Limits to the Class Action Device: The Kentucky Wages and Hours Act Does Not Permit a Class Action

Article | 103 KY. L. J. ONLINE 2 | July 17, 2015

Jeffrey A. Savarise and Timothy J. Weatherholt[1]

I. Introduction

Class action claims for unpaid wages have become pervasive in both state and federal courts. Plaintiff employment attorneys and the ever burgeoning class action law firms are filing these cases throughout the country, including in Kentucky. A wage and hour class action can be extremely lucrative from a financial standpoint for plaintiffs’ counsel. Many of these classes include hundreds, if not thousands, of class members. Assuming a one-third contingency fee, a plaintiff counsel who settles a typical wage and hour class action could easily earn a seven-figure fee.

The federal wage and hour law, the Fair Labor Standards Act (“FLSA”), provides for a class mechanism for wage claims – collective actions. However, individuals must “opt in” to the “class,” as opposed to the more traditional “opt out” class actions. Under 29 U.S.C. § 216(b) of the FLSA, a member of the class who is not named in the complaint is not a party unless he or she affirmatively “opts in” by filing a written consent-to-join with the court.[2] This has the obvious effect of limiting the recovery pool. Recent statistics show only around fifteen percent of litigants in federal collective actions actually “opt in” to the litigation.[3] The incentive for a plaintiff counsel to proceed in a state law class action – as opposed to a collective action under the federal law that requires litigants to affirmatively “opt in” to the case – is extremely high.

Fortunately, for many members of the plaintiffs’ bar who practice wage and hour cases, most states supplement the basic protections of the FLSA with their own wage and hour laws. Some, but not all of these state laws, permit the class action device. For instance, several state wage and hour statutes explicitly permit an action to be brought on behalf of others.[4] The wage and hour statutes in other states provide more general language that does not authorize, nor preclude, the use of the class action device.[5] In this situation, state courts will typically approve of the class action device.[6] In those cases, plaintiffs are basically limited to the remedy provided under the FLSA.

While this issue is settled in practically every state, either by clear statutory text or case law, the question of whether a Kentucky plaintiff can pursue a class action under Kentucky’s Wages and Hours Act (the “Kentucky Act”) remains unresolved.[7] The Kentucky Act is unique in that, on its face, for the reasons explained below, it does not appear to permit class actions. Yet, until recently, courts have taken no issue with plaintiffs pursuing class actions under the Kentucky Act.[8] In fact, it appears no employer/defendant had ever raised the issue prior to the authors of this note. This issue has serious potential consequences, not only due to the differences between “opt in” and “opt out” actions, but also because the statute of limitations under the Kentucky Act is five years[9] and the statute of limitations under the FLSA is only two years for non-willful violations.[10]

This note argues Kentucky courts should adhere to the plain language and other extrinsic sources that support the position that class actions are not viable under the Kentucky Act. In Part II, this note will discuss the brief history of KRS 337.385 of the Kentucky Act and a few of the relevant cases discussing how wage and hour claims may proceed. The note will then review the Kentucky Act’s plain language and compare Kentucky’s statutory language to language in similar, but distinct statutes – the FLSA and Kentucky’s statutes prohibiting wage discrimination based on sex. The note will then discuss the opposing view for why the Kentucky Act might not bar class actions. In Part III, this note will discuss the recent decision by the Kentucky Court of Appeals in which it stated, albeit in dicta, the Kentucky Act precludes class actions. In Part IV, the note will discuss why the Court of Appeals was correct, but why a more comprehensive opinion is needed. In Part V, the note will highlight another opinion which provides a roadmap for how this dispute can be resolved. The note will conclude by discussing how the Kentucky General Assembly, not the courts, provides the best opportunity to enable the plaintiffs’ bar to bring class actions under the Kentucky Act.

II. The Kentucky Act: Its History and Text, As Well As Its Similarities and Differences as Compared to Like Statutes

A.The Language of KRS 337.385 Has Remained Remarkably Consistent Over Time

KRS 337.385(1) was first adopted in 1974 and has changed remarkably little over time. The 1974 version provided as follows:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of this Act shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of this Act, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[11]

In 1978, KRS 337.385(1) was revised to read:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to [337.275 and] 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of KRS 337.020 to [337.275 and] 337.385, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[12]

In 2010, the language was modified to be gender neutral:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[13]

Finally, in 2013, KRS 337.385 was again revised, primarily to address forced labor, and subsection (1) was split into two sections:

(1) Except as provided in subsection (3) of this section, any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court.

