Employment Termination and Employer Risk Management

Human Resource Risk Management begins with the establishment of compliant policies and the consistent documentation and enforcement of those policies. Termination of employment presents potential risks that can understood evaluated and managed.

Most employees in Kentucky are employees at will but employment contracts, if any, may alter or expand the at -will nature of employment relationships. Terminations usually involve the most direct risk to the employer. Insurance coverages such as ELP policies may cover the cost of defense but rarely provide coverage for the underlying claim.

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Unemployment claims represent the most frequent employer experience with employment law. Claims made by eligible employees are decided by the Office of Employment and Training by Hearing officers conducting hearings by phone.

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Workplace Violence Prevention Policies and Planning

Employers in Kentucky need policies and plans for addressing the potential for workplace violence. Threats and violence may come from employees, contractors or third parties and employer may be liable to employees (and contractors) for workers’ compensation claims and penalties as well as to third parties to whom they may owe a duty or contractual obligation. OSHA also requires the Employer to provide a safe place to work, free from “known hazards”.

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Non-Compete Agreements

Non-Competes are generally enforceable in Kentucky as long as the contract has sufficient “consideration”. Generally conditioning on the job on execution of the non-compete would be enough consideration but where a non-compete is required after employment has begun without additional consideration like a raise or bonus.

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Recent Kentucky Verdicts

Barber v UPS:

5.3 million was issued 5 million of which was in non economic damage like embarrassment and humiliation. Eight Affrican American UPS workers alleged.

Isaacs v Novelis:

130K back pay 300K non economic ,Plaintiff sustained an injury while allegedly performing and unsafe act, she was fired upon release to return to work and she sued alleging that she was fired because she filed a Workers Compensation claim. Plaintiff prevailed and the jury found that the timing of the termination relative to the workers compensation return was a significant factor.

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Independent Contractors

The US Department of Labor has recently recently refocused its definition of independent contractor status in the context of wage and hour and overtime exemption status. The “economic reality” of the alleged employment status will be primary standard for evaluation misclassification which looks to the degree of economic dependence between the parties 

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Contingent Workers/Joint Employment

Employers who contract with temporary and employee leasing companies may need to review contracts which may address exposure to employee claims alleging joint employment. These contracts typically specify who is considered to be the “employer” but this designation may not

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