Representative Matters

Labor Matters 

• Union Free Counseling Counseling, employee training, and drafting of policies on positive employee relations strategies for employers to remain union-free.
• Union Organizing Campaigns Over two dozen union organizing campaigns, most involving elections overseen by the National Labor Relations Board. Litigation at the NLRB over issues such as appropriateness of bargaining units sought by unions, supervisor status of employees, and health care organization status of the employer. Election record: 16-5. Multiple NLRB hearings on objections to election results. Court review of NLRB orders.
• Collective Bargaining Labor negotiator for employers in the dairy, retail, healthcare, and waste management industries involving the United Steelworkers of America, the Oil, Chemical and Atomic Workers (OCAW), and the United Food & Commercial Workers (UFCW). Advisor to other employers in the manufacturing, healthcare, and mining industries in negotiations with the United Auto Workers, International Brotherhood of Teamsters, United Mine Workers of America, and other labor organizations.
• Strikes and Picketing Advise employers and train management employees in preparation for, and during, strikes. Obtained many restraining orders in state courts prohibiting violence and mass picketing during strikes, as well as contempt judgments against pickets who disobey court-issued restraining orders, and orders denying unemployment claims of striking employees and employees discharged for picket line misconduct. As necessary, enlisted the support of, and worked in cooperation with, law enforcement and private security personnel. Representative cases: Alltel, Inc, v. Communications Workers of America, 03-CI-00881 (Boyd Circuit Court, KY, 2003) (court issued restraining order against union and certain individuals during Kentucky strike involving more than 300 employees); White Lily Foods Company v. Bakery Workers Local 165, 3-504-03 (Knox Circuit Court, TN, 2003) (court issued restraining order prohibiting mass picketing and intimidation of non-strikers).
• Arbitrations Thirty-one grievance arbitration trials to date, pursuant to grievance/arbitration clauses in collective bargaining agreements. Record: 23-6-2. Favorable settlements for employers of other arbitration cases prior to trial.
• Unfair Labor Practice Cases Scores of unfair labor practice cases at the National Labor Relations Board and in the federal courts, including multiple NLRB trials of unfair labor practice charges. Both defense of employers and charges against unions, as well as NLRB compliance proceedings. Federal appellate court review of NLRB decisions and orders. Representative case: LWD, Inc. v. National Labor Relations Board, Case Nos. 01-2273, 01-2546 (6thCir. 2003) (federal court of appeals sided with employer and denied enforcement of NLRB's order holding in part that employer violated the law by laying off 32 employees after an NLRB election).

Health & Safety (OSHA)

• Represented employers in the healthcare, manufacturing, chemicals, natural resources, and mining industries in numerous cases before the Kentucky Occupational Safety & Health Review Commission. Issues litigated have included machine guarding, lockout/tagout, respirator training, trenching, fall protection, electrical hazards, powered industrial trucks, combustible dust, bloodborne pathogens, needlestick protection, heat stress, hazard communications, discrimination, training, documentation, classification of citations, and calculation of penalties.
• Regular contributor to the Kentucky OSHA Journal since October 2000. Articles have addressed topics such as workplace inspections by OSHA agents, search warrants, failure to abate violations, and employee misconduct, as well as health and safety topics such as ergonomics, needlestick regulations, trenching, heat stress, and fall protection.

Wage & Hour

• Defended employers in numerous wage and hour cases filed with the U.S. Department of Labor, the Kentucky Labor Cabinet, the Kentucky state courts, and the United States District Courts in multiple states, including complex class and collective actions. Issues in these cases have run the gamut: federal and state law, minimum wage, overtime, rest and meal breaks, "off the clock" work, preliminary and postliminary activity, on-call status, exempt/non-exempt status, bonuses, home workers, retaliation, sovereign immunity; public employer's rights under federal law, class certification; collective action certification, recordkeeping and notice posting. Recent case: Crawford, et al v. Lexington-Fayette Urban-County Government, 5:06-cv-299-JBC (U.S. District Court, E.D.Ky. 2006) (all putative state class action claims dismissed; federal claims settled).
• Advise employers how to comply with federal and state wage & hour law.

Wrongful Discharge and Retaliation

• Obtained judgments for employers in multiple cases involving alleged wrongful discharge in violation of public policy or in retaliation for exercising their rights. Representative cases: Robinson v. McKechnie Vehicle Components, Inc., 2007-CA-1886 (Kentucky Court of Appeals, 2008) (affirming summary judgment for employer in a workers' compensation retaliation case); Proffitt v. Owensboro Medical Health System, No. 05-CI-00743, (Daviess Circuit Court, 2005) (dismissal of complaint alleging wrongful discharge for complaining about violations of the federal Copyright Act); Cecil v. PNC Bank, N.A., 2001-CA-2084 (Kentucky Court of Appeals, 2001)(affirming dismissal of claim of alleged retaliation for complaining about sexual harassment).

Employment Discrimination and Harassment

• Successfully defended employers in many cases involving race, color, gender, and national origin discrimination, as well as sexual harassment. Representative cases: Hill, et al v. Corning, Inc., 03-6405 (Sixth Circuit Court of Appeals, 2003) (affirming summary judgment against six plaintiffs in a race discrimination case); American General Life & Accident Ins. Co. v. Hall, 74 S.W.3d 688 (Ky. 2002) (Kentucky Supreme Court affirmed summary judgment for employer in a sexual harassment case).

Family and Medical Leave Act

• Advise employers on compliance with the FMLA. Defense of FMLA complaints filed with the U.S. Department of Labor and the federal courts.

