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Governor Kelly Reinstates LGBT Protections for State Workers
By: Travis Hanson

As she promised she would do, 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 Former Governor Kathleen Sebelius had issued a similar executive order in 2007, which was later rescinded by former Governor Sam Brownback in 2015.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. 

Is the ACA Back on the Endangered Species List?
By: Jason Lacey

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 Impact of Election Day 2014
By: Donald Berner

The elections of 2014 have come and gone in most jurisdictions (there are some runoff elections still pending).  The results for Washington will be a divided government with Republicans holding the House and Senate and Democrats holding the White House.  How this will play out in the next two years is anyone's guess.  The most likely obvious impact will be the need for both sides to compromise to move legislation forward.  This should hold the pace of dramatic change down quite a bit.  Here are a few things to keep an eye on:

1.  Immigration reform efforts might be one of the first testing grounds for this new relationship.  President Obama has vowed to take action via Executive Order while Congress seems to bristle at the idea.  Both sides seem to be preparing to "visit" about the issues.  This might be the year we see comprehensive immigration reform move forward.  Remember several years ago the Senate passed a comprehensive reform bill. 

2.  Administrative agencies continuing to push forward.  Over the last several years the Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration and the Equal Employment Opportunity Commission have all pushed forward with a strong regulatory agenda.  These agencies are able to change the course and direction of labor and employment law as they manage enforcement of existing laws and regulations. 

3. With the likey continuation of agency activity expect to see Congress increase its "oversight" of these agencies.  The push back against the agencies will come via budgetary actions and/or increased hearings and scrutiny of actions.

From a legislative      Continue Reading...

What A Short, Strange Trip It’s Been
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...
Report from the Legislative Front
By: Boyd Byers

The 2014 Kansas legislative session is in full swing. Unlike the last two years, where well-supported bills to overhaul parts of the Kansas workers compensation, wage payment, and unemployment laws were on the agenda, this year there are no major employment law bills on the horizon. But there are bills that would have collateral impact on the employer-employee relationship if they become law. One such bill is House Bill 2473, which addresses a variety of issues relating to the possession of firearms. 

Many of the bill’s proposed changes relate to municipal ordinances, the disposition of firearms confiscated by courts, or criminal laws. Most notably, the bill would prevent municipalities from enacting or enforcing laws that restrict the open carrying of firearms.
The bill contains several provisions relevant to municipal employees, including the following: 
  • Municipalities are prohibited from requiring an employee to disclose whether the employee possesses a valid license to carry a concealed handgun. 
  • Municipalities may not terminate, demote, discipline, or otherwise discriminate against an employee due to the employee’s refusal to disclose the fact that the employee possesses a valid license to carry a concealed handgun. 
  • Municipalities cannot create or maintain any record of whether an employee possesses a valid license to carry a concealed handgun or that the employee has disclosed that he or she possesses such a license.   
  • Municipalities may not be held liable for any wrongful act or omission related to the actions of any      Continue Reading...
Talkin' Baseball and Unemployment
By: Boyd Byers

July 1 marks the midway point of the Major League Baseball season. July 1 is also the day significant changes to the Kansas unemployment law take effect. These amendments are mostly favorable to employers. Among other things, the changes make it more difficult for employees to qualify for benefits when they are fired for attendance, drug or alcohol use, or violating a workplace rule or policy. It’s also now harder for employees to obtain benefits when they voluntarily quit. Foulston Siefkin lawyer Forrest Rhodes wrote a great baseball-themed article about the unemployment law amendments and how they “level the playing field.” We are sharing it with our blog readers below.

Amendments Help to Level the Unemployment Playing Field

By Forrest Rhodes
Few situations drive an HR professional crazier than terminating an employee for legitimate policy violations and then seeing the employee get awarded unemployment benefits.  Whether driven by the volume of benefits paid out over the last several years or perhaps simply to level the playing field, in April 2013 the Kansas Legislature made numerous amendments to the employment security (more commonly known as unemployment) laws that should help to reduce how often benefits are paid in these situations. 
The amendments, which take effect on July 1, 2013, are largely favorable to employers.  In several situations the amendments ease the standard required to      Continue Reading...
Immigration Reform Bill Continues to Evolve
By: Donald Berner

The Senate Judiciary Committee continues to work through the markup process on the comprehensive immigration reform bill. The markup process is where the committee works through the bill making revisions prior to the bill arriving on the floor of the Senate for full debate. 

