LABOR AND EMPLOYMENT DESK BOOK. USA KANSAS Foulston Siefkin LLP

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1 LABOR AND EMPLOYMENT DESK BOOK USA KANSAS Foulston Siefkin LLP CONTACT INFORMATION Jay M. Rector Foulston Siefkin LLP Do you have a plant closing law in your jurisdiction and if so, what does it require? (For U.S. jurisdictions, please answer: Is there a Baby WARN Act in your state and if so, what does it require?) No specific notification is required for private employers. Notification is required, however, if there will be layoffs or a closure of a governmental facility. See K.S.A (c). 2. Are there special rules on releases/waivers in your jurisdiction? Yes. Employees cannot set aside or otherwise waive any right created by the Kansas Wage Payment Act, K.S.A et seq. See K.S.A What are the equal employment opportunity/ non-discrimination categories in your jurisdiction (For U.S. jurisdictions, please answer: Are there protected categories beyond Title VII in your state?) Yes. Like federal law, the Kansas Act Against Discrimination, K.S.A et seq., ( KAAD ) makes it unlawful for an employer to discriminate on the basis of race, color, religion, national origin, sex, age or disability. In addition, the KAAD adds ancestry to the list of protected classes. The term ancestry refers to a predecessor in the family line of an individual. Kansas law defines employer as anyone with four or more employees. See K.S.A (b). Under the Kansas Age Discrimination in Employment Act, K.S.A et seq., employees 40 years of age and older are protected. Kansas law also prohibits employers from discriminating against employees who are members of the armed

2 forces or National Guard who are on active duty or in an active reserve unit. See K.S.A Also, employers are prohibited from discriminating against an employee on the basis of genetic screening or testing. See K.S.A (a) (9). Employers also may not discharge or otherwise discriminate against an employee for having his wages garnished, filing for bankruptcy or any other creditor proceeding. See K.S.A and What are the minimum wage and overtime rules (and exemptions) in your jurisdiction? The minimum wage in Kansas is $2.65 an hour, but it does not apply to any employers and employees who are covered under the FLSA. See K.S.A (a). If an employee works more than forty-six hours a week, he is entitled to not less than one and one-half times his wages for the hours worked over forty-six. See K.S.A There are exceptions to this overtime rule, however, including employees covered by the FLSA, car salespersons, and individuals working while in jail. See K.S.A (c). 5. Is there employment-at-will, or some other rule, in your jurisdiction? What are the exceptions? The general rule in Kansas regarding employment relationships is employment-at-will. Kansas, however, has long recognized that employers can waive their unfettered right to fire employees by entering into express contracts that condition discharge on the existence of just cause or particular forms of employee misconduct or that provided a specific duration of employment. Further, under certain circumstances, courts will find that a contract for employment is implied. See, e.g., Morriss v. Coleman Co., Inc., 241 Kan. 501 (1987) (employer s manual and oral statements from the employees supervisors created an implied contract that the employees could not be fired without just cause). Kansas also recognizes certain public policy exceptions to the employment-at-will doctrine and has created retaliatory discharge (and demotion) causes of action where an employee is discharged (or demoted) in retaliation for exercising his rights under workers compensation laws, and where an employee is discharged for reporting or threatening to report the employer s violation of laws, rules, or regulations pertaining to the public safety and general welfare (whistle-blowing). 6. What are the legal obligations upon terminating an employee in your jurisdiction? When an employer terminates an employee, Kansas law requires that the employer pay all earned wages to the employee no later than the next regular payday the employee would have been paid if still employed. See K.S.A (a). This payment must be made through the regular pay channels or, if the employee requests payment by mail, by mail postmarked within the deadline. 7. Are there any family and/or medical leave laws in your jurisdiction, and if so, what do they require? (For U.S. jurisdictions, please answer: Are there family and/or medical leave laws in your state beyond FMLA and if so, what do they require?) Administrative regulations provide that childbearing must be considered a justification for leave for female employees. Upon return within a reasonable time, such employees must be

