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The Ever Changing World of Sovereign Immunity

"Despite the frequency of opinions on the subject from this Court, the law of sovereign immunity, and the related doctrines of governmental immunity, official immunity, and qualified official immunity, is still difficult to apply, no doubt in part because of the large number of decisions on the subject. Attitudes about the propriety of immunity for the state and its subdivision, government agencies and their employees, and government-created entities have shifted back and forth over time and personnel changes on the Court." Ky. River Foothills Dev. Council, Inc. v. Phirman, 504 S.W.3d 11, 16, (Ky. 2016); citing Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009).This statement by the Kentucky Supreme Court illustrates the evolving Kentucky law regarding sovereign and governmental immunity. In Comair the Supreme Court attempted to clarify any confusion in the law and establish a more certain framework to resolve the question concerning the types of businesses and organizations entitled to immunity. In Comair, the Supreme Court set forth a two prong test. First, one must look to see who created the entity in question. Comair, 295 S.W.3d at 99. Second, and most importantly, does the entity provide a governmental function? Id. To satisfy the second prong, there are two elements that need to be addressed. Whether the entity's function is "governmental", and whether the matter is of a "statewide" concern.

Raising the Kentucky Minimum Wage?

In an effort to modernize, the Fair Labor Standards Act underwent an overhaul that raised the minimum salary necessary to become exempt from overtime pay. Although the changes have not yet gone into effect due to an injunction in place while the Department of Labor hashes things out in a Texas federal court, the message is clear. Similarly, eighteen states have raised their minimum wage requirements above the 2009 federal mandate of $7.25 per hour. Now the 115th U.S. Congress (2017-2018) is considering the Raise the Wage Act (S.1242) which has been read twice and referred to the Committee on Health, Education, Labor and Pensions. Should it become law, the Raise the Wage Act will gradually raise the minimum wage to $15 per hour by 2024, and will eliminate the separate minimum wage requirements for tipped employees, bringing them up to the same minimum wage as regular employees after a certain time period.

The "White Collar" Exemption - Preparing for the Final Rule

Recent revisions by the Department of Labor (DOL) have left employers in a spin. Previously under the Fair Labor Standards Act (FLSA), salaried employees earning $455 per week with, generally speaking, administrative or executive positions qualified as exempt from wage and overtime protection, meaning that employers were not required to pay those employees overtime. In order to modernize this "white collar" exemption, at President Obama's urging, the DOL evaluated national wage rates and, utilizing figures from the nation's poorest region, the South, increased the minimum salary to qualify for the exemption to $913 per week, or $47,476, annually. Designed to go into effect on December 1, 2016, the Overtime Final Rule immediately prompted employers to evaluate the effect this salary increase had on their employees.

"Sex Stereotyping" and Title VII Protections

Gender identity has become an increasingly prevalent issue, in the news and across social media. In Obergefell v. Hodges, the 2015 U.S. Supreme Court landmark case recognizing the fundamental right to marry for same-sex couples, Justice Kennedy began the majority opinion by holding that "The Constitution promises liberty all within its reach, a liberty that includes certain specific rights that allow persons ... to define and express their identity." 135 S.Ct. 2584, 2593 (2015). The ability to define one's own identity is broader than a simple demarcation between competing sexual orientations. Not surprisingly, employers have begun to find themselves tasked with accommodating the transitioning or transitioned employee in recognition of that individual's protected liberties, often in the face of antagonistic coworker responses, without creating an unreasonable interference with the employer's business.

STEPS FOR COMPLETING A SETTLEMENT WITH A MINOR

Kentucky law requires that all minor settlements be approved by a court. Court approval is needed no matter the amount of the settlement, the parties involved, and regardless of whether a civil action has been filed. Minor settlements and the administration of the estates of minors are governed by KRS 387.010 through KRS 387.330.

FMCSA Establishes Mandatory Database for Drug and Alcohol Violations

The Federal Motor Carrier Safety Administration (FMCSA) recently published a final rule that establishes a drug and alcohol clearinghouse for the holders of a Commercial Driver's License (CDL). The Commercial Driver's License Drug and Alcohol Clearinghouse will serve as a central repository for records of violations of the FMCSA drug and alcohol testing program by CDL holders. Compliance with the Clearinghouse rules will be required as of January 6, 2020. The rule is designed to identify the drivers of commercial motor vehicles (CMVs) who are ineligible to operate a CMV because of a drug or alcohol violation.

LIMITS ON THE ENFORCEABILITY OF AGREEMENTS TO ARBITRATE INJURY CLAIMS

Fifty years ago, pre injury arbitration agreements were unenforceable in most states. Basically, this was because courts believed that the right to have claims resolved in court was a fundamental constitutional right that could not be waived before a claim arose. But in the 1970's, that view began to change. The federal government and the states enacted laws making arbitration agreement provisions enforceable. The enforceability of arbitration clauses has since then been upheld in all manner of contracts, most controversially in the securities industry and the consumer goods market.

ELECTRONIC LOGGING TO BE REQUIRED BY 2017

The Federal Motor Carrier Safety Administration scheduled the publication of the final version of its rule mandating electronic logging devices (ELDs) for December 16, 2015. Motor carriers and the drivers of commercial motor vehicles will have 2 years from that publication date - December 16, 2017 - to comply with the new rule.

U.S. Dept. of Labor to Revitalize Overtime Protection for Employees

The Fair Labor Standards Act (FLSA) guarantees eligible employees a minimum wage and overtime pay for hours worked in excess of 40 in a work week. However, there are a number of exemptions to that guarantee. The "white collar" exemption contained in 29 C.F.R. 541 is based in part on a minimum salary level, with those exceeding it potentially being exempted from FLSA overtime protection. More than a decade has passed without any change in the minimum salary level, while at the same time the federal minimum wage has increased. This has resulted in certain low-paid salaried employees finding themselves without overtime protection. In March 2014, President Obama directed the U.S. Department of Labor to update FLSA regulations, and in particular the "white collar" exemption, in order to modernize and simplify the regulations while maintaining the FLSA's intended overtime protections.

Examinations Under Oath

In Adams v. State Farm Mut. Auto. Ins. Co., the Court of Appeals recently addressed Examinations Under Oath. In Adams, two passengers that were injured in an automobile accident were denied Basic Reparations Benefits for noncompliance with the terms of the applicable insurance contract "by failing to cooperate in the investigation of their claims when they did not participate in an Examination Under Oath (EUO...)." Adams v. State Farm Mut. Auto. Ins. Co., No. 2013-CA-002152-MR, 2015 WL 3638004, at *1 (Ky. Ct. App. June 12, 2015). The insurance company argued that "the EUO was a requirement under the contract of insurance [it] had with its insured. The trial court granted [the insurance company's] motion for declaratory and summary judgment on this issue. The Appellants then brought this appeal asserting that nothing in the Motor Vehicle Reparations Act (MVRA) allows for a dismissal by the court on these grounds." Id.

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