From February to May of 2020, one in six workers in the USA lost their jobs. The story is not substantially different in Kansas. However, Kansas has begun to recover from the steep rise in unemployment. As the pandemic got underway, Kansas reached an unemployment rate of 11.2% in April; by the end of July, the local unemployment rate stood at 7.2%. However, even with the steady decrease in unemployment rates, the employment landscape seems to have changed.
For many companies, the only way to remain operational has been to move towards a virtual workspace. This includes everything from interacting with clients to interactions between workers. The conceptions of “work” and the “workplace” will fundamentally change as a result of the pandemic – and more rapidly than anyone could have imagined.
Perhaps the most fundamental change which has occurred is the idea of what the "workplace" is. Until recently, the workplace was seen as a brick-and-mortar structure where employees and customers or clients interacted on a regular basis. Prior to the pandemic, only the most forward-looking and progressive organizations utilized virtual workspaces. These organizations had most, if not all, of their employees work from home. However, the movement to work remotely had been gaining traction prior to the pandemic as employers saw a consistent rising cost of office space become more and more burdensome on the corporate balance sheet. With the pandemic causing a shutdown of most of the country, the idea of decentralized work environments has suddenly become mainstream. What was once an experiment has become the new, accepted way of doing business for many.
The pandemic affected many different employment sectors in Kansas. The biggest employment sectors affected include trade, transportation, utilities, health services, and manufacturing. These services primarily operate in a manner that does not allow the "work from home" model. Medical practices in Kansas have begun to provide far more telemedicine than was available before; this has included smaller clinics and sole practitioners, not just large hospitals.
Professional and business services make up the fourth-largest employment sector in the state. Many of these employers have already permanently or temporarily moved to a virtual workspace. Only time will tell how operating in a virtual environment will affect a company’s ability to function successfully in Kansas. Regardless of how employers operate in the future, the fact remains that “if you are willing to work, you need never despair of getting a livelihood in Kansas" (Percy G. Ebbut, 1886).
The "Me Too" movement took hold in late 2017. It grew rapidly, and by 2019 its affects were clearly here to stay. "Me Too" is a movement seeking to raise awareness about the prevalence of sexual harassment and assault in the workplace.
The movement spurred discussions and real change throughout the country and undoubtedly in Kansas. Employers across the state have moved quickly to improve their policies and procedures for handling claims of sexual harassment and assault. Prior to “Me Too”, the Equal Employment Opportunity Commission (EEOC) received an average of 215 charges of sexual harassment or assault per year in Kansas. Afterwards, the number of charges in a year climbed to 262 for 2018. In 2019, that number rose to 344 charges filed. It is clear that "Me Too" has changed the workplace environment in terms of sexual harassment and assault, making employers unwilling to tolerate such behavior.
While workplace sexual harassment and assault became a front and center movement from 2017 to 2019, "Black Lives Matter" became the front and center movement in 2020. Its mission is to eradicate white supremacy and build local power to intervene in violence inflicted on black communities by the state and vigilantes. The movement has grown in strength since its inception in 2013, reaching a critical level on May 25, 2020, when George Floyd, a 46-year-old black man, was killed in Minneapolis, Minnesota, during an arrest for allegedly using a counterfeit bill. His death sparked international protests against police brutality, protests which were considered to be among the largest – if not the largest – in US history, with protests in nearly 550 locations throughout the country and up to 26 million participants. Even with the pandemic in full swing, the protests did not slow.
In Kansas, protests took place throughout the state. There were images shared on social media from over 35 cities and towns throughout the state, showing protestors standing or marching through the streets. Citizens throughout these cities demanded their mayors and city councils change policing polices, which they believed tended to target minority populations. Many cities either made changes or held meetings with citizens to listen to the needs of the community. Although municipalities were clearly affected by the movement, employers also had to take note.
More recently, the police shooting and killing of Jacob Blake, a 29-year-old black man in Wisconsin, resulted in the NBA team, Milwaukee Bucks' decision to boycott their play-off game. The boycott was followed within hours by three WNBA, five Major League Soccer and three Major League Baseball games that were also called off as athletes acted in solidarity with the Bucks’ players. Sports franchises are not the only business that will likely be affected. The "Black Lives Matter" movement has led many local businesses to look within themselves, both at their policies and how they handle race within their company. Race-based discrimination charges filed with the EEOC in Kansas have been generally declining since 2009. The highest number of claims were filed in 2013 with 329; in 2019 there were 217 filed.
As the movement continued to push for reform to police policies, other movements in Kansas made strides as well. In August, the Kansas Human Rights Commission (KHRC) began hearing claims from people who alleged they were being mistreated because of their sexual orientation or gender identity. The decision was in response to the U.S. Supreme Court ruling that civil rights law protects gay, lesbian and transgender people from discrimination in employment. The commission expanded the ruling beyond employment cases, offering protections for people alleging discrimination in housing and public accommodations, such as retail stores and educational institutions.
