In July of 2013, the Court of Appeals of Kentucky heard where the Plaintiff alleged that the Defendant former employer had requested that she falsify business records in violation of public policy, and thus wrongfully terminated her. (See Fleming v. Flaherty & Collins, Inc., 2013 WL 3357977 (Ky. App. 2013)). In this case, the Plaintiff was hired by the defendant as a property manager in 2003. Later on she was promoted to regional property manger. Id. Plaintiff claims that she was advised to fluff her occupancy numbers. Id. In 2005 Plaintiff received several disciplinary warnings. Id. At that time she should have contact a Kentucky wrongful termination lawyer, but instead, she did not, and her time there got worse.
The defendant testified that one property revealed dirtiness and at another there was a shooting incident that Plaintiff failed to timely respond which were the reasons for her write ups. Defendant testified that they were going to terminate Plaintiff at that time but held off. Then there was also the issues that Plaintiff had failed to market her properties and did not obtain receipts for property expenses from her property managers in a timely manner. Id. The above were reasons that Defendant claims kept the Plaintiff’s properties with low occupancy rates. Id.
On anther occasion, Plaintiff alleges that she was told to send over to another sister property the prospective tenants so that they could supply them with the false documentation needed to pass the screen criteria for the ID and social security verifications. Id. Then there was another issue whereby the defendant claims that the Plaintiff did not follow up with approximately $10,000 in late fee charges. Id. Plaintiff was terminated on or about November 22, 2006. Id.
Plaintiff then hired a Kentucky wrongful termination lawyer to help her out. The Kentucky wrongful termination lawyer filed in district court a complaint alleging wrongful discharge, age discrimination and hostile work environment. Id. After filing her complaint, the Kentucky wrongful termination lawyer dropped the last two counts and the trial court dismissed the wrongful termination count. This appeal followed.
Kentucky is an at will state. But, there is wrongful discharge under a narrow public policy exception. Id. “An employee’s discharge is actionable when it was caused by 1) “the failure to refusal to violate a law in the course of employment” or 2) “the employee’s exercise of a right conferred by well established legislative enactment.”” (cites omitted). Plaintiff claims she was fired for refusing to violate Ky. Rev. State Section 517.050 which involves the falsifying of a business record. Id.
The issue of ‘fluffing’ her occupancy rates did not involve Statute 517.050 the court held. Next, as to the issue of falsifying social security numbers, the court did not agree that there was a finding of intent to defraud. There may have been an intent to defraud the IRS, but it did not satisfy the statute’s language. Further, the Court cited a case that held that “holding that a violation of federal regulations cannot support a wrongful discharge claim under Kentucky law.” (cites omitted). “Kentucky’s public policy exception has been found not to apply to public policy enunciated in federal law.” (cites omitted). And finally, there was never a “fear of prosecution” argument made before the trial court so that argument was moot at all levels. Even if Plaintiff thought she might be breaking the law and potentially opening herself up to criminal liability, she never argued that or established that claim so the trial court and appellate court never based their decisions on it.
Accordingly, the appellate court upheld the lower court’s ruling. The case was dismissed.
If you have been the subject of a Kentucky wrongful termination case, please call and speak to a Kentucky wrongful termination lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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