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WHERE THERE’S AT WILL, THERE’S NOT ALWAYS A WAY

Most employers in the Commonwealth know that Kentucky – like almost every, other state – is an “at will” employment state.  Generally, employees in the private sector who are not covered by contracts can be dismissed for any reason.  But, do you know the exceptions to the rule?  Some exceptions are codified in statute, and some are established by court decision.

There are federal and state laws which protect employees from most forms of discrimination and wrongful termination.  Federal laws prohibit discrimination in the workplace based on race, color, religion, sex, or national origin.  State laws provide additional protections for Kentucky workers.  Employers should be familiar with Kentucky anti-discrimination laws in the following areas:

  • Discrimination:   Age (40 or older); national origin; disability (physical or mental), HIV/AIDS; gender, race, religion; smoking; occupational pneumoconiosis (with no respiratory impairment) due to coal dust exposure
  • Whistleblower:   Protections for both public and private employees who report safety and health violations, who file wage and hour complaints, and who file worker’s compensation claims; protections for public employees who report any abuses in the workplace
  • State Family and Medical Leave:  For all employers and employees, up to six weeks adoption leave for a child under seven years of age
  • State Military Leave:   Unlimited unpaid leave for Kentucky National Guard members for active duty or training; reinstatement, benefits, and seniority guaranteed
  • Jury Duty:  Unpaid leave for private employees; paid leave for public employees
  • Voting Leave:  Unpaid time off for private employees, up to four hours, to be taken at the employer’s discretion; one day notice from employee required; no proof of voting is required, but if employer learns employee did not vote, disciplinary action may be taken

Kentucky employers must also be aware that in some cases, courts will invalidate employee terminations that, although they technically comply with the employment at will requirements, do not seem fair.  The most prominent exception prevents terminations which violate public policy.  For example, an employee should not be fired for refusing to break the law.  Another recognized exception prohibits terminations after an implied contract for employment has been established.  Such a contract can be created through employer representations of continued employment, in the form of either oral assurances or expectations created by employer handbooks, policies, or other written assurances.

At the risk of sounding cliché, today’s economy demands that employers strictly comply with laws protecting workers’ rights and avoid conduct which can be construed as unfair to employees.  Proper equal employment policies and procedures must be in place, and employee handbooks should not confer unanticipated rights.  Consult a professional to help your company navigate the minefield of personnel management to avoid costly wrongful termination claims.

Kembra Sexton Taylor

Kembra Sexton Taylor, 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.

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