The Kansas law covers any business with four or more employees while the Supreme Court’s ruling affects businesses with at least 15 employees. Companies in the region should consider examining their policies and ensure they abide by the latest rulings and regulations.
The COVID-19 pandemic has had a significant impact on "gig" workers in Kansas, primarily in terms of receiving unemployment benefits. Prior to the pandemic, gig workers such as Uber and Lyft drivers had not previously been eligible for unemployment benefits. Congress extended coverage to gig workers through the Pandemic Unemployment Assistance program, as part of the CARES Act.
The program did not come without its issues. Delays were prevalent in a system that was not prepared for the volume of requests. The Kansas Labor Department (KDOL) noted that payments were also delayed because the state had to build the new program from scratch due to the newly included gig workers and self-employed workers.
The pandemic has prompted discussion both among federal and state governments regarding gig workers and their rights. The Kansas legislature has traditionally leaned towards pro-business legislation, which may make Kansas a desirable destination for companies looking to utilize gig economy workers.
Employers in Kansas should adapt to and utilize technological improvements, artificial intelligence, cybersecurity measures, and social media. These advances have redefined – and will continue to redefine – the traditional employer-employee relationship.
COVID-19 has had an impact throughout all industries. Overall, unionization was on a decline in the USA – however, throughout sectors of the labor market traditionally without unions, COVID-19 began to prompt interest in organizing for safer workplaces and better pay as the nation continues to recover from an economic dip.
In Kansas, manufacturing and production industries were allowed to continue operating through most of the pandemic. During the first month of the pandemic, many beef and chicken processing plants closed for several weeks. However, as the nation began to lack food and supplies, processing and manufacturing plants then went back to work. Southwest Kansas processing plants account for about 25% to 30% of the country's beef production, so it was important for them to begin operating immediately.
In late March, union leaders began to call on other manufacturers to look towards producing personal protective equipment (PPE) for healthcare workers who were in dire need. Additionally, unions in Kansas have been involved in dealing with massive furloughs and layoffs throughout the state, particularly in the aerospace industry. Meanwhile, many unions have continued to push towards improving COVID-19 safety procedures in food and manufacturing plants.
At the current time, companies are facing unprecedented challenges. States are continuing to emerge from various levels of shutdowns and businesses are moving forward. Unions have seen the pandemic as an opportunity to bring in workers who have never previously engaged in such activity, and are reporting a surge in calls from workers who want information about organizing, holding Zoom meetings to reach the many people working from home.
In April, one union call center in Lawrence, Kansas claimed membership nearly tripled in a call center committee that includes many union supporters and had been calling for increased pay and benefits. Whether the surge in employee activism will have long‐lasting effects depends in part on how employers respond. Many of the reasons workers have moved towards unions relate to a real or perceived lack of safety and health protections being offered by employers. If employers can find ways of making their workers feel safe, they may stave off future conflicts.
The National Labor Relations Act protects the concerted activity of employees and enforces US labor law in relation to collective bargaining and unfair labor practices. Although unfair labor practice charges before the National Labor Relations Board (NLRB) are often filed by unions, they can also be filed by individual employees regardless of their status with respect to union representation.
One area of concern for employers is that the NLRB has started to receive such charges specifically related to COVID‐19 issues. Those charges have included allegations that employers have used the need to discharge employees because of COVID‐19-related shutdowns as a pretext to unlawfully terminate known union supporters. COVID‐19 has also spurred employees who were considering unionization to file petitions for elections with the NLRB.
In Kansas, the primary test used by the courts in determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished.
When determining whether an independent contractor is, in fact, an employee, Kansas courts apply the right to control test for determining a workers’ status. The 20-factor test is as briefly detailed below:
Employers in Kansas should consider the above "right to control" factors if they believe they are dealing with independent contractors. Failure to do so could result in liability under employment laws including taxes, wages, employee benefits, etc. Employers should also consider the implications of employee-employer relationships if they are currently utilizing "gig" workers.
A California judge recently found Uber and Lyft must reclassify California drivers as employees. This ruling may result in a sweeping change across the country for gig workers. Employers, especially in gig economy fields, must begin to reconsider how they structure their employee relationships.
While only one in 14 Kansans is an immigrant, foreign-born residents make up a larger share of the state’s labor force. In construction, an important industry in Kansas, immigrants make up 15% of its employees. Immigrant-led households in the state paid USD966.9 million in federal taxes and USD588 million in state and local taxes in 2018. With immigrant labor being such an important part of the Kansas economy, COVID-19 became a particularly disruptive force.
