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Legal Updates

Important Kansas Appellate Court Cases Decided June 4, 2019 (summarized by Kathleen S. Harvey, Associate Attorney)

Diana K. Hilburn v. Enerpipe Ltd., ___ Kan. ___, 2019 WL 2479464 (June 14, 2019)

The Kansas Supreme Court has issued a decision ruling that the noneconomic cap for damages in personal injury actions is facially unconstitutional. The case was brought by D.K.H. D.K.H. was injured in 2010 when a semi-truck collided with a car in which she was a passenger. A jury awarded D.K.H. $33,490.86 for medical expenses and $301.509.14 for noneconomic losses. However, D.K.H.’s award was reduced pursuant to K.S.A. 60-19a02, which placed a $250,000 cap on the maximum amount recoverable for noneconomic damages in personal injury actions. D.K.H. appealed, challenging the statute on the grounds that it violated Section 5 of the Kansas Constitution Bill of Rights. Section 5 states that “[t]he right of the trial by jury shall be inviolate.” The Kansas Supreme Court agreed with D.K.H. It held that the noneconomic damages cap under K.S.A. 60-19a02 violates the right protected by Section 5 because it intrudes upon the jury’s determination of the compensation owed personal injury plaintiffs to redress their injuries. This represents a departure from the court’s 2012 ruling in Miller v. Johnson, 295 Kan. 636 (2012), where it upheld the constitutionality of the cap.

State ex rel. Secretary v. Manson, ___ Kan. App. ___, 2019 WL 2479309 (June 14, 2019)

The Kansas Court of Appeals has issued a decision limiting a person’s ability to revoke a voluntary acknowledgement of paternity (VAP). A VAP “creates a permanent father and child relationship which can only be ended by court order.” Kansas law states that a person who wishes to revoke a VAP must do so before the child is one year old. However, the law also provides that a VAP merely creates a presumption of paternity which can be rebutted by clear and convincing evidence.

In the decision issued today, appellant T.M. executed a VAP acknowledging C.M. as his son because he believed he was C.M.’s father. Shortly after C.M.’s birth, T.M. discovered through a home genetic test kit he was not C.M.’s father. C.M. and his mother moved out of Manson’s home and Manson’s relationship with C.M. ceased. After moving out, C.M.’s mother applied for welfare benefits. The State requested child support for T.M. T.M. challenged the request on the basis that he was not C.M.’s biological father and asked the district court for genetic testing. The district court conducted a Ross hearing, which is a hearing that courts must conduct prior to ordering a genetic test to determine whether a presumed parent is a biological parent, and determined that genetic testing was not in C.M.’s best interests. The court concluded that T.M. should remain C.M.’s legal father. C.M. was two years old at the time.

The Court of Appeals held that if a man fails to revoke a VAP before the child turns one year old, then a permanent father and child relationship is created which cannot be rebutted. Because T.M. did not revoke the VAP before C.M. turned one year old, he became C.M.’s permanent legal father and any genetic test results were immaterial to that relationship. The district court did not need to hold a Ross hearing because there was no need for genetic testing. While the district court erred by conducting a Ross hearing, the Court of Appeals affirmed its ultimate decision maintaining T.M. as C.M.’s father. The court’s opinion contained language that VAP’s are intended to impose strict limitations on persons who execute them.

Older News

US court blocks overtime expansion pay rule for 4 million – On November 22, 2016, a Federal District Court Judge in Texas granted a preliminary injunction temporarily stopping the overtime rule from taking effect on December 1. If your business has already taken action, it may be hard for morale and other business reasons to change the reclassifications or raises. However, if nothing has taken effect yet, you may need legal counsel concerning whether to postpone those increases until the injunction is lifted or the issue of overtime is resolved.

Employers, don’t forget to let your employees vote! Kansas law provides that employees who do not have at least two consecutive nonworking hours on election day while the polls are open to vote, must be afforded time off to vote. The employee must be afforded two consecutive hours to vote without being penalized by his or her employer. Any time off to vote that coincides with the employee’s normal work hours should be with pay. For example, if the employee’s normal work hours are from 8 a.m. to 5 p.m. with a one hour lunch break, and the polls are open from 7 a.m. to 7 p.m., the employee may take time to vote from 7 a.m. to 9 a.m., taking one hour of paid leave. The employer may specify the particular time during the day which employees may leave to vote except the specified time shall not include any time during the regular lunch period. Intentionally obstructing an employee in his or her exercise of voting or imposing a penalty upon an employee for exercising his or her voting privilege is a class A misdemeanor. See K.S.A. 25-418. If you need legal advice, feel free to contact our firm to create or modify any leave policies regarding voting rights in the employment context or for employment law advice. To check on voting rights in other states, use this link. http://www.findlaw.com/voting-rights-law.html.

Does your employee handbook violate the National Labor Relations Act? On March 18, 2015, the National Labor Relations Board General Counsel, Richard Griffin, published a guidance memo on employee handbook policies. In it, he  distinguishes “good” policies from “bad” policies. A copy of the memo can be obtained here http://www.nlrb.gov/reports-guidance/general-counsel-memos. However, some of the examples of policies that are legal are very hard to distinguish from illegal policies, and many of the illegal examples are all too common in typical employee handbooks. Our firm can advise you on whether your employee handbook policies are legal, and our attorneys are experienced in drafting and editing employee handbook policies too.

Overtime regulations will likely be changing. The United States Department of Labor announced a proposed rule that would extend overtime protections to almost 5 million white collar workers during the initial year of implementation. The rule will increase the standard salary measurement level for determining whether an employee is exempt from overtime requirements, among other things. The Notice of Proposed Rulemaking was published on July 6, 2015, and it invited interested parties to submit written comments on the proposed rule at www.regulations.gov on or before September 4, 2015. You can find out more information and a helpful Fact Sheet about the proposed rule here http://www.dol.gov/whd/overtime/NPRM2015/factsheet.htm. Our firm can help you wade through current overtime regulations and answer your questions about the proposed regulations and how to prepare for the impact on your business.

Employment Law – Intern or Employee?

You might have heard a story on NPR recently about unpaid and low-paid interns feeling exploited and choosing to sue their employers.  Now is a good time for employers to review the U.S. Department of Labor Wage and Hour Division Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act, which provides information to help employers determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act. You can find the fact sheet here.

For more information and to help protect yourself from potential liability for back wages and other remedies, please feel free to contact our Firm.   We have represented a number of employers on employment law issues.