(2) If, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[14]

Throughout these revisions, the essential substance of the last sentence – which now reads, “[s]uch action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves” – remained the same.

Between 1974 and 1986, there were only a few occasions where putative class actions reached the appellate level in published decisions. In Orms v. City of Louisville,[15] the issue on appeal concerned the application of Kentucky’s overtime compensation statute, KRS 337.285, to a City of Louisville policy that required its police officers to report fifteen minutes before they began their daily tour of duty.[16] The police officers sought to recover, in a class action, compensation for this time.[17] The Jefferson Circuit Court entered summary judgment for the City, and the Court of Appeals agreed, finding that the collective bargaining agreement at issue was controlling.[18]

In City of Louisville v. Gnagie,[19] the plaintiffs/employers, individually and as representatives of the Louisville Firefighters’ Association, sought compensation in a class action suit against the City, pursuant to KRS 337.285, for their fifteen-minute “roll call” prior to each shift.[20 ]Both the City and the employees moved for summary judgment in Jefferson Circuit Court on the issue of liability.[21] The trial court entered summary judgment for the City, holding that the “roll call” period was de minimis,[22] and therefore, non-compensable, but the Court of Appeals reversed the Jefferson Circuit Court and remanded the case for an evidentiary hearing to resolve perceived factual disputes regarding the nature of the work performed during “roll call” and to determine whether the firefighters were customarily released from duty prior to the end of their shifts to compensate for the “roll call” period.[23] The Kentucky Supreme Court reversed the Court of Appeals and affirmed the trial court.[24]

Given the procedural postures of Orms and Gnagie, each presented obvious issues tailor-made for the City of Louisville’s attempt at a swift resolution. While the City could have raised the argument that class actions are not viable under the Kentucky Act, it clearly had even stronger arguments at its disposal. Unfortunately for the advancement of the law, a pair of Kentucky Court of Appeals cases decided around the same time as Orms and Gnagie obviated the need to address the statutory language. Collectively, Early v. Campbell Fiscal Court[25] and Noel v. Season-Sash, Inc.[26] stand for the general proposition that the Kentucky Labor Cabinet had original and exclusive jurisdiction over claims brought for the recovery of minimum wage and overtime payments, i.e., there was no right to an original action in the circuit court.[27] The Supreme Court did not overrule these cases until 20 years later in Parts Depot, Inc. v. Beiswenger.[28] Only then were litigants permitted to pursue their wage claims either at the Kentucky Labor Cabinet or in a circuit court.[29]

Subsequent to the Supreme Court’s decision in Parts Depot, plaintiffs have brought class actions under the Kentucky Act in a number of cases.[30] This note contends that they lack the authority to do so, and defense practitioners, and to a lesser extent the courts, have missed the mark (at least, that is, until November 2013)[31] in failing to properly consider the meaning of the statutory language.

B. An Analysis Of The Plain Language Of KRS 337.385

1. How Kentucky Courts Analyze Statutes

The Kentucky Supreme Court has set forth the following rubric for how statutory language should be reviewed:

The seminal duty of a court in construing a statute is to effectuate the intent of the legislature. A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Thus, we are “to ascertain the intention of the legislature for words used in enacting statutes rather than surmising what may have been intended but was not expressed.

