Labor and Employment Law

• Kentucky, 1996

• Externship, United States Department of Labor, Office of Administrative Law Judges
• Externship, National Labor Relations Board, Region 9
• Kentucky Circuit Court, Daviess County

• University of Cincinnati College of Law, J.D., 1996, Order of the Coif
• University of Kentucky, B.S. Accounting,1991, with high distinction

David has been recognized as a leading management side labor and employment lawyer in Kentucky.   He handles both traditional labor law and employment law matters.  He has successful first-chair jury and administrative trial experience, and has represented one of Kentucky’s largest employers in over 75 arbitration hearings.  He is a frequent educational speaker on topics including, for example, maintaining union-free status, best human resource practices, avoiding employment litigation, and wage and hour disputes. 

David was raised in Hurricane, West Virginia. He received a B.S. in accounting from the University of Kentucky in 1991 and then worked as a tax accountant for Arthur Andersen in Cincinnati, Ohio for two years. He thereafter attended the University of Cincinnati College of Law and graduated in 1996. He then became an associate in the labor and employment department of Brown Todd & Heyburn PLLC (predecessor firm of Frost Brown Todd LLC).  He became a member of the firm in 2002.

David lives in Oldham County with his wife and three children. Aside from being with his family, he enjoys spending his off time exercising, playing golf, and fishing.

Experience

Published Cases

Simpson v. United Parcel Service Co., ARB No. 06-065 (ARB 2008)(obtained dismissal of whistleblower claim)

IBT, Local 2727 v. United Parcel Service Co., 447 F.3d 491 (6th Cir. 2006)(obtained dismissal of alleged RLA “major” dispute)

United Parcel Service, Inc., 346 NLRB 484 (2006)(defended Section 8(a)(2) allegations)

Leonardi v. Freeman, et al., 2006 WL 2927255 (S.D. Ohio 2006)(obtained summary judgment of numerous causes of action against individual management officials)

Kimmel v. Progress Paint, 2003 WL 1226837 (Ky.App.Ct. 2003)(obtained summary judgment in wage and hour / breach of employment contract claim)

Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002)(obtained summary judgment from Section 1983 claim brought by former Kentucky State Police Commissioner against Kentucky Justice Cabinet)

3D Enterprises Contracting Corp., 334 NLRB 57 (2001)(defended refusal to hire / “salting” case).

Areas of Experience

Arbitration Experience: Served as 1st Chair in over 75 arbitration hearings covering issues ranging from discharge to subcontracting.

Collective Bargaining: Routinely advise and counsel employers regarding: (1) resolution of grievances; (2) obligations under collective bargaining agreements; and (3) the formation of collective bargaining agreements.

NLRB Experience: Responded to and obtained dismissal of over 100 Unfair Labor Practice Charges. Negotiated settlement of many other charges where merit was found.

Served as both 1st and 2nd Chairs in unfair labor practice trials.

Represented employers in R-Case matters such as appropriate unit hearings, election agreements, pre-election conferences, vote tallies, post-election objections.

Three month externship at NLRB, Region 9.

RLA Experience: Presented cases before System Boards of Adjustment. Have represented carrier in NMB election proceedings. Represented carrier in direct negotiations and NMB mediated negotiations. Defended alleged major dispute allegations.

Other Administrative Experience:   Routinly represents employers before a vareity of federal, state and local agencies, and have obtained dismissal of numerous discrimination charges.

Litigation Experience: Hase served as lead and secondary counsel in numerous pieces of employment related litigation, including claims of gender discrimination, disability discrimination, race discrimination, age discrimination, sexual harassment, wrongful termination, defamation, and breach of contract.

Investigations: Has conducted numerous internal investigations regarding alleged employee or supervisor misconduct, e.g. sexual harassment, workplace violence, race discrimination, etc.

Non-Competition Matters: Has drafted non-compete, non-solicitation, and confidentiality agreements. Has advised employers regarding the enforcement of the same type of agreements. Has enforced such agreements through injunction proceedings.

Training: Has trained numerous employee groups regarding various employment law matters, e.g. anti-harassment/discrimination, how to hire/fire employees, ADA compliance. Has conducted union avoidance training.

