Gatlin Voelker

As the prevalence of social media continues to grow in our everyday lives, it is easier than ever to be caught up in an online feud. Sometimes, these keyboard disputes can lead to serious conflicts in the courtroom. If you are accused of defamation, you need to know your rights and have an experienced lawyer on your side.

In Kentucky, a person can make a claim of defamation asserting that their public reputation has been tarnished. Specifically, to prevail, a party must prove: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Deane v. W. Ky. Univ., No. 2021-CA-0083-MR, 2022. Unpub. LEXIS 281 (Ky. Ct. App. 2022) citing Toler v. Süd-Chemie, Inc., 458 S.W.3d at 282 (Ky. 2015).

If a plaintiff can establish a claim of defamation, a defendant may pay significant financial damages.

Recognizing the need to provide defendants accused of defamation with additional protections, Kentucky’s General Assembly passed the Uniform Public Expression Protection Act (“UPEPA”) during the 2022 legislative session.

The UPEPA’s provisions apply to a cause of action asserted against a person based on the person’s:

“(a) Communication in a legislative, executive, judicial, administrative, or other governmental proceeding;

(b) Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or

(c) Exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, as guaranteed by the United States Constitution or Kentucky Constitution, on a matter of public concern.”.

Most claims in which the UPEPA would provide protections against would fall under the third category of speech involving matters “of public concern”. The act defines a “matter of public concern” as “a statement or activity regarding: (a) A public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; (b) A matter of political, social, or other interest to the community; or (c) A subject of concern to the public;”.

If a defendant can demonstrate that the UPEPA applies to their speech, they will be afforded various protections such as a stay of discovery proceedings, expedited review, and a heightened standard of review.

attorney Sebastian Torres talks through a defamation law case with a colleague

Finding yourself or your business subjected to a defamation action can be a time-consuming and complex situation. The law related to speech is evolving every day in both legislatures and courts. Attorney Sebastian Torres has experience defending clients against defamation actions in Kentucky. If you are interested in discussing your matter with Sebastian, call Gatlin Voelker at (859) 781-9100.

Grandparents have a special relationship with their grandchildren. The Kentucky General Assembly recognized the importance of this relationship by codifying the right for Grandparents to seek visitation with their grandchildren in KRS 405.021 titled “Reasonable Visitation Rights to Grandparents.” The statute provides that Grandparents may petition the Circuit Court where the grandchild resides to request visitation rights.

However, this right is not immediate, and like most issues concerning child custody and visitation, the best interest of the child standard prevails. One may ask how is it not in the best interest of the child to not have a relationship with their grandparents who are ready and willing to provide their time and affection to the child, but Kentucky Courts have set forth specific standards to determine if granting visitation to a Grandparent is in the best interest of the child.

Grandparent holding child wondering about grandparents visitation rights in Kentucky

The factors relevant to determining whether grandparent visitation is in the child’s best interest despite such visitation being against the parent’s wishes include:

  1. the nature and stability of the relationship between the child and the grandparent seeking visitation;
  2. the amount of time the grandparent and child spent together;
  3. the potential detriments and benefits to the child from granting visitation;
  4. the effect granting visitation would have on the child’s relationship with the parents;
  5. the physical and emotional health of all the adults involved, parents and grandparents alike;
  6. the stability of the child’s living and schooling arrangements;
  7. the wishes and preferences of the child; and
  8. the motivation of the adults participating in the grandparent visitation proceedings. Morton v. Tipton, 569 S.W.3d 388, 395 (Ky. 2019).

Therefore, if you are considering petitioning for rights as a grandparent, you must look not only how you plan to cultivate a relationship with your grandchild, but also your previous relationship with said child.

Lastly, grandparents who have lost their own child, who was a parent to their grandchild are afforded additional rights under the statute. In these cases, there is a rebuttable presumption that visitation with the grandchild is in the best interest of the grandchild as long as the grandparent can prove a pre-existing significant and viable relationship with the child.

A viable relationship specifically requires a showing of one of the following:

  • the grandchild resided with the grandparent for six consecutive months,
  • the grandparent was the caregiver of the grandchild on a regular basis for six months,
  • the grandparent had frequent or regular contact with the child for twelve months,
  • or there are facts that show that the loss of the relationship would cause the grandchild harm.

