight into the EEOC’s interpretation of five important issues. First, the EEOC explains that the Pregnancy Discrimination Act’s protection extends beyond workers who are currently pregnant, and also covers workers discriminated against because of a past pregnancy or because of their potential or intention to become pregnant. Second, the EEOC directs that an employer cannot “force pregnant workers to take leave” or reassign or take adverse employment action against a pregnant worker, even if the employer believes such changes are in the best interest of the employee. In addition, the EEOC states that although “employers may claim that excluding pregnant or fertile women from certain jobs is lawful because non-pregnancy is a bona fide occupational qualification,” the defense is “an extremely narrow exception … and must be based on objective, verifiable skills required by the job, rather than vague, subjective standards.” Furthermore, the EEOC establishes that lactation is a medical condition related to pregnancy, and thus, “less favorable treatment of a lactating employee may raise an inference of unlawful discrimination.” Lastly, and perhaps most importantly, the EEOC’s Enforcement Guidance provides that even in healthy, uncomplicated pregnancies, employers must provide accommodations equivalent to those provided to non-pregnant employees who are similarly unable to perform their jobs, even if those other accommodations are provided pursuant to the Americans with Disabilities Act, workers’ compensation, or work-related injuries.

Pregnant office worker walking with folders in the office




The last of the EEOC’s pronouncements discussed above is at issue in a case currently before the United States Supreme Court. In Young v. United Parcel Service, the Supreme Court will consider the EEOC’s interpretation of the Pregnancy Discrimination Act and determine whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations, to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” For an in-depth discussion of Young v. UPS, click here.

Amanda Stubblefield





Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

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

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Kentucky Supreme Court Decision Drastically Impacts All Non-Compete Agreements

Earlier this year, the Kentucky Supreme Court reversed the Kentucky Court of Appeals’ holding in Creech, Inc. v. Brown, and held, in a landmark decision, that continued employment, standing alone, is no longer sufficient consideration to justify or support enforcement of a non-compete agreement. This reverses prior precedent that employer-employee agreements may be executed in exchange for merely retaining one’s job. While the case has an intricate and complex set of facts, this article focuses on the consideration requirement only, as the Kentucky Supreme Court chose not to address any other issues.

The case arosThe Employee Handbooke out of a dispute between and employee and employer over the extent to which the employer could enforce a non-compete agreement that was executed during the course of employment. Prior to this decision, employers routinely requested existing employees to execute non-compete agreements citing their continued employment as sufficient consideration for the agreement.



The Court of Appeals outlined a six factor test in determining whether the non-compete portion of the Agreement was enforceable. At the outset, this six factor test should be reviewed in drafting any non-compete agreement and could assist in defending against a claim that the non-compete is not enforceable. The Court of Appeals also held, as a matter of law, that the employee’s continued employment constituted sufficient consideration to support the Agreement. The parties sought discretionary review from the Kentucky Supreme Court.

On review, the Kentucky Supreme Court rendered the Agreement non-enforceable holding that continued employment is insufficient consideration and did not alter in any meaningful way the six-part test enunciated by the Court of Appeals. Although no clear guidelines were provided, it is clear from the Supreme Court decision that employers may consider more than just monetary consideration. In addition to an increased salary or wages, employers may also offer incentive compensation, additional training or a promotion as consideration. What consideration is sufficient will require an extensive fact-based evaluation of the business of the employer and the nature of the job of the employee.

From a best practice standpoint, employers must now be sure that non-compete agreements, if presented after employment, are coupled with adequate consideration. The party making the promise must be given a benefit and the party to whom the promise is made must incur a loss or detriment of some sort in order for a non-compete to be considered enforceable. What constitutes adequate consideration will vary depending upon the factual circumstances applicable to the employee and the industry he/she is employed in. Payment of monetary compensation and/or the promise of additional training may constitute adequate consideration but, once again, analysis of the prevailing factual scenario is critical.

In light of this decision, it is recommended that all employers review their existing non-compete agreements and identify which were executed after the employment relationship began, and review all agreements against the six part test. This will assist employers in determining whether the non-compete agreement could be rendered unenforceable as a matter of law for lack of consideration. As these agreements are essential to many businesses, this review is highly recommended.

Cindy Effinger





Cynthia 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.

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