Advise and Counsel: Routinely advises and counsels employers regarding various employment law matters, e.g. hiring and firing decisions, response to employee complaints, employee dishonest matters, ADA compliance.

Wage & Hour: Has conducted exempt employee audits. Hashandled claims for back-pay and unpaid overtime.  Has advised clients regarding proper classification of employees, i.e. exempt or non-exempt, and wage payment issues.

Employment Agreements: Has drafted and reviewed numerous executive employment agreements.

Employee Handbooks: Has drafted and reviewed/revised numerous employee handbooks.

• Order of the Coif
• Selected for inclusion in Kentucky Super Lawyers®
• Kentucky Chamber of Commerce
• Human Resources & Labor Committee, 2007
• Peer Review Rated, Martindale-Hubbell®
• The Best Lawyers in America®, Labor and Employment, 2010-2012

• Kentucky Bar Association
• Louisville Bar Association

• ALP: If we purchase the assets and continue the business of a unionized company, do we have to recognize the union and assume an existing labor agreement?
• FLSA Amended To Accommodate Nursing Mothers
• EEOC Announces Over 45 Lawsuits in the Past Week
• Employees Who Took An Early Retirement Cash Incentive Are Not Entitled To Unemployment Insurance Benefits.
• Kentucky’s Minimum Wage Rate Will Increase July 1, 2009
• Union Membership in 2007: A Visual Essay
• DOL Clarifies Compensability for On-call Time
• Kentucky Supreme Court Affirms A Narrow Definition Of Being “Similarly Situated.”
• Claim For Sexual Orientation Discrimination Not Viable In Court
• Kentucky Supreme Court Underscores The Value Of Release Agreements

Past

Practice Aids

ADA Accommodation Flowchart^© - Author

Common Rules of Labor Contract Interpretation^© - Author

Books

The Developing Labor Law, Contributing Editor (5^th Ed. 2006).

How Arbitration Works, Contributing Editor (6^th Ed. 2003). 

The Evolving Employee Free Choice Act, Co-Author (Kentucky Chamber of Commerce, 2009).

Articles

ALP: What is the Employee Free Choice Act and why do labor unions so strongly support it? (October, 2008).

If we purchase the assets and continue the business of a unionized company, do we have to recognize the union and assume an existing labor agreement? Louisville Business First (April 25, 2008).

Overview of Selected 2006 NLRB Decisions (December, 2006).

The Termination Process, for presentation at seminar on Hiring & Firing (March, 2006).

Overview of Federal Wage and Hour Laws for presentation at Lorman Education Seminar (May 2005).

Employment lawsuits are expensive to defend and carry the potential for very large verdicts. How then can an employer protect itself from: (a) having to defend an employment lawsuit; and (b) losing in the event such a suit is filed? Louisville Business First (December 24, 2004).

Overtime Rules Updated and Clarified, FRANMAC News (A Quarterly Magazine for Taco Bell Franchisees) (June 2004).

Background Investigations For Employment Applicants, for presentation at seminar entitled, “Internal Investigations of Employment Issues In Kentucky” produced by Lorman Education Services (June 2002).

Some Legal And Work-Related Issues Raised By An Employer’s Intervention And/Or Failure To Intervene With An Employee Who Has A Drug Or Alcohol Addiction, for seminar presented by Intervention Resource Center, Inc. (April 2002).

Employers have the right to speak out against unions, The Louisville Courier-Journal (February 2002).

Exempt or non-exempt? Why is the FLSA so confusing & Legally devastating if your classification is wrong? Kentucky State Supplement, for presentation at seminar entitled Kentucky Personnel Law Update 2001 hosted by the Council on Education in Management (March 2001).

Sovereign Immunity In Kentucky, Co-author with and presented by Sheryl G. Snyder to lawyers from the Commonwealth of Kentucky, Justice Cabinet (September 2000).

Leave As A Reasonable Accommodation Under the Americans With Disabilities Act for presentation at seminar entitled “Time Off in Kentucky: State and Federal Laws on Employee Leave, Vacations and Holidays” produced by Lorman Education Services (July 14, 2000).