Alexandria Kerns is experienced in fighting for grandparent visitation rights in Kentucky. If you are interested in discussing your matter with Alexandria, call Gatlin Voelker to set up a consultation today.

The plethora of discussions flooding the internet on non-disclosure agreements (NDA’S) in sexual harassment/sexual assault cases have led to some false assumptions. Let’s clear up some of them.  

First, what is an NDA?

  In some jobs, employment is contingent on signing an NDA up front, which prohibits an employee from publicly disparaging their employer. The concept of this type of NDA is problematic, mostly because it is unfair for the employer to make such an NDA a condition of employment. The employee does not freely agree to this NDA, and is usually not represented by counsel.   This article addresses the other type of NDA’s, the ones our firm most often comes across in the settlement of a discrimination case. Although it is generally understood that this type of NDA protects the employer from disparagement and from public knowledge of claims against them, NDA’s cannot prevent an employee from bringing claims of illegal conduct to certain government agencies, including the Equal Employment Opportunity Commission.   Not all NDA’s are alike, and the complexities range from a simple agreement that the victim not disclose the amount of a settlement, to a more complex mutual agreement that various involved parties not discuss any aspect of the facts underlying the victim’s claim. BREAKING THE MYTHS OF NDA’S _sexual harassment What is less understood about the NDA is that it often plays a very important role in protecting victims of harassment and their families, particularly where it helps them move on in their career, sparing them the embarrassment of disclosing the very private details of their harassment or assault.  It lets them accept a private settlement in an amount best for them, while allowing both parties to move forward without attacking each other for past behavior.   Our firm’s role is to always protect our client’s interests, and if they seek the protections of such an agreement, then we help compose the language of an NDA that works best for them.  

Breaking an NDA

  Given the complexities of the NDA’s protections, the recent posturing by various politicians that it would be “easy” for a company owner to “release” a victim from her NDA is simply not true. Also misguided are the various state legislators who have called for a total ban on NDA’s in sexual harassment cases.   First and foremost, the victim usually doesn’t want the release of an NDA that references any facts of their very private and usually embarrassing story of assault. Even if the NDA itself does not contain such details, the language it does contain would certainly raise a lot of personal questions about the details.   Moreover, putting a victim on the spot to publicly release an NDA is more than problematic to the victim for a myriad of other reasons. A victim may not want to share even the basic fact that they asserted a claim, or that they made a settlement with the company.  Certainly, it is their right to keep those facts private, not only from a new employer, but also from co-workers, friends, and sometimes even from their spouse and children. It is generally not something they would want the media, social media, and general public to learn. Significantly, at the time they entered the NDA, they know they made the very difficult choice of a confidential settlement rather than a public outing of the company’s illegal behavior. Having to be shamed for that difficult choice years later is not something they usually seek.   Lastly, even in the unusual circumstance where a victim does want to be released from an NDA, such “release” by the company can also be a challenging concept. Since the company’s Board, its Shareholders, and its Executives are all changeable over a term of several years, it may be impossible for that organization to obtain the permission of all the parties involved.   No one can really anticipate all the issues that may arise under such circumstances of the “release” of a victim from his or her NDA. It’s a bargain that was struck under the existing facts of the time, and a later public disclosure can make those facts difficult to explain or justify.  If a party willingly enters an NDA under circumstances of settlement, and is represented by competent counsel, it is difficult to justify “releasing” it years later.
People often assume that only those in the lower or middle rungs of a business or organization suffer discrimination, harassment and unfair treatment. However, even executives and people in jobs that require considerable education and skills can find themselves the victims of unfair and even illegal employment practices. Sometimes, no matter how accomplished or well-performing an employee is, all that some others can see is their gender, race, religion, nationality or other characteristics. That can make them the target of actions that can compromise their ability to do their job and limit their career and salary opportunities.

The former CFO was terminated after filing a salary complaint

Here in Kentucky, we’ve just seen a former University of Kentucky (UK) official awarded $1.75 million for wrongful termination. The man had been the chief financial officer (CFO) of UK HealthCare and Senior VP for Health Affairs. The former CFO, who is from Guatemala, worked for the university for eight years. During that time, he received numerous promotions. Eventually, he was earning nearly $480,000 a year. However, he said that his pay was lower than appropriate for his position — and lower than U.S.-born officials at the university. When he filed a complaint about his salary, he was terminated.