Near the start of the pandemic, travel restrictions were issued. By March 20, 2020 the Department of State suspended “routine visa services” at all embassies and consulates worldwide. The suspension encompassed applicants for both employment-based and family-based immigrant visas, including the relatives of US citizens and lawful permanent residents.
Although the impact of these restrictions is difficult to measure at this time, it is likely that the after-effects will be felt in the state and throughout the region as companies begin reopening, with labor shortages – especially manual labor shortages– perhaps becoming a significant issue.
With the advent of COVID-19, communications with union leadership has become one of the most important aspects of an employer’s response to the changing environment. Now, more than ever, employers should review and have a clear understanding of their collective bargaining agreements and their obligation to bargain with the union vis-à-vis their ability to change terms of employment. Employers should avoid unlawful direct dealing with employees over schedule and hour changes and follow the collective bargaining agreements’ provisions. Additionally, in some cases, a collective bargaining agreement may specify that some or all of the agreement is suspended in the event of an official declaration of an emergency.
Interviewing prospective talent in 2020 can be tricky. It is in an employer’s best interest to gather as much information as possible about an applicant to ensure they are a fit candidate before extending an offer of employment. Generally, there are more obstacles to terminating an existing employee, even an at-will one, than there are to hiring a new employee. Still, to stay within the bounds of the law, employers must avoid certain practices and questions in their search for the right employee regardless of how innocent their intentions might be.
Kansas law prohibits employers from discriminating against employees and prospective employees on the basis of race, religion, color, sex, disability, national origin, ancestry, and age. As a result, employers must carefully craft pre-employment inquiries to avoid any inference of illegal discrimination in their hiring decisions.
Questions to Avoid
The following are some of the types of inquiries that employers should avoid in an employment interview.
Permissible and Impermissible Testing
The following parameters for testing apply.
The Effects of COVID-19 on Interviewing
Social distancing requirements and guidance have led many employers to conduct video and telephone interviews with applicants. There are advantages and disadvantages to these types of interviews. Online and telephone interviews can be advantageous because they take some of the pressure off the interview, allowing the interviewer and the applicant to be more authentic. Too much comfort, however, can lead to an interviewer inadvertently asking prohibited questions in casual conversation.
Generally, restrictive covenants are enforceable in Kansas if the restriction is reasonable and not adverse to the public welfare (ie, illegal).
When analyzing whether restrictive covenants are enforceable, the court will apply the following four-part Weber analysis.
Non-compete agreements are strictly construed against the employer.
The determination of reasonableness is made on the particular facts and circumstances of each case. When including a restrictive covenant in a contract constructed in Kansas, a global entity should take into consideration the Weber elements provided for above, and the court’s precedent.
Kansas provides business protection of trade secrets under The Kansas Uniform Trade Secrets Act (KUTSA).
KUTSA defines “trade secret” as information, including a formula, pattern, compilation, program, device, method, technique, or process that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. See K.S.A. § 60-3320.
When analyzing the secrecy requirement, and reasonable efforts to protect secrecy, Kansas courts have advised that a trade secret does not have to be absolute in the sense that no one else in the world possesses the information. The trade secret may be disclosed to employees of the company as long as the employees were instructed to keep the information secret. It also may be disclosed to non-employees as long as these non-employees are obligated to keep the information secret. However, the trade secret must not have been generally known to the public or to the people who could obtain value from knowing it.
KUTSA – K.S.A. 60-3320(2) – defines “misappropriation” as:
To establish whether the information is a trade secret, the company must prove that it made reasonable efforts under the circumstances to keep it secret.
“Reasonable efforts” are the efforts that would be made by a reasonable person/business in the same situation and having the same knowledge and resources of the company, exercising due care to protect important information of the same kind.
In determining whether nor not the company made reasonable efforts to keep the information secret, the company should consider all the of the facts and circumstances. Among the factors a company may consider are:
Note that the presence or absence of any one or more of these factors is not necessarily determinative.
In the era of COVID-19, a global company operating in Kansas should take into consideration the above-mentioned analysis. Since COVID-19 has forced employers to operate remotely, where feasible, a global entity should revisit its policies regarding confidential and proprietary information to ensure that it is making reasonable efforts to keep the information secret and secure.
The Kansas Act Against Discrimination (KAAD) makes it an unlawful employment practice for an employer, because of the race, religion, color, sex, disability, national origin, or ancestry of any person to: refuse to hire or employ such person, to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions or privileges of employment; to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business necessity.
When analyzing cases under KAAD, Kansas courts apply the McDonnell Douglas framework. Under this framework, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff succeeds, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reasons for the adverse employment action. Assuming the defendant meets that burden, the presumptions of discrimination drop from the case. The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the defendant’s proffered reasons for the challenged actions are merely a pretext for discrimination.
