Kansas Employment Law Survey
Elinor P. Schroeder* & Pamela V. Keller"
I. INTRODUCTION
This Survey of Kansas employment law covers approximately the
last five years. It focuses primarily on Kansas Supreme Court and
Kansas Court of Appeals decisions, but it also includes some decisions of
federal courts in Kansas applying Kansas law. Topics include the torts
of retaliatory discharge, intentional infliction of emotional distress, and
negligent hiring; implied and express contracts; noncompetition
covenants and confidentiality agreements; arbitration agreements; and
wage payment.
II. RETALIATORY DISCHARGE
A. Firings Related to Exercise of Rights Under the Worker's
Compensation Statute
As all Kansas employment lawyers know, the first case in which the
Kansas appellate courts recognized a cause of action for retaliatory
discharge was Murphy v. City of Topeka,' in which the Kansas Court of
Appeals held that an employee who alleged he was fired because he had
asserted a worker's compensation claim could sue his employer in tort.2
Although Murphy is now more than a quarter-century old, the worker's
compensation arena remains an active one and has generated a number of
interesting decisions. For instance, before the period covered by this
Survey, Kansas courts had held that the cause of action extends to
retaliation against the noninjured spouse of an employee who exercised
his or her worker's compensation rights3 and to demotion, as opposed to
Paul E. Wilson Professor of Law, University of Kansas School of Law.
Clinical Associate Professor, University of Kansas School of Law. The authors appreciate
the research assistance of Chris Steadham and Michael Breen.
1. 6 Kan. App. 2d 488, 630 P.2d 186 (Kan. Ct. App. 1981).
2. Id. at 193.
3. Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, 541, 840 P.2d 534, 541 (Kan. Ct. App.
1992).
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discharge, in retaliation for an employee's having filed a worker's
compensation claim.4 The cases reviewed during the Survey period
proved no different, both in the number of reported worker's
compensation retaliation cases and in the issues they raised.
In Gonzalez-Centeno v. North Central Kansas Regional Juvenile
Detention Facility5 the Kansas Supreme Court held that a cause of action
for retaliatory discharge may exist against an employer other than the
employer against whom the worker's compensation claim was or might
be asserted. 6  Gonzalez-Centeno worked for two unrelated employers,
Venator and the North Central Kansas Regional Juvenile Detention
Facility (NCKRJDF).7 He injured his back while on the job at Venator,
and he received worker's compensation benefits from Venator.8 His
injury required an absence from work for well over a year.9 Six months
after being released to return to work, Gonzalez-Centeno aggravated his
back injury and was forced to go home early from NCKRJDF.' 0 There
ensued a series of meetings and phone calls, and the imposition of
reporting requirements (apparently unique to Gonzalez-Centeno) that
ultimately led to his firing and this suit."
The Gonzalez-Centeno court surveyed the surprisingly few cases
from other jurisdictions dealing with retaliation by one employer based
on a worker's compensation claim filed against another employer and
found that the majority of courts permitted the cause of action. 2 The
only court that refused to recognize such a cause of action was the
Kentucky Supreme Court. 13 That court reasoned that only the employer
who fired the employee and against whom a worker's compensation
4. Brigham v. Dillon Cos., Inc., 262 Kan. 12, 18-20, 935 P.2d 1054, 1059-60 (1997).
5. 278 Kan. 427, 101 P.3d 1170 (2004).
6. Id. at 1175.
7. Id. at 1172.
8. Id.
9. Id.
10. Id.
11. Id. at 1172-73.
12. Id. at 1173-75; see also Darnell v. Impact Indus., Inc., 473 N.E.2d 935, 937 (I11. 1984)
(finding no difference between a normal retaliatory discharge claim and a claim brought against an
employer who did not have the worker's compensation claim filed against it); Goins v. Ford Motor
Co., 347 N.W.2d 184, 189 (Mich. Ct. App. 1983) (stating that there is "no reason . . . to limit
[retaliatory discharge] only to employers who fire employees who file claims against them rather
than against previous employers"); Taylor v. Cache Creek Nursing Ctrs., 891 P.2d 607, 610 (Okla.
Civ. App. 1994) (stating that to exempt subsequent employers from the retaliatory discharge statute
would defeat the legislative purpose of the statute); Hayes v. Computer Scis. Corp., No. M200I-
01611-COA-R3-CV, 2003 WL 113457, at *3 (Tenn. Ct. App. Jan. 14, 2003) (holding that the
Oklahoma statute addressing retaliatory discharge applied to subsequent employers).
13. See Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 68 (Ky. 1995) (holding that the
seminal case in Kentucky does not allow a cause of action in the multiple-employer situation).
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claim was filed would have a retaliatory motive. "[T]he motive for
another employer would be [merely] economic, that is, concern that its
insurance rates might be affected by the employee's history."1 4  The
Kansas Supreme Court rejected this reasoning as "elevating the
significance of motive and individual conduct over the public good.,
15
The one point on which the majority view could be distinguished
from Gonzalez-Centeno was that the majority-view cases all involved
retaliation by a current employer because of a claim against a former
employer, but the Supreme Court thought the reasoning applied equally
well to the concurrent-employer situation presented in Gonzalez-
Centeno. 16
Gonzalez-Centeno involved two other important aspects of the
worker's compensation retaliatory discharge cause of action. The first is
the nagging problem created for employers by language in Coleman v.
Safeway Stores, Inc., a 1988 decision in which an employee who
missed work for surgery required by a compensable injury was fired for
failing to call in daily to report her absences. The Supreme Court
reversed the district court's grant of summary judgment to the employer,
and in the syllabus it said:
Allowing an employer to discharge an employee for being absent or
failing to call in an anticipated absence as the result of a work-related
injury allows an employer to indirectly fire an employee for filing a
workers' compensation claim, a practice contrary to the public policy
of this state.1
8
Subsequent Kansas cases tried to make it clear that Coleman did not
automatically give a cause of action to an employee who was fired
because he or she remained unable to perform the duties of the job
because of a work-related injury.' 9 But the distinction between an
actionable retaliatory discharge and a nonactionable firing for excessive
14. Gonzalez-Centeno, 101 P.3d at 1174 (citing Nelson Steel, 898 S.W.2d at 68-69).
15. Id. at 1174-75.
16. Id. at 1175.
17. 242 Kan. 804, 752 P.2d 645 (1988), overruled by Gonzalez-Centeno, 101 P.3d 1170.
18. Id at 645-46.
19. See, e.g., Rowland v. Val-Agri, Inc., 13 Kan. App. 2d 149, 153, 766 P.2d 819, 822 (Kan.
Ct. App. 1988) (distinguishing this case from Coleman based on the fact that "in Coleman[,] ... the
plaintiff could return to her job"). Coleman was handed down in March 1988; Rowland came down
in July of the same year. Kansas courts later reinforced "the view that an employee who cannot
return to his former position does not have a retaliatory discharge claim." E.g., Griffin v. Dodge
City Coop. Exch., 23 Kan. App. 2d 139, 146, 927 P.2d 958, 964 (Kan. Ct. App. 1996)
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absenteeism or for failure to report or call in remains difficult to
determine.2°
In Gonzalez-Centeno, defendant NCKRJDF argued that it fired the
plaintiff for insubordination because he failed to speak to its Director or
Assistant Director when he called in sick, as he had explicitly been told
to do. On appeal, Gonzalez-Centeno relied on the broad language from
Coleman, arguing that firing a worker for failing to talk to a specific
person when calling in sick from a work-related injury states a claim for
retaliatory discharge. The court rejected such a broad statement of
Kansas law: "[W]hether an employer's discharging an employee for
failing to call in an anticipated absence that results from a work-related
injury gives rise to liability is a question of fact. Language to the
contrary in Coleman ... is disapproved."'', The court noted the factual
differences between Coleman and Gonzalez-Centeno. In Coleman the
employee was under the care of the company's doctor, who was
reporting her condition to the employer, and she missed work because of
surgery caused by a work-related injury.22 Thus, a requirement that she
report absences on a daily basis was "entirely superfluous" 23 under the
circumstances. In Gonzalez-Centeno, on the other hand, the employee's
injury occurred while he was working for another employer, and he was
not under the care of NCKRJDF's doctor. Moreover, at the time of the
absences that led to his firing, he had recovered from his surgery and
returned to work at NCKRJDF; then he began to accumulate additional
absences caused by his back pain. According to the court, these absences
were not predictable, and NCKRJDF relied on Gonzalez-Centeno to
notify it of his absences so that it could obtain a replacement for him.
Therefore, the call-in requirement was reasonable.
Finally, the court turned to the burden-shifting scheme used to
analyze worker's compensation retaliation cases in Kansas. First
adopted by the Kansas Supreme Court for worker's compensation
retaliation cases in Rebarchek v. Farmers Cooperative Elevator &
Mercantile Ass'n,24  this scheme is based on the McDonnell
20. The calculus has been further complicated by requirements of reasonable accommodation
under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2000), if the injured
employee has a disability as defined by the Act, and by the Family and Medical Leave Act, 29
U.S.C. §§ 2601-2654 (2000), if the employee's injury satisfies the requirements of a "serious health
condition," 29 U.S.C. § 2611(11) (2000) and 29 § C.F.R. 825.114 (2007).
21. Gonzalez-Centeno, 101 P.3d at 1175.
22. Id. at 1175-76.
23. Id. at 1176.
24. 272 Kan. 546, 553, 35 P.3d 892, 898 (2001); see also, e.g., SanJuan v. IBP, Inc., 160 F.3d
1291, 1298 (10th Cir. 1998) (discussing the burden-shift in worker's compensation retaliation cases);
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Douglas/Burdine25  allocation-of-burdens analysis for employment
discrimination cases. The court has also used this analysis in
discrimination cases under the Kansas Act Against Discrimination 26 and
in employee free-speech cases.27  The elements of a plaintiffs prima
facie case in a worker's compensation retaliatory discharge cause of
action are: (1) the plaintiff filed a claim for worker's compensation
benefits or sustained an injury for which he or she might assert a claim in
the future; (2) the employer knew of the plaintiffs injury; (3) the
employer fired the plaintiff; and (4) there was a causal connection
between the plaintiffs protected activity and the firing.28 If a plaintiff
makes this showing, the burden shifts to the employer to "articulate a
legitimate, nonretaliatory reason for terminating the employee." 29 When
the employer makes this showing, which presumably should not be
difficult, the plaintiff bears the burden of proving, by a preponderance of
the evidence, that the reasons offered by the employer were a pretext for
wrongful termination.
30
Although the McDonnell Douglas analysis has not always proved
easy to apply in Title VII cases, where plaintiffs often have evidence in
the form of racial, ethnic, or sexist remarks or epithets, as well as the
circumstantial evidence for which the analysis was created in the first
place, the Gonzalez-Centeno court had no trouble applying its scheme to
the facts before it. It was clear to the court that Gonzalez-Centeno had
made out his prima facie case. 3 1 NCKRJDF articulated a legitimate,
nonretaliatory reason for firing him32-that he failed to report his
absences to the appropriate employer officers. 33 Therefore, to withstand
NCKRJDF's motion for summary judgment, Gonzalez-Centeno had only
to produce "any evidence from which a reasonable inference could be
drawn that NCKRJDF's reason was a pretext., 34 He showed that the
Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1483 (D. Kan. 1996) (same).
25. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981); McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); see also, e.g., BARBARA LINDEMANN & PAUL
GROSSMAN, C. GEOFFREY WEIRICH, EDITOR-IN-CHIEF, I EMPLOYMENT DISCRIMINATION LAW 11-
91 (4th ed. 2007).