Thus, if a statute is clear and unambiguous and expresses the legislature’s intent, the statute must be applied as written. And absent an ambiguity, there is no need to resort to the rules of statutory construction in interpreting it. Statutes, of course, must be read as a whole and in context with other parts of the law.[32]

In Revenue Cabinet v. O’Daniel,[33] the Supreme Court similarly noted, ‘“[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.”’[34] Furthermore, in Lichtenstein v. Barbanel,[35] the Supreme Court remarked, “[i]f the statutory language is ambiguous, we will look to other sources to ascertain the legislature’s meaning, including legislative history.”[36]

2. Is KRS 337.385(1) of The Kentucky Act Ambiguous?

KRS 337.385 now provides that an employee or employees may sue “for and in behalf of himself, herself, or themselves.”[37] On its face, this language permits multiple individuals to pursue their claims in one proceeding, but not in a representative capacity – an employee or employees may sue only “for and in behalf of himself, herself, or themselves.”[38] The pronouns “himself,” “herself,” and “themselves” are reflexive pronouns, which always refer to, and are identical with, the subject of the sentence or clause.

The subject of the statutory text at issue is the “one (1) or more employees” who are maintaining an action in court.[39] The pronouns “himself,” “herself,” and “themselves” refer to the “one (1) or more employees” who are maintaining such an action. A grammatical reading of the passage is:

(i) any one employee may maintain an action for and in behalf of himself;

(ii) any one employee may maintain an action for and in behalf of herself; and

(iii) any two or more employees may maintain an action for and in behalf of themselves.

Of course, it is fair to wonder why the General Assembly chose this particular language. After all, the General Assembly could have simply said something akin to “class actions are not permitted under this statute.” The General Assembly’s choice of words makes sense, however, in light of the federal statute on which it was modeled.

C. A Comparison To Like Statutes

1. The FLSA’s Remedy Mechanism

Kentucky courts have recognized the similarities between the remedy mechanism of the Kentucky Act and that of the FLSA.[40] The Kentucky Act’s remedy mechanism is similar to that of the FLSA, but with one major distinction, as noted below:

(Kentucky Act):

“Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.”[41]

(FLSA):

“An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”[42]

2. Kentucky’s Wage Discrimination Because Of Sex Statute

In addition to the FLSA inference, there is an infrequently utilized section in KRS Chapter 337 that addresses wage discrimination based on sex.[43] In principal part, the anti-discrimination provision provides, “[n]o employer shall discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he or she pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility.”[44] The anti-discrimination provision is enforced by a subsequent provision providing, “[a]ction to recover the liability may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves and other employees similarly situated.”[45]

D. The Opposing View

Perhaps the most potent argument is that the language of the statute does not, in ordinary words, preclude class relief, e.g., “class actions may not be maintained under this section.” In Califano v. Yamasaki,[46] the U.S. Supreme Court considered whether a statute that provided, “[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . .”[47] The court found the use of the ambiguous phrase “any individual” did not express the clear congressional intent to preclude class actions.[48]

Another argument focused on the potential interplay between Kentucky Rule of Civil Procedure Rule (CR) 1 and 23. Rule 1 provides that the civil rules “govern procedure and practice in all actions of a civil nature . . . .”[49] In other words, there is a potential conflict between the judiciary’s adoption of civil rules permitting class actions and the legislature’s enactment of a statute that takes away the right to class actions. A number of other states have similar civil rules yet practically every state legislature, including Kentucky’s, has placed some form of a substantive restriction on the class action device.[50]

Finally, the fact that a number of Kentucky courts, primarily Kentucky federal courts, have considered claims under the Act without taking issue with the ability to pursue a class action under the Act lends support, however small, to the position that the Act permits class actions.[51]

III. The Kentucky Court of Appeals Weighs in, Albeit in Dicta

In 2013, the Kentucky Court of Appeals had occasion to consider the argument that the Kentucky Act precludes class actions.[52] It did so in the context of litigation that had spanned fifteen years between Toyota Motor Manufacturing, Inc. (”TMMK”), represented by the authors of this piece,[53] and employees/former employees of its paint and bumper paint departments who claimed they were not compensated for time spent putting on and taking off a paint suit and walking to and from their work processes.[54] The Plaintiffs pursued their case as a class action, and millions of dollars in damages were potentially at issue given that the class could number over 1,000 members of TMMK’s paint and bumper paint departments.[55] This potential exposure only increased in 2007 when the Scott Circuit Court reopened the judicial case that had been final since 2003, in light of Parts Depot.[56]