University reportedly offered him a $50,000 settlement

When he took legal action, his attorney says that UK offered to settle the case for just $50,000. The man, who now is at the University of Massachusetts, took his case to court and prevailed this month. It took less than an hour of deliberation after a three-day trial for a jury to decide to award him $1.75 million. A UK spokesperson responded by saying, “We respectfully disagree with the decision reached yesterday, but will need time to further review before making any substantive comment.” It can be easy to buy into excuses from an employer for why you are not being paid fairly. It can also be easy to be persuaded that you’re being paranoid for believing that the unfair treatment you’re receiving is because of who you are. That’s why if you believe that you’ve been wronged by an employer, it’s wise to seek legal guidance to determine whether you have a case.
On June 27, 2019, the Kentucky Pregnant Workers Act (“the Act”) took effect for the purpose of protecting all pregnant workers and ensuring they have equal access to safe working conditions. The Act, which amended the Kentucky Civil Rights Act, protects employees by extending existing protections against retaliation and employment discrimination to cover discrimination based on an employee’s pregnancy, childbirth, and other related medical conditions. Other related medical conditions include, but are not limited to, lactation or the need to express breast milk for a nursing child. What Are Reasonable Accommodations for Pregnancy? The most significant part of the Act is that it requires employers to provide reasonable accommodations to employees who are limited due to pregnancy, childbirth, and related medical conditions. An employer must provide these accommodations unless it would impose an undue hardship on the employer. The Act mandates this requirement on employers with 15 or more employees in the State of Kentucky, in each of 20 or more calendar weeks in the current or preceding calendar year.[1] The Act provided examples of what reasonable accommodations may include, such as: more frequent or longer breaks; time off to recover from childbirth; acquisition or modification of equipment; appropriate seating; temporary transfer to a less strenuous or less hazardous position; job restructuring; light duty; modified work schedule; and private space, other than a restroom, for expressing breast milk. However, there are exceptions to this rule for employers. The first exception to the Act is that it does not cover employers with fewer than 15 employees. Therefore, only employers with 15 or more employees are required to provide accommodations under the Act. Exceptions to Reasonable Accommodations for Pregnancy Additionally, there is a second exception for employers if they can prove that offering an accommodation imposes an “undue hardship” on the business. Factors that Courts consider when addressing whether an undue hardship exists include the duration of the requested accommodation and whether the employer has a policy or has provided similar accommodations to other employees. If the employer has provided a similar accommodation or if they have a policy stating that they do provide such accommodation, then a rebuttable presumption that the accommodation is reasonable and not unduly burdensome is created. In addition to the mandate to provide reasonable accommodations unless it creates an undue hardship, the statute requires employers to engage their employees in a timely, good faith, and interactive process to determine the best accommodation for the pregnant or lactating employee. Lastly, the Act bars employers from forcing an employee to take leave time if another reasonable accommodation can be made which allows the employee to continue to work. The mandate to provide reasonable accommodations is just one aspect of the Act. Employers must post a notice of the new law and provide written notice of an employee’s rights under the Act. These rights include all employee’s rights to be free from discrimination based on pregnancy, childbirth, or other related medical conditions and their right to be reasonably accommodated for such limitations. If you have more specific questions or concerns, contact an attorney for further advice on your potential claim. Our attorneys are always available to hear your story and answer any other questions you may have regarding what we know to be this very difficult time. Call our office at 859-781-9100 to speak with an attorney or to schedule an appointment. [1] Although the reasonable accommodation requirement applies to employers with a minimum of 15 employees, the Act did not change the definition of “employer” under the Kentucky Civil Rights Act. Therefore, employers with at least 8 employees must still abide by the Act’s anti-discrimination and retaliation provisions.

Two of the most popular business structures today are limited liability companies (LLC’s) and sole proprietorships. An LLC is simple to set up and easy to maintain while both LLC’s and sole proprietorships offer various benefits. However, if you are deciding between the two, it is often the case that the benefits of an LLC surpass those of a sole proprietorship.

An LLC is a business structure that is recognized at the state level but has possible federal tax implications. In some ways an LLC mirrors a corporation and in some ways it resembles a sole proprietorship. An LLC is characterized by a flexible business structure, legal protection of the owner’s personal assets, and possible tax advantages.