26. See, e.g., Woods v. Midwest Conveyor Co., 231 Kan. 763, 766, 648 P.2d 234, 238 (1982)
(discussing the burden-shift in a Kansas Act Against Discrimination case).
27. See, e.g., Larson v. Ruskowitz, 252 Kan. 963, 973-75, 850 P.2d 253, 261-62 (1993)
(discussing an employee's right to free speech).
28. Gonzalez-Centeno, 101 P.3d at 1177.
29. Id.
30. Id. at 1178.
31. Id.
32. Id.
33. Id. at 1176.
34. Id. at 1178.
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employer knew his absences resulted from a work-related injury, that he
was the only employee NCKRJDF required to speak to the Director or
Assistant Director when reporting his absences, and that he was fired
after only one warning about his failure to do so. 35 This, the court said,
raised an inference favorable to Gonzalez-Centeno, and it reversed the
district court's grant of summary judgment to the employer.36
Rebarchek v. Farmers Cooperative Elevator and Mercantile Ass 'n
37
contains a few other points of interest. Rebarchek had recurring back
problems, of which his employer was aware, throughout 1994.38 In
November 1994, he notified his employer that he had reinjured his
back.39 He alleged a pattern of retaliatory conduct by his supervisors,
almost all of which took place in November. 40 In March 1995, he had
surgery. On April 17, 1995, he returned to work with light-duty
restrictions, and on April 24, 1995, he was fired.41 The employer argued,
and the district court held, that Rebarchek failed to prove the fourth
element of his prima facie case of retaliatory discharge-causation-
because too much time had passed between his engaging in a protected
activity and his firing.42 Employment discrimination law has produced
an entire line of cases parsing the question of when temporal proximity
between the protected act and the adverse action, standing alone, is
enough to create a triable issue on causation.43 The court noted that
Rebarchek's supervisor displayed anger and took punitive actions against
Rebarchek at the time he filed his worker's compensation claim, but then
all was quiet until Rebarchek returned to work after his surgery in mid-
April. 44 The following sentence consists of the court's entire explanation
of its reasoning for holding that Rebarchek had made out an inference of
35. Id.
36. Id. For another case applying the burden-shifting analysis under Kansas law to a retaliatory
firing for excessive absences, see generally Bausman v. Interstate Brands Corp., 252 F.3d 1111
(10th Cir. 2001).
37. 272 Kan. 546, 35 P.3d 892 (2001).
38. Id. at 895.
39. Id.
40. Id. at 895-96.
41. Id. at 896.
42. Id. at 899-900.
43. Compare O'Bryan v. KTIV Television, 64 F.3d 1188, 1193 (8th Cir. 1995) (three months
between filing complaints and firing still was enough to establish a general issue of material fact as
to causation) and Ramirez v. Okla. Dep't of Mental Health, 41 F.3d 584, 596 (10th Cir. 1991) (one
and one-half months between protected activity and adverse action may establish causation), with
Gagnon v. Sprint Corp., 284 F.3d 839, 851-52 (8th Cir. 2002) (one month between response to
EEOC claim and adverse action not enough for causation) and Richmond v. ONEOK, Inc., 120 F.3d
205, 209 (10th Cir. 1997) (three months not enough to establish causation).
44. Rebarchek, 35 P.3d at 900.
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causation: "The passage of slightly more than 5 uneventful months
before Rebarchek was discharged probably approaches the limit that
would be recognized as part of a pattern for the purpose of establishing a
causal connection between the protected activity and termination. 'A5
Unhelpful as the court was here, it appears at least to have established the
outer limit on how far temporal proximity arguments can be pushed by a
plaintiffia6 And one might also conclude that Rebarchek proves once
again to the cynics among us the truth of the old adage that revenge is a
dish best served cold.
Bracken v. Dixon Industries, Inc.4 7 is, based on the facts presented by
the Kansas Supreme Court, a straightforward application of the burden-
shifting analysis to uphold a grant of summary judgment in favor of the
employer. The employer had a drug testing policy that required alcohol
and drug testing of employees in certain circumstances, including when
an employee was involved in an on-the-job accident or when an
employee was sent to the company doctor or to the hospital.4 8 Under the
policy, any employee who tested positive was fired.4 9 Bracken asked for
time off to see her physician for recurring pain in her hands and arms.5 °
Her supervisor recommended that she see one of the company's
51doctors. She did, submitted to a drug test, and tested positive for
marijuana. 52 Confirmatory testing also was positive, and Bracken was
fired.53 She sued for retaliatory discharge, claiming the positive drug test
was a pretext for the real reason she was fired, that she was about to file
a worker's compensation claim. 54 The Supreme Court agreed with the
lower courts that she was unable to create an issue of fact, or indeed,
"any evidence of substance" that the drug testing policy was being used
as a pretext.55 Bracken knew of the employer's drug testing policy and
had even been tested once before, in 1990, when she had seen the
company's doctor;56 she admitted she had smoked marijuana the night
45. Id.
46. See White v. Tomasic, 31 Kan. App. 2d 597, 602-05, 69 P.3d 208, 212-13 (Kan. Ct. App.
2003) (three weeks between protected activity and firing sufficient to show causation).
47. 272 Kan. 1272, 38 P.3d 679 (2002).
48. Id. at 681.
49. Id.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id. at 684.
56. Id. at 681.
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before she was tested this time; 57 there was evidence that at least one
other employee had tested positive for drugs and been fired; and there
was no evidence that any other employee who tested positive was not
fired.58
The Kansas Court of Appeals decided two worker's compensation
retaliation cases during the Survey period. In Gertsch v. Central
Electropolishing Co.,59 the plaintiff, Gertsch, was injured when he rushed
into a building to look for victims of a toxic chemical reaction. He was
not wearing a safety mask and suffered lung damage when he inhaled the
toxic fumes. While Gertsch was off work recovering from his injuries,
the employer fired him for failing to call in every day. Gertsch was not
released to return to work until sometime after the firing. The employer
argued it could not be held liable for retaliatory discharge because under
the rule of Rowland v. Val-Agri, Inc.61 and cases following it, a plaintiff
who is unable to return to work may not maintain a wrongful discharge
cause of action. The court of appeals rejected the argument under the
facts of this case, holding that:
The requirement that an injured employee be able to return to his or her
former position will not preclude an injured employee's claim for
retaliatory discharge when the injured employee can show a retaliatory
motive on the part of the employer before the employer had ample
evidence that the injured employee would be unable to perform his or
her former job. 62
The second court of appeals decision, White v. Tomasic,63 involved a
temporal proximity issue. White, an investigator for the Wyandotte
County District Attorney, was injured on the job on March 7, 1995, and
filed a worker's compensation claim at some point afterward.64 Events
between March and September are not clear from the court's opinion, but
White did not come to work or call in between September 28 and
October 18.65 On October 11, 1995, Tomasic sent White a letter
notifying him that he was an "'excessive user of sick leave' and
attached a copy of the county's sick leave and leave without pay
57. Id.
58. Id. at 684.
59. 29 Kan. App. 2d 405, 26 P.3d 87 (Kan. Ct. App. 2001).
60. Id. at 88.
61. 13 Kan. App. 2d 149, 766 P.2d 819 (Kan. Ct. App. 1988).
62. Gertsch, 26 P.3d at 90.
63. 31 Kan. App. 2d 597, 69 P.3d 208 (Kan. Ct. App. 2003).
64. Id. at 209.
65. Id. at210.
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policies.66 On October 18, Tomasic and White met, and during the
meeting, Tomasic fired White.67 The district court granted judgment as a
matter of law in the defendant's favor at the close of the plaintiffs case.
On appeal the question was whether White had made out the fourth
element of his prima facie case, the causal connection between White's
protected activity and his firing. 68 Tomasic argued that the relevant time
period was the seven months between White's injury in March and the
firing in October; without evidence of a pattern of retaliatory conduct on
Tomasic's part during that period, White would not have made a prima
facie showing of causation.69  After all, in Rebarchek, the Kansas
Supreme Court had just set the outer limit for temporal proximity at five
months. 70 The court of appeals disagreed with Tomasic's measurements.
To the court, the evidence clearly showed that White was fired for
missing work, and therefore, the relevant period of time should be
measured between the beginning of the absences and the firing.
71
Looking at the evidence in a light most favorable to the plaintiff, the
absences that led to White's firing began on September 28, and he was
fired on October 18. This period of a little less than three weeks was
sufficient to avoid judgment as a matter of law, and the case was
reversed and remanded for a new trial.72
B. Firings for Whistleblowing
In Palmer v. Brown,73 the Kansas Supreme Court recognized a tort
cause of action for retaliatory discharge for whistleblowing and set forth
the elements of the claim. The plaintiff must prove by clear and
convincing evidence that
a reasonably prudent person would have concluded the employee's co-
worker or employer was engaged in activities in violation of rules,
regulations, or the law pertaining to public health, safety, and the
general welfare; the employer had knowledge of the employee's
66. Id.
67. Id.
68. Id.
69. Id. at 212.
70. Id. (citing Rebarchek v. Farmers Coop. Elevator & Mercantile Ass'n, 28 Kan. App. 2d 104,
13 P.3d 17 (Kan. Ct. App. 2000), affd in part, rev'd in part 272 Kan. 546, 35 P.3d 892 (2001)).
71. Id.
72. Id. at 213.
73. 242 Kan. 893, 752 P.2d 685 (1988).
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reporting of such violation prior to the discharge of the employee; and
the employee was discharged in retaliation for making the report.
74
Unlike other states, Kansas has not seen much litigation in which
plaintiffs have made arguments about the connection between the reason
for their firing and some broadly drawn "public policy. ' 75  If these
arguments appear anywhere in the reported Kansas cases, it is in the
whistleblowing arena, as plaintiffs try to fit their complaints into
Palmer's requirements.
An example of this phenomenon is found in Goodman v. Wesley
Medical Center, L.L.C.76 The plaintiff was a nurse at Wesley Medical
Center who had long complained about staffing and had sometimes
refused to accept patient assignments. In May 2000, a plaintiffs
attorney in a medical malpractice case that alleged negligence in
understaffing contacted Goodman. Goodman had not been involved in
the care of the patient involved in that case, but she met with the
plaintiffs attorney, agreed to be a witness on behalf of the patient, and
gave the attorney documents she said would prove the claim of
understaffing. The documents included information about Wesley
patients other than the one represented by the attorney. When Wesley
learned about these documents, it fired Goodman for breaching Wesley's
policies on patient confidentiality. Goodman sued, claiming she had
been reporting violations pursuant to the Kansas Nurse Practice Act
(KNPA), which provides that a nursing license can be revoked or
suspended if the nurse is found to have committed an act of "professional
incompetency," as defined in the Act.77 The court held that because the
KNPA's provisions are "vague, factually-dependent standard-of-care
requirements" and not definite or specific rules, they could not be the
basis of a whistleblowing cause of action.
78
74. Id. at 690.
75. See, e.g., Gardner v. Loomis Armored, Inc., 913 P.2d 377, 384 (Wash. 1996) (finding that a
state policy "of saving persons from life threatening situations" was violated when an armored truck
guard was fired for leaving a truck unattended to aid a bank manager who was being chased by a
man with a knife).
76. 276 Kan. 586, 78 P.3d 817 (2003).
77. KAN. STAT. ANN. § 65-1120(a)(3) (2006); see also id. § 65-1120(e) (defining professional
incompetency).
78. Goodman, 78 P.3d at 822. Goodman contains another issue, the alternative-remedies
doctrine, which will be discussed below.
