Employment Law

Miller, Griffin & Marks represents both employers and employees in numerous aspects of labor and employment issues, including wage and hour, unemployment, civil rights, contract, and personnel issues. We practice before both state and federal courts, as well as local, state, and federal administrative agencies.

Case Summaries

Federal Employment Update:

FEDERAL WAGE-AND-HOUR RULES CHANGES – An important change in the federal wage-and-hour rules becomes effective on December 1, 2016. The new rule recently promulgated by the Department of Labor will increase the salary level from $455 per week ($23,660 annually) to $913 per week (or $47,476 annually). Additional changes were made to the salary rules applicable to the “highly compensated employee” exemption, and the rule provides for automatic updates to the salary and compensation levels every three years. No changes have been made to the “duties test.”  Read more.

October 4, 2016 Filed Under:   Litigation   Transactional Law   Employment Law

Federal Update

FEDERAL WAGE-AND-HOUR RULES CHANGES – An important change in the federal wage-and-hour rules becomes effective on December 1, 2016. The new rule recently promulgated by the Department of Labor will increase the salary level from $455 per week ($23,660 annually) to $913 per week (or $47,476 annually). Additional changes were made to the salary rules applicable to the “highly compensated employee” exemption, and the rule provides for automatic updates to the salary and compensation levels every three years. No changes have been made to the “duties test.” Read More

September 28, 2016 Filed Under:   Litigation   Transactional Law   Employment Law

Tree Top Landscaping, Inc. v. Gene Smith, 13-CI-3988 Fayette Circuit Court (May 19, 2015)

In an unemployment claim case, the former employee was terminated for his refusal to follow orders of the employer so it was a termination for cause . The Unemployment Commission awarded unemployment benefits over the cause termination.  The trial court, on appeal, affirmed the award of those benefit ruling that the underlying file made at the unemployment commission was insufficient to overturn its ruling.

Unemployment/appeal/just cause

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May 19, 2015 Filed Under:   Litigation   Employment Law

Veitch v. Public Protection Cabinet, et al., Franklin Circuit Court, 13-CI-895 (November 26, 2014)

Chief State Steward of the Kentucky Horse Racing Commission was terminated.  The termination was upheld by the Kentucky Personnel Board.  On judicial appeal of agency action, the Franklin Circuit Court reversed the termination, reinstated the Chief Steward with recovery of back pay.

Personnel board/chief state steward/racing commission

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November 26, 2014 Filed Under:   Equine Law   Litigation   Employment Law

(Creech III) Charles T. Creech, Inc. v. Brown and Standlee, 433 S.W.2d 345 (Ky. 2014) (2012-SC-651-DG)

Company sued former employee and his new employer to enforce a noncompete. After granting an injunction for the Company, then dissolving the injunction under CR 65 relief by the Court of Appeals, then dismissal of all the claims on remand, then another appeal on the merits to the Court of Appeals in which the Court of Appeals remanded the case but limited damages and provided a new “test” for enforceability of noncompetes, Company moved for discretionary review which was granted by the Supreme Court. The Supreme Court then used the case as a first review by the high court to consider noncompetes and held that 50+ years of law in Kentucky providing that continued employment is adequate consideration to enforce a noncompete is no longer applicable. They held that the noncompete in issue was unenforceable due to lack of consideration while also holding that the “blue pencil” doctrine is not available in Kentucky.

Noncompete/restrictive covenant/adequate consideration/unenforceable/blue pencil doctrine

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January 1, 2014 Filed Under:   Litigation   Transactional Law   Employment Law

(Creech III) Charles T. Creech, Inc. v. Brown and Standlee, 433 S.W.2d 345 (Ky. 2014) (2012-SC-651-DG)

Company sued former employee and his new employer to enforce a noncompete. After granting an injunction for the Company, then dissolving the injunction under CR 65 relief by the Court of Appeals, then dismissal of all the claims on remand, then another appeal on the merits to the Court of Appeals in which the Court of Appeals remanded the case but limited damages and provided a new “test” for enforceability of noncompetes, Company moved for discretionary review which was granted by the Supreme Court. The Supreme Court then used the case as a first review by the high court to consider noncompetes and held that 50+ years of law in Kentucky providing that continued employment is adequate consideration to enforce a noncompete is no longer applicable. They held that the noncompete in issue was unenforceable due to lack of consideration while also holding that the “blue pencil” doctrine is not available in Kentucky.