After a lengthy appellate process, the case returned to the Scott Circuit Court.[57] There, TMMK asserted the argument that the Kentucky Act does not provide for class actions, and, after the Scott Circuit Court denied its motion to dismiss on those grounds, re-asserted the argument in opposition to the Plaintiffs’ motion for class certification.[58] Once Plaintiffs’ motion was granted, TMMK was able to avail itself of a recent change in the civil rules that permitted litigants to make an interlocutory appeal of a grant or denial of class certification.[59]

The Kentucky Court of Appeals primarily addressed the point that it agreed with TMMK that the Scott Circuit Court should not have reopened the case.[60] In dicta, though, the Court of Appeals stated:

However, were we to reach the merits of this argument, we would agree with TMMK that the text of KRS 337.385(1) provides a clear expression of intent that class actions are not permitted . . . The statute permits more than one person to bring a cause of action under KRS 337.385(1) in the same case, but they may not do so in a representative capacity. Further, the effect of the “for and in behalf of” language is to limit the individuals who may participate in an action under the Act to those who actually bring the action. Thus, even if the trial court had properly reopened the case under CR 60.02(f), KRS 337.385(1) does not permit class actions and the trial court improperly certified a class.[61]

The very next month, the Jefferson Circuit Court likewise found in favor of Humana Inc., also represented by Fisher & Phillips, who argued the same position regarding the statutory language.[62] That opinion, however, is not binding on any other Kentucky court and did not substantively address the arguments outlined above.

IV. The Kentucky Court of Appeals Was Correct, But a More Comprehensive Opinion is Needed

While the opinions of the Court of Appeals and the Jefferson Circuit Court reached the correct result, neither opinion thoroughly reviewed all of the arguments supporting the position that the Kentucky Act does not permit class actions. The most critical argument is, of course, the plain text. None of the readings of KRS 337.385(1) outlined above supports a conclusion that employees may sue for and in behalf of anyone else, that is, for and in behalf of anyone who has not also commenced an “action” to assert his or her own rights under the Act. While more than one person may bring a cause of action under the Kentucky Act, the language of KRS 337.385(1), on its face, bars them from doing so in a representative capacity. Given Kentucky law holding that the plain text controls absent ambiguity, this should resolve the issue.

But given the support from extrinsic sources, it makes sense for a court to consider those sources as well. The Kentucky Act’s phrasing negating the class action device makes perfect sense when read in conjunction with the FLSA. Moreover, the Kentucky General Assembly adopted KRS 337.427, a section of the Kentucky Wage Discrimination Because of Sex statute, in 1966, eight years prior to its adoption of KRS 337.385.[63] Thus, it cannot be said the Kentucky General Assembly was unaware of the “for and in behalf of” language when it adopted KRS 337.385(1) in 1974.

It is fair to wonder, however, whether the 1974 General Assembly somehow inadvertently omitted the “and other employees similarly situated” language included in the FLSA. Of course, Kentucky has long-recognized the “primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.”[64] In Fox v. Grayson,[65] the Kentucky Supreme Court noted, “[w]e cannot dismiss the notable omission of language . . . as a mere accidental oversight. It is well settled law that a court may not add language to the written law to achieve a desired result.”[66] Similarly, in Rue v. Ky. Ret. Sys.,[67] the Kentucky Court of Appeals stated, “[w]e are not free to add words to statutory enactments in order to enlarge their scope beyond that which can be gleaned from a reading of the words used by the legislature.”[68]

The Kentucky Supreme Court has a history of adhering to the slight differences in language in related statutes – a point that could easily be highlighted in any opinion on the Kentucky Act. In Kentucky Department of Corrections v. McCullough,[69] the Kentucky Supreme Court considered two different provisions of the Kentucky Civil Rights Act. At issue was the availability of punitive damages, specified in one provision but not the other:

(Kentucky Civil Rights Act – Employment Discrimination):

In the employment discrimination context, permitting recovery for “actual damages sustained.”[70]

(Kentucky Civil Rights Act – Housing Discrimination):

In the housing discrimination context, permitting recovery for “punitive damages.”[71]

When faced with this obvious disparity in language, the Kentucky Supreme Court rejected the Court of Appeals’ “policy-oriented approach,” which allowed for recovery of punitive damages under the employment discrimination remedy provision of KRS 344.[72] Instead, the Court reversed and found, inter alia, that “in construing statutes it must be presumed that the Legislature intended something by what it attempted to do.”[73]