There have been a couple of interesting skirmishes that highlight some areas of disagreement between the parties on the use of E-Verify and the low-skilled worker visas. The current version of the bill contains a four-year phase-in process for the mandatory use of E-Verify with the implementation based on employer size (larger employers sooner). One of the debated changes was an attempt to reduce the phase-in process to eighteen months. This attempt failed, but this amendment will likely be debated again when the bill moves to the full Senate for debate. 

The other skirmish over the low-skilled worker visa focused on the number of visas permitted per year. An amendment was proposed to double the number of visas allowed in the original draft of the bill. This amendment failed to gain support in the committee, but is also likely to be debated again in the full Senate.

The current plan is for the bill to leave the mark-up phase around the Memorial Day holiday time frame. This timetable might be a bit aggressive, but stay tuned as the bill will arrive in the full Senate soon and promises to provide some interesting debate.

Beware of the Devil in the Details—What Employers Should Do and Need to Know about the Kansas Wage Payment Act Amendment
By: Boyd Byers

Last month we told you about the amendment to the Kansas Wage Payment (KWPA), which goes into effect on July 1. In short, the changes greatly expand the circumstances under which employers may make payroll withholdings or deductions without violating the KWPA. To maximize your organization’s ability to avail itself to these new provisions, you should consider having employees (at least the non-exempt ones) sign agreements prospectively authorizing deductions to cover any past or future payroll overpayments, loans, advances, or failure to return or pay for employer-provided merchandise. But be careful in applying your new rights under the KWPA to exempt employees.  Even if making a certain deduction is allowed by Kansas law, doing so could present potential liability under the federal Fair Labor Standards Act (FLSA).  Read on to understand why.

Under the KWPA amendment, employers are now authorized to make the following deductions and withholdings.
First, upon a signed written agreement between the employer and employee, an employer may deduct or withhold an employee's wages for the following purposes:
  1. as repayment of a loan or advance the employer made to the employee during the course of and within the scope of employment;
  2. to recover a payroll overpayment; and
  3. to compensate the employer for the replacement cost or unpaid balance of the cost of the employer's merchandise or uniforms purchased by the employee. 
Second, upon providing written notice and explanation to the employee (even if there is no written agreement),      Continue Reading...
Kansas Wage Payment Law Amended--No Foolin'
By: Boyd Byers

On April 1, Governor Brownback signed into law a bill that gives employers more latitude to make payroll deductions to recoup overpayments, loans, and property provided to employees. Kansas employers have long pushed for this change. The bill, Senate Substitute for HB 2022, becomes effective on July 1. Read on to understand these revisions and what you can do to maximize their benefit to your organization.

Under current Kansas law, an employer may withhold wages in only limited circumstances, such as: (1) when specifically required by law (such withholdings for payroll taxes or garnishments); (2) for healthcare; (3) deposits into a retirement plan; and (4) when the employer has a signed authorization from the employee for a lawful purpose "accruing to the employee's benefit." Old Kansas Department of Labor regulations take a narrow view on what type of deductions accrue to the employee's benefit.

The revisions to the Kansas Wage Payment Act expand the circumstances under which employers may make payroll withholdings or deductions. Upon a signed written agreement between the employer and employee, an employer may deduct or withhold an employee's wages for the following purposes:
  1. as repayment of a loan or advance the employer made to the employee during the course of and within the scope of employment;
  2. to recover a payroll overpayment; and
  3. to compensate the employer for the replacement cost or unpaid balance of the cost of the employer's merchandise or uniforms purchased by the employee.

In addition, upon providing      Continue Reading...

Immigration Reform Still Being Discussed
By: Donald Berner

I saw a news story last night about the AFL-CIO (union federation) and the U.S. Chamber of Commerce striking a compromise deal related to guest worker type programs. The gist of the story is that these two adversaries have reached an agreement on how to bring in temporary workers, which is expected to be a big part of any immigration reform legislation. This agreement is a big step forward in the overall effort to create a comprehensive immigration reform package. This agreement may signal a push is underway to finalize the legislative package to bring immigration reform to the top of the legislative agenda in Washington.