Movements such as “Black Lives Matter” and “Me Too” have provided opportunities for conversations and opinions to be inappropriately shared in the workplace amongst employees. Employers cannot discriminate or retaliate against an employee for engaging in an act protected by KAAD. If the topic is brought up, and an employee makes a complaint to the company, an employer may be placed in a difficult situation as how to address the situation, not wishing to appear to be taking one side over another or to be engaging in an unlawful employment practice. Therefore, these topics are highly discouraged in the workplace and employers should base their policies on this understanding. However, a plaintiff still has the burden to establish that he or she suffered an adverse employment action (eg, demotion, reduction of pay, loss of title and/or responsibilities, termination, etc) because of his or her protected class.
The Kansas Department of Labor (KDOL) is authorized to visit any place of business to examine the sanitary conditions of the building and the methods of protecting employees from danger. The KDOL relies on regulations provided for by the federal Occupational Safety and Health Administration (OSHA). If unsafe conditions are found, the KDOL is authorized to order appropriate safety measures, after notice and a hearing. The KDOL also provides employers with compliance assistance on request.
Employers are prohibited from retaliating against workers for raising concerns about safety and health conditions. Under the Workers Compensation Act, if an employee suffers personal injury by accident, repetitive trauma or occupational disease arising out of and in the course of employment, the employer shall be liable to pay compensation to the employee in accordance with and subject to the provisions of the workers compensation act.
The KDOL has provided workplace safety guidelines pertaining to COVID-19, which are in line with the OSHA requirements and apply to preventing occupational exposure to coronavirus. OSHA’s personal protective equipment (PPE) standards require using eye and face protection, and respiratory protection when job hazards warrant it. When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection Standard. Workers, including those who work within six feet of patients known to be, or suspected of being, infected with COVID-19 and those performing aerosol-generating procedures, need to use respirators.
While correctly using PPE can help prevent some exposure, it should not take the place of other prevention strategies. All types of PPE must be:
The Kansas Wage Payment Act (KWPA) provides most Kansas workers security of unpaid wages from their labors. It requires, among various other provisions, that employers promptly pay wages and benefits. It also: permits specific damages awards for willful non-payment; controls and limits wage withholdings; prohibits waivers of the rights created; and mandates the Secretary of Labor to enforce and administer the KWPA’s provisions through administrative proceedings, compulsory process to compel witness attendance and document production, and permits application to the district courts for citations in contempt. The Secretary of Labor is expressly authorized to adopt such rules and regulations as are deemed necessary to accomplish the KWPA’s purposes.
The KWPA applies to employees defined as any person allowed or permitted to work by an employer. Independent contractors are excluded from the definition of employee under the KWPA.
The Kansas Department of Labor (KDOL) recognizes the impact of COVID-19 on employers and workers alike, and has provided a web page with available resources and contact information pertaining to COVID-19 and the workplace (COVID-19 Response Resources) The KDOL has also implemented a Shared Work Program for business, exploring reducing production as a result of supply chain challenges related to COVID-19. The Shared Work Program can be a tool used in lieu of a temporary, total layoff of employees. It allows for a partial work week and for partial unemployment benefits to employees. To participate, normal weekly hours for employees must be reduced by 20% (no more than 40%) and apply to at least 10% of employees.
Employment at Will in Kansas
Kansas generally follows the employment-at-will doctrine, which provides that, absent an express or implied contract for a specific duration, either the employer or the employee may terminate the employment relationship at any time and for any reason. Employers in Kansas are still bound by the Kansas Act Against Discrimination and the Kansas Age Discrimination in Employment Act, which prevent employers from discharging employees because of race, religion, color, sex, disability, national origin, ancestry, or age. Further, employers cannot retaliate against employees by terminating them because the employee opposed discrimination, filed a complaint because of discrimination, or participated in an investigation or proceeding conducted by the Human Rights Commission.
Express Employment Agreement for a Specific Duration
Generally, an employer must have cause to terminate an employee when an employment agreement is entered into for a specific duration. If an employer terminates an employee with an express contract without cause, the employer will generally be subject to damages based on the contract’s terms. The express terms of the written contract will govern in these situations.
Employment Agreement Implied in Fact
Even if there is no express contract for a specific duration, a court may imply a contract if it was the mutual intent of the parties to enter into a contract for a specific duration. The determination of whether there was mutual intent may be based on the following factors:
Employers not intending to be bound by a contract must be careful not to express any assurances of job security.
Employment Termination Issues Presented by COVID-19
While employers may be well aware of the effect that COVID-19 has had on their individual businesses, it is important for employers to realize that they are not alone. As stated in 1.1 The Impact of COVID-19 on the Workplace, one in six working Americans lost their jobs between February and May 2020, and the likelihood of immediately finding another job during the pandemic is slim for most people. This reality has led employees, who might not otherwise sue, to bring claims against their employer. Accordingly, employers must protect themselves from claims that have merit by terminating employees in a way that does not allow for the inference of discrimination.
