Kansas Employment Law Blog

True to her word, newly elected Kansas Governor, Laura Kelly, restored protections from on-the-job discrimination for lesbian, gay, bisexual, and transgender state employees via Executive Order No. 19-02 on her first full day in office January 15, 2019. Former Governor Kathleen Sebelius had issued a similar executive order in 2007, which was later rescinded by former Governor Sam Brownback in 2015. The Order protects state employees from discrimination, harassment, and retaliation based on their sexual orientation, gender identity, and gender expression, among other protected classifications. The Order also expands the policy to require state government contractors to comply with the order in their employment practices.

Advocates of LGBT rights view the Order as a major victory for LGBT state employees and a stepping stone towards extending these protections to the entire private sector. Kansas’s first openly lesbian and gay legislators, Representatives Susan Ruiz and Brandon Woodward, have announced that they planned to introduce a bill that would expand Kansas’ anti-discrimination law to provide similar protections for employees of private businesses. The likelihood of such a bill passing is unclear, but a growing number of Kansas employers are voluntarily adding sexual orientation and gender identity as protected categories under their Equal Employment Opportunity & Harassment policies in anticipation of a potential future change in the law. Stay tuned for further updates on this potential litigation as well as other developments in the 2019 legislative season.

In the world of employee management, things unfortunately don’t always go as planned. From discipline meetings and performance evaluations to termination meetings, managers often have to share difficult news with employees. Finding an honest, respectful way to do so can be the difference between an employee on the path to improvement and one who throws a scene on his way out the door and drives straight to the EEOC to file a charge of discrimination. While there are numerous strategies for how to best navigate these difficult conversations, read on for a few suggestions on keeping these meetings on track.

Performance Evaluations

Performance evaluations are one of an employer’s most valuable tools for communicating with employees. They provide a built-in opportunity to give clear direction to employees about what is going well and what isn’t.

The most important rule when it comes to evaluations is to tell the truth, even when it’s difficult. Unfortunately, our workplaces are not in Lake Wobegone, and not all our employees are above average. If you have a low-performing employee, it is only fair to the employee and the employer to be honest with the employee about that performance. If an employee is performing acceptably in one area but not meeting expectations in another, the evaluation should explain to the employee in clear, simple language both the successes Continue Reading...

The start of the new year is a perfect time for Kansas employers to address employment updates from 2018 and prepare for possible changes coming in 2019. In this article, we’ve summarized a few changes and trends from 2018, as well as a few changes we might see in 2019.

EEOC & Title VII Litigation Trends. 2018 saw another increase in harassment and discrimination lawsuits being filed nationwide. In fact, EEOC litigation filings have doubled since 2016. One big area of movement is sexual harassment cases and charges, which rose significantly in 2018 after more than five years of decreasing numbers. We expect this trend will continue into 2019.

Another trend is the EEOC’s sustained efforts to push for inclusion of sexual orientation and gender identity as protected classes under Title VII, which prohibits discrimination, “because of sex.” The Supreme Court has long held that Title VII protects against discrimination for employees who don’t meet typical “gender norms,” such as a woman who is not feminine enough, but it has not yet addressed head-on the questions of sexual orientation or gender identity.

Over the last few years, the EEOC has taken a clear position that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sexual discrimination under Title VII.” Currently, Continue Reading...

Employment attorneys always tell their colleagues that the best practice area is undoubtedly employment law. HR professionals probably feel much the same way. Every personnel situation is different, it’s never boring, and just when you think you’ve seen it all, you hear about another wild day in the workplace. 2018 was no different, and the following real-life cases prove it.

Georgia man gets a kick in the butt(dial)

James Stephens worked as the Fiscal Officer for the Georgia Subsequent Injury Trust Fund, a state agency. After work one day, Stephens’ boss, Michael Coan, called Stephens at home on his cell phone and they talked about work for a while. Stephens hung up, put his cell phone in his pocket, and went on a rant to his wife for 12 minutes about Coan.

Unfortunately for Stephens, he had inadvertently “pocket-dialed” Coan, who heard the whole rant. When Stephens went to work in the morning, Coan gave him a choice – resign or be fired. Stephens resigned, then he and his wife sued Coan under Georgia’s eavesdropping law and for invading the Stephens’ right to privacy. The Stephens claim that Coan had a legal obligation to hang up when he realized the call was inadvertent rather than listen in to the Stephens’ private conversation.