Washington Looking to Increase Penalties for OSHA Violations
By: Donald Berner

An OSHA reform bill titled Protecting America's Workers Act was reintroduced in the Senate. Employers should keep an eye on the progress of this bill as its goal is to increase the penalties for OSHA violations. This potential legislation comes following OSHA's own internal changes a few years ago that resulted in higher penalty amounts being levied by OSHA. In addition to the penalty changes, the proposed legislation would expand the coverage of the general duty clause and revise the way subcontractor employer relationships are viewed by OSHA. Stay tuned as this Senate bill begins its journey through the legislative process.  

Lawmakers Propose Unemployment Changes
By: Boyd Byers

Kansas lawmakers continue to consider changes to the employment security ("unemployment") statutes. This week the House passed Substitute House Bill 2105 on a vote of 88-35. The bill would amend Kansas unemployment law in several ways:

  • Revises the definition of “part-time employment,” “good cause,” and “misconduct,” and includes further restrictions for alcohol and drug abuse on the job;
  • Authorizes the Secretary of Labor to hire special investigators relating to UI fraud, tax evasion, and identity theft;
  • Increases  the taxable wage base for contributions made by employers from $8,000 to $16,000 starting Jan. 1, 2015;
  • Reduces the contribution rate for certain employers when the UI (unemployment insurance) Trust Fund reaches an acceptable level;
  • Revises the surcharge rate for the 20 negative balance employer groups and requires the Secretary of Labor to notify employers by November 30 of their UI contribution rate for the coming year; and
  • Abolishes the State Employment Security Advisory Council.

After passing the House, the bill was referred to the Senate Committee on Commerce. 

Employers Must Give Job-protected Leave to Lawmakers under Proposed Law
By: Boyd Byers

A bill proposed last week would require Kansas employers to provide job-protected leave to employees while they serve in the state legislature.  House Bill 119 provides that an employee elected or appointed to the Kansas legislature must be reinstated to his or her former position--at the same or higher pay rate, without loss of seniority--after being ousted by the voters, retiring from the legislature, or returning from a legislative session. And that's not all. After being reinstated, the lawmaker/employee cannot be discharged without cause for one year.

The bill has not been well-received. An editorial in the Hutchinson News called it "one of the most absurd pieces of legislation to ever see the light of day." It added, "To think that [lawmakers] should enjoy a protection that's not afforded to Kansans at large borders on the narcissistic, and is an insult to working families across the state." A Kansas City Star editorial says the bill's proponent "appears to have caught a touch of 'capitolitis.'" 

Kansas Legislative Update
By: Boyd Byers

The 2013 Kansas legislative session is now in full swing. Lawmakers have introduced several employment-related bills.

House Bill 2022 -- Expands the number and types of deductions that employers may withhold from an employee's wages, contingent on a written agreement between the parties. Also expands an employer's ability to withhold wages when an employee leaves. However, such withholding cannot reduce the employee's wages below the federal or state minimum wage law.

Senate Bill 53 / House Bill 2092 -- Specifies what social media information an employer can and cannot ask an applicant or employee to divulge.

Senate Bill 48 -- Requires that, starting January 1, 2014, all governmental units and contractors involved in a public contract of $50,000 must use e-verify for verification of employment status of all employees whose employment begin on or after January 1, 2014. Grants the Secretary of Labor authority to establish rules and regulations and impose restrictions on violations of the act.

House Bill 2105 -- Incorporates numerous amendments to the employment security law, such as revising the circumstances when an individual can be disqualified for benefits; redefining "gross misconduct" involving the use of alcohol or controlled substances; and imposing penalties for unlawfully receiving benefits.

Kansas Employment Law Blog will keep you up to date on the progress of these bills and other significant legislative developments.

Kansas Lawmakers Propose New Employment Laws
By: Boyd Byers

Kansas lawmakers introduced several employment-law-related bills this week, the second of the 2012 legislative session.  Here’s a synopsis: 

Senate Bill 295 – Creates the Fair Consideration of the Unemployed Act, which prohibits discrimination based on employment status.  Specifically, it provides, “No employer . . . shall inquire into or shall use a job applicant’s unemployment status or gap in employment history as a basis to hire or to act with respect to recruitment, hiring, . . . or terms, privileges, or conditions of employment.”  (Referred to the Senate Committee on Commerce.)
Senate Bill 284 – Requires all governmental units to use E-Verify for all employees beginning work after January 1, 2013.  Also requires any bidder, contractor, or employer involved in a public works contract of at least $50,000 to use E-Verify and makes them responsible for E-Verify compliance by their sub-contractors.  (Referred to the Senate Committee on Federal and State Affairs.)
Senate Bill 285 – Increases the penalty for misclassification of employees as independent contractors from a Class C non-person misdemeanor to a felony. (Referred to the Senate Committee on Judiciary.)
Senate Bill 286 – Specifies circumstances under which an applicant or employee’s consumer report can be used. Allows a person to file a complaint with the Secretary of Labor if the person’s credit information has been obtained or used contrary to the provisions of the act.  (Referred to the Senate Committee on Financial Institutions and Insurance.)
House Bill 2463 – Requires any contractor involved in a public works contract      Continue Reading...
The Day After the Election: A Recap of What I Learned on Election Day
By: Donald Berner