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C. Firings in Violation of Other Public Policies
On a question certified from the Tenth Circuit, the Kansas Supreme
Court held in Hysten v. Burlington Northern Santa Fe Railway Co.79 that
Kansas recognizes an action in tort based on the firing of an employee in
retaliation for his or her exercise of rights under the Federal Employers
Liability Act. The court rejected the employer's attempt to limit the
Kansas at-will exceptions to two, those contained in Murphy and Palmer,
as well as its argument that only a public policy based on state law would
support a claim. To the employer's "floodgates" argument, the court
replied, "[n]ot every public policy underlying a federal statute or
regulation is identical to a Kansas public policy as previously clearly
expressed in our statutes, regulations, or case law.",80 Therefore, Kansas
courts will recognize a retaliatory suit based on a federal statute that is
grounded in exactly the same public policy as the Kansas worker's
compensation law on which the Murphy cause of action rests. How far
the court will be willing to go in extending the statutory bases on which
plaintiffs may rest their public policy retaliatory discharge claims
remains to be seen.
D. Alternative-Remedies Doctrine
Inherent in the public policy/wrongful discharge cause of action is
the conflict between a statute that contains its own remedial scheme and
the common law tort claim in which an employee argues that his or her
firing violated the public policy embodied by that statute. May a
plaintiff avoid the statutory remedies and sue in tort instead? In Flenker
v. Willamette Industries, Inc., 8 the Kansas Supreme Court applied the
alternative-remedies doctrine to answer that question.82 In Flenker the
court concluded that the Palmer cause of action for whistleblowing was
not precluded by the whistleblower regulations of the federal
Occupational Safety and Health Act (OSHA).83 The OSHA remedy was
inadequate, according to the court, because (1) the period for filing
claims under OSHA was only thirty days; (2) the Secretary of Labor had
79. 277 Kan. 551, 108 P.3d 437 (2004).
80. Id.at441.
81. 266 Kan. 198, 967 P.2d 295 (1998).
82. Id. at 300.
83. 29 U.S.C. §§ 651-678 (2000).
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sole discretion whether to pursue the employee's claim; and (3) the
statute contained no guidelines for making that decision.
84
In Hysten, on a certified question from the Tenth Circuit, the Kansas
Supreme Court held that the remedies available to an employee under the
Railway Labor Act (RLA) do not preclude a tort action for discharge in
retaliation for that employee's exercise of rights under the Federal
Employers Liability Act. 85 The remedy under the RLA is arbitration, and
the court noted that it has been critical of forcing employees into
arbitration when their claims sound in the public policy tort area.
86
Arbitration, the court remarked in Hysten, is a process "far less than
ideal. 87  Although Hysten would have a right to appeal any adverse
ruling of the arbitration board to federal district court, the court found
"the narrowness of the standard of review on that appeal robbed him of
most of his control over the issues to be addressed., 88  Moreover,
compensatory damages for pain and suffering and punitive damages are
not available under the RLA. 89  In a retaliatory discharge action,
deterrence of similar employer conduct in the future by permitting the
recovery of more than pure economic loss is "essential," said the court.
90
For these reasons, the RLA remedy was not adequate, and Hysten could
pursue his retaliatory discharge claim as a tort.
On the other hand, the court supported its ruling in Goodman v.
Wesley Medical Center, L.L.C.,91 also discussed above, by emphasizing
that the reporting provisions of the Kansas Risk Management Act
(KRMA) 92 provide an adequate alternative remedy to plaintiffs
wrongful discharge claim.93  The KRMA requires health care
professionals to report incidents that are "or may be below the applicable
standard of care and [have] a reasonable probability of causing injury to
a patient; or .. . [that] may be grounds for disciplinary action by the
84. Flenker, 967 P.2d at 301.
85. Hysten, 108 P.3d at 438.
86. Id. at 444 (citing Coleman v. Safeway Stores, Inc., 242 Kan. 804, 813-14, 752 P.2d 645,
651-52 (1988), overruled on other grounds by Gonzalez-Centeno v. N. Cent. Kan. Reg'l Juv. Det.
Facility, 278 Kan. 427, 101 P.3d 1170 (2004) (overruling previous decisions on this issue and
permitting employees covered by a collective bargaining agreement to maintain a tort suit for
discharge in retaliation for filing a worker's compensation claim)).
87. Id.
88. Id.
89. Id. at 445.
90. Id.
91. 276 Kan. 586, 78 P.3d 817 (2003).
92. KAN. STAT. ANN. §§ 65-4921 to -4930 (2006).
93. Goodman, 78 P.3d at 824.
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KANSAS EMPLOYMENT LAW SURVEY
appropriate licensing agency," 94 and it protects health care providers
from discharge or discrimination for engaging in mandatory reporting.9 5
The statutory remedy permits a civil suit brought by the aggrieved
employee, recovery of wages or other lost benefits, plus a civil penalty in
an amount not to exceed the amount of the lost wages and benefits, and
reasonable attorney's fees and costs. 9 6 This remedy suffers from none of
the defects the court found in Flenker.97 The employee has full decision-
making authority over whether to bring suit in state court, and the
common law remedy is expanded with the statutory punitive damages
and attorney's fees. 98 Therefore, the court held that the KNPA does not
provide a public policy basis to support retaliatory discharge claims in
the health care industry.
99
In 2001, the Kansas Supreme Court decided two complicated cases
involving state employees who claimed, among other things, that they
were fired in retaliation for their whistleblowing activities. In Prager v.
Kansas Department of Revenue'00 and Connelly v. Kansas Highway
Patrol l ' the court held that the Kansas Whistleblower Act' °2 provides a
state classified civil service employee with an adequate alternative
statutory remedy for whistleblowing.'
0 3
III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
On a certified question from the United States District Court for the
District of Kansas, the Kansas Supreme Court held in Hallam v. Mercy
Health Center of Manhattan, Inc. ' 0 4 that the statute of limitations for a
claim of intentional infliction of emotional distress and outrage is two
years, pursuant to section 60-513(a)(4) of the Kansas Statutes.'15
94. KAN. STAT. ANN. § 65-4921(f).
95. Id. § 65-4928.
96. Id. § 65-4928(b).
97. Goodman, 78 P.3d at 824.
98. Id.
99. Id.
100. 271 Kan. 1,20 P.3d 39 (2001).
101. 271 Kan. 944, 26 P.3d 1246 (2001).
102. KAN. STAT. ANN. § 75-2973 (2006).
103. Praeger, 20 P.3d at 43; Connelly, 26 P.3d at 1255.
104. 278 Kan. 339, 97 P.3d 492 (2004).
105. ld. at497.
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IV. NEGLIGENT HIRING
Suits alleging negligent hiring, supervision, or retention have not
received much favor in the Kansas courts, and the example arising during
the survey period was no exception. In Prugue v. Monley 10 6 the
plaintiffs son was injured in an automobile accident that was caused by
an employee of a bar who admitted to having consumed four or five
mixed drinks in a two-hour period while at work the night of the
accident. 10 7 The court noted that in every Kansas case in which an
employer has been found liable on a theory of negligent hiring, the
employee's actions against the plaintiff took place on the employer's
premises at "the time employment services were normally rendered."
' 10 8
Moreover, the only evidence suggesting the bar employee might not have
been fit for his job was a DUI citation he received almost five years
before the accident. 10 9 He was never convicted because he was allowed
to enter into a diversion agreement, and he remained eligible to work in a
drinking establishment in the state of Kansas. "O
V. IMPLIED CONTRACTS
A. Implied Contract Found
Kansas continues to recognize implied employment agreements as an
exception to the employment-at-will doctrine. Whether an implied
agreement will be found to restrict an employer's ability to terminate an
employee at will depends on the totality of the factual circumstances.I1 1
A mutual intent to contract must be present, and an employee must
provide evidence of more than a unilateral expectation of continued
employment. "12 While federal court decisions rejecting implied contract
claims outnumbered those recognizing them, sufficient evidence to imply
an agreement was found in the following cases. Implied agreements
were found despite disclaimers in employee handbooks.
106. 29 Kan. App. 2d 635, 28 P.3d 1046 (Kan. Ct. App. 2001).
107. Id. at 1047-48.
108. Id. at 1050 (citing Schmidt v. HTG, Inc., 265 Kan. 372, 961 P. 2d 677 (1998)).
109. Id.
110. Id.
IlI. Inscho v. Exide Corp., 29 Kan. App. 2d 892, 896, 33 P.3d 249, 252 (Kan. Ct. App. 2001).
112. Id.
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In Stover v. Superior Industries International, Inc. 113 the Kansas
Court of Appeals upheld a jury verdict of breach of an implied
employment contract. 14 In ruling for the plaintiffs, the court reaffirmed
that Kansas "recognizes an implied obligation on the employer to not
terminate an employee arbitrarily where a policy or program of the
employer, either express or implied, restricts the employer's right of
termination at will." 115 The plaintiffs presented the following evidence:
(1) an employee handbook that set forth progressive discipline steps, set
up a ninety-day probationary period during which an employee could be
terminated for any reason, and stated that the defendant would treat its
employees fairly and respectfully and expected that employees would
enjoy a long and challenging career with it; (2) a supervisor's manual
that articulated the defendant's policy for resolving problems and
avoiding the need to terminate employees; and (3) testimony from three
members of the defendant's management team that defendant's policy
was to terminate employees only for cause." 6 The court found that,
despite a disclaimer in the handbook, the plaintiffs provided sufficient
evidence for the jury to infer an implied contract.' 7 In reaching this
decision, the court relied on the absence of specific evidence that the
disclaimer had been brought to the plaintiffs' attention (although the
plaintiffs testified they received the handbook and were familiar with the
policies articulated in it) and the supervisors' testimony that the
defendant's policy was to terminate only for good cause. "
8
In Parker v. Life Care Centers of America, Inc.," 19 the United States
District Court for the District of Kansas found that the plaintiff's
testimony that she was told employees could not be terminated without
going through the progressive discipline steps set out in the handbook
was sufficient evidence to create an implied contract. 20  This was so
despite the existence of a statement in the employee handbook that
employment could be terminated at any time.121
The District of Kansas again found sufficient evidence for a jury to
imply an employment contract in Bell v. Board of County
113. 29 Kan. App. 2d 235, 29 P.3d 967 (Kan. Ct. App. 2000).
114. Id. at 973.
115. Id. at 970 (citing Brown v. United Methodist Homes for the Aged, 29 Kan. 124, 134, 815
P.2d 72, 81 (1991)).
116. Id. at 971.
117. Id. at 972.
118. Id. at 971-72.
119. No: 04-1206-MLB, 2006 U.S. Dist. LEXIS 16865 (D. Kan. Mar. 31, 2006).
120. Jd. at*30-*31.
121. Id.
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Commissioners.122 Plaintiff Bell brought his action against Jefferson
County under 42 U.S.C. § 1983, claiming a property interest in his
employment despite the presumption that, in Kansas, public employment
is at will.12 3 Bell, an emergency medical services (EMS) technician,
claimed his evidence established an implied contract for employment for
a definite term and, further, that he had a property interest in the
grievance procedure set forth in the county's handbook.1 24 The county
handbook stated several times that it was not intended to imply a contract
of employment and that county employees were employed at will. 25 The
handbook also set out a grievance procedure, stating that "'involuntary
dismissal is reserved for those cases that cannot be resolved by corrective
counseling or in those cases where a major violation has occurred which
cannot be tolerated.' '1 26 Bell presented evidence that the EMS director
told him he could have a job as long as he satisfactorily performed his
duties.127  Bell also presented the EMS director's testimony that
employees could be fired only for cause.128  The court found Bell
presented a genuine issue of material fact as to the existence of an
implied contract or property interest.