3 placed in their original jobs or to positions of like status and pay. See K.A.R (d). An employer may also not discharge or in any manner discriminate against or retaliate against an employee who is a victim of domestic violence or sexual assault and who takes time off from work to obtain relief, including restraining orders and other injunctive relief. The employee must also be permitted time off to seek medical attention, obtain services from domestic violence programs, or make court appearances related to domestic violence. An employee must give reasonable advance notice of the intention to take time off where feasible. The employee must also provide certain documentation, such as a copy of the police report or restraining order, to the employer within 48 hours of returning from the requested time off. The employee may use any accrued paid leave or, if paid leave is unavailable to the employee, up to 8 days per calendar year of unpaid leave for these purposes. See K.S.A and Please list any miscellaneous, interesting or oddball laws in your jurisdiction, and state under what circumstances they pertain. Administrative regulations prohibit employment discrimination against married women. Specifically, the regulation prohibits employers from (1) firing a female employee who marries a coworker, and (2) refusing to hire a qualified female employee because she is married to a company employee. See K.A.R Kansas law gives an employer immunity from liability for disclosure of certain employment information about a current or former employee to a prospective employer. K.S.A a. Employers have absolute immunity for disclosing the date of the employee s employment, the pay level, the job description and duties, and the employee s wage history. a) Temporary Assignment for Injured Workers No. b) Breast feeding and Expressing Breast Milk No law specifically applicable to employers, but state law provides that a woman may breastfeed "in any place she has a right to be". See K.S.A. 65-1,248(b). c) Weekly Payment of Wages Under Kansas law, employer must pay all wages due at least once each calendar month, on regular paydays designated in advance. See K.S.A (a). d) Criminal History in Job Applications Kansas law provides that an employer cannot be held liable for decisions based on criminal history information, as long as the information reasonably bears on the individual s trustworthiness, or the safety or well-being of the employees or customers. See K.S.A. 22-

4 4710(f). Under K.S.A (h), in an application for employment, a person whose arrest records, conviction or diversion of a crime has been expunged may state that such person has never been arrested, convicted or diverted of such crime (with some exceptions for positions pertaining to social and rehabilitative services, the practice of law, firearms, private detectives, etc.). e) Notice of Electronic Surveillance No. Video surveillance in a private place, however, is prohibited when done for the purpose of viewing a person's body or undergarments without the person's knowledge or consent. See K.S.A and Does your jurisdiction have a law requiring employers to give employees access to, or a copy of, their personnel records? No. 10. Does your jurisdiction outlaw or restrict drug tests, alcohol tests, genetic tests or any other kind of testing? Kansas law restricts the use of genetic tests when making employment decisions. An employer cannot discriminate against an employee on the basis of genetic screening or tests. In addition, employers are prohibited from subjecting employees, whether directly or indirectly, to genetic screening or testing. See K.S.A (a) (9). There are no restrictions on the use of drug and alcohol tests. Kansas law recognizes employer policies which require drug and alcohol testing as a condition of employment. See, e.g., K.S.A Refusal to submit to drug or alcohol testing under certain circumstances will be either conclusive or prima facie evidence of misconduct or conduct in violation of a duty reasonably owed to the employer for purposes of denying unemployment benefits. See K.S.A (b) (2). 11. Does your jurisdiction have any special rules on the payment of sales commissions? Yes. The Commission Salespersons Act, K.S.A , et seq., protects commissions earned by independent contractor salespersons who, as non employees, are not covered by the Kansas Wage Payment Act. The Commission Salespersons Act provides that a principal must pay a commission salesperson s commissions earned through the last day of the contractual relationship within thirty days after the last day of the relationship. See K.S.A (a). This payment obligation exists whether the commission salesperson quits, resigns, or is discharged by the principal. The Act s payment obligations arise only upon termination of the relationship, however, so if a principal fails to pay earned commissions during the course of the relationship, the salesperson s options are either to seek recovery under general contract law or to quit and make a claim under the statute. If there is a dispute over the amount of earned commissions due, the principal must pay the earned commissions it believes in good faith to be due, without conditions and within the thirty-day payment period. See K.S.A (a).

5 12. What are the basic rules on enforcing non-competes and related agreements in your jurisdiction? A non-compete must be ancillary to an otherwise lawful contract (i.e. at-will employment, employment agreement, independent contractor agreement). The covenant must protect a legitimate business interest, and not merely prevent ordinary competition. Legitimate business interests include confidential information or trade secrets, customer contact or relationships, and the employer s expense in providing specialized training. The noncompete must be reasonable, including its time, subject matter, and territory (area) restrictions. The covenant must not impose an undue burden on the employee when compared to the harm to the employer in allowing the employee to compete. The covenant must not cause substantial injury to the public welfare. A covenant not to compete may be enforced literally (pursuant to its terms) with an injunction or as modified by the court. Damages for a breach of a covenant not to compete include liquidated damages and consequential damages.