Coan filed a motion to dismiss the lawsuit, arguing that Coan was immune from the suit because he was acting in his official capacity as a state supervisor and had a right to listen to the conversation of a subordinate employee Continue Reading...

Foulston Siefkin’s HR Training Series presents workshops on the full range of issues that are important and relevant to employers. These workshops are designed to benefit business owners, executives, and HR professionals with responsibility in their organization for the issues arising from the employer-employee relationship. Each session will be presented by a Foulston Siefkin attorney at our offices in Kansas City, Topeka, and Wichita. All training sessions will be submitted for HRCI and SHRM credit.

Upcoming 2019 dates are listed below. For more information on the topics and to register, visit www.foulston.com/hrtraining.

HR Box Lunch Sessions:

WICHITA

What to Do When OSHA Shows Up JANUARY 24, 2019
FLSA Update FEBRUARY 28, 2019

TOPEKA

Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JANUARY 30, 2019
Anatomy of a Complaint: From Charge to Lawsuit FEBRUARY 21, 2019
FLSA Update MARCH 6, 2019
Just the Facts: Difficult Conversations, Discipline, and Performance Management APRIL 16, 2019

KANSAS CITY

Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JANUARY 17, 2019
Anatomy of a Complaint: From Charge to Lawsuit FEBRUARY 12, 2019
FLSA Update MARCH 5, 2019
Just the Facts: Difficult Conversations, Discipline, and Performance Management APRIL 11, 2019

Learn more at www.foulston.com/hrtraining.

The validity of arbitration agreements continues to be the subject of litigation in Kansas and Missouri. The U.S. Supreme Court’s decision to uphold class action waivers in arbitration agreements between employers and employees is one of many other issues raised in recent employment arbitration cases.

In October, a federal court in Kansas considered whether an enforceable arbitration agreement existed when the employee didn’t sign the arbitration agreement. In Kansas, an employee continuing to work after receiving notice of an employer’s arbitration policy is generally considered the same as an employee who has accepted the terms of the arbitration policy. In the most recent case, the employer sent multiple emails to the employee’s work email informing her of her right to opt out of arbitration. The employee didn’t deny receiving the emails and didn’t opt out of the agreement. The court initially noted that, if accepted, the agreement would be valid because it required both the employer and employee to arbitrate any disputes. In contrast, an agreement that requires the employee to arbitrate but makes arbitration optional for the employer isn’t enforceable. The key issue in this case was whether an employee failing to opt out may be deemed to have accepted mandatory arbitration. The court found that even if the employee didn’t read any of the emails, the employer provided adequate notice, and the employee had a meaningful opportunity to reject the offer of arbitration. Thus, by failing to opt out, the employee bound herself to arbitrate her discrimination and retaliation Continue Reading...

The 2018 election saw Kansans elect Democrat Laura Kelly to replace outgoing Republican Governor Jeff Colyer. But both Governor Colyer and Governor-Elect Kelly made pro-employee news in the waning months of 2018.

Shortly after the election, Governor-Elect Kelly announced that she would reinstate an executive order providing protection from discrimination for lesbian, gay, bisexual and transgender state employees. The Kansas Act Against Discrimination (which applies to employers with four or more employees) prohibits employment discrimination based on race, color, national origin, ancestry, sex, disability, and genetic information, but the law is silent as to sexual orientation and gender identity. In 2007, Governor Kathleen Sebelius issued an Executive Order banning discrimination in state employment based on sexual orientation or gender identity. But in February 2015, Governor Sam Brownback rescinded that order. Governor-elect Kelly plans to revive the executive order and announced that she plans to action on the order as soon as possible once she takes office on January 14, 2019.

On November 21, 2018, Governor Colyer also made news when he issued Executive Order 18-19, which provides paid parental leave for over 17,000 Kansas state employees. Under this order, all state employees in the Executive Branch under the governor’s jurisdiction will be eligible to receive paid leave equal to 100 percent of their regular salary following the birth or adoption of a child. Primary caregivers can receive up to six weeks of paid leave, Continue Reading...

The U.S. Department of Labor has released a final rule that describes the criteria for establishing a “bona fide” association health plan under ERISA. This rule implements an October 2017 directive from President Trump to make association plans easier to form and available to more employers.

There is a lot of detail in the rule that is relevant to organizing and operating an association health plan, but here are three big-picture things employers should know about the rule at this early stage in its existence.