A more recent case provides another compelling example of the power of precise statutory language. In Griffin v. Rice,[74] the issue was who would receive the deceased’s estate, his mother or his wife.[75] The answer turned on the Kentucky Supreme Court’s interpretation of KRS 392.090(2), which provided that a spouse who voluntarily leaves the other and “lives in adultery” forfeits his or her right to an interest in the other’s estate of property.[76] The proof at trial showed that the deceased’s wife engaged in one act of sexual intercourse with another man, which happened to be the night prior to the deceased’s death.[77]

In concluding that the phrase “lives in adultery” requires proof of more than one sexual act, the Court noted Kentucky’s former fault-based divorce statute contained different phrasing depending upon the party seeking the divorce.[78] According to the prior statute – which while concededly dated and sexist is nevertheless instructive for this limited purpose – a husband or a wife could obtain a divorce on the grounds that the other was “living in adultery with another man or woman,” but, according to another provision, a husband could also obtain a divorce on the grounds of “adultery by the wife.”[79] In finding for the wife, Griffin focused on the difference in language and stated:

Had the General Assembly considered one instance of adultery sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property, it would have made this clear by employing different wording in the statute, such as “commits adultery” or “engages in adultery.” Another statute, in effect at the same time as the statute at issue, indicates the General Assembly was aware of the import of its phrasing and knew exactly how to distinguish between one adulterous act and multiple acts of adultery. . . . The language chosen by the General Assembly in the contemporaneous divorce statute makes clear the legislature was aware of the significance of its phrasing and was able, had it meant to do so, to employ language that indicated one act of adultery would be sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property.[80]

Taken together, McCullough and Griffin stand for the proposition that different word choices in closely related statutes must be given effect. The General Assembly clearly understands the import of even slight word changes, and the Supreme Court has read those words literally, regardless of the outcome. In Griffin, that approach arguably had real and negative consequences – rewarding the unfaithful wife at the expense of the deceased’s mother.

By contrast, there are no such negative consequences to the General Assembly’s choice to omit the critical and dispositive phrase “and other employees similarly situated.” Any individual who wants to pursue a claim under the Kentucky Act may do so, regardless of whether class actions are permitted. That has been, and will always be, the case. Employees simply will be unable to do so in any type of representative action.

In other words, the only individuals truly harmed by this argument are the plaintiffs’ bar. Ultimately, though, the plaintiffs’ bar could have the opportunity to alter this outcome, despite the plain language of the Kentucky Act.

V. The Court of Appeals Provided a Roadmap for How This Issue Should Be Resolved in an Earlier Case

In 2005, the Court of Appeals in City of Somerset v. Bell[81] correctly read a statute as providing for class actions, and later that same year, the General Assembly, disagreeing with that conclusion, amended the statute. In City of Somerset, the Court of Appeals cited a line of precedent spanning more than 70 years which interpreted the statute at issue in that case, KRS 134.590(6), and its predecessor statute, as not allowing for class relief because it provided “[n]o refund shall be made unless application is made in each case within two (2) years from the date payment was made.”[82]

City of Somerset noted that line of precedent was called into question due to a 1996 statutory amendment to KRS 134.590(6) which deleted the words “in each case.”[83] This amendment allowed the plaintiff taxpayers to argue the statute now permitted class actions.[84] The Court agreed with the taxpayers, citing Kentucky law providing, “[w]here a statute is amended or re-enacted in different language, it will not be presumed that the difference between the two statutes was due to oversight or inadvertence on the part of the Legislature. On the contrary, it will be presumed that the language was intentionally changed for the purpose of effecting a change in the law itself.”[85] Given this guidance, the court concluded:

Considering the historical significance of that phrase [in each case], beginning in the Swiss Oil case, we must conclude that the intent of the legislature was to amend that portion of the statute limiting refunds for ad valorem taxes to individual claims. Even if the change was unintentional, its effect was to alter key language of a statute, which, for some seventy years before the amendment, had been interpreted by the courts to limit tax refunds to individual claims.[86]