1 29
The same court found that a reasonable jury could find an implied
agreement to provide certain sick pay based on the terms of the employee
handbook. In Lines v. City of Ottawa,3 ° the plaintiff alleged a breach of
conditions of employment, asserting that he had an implied contract with
Ottawa based on the city's sick leave policy (which stated that
employees received sick leave credit at a rate of eight hours per
month).1 3' The city handbook set out the policy, and although there was
a disclaimer in the handbook, the disclaimer was not determinative
because there was no evidence the plaintiff read it.132 In the end, the
court found sufficient evidence of a mutual intent to contract based on
the existence and terms of the sick leave policy itself.133 The court did
not rely on any other evidence to support its ruling.1 34
122. No. 03-2148-KHV, 2004 WL 624972 (D. Kan. Mar. 29, 2004).
123. Id. at*1, *14.
124. Id. at *2, * 14-* 15.
125. Id. at *15.
126. Id.
127. Id.
128. Id.
129. Id.
130. No. 02-2248-KHV, 2003 WL 21402582 (D. Kan. June 16, 2003).
131. Id. at *11.
132. Id.
133. Id.
134. Id.
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B. No Contract Implied
Other recent cases have found plaintiffs' evidence insufficient to
establish implied contracts of employment. Disclaimers and other
language in employee handbooks and manuals indicating that
employment is at will continue to weigh heavy in the courts' analyses.
In Inscho v. Exide Corp., the Kansas Court of Appeals rejected a
former employee's implied contract claim when an employee handbook
disclaimed an employment contract, and the employee's other evidence
consisted only of her own subjective beliefs, beliefs of other employees
as expressed in a job survey, and the company's past practice of
terminating employees only when they violated a company policy.
135
The appellate court also rejected dicta in a prior appellate case
suggesting that the existence of an implied contract is always a jury
question.136 The court clarified that an employer can prevail on summary
judgment if the employee presents evidence only of unilateral
expectations of continued employment.' 37
While not dispositive, a disclaimer will undercut a plaintiff's implied
contract claim if the plaintiff in fact read the disclaimer. 138 Numerous
cases continue to indicate that handbook language alone will generally be
insufficient to show that the parties intended to enter into an agreement
restricting the employer's ability to terminate its employees at will. In
Zwygart v. Board of County Commissioners,1 39 the court found no
implied contract existed when the terminated employee pointed only to
statements in an employee manual regarding leave without pay. 40 The
court observed that when the "Tenth Circuit has stated that summary
judgment [of an implied contract claim] is inappropriate, it has
highlighted at least one other key factor" besides language in the
141 142handbook.' 4' Other cases reached similar results.
135. 33 P.3d at 251-52.
136. Id. at 252-53 (rejecting language in Stover v. Superior Indus. Int'l Inc., 29 Kan. App. 2d
235, 29 P.3d 967 (Kan. Ct. App. 2000)).
137. Id.
138. Henderson v. Montgomery County, 213 F. Supp. 2d 1262, 1278 (D. Kan. 2002). In
Henderson, the court found the fact that the plaintiff read the handbook and the disclaimer language
to "severely undercut the merits of plaintiffs [implied contract) claim." Id.
139. 412 F. Supp. 2d 1193 (D. Kan. 2006).
140. Id. at 1199-1200.
141. Id. at 1200.
142. See Wilson v. Training Plus, Inc., No. 03-2431-JWL, 2003 WL 22757929, at *4 (D. Kan.
Nov. 13, 2003) ("[A]n employment manual does not by itself provide sufficient evidence of an intent
to form a contract under Kansas law; additional evidence bearing on the issue of the defendant's
intent is required."); Conrad v. Bd. of Johnson County Comm'rs, 237 F. Supp. 2d 1204, 1256 (1.
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Similarly, while a disclaimer in a handbook does not automatically
preclude the formation of an implied contract, in the absence of other
evidence inconsistent with the disclaimer, the court will not find an
implied agreement. 143  In Wells v. Accredo Health Group, Inc., the
plaintiff signed three documents in which he acknowledged his
employment was at will. 144 He did not claim that he never saw the
disclaimer, nor did he offer evidence inconsistent with the disclaimer.
145
Thus, there was no implied contractual agreement to follow the
handbook's progressive discipline policy.
146
No implied contract could be inferred based on evidence that an
employee's supervisor assured her that there would be a position for her
after the supervisor's retirement. 147 In Creason v. Seaboard Corp., there
was no evidence that management ratified the supervisor's alleged
guarantee or any other evidence of expressed intent on the part of the
employer to change the plaintiffs at-will status. 148 Similarly, evidence
that an employer implemented progressive discipline procedures and had
a practice of terminating employees only for what it deemed to be just
cause was not sufficient to establish an implied contract when the
employee signed a clear statement from the company that his
employment was at will.
149
A company policy that required employees to reimburse the
company for the cost of intensive training if the employee quit within
one year after the training was not evidence that a company intended to
restrict its ability to terminate an employee without cause. 
5 0
In Conrad v. Board of Johnson County Commissioners,'5 1 the court
stated that to prevail on an implied contract claim, the plaintiff had to
Kan. 2002) ("[A] written personnel policy, which is not bargained for, is not alone sufficient to
establish an implied contract."); Getz v. Bd. of County Comm'rs, 194 F. Supp. 2d 1154, 1168 (D.
Kan. 2002) ("[A] written personnel policy, standing alone, is not sufficient to establish an implied
contract of employment ... as [it is] merely a unilateral expression of 'company policy."').
143. See Wells v. Accredo Health Group, Inc., No. 05-2242-CM, 2006 WL 1913140, at *4 (D.
Kan. July 11, 2006) (finding that the plaintiff failed to establish an implied contract of employment
when the employee handbook contained a disclaimer); McCauley v. Raytheon Travel Air Co., 152 F.
Supp. 2d 1267, 1273 (D. Kan. 2001) (finding that a manual giving nine possible reasons for
termination and also stating that employment was at will did not support finding of implied
contract).
144. Wells, 2006 WL 1913140, at *4.
145. Id.
146. Id. at *5.
147. Creason v. Seaboard Corp., 263 F. Supp. 2d 1297, 1313-14 (D. Kan. 2003).
148. Id. at 1314.
149. Ratcliff v. Coca-Cola Bottling Co., No. 00-1007-WEB, 2001 WL 310962, at *8-*9 (D.
Kan. Feb. 28, 2001).
150. McCauley v. Raytheon Travel Air Co., 152 F. Supp. 2d 1267, 1272-73 (D. Kan. 2001).
151. 237 F. Supp. 2d 1204 (D. Kan. 2002).
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show that her supervisors or others in management made statements to
employees which were inconsistent with the disclaimer in the handbook
or show some other evidence of mutual intent to contract. 152  The
plaintiff presented testimony from several supervisors stating they had
not terminated employees without reason and that employees would not
have been terminated without reason. 153  She had evidence that one
supervisor believed an employee had to go through the discipline policy
before being terminated and that the county had to have a good reason to
terminate. 54 The supervisor also testified that in her "estimation," the
county's at-will policy was in conflict with its "day-to-day" policy that
good cause was needed to terminate an employee.1 55 The court found
this evidence gave an indication of the employer's general practice, but it
did not reflect what the employer represented to employees or to the
plaintiff specifically. Thus, it did not otherwise indicate the employer's
intent to create a contractual obligation.1
6
C. County and Municipal Employees
In a series of cases, courts have made it difficult for municipal
employees to bring either an express or implied contractual claim of
employment. Several federal courts recently relied on two Kansas Court
of Appeals cases, Riddle v. City of Ottawa'5 7 and Wiggins v. Housing
Authority of Kansas City,158 in refusing to find an employment contract
for various municipal employees. One federal court also has applied
Riddle and Wiggins to bar a county employee's implied contract claim.' 
59
In Riddle, a suspended employee of the Ottawa public safety
department claimed he had a property interest in his employment that
could not be taken without due process. In rejecting his claim, the court
stated that in Kansas "an incumbent to a public office enjoys no property
or vested interest in public office."' 160 With regard to public employees,
"the tenure of any office not provided for in the constitution may be
152. Id. at 1258.
153. Id. at 1259.
154. Id.
155. Id.
156. Id.
157. 12 Kan. App. 2d 714, 754 P.2d 465 (Kan. Ct. App. 1988).
158. 22 Kan. App. 2d 367, 916 P.2d 718 (Kan. Ct. App. 1996).
159. Dozier v. City of Overland Park, No. 06-2169-JWL, 2006 WL 2177859, at *5 (D. Kan. July
31, 2006).
160. Riddle, 754 P.2d at 468 (quoting Stoldt v. City of Toronto, 678 P.2d 153 (Kan. 1984))
(emphasis omitted).
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declared by statute, and when not so declared such office shall be held at
the pleasure of the appointing authority."' 6' The court found that no
statute provided for a term of office for Ottawa city employees, or placed
any limit on the city manager's power to suspend or remove an employee
from office. 162  Thus, the court held that Riddle did not "have a
constitutionally protected property right" to his job as an Ottawa public
safety officer. 163  The court further refused to find that the Ottawa
Personnel Regulations provided a legitimate claim of entitlement to
continued employment, stating that the "rules and regulations are not
state law, however, and cannot override" clear statutory or city code
provisions. 164
In Wiggins, terminated employees of the Housing Authority of
Kansas City sued on an implied contract theory. 65 The court rejected
their claim, holding that any alleged contract with the plaintiffs was ultra
vires and void and unenforceable.' 66  The court reasoned that the
Housing Authority, as an agent of the city, had only such powers and
authority as were granted to it by its enabling legislation, and its power to
contract was limited to those powers specifically granted or necessarily
implied. 167 No legislation empowered the Housing Authority to enter
into employment contracts for a definite term. 168 Also, no such power
was implied because it was not necessary to effectuate any other powers
expressly granted. 69 "In this case, there is no indication whatsoever that
the Housing Authority cannot function and carry out its duties under the
employment-at-will doctrine. ' 7  Thus, the court held that the Housing
Authority had no power to agree to employment for a specific term, and
no such agreement existed or could otherwise be enforced.'1
7
Relying on Riddle and Wiggins, and federal court cases applying
them, the federal court in Dozier v. City of Overland Park172 found that,
under a city manager form of government, all employees are terminable
at will by statute, which precludes any basis for implied contractual
161. Id.
162. Id. at469.
163. Id.
164. Id.
165. Wiggins v. Hous. Auth. of Kan. City, 22 Kan. App. 2d 367, 916 P.2d 718, 719 (Kan. Ct.
App. 1996).
166. Id. at 722.
167. Id. at 720.
168. Id. at 722.
169. Id.
170. Id.
171. Id.
172. No. 06-2169-JWL, 2006 WL 2177859 (D. Kan. July 31, 2006).
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KANSAS EMPLOYMENT LAW SURVEY
rights or for a protected property interest in employment. 73 In Dozier,
the city of Overland Park employed the plaintiff as a code enforcement
specialist for several years until his termination for alleged misconduct
with a citizen during an inspection.1 74 The plaintiff argued he had an
implied employment contract entitling him to certain post-termination
proceedings, which the City failed to appropriately provide.' 75 The court
found that "regardless of plaintiffs factual allegations, he was barred by
statute from entering into an implied contract" with Overland Park .
76
"'Kansas law gives a city manager the power to remove employees
without cause, and that power cannot be abridged by contract, implied or
written, because the city manager lacks the authority to enter into a
contract of employment for a specific term."'