The AMA Has Issued an Ineffective, and Potentially Dangerous, Prescription, Kentucky Medical News, October 1999 (co-authored with D. Patton Pelfrey).

A Review of the ‘Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act’ Issued by the United States Equal Employment Opportunity Commission on March 1, 1999, for presentation at seminar entitled “Two Hot Issues in Employment Law” hosted by the Louisville Bar Association (July 1999).

Work Hours and Payment of Wages for presentment at seminar entitled “Wage and Hour Laws: Is Compliance Possible?” hosted by the Kentucky Chamber of Commerce (Spring 1998).

A Review of Lockouts, Recent Decisions Regarding Lockouts, and a Discussion of International Paper Co., 319 NLRB 1253, enf. denied, 115 F.3d 1045 (D.C. Cir. 1997) (co-author with Katie Wright and D. Patton Pelfrey and presented by D. Patton Pelfrey at the 1998 Mid-Winter Meeting of the ABA Committee on Development of the Law Under the National Labor Relations Act) (December 1997).

Recent Developments Concerning Union Security (Beck and its Progeny) (co-author with and presented by D. Patton Pelfrey at Conference hosted by the National Labor Relations Board, Region 9, and reproduced in The Best of Labor and Employment Law 1997 (Ohio CLE Institute Publications)) (Fall 1997).

Presentations

Presenter for the Kentucky Chamber of Commerce Webinar titled New Union Organizing Rights (October 2011)

Presenter at the 23rd Annual Kentucky Human Resources Update on Why Unions are Winning - What to Do (Presented by the Kentucky Chamber of Commerce, June 2011)

Presenter at Remaining Union-Free Under the NLRB (Presented by the Kentucky Chamber of Commerce, 2011).

Presenter at Remaining Union-Free in a Challenging Labor Environment (Presented by the Kentucky Chamber of Commerce, 2010).

Presenter at The Employee Free Choice Act - Understanding the Details (Presented by the Kentucky Chamber of Commerce, 2009).

Update on Legal Developments to Elizabethtown SHRM Chapter (July, 2007).

Lecture on Labor Law Activities to Louisville SHRM Chapter Study Group (December, 2006).

Update on Labor Law Activities, Indiana SHRM Chapter (December, 2006).

Union Success, Hosted by Associated Industries of Kentucky (May, 2005).

Lecture at FLSA Seminar sponsored by Lorman Education Services and presented in Lexington, Kentucky (May 2005).

Seminar entitled, “Internal Investigations of Employment Issues In Kentucky” produced by Lorman Education Services. (June 2002).

Seminar entitled, “Why Addiction Intervention Is Good Business,” produced by Intervention Resource Center, Inc. (April 2002).

Seminar entitled “Time Off in Kentucky: State and Federal Laws on Employee Leave, Vacations and Holidays” produced by Lorman Education Services (July 2000 and July 2001).

Seminar entitled Kentucky Personnel Law Update 2001 hosted by the Council on Education in Management (March 2001).

Seminar entitled ADA Update 2000 hosted by the Council on Education in Management (October 2000).

Lecture entitled “Overview of Legal Issues Related to Human Resources” as part of the Entrepreneurial Training Program hosted by the Greater Louisville Small Business Development Center (January 2000).

Seminar entitled “Two Hot Issues in Employment Law” hosted by the Louisville Bar Association (July 1999).

Present program entitled “How to Stay Out of Court” to a collection of approximately 35 client managers and supervisors (Summer 1999).

Lecture regarding the requirements of the Americans With Disabilities Act at seminar hosted by the Commonwealth of Kentucky (Summer 1999).

Seminar entitled “Wage and Hour Laws: Is Compliance Possible?” hosted by the Kentucky Chamber of Commerce. (Spring 1998 and Spring 1999).

Seminar entitled “Surviving the New Sexual Harassment Rulings” hosted by Greater Louisville, Inc. (December 1998).

Update on the Family Medical Leave Act at a CLE seminar hosted by the Louisville Bar Association (February 1998).