The General Assembly became aware of this result, and, later that very same year (2005), enacted new language to make clear its intent that class actions are not permissible.[87] The statute now reads, “[n]o refund shall be made unless each taxpayer individually applies . . .”[88]

City of Somerset provides a model for how statutes should be reviewed. The absence of the phrase “in each case” was critical and dispositive in that case. It would have been more than a little odd for the Court to deny the availability of the class action mechanism to the taxpayers in 2005, given how the statute read at that time. But the General Assembly did not want taxpayers to be able to proceed as a class, so it took away that ability through an amendment to the statute’s text. If the General Assembly believes class actions are appropriate under the Kentucky Act, it will presumably do likewise here, once a Kentucky court definitively decides this issue. Absent that, it would be inappropriate for the judiciary to read into the Kentucky Act what is not there – either by consideration of the plain language or from the context of similar statutes.


[1] Jeff Savarise and Tim Weatherholt are partners in the Louisville office of Fisher & Phillips LLP, a national labor and employment law firm representing employers. Jeff is a 1982 graduate of John Carroll University and a 1985 graduate of the University of Akron School of Law. Tim is a 2001 graduate of Transylvania University and a 2004 graduate of Vanderbilt Law School.

[2] Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977); 29 U.S.C. § 216(b) (2008).

[3] See, e.g., Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 292–94 (2008).

[4] See, e.g., Alaska Stat. § 23.10.110(b) (2012) (“An action to recover from the employer the wages and damages for which the employer is liable may be maintained in a competent court by an employee personally and for other employees similarly situated, or an employee may individually designate in writing an agent or representative to maintain an action for the employee.”); Haw. Rev. Stat. § 387-12(c) (2008) (“Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of oneself or themselves and other employees similarly situated, or the employee or employees may designate an agent or representative to maintain action for and in behalf of all employees similarly situated.”); N.H. Rev. Stat. Ann. 275:53(1) (2008) (“Action by an employee to recover unpaid wages and/or liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf or himself, or themselves, or such employee or employees may designate an agent or representative to maintain such action.”).

[5] See, e.g., Minn. Stat. § 177.27(8) (2006) (“An employee may bring a civil action seeking redress . . . .”).

[6] See, e.g., Braun v. Wal-Mart, Inc., No. 19-CO-01-9790, 2003 WL 22990114, at *3 (D. Minn. 2003) (certifying class in connection with working off the clock and through break and meal periods on breach of contract and other theories).

[7] The Kentucky Act provides in pertinent part: “Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.Ky. Rev. Stat. Ann. § 337.385(2) (West Supp. 2014).

[8] See. e.g., Whitlock v. FSL Mgt., LLC, No. 3:10CV-00562-JHM, 2012 WL 3274973, at *14 (W.D. Ky. 2012), Hughes, v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *7 (Ky. Ct. App. 2013); England v. Adv. Stores Co., Inc., 263 F.R.D. 423, 458 (W.D. Ky. 2009); Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. 2010).

[9] Ky. Rev. Stat. Ann. § 413.120(2) (2006).

[10] 29 U.S.C. § 255 (2011).

[11] Ky. Rev. Stat. Ann. § 337.385 (1974) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).

[12] Ky. Rev. Stat. Ann. § 337.385 (1978) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).

[13] Ky. Rev. Stat. Ann. § 337.385 (2010) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).

[14] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).

[15] Orms v. City of Louisville, 686 S.W.2d 464 (Ky. Ct. App. 1984).

[16] Id. at 465.

[17] Id.

[18 ] Id.

[19] City of Louisville v. Gnagie, 716 S.W.2d 236 (Ky. 1986).

[20] Id. at 237.

[21] Id. at 236–37.

[22] De minimis is a Latin expression meaning about minimal things. It is commonly used by courts as a basis to not count certain small increments of time and the beginning and end of a workday that may otherwise be compensable.

[23] Gnagie, 716 S.W.2d at 237.

[24] Id.

[25 ]Early v. Campbell Cnty. Fiscal Court, 690 S.W.2d 398 (Ky. Ct. App. 1985).

[26] Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky. Ct. App. 1986).