1 77
In another unpublished decision,' 78 the District of Kansas again
applied Riddle and its progeny and denied a law enforcement officer
formerly employed by the City of Wichita an implied contract claim. 179
On at least one other occasion, a federal district court has expressed
doubt about a city employee's ability to establish an implied contract
claim.18 0  However, on a separate occasion, the court declined to apply
Riddle to a city employee's claim that the city's sick leave policy created
an implied contract. The court refused to grant summary judgment on
the claim because the plaintiff claimed an implied contract based on the
city's sick leave policy, not based on the city manager's representations,
and because the plaintiffs claim did not relate to termination.' 8'
Most recently, Riddle and its progeny were applied to bar a county
hospital employee from claiming an implied contract. 82 In Alderfer v.
173. Id. at *4-*5.
174. Id. at *1.
175. See id. at *3 ("[P]laintiff alleges a due process violation based on the City's failure to abide
by the regulations in its own handbook when it terminated [him.]").
176. Id. at *5.
177. Id. (quoting Cragg v. City of Osawatomie, No. 95-2492-JWL, 1996 WL 707108, at *6 (D.
Kan. Nov. 8, 1996), rev'don other grounds, 143 F.3d 1343 (10th Cir. 1998)).
178. Najim v. City of Wichita, No. Civ.A. 04-1399-WEB, 2005 WL 2043426 (D. Kan. Aug. 24,
2005).
179. Id. at *3 (quoting Cragg, 1996 WL 707108, at *6); see also Warren v. City of Junction
City, 176 F. Supp. 2d 1118, 1125 (D. Kan. 2001) (city manager had no power under Kansas law to
enter into an implied contract of employment for continued employment with a city employee).
180. See Crowley v. City of Burlingame, 352 F. Supp. 2d 1176, 1182-83 (D. Kan. 2005)
(expressing doubt whether police chief can establish implied contract of employment with city
police offer), aff'd, 165 Fed. App'x 579 (10th Cir. 2006).
181. Lines v. City of Ottawa, No. Civ.A. 02-2248-KHV, 2003 WL 21402582, at *12 (D. Kan.
June 16, 2003).
182. Alderfer v. Bd. of Trs. of Edwards County Hosp., No. 05-1084-MLB, 2006 WL 2548786,
at *3-*6 (D. Kan. Aug. 31, 2006).
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Board of Trustees of Edwards County Hospital, the plaintiff entered into
a written employment agreement with the county hospital, was employed
for about two years, and then terminated. 183 She filed a lawsuit alleging
breach of contract and a violation of due process. The Board argued the
alleged contract was void because it had no authority to enter into an
employment contract for a fixed term. 184 The district court relied on
Kansas law that "'a public employee serves at the will of his or her
employer unless that employer is specifically empowered to contract for
employment on other terms."",185  It held that no Kansas statute
empowered the Board to enter into an employment contract for a specific
term and that this power could not be implied in powers granted by the
Kansas Hospital and Related Facilities Act. 186  Therefore, the alleged
written or express contract was void and no contract could otherwise be
implied. 187
VI. EXPRESS EMPLOYMENT CONTRACTS
A. Formation and Just Cause
In Crump v. WLBB Broadcasting, L.L.C.,188 an unpublished decision,
the Kansas Court of Appeals examined whether a letter to the plaintiff
setting out a specific salary for a twelve-month period of time established
a one-year employment contract. The letter from WLBB Broadcasting,
L.L.C. (WLBB) to the plaintiff, Crump, stated in pertinent part: "Your
compensation will be a guaranteed salary of $60,000 for a period of 12
months."'189  The court found that the letter was ambiguous, but it
ultimately upheld the district court's ruling that the parties had contracted
for employment for one year absent termination for cause. 190
To determine the intent of the parties in an ambiguous agreement,
the court applied the factors set forth in the Restatement (Second) of
Agency section 442(b):
183. Id. at*1.
184. Id. at *3.
185. Id. at *3 (quoting Wiggins v. Hous. Auth. of Kan. City, 22 Kan. App. 2d 367, 372, 916 P.2d
718, 722 (Kan. Ct. App. 1996)).
186. See id. at *5 (stating that the Kansas Hospital and Related Facilities Act "grants a board the
power to hire, but not to hire for a fixed term" (citing KAN. STAT. ANN. § 19-4610(a) (2006))).
187. See id. at *6 (granting the defendant's motion for summary judgment).
188. No. 89,892, 2004 WL 90061, at *1-*2 (Kan. Ct. App. Jan. 16, 2004).
189. Id. at *2.
190. Id. at *4.
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Factors that tend to show the agreement was for a certain time unit
include: (1) one party pays consideration aside from his promise to
employ or to serve; (2) the employment is of a type that would not
likely be temporary; (3) the employer has notice that the employee has
made an important change in his life in order to accept the position; and
(4) the employee has given up a position of some value in order to enter
the employment. '
9
'
The court also considered comment b to § 442 which provides:
"The fact that a servant or other agent is employed under a contract
which merely specifies a salary proportionate to units of time which are
commonly used for the purposes of accounting or payment, such as a
month or a year, does not, of itself, indicate that the parties have agreed
that the employment is to continue for the stated unit of time. Such a
specification merely indicates the rate at which the salary is earned or is
to be paid, and either party is privileged to terminate the relationship at
any time unless further facts exist."
1
After finding the letter ambiguous, the court looked to extrinsic
evidence and found evidence of several factors supporting the conclusion
that the parties intended a one-year term of employment. 93  Crump
testified that WLBB offered him "$60,000 a year for the first year for a
12-month period" and that he told WLBB he wanted guaranteed
employment for a specified period. 194 Crump also presented evidence
that he left a valuable position to take the WLBB job.' 95 The court found
substantial evidence to support the trial judge's decision that the parties
intended a one-year term of employment.'
96
The Crump court also explained what termination for cause requires.
Citing the Tenth Circuit Court of Appeals, it stated as follows:
[Cause for discharge] is a shortcoming in performance which is
detrimental to the discipline or efficiency of the employer.
Incompetency or inefficiency or some other cause within the control of
the employee which prohibits him from properly completing his task is
191. Id. at *3 (citing RESTATEMENT (SECOND) OF AGENCY § 442(b) (1958)).
192. id. (citing RESTATEMENT (SECOND) OF AGENCY § 442 cmt. b (1958)).
193. Id. at *4.
194. Id. at *1. WLBB's evidence and some of Crump's deposition testimony conflicted with
this trial testimony. Id.
195. Id. at *4.
196. Id.
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also included within the definition. A discharge for cause is one which
is not arbitrary or capricious, nor is it unjustified or discriminatory. 197
The court also upheld the district court's determination that seventeen
absences in six months did not meet this standard. 98  Management
allowed Crump to take off these days without reprimanding him or
telling him it was not allowed, and management never gave Crump a
warning or a performance evaluation before terminating him.199
B. Duress and Covenant of Good Faith
A threat to fire an employee if he did not sign a personal services
agreement did not constitute duress in Litton v. Maverick Paper Co.200 In
Litton, the employee "asked to change his employment status to
independent contractor," then later signed a personal services agreement
to effectuate the change. 20' Furthermore because the personal services
agreement could be "'terminated by either party upon 90 days written
notice to the other party,"' the court found that the agreement did not
contain an implied covenant of good faith.2 °2 Under Kansas law, the
court explained, "an employment contract that can be terminated without
cause does not imply a duty of good faith and fair dealing."
20 3
C. Interpretation of Specific Terms
After analyzing the parties' proposed sources of definitions, case
definitions, and all provisions within the employment agreement for
consistency, the Kansas Court of Appeals held in Brodsky v. St. Francis
Hospital & Medical Center, Inc. that the term "retirement" is not
ambiguous.20 4 It found the term "retire" in the applicable employment
agreement meant "something more than mere separation or termination"
197. Id. at *5 (quoting Weir v. Anaconda Co., 773 F.2d 1073, 1080 (10th Cir. 1985) (applying
Kansas law)).
198. Id.
199. Id.
200. 388 F. Supp. 2d 1261, 1291 (D. Kan. 2005).
201. Id.
202. Id. at 1292.
203. Id. (citing St. Catherine Hosp. of Garden City v. Rodriguez, 25 Kan. App. 2d 763, 765, 971
P.2d 754, 756 (Kan. Ct. App. 1998)).
204. No. 90,555, 2004 WL 1715000, at *5-*6 (Kan. Ct. App. July 20, 2004).
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of employment and did not, as the plaintiff (former employee) argued,
include moving one's practice to, or resuming it in, another state.2 °5
VII. NONCOMPETITION COVENANTS
A. Validity and Scope
In the last several years, key decisions regarding noncompetition
covenants have involved employees in the health care industry. Courts
have examined whether a surgical group can have a legitimate interest in
its referral sources, whether a noncompetition agreement that protects an
alleged illegal kickback arrangement is valid, whether an employer may
enforce a noncompetition covenant that covers geographic areas in which
the employer did not compete, and whether a covenant threatened the
public welfare because it created a shortage of physicians.
In Kansas, a surgical group can have a legitimate business interest in
its referral sources and it may protect this interest in a reasonable
covenant not to compete. In Idbeis v. Wichita Surgical Specialists,
P.A.,2°6 the Kansas Supreme Court examined whether a surgical group,
Wichita Surgical Specialists, P.A. (WSS), could enforce a
noncompetition covenant that attempted to protect its referral sources.20 7
The court held that a surgical group could have a legitimate business
interest in its referral sources, and that WSS in fact had such a legitimate
208business interest. Cases cited by the parties indicated that other
jurisdictions are "split on the issue of whether referral sources are a
legitimate business interest.,' 20 9  The court stated, however, that in
Kansas, "the law is clear that referral sources are a legitimate interest
which can be protected by a restrictive covenant even in the context of a
medical practice."
210
The court held that WSS did not have a legitimate business interest
211in maintaining a certain size. It overturned the district court's decisionto permit three of the plaintiff doctors to pay liquidated damages in lieu
205. Id. at *6.
206. 279 Kan. 755, 112 P.3d 81 (2005).
207. Id. at 86.
208. Id. at 91.
209. Id. at 89-90.
210. Id. (citing Graham v. Cirocco, 31 Kan. App. 2d 563, 565, 69 P.3d 194, 199 (Kan. Ct. App.
2003); Weber v. Tillman, 359 Kan. 457, 913 P.2d 84, 91 (1996)).
211. See id. at 89 (noting that the "variety of legitimate business interests which have been
recognized by other courts" are not related to an employer's size).
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of enforcing the noncompetition provision in their contracts.212 Only Dr.
Idbeis had a liquidated damages provision in his contract. 21 3 The court
stated that the district court was required to analyze "the scope of the
restriction, not the presence of a remedy," to determine whether a
noncompetition covenant was injurious to the public welfare.2 14 The
remedy, the court said, for a breach of a noncompetition covenant "is
either an injunction to enforce the contract or a computation of monetary
damages. ' ,2 15  The district court "made no finding that the liquidated
damages provision which it grafted into the contract had any relationship
to actual damages," so it was in error.2 16
At least one author has suggested that the Idbeis court's holding was
too broad and that, while referral sources may be a legitimate business
interest in some cases, they are not in the context of specialty surgical
practices. 2 17 He argues a medical group has no such interest with respect
to a surgeon whose referral base develops because of his individual skills
and attributes rather than the goodwill of the group's practice. 218 The
author suggests that the court failed to give sufficient weight to this
distinction between specialty surgical practices and other medical
219practices.