Noncompete/restrictive covenant/adequate consideration/unenforceable/blue pencil doctrine

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January 1, 2014 Filed Under:   Litigation   Transactional Law   Employment Law

(Creech III) Charles T. Creech, Inc. v. Brown and Standlee, 433 S.W.2d 345 (Ky. 2014) (2012-SC-651-DG)

Company sued former employee and his new employer to enforce a noncompete. After granting an injunction for the Company, then dissolving the injunction under CR 65 relief by the Court of Appeals, then dismissal of all the claims on remand, then another appeal on the merits to the Court of Appeals in which the Court of Appeals remanded the case but limited damages and provided a new “test” for enforceability of noncompetes, Company moved for discretionary review which was granted by the Supreme Court. The Supreme Court then used the case as a first review by the high court to consider noncompetes and held that 50+ years of law in Kentucky providing that continued employment is adequate consideration to enforce a noncompete is no longer applicable. They held that the noncompete in issue was unenforceable due to lack of consideration while also holding that the “blue pencil” doctrine is not available in Kentucky.

Noncompete/restrictive covenant/adequate consideration/unenforceable/blue pencil doctrine

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January 1, 2014 Filed Under:   Litigation   Transactional Law   Employment Law

Baptist Physicians Lexington, Inc. v. The New Lexington Clinic, PSC, 2012-SC-242 (December 19, 2013)

The Kentucky Supreme Court clarified that the corporate fiduciary duty statute defined the duties of a director when acting in his official capacity on behalf of the corporation, but did not displace fiduciary duties when he was acting in his individual capacity and not in a corporate one. Thus, common law fiduciary duties survived enactment of statutes defining duties owed when acting on behalf of the corporation.

Fiduciary duties/corporations/ board member/officer/KRS 271B.8-300/pleading

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December 19, 2013 Filed Under:   Litigation   Transactional Law   Employment Law

Baptist Physicians Lexington, Inc. v. The New Lexington Clinic, PSC, 2012-SC-242 (December 19, 2013)

The Kentucky Supreme Court clarified that the corporate fiduciary duty statute defined the duties of a director when acting in his official capacity on behalf of the corporation, but did not displace fiduciary duties when he was acting in his individual capacity and not in a corporate one. Thus, common law fiduciary duties survived enactment of statutes defining duties owed when acting on behalf of the corporation.

Fiduciary duties/corporations/ board member/officer/KRS 271B.8-300/pleading

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December 19, 2013 Filed Under:   Litigation   Transactional Law   Employment Law

Melbourne Mills, Jr. v. David Helmers, (2013-CA-1877, Fayette Circuit Court 2013)

A disbarred attorney sought to recover fees from another attorneys after both had been disbarred and with no evidence the suing attorney had provided any legal services on any of the cases or for any of the clients when he produced no records to support his claims or even identify his purported clients. The trial court ruled the fee sharing agreement was not enforceable and the decision was affirmed by the Court of Appeals.

Attorneys’ fees/fee sharing agreement/illegal contracts/ethical violations/disbarred attorneys

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January 1, 2013 Filed Under:   Litigation   Employment Law

(Creech II) Charles T. Creech, Inc. v. Brown and Standlee, (2011-CA-629)

Company sued former employee and his new employer to enforce a noncompete executed by employee of many years. Following the granting of the injunction by the trial court and then the Court of Appeals dissolving the injunction under CR 65 relief, the trial court was to addressed the merits.  However, the trial court granted an immediate summary judgment dismissing the entire case based on the wording of the CR 65 Order from the Court of Appeals.  Company then appealed and on full review the Court of Appeals agreed that the Company’s claims should not have been dismissed but significantly limited its damage claim.

Noncompete/restrictive covenant/employment/consideration/blue pencil doctrine/issues on review/damages

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January 1, 2012 Filed Under:   Litigation   Transactional Law   Employment Law

Stephen Deese v Genscape, Inc., 12-CI-1784 (Jefferson Circuit Court 2012)

Employee work for over a decade for employer.  At some point post-employment, employer requested a non-compete be executed by the employee.  Some stock options were awarded as part of that agreement.  Years later employer sought to down-size and terminated employee under a reduction in force.  Employee sought out new employment and was provided a job offer by a Fortune 500 company which arguable did similar work as former employer.  Former employer communicated the existence of an enforceable noncompete to employer who offered job who then withdrew the job offer. The noncompete essentially restricted employee’s future work prospects by geographic area to only 1 of seven continents.  Employee file for a temporary restraining order and a declaration judgment action seeking a court ruling that the noncompete obtained post-employment was not enforceable as a result of the reduction in work force termination of employee and because the geographic restriction was so unreasonable.  The trial court denied the request for temporary restraining order holding that the employee had not shown that his rights were being or would be violated by employer, and after an extensive evidentiary hearing the trial court issued an opinion and order that held that employee could not establish that his rights are being or will be violated by the former employer as it had the right to seek to enforce its agreements with former employees.