A sole proprietorship is the simplest business structure. In a sole proprietorship, there is one owner whose personal assets are not distinct from their business assets. It is essentially equivalent to the single owner, and is formed by the act of doing business. There are no state forms or filing requirements other than taxes.

Every business decision you make includes a set of objective facts applied to a subjective situation. In many scenarios, an LLC ends up offering more benefits for a small business than a sole proprietorship, but it always depends.

That being said, some of the typical benefits of LLC’s include the following.

Taxes. When it comes to taxation for LLC’s and sole proprietorships, there are some similarities, but also a few important differences in key categories:

  • Double taxation. Both LLC’s and sole proprietorships avoid the double taxation that corporations undergo; however, depending on your individual tax rates, it may make sense to be taxed at the corporate level.  Always consult with a tax professional. This is because the IRS considers both business structures to be “pass-through entities,” meaning that any business income is reported through the owner’s (or owners’) individual tax return rather than a separate business return. An LLC enjoys this privilege because it is only recognized at the state level as a registered business; federally, an LLC is recognized as a sole proprietorship.
  • S corp filing. A sole proprietorship does not have the option to file as an S corporation, while an LLC can elect to file as a partnership or corporation or be a disregarded entity. Depending on the individual situation, this flexibility may result in overall tax savings for the LLC.
  • Self-employment tax. Both LLC’s and sole proprietorships are subject to self-employment tax, which can be high. However, some self-employment taxes can be reduced for higher wage earners.

Funding. The flexibility of an LLC will encourage funding by investors. An investor will be able to gain ownership interest without the risk of liability. If you plan to expand ownership or get a loan, an LLC will work better for you in most cases.

Formation and Legal Requirements. It doesn’t get easier than creating a sole proprietorship, but LLC’s are also easy to start and maintain. Both require little paperwork, and most states have minimal regulations for operating an LLC (for example, you are not required to have regular shareholder meetings).

Looking to start your own business but not sure where to begin? Our experienced business attorneys are here for you. Contact us to set up an appointment to discuss your goals and create a plan.

Ownership. This may seem like an obvious difference, but in a sole proprietorship, there is just one owner, whereas an LLC can have one or more owners. There is quite a bit of flexibility allowed by an LLC, since it can be run by either the owner or owners (called “members”), or by managers (elected by members). There are also multiple leadership structures available to an LLC, so you can keep it simple or model it off a corporation with a board of directors.

Liability. This is perhaps the most significant area of concern when it comes to sole proprietorships, and it is often the area where LLC’s carry the most weight in a decision between the two structures. There is potentially a lot of risk associated with sole proprietorships due to the following:

  • Personal loss. A sole proprietorship offers no separation of business and personal assets; this means if you end up in debt or you are being sued, your personal assets can easily be attacked and lost. Even if you have to file bankruptcy, your personal assets will be affected.
  • Termination of the business. If a sole proprietor passes away or becomes unable to run the business, the business will be terminated by default.

To mitigate these concerns, a sole proprietor can purchase business insurance appropriate for their industry. While it can be expensive and won’t solve the issue entirely, it is worth considering if you strongly feel a sole proprietorship is right for you.

Overall, the benefits of an LLC outweigh a sole proprietorship in this area. With an LLC, if you are sued or dealing with debt, your personal assets will be protected as long as you didn’t act fraudulently, unethically, or irresponsibly in the events leading up to the lawsuit or debt.

Your industry. Perhaps if you started a neighborhood lawn care business or work as a freelance blogger, a sole proprietorship will make more sense for you because you don’t have as pressing a need for the benefits of an LLC. On the other hand, if your business carries inventory or you are in an industry that is more likely to be sued (such as construction), an LLC is probably going to be a wiser decision for you.

Your ownership plan. If you plan to bring on partners or hire employees, an LLC typically offers better protection and tax advantages.

Your goals for your business. Owners who wish to expand their business down the line, especially if it’s a long-term expansion plan, should seriously consider forming an LLC.

The bottom line: In most cases, an LLC is going to be a better choice for a business due to the asset protection, flexibility, and tax advantages it provides, but it does depend on your unique situation. Before making any major business decision, it’s best to consult with an attorney first to understand your options and move forward in the best way for your business.

Wondering whether an LLC or sole proprietorship is right for you? Get in touch with one of our business attorneys today. We are business owners ourselves, so we understand how much your business means to you and how important it is to make the best decisions.