In an unusual case, the Kansas Court of Appeals enforced a
noncompetition agreement even though the patient referral arrangement
it purported to protect may have violated federal law. In Caring Hearts
Personal Home Services, Inc. v. Hobley,220 Caring Hearts sought to
enforce noncompetition agreements with two Licensed Practical Nurses
(LPNs) after the LPNs (independent contractors) terminated their
relationship with Caring Hearts. 221  Among other things, the LPNs
claimed that a referral arrangement between them and Caring Hearts
212. Id. at 92-93.
213. Id. at 94.
214. See id. at 92 (noting that the enforceability of restrictive covenants does not depend on the
available remedies).
215. Id.
216. Id.
217. See Mike J. Wyatt, Comment, Buy Out or Get Out: Why Covenants Not to Compete in
Surgeon Contracts Are Truly Bad Medicine, 45 WASHBURN L.J. 715, 716, 732 (2006) (noting that
"surgical groups cannot have a legitimate business interest in their surgeons' skills ... because
surgeons cannot misappropriate their skill after resignation").
218. See id. at 731 (arguing that surgical referrals are often in response to a surgeon's skill rather
than a surgical group's good will).
219. See id. at 734-37 ("The court incorrectly held that the referral relationships among referring
physicians and WSS's surgeons were legitimate business interests.").
220. 35 Kan. App. 2d 345, 130 P.3d 1215 (Kan. Ct. App. 2006).
221. Id. at 1218-19.
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violated the federal antikickback provisions of 42 U.S.C. § 1320a-7b.222
The court held that even if the referral arrangement violated federal
Medicare laws and regulations, the noncompetition agreement was
enforceable. 223  The court reasoned that "[t]he noncompetition
agreements [did] not extend only to patients referred to Caring Hearts by
[the two LPNs], but to all Caring Hearts' patients they cared for during
the course of their relationship with Caring Hearts. 224 The court found
that Caring Hearts had a protectable interest in its relationship with all
the patients the LPNs treated and that a claim of illegal kickbacks
regarding the referral of some of those patients was not sufficient to
invalidate the noncompetition agreement.
225
A noncompetition covenant will not likely be enforced if the
employer does not actually compete in the geographic area its covenant
purports to cover. In Mowery Clinic, L.L.C. v. Hofer,226 the court ruled
that a contract provision which "unreasonably prohibits the practice of
medicine without demonstrating an unfair effect upon a former
employer's legitimate business interests cannot be enforced as written"
and "[t]he scope of the restrictive covenant must be equitably
reduced.,227 The defendant physician left the Mowery Clinic to work for
a Department of Veterans Affairs (VA) clinic in the geographic area set
out in the covenant, which included the Salina area.228 The court found
that, absent evidence that the VA clinic competed with the Mowery
Clinic for patients in the Salina area, the Mowery Clinic had no
legitimate business interest in preventing the physician from working at
the VA. 229 The noncompetition provision could not be read to prohibit
her employment there.23°
222. Id. at 1220.
223. See id. at 1220, 1223 ("There is no evidence that enforcement of the noncompete agreement
is injurious to the public welfare.").
224. Id. at 1221.
225. Id.
226. No. 94,103, 2005 WL 3098729 (Kan. Ct. App. Nov. 18, 2005).
227. Id. at *2.
228. See id. at *1 (discussing the agreement and Mowery Clinic's argument that the defendant
was prevented from working with the Salina Community Clinic, which was administered by the
Department of Veterans' Affairs).
229. See id. at *2 (affirming the district court in refusing to enforce the agreement and stating
that there was no evidence the employment with the VA Clinic was an actual competition for
patients in the Salina area).
230. See id. ("[T]he spirit of the noncompetition covenant did not encompass Dr. Hofer's work
at the VA Clinic.").
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In Graham v. Cirocco,23' the Kansas Court of Appeals upheld a 150-
mile restriction in a nonsolicitation covenant, but struck down as
overbroad a noncompetition covenant which prevented a colorectal
surgeon from practicing in a geographic area that stretched from
Leavenworth on the north, twenty-five miles beyond Olathe on the south,
Lawrence on the west, and Blue Springs, Missouri on the east
(effectively the entire Kansas City metropolitan area).232 Evidence was
presented in the case that the covenant's restrictions left the Kansas City
area with a dangerous ratio of one colorectal surgeon for 700,000
patients.233 The court concluded that this evidence established that the
covenant threatened the public's welfare by creating a shortage of
physicians in a medically necessary specialty.
234
The case of Allen, Gibbs & Houlik, L.C. v. Ristow, 23 5 reminds us that
not every type of job is appropriate for a noncompete covenant. In
Ristow, an accounting firm sought to enforce a noncompetition covenant
with one of its supervisors.236 At the time of her termination, the
supervisor's responsibilities included administering various employee
benefit plans and supervising three teams of administrators. 237 The court
found no evidence in the record that the supervisor had a special
relationship with any clients, that she conveyed any trade secrets that
were the property of her employer, or that she received any specialized
training or performed unique services. 238 The periodic training she did
receive kept her up to date in her field of tax regulation of employee
benefit groups and was not sufficient to establish a legitimate business
interest that the accounting firm could protect with a covenant. 239 The
court affirmed that employees must necessarily take knowledge with
them when they change jobs.24°
231. 31 Kan. App. 2d 563, 69 P.3d 194 (Kan. Ct. App. 2003).
232. Id. at 197, 200.
233. Id. at 200.
234. Id.
235. 32 Kan. App. 2d 1051, 94 P.3d 724 (Kan. Ct. App. 2004).
236. Id. at 725.
237. Id.
238. See id. at 728-29 (stating that fact stipulations showed no special relationship or
conveyance of trade secrets and that the training and duties were not unique).
239. See id. at 729 (stating that the training "did not rise to the level of legitimate business
interest").
240. See id at 728-29 (stating that, under the circumstances, there was no legitimate business
interest).
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B. Oral Covenants Not to Compete
Federal courts in Kansas have found that oral noncompetition
agreements are not per se invalid. 24 1 They are, however, subject to the
statute of frauds.242
C. Restraints on Trade Generally
The Kansas Supreme Court has stated that it will treat any contract
that requires a former employee to compensate a former employer as a
restraint on competition and will apply the four-factor reasonableness
243test applied to covenants not to compete. In Varney Business Services,
Inc. v. Pottroff, an agreement between an accountant and his accounting
firm provided that if the accountant left the firm, he would compensate
the firm for clients to which he provided services for the subsequent five
244years. The agreement provided a payment schedule (declining
percentage of revenue) for the five-year period.245 The court ruled that
this type of provision is "not immune to review for reasonableness" and
should be analyzed under the same test as is used for covenants not to
compete. 246 However, the court did not actually apply the four-factor
test, but instead stated: "Absent fraud or overreaching, however, the
contracts will be enforced according to their terms. 24 7 It held that the
provision at issue was reasonable and should be enforced.24 8
VIII. CONFIDENTIALITY AGREEMENTS
A. Settlement Agreements
Kansas courts will not enforce an otherwise valid settlement
agreement to the extent it prevents a former employee from
241. Bradbury Co. v. Teissier-Ducros, No. 03-1391-WEB, 2004 WL 3059542, at *14 (D. Kan.
Dec. 29, 2004) (citing Fireworks Spectacular, Inc. v. Premier Pyrotechnics, Inc., 86 F. Supp. 2d
1102 (D. Kan. 2000)).
242. See id at * 15 (applying the statute of frauds to the agreement).
243. See Vamey Bus. Servs., Inc. v. Pottroff, 275 Kan. 20, 36, 37, 59 P.3d 1003, 1016, 1017
(2002) (stating that "provisions in which former employees are required to compensate former
employers serve the same purpose as covenants not to compete" and are subject to the four-factor
test).
244. Id. at 1009.
245. Id.
246. Id. at 1017.
247. Id.
248. Id.
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"disseminating even nonconfidential, truthful information when called
upon to do so in connection with a claim against [a] former employer."
249
In Farmers Group Inc. v. Lee, Lee, a former employee, sued his then-
employer, Farmers, and ultimately signed a settlement agreement that
required Lee to "'not disclose and ... do everything possible to maintain
in confidence . . . the facts and circumstances of any alleged
discrimination, defamation, harassment, breach of contract, tort or
violation of any law by Farmers against Lee or any agent or employee of
Farmers. ,, 250 Later, when Lee was asked to testify as an expert in
another case brought against Farmers, Farmers sought to enforce the
settlement agreement and prevent Lee from testifying.25' The court
rejected Farmers' position and upheld the district court's ruling
permitting Lee to participate in the litigation against Farmers. 252 The
court reasoned that allowing employers to prevent a former employee
from disseminating nonconfidential, truthful information violated Kansas
public policy. 2
53
B. Trade Secrets
In a case involving tortious interference with nondisclosure
contracts, one federal court found that information about the identities,
roles, strengths, and weaknesses of employees was not a trade secret
under Kansas law.254 In a case involving an alleged noncompetition
agreement with a former employee, customer lists and notes constituted
trade secrets under the Kansas Uniform Trade Secrets Act,255 because
they contained valuable information not generally known or readily
ascertainable by persons in the industry, a great amount of effort and
expense was expended to develop the information, the information could
not be duplicated without expending a similar amount of effort and
expense, and the secrecy of the information was maintained.
249. Farmers Group, Inc. v. Lee, 29 Kan. App. 2d 382, 388-90, 28 P.3d 413, 419-20 (Kan. Ct.
App. 2001).
250. Id. at415-16.
251. See id. at 416-17 (explaining that Farmers appealed from a trial court's modification of a
previously imposed injunction that had prohibited Lee from testifying against Farmers).
252. Id. at417-20.
253. Id. at419-20.
254. Bradbury Co. v. Teissier-Ducros, 413 F. Supp. 2d 1209, 1226 (D. Kan. 2006).
255. KAN. STAT. ANN. §§ 60-3320 to -3330 (2006).
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IX. ARBITRATION AGREEMENTS
A. State Courts: Anderson v. Dillard's, Inc.
Both the Kansas Court of Appeals and the Kansas Supreme Court
examined and ruled on a Dillard's Inc. arbitration provision, which
purported to cover employment claims, in Anderson v. Dillards, Inc.
256
Although the Kansas Supreme Court reversed the holding of the Kansas
Court of Appeals, 257 both cases are instructive.
Dillard's terminated its part-time security guard, Anderson, allegedly
for taking store merchandise without paying for it.258 Anderson alleged
that Dillard's then called his full-time employer (Lenexa Fire
Department) and another part-time employer (Spring Hill Police
Department) and reported he had been arrested for shoplifting. 259
Subsequently, the fire department terminated him, and the police
department suspended him.260 Anderson sued for defamation, invasion
of privacy, and tortious interference.261 Dillard's moved to compel
arbitration.262
While employed, Anderson signed an acknowledgment and receipt
of rules for arbitration that required him to submit covered claims to
arbitration.263 The acknowledgment specifically stated that:
"This Agreement does not waive anyone's substantive legal rights, nor
does this Agreement create or destroy any rights. It merely changes the
forum where the dispute is resolved and the procedures to be followed.
Arbitration does not prevent an associate from filing a charge with an
administrative agency like the Equal Employment Opportunity
Commission."264
The acknowledgment further stated that employees were deemed to have
agreed to the arbitration rules by accepting employment or continuing
256. 283 Kan. 432, 153 P.3d 550 (2007), rev'g, No. 94,334, 2006 WL 1520541 (Kan. Ct. App.
June 2, 2006).