[27] See id. at 903 (To reiterate, the Commissioner of Labor has original jurisdiction, as held in the Early case, only in those wage and hour disputes in which the duty to provide the benefits sought by the claimant derives solely from the statute . . . .”).

[28] Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 356 (Ky. 2005).

[29] See id. at 361–62.

[30] See, e.g., Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. Oct. 25, 2012); Whitlock v. FSL Mgmt., LLC, No. 3:10-CV-00562-JHM, 2012 WL 3274973, at *1 (W.D. Ky. Aug. 10, 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. Aug. 12, 2010); England v. Advance Stores Co., 263 F.R.D. 423 (W.D. Ky. 2009); Hughes v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *1 (Ky. Ct. App. Sept. 6, 2013).

[31] See infra notes 52–63 and accompanying text.

[32 ]Hall v. Hospitality Res., 276 S.W.3d 775, 784 (Ky. 2008) (citations omitted).

[33] Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).

[34] Id. at 819 (citing Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent § 4.2, at 38 (2002)).

[35] Lichtenstein v. Barbanel, 322 S.W.3d 27 (Ky. 2010).

[36] Id. at 34–35 (citing MPM Financial Group Inc. v. Morton, 289 S.W.3d 193, 198 (Ky. 2009)).

[37] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).

[38] Id.

[39] Id.

[40] See Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 358 (Ky. 2005).

[41] Ky. Rev. Stat. Ann. § 337.385 (West 2014).

[42] 29 U.S.C. § 216 (2012) (emphasis added).

[43] Kentucky’s Wage Discrimination Because of Sex provisions are located at Ky. Rev. Stat. Ann §§ 337.420—337.433 (West 2014).

[44] Ky. Rev. Stat. Ann §§ 337.423(1) (West 2014).

[45] Ky. Rev. Stat. Ann §§ 337.427(2) (West 2014) (emphasis added).

[46] Califano v. Yamasaki, 442 U.S. 682 (1979).

[47] Id. at 698 n. 12.

[48] Id. at 700.

[49] Ky. R. Civ. P. 1(2).

[50] (Class Action not permitted—31 states) See, e.g., Ala. Code § 8-19-10(f) (2014); Ariz. Rev. Stat. Ann. § 33-712(C) (2014); Ark. Code Ann. § 4-87-103 (West 2014); Conn. Gen. Stat. § 36a-740 (West 2014); Fla. Stat. § 624.155(6) (West 2014); Ga. Code. Ann. § 7-4-21 (West 2014); Haw. Rev. Stat. § 477E-4(b) (West 2014); Idaho Code Ann. § 28-45-201(1) and (3) (West 2014); 740 Ill. Comp. Stat. 10/7(2) (West 2014); Iowa Code § 537.5203(1) (West 2014); Kan. Stat. Ann. § 50-634(b) (West 2014); Ky. Rev. Stat. 134.590(6) (West 2014); La. Rev. Stat. Ann. § 51:1409(A) (2014); Mich. Comp. Laws § 445.1611(1) (2014); Minn. Stat. § 325M.07 (2014); Miss. Code Ann. § 75-24-15(4) (West 2014); Mont. Code Ann. § 30-14-133(1) (West 2013); Neb. Rev. Stat. § 77-2793(1) (2014); N.H. Rev. Stat. Ann. § 359-H:4 (2014); N.J. Stat. Ann. § 46:10B-29(a)(2) (West 2014); N.C. Gen. Stat. § 75C-5 (2014); Okla. Stat. tit. 36 § 6595; Or. Rev. Stat. § 238.362(4)(a) (2014); 73 Pa. Cons. Stat. § 2208(d) (2014); R.I. Gen Laws § 15-7.2-5(b) (2014); S.C. Code Ann. § 40-39-160(1) (2013); S.D. Codified Laws § 10-47B-131.2 (2014); Tenn. Code Ann. § 56-47-108(a)(2) (West 2014); Tex. Bus. & Com. Code Ann. § 605.005 (West 2013); Utah Code Ann. § 13-37-203(3) (West 2014); Wash. Rev. Code § 63.60.070(3) (2014). (Class Action Limited – 15 states) See, e.g., Cal. Civ. Code § 1787.3(b) (West 2014); Col. Rev. Stat. § 6-1-113(2) (2014); Ind. Code 9-32-12-4(c) (2014); Me. Rev. Stat. tit. 32, § 11054(c)(2) (2014); Md. Code Ann. § 12-707(c) (West 2014); Mass. Gen. Laws ch. 140D, § 32(a)(2)(b) (2014); Mo. Rev. Stat. § 71.675(2) (2014); Nev. Rev. Stat. § 38.255(3)(b) (2014); N.M. Stat. Ann. § 58-16-15(B) (West 2014); N.Y. Gen. Oblig. Law § 5-702(a)(2) (McKinney 2014); Ohio Rev. Code Ann. § 1351.08(A)(2)(b)(ii) (West 2014); Va. Code Ann. § 8.01-316(A)(2) (West 2014); W. Va. Code § 6C-2-3(e)(2) (2014); Wis. Stat. § 426.110(3) (2013); Wyo. Stat. Ann. § 40-19-119(a)(iii) (2014).