Non-Competition and Confidentiality Agreements

• Drafting and review of covenants-not-to compete and confidentiality agreements. Both prosecution and defense of many cases seeking enforcement of covenants not-to-compete. Representative cases: Andes Industries v. Blunt, CV2009-010953 (Maricopa County, AZ, 2009) (defense of attempt to enforce covenant); H&R Block v. Sheets, 06-cv-00023-DLB (U. S. District Court, E.D. Ky. 2006) (obtained injunction prohibiting former franchisee from competing); Lexmark International v. Dahlgren and Hewlett-Packard, Inc., 06-CI-261 (Fayette Cir. Ct. 2006) (defense of attempt to enforce covenant).

Employment Contracts

• Drafting and review of employment contracts, including severance agreements. Successful defense of claims for breach of employment contracts. Hufford v. Valvoline Oil Co., Kentucky Court of Appeals, 1990, (affirming dismissal of breach of contract claim); Childers v. Bradford National Life Insurance Co. Fayette Cir. Ct. 1989 (summary judgment dismissing breach of contract claim).

Discipline, Discharge, Reductions in Force

• Counsel employers seeking to discipline or discharge employees, and how to implement lawful reductions in force and related cost-saving measures such as furloughs, salary reductions, and reduced workweeks. Advice and strategies to comply with the WARN Act.

Unemployment Claims

• Numerous referee hearings dealing with the issue of discharge for misconduct and other issues, together with appeals of referee decisions to the Kentucky Unemployment Insurance Commission and circuit courts. Advice concerning options for paying unemployment insurance taxes.

Eminent Domain Matters

• Representation of landowners and leasehold owners, including the owners of minerals and mineral rights, in dozens of cases involving the taking, or attempt to take, property and easements through the power of eminent domain. Adverse government agencies have included the Kentucky Department of Highways, the United States Army Corps of Engineers, local municipal governments, and local utility districts. Two jury trials of these cases have resulted in very favorable judgments for our clients, including payment of substantial interest.

Honors

• Woodward/White's 2009 and 2010 editions of The Best Lawyers in America® in Labor and Employment Law
• Highest Professional Ratings by Martindale-Hubbell Law Directory
• Recognized by his peers in Kentucky's Super Lawyers 2007®
• Chambers USA: America's Leading Lawyers, in the area of Labor & Employment

Education

1984 - J.D., University of Kentucky College of Law; staff member of the Kentucky Law Journal

1981 - Ph.D., Brown University

1978 - A.M., Brown University

1975 - B.A., Bloomsburg University of Pennsylvania

Seminars

Mr. Miller is a frequent speaker on topics related to labor and employment law.  His seminars and presentations include:

• "Unionization and Union Avoidance," presentation at Fundamentals of Employment Law, Sterling Education Systems, Louisville, Kentucky, October 2009
• "Current Labor and Employment Issues in Blood Banking," Interim Meeting of America's Blood Centers, Santa Rosa, California, August 2009
• "The New FMLA Regulations," and "Military Leave under the FMLA," FMLA Master Class, M. Lee Smith Publishers, Louisville, Kentucky, April 2009
• "The Employee Free Choice Act," presentation at Blueprint for Change seminar sponsored by Wyatt, Tarrant & Combs, Lexington, Kentucky, March 2009
• "Responsive Pleadings," a recorded presentation for the University of Kentucky College of Law Continuing Legal Education Program, 2009
• "Covenants Not to Compete and Confidentiality Agreements," University of Kentucky College of Law 9^th Biennial Employment Law Institute, Lexington, Kentucky, June 2004
• "Protecting Your Organization from Costly Wage and Hour Violations," Council on Education in Management Seminar, Lexington, Kentucky, September 2003
• "Workforce Reductions and Other Employment Termination Issues," seminar presentation to clients of Wyatt, Tarrant & Combs, Bowling Green, Kentucky, March 2003
• "Basics of Wage and Hour Law," Lorman Education Services Seminar, Lexington, Kentucky, October 2001 and 2000
• "Arbitration and Mediation of Employment Disputes," Associated Industries of Kentucky, Louisville, Kentucky, July 2001
• "The Family and Medical Leave Act and Related State Laws," presented to management employees of a national manufacturing company client, 2001
• "Union Organizing Activity in Blood Banking," annual meeting of American Association of Blood Banks, Washington, D.C.
• "Facing a Renewed Union Challenge," Kentucky Chamber of Commerce, Lexington, Kentucky, February 2001
• "The Injured Worker: Framing the Issues and Coverages," University of Kentucky Employment Law Institute, Lexington, KY, 2000
• "Labor and Employment Aspects of Mine Closings," University of Kentucky Mineral Law Conference, Lexington, KY 1994

Publications

• Employment Law in Kentucky
• Responsive Pleadings
• UK/CLE Labor Law Issues

Professional Activities and Memberships

• Fayette County, Kentucky and American Bar Associations
• Past Secretary and President of the Labor and Employment Law Section of the Kentucky Bar Association

Admissions

• Kentucky State Bar
• U.S. Court of Appeals, Fifth and Sixth Circuits

Civic Involvement

• Board of Directors of the Kentucky Blood Center, 1999-present (Chair, 2002-2006)
• Board of Directors of the Bluegrass Chapter of the American Red Cross, 1998-2003 (Chair, 2002-2003)
• Board of Directors, Transit Authority of the Lexington-Fayette County Urban-County Government, 2007-present (Vice-Chair, 2008-2010, Chair, 2010-present)