257. Id. at 555.
258. See id. at 552 (reciting the facts of the case).
259. Id.
260. Id. at 553.
261. Id.
262. Id.
263. Id. at 552.
264. Id.
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employment with Dillard's.2 65 The arbitration rules purported to cover
claims "resulting from [an employee's] termination of employment.,
266
The trial court refused to compel arbitration and ruled that
Anderson's claims did not arise out of his employment.26 7  On appeal,
Anderson sought to uphold the district court's finding, but also
challenged the court's jurisdiction based on the Kansas Uniform
Arbitration Act (KUAA).268 The Kansas Court of Appeals exercised
jurisdiction. In doing so, it found that, while the KUAA invalidates
arbitration agreements for future claims between employers and
employees and for future tort claims, Dillard's could enforce its
agreement under the Federal Arbitration Act (FAA),2 69 which preempts
conflicting state laws.2 7° On the merits, the court held that Anderson's
claims arose out of his employment with Dillard's and were, therefore,
covered by the arbitration agreement.
27
'
The Kansas Supreme Court found jurisdiction was proper;272
however, it reversed the court's order compelling arbitration.273 The
Kansas Supreme Court found that the agreement covered claims
"resulting from" termination, not "arising out of' termination. 274  It
reasoned that the language "results from" requires a cause and effect
analysis. 5 The Kansas Supreme Court explained that "Dillard's did not
have a duty to inform Anderson's other employers that Anderson had
been terminated from his employment, so Anderson's termination from
Dillard's did not require" Dillard's to contact his other employers.2 76
Thus, the court held, Anderson's termination did not cause the actions
that Anderson alleged as the basis for his claims, and his claims did not
"result from" his termination.27 7 It found the Kansas Court of Appeals'
decision "improperly interpreted the terms of the arbitration agreement to
265. Id.
266. Id. at 554 (emphasis removed),
267. Anderson v. Dillard's, Inc., No. 94,334, 2006 WL 1520541, at *1-*2 (Kan. Ct. App. June
2, 2006), rev d, 283 Kan. 432, 153 P.3d 550 (2007).
268. KAN. STAT. ANN. §§ 5-401 to -422 (2006).
269. 9 U.S.C §§ 1-16, 201-208, 301-307 (2000).
270. Anderson, 2006 WL 1520541, at *2 (citing Skewes v. Shearson Lehman Bros., 250 Kan.
574, 829 P.2d 874 (1992)).
271. Id.
272. Anderson, 153 P.3d at 553. The Supreme Court did not, however, speak to the appellate
court's conclusion that the FAA preempts conflicting provisions of the KUAA.
273. id. at 555.
274. Id. at 554.
275. Id.
276. Id.
277. Id
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include claims arising out of employment with Dillard's rather than those
resulting from the termination of employment., 278
B. Federal Court Cases
Federal courts in Kansas have repeatedly examined the
enforceability of arbitration agreements in the employment context. A
summary of some of these cases follows. One court held that an
employer may not force an employee to arbitrate a claim under a
veterans' rights act.
1. Enforced Agreements
A federal district court enforced an arbitration clause set forth in a
separation agreement in Lynn v. General Electric Co.279 In Lynn,
employees brought claims under the Fair Labor Standards Act (FLSA),28°
and General Electric Transportation Systems (GETS) moved to compel
arbitration as to one plaintiff.28' GETS had terminated the plaintiff and
provided him with severance pay in return for a waiver and release of
claims.282 GETS did not argue that Lynn waived his FLSA claim, but
rather that the claim had to be submitted to binding arbitration. 283 The
separation agreement stated that "[Employee] agree[s] to submit to final
and binding arbitration., 284 The agreement gave the plaintiff twenty-one
days to review the agreement and stated that he could revoke it within
seven days after he signed it. The plaintiff "accepted four weeks of
severance pay, and he did not exercise his right to revoke the separation
agreement., 285 The plaintiff initialed each page of the agreement and
placed an "x" by a paragraph that stated he read the agreement and was
advised to consult an attorney.286 The GETS Resolved Procedure
Handbook was not attached to the separation agreement; however, at the
start of his employment, the plaintiff signed a form indicating he
received and reviewed a copy of the GETS dispute resolution procedure
guidelines and a cover page indicating he read and received the GETS
278. Id. at 554-55.
279. 407 F. Supp. 2d 1257 (D. Kan. 2006).
280. 29 U.S.C. §§ 201-219 (2000).
281. Lynn, 407 F. Supp. 2d at 1260.
282. Id. at 1257.
283. Id. at 1260.
284. Id.
285. Id.
286. Id.
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handbook for dispute resolution (all these documents were located on the
company's internal internet site). 287
The court rejected the plaintiffs argument that the arbitration clause
was invalid because the handbook was not attached to the agreement.288
Applying Pennsylvania law, which the court stated was consistent with
federal law, the court enforced the agreement.289 The court reasoned that
"the separation agreement clearly stated [that plaintiff] agreed to submit
to final and binding arbitration., 290 The plaintiff read the provision and
realized the handbook was not attached, but he made no attempt to obtain
a copy. The plaintiff acknowledged he had received, reviewed, and
agreed to the dispute guidelines and they were available on the GETS
website. He had twenty-one days to review the separation agreement and
consult with counsel and could revoke it within seven days. The plaintiff
had "more than ample opportunity to review and understand the
implications of the arbitration clause within the separation agreement.',
291
In an earlier decision in the same case, the court refused to stay the
litigation pending mediation of the dispute between GETS and three of
the plaintiffs.2 92  GETS argued that its dispute resolution program
required these plaintiffs to submit their claim to mediation.2 93 These
plaintiffs were already employed at the time GETS implemented its
dispute resolution program.294 GETS argued it notified the plaintiffs it
was implementing the program because it sent a letter to all employees'
homes, placed an article in the company newsletter, provided the dispute
resolution guidelines and other information on the program on the
intracompany website, and sent an email to all employees announcing
the guidelines and providing a link to the website. 295  The plaintiffs
maintained that they never received the letter, did not read the newsletter
article, did not access information regarding the program on the
intracompany website, and did not read the email.296 The court first
found that Kansas law, not the FAA, governed whether there was an
agreement to mediate.297 The court found that arbitration and mediation
287. Id. at 1258-59.
288. Id. at 1262-63.
289. Id. at 1261.
290. Id. at 1262.
291. Id. at 1262-63.
292. Lynn v. Gen. Elec. Co., No 03-2662, 2005 WL 701270, at *8 (D. Kan. Jan. 20, 2005).
293. Id. at *2-*3.
294. Id.
295. Id. at *3.
296. Id.
297. See id. at *4 ("When deciding whether the parties have made a valid agreement ... the
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are completely different processes and that treating a mediation like an
arbitration did not serve Congress's intended purposes. 298  Thus, the
court held that the term "arbitration" in the FAA does not include
mediation, and Kansas common law governing formation of contracts
applied to determine whether the parties had agreed to mediate.299
Applying Kansas law, the court found there was no agreement to
mediate. The court found that GETS failed to present evidence that it
actually made any of the plaintiffs aware of the new requirement to
mediate. 300 There was no signed acknowledgement form, nor did GETS
demonstrate that the plaintiffs actually opened the emails sent to them or
accessed the applicable portion of the website. Merely disseminating the
information was insufficient to establish a binding agreement.3 '
The court enforced an arbitration provision in a handbook when the
handbook specifically referenced the arbitration policies and indicated
302that the policies created a contract between the parties. In Lorntzen v.
Swift Transportation, Inc., the court recognized that "when an arbitration
clause is a part of an employee handbook that also contains statements
advising the employee that the handbook does not create a contract, and
that the employer reserves the right to rescind or revise any portion of the
handbook, the agreement to arbitrate is unenforceable. 3 °3 However, the
court distinguished the case from others refusing to compel arbitration,
because the applicable handbook specifically distinguished between the
policies that created a contract and the policies for which the defendant
unilaterally reserved the right to rescind or revise.304
In Lorntzen, the court also held that a safety compliance assistant for
Swift Transportation was not a transportation worker so as to be covered
by the FAA provisions exempting transportation workers from its
provisions.30 5 The plaintiff fell into the category of workers who "work[]
in a transportation industry but [are] in a distant relationship to other
workers who are transportation workers. Examples include security
guards at airports and train stations or warehouse workers who construct
court applies ordinary state law principles .... ).
298. See id. at *4-*8 (discussing the differences between arbitration and mediation).
299. Id. at *7.
300. Id. at *8.
301. Id.
302. Lomtzen v. Swift Transp., Inc., 316 F. Supp. 2d 1093, 1098 (D. Kan. 2004).
303. Id. at 1097-98 (citing Phox v. Atriums Mgmt. Co., 230 F. Supp. 2d 1279, 1282 (D. Kan.
2002); see also Dumais v. Am. Golf Corp., 299 F.3d 1216, 1219 (10th Cir. 2002) (holding that an
arbitration agreement allowing an employer the unfettered right to alter the agreement's existence or
its scope is illusory and unenforceable).
304. Lorntzen, 316 F. Supp. 2d at 1098.
305. Id. at 1097.
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and package goods that eventually travel interstate. 30 6 "Plaintiff's duties
were more akin to those [ofi employees who [support] . . . the
transportation industry, but who are not themselves transportation
workers., 307  Thus, the plaintiff was not an exempt transportation
worker.308
An agreement to arbitrate was not illusory when "the portion of the
receipt and acknowledgement that [gave the employer] the right to...
add or delete at any time any benefits ...specifically exempt[ed] the
dispute resolution policy and agreement to arbitrate." 30 9  In Gratzer v.
Yellow Corp., the acknowledgement was clear that the dispute resolution
policy and "the agreement to arbitrate [could be] changed only following
notice to employees. 3 °10 Because the employer was required to provide
notice before changing the policy or the arbitration agreement, and
because the policy and the arbitration agreement were conditions of
employment, the court found that the arbitration agreement had mutuality
of obligation and was not illusory.311
The defendant's arbitration agreement was enforceable despite the
fact that it required the employee bringing the claim to pay one half of
the arbitration fees and costs. 312 The court found that the plaintiff bore
the burden of showing the likelihood of incurring costs making the
arbitration prohibitively expensive.313 The plaintiff did not present any
evidence regarding the potential cost of the arbitration or indicating
arbitration would be so expensive as to deter her from vindicating her
statutory rights.314 The court further indicated that even if she presented
this evidence, it would be inclined to invoke the savings clause in the
306. Id.
307. Id.
308. Id.
309. Gratzer v. Yellow Corp., 316 F. Supp. 2d 1099, 1106 (D. Kan. 2004).
310. Id.
311. Id.
312. On the issue of fee-splitting provisions, see Perkins v. Rent-A-Center, Inc., No. 04-2019-
GTV, 2004 WL 1047919, at *4 (D. Kan. May 5, 2004) and Stocker v. Sytel, Inc., No. 03-2606-GTV,
2004 WL 1851410, at *3 (D. Kan. Aug. 16, 2004). In both cases the court rejected the plaintiffs'
attempts to avoid arbitration on the grounds that the arbitration provision forced the plaintiffs to pay
certain fees and costs. In both cases, the court found the plaintiffs failed to present evidence
sufficient to meet the standards set out by the United States Supreme Court. Stocker, 2004 WL
1851419, at *4 (citing Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92 (2000)); Perkins, 2004
WL 1047919, at *4. None of the plaintiffs met their burden of demonstrating to the court that
arbitration would be prohibitively expensive. Stocker, 2004 WL 1851419, at *4; Perkins, 2004 WL
1047919, at *4.