As most of the free world can attest, yesterday (and last night) was election day here in the United States, which is a very serious and somber process. It is on election day that we select candidates to serve all the way from local positions up to the President of the United States. These choices can have a major impact on how government interacts with employers and their employees over the following four years. 

This election day was much different for me than those in past years. I learned a lot by looking and listening as the election process was fed back to me through the eyes and ears of my children. My high school junior and 8th grader had strong feelings about who the right candidate for the job might be for President. The problem is they did not agree. Talk about partisan politics. It's hard enough to keep the normal sibling squabbles under control without tossing politics into the equation. 

While the older siblings were entertaining at some times and irritating at others, the 2nd grader brought the political process into a whole new light for me. On election night at the dinner table I was grilled by her about whether I had voted yet. I had not done so, which seemed to be a big deal even though the polling locations were still open for another ninety minutes (I like to slip in near closing in hopes it is quieter). Not only did I get chastised for not having exercised my right      Continue Reading...

It's No Joke: Al Franken Backs Bill to Repeal FSA Use-It-or-Lose-It Rule
By: Jason Lacey

The U.S. House of Representatives approved a bill late last week that would partially repeal the use-it-or-lose-it rule for flexible spending account plans. The change would allow for a taxable distribution of up to $500 in unspent employee contributions remaining at the end of the plan year. Legislative attention to this somewhat obscure provision of the cafeteria-plan rules comes just days after the IRS separately announced it was evaluating whether the limitation should continue.

The bill would also repeal the PPACA restriction on reimbursement of over-the-counter drugs through health FSAs and HSAs. 

The Senate has yet to vote, but there appears to be some bipartisan support for the bill, primarily among senators -- including Democrat Al Franken of Minnesota -- who favor a separate provision that would repeal a tax on medical-device manufacturers.

Bill to Amend Wage Payment Act Dies
By: Boyd Byers

You may remember Schoolhouse Rock, the series of educational cartoon shorts that ran on ABC on Saturday mornings in the 1970s.  One of the most-popular episodes, titled "I'm Just a Bill," teaches kids about the legislative process through the adventures of Bill, a bill hoping to become a law.

At one point Bill and a young boy have the following exchange:

Bill:  "I hope they decide to report on me favorably; otherwise I may die."

Boy:  "Die?"

Bill:  "Yeah, die in committee."

Such was the fate of a bill to amend the Kansas Wage Payment Act.

Kansas lawmakers closed a marathon 99-day session yesterday afternoon.  When the gavel slammed for the final time, one of the bills left in the dust was House Bill 2627.  This bill would have allowed employers to withhold money from an employee's final paycheck, upon providing written notice and an explanation, for the following reasons:  (1) to recover a computer, phone, and other property provided to the employee; (2) to recoup a loan or advance made to the employee; (3) to recover a payroll overpayment; and (4) to compensate the employer for the cost or unpaid balance of the employer's uniforms, equipment, tools, or other property purchased by the employee. 

The House of Representatives passed the bill 93-31 on February 23.  On March 1 it was referred to the Senate Committee on Commerce.  The Committee made some changes, and on March 13 recommended that it be passed by the entire Senate.  But that was the end of the line for the bill, at least for the 2012 legislative      Continue Reading...

What Employers Need to Know about the Kansas "Conscience Act"
By: Boyd Byers

On May 14 Governor Brownback signed into law the Health Care Rights of Conscience Act.  So why report about a new health care law in an employment law blog?  Because the law gives new employment protection to persons who work at medical care facilities.