January 1, 2012 Filed Under:   Litigation   Transactional Law   Employment Law

(Creech II) Charles T. Creech, Inc. v. Brown and Standlee, (2011-CA-629)

Company sued former employee and his new employer to enforce a noncompete executed by employee of many years. Following the granting of the injunction by the trial court and then the Court of Appeals dissolving the injunction under CR 65 relief, the trial court was to addressed the merits.  However, the trial court granted an immediate summary judgment dismissing the entire case based on the wording of the CR 65 Order from the Court of Appeals.  Company then appealed and on full review the Court of Appeals agreed that the Company’s claims should not have been dismissed but significantly limited its damage claim.

Noncompete/restrictive covenant/employment/consideration/blue pencil doctrine/issues on review/damages

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January 1, 2011 Filed Under:   Litigation   Transactional Law   Employment Law

(Creech II) Charles T. Creech, Inc. v. Brown and Standlee, (2011-CA-629)

Company sued former employee and his new employer to enforce a noncompete executed by employee of many years. Following the granting of the injunction by the trial court and then the Court of Appeals dissolving the injunction under CR 65 relief, the trial court was to addressed the merits.  However, the trial court granted an immediate summary judgment dismissing the entire case based on the wording of the CR 65 Order from the Court of Appeals.  Company then appealed and on full review the Court of Appeals agreed that the Company’s claims should not have been dismissed but significantly limited its damage claim.

Noncompete/restrictive covenant/employment/consideration/blue pencil doctrine/issues on review/damages

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January 1, 2011 Filed Under:   Litigation   Transactional Law   Employment Law

Akers v. Philips, Greenup Circuit Court, 08-CI-394, Feb 22, 2010

In a case that involved a question of scope of employment under a vicarious liability theory, the Court held that an insurance sales representative who caused an auto accident and injuries while driving to the office to start the day was acting in the course and scope of his employment because he was carrying collected premiums to “bank” and it was company policy that required him to bank those payments by the start of the next business day.
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February 22, 2010 Filed Under:   Litigation   Employment Law

(Creech I) Charles T. Creech, Inc. v. Brown and Standlee, Fayette Circuit Court, 09-CI-779, 2009-CA-985 July 8, 2009)

Company sued former employee and his new employer to enforce a noncompete executed by employee of many years. After several hearings the trial court granted injunctive relief and applied the “blue pencil” doctrine to insert a reasonable area limitation on the noncompete ruling that the former employee could not act in violation of the contract. Former employee and his new employer then pursued emergency relief at the Court of Appeals under CR 65.  The Court of Appeals dissolved the injunction on the emergency appeal and then the supreme court declined review. The case was then remanded to the trial court to address the merits of the case without any injunctive relief being in place.

Noncompete/restrictive covenant/employment/consideration/CR 65 relief

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July 8, 2009 Filed Under:   Litigation   Transactional Law   Employment Law

(Creech I) Charles T. Creech, Inc. v. Brown and Standlee, Fayette Circuit Court, 09-CI-779, 2009-CA-985 July 8, 2009)

Company sued former employee and his new employer to enforce a noncompete executed by employee of many years. After several hearings the trial court granted injunctive relief and applied the “blue pencil” doctrine to insert a reasonable area limitation on the noncompete ruling that the former employee could not act in violation of the contract. Former employee and his new employer then pursued emergency relief at the Court of Appeals under CR 65.  The Court of Appeals dissolved the injunction on the emergency appeal and then the supreme court declined review. The case was then remanded to the trial court to address the merits of the case without any injunctive relief being in place.

Noncompete/restrictive covenant/employment/consideration/CR 65 relief

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July 8, 2009 Filed Under:   Litigation   Transactional Law   Employment Law

(Creech I) Charles T. Creech, Inc. v. Brown and Standlee, Fayette Circuit Court, 09-CI-779, 2009-CA-985 July 8, 2009)

Company sued former employee and his new employer to enforce a noncompete executed by employee of many years. After several hearings the trial court granted injunctive relief and applied the “blue pencil” doctrine to insert a reasonable area limitation on the noncompete ruling that the former employee could not act in violation of the contract. Former employee and his new employer then pursued emergency relief at the Court of Appeals under CR 65.  The Court of Appeals dissolved the injunction on the emergency appeal and then the supreme court declined review. The case was then remanded to the trial court to address the merits of the case without any injunctive relief being in place.

Noncompete/restrictive covenant/employment/consideration/CR 65 relief

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July 8, 2009 Filed Under:   Litigation   Transactional Law   Employment Law

Crawford v. Lexington-Fayette Urban County Government (2008 WL 2885230 (E.D.Ky.))