Employers should keep sufficient documentation to provide justification for termination. Even when discrimination claims cannot be avoided, it is important for employers to be able to demonstrate that discrimination did not contribute to the termination of an employee. For example, an employer should be able to provide examples of other, similarly situated employees that were terminated for similar reasons but were dissimilar from the claimant in the way that the claimant is asserting they were discriminated.
Post-Termination Service Letter Request
A Kansas employer must provide, upon written request of an employee whose services have been terminated, a service letter setting forth the (i) tenure of employment, (ii) occupational classification, and (iii) wage rate paid to the employee.
The law in Kansas favors at-will employment. The employment-at-will doctrine holds that employees and employers may terminated an employment relationship at any time for any reason, unless there is an express or implied contract governing the terms of employment. There are exceptions to the at-will doctrine if, for example, a termination results from unlawful discrimination or is against public policy.
If an exception to the at-will doctrine applies (eg, for unlawful discrimination), then an employer can bring a suit against the employer under the Kansas Act Against Discrimination.
A contract implied in fact arises from facts and circumstances showing mutual intent to contract. Because the intent must be mutual, an implied contract cannot be established solely by the employee’s subjective understanding or expectation of his or her employment. In making that particular determination, the understanding and intent of the parties should be ascertained from consideration of several factors:
If there is an express contact governing the terms of employment, then an employee may bring suit based on the particular breach.
The Kansas Uniform Arbitration Act (KUAA) controls the validity of written agreements to arbitrate. It generally provides that arbitration agreements are valid both for controversies existing at the time a contract containing an arbitration requirement is entered into and for controversies arising after the contract is formed; see K.S.A. 5-401.
However, KUAA provides an exclusion – arbitration provisions in employment contracts are not valid when the controversy to be submitted to arbitration arises after the contract has been formed. Therefore, the mandatory-arbitration provisions in employment contracts depend on whether the controversy existed at the time the parties entered into the employment agreement. If it did, then the parties may agree that arbitration provision will not be enforced by the court. Kansas law does not require arbitration of a dispute arising out of an employment agreement when the dispute arose after the contract was entered into. Therefore, the Kansas court will not compel arbitration in these situations. However, parties are free to arbitrate or mediate disputes if mutually agreed upon.
Notably, cases brought in federal district courts (instead of state courts) generally permit compelled arbitration for alleged violations of federal employment statutes where a valid employment contract so requires.
Kansas Act Against Discrimination
Under the Kansas Act Against Discrimination (KAAD), it is an unlawful employment practice for an employer, because of the race, religion, color, sex, disability, national origin or ancestry of any person to: refuse to hire or employ such person to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions or privilege of employment; to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business necessity. See K.S.A. 44-1009.
Kansas Human Rights Commission
The Kansas Human Rights Commission (KHRC) is the administrative agency overseeing charges brought by employees under KAAD. Persons seeking to pursue a claim under KAAD must exhaust their administrative remedies prior to filing suit. To initiate administrative proceedings under KAAD, a complaint must be filed with the agency within six months of the unlawful conduct.
The administrative proceedings are generally confidential and not available to public record.
An independent action based on the KAAD is permissible, but recourse must first be made to the KHRC by an aggrieved individual, and the administrative remedies must be exhausted before records to the courts.
Because damages under KAAD are capped at USD2,000, employers often dually file charges of discrimination with KAAD and the federal Equal Employment Opportunity Commission (EEOC). Employees often elect to bring their employment discrimination cause of action in federal court under Title VII of the Civil Rights Act of 1964.
Discrimination, Harassment, and/or Retaliation Claims as a Result of the “Black Lives Matter” and “Me Too” Movements
KAAD prohibits employers from discriminating against employees because of race and gender. Although silent on these movements specifically, the statute does explicitly state that employers cannot discriminate against employees because of race or gender.
Discrimination, Harassment, and/or Retaliation Claims as a Result of the COVID-19 Pandemic
It is an unlawful employment practice for an employer, because of disability of an employee, to discharge or otherwise discriminate against the employee in the terms of conditions of employment. KAAD defines “disability” as a physical or mental impairment that substantially limits one or more major life activities.
For a person to establish a prima facie case of disability discrimination, he or she must prove:
Although there is no current precedent regarding unlawful employment discrimination arising from COVID-19, employees may bring claims of disability under the KAAD if they can first establish a prima facie case of disability discrimination because of COVID-19.
Enforceability of a Non-disclosure Agreement
Non-disclosure agreements are generally enforceable in Kansas if the restriction is reasonable and not adverse to the public welfare. When adding a non-disclosure provision in an employment agreement, or settlement agreement post-termination, an employer should consider the following questions.