Particularly, the law says that no person (regardless of whether he or she works at a medical care facility) can be required to "perform, refer for, or participate in medical procedures or in the prescription or administration of any device or drug which result [sic] in the termination of a pregnancy or an effect which the person reasonably believes may result in the termination of a pregnancy."  The law then provides that it is unlawful for any "medical care facility" to "terminate the employment of, prevent or impair the practice or occupation of or impose any other sanction on any person because of such person's exercise of rights protected by this section."  The law becomes effective July 1, 2012.

Kansas House Approves Wage Payment Act Amendments
By: Boyd Byers

A few weeks ago we told you about Kansas House Bill 2627, which would amend the Kansas Wage Payment Act to expand the scope of authorized pay deductions.  Since then, the bill, with a few changes along the way, was passed by the House on a vote of 93-31.  It was introduced in the Senate, and last week was referred to the Senate Committee on Commerce.  We'll keep you informed as we continue to track the bill's progress. 

Proposal Would Clarify and Expand Kansas Wage Deductions
By: Boyd Byers

The Kansas Wage Payment Act controls many aspects of wage payment and deductions.  The KWPA's frequently unknown and often-misunderstood restrictions on wage deductions can cause problems for employers.  

Kansas House Bill 2627, introduced on February 3, would amend the KWPA to clarify the law and expand the scope of authorized pay deductions. The proposed changes to the KWPA would expressly allow Kansas employers to withhold, deduct, or divert any portion of an employee's wages for the following purposes:

(1)  To allow the employee to repay a loan or advance which the employer made to the employee during the course of and within the scope of employment.  The KWPA presently is silent about such deductions, although Kansas Department of Labor regulations do say that employers can make deductions for cash advances the employee requested in writing. 

(2)  To allow for recovery of payroll overpayment.  Here again, the KWPA today does not address such deductions, but KDOL regulations permit deductions to correct wage overpayment that resulted from the employer's error, although the deduction rate cannot exceed the overpayment rate unless the employee signs an authorization.

(3)  To compensate the employer for the value of the employer's merchandise or uniforms purchased by the employee. The regulations today say that even with the employee's consent, an employer cannot make deductions for uniforms that are not necessary to the job and that are customarily supplied by the employer.  

(4)  To compensate the employer for breakage, loss or return of merchandise, inventory shortage, or cash shortage caused by the employee where the employee was the sole party responsible for the case or items damaged or      Continue Reading...

New Immigration Laws Likely On Legislative Agenda
By: Boyd Byers

There are an estimated 65,000 illegal immigrants in Kansas. As we previously reported, Kansas lawmakers are expected to debate tougher laws targeting these immigrants when the 2012 legislative session opens on Monday, January 9. One proposal likely to receive serious consideration is a requirement that companies doing business with the state use the federal E-Verify system to check workers’ status. Business groups have expressed concern about the cost of compliance with such potential new hiring and employment requirements. We’ll keep you posted on these and other legislative developments that affect employers in Kansas.

2012 Kansas Legislative Insights
By: Boyd Byers

2012 is poised to be a milestone Kansas legislative session.  Some of the items on the agenda, such as immigration reform and changes to KPERS funding, would directly affect certain Kansas employers.  Jim Maag, Governmental Affairs Consultant to Foulston Siefkin LLP's Public Policy Law and Governmental Relations Practice Group, previews the 2012 session in the new issue of Kansas Legislative Insights.  Click here.

E-Verify For Everyone?
By: Donald Berner

Last week a new bill made its way out of the House Judiciary Committee in Washington and now is in a position to come before the House as a whole.  The bill, titled the Legal Workforce Act of 2011 (HR 2885), would require all employers to participate in the E-Verify system.  Currently, participation is mandatory only for certain federal contractors and employers located in states with mandatory E-Verify state law provisions.  While the bill still has a long journey ahead of it before becoming a law, it is something employers should be considering as they decide whether to voluntarily opt in to using the E-Verify system.  As usual, the political rhetoric in Washington surrounding immigration-related topics is heated.  The difference this go-around is the weak economy and the commentary about ridding the workforce of illegal aliens being a jobs package for unemployed Americans.  Stay tuned as the debate moves towards the full House in the near future.  To catch a glimpse of the political commentary click here for the press release issued by the bill's sponsor. 

Workers Comp Reform Redux
By: Boyd Byers

We previously published a summary of the most-significant changes in the law brought about by the Kansas Workers Compensation Reform Act.  For those of you who want to know more details, but are not depraved enough to attempt to read the Act itself (don't be ashamed--I repeatedly tried to read War and Peace but never made it past page six), we offer a more-comprehensive summary prepared by the Kansas Legislative Research Department.  Click here.         