Justin Crawford, a Sergeant in the Custody Bureau at the Fayette County Detention Center, came to Miller, Griffin & Marks with a complaint: the Detention Center administrators routinely refused to allow officers to take legally required meal and rest breaks, were not fairly compensating them for the true number of hours worked, and were retaliating against the few employees who dared to speak out. In a work environment which requires daily contact with dangerous individuals, the employees’ inability to enjoy meaningful meal and rest breaks away from inmates, alarms and other work responsibilities was particularly troublesome. Sergeant Crawford explained that many other employees had the same complaints, but were afraid of the consequences of publicizing their views. Thereafter, seven other Detention Center officers agreed to join him as lead plaintiffs in a class collective action originally filed in the Fayette Circuit Court, but ultimately resolved in the United States District Court for the Eastern District of Kentucky. Sergeant Crawford was eventually joined by 316 other current and former Detention Center employees, all of whom alleged that the LFUCG had failed to comply with federal and state wage and hour laws. After more than two years of intense litigation, which included the taking and defending of almost one hundred depositions and extensive motion practice before the Court, Miller, Griffin & Marks was able to negotiate a fair settlement on behalf of the class. The Detention Center plaintiffs were finally paid the wages to which they were entitled. Even more importantly, the settlement included provisions to protect and benefit all Detention Center employees, present and future. The employees were assured of sufficient time in which to eat their meals, and an accurate method of reporting hours worked. Miller, Griffin & Marks is proud to have represented the Detention Center employees who serve our community, and remains committed to the values underlying the Fair Labor Standards Act.

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January 1, 2009 Filed Under:   Litigation   Employment Law

MPM Financial Group, Inc. v. Morton (No. 2007-SC-000652-DG, Supreme Court 2009)

MGM assisted a local small business group in obtaining a judgment against an individual former co-owner defendant for theft and embezzlement. After the judgment was entered, the defendant could not be found for more than a year. Once he was located, MGM sought to satisfy the judgment by serving a garnishment on an insurance company who paid monthly disability benefits to the defendant based upon a private disability policy. The defendant challenged the garnishment claiming that the policy was exempted by a Kentucky Statute (KRS 427.150) in combination with a Federal Bankruptcy Statute (11 USC §522(d)). He asserted his right to these exemptions even though he had not filed bankruptcy. The trial court held that his policy was not exempted under the Kentucky Statute but held that a different and recently changed Kentucky Statute (KRS 427.170) allowed him to exempt the policy from garnishment using the Federal Bankruptcy Statute. The Court of Appeals affirmed the decision. MGM along with the amicus support from the Kentucky Bankers Association sought review from the Supreme Court, which was granted. The brief provided by MGM persuaded the Court to resolve the statutory issues and reversed in favor of MGM’s client. The court held that the Kentucky Exemption Statute in issue only applied to those who had been adjudged bankrupt and was therefore inapplicable to the defendant.

Judgment/enforcement/statutory exemption/KRS 427/ 11 USC 522/bankruptcy

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January 1, 2009 Filed Under:   Litigation   Transactional Law   Employment Law

MPM Financial Group, Inc. v. Morton (No. 2007-SC-000652-DG, Supreme Court 2009)

MGM assisted a local small business group in obtaining a judgment against an individual former co-owner defendant for theft and embezzlement. After the judgment was entered, the defendant could not be found for more than a year. Once he was located, MGM sought to satisfy the judgment by serving a garnishment on an insurance company who paid monthly disability benefits to the defendant based upon a private disability policy. The defendant challenged the garnishment claiming that the policy was exempted by a Kentucky Statute (KRS 427.150) in combination with a Federal Bankruptcy Statute (11 USC §522(d)). He asserted his right to these exemptions even though he had not filed bankruptcy. The trial court held that his policy was not exempted under the Kentucky Statute but held that a different and recently changed Kentucky Statute (KRS 427.170) allowed him to exempt the policy from garnishment using the Federal Bankruptcy Statute. The Court of Appeals affirmed the decision. MGM along with the amicus support from the Kentucky Bankers Association sought review from the Supreme Court, which was granted. The brief provided by MGM persuaded the Court to resolve the statutory issues and reversed in favor of MGM’s client. The court held that the Kentucky Exemption Statute in issue only applied to those who had been adjudged bankrupt and was therefore inapplicable to the defendant.

Judgment/enforcement/statutory exemption/KRS 427/ 11 USC 522/bankruptcy

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January 1, 2009 Filed Under:   Litigation   Transactional Law   Employment Law

Crawford v. Lexington-Fayette Urban County Government (2008 WL 2885230 (E.D.Ky.))