Non-disclosure provisions in post-termination settlement agreements are common.
Wage and Hour Disputes That May Arise in the Employment-Related Context
Kansas law recognizes the tort of retaliatory discharge when an employee is terminated for filing a wage claim under the Kansas Wage Payment Act (KWPA). A Kansas employee can also file a claim under the Fair Labor Standards Act.
Claims Likely to Arise as a Result of the Changes Made Necessary by the COVID-19 Pandemic
Claims under KWPA remain unchanged because of COVID-19; however, employees have been afforded more resources and programs as a result of the pandemic. Disputes between the employer and employee may arise on the interpretation of these newly implemented programs.
Retaliation Disputes That May Arise in the Employment-Related Context Relating to “Black Lives Matter”, “Me Too” and COVID-19, and the Forums Available to Resolve These Claims
The Supreme Court of Kansas has explained that its recognition of causes of action for retaliatory discharge is limited to wrongful discharge in violation of state public policy clearly declared by the legislature or by the courts.
The Kansas Act Against Discrimination (KAAD) makes it an unlawful employment practice for an employer to discriminate against any person (eg, compensation, terms of employment, conditions or privileges of employment, etc) because of an employee’s race, gender, or disability.
If an employer violates KAAD, and discriminates against an employee because of race, gender, or disability, then they can face liability because of the discrimination.
Retaliation is unlawful in Kansas under KAAD if the employer’s retaliation is imbedded in unlawful discrimination.
Remedies Available to Employees, and Employer’s Options
Once a charge of discrimination is filed by an employee against the employer, the parties have the option to mediate the dispute through the Kansas Human Rights Commission (KHRC). These mediation services are voluntary and confidential.
Damages under KAAD are limited to non-economic damages of USD2,000. Additionally, plaintiffs are not entitled to attorneys’ fees if they are the prevailing party (ie, awarded any sum of recovery) at trial. Because of this, claimants typically elect to also file their charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC), and also claim violations of federal law under Title VII of the Civil Rights Act of 1964 in addition to state law violations (ie, KAAD). Remedies under Title VII for employment discrimination are much more expansive, including higher limits to non-economic damages and the ability to recover attorneys’ fees.
Because of the rise of movements such as “Black Lives Matter” and “Me Too”, many employers have addressed and revised their anti-discrimination policies and reporting procedures. These policies are often found in an employer’s employee handbook.
Kansas employers have also utilized other training mechanisms when incorporating anti-discrimination policies like interactive training videos, coaching sessions, or outside human resource assistance to ensure that the company is complaint with state and federal law.
Kansas law does not differ significantly from federal law. For a class to be certified under Kansas law, the initial conditions must be satisfied: “Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) The class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” (K.S.A. § 60-223.)
Whether a court will allow a class-action waiver, or class-wide arbitration, depends on the employer’s jurisdictions and the controlling agreement. Before adding these provisions into an agreement, Kansas employers should refer to their specific jurisdiction (federal or state) and case precedent.
The Kansas Act Against Discrimination allows for reinstatement, back pay, front pay, court costs and up to USD2,000 in non-economic damages for pain, suffering and humiliation in claims alleging discrimination, harassment, or retaliation. It does not provide for punitive damages or an award of attorneys’ fees in employment actions. The Kansas Wage Payment Act allows for an award of lost wages, plus a penalty of 1% per day for willful non-payment, up to 100%. It does not provide for attorneys’ fees for a prevailing employee.
LGBTQ Discrimination in Kansas
On August 21, 2020, the Kansas Human Rights Commission (KHRC) began accepting complaints of sex discrimination in employment, housing, and public accommodations wherein allegations include discrimination based on LGBTQ and all derivatives of “sex”.
This decision followed the U.S. Supreme Court’s ruling in Bostock v Clayton Cty., 140 S. Ct. 1731, 1734 (2020) in which the Court held that “when an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex” and “an employer who fires an individual merely for being gay or transgender defines the law”.
The "Black Lives Matter" Movement
The "Black Lives Matter" ("BLM") movement, established in 2013, began from the belief that there appeared to be a lack of empathy, care, or knowledge about the plight of black Americans and their interactions with law enforcement. The idea was that black Americans had to remind the people of the USA that their lives mattered, that they were not merely statistics on the news. The issue came to a head when George Floyd, a 43-year-old black man, died while being pinned down by a white Minneapolis police officer on Memorial Day. The death sparked massive "BLM" protests throughout the USA and led to new laws and police procedures in state and local governments.
Moving forward – leadership, diversity and education
Over a period of time, there has been a struggle for minorities, especially black Americans, in the USA – and it is a struggle that continues. However, understanding this can help employers in Kansas to appreciate where some of their employees are coming from and to better empathize with them.