Smoke-free for One Year
By: Boyd Byers

Today marks the one-year anniversary of the Kansas Indoor Clean Air Act.  This law prohibits smoking in most indoor public places and employment places, including within 10 feet of any doorway, open window, or air intake of a building where smoking is prohibited.  If you were in a coma last summer when the law went into effect, or just haven't made the time to get your company into compliance yet, here are the steps you need to take now, according to the Kansas Department of Health and Environment:

1.                  Adopt a written smoking policy to prohibit smoking in all areas of employment and communicate this policy to all current employees and all new employees upon hiring.

2.                  Remove all ashtrays and matches.

3.                  Post a no smoking sign.

4.                  Ask any person violating the law to stop smoking. Remind customers of the law and politely explain they must step outside to smoke. Train your staff regarding what to say to customers, for example: “We’re now smoke-free, you’ll have to put out your cigarette,” or “The new law prohibits smoking indoors.  Thanks for your cooperation.”

5.                  Refuse service to any person who continues to violate the law.

6.                  Ask any person violating the law to leave.

7. Continue Reading...

The Supreme Court, Congress, and Isaac Newton
By: Boyd Byers

Newton's third law of motion states that for every action there is an equal and opposite reaction.  Great, you say, a lawyer who fancies himself as a physicist.  And what the heck do physics laws have to do with employment laws?  Hang with me and I'll connect the dots. 

Unless you've been living in a cave in Afghanistan, you know that last week the U.S. Supreme Court ruled that lower courts had improperly certified the massive gender discrimination class action lawsuit against Wal-Mart, the nation's largest private employer.  The case, which has been going on for over 10 years, had been the largest job-discrimination class action in history, potentially covering 1.5 million women and exposing Wal-Mart with billions of dollars in liability.  But the majority of the Court, in a 5-4 decision, said the women who brought the case failed to point to companywide policies that had a common effect on all women covered by the class action.

That was the action.  Now the reaction. 

Capitol Hill Democrats denounced the ruling and are using it to renew a push for new legislation addressing equal pay and gender discrimination.  Sen. Tom Harkin (D-Iowa) said the decision is "a reminder that much work remains to be done in order to achieve equal pay for men and women."  Harken, who co-sponsored the proposed Paycheck Fairness Act and the Fair Pay Act, then promised to "work with my colleagues to strengthen the anti-discrimination laws" and ensure that "victims have access to justice and corporations are held accountable."   Rep. George Miller (D-Calif.) similarly proclaimed that the Wal-Mart decision "really underscores the need for Congress to strengthen our civil      Continue Reading...

Governor Signs Workers Comp Reform Law
By: Boyd Byers

Yesterday Governor Brownback signed into law the Kansas Workers Compensation Reform Act.  This law, which will take effect on May 15, 2011, marks the most-significant overhaul of the Kansas workers comp system since 1993. 

The new law, which has, as they say, a little something for everyone, is the product of negotiations between labor and business interests.  Both the Kansas AFL-CIO and the Kansas Chamber of Commerce supported the bill, and both the Senate and House passed it unanimously.  
So what are the major changes that have everyone so giddy?  As Governor Brownback put it, the new law is intended to provide “higher benefits for people with significant, legitimate claims,” while resulting in “less frivolous claims within this system." 
Higher Benefit Caps.  The new law increases the maximum benefits payable for disabling injuries.  For example, the cap on permanent partial disability was raised from $100,000 to $130,000, the cap on permanent total disability went from $125,000 to $155,000, and the death benefit cap increased from $250,000 to $300,000. 
Bilateral Injuries.  The new law clarifies that “bilateral injuries” (shoulder, arm, or hand combined with other shoulder, arm, or hand; or leg or foot combined with other leg or foot) are treated as a "general bodily injuries," rather than two “scheduled” injuries.  General bodily injuries typically result in higher disability awards than two separate injuries to the affected limbs.  This provision reverses a recent ruling by the Kansas Supreme Court. 
Restrictions on Compensable Injuries.       Continue Reading...
No Fooling--Work Comp Bill Goes to Governor
By: Boyd Byers

Today the Kansas House passed the revised version of HB 2134, the work comp bill we've been covering.  The bill now awaits action by Governor Brownback.  (The bill is summarized in our March 24 post.) 