Don’t Give Up Your Current Plan Just Yet. The DOL rule is intended to provide employers—particularly smaller employers—with additional options for purchasing health coverage, and the rule makes it easier to use an association structure to allow unrelated employers to jointly purchase coverage. But, there are still a lot of hoops to jump through to get a new association plan off the ground. Don’t expect to see them popping up overnight. And, if a new one does emerge, make sure you ask lots of questions before signing up. Not all association plans are created equal. Some are very well managed and provide a reliable source of coverage for employers and their employees. Others, not so much.
Sharing Is Caring, But Do You Want to Share Health Expenses? One anticipated benefit of association plans is providing small employers with an alternative to purchasing insurance in the small group insurance Continue Reading...

Foulston Siefkin's HR Training Series is designed to benefit business owners, executives, and HR professionals with responsibility in their organization for the full range of issues arising from the employer-employee relationship. Presented by Foulston Siefkin attorneys at our offices in Kansas City, Topeka, and Wichita, each session will address issues that important and relevant to employers. All training sessions will be submitted for HRCI and SHRM credit.

The 2018-19 schedule is available below. For more information on the topics and HR Training Series, visit www.foulston.com/hrtraining. Click here to register now.

HR Half-Day Sessions

WICHITA

Back to the Basics: HR Topics from A-Z that Every HR Professional Should Know AUGUST 29, 2018
Not as Easy as One, Two, Three: How the FMLA, ADA, and Workers’ Compensation Interact with Employee Leave of Absence and Return to Work OCTOBER 30, 2018

KANSAS CITY

Back to the Basics: HR Topics from A-Z that Every HR Professional Should Know SEPTEMBER 11, 2018
Not as Easy as One, Two, Three: How the FMLA, ADA, and Workers’ Compensation Interact with Employee Leave of Absence and Return to Work NOVEMBER 6, 2018

HR Box Lunch Sessions

WICHITA

Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JULY 24, 2018
Anatomy of a Complaint: From Charge to Lawsuit AUGUST 21, 2018
Just the Facts: Difficult Conversations, Discipline, and Performance Management SEPTEMBER 27, 2018
The Benefit of Staying Up Continue Reading...

Employers ended the October 2017 Supreme Court term with a clean sweep. In three 5-4 decisions split down perceived party lines and one unanimous opinion, the Court sided with employers’ interests in each significant labor and employment case. Perhaps most consequentially, at the conclusion of the term, Justice Kennedy retired from the bench, affording President Trump the opportunity to appoint another conservative justice who will likely be a reliable pro-employer vote for decades to come.

Class Action Waivers: In Epic Systems Corp. v. Lewis, a 5-4 majority sided with employers holding that companies can use arbitration clauses in employment contracts to prevent their employees from filing class action lawsuits. This decision resolved the circuit split that followed the National Labor Relation Board’s 2012 ruling in D.R. Horton, which held that class action waivers violated §7 of the NLRA, a provision that protects employees’ rights to engage in “concerted activities.” Justice Gorsuch, writing for the majority, simplified the issue with the following quote: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?” Finding each argument for the latter position unpersuasive, Justice Gorsuch handed employers a major victory. Following this decision, employers can now include class action waivers in arbitration agreements without worrying about Continue Reading...

Eighty years ago today, President Franklin Delano Roosevelt signed the Fair Labor Standards Act (FLSA) into law. The New Deal legislation established minimum wage, overtime pay, recordkeeping, and child labor standards. In response to criticism that the law would overregulate private business, President Roosevelt stated during a “fireside chat” the night before the signing, "Do not let any calamity-howling executive with an income of $1,000 a day, ... tell you ... that a wage of $11 a week is going to have a disastrous effect on all American industry."

Other happenings in the summer of 1938? Joe Louis knocked out Max Schmeling in their rematch to retain his title, the first Superman comic book was issued, and Lou Gehrig retired from baseball and gave his “Luckiest Man on the Face of the Earth” speech.

The 80 years since then have seen radical changes in technology and the workplace. But, the core principles of the FLSA—a mandatory minimum wage, and premium pay for overtime pay to nonexempt workers—remain in place.

Despite its long history, the FLSA did not become a hotbed for employment lawsuits until a decade ago. Today, lawyers representing employees are eager to bring FLSA claims for a variety of reasons:

The law is technical, and even employers with the best intentions can inadvertently violate its requirements.
It’s much easier to show a failure to comply with minimum wage or overtime pay requirements than it is to prove discrimination or retaliation.
Violations often Continue Reading...