When it comes to employees and the "Black Lives Matter" movement, Kansas employers should be cognizant of the application of constitutional free speech protections, employee rights under the National Labor Relations Act, and Kansas or other state laws in the region that may apply to employee conduct that is expressive or related to "BLM". Employers can decide what their responses are in regard to this issue and their employees, but must make sure they are complying with applicable federal and state laws regarding race discrimination. Employers cannot discriminate against employees because of their employees’ race or for engaging in a protected activity regarding race.
Thus far, Kansas employers have typically acknowledged the unrest and issued statements of support. Employers can look to several key areas to develop or focus on, which can help navigate their employees’ concerns or feelings about the matter.
First, companies may consider their leadership. With good leaders, employers can establish models that employees can follow. Leading by example and providing a safe workplace where employees feel valued and included is vital. It is also okay for a leader to admit to a lack of knowledge on the subject and to accept input from their employees – this shows character and that he or she is willing to learn and adapt.
Companies may also consider their diversity programs or begin establishing such programs. Looking at their recruitment and promotions, companies can ensure that their policies and programs are truly based on merit. By establishing regular counseling sessions, leaders can give their subordinates feedback on what they are doing well and what they need to improve. Employees can be given goals and clear guidance on what it takes to be promoted.
Education is also a method by which employers can provide awareness to their employees. Employers can conduct formal training, forums or discussions, utilizing local experts such as history professors, black American studies professors, sociologists, etc. Employers may see this as an opportunity to take responsibility for the education of organization leaders on racial issues.
How Kansas Companies Have Influenced Criminal Justice Reform in the USA
Koch Industries, Inc. employs over 130,000 people around the world and is headquartered in Wichita, Kansas. The chairman and CEO of Koch Industries, Charles Koch, launched a campaign to reform the nation’s prison and criminal justice system in 2018. Mr Koch worked with his company’s senior vice president and general counsel, Mark Holden, to assist in the development of what became known as the First Step Act, which was passed by Congress in December 2018.
The First Step Act (FSA) was the culmination of a bi-partisan effort to improve criminal justice outcomes, as well as to reduce the size of the federal prison population while also creating mechanisms to maintain public safety. The FSA expands job training and other programming aimed at reducing recidivism rates among federal prisoners. It also expands early-release programs and modifies sentencing laws, including mandatory minimum sentences for non-violent drug offenders, to more equitably punish drug offenders. It is worth noting that almost 80% of people serving time for a federal drug offense are black or Latino.
Koch Industries’ influence and push to reform the federal prison system is testament to Mr Koch’s ideals “based on equal rights and on a society of mutual benefit where people succeed by helping others succeed”.
COVID-19 and Related Topics in Kansas
Companies operating in Kansas must abide by state and federal laws. With the rise of COVID-19, state and federal lawmakers have moved swiftly to protect employers and employees against the repercussion of the novel virus. Listed below are a number of legal considerations a global entity should keep in mind when deciding to operate within the state of Kansas. It is also important to note that Kansas, whether jurisdiction is in state or federal court, is typically an employer-friendly jurisdiction.
The COVID-19 Response and Reopening for Business Liability Protection Act
On June 4, 2020, the Kansas legislature passed House Bill No 2016. This bill creates the COVID-19 Response and Reopening for Business Liability Protection Act (the Act). Under this Act, many businesses are “immune from liability in a civil action for a COVID-19 claim if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the cause of action when the cause of action accrued”.
The Act specifically addresses healthcare provider immunity, business liability, products liability, adult care facilities, and other provisions including workers' compensation.
Under the products liability section, a person who designs, manufactures, labels, sells, distributes, provides or denotes a qualified product in response to the COVID-19 public health emergency shall be immune from liability in a civil action alleging product liability claim arising out of such qualified product if (i) the product was manufactured, labelled, sold, distributed, provided or denoted at the specific request of or in response to a written order or other directive finding a public need for a qualified product issued by the governor, the adjutant general or the division of emergency management, and (ii) the damages are not occasioned by wilful, wanton or reckless disregard of a known, substantial and unnecessary risk that the product would cause serious injury to others.
Under the adult care facilities section, an adult care facility shall have an affirmative defense to liability in a civil action for damages, administrative fines, or penalties for a COVID-19 claim if such facility:
As used in this section, “public health directives” means any of the following that is required by law to be followed related to public health and COVID-19:
Under the other provisions, including workers' compensation, the Act states that nothing in the COVID-19 Response and Reopening for Business Liability Protection Act:
The Americans with Disabilities Act, COVID-19 and employment in Kansas
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals on the basis of a real or perceived disability and aims to ensure that individuals with disabilities are afforded the same rights and opportunities as individuals without disabilities.
