1. What legal protection does Kentucky provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
Kentucky recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that is contrary to a fundamental and well-defined public policy. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the discharge violates this public policy.
To determine what constitutes public policy, Kentucky courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Kentucky statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Kentucky's public policy. In both situations, employees are protected from retaliatory discharge.
Statutory Protections
In addition, the Kentucky Legislature has adopted narrow statutory protections for certain activities. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination (including discrimination against disabled persons), medical assistance fraud, minimum wage, mining, occupational safety and health, wage discrimination because of sex (equal pay), and workers' compensation.
Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that is contrary to a well-established and fundamental public policy. Specifically, employees are protected from retaliation for the following protected activities:
- Refusing to violate the law in the course of employment
- Exercising a well-established right (such as filing a workers' compensation claim)
Thus, while Kentucky courts provide employees with some protection, this protection is of very limited use to whistleblowers.
Statutory Protections
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawfully discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing concerning unlawful discrimination under Kentucky's civil rights laws. Technically, the statute prohibits only conspiracies by two or more persons to retaliate against an employee for this reason. Ky. Rev. Stat. Ann. § 344.280
Discrimination - Disabled Persons: Under the Equal Opportunities Act, an employee may not be discharged (or discriminated against) in retaliation for opposing an employment practice that unlawfully discriminates against disabled persons. Nor may an employee be discharged (or discriminated against) in retaliation for filing a charge, testifying, assisting, or participating in an investigation, lawsuit, proceeding, or hearing concerning unlawful discrimination against disabled persons. Ky. Rev. Stat. Ann. § 207.170(1).
Medical Assistance Fraud: An employee may not be discharged (or discriminated against) in retaliation for filing a report, or testifying in a proceeding concerning fraud on a state-run medical assistance program (State Medicaid Program). Ky. Rev. Stat. Ann. § 205.8465(3).
Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, or testifying in a proceeding concerning a violation of the state's minimum wage laws. An employer may be assessed a civil penalty of up to $1,000 per violation. Ky. Rev. Stat. Ann. § 337.990(9).
Mining: An employee may not be discharged (or discriminated against) in retaliation for testifying or failing to testify at a hearing before the Department of Natural Resources concerning mining. Ky. Rev. Stat. Ann. § 351.030.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testify in a proceeding, or exercising a right concerning Kentucky's occupational safety and health laws. Ky. Rev. Stat. Ann. § 338.121(3).
Public Employees: Public employees may not be retaliated against for disclosing violations of law. Ky. Rev. Stat. § 61.102.
Wage Discrimination Because of Sex (Equal Pay):s An employee may not be discharged (or discriminated against) in retaliation for assisting in the enforcement of laws prohibiting wage discrimination on the basis of the sex. Ky. Rev. Stat. Ann. § 337.423(4).
Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing and pursuing a workers' compensation claim. Ky. Rev. Stat. Ann. § 342.197.
3. How do I file a whistleblower or retaliation claim in Kentucky?
Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. An employee must file the lawsuit within 5 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. Ky. Rev. Stat. Ann. § 413.120.
Discrimination: An employee may file a complaint with the Kentucky Commission on Human Rights (KCHR). The complaint must be filed within 180 days of the retaliatory action. KCHR will investigate and may file a lawsuit on your behalf. If you believe you have a claim, you should contact KCHR immediately at:
Kentucky Commission on Human Rights
332 West Broadway, Suite 700
Louisville, Kentucky 40202
Phone: 502-595-4024
Toll-Free: 1-800-292-5566
TDD: 502-595-4048
Fax: 502-595-4801
Email: kchr.mail@ky.gov
KCHR has made a complaint form available on their web site.
Alternatively, an employee may file a lawsuit in an appropriate court. If you choose to file a lawsuit, you should contact a lawyer.
Discrimination - Disabled Persons: An employee may file a complaint with the Kentucky Department of Labor, Office of Workplace Standards, Division of Employment Standards, Apprenticeship and Training. Alternatively, an employee may file a lawsuit in an appropriate court. If a lawsuit is filed, the employee must first notify the executive director of the Office of Workplace Standards 30 days before the lawsuit is filed. The Office of Workplace Standards can be reached at:
Office of Workplace Standards
1047 U.S. Highway 127 S, Suite 4
Frankfort, KY 40601
Phone: (502) 564-3070
E-mail: ky.wkstds@ky.gov
Occupational Safety and Health: An employee may file a complaint with the Department of Labor, Office of Occupational Safety and Health (OSH). The complaint must be filed within a "reasonable time" of the retaliatory action. OSH will investigate and may order reinstatement. If you believe you have a claim, you should contact OSH immediately.
OSH has made a discrimination complaint form available on its web site. Completed forms may be mailed to:
Environmental and Public Protection Cabinet
Department of Labor
Office of Occupational Safety and Health
1047 US HWY 127 S, Suite 4
Frankfort, KY 40601
Phone: (502) 564-3070 ext 213
Fax: (502) 696-3917
Public Employees: An employee may file a claim within ninety (90) days of the retaliatory action. The claim should be filed in the appropriate court. Ky. Rev. Stat. § 61.103.
Wage Discrimination: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 6 months of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately. Ky. Rev. Stat. Ann. § 337.430.