A growing number of employers have voluntarily decided to eliminate questions about criminal convictions and arrests from their employment applications. Koch Industries, a Kansas-based company and one of the country’s largest private employers, has been on the leading edge of the movement. Now, Kansas Governor Jeff Colyer is joining the movement with a recent executive order.

What is the “ban-the-box” movement?

“Ban-the-box” refers to the box that has historically appeared on many job applications asking the applicant whether he or she has ever been arrested or convicted of a crime. The “ban-the-box” movement has been an effort organized by civil rights organizations composed primarily of formerly incarcerated people and their families. Statistics show that lack of employment makes it more likely that ex-offenders will re-offend, so those supporting this movement argue that employing more individuals with criminal convictions will have a positive impact on society. In essence, supporters of the movement advocate for enabling people with prior convictions to show their qualifications for a position before being automatically excluded from the job based on their criminal record.

Is it legal to ask applicants about their criminal history on the application?

Maybe; maybe not. Currently, 31 states and more than 150 cities and counties have adopted laws or policies “banning” the box for government positions. In other words, public-sector employers in these states and cities cannot include inquiries on application forms that would require the applicant to disclose arrest and conviction information. Eleven states (California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Continue Reading...

The early years of the ACA were fraught with existential threats. Plans were laid to repeal or defund it. Litigation challenged the validity of various aspects of the law, going all the way to the Supreme Court in a couple of cases. And yet it has survived, more or less intact.

But then something curious happened late last year. Buried within a massive package of federal tax reform legislation was a short provision that eliminated the tax penalty associated with the ACA’s “individual mandate” but left the mandate itself on the books. It was effectively a repeal of the mandate (would anyone obey speed limits if the police said they would never issue speeding tickets?), but for reasons related to legislative procedure, the mandate technically remained.

Why does this matter?

In 2012, the Supreme Court was asked to rule on the constitutionality of the ACA’s individual mandate. The challengers argued that Congress did not have the authority under the U.S. Constitution to require Americans to purchase health insurance coverage. The Supreme Court agreed with them but went on to say that the mandate was still okay, because Congress does have the authority to impose taxes, and the individual mandate was a type of tax.

But now there’s no longer any tax. Just the mandate.

See the problem?

A number of states saw the problem too and have brought yet another lawsuit challenging the validity of the individual mandate. They might have a good argument.

But what does it matter if a toothless provision of the ACA is Continue Reading...

The NCAA Men’s Basketball Championship, better known as “March Madness,” is just around the corner. Things will be extra crazy in Kansas this year, with KU, K-State, and Wichita State all qualifying for the tournament, and Wichita hosting first- and second-round games.

March Madness also means betting pools in which participants fill out brackets to predict the winners. While the practice is common, it may be illegal. And when done on company premises, it can create legal concerns for the employer and affect employee productivity.

Technical Fouls

Gambling is a class-B nonperson misdemeanor in Kansas. In other words, it’s against the law. The penalty can range from a fine to six months in jail.

Kansas law defines gambling as making a bet. A bet is a bargain in which the parties agree that dependent upon chance, one stands to win or lose something of value specified in the agreement. A bet doesn’t include prizes paid to the contestants in any bona fide contest for the determination of skill.

Unauthorized lotteries are also specifically prohibited by the state’s gambling law. A lottery is "an enterprise wherein for consideration the participants are given an opportunity to win a prize, the award of which is determined by chance." Thus, the three elements of a lottery are consideration, chance, and a prize. “Consideration” is the payment of money or anything of value.

Basketball pools, in which contestants fill out a bracket to predict the winner of each Continue Reading...

Foulston Siefkin LLP will host its annual full-day Employment Law Institute (formerly the Employment Law Seminar) on Thursday, May 24, 2018, in Wichita. Join us for this this informative, entertaining, and highly rated event, which will cover timely topics such as sexual harassment, wage-and-hour and FMLA compliance, the latest agency activity and court cases, and more. Sessions will be led by experienced Foulston Siefkin employment lawyers, guest speakers, and a very timely keynote speaker whose topic has been in the headlines. This seminar’s goal is to help business owners, HR professionals, and employee supervisors more fully understand the laws governing the employment relationship in order to avoid the liability and high costs of litigation that could result from uninformed decisions.

Register and learn more at www.foulston.com.