To achieve this purpose, Congress intended its definition of “disability” under the ADA to be construed broadly. Under the ADA, “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such impairment”; see 42 U.S.C.S. § 12102(1). Individuals are also protected under the ADA from discrimination on the basis of a perceived disability, whether or not the individual actually has such disability; see 42 U.S.C. § 12102(1)(C). However, impairments that actually resolve or are expected to resolve within six months are not included in the ADA’s definition of “disability”; see previous citation.
As it relates to Kansas employers, the U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the ADA and the regulations promulgated under it. To avoid serious legal repercussions, Kansas employers must still abide by the ADA during the COVID-19 global pandemic, while also following guidelines from the Centers for Disease Control and Prevention (CDC), the Kansas Department of Health and Environment (KDHE), or any other state or local entity. Accordingly, Kansas employers should pay special attention to the following.
In general, employers may not require employees to undergo medical examinations or inquire as to whether an employee has a disability. However, in the current context, employers may take an employee’s body temperature to screen for fever, even though measuring an employee’s body temperature is considered a medical examination. Employers must keep confidential any information received or collected about an employee’s body temperature or any other health information.
Kansas employers may ask their employees if they are experiencing symptoms of COVID-19 that have been identified by the CDC, KDHE, or any other state or local health authority, which would help the employer determine whether the employee poses a direct threat to the health of the workplace. Kansas employers may ask an employee why they were absent from work, even if the employer suspects it was for a medical reason. Kansas employers may also ask whether an employee was exposed to the novel coronavirus while traveling. Kansas employers should avoid inquiring as to whether an employee has a chronic health condition or compromised immune system because this would likely require the employee to disclose whether they have a disability.
Kansas employers may require employees to wear personal protective equipment while at work and to practice regular handwashing, but employers may not compel all employees to take an available vaccine. Kansas employers may also ask for a doctor’s note from an employee who has been away from the workplace, or may require that an employee experiencing symptoms associated with COVID-19 be symptom-free for a specified period before returning to the workplace. Lastly, Kansas employers are legally entitled to send employees home if they are experiencing COVID-19 or associated symptoms.
Most importantly, Kansas employers must remember that they are still required to provide reasonable accommodations to employees with disabilities during the COVID-19 global pandemic, unless the employer can demonstrate that an employee with a disability poses a direct threat to safety in the workplace even given reasonable accommodations. Kansas employers may encourage employees to work remotely.
The Family and Medical Leave Act
The Family Medical Leave Act (FMLA) is a federal law that protects eligible employees: (i) from discharge by covered employers and (ii) by requiring the continuation of group health coverage under the same terms as if they were still working, when the eligible employee takes unpaid leave from work for specified family and medical reasons.
Generally, the FMLA applies to private employers in Kansas that employ 50 or more employees in at least 20 working weeks in the current or previous calendar year. Other private employers may be covered for various reasons. An employee is eligible and therefore protected by the FMLA if they have worked for a covered employer for at least 12 months, whether consecutive or not, for at least 1,250 hours during those 12 months.
COVID-19 is an example of a serious health condition for which the FMLA protects eligible employees working for a covered employer. However, an employee may not take FMLA leave simply for attempting to avoid exposure to the novel coronavirus. While the FMLA and other federal law ordinarily do not require Kansas employers to provide paid sick leave, Kansas employers should inform themselves, through legal counsel, of executive orders and other laws in response to the COVID-19 pandemic that might require the employer to provide paid leave.
The Worker Adjustment and Retraining Notification Act, COVID-19 and employment in Kansas
The Worker Adjustment and Retraining Notification Act (WARN Act) was created to ensure that employees of employers with more than 100 full-time employees are given sufficient advance notice of mass layoffs and plant closures.
There is no federal agency that enforces the WARN Act. Instead, the WARN Act provides a private, civil cause of action for employees who were not given sufficient notice under the WARN Act.
Subject to limited exemptions, Kansas employers must give at least 60 days’ notice in the manner provided by the Act if the Kansas employer: (i) intends to temporarily or permanently shut down a single employment site that would result in at least 50 full-time employees losing employment for 30 days; or (ii) intends to reduce its workforce at a single employment site by 33% of full-time employees or at least 50 full-time employees for a period of 30 days.
Families First Coronavirus Response Act (FFCRA) and employment in Kansas
According to the U.S. Department of Labor, the Families First Coronavirus Response Act (FFCRA) will help the USA combat the COVID-19 crisis by reimbursing American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19. The legislation will ensure that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus, while at the same time reimbursing businesses.
FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
Generally, the Act provides that employees of covered employers are eligible for:
Regardless of the pandemic and changes in laws, Kansas will undoubtedly remain employer friendly. Employers operating in Kansas should remain aware and educate themselves of federal and states laws pertaining to COVID-19 in these uncertain times. Navigating employment laws during these times can be particularly challenging; when in doubt, Kansas employers should consult an attorney for advice.