Kansas Senate Approves Work Comp Bill
By: Boyd Byers

This week the Kansas Senate approved House Bill 2134, which includes numerous amendments and additions to the Kansas Workers Compensation Act.  After narrowly approving two amendments to the version of the bill previously approved by the House, the Senate passed the substitute bill by a unanimous 39-0 vote.   

Among the changes in this new-and-improved version of the bill (the tenth version) are: (1) redefining several existing terms and defining new terms; (2) specifying circumstances for disallowing compensation benefits; (3) requiring uniform deadlines for an injured employee to give notice to the employer; (4) revising drug testing standards; (5) shortening the time a case can stay open without a hearing from five to three years; (6) reducing compensation in cases involving proof of pre-existing conditions; (7) requiring expert evidence to prove permanent total disability; (8) redefining benefits available for temporary total disability; (9) revising calculations for compensating bilateral injuries and determining "average wages"; (10) increasing the maximum compensation for four different categories of disability; (11) reducing compensation benefits when the employee accepts retirement benefits from the same employer; (12) reducing an employer’s responsibility to provide medical and health care services in specified circumstances; (13) expanding who is eligible to access the appeals process involving future medical treatment; (14) expanding the use of the WC Fund when an employer has insufficient coverage; (15) mandating insurers and self-insured employers to issue warning notices in certain circumstances; (16) revising the appointment process for the WC Board; (17) allowing employers or insurance carriers to request a post-award hearing for medical treatment; and (18) permitting administrative hearings to be by      Continue Reading...

KHRC Officials Criticize Governor's Plan for Agency
By: Boyd Byers

Two months ago we told you about Governor Sam Brownback's proposal to move the Kansas Human Rights Commission into the Attorney General's Office as part of a plan to cut costs.  William Minner, the Commission's Executive Director, and Joseph Mastrosimone, its Chief Legal Counsel--whose positions would be eliminated if the plan is approved--are now speaking out against the proposal.  They say the plan would create legal conflicts of interest when the KHRC pursues discrimination cases against state agencies and officials, because the AG's Office represents agencies and officials when they're sued.  

Several civil rights organizations, including the Kansas chapters of the National Association for the Advancement of Colored People and the National Organization for Women, oppose the Governor's proposal.  They plan to conduct a protest march and rally this weekend. 

A spokesperson for the Governor says the AG's office regularly manages conflict issues like this already.  The Kansas Legislature will eventually decide whether to act on the proposal.

Kansas Legislative Insights Hits Century Mark
By: Boyd Byers

Congratulations to Kansas Legislative Insights on its 100th issue.  KLI is the go-to source for executives, human resources professionals, lawyers, and others who want to stay on top of current developments in the Kansas legislature.  This free newsletter is published regularly during the legislative session.  Click here ( http://www.foulston.com/legislativeinsights ) to check out the latest issue.  If you want to receive future issues of this free publication, send your request to mknoblauch@foulston.com.  Did I mention it's free?

Kansas House Passes Work Comp Bill
By: Boyd Byers

"I'm just a bill, yes I'm only a bill . . . ."  -- Bill, from Schoolhouse Rock

Kansas lawmakers are considering a bill that would revise the Kansas Workers' Compensation Act in numerous ways.  Highly summarized, House Bill 2134 would: (1) redefine several existing terms and define four new terms, including "prevailing factor," "repetitive trauma," "task loss," and "wage loss;" (2) specify circumstances for disallowance of compensation benefits; (3) extend the period of time an employee has to give notice of injury; (4) revise drug testing standards; (5) shorten, from five to three years, the time a case can stay open without a hearing; (6) reduce compensation in cases involving proof of pre-existing conditions; (7) require expert evidence to prove permanent total disability; (8) redefine benefits available for temporary total disability; (9) revise calculations for compensating bilateral injuries and determining "average wages;" (10) increase the maximum compensation for four different categories of disability; (11) reduce compensation benefits when the employee accepts retirement benefits from the same employer; (12) reduce an employer’s responsibility to provide medical and health care services in specified circumstances; (13) expand who is eligible to access the appeals process involving future medical treatment; (14) expand the use of the workers' compensation fund when an employer has insufficient coverage; (15) restrict coverage for illegal immigrants; and (16) abolish the Workforce Advisory Council.  The bill was passed by the House on a vote of 90-29, and is awaiting action by the Senate.  


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