[51] See Ky. Rev. Stat. Ann. § 413.120(2) (West 2014).

[52] Toyota Motor Mfg, Kentucky, Inc. v. Kelley, et al., No. 2012-CA-001508-ME, 2013 WL 6046079 (Ky. Ct. App. Nov. 15, 2013).

[53] As co-author Jeff Savarise tells the story, he locked himself in his office, determined to develop an argument that would allow TMMK to prevail in this case. When he emerged, he posited the heretofore novel theory that that Kentucky Act does not permit class actions. Just as in Orms and Gnagie, there were other arguments to present on appeal, but this novel argument provided an extra layer of security in the correctness of our position.

[54] TMMK, 2013 WL 6046079, at *1.

[55] Id.

[56] Id. at *2.

[57] Id. at *2.

[58] Id. at *3–4.

[59] Ky. R. Civ. P. 23.06, which became effective on January 1, 2011, provides, “[a]n order granting or denying class action certification is appealable within 10 days after the order is entered. . .”

[60] TMMK, 2013 WL 6046079, at *8–9.

[61] Id. at *9.

[62] See Brown v. Humana Inc. and Humana Ins. Co., No. 13-CI-002422 (Ky. Cir. Ct. Dec. 5, 2013).

[63] Ky. Rev. Stat. Ann. § 337.427 (West 1966).

[64] Smith v. Wedding, 303 S.W.2d 322, 323 (Ky. 1957) (citation omitted).

[65] Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010).

[66] Id. at 8.

[67] Rue v. Ky. Ret. Sys., 32 S.W.3d 87 (Ky. Ct. App. 2000).

[68] Id. at 89.

[69] Kentucky Department of Corrections v. McCullough, 123 S.W.3d 130 (Ky. 2003).

[70] Ky. Rev. Stat. Ann. § 344.450 (West 1974).

[71] Ky. Rev. Stat. Ann. § 344.660 (West 1991); Ky. Rev. Stat. Ann. § 344.665 (West 1992).

[72] McCullough, 123 S.W.3d at 139.

[73] Id. at 140 (emphasis added).

[74] Griffin v. Rice, 381 S.W.3d 198 (Ky. 2012).

[75] Id.at 200.

[76] Id. at 201.

[77] Id. at 199.

[78] Id. at 202–03.

[79] Id. at 202.

[80] Id. at 202–03.

[81] City of Somerset v. Bell, 156 S.W.3d 321 (Ky. Ct. App. 2005).

[82] Id. at 326 (citing Swiss Oil Corp. v. Shanks, 270 S.W. 478 (Ky. 1925); Bd. of Educ. of Fayette County v. Taulbee, 706 S.W.2d 827 (Ky. 1986); Bischoff v. City of Newport, 733 S.W.2d 762 (Ky. Ct. App. 1987)) (emphasis in original).

[83] Id. at 326.

[84] Id.

[85] Id. at 327 (citing Eversole v. Eversole, 185 S.W. 487, 489 (1916)).

[86] Id. at 326–27.

[87] Ky. Rev. Stat. Ann. § 134.590(6) (West 1992).

[88] Id. (Emphasis added).