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McBrayer Blogs

Department of Labor Ends 80/20 Rule for Tipped Employees

On November 7, 2018 the U.S. Department of Labor issued an advisory opinion letter, FLSA 2018-17, that amends previous guidance regarding the “tip credit provision,” sometimes known as the 80/20 rule. The “tip credit” provision addressed the payment of minimum wage and applies to employees of a business that usually receive at least $30 per month in tips. These “tipped employees” are not required to be paid federal minimum wage (currently $7.25 per hour), but instead, only $2.13 per hour. In 2011, the Department of Labor had issued an opinion rescinding a 2009 opinion and instituting what has colloquially been called the “80/20 rule.” By FLSA 2018-17, the Department of Labor fully reinstated the prior 2009 determination, which will have far reaching consequences for employers of “tipped employees.” More >

Kentucky Equine Liability: When the Potential Buyer Takes a Tumble

Recently the Kentucky Supreme Court addressed liability issues facing Kentucky horsemen when offering riding horses for sale. The sale of horses for riding use is a common facet of the horse business in Kentucky, and test rides are frequently part of the sale process. A test ride, however, opens the door to unique liability issues.  In 1996, the General Assembly enacted the Farm Animals Activity Act(“FAAA”), which dictated that the inherent risks associated with farm animals, including horses, are beyond the reasonable control of farm animal activity sponsors, professionals, or other involved persons. However, this statute left several exceptions permitting liability on the table. Until recently, no published case law in Kentucky provided guidance for the application of these exceptions. In August 2018, the Kentucky Supreme Court clarified the FAAA exceptions involved with a potential buyer riding a sales horse in Daugherty v. Tabor. More >

How to Share the Road: Kentucky New Law Strives to Make Roadways Safer for Cyclists

In an effort to promote the safety of cyclists using the Commonwealth’s roadways, the Kentucky General Assembly recently imposed new duties on drivers. On March 29, 2018, Governor Bevin signed into law House Bill 33, entitled “An ACT relating to the overtaking of bicycles on a roadway.”  The Act, which amended KRS 189.300-.340, became effective on July 14, 2018.  Over thirty states have enacted similar laws.[1]      More >

New Bankruptcy Rules in Effect

Posted In Bankruptcy

Amendments to the Federal Rules of Bankruptcy Procedure brought important changes to the administration of consumer bankruptcy cases, particularly Chapter 13 cases, effective on December 1st of 2017. These new rules require adjustment to the calendaring of the due date for a proof of claim. The most prominent rule changes are a new proof of claim bar date tied to the date of the bankruptcy filing, a requirement that secured creditors file a proof of claim, the required use of a Model Chapter 13 Plan, deadlines regarding plan confirmation, and methods by which courts can determine the amounts of secured claims. More >

How to Keep Recreational Pilots Droning On and On

You’d probably never guess that something you can pick up for your kid from Toys ‘R’ Us on your way home could be the center of a swarm of complex legal issues and a growing regulatory scheme. Welcome to the new world of drones, a world where everyone from the FAA to the local police is struggling to adapt to the challenges posed by the ability of anyone and everyone to purchase what is essentially a flying robot capable of doing everything from spying on the neighbor’s kids to interfering with commercial air traffic. Those challenges are being met with cold, hard law and regulation, so drone operators must understand the growing and serious set of legal rules that come with buying that new drone. More >

Insurers Beware: Bad Faith Claims

Things seemed to be going better for insurers on bad faith claims in Kentucky after the case of Hollaway v. Direct General Insurance in September of 2016, which clarified the stringent standards for third party bad faith claims. Bad faith law in Kentucky took another turn, however, with the Kentucky Supreme Court case of Indiana Insurance Co. v. Demetre¸ which upheld a $3.425 million verdict against Indiana Insurance Company. What makes this case even more challenging for insurers is that Indiana Insurance paid the claim AND defended the insured in court, proving that bad faith can still be found even where the insurer substantially performs as required. More >

Advantages of Mediation

The world of mediation can be a strange place for those expecting a more adversarial process. Rather than act on behalf of either party, the mediator plays a role in the middle, acting as a buffer between the parties to bring them together for mutual benefit. Just as with the conductor of an orchestra, the mediator is there not to create something herself, but to guide the others to do so. A mediator is not only a conductor or a referee, however, and the way a mediator works within the role can add significant value to a mediation. More >

Kentucky Motor Vehicle Reparations Act: The Basics

Sometimes referred to the “No-Fault Act,” the Kentucky Motor Vehicle Reparation Act (“MVRA”) was enacted by the General Assembly in 1974 and ushered in great change in the Commonwealth’s motor vehicle insurance law. The MVRA, which is codified at KRS 304.39, consists of two main components: basic reparation benefits (“BRB”) and tort limitations. Below, some of the key tenets of each component are discussed. More >

Breaking Down the Magnuson-Moss Warranty Act

The federal Magnuson-Moss Warranty Act is the law that keeps manufacturers up at night, and rightfully so. The law is designed to provide a remedy to consumers for failure of manufacturers to abide by their warranties, but it provides an even heavier cudgel for attacking manufacturers than Congress may have intended.  Regardless of its flaws, it pays to understand the outline of the law as it applies to manufacturers. More >

Legislature Takes the Bite Out of Landlord Liability for Dogs

In news that should have tails wagging for landlords and insurance providers throughout the Commonwealth, the statehouse passed a revision to the law that confers liability on dog owners by largely exempting landlords from liability.  This modification is a response to a 2012 Kentucky Supreme Court case that conferred potential strict liability on landlords for dog bites. Since that decision five years ago, landlord groups, insurance companies, and chambers of commerce have been working to pass a law to clarify that liability is the responsibility of the dog owner. Earlier this year, Rep. Stan Lee of Lexington led the charge  to make the change in law, which is expected to result in lower insurance premiums and less court appearances for landlords across the state. More >

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