Justin Crawford, a Sergeant in the Custody Bureau at the Fayette County Detention Center, came to Miller, Griffin & Marks with a complaint: the Detention Center administrators routinely refused to allow officers to take legally required meal and rest breaks, were not fairly compensating them for the true number of hours worked, and were retaliating against the few employees who dared to speak out. In a work environment which requires daily contact with dangerous individuals, the employees’ inability to enjoy meaningful meal and rest breaks away from inmates, alarms and other work responsibilities was particularly troublesome. Sergeant Crawford explained that many other employees had the same complaints, but were afraid of the consequences of publicizing their views. Thereafter, seven other Detention Center officers agreed to join him as lead plaintiffs in a class collective action originally filed in the Fayette Circuit Court, but ultimately resolved in the United States District Court for the Eastern District of Kentucky. Sergeant Crawford was eventually joined by 316 other current and former Detention Center employees, all of whom alleged that the LFUCG had failed to comply with federal and state wage and hour laws. After more than two years of intense litigation, which included the taking and defending of almost one hundred depositions and extensive motion practice before the Court, Miller, Griffin & Marks was able to negotiate a fair settlement on behalf of the class. The Detention Center plaintiffs were finally paid the wages to which they were entitled. Even more importantly, the settlement included provisions to protect and benefit all Detention Center employees, present and future. The employees were assured of sufficient time in which to eat their meals, and an accurate method of reporting hours worked. Miller, Griffin & Marks is proud to have represented the Detention Center employees who serve our community, and remains committed to the values underlying the Fair Labor Standards Act.

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January 1, 2008 Filed Under:   Litigation   Employment Law

Crawford v. Lexington-Fayette Urban County Government (2008 WL 2885230 (E.D.Ky.))

Justin Crawford, a Sergeant in the Custody Bureau at the Fayette County Detention Center, came to Miller, Griffin & Marks with a complaint: the Detention Center administrators routinely refused to allow officers to take legally required meal and rest breaks, were not fairly compensating them for the true number of hours worked, and were retaliating against the few employees who dared to speak out. In a work environment which requires daily contact with dangerous individuals, the employees’ inability to enjoy meaningful meal and rest breaks away from inmates, alarms and other work responsibilities was particularly troublesome. Sergeant Crawford explained that many other employees had the same complaints, but were afraid of the consequences of publicizing their views. Thereafter, seven other Detention Center officers agreed to join him as lead plaintiffs in a class collective action originally filed in the Fayette Circuit Court, but ultimately resolved in the United States District Court for the Eastern District of Kentucky. Sergeant Crawford was eventually joined by 316 other current and former Detention Center employees, all of whom alleged that the LFUCG had failed to comply with federal and state wage and hour laws. After more than two years of intense litigation, which included the taking and defending of almost one hundred depositions and extensive motion practice before the Court, Miller, Griffin & Marks was able to negotiate a fair settlement on behalf of the class. The Detention Center plaintiffs were finally paid the wages to which they were entitled. Even more importantly, the settlement included provisions to protect and benefit all Detention Center employees, present and future. The employees were assured of sufficient time in which to eat their meals, and an accurate method of reporting hours worked. Miller, Griffin & Marks is proud to have represented the Detention Center employees who serve our community, and remains committed to the values underlying the Fair Labor Standards Act.

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January 1, 2008 Filed Under:   Litigation   Employment Law

Richard E. Jacobs Group, Inc. v. White (No. 2005-SC-0695-WC, KY Supreme Court 2006)

An off-duty police officer working as a security guard for the Fayette Mall was involved in a confrontation with a suicidal suspect. The officer shot and killed the suspect without any physical contact or any physical injuries. The officer later alleged that the incident caused him to suffer from post-traumatic stress disorder, and that he could no longer work in law enforcement. He filed a Workers Compensation claim against the mall as his employer. According to his testimony, the PTSD was the result of his attempt to save the life of the suspect after shooting him. The prominent owner of the mall sought the experience of MGM in defending against the officer’s workers compensation claim. The Administrative Law Judge ruled in favor of the mall owner. However, the Court of Appeals decided to change the law with this case. A divided Supreme Court affirmed this change in the law. MGM advocated that the Court of Appeals had neglected the findings of the Administrative Law Judge and misapplied the relevant case law because Kentucky law requires physical contact to establish an award for mental injury. MGM asserted that KRS 342.0011(1) requires a mental injury to directly result from a physical injury suffered by the claimant and not simply from a physically traumatic event.

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January 1, 2006 Filed Under:   Litigation   Employment Law