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What A Short, Strange Trip It’s Been
02/19/2014
By: Boyd Byers

Has it really only been a week since the Kansas House of Representatives passed House Bill 2453? Supporters said it simply protects religious liberty. Opponents countered that it sanctions discrimination against same-sex couples; allows police officers, fire fighters, and other government employees to refuse to provide basic or emergency services to tax payers; and imposes significant burdens on Kansas employers. A nationwide hullabaloo ensued.

House Bill No. 2453 is titled “an act concerning religious freedoms with respect to marriage.” Section 1 of the bill provides, “Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender: … Provide any services, accommodations, advantages, facilities, goods, or privileges … or provide employment or employment benefits, related to … any marriage, domestic partnership, civil union or similar arrangement.” The term “religious entity” is broadly defined to include: (1) any “religious corporation, association, educational institution or society;” (2) any entity “connected with” such a religious organization; or (3) “a privately-held business operating consistently with its sincerely held religious beliefs.”
 
Section 2 provides that individuals or religious entities that refuse to provide services, employment, or employment benefits “related to” any such relationship, because of their religious beliefs, are shielded from civil claims or government penal action. Section 2 also says that if an employee of any employer (even the government or a non-religious      Continue Reading...
 
Can You Make Your Employees Give More Notice Than the Pope?
03/13/2013
By: Boyd Byers
Pope Benedict XVI recently did something no pontiff has done for 600 hundred years: He resigned. And when he did, he provided the Catholic Church with only two weeks’ notice of his departure.
 
Employees often leave their employer with little or no notice. This can leave the organization in a lurch, particularly if the employee holds a key position, has a unique skill set, or has institutional knowledge others lack.  
 
Employers sometimes ask whether they can require their employees to give advance notice before they quit. But perhaps the more-important question is: Do you really want to? 
 
Absent an agreement to the contrary, employment in Kansas is at will. This means that either the employer or the employee can end the employment relationship at any time, for any or no reason, with or without notice. Employers are typically happy about this arrangement. 
 
So think twice and get legal counsel before imposing a rule requiring employees to give two weeks or other advance notice of resignation, as this may trigger a reciprocal obligation to pay employees for the same notice period when you let them go, or otherwise alter the at-will nature of the relationship. If you do decide to enter into a contract with an executive or other key employee that requires advance notice of resignation, consider whether and how you will enforce the provision if the employee welches on the deal. Remember that the Kansas Wage Payment Act (KWPA) prohibits withholding an employee’s earned wages as a set off or credit toward other debts the employee      Continue Reading...
 
Do You Know? Right-to-Work vs. Employment-at-Will
09/26/2012
By: Boyd Byers

My fifteen-year-old daughter is an avid reader. She also has an offbeat sense of humor (which she must get from her mother). So perhaps I should not have been surprised to find a book titled Zombies vs. Unicorns lying around the house. "It's a question as old as time itself: Which is better, the zombie or the unicorn?" the book jacket teases.

Such weighty conflicts and comparisons have existed throughout history, of course. Good vs. Evil. Cats vs. Dogs. Yankees vs. Red Sox. King Kong vs. Godzilla. VHS vs. Betamax. And, most recently, Alien vs. Predator. In this spirit, let's examine two separate and distinct legal concepts that are sometimes misunderstood or confused with one another: Right-to-Work vs. Employment-at-Will.

Right-to-work has nothing to do with employers' ability to hire or fire. Nor does it refer to employees' right to unionize. Rather, a right-to-work law prohibits unions and employers from entering into contracts that require workers to join the union or pay union dues as a condition of employment.  

Kansas is one of 23 states with a right-to-work law. Kansas adopted a right-to-work amendment to its constitution in 1958. It provides, "No person shall be denied the opportunity to obtain or retain employment because of membership or nonmembership in any labor organization, nor shall [any employer] enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of membership or nonmembership in any labor organization." (Kan. Const. Article 15, Section 12). 

However, even in states without right-to-work laws, union membership cannot lawfully be required. The U.S. Supreme Court ruled in 1985 that union members have the right to resign their union membership at any      Continue Reading...

 
Kansas Court Expands Scope of Retaliatory Discharge
05/09/2012
By: Boyd Byers

It is unlawful to fire an employee in retaliation for making internal oral complaints involving rights protected by the Kansas Wage Payment Act, the Kansas Court of Appeals ruled on May 4.  Less than a year ago the Kansas Supreme Court held that is is unlawful to discharge an employee for exercising rights under the Wage Payment Act, such as by filing a claim for wages with the Kansas Department of Labor.  The new decision clarifies that this anti-retaliation rule is not limited to situations where the employee has filed a formal claim, but also covers oral complaints to company management. 

However, to be protected, the complaint, whether written or oral, must be "clear enough that the employer would understand that the employee is asserting rights protected by the statute."  The Wage Payment Act requires, among other things, that employers must pay employees all wages when due.  But in this case, the court said, the employee's complaints were "too equivocal" to put the employer on notice that he was making some claim under the Wage Payment Act.  So the court upheld the district court's ruling to dismiss the claim.

 
Employee In Hog Heaven Over Kansas Supreme Court Ruling
05/20/2011
By: Boyd Byers

Today the Kansas Supreme Court expanded the recognized exceptions to employment at will by ruling that a claim for retaliatory discharge exists when an employee is fired for filing a wage claim under the Kansas Wage Payment Act (KWPA).  The employee, who worked for a pig-farming company in Long Island, Kansas, alleged he was fired for trying to bring home more bacon by filing a complaint with the Kansas Department of Labor (KDOL) claiming the company was not paying him as required by the KWPA.  The company said the allegation was hogwash and asked the court to dismiss the case.  The district court agreed with the company and hamstrung the employee's lawsuit, ruling that even assuming he was fired because he filed a KWPA wage claim, this was not a recognized exception to the employment-at-will rule. 

The employee, perhaps feeling he had been casting pearls before swine in the district court, appealed.  The Kansas Supreme Court explained that Kansas courts permit the common-law tort of retaliatory discharge as a limited exception to the at-will employment doctrine when it is necessary to protect a strongly held state public policy from being undermined.  The Kansas Supreme Court has previously endorsed public policy exceptions in four circumstances: (1) exercising rights under the Kansas Workers’ Compensation Act; (2) filing a claim under the Federal Employers Liability Act; (3) whistleblowing (good-faith reporting of an employer’s or coworker’s violation of the law pertaining to public health, safety, or welfare); and (4) exercising a public employee's First Amendment right to free speech on an issue of public concern.  The Court reasoned that the KWPA—which      Continue Reading...

 


Authors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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