313. Gratzer, 316 F. Supp. 2d at 1104-05.
314. Id. at 1105.
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arbitration agreement, which would strike the fee-splitting provision and
cause the employer to pay the arbitration costs.
31 5
The plaintiffs argument that her continued at-will employment was
insufficient consideration to support an arbitration agreement was
rejected in Felling v. Hobby Lobby, Inc.3" 6 The court stated that "an
employer's specific promise to continue to employ an at-will employee
may provide valid consideration for an employee's promise to forgo
certain rights."3t 7 In any event, because the employer had the obligation
under the agreement to submit its claims against the plaintiff to
arbitration, the agreement was valid. "Mutual promises to arbitrate serve
as sufficient consideration. 318
The Felling court also rejected the plaintiffs contention that there
was no meeting of the minds regarding an agreement to arbitrate.
Applying Kansas law,31 the court said there needed to be a "'fair
understanding between the parties which normally accompanies mutual
consent and the evidence must show with reasonable definiteness that the
minds of the parties met upon the same manner and agreed upon the
terms of the contract.' 320  The court found a meeting of the minds
because the plaintiff signed a memorandum that expressly stated the
plaintiffs continued employment constituted acceptance of the
agreement to arbitrate and of the arbitration procedures, it stated the
plaintiffs substantive rights would be resolved in arbitration rather than
court, and it specifically bound the employer to the agreement to arbitrate
and to the arbitration procedures.321
315. Id. The arbitration agreement stated the arbitrator's fees would be split equally "unless
other express statutory provisions or controlling case law conflict with this allocation and require the
payment of costs and fees by [the employer]. If such a conflict exists, the costs of arbitration and the
arbitration fees will be paid by [the employer]." Id. at 1102.
316. No. 04-2374-GTV, 2005 WL 928641 (D. Kan. Apr. 19, 2005).
317. Id. at *4 (citing Durkin v. Cigna Prop. & Cas. Corp., 942 F. Supp. 481, 483, 488 (D. Kan.
1996).
318. Id.
319. When ruling on the enforceability of an arbitration agreement, courts generally apply
ordinary state law rules governing contract formation. See id. at *2 (noting that "courts generally
apply ordinary state law principles that govern the formation of contracts" when determining
whether to enforce an arbitration clause); see also Clary v. The Stanley Works, No. 03-1168-JTM,
2003 WL 21728865, at *2 (D. Kan. July 24, 2003) ("[The court will apply state law contract
principles to determine whether the parties actually agreed to arbitrate.").
320. Felling, 2005 WL 928641, at *3 (quoting Steele v. Harrison, 552 P.2d 957, 962 (Kan.
1976)).
321. Id.
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2. No Agreement Found
The court refused to find an agreement to arbitrate when references
to arbitration were included in an employee handbook that the employer
retained the right to alter or modify at any time without notice.3 2 In
Barnes v. Securitas Security Systems, the employer gave the plaintiff a
handbook and a copy of a brochure setting out the company's arbitration
"program." The plaintiff signed separate forms acknowledging that she
had received the handbook and the arbitration program brochure, and
acknowledging that the arbitration program was a condition of
employment.32 3 The handbook, however, also stated that the company
could "'modify, supplement, terminate or revise the provisions of the
Handbook, other than the at will requirement[,] at any time.' 3 24
Relying on Dumais v. American Golf Corp.,325 the court found that
the agreement to arbitrate was illusory because the defendant retained the
right to modify or terminate it at any time. 326 The defendant argued the
agreement was not illusory because the handbook was distinct from the
arbitration program brochure. The court rejected this argument because
the handbook expressly governed the terms and conditions of
employment, contained an arbitration agreement, and incorporated the
arbitration brochure. 327 The court also rejected the defendant's argument
that the agreement was not illusory because the defendant was required
to give notice to employees if it altered conditions of their employment.
The defendant cited cases finding that an arbitration agreement is not
illusory if the employer "retains the right to alter or amend only after
putting the change in writing, providing a copy to employees and
allowing employees to accept the change by continuing employment."
328
The court easily distinguished these cases by pointing out that the
defendant's handbook did not require it to provide prospective notice of
any changes, and in fact, there was some evidence changes could be
made without any notice.329
322. Barnes v. Securitas Sec. Sys. USA, Inc., No. 05-2264-JWL, 2006 WL 42233, at *5 (D. Kan.
Jan. 6, 2006).
323. Id. at *1 *2.
324. Id. at *2.
325. 299 F.3d 1216 (10th Cir. 2002).
326. Barnes, 2006 WL 42233, at *3.
327. Id. at *4.
328. Id.
329. Id.
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In Phox v. Atriums Management Co.,330 the defendant employer
argued that its employee handbook established an agreement to arbitrate
the plaintiffs discrimination claims. The plaintiff argued, and the court
agreed, that the handbook did not bind the defendant, so any agreement
based on it was illusory. 331 The court found that various disclaimers in
the handbook prevented the handbook from creating an agreement.
Among other things, the handbook stated that "nothing in this manual
should be construed as an express or implied contract of employment for
any length" and that policies in it "do not create express or implied...
contractual obligations of any kind. 3 32 The defendant reserved the right
in the handbook to revise or rescind the policies in its "sole and absolute
discretion" and the policies could be "amended or cancelled at any time"
at the defendant's sole discretion.333 The defendant argued there was a
separate binding agreement to arbitrate and that either (1) the promise to
arbitrate or (2) the promise of employment served as consideration for
the agreement. The court rejected both arguments.3 3 4 The promise to
arbitrate was illusory because the defendant reserved the unilateral right
to revise or cancel the arbitration clause before the plaintiff filed a claim.
The promise of employment was illusory because the plaintiff was
employed at will and could be terminated at any time. Finally, the court
found that there was no meeting of the minds on the alleged arbitration
agreement because the plaintiff did not sign or initial the page of the
handbook that contained the arbitration clause.335
3. USERRA Claims
While arbitration agreements may generally be enforced in the
employment context, at least one court has held that a USERRA claim is
not subject to arbitration. While the Supreme Court of the United States
has found that other employment statutes do not supersede arbitration
agreements, a federal court in Kansas has found that the Uniformed
Services Employment and Reemployment Rights Act (USERRA) 336
does.3 37 At the outset, the court recognized that whether the USERRA
330. 230 F. Supp. 2d 1279 (D. Kan. 2002).
331. Id. at 1282.
332. Id.
333. Id. at 1283.
334. Id.
335. Id. at 1283-84.
336. 38 U.S.C. §§ 4302-4334 (2000).
337. Lopez v. Dillard's, Inc., 382 F. Supp. 2d 1245, 1249 (D. Kan. 2005).
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renders unenforceable an otherwise valid agreement to arbitrate
employment disputes was a matter of first impression in the Tenth
Circuit and noted that only one other reported case addressing this
question existed.338 In ruling, the court relied on § 4302(b) of the
USERRA, which states that the statute supersedes any contract or
agreement "that reduces, limits, or eliminates in any manner any right or
benefit provided by this chapter, including the establishment of
additional prerequisites to the exercise of any such right or the receipt of
any such benefit." 339 The court found that the arbitration agreement did
not require the plaintiff to give up any substantive rights by arbitrating
her claim, because the arbitrator was to apply the same substantive law,
and was empowered to grant the same relief, as the court could.34 °
However, the court held that because the arbitration agreement mandated
that the plaintiff seek relief in an arbitral forum, and this forum was not
addressed in the USERRA, the agreement stood as an additional
prerequisite to the exercise of the plaintiff's rights and the receipt of
benefits she might be entitled to under the act.341 Thus, the court held the
plain language of 38 U.S.C. § 4302 requires that the USERRA supersede
the arbitration agreement.
342
X. WAGE PAYMENT
A. Undocumented Workers
The Kansas Supreme Court recently held that the Immigration
Reform and Control Act of 1986 (IRCA)343 does not preempt the Kansas
Wage Payment Act (KWPA)344 to the extent the KWPA requires an
employer pay an undocumented worker for earned wages.345 In Coma
Corp. v. Kansas Department of Labor, the employer sought to overturn
the Kansas Department of Labor's (KDOL) order awarding wages,
interest, and a penalty to a former employee. There was no dispute that
the employee was an undocumented worker not legally permitted to
338. Id. at 1246 (citing Garrett v. Circuit City Stores, Inc., 338 F. Supp. 2d 717, 722 (N.D. Tex.
2004) (finding that USERRA claims are not subject to an otherwise valid arbitration agreement)).
339. Id. at 1247.
340. Id. at 1247-48.
341. Id. at 1248.
342. Id.
343. 8 U.S.C. § 1324a (2000).
344. KAN. STAT. ANN. § 44-313 (2006).
345. Coma Corp. v. Kan. Dep't of Labor, No. 95,537, 2007 WL 858869, at *8 (Kan. Mar. 23,
2007).
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work in the United States. The employer argued that the employee's
employment contract was illegal and unenforceable because he was an
illegal alien and that federal immigration law (namely 8 U.S.C. § 1324a
which makes employment of unauthorized aliens illegal) preempts the
KWPA.346
The court rejected the preemption argument, reasoning that the
KWPA actually furthers the goals of the IRCA which requires that
employers discharge a worker upon discovering the worker's
undocumented alien status.
"If employers know that they will not only be subject to civil penalties,
8 U.S.C. § 1324a(e)(4)(A), and criminal prosecution, 8 U.S.C. §
1324a(f)(1), when they hire illegal aliens, but they will also be required
to pay them at the same rates as legal workers for work actually
performed, there are virtually no incentives left for an employer to hire
an undocumented alien in the first instance. Whatever benefit an
employer might have gained by paying less than the minimum wage is
eliminated and the employer's incentive would be to investigate and
obtain proper documentation from each of his workers."
347
The court further rejected the employer's argument that the employee
was not entitled to the KWPA's statutory penalty for willful failure to
pay wages. 348 "[W]hen a statute is plain and unambiguous, the court
must give effect to the intention of the legislature as expressed rather
than determine what the law should or should not be. The statute, K.S.A.
44-315(b), does not carve out any 'illegal alien' exception." 349
B. Vacation Pay
In A. 0. Smith Corp. v. Kansas Department of Human Resources,350
the Kansas Court of Appeals found that employees had been
"discharged" within the meaning of the KWPA when their employer sold
its business even though the employees retained their jobs with identical
compensation and benefits with the purchasing company. 351 The court
reasoned that the employees clearly were terminated by their former
employer and that to hold otherwise would create an unintended loophole
in the statute by allowing employers to sell existing businesses and
346. Id. at *3.
347. Id. at *9 (citing Flores v. Amigon, 233 F. Supp. 2d 462, 464 (E.D.N.Y. 2002)).
348. Id. at *16.
349. Id. (citation omitted).
350. 36 Kan. App. 2d 530, 144 P.3d 760 (Kan. Ct. App. 2005).
351. ld. at 767.
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escape liability for wages owed to employees at the time of the sale.352
The court upheld the Kansas Department of Human Resource's (KDHR)
final action in the case and ruled that the agency's interpretation of the
KWPA was entitled to deference when the agency provided a rational
basis for its interpretation.
353
The court also examined whether, prior to the sale, the selling
employer (A.O. Smith) had effectuated a change in the vacation policy
from an accrual policy to an "earn as you go" policy. 354 The court ruled
that no change could have occurred because the employer provided no
notice of the change to its employees. 355 "An employer may impose a
cut in wages if the change is announced before any wages are earned.,
356
Finally, the court upheld the KDHR's determination that the selling
employer "willfully" withheld the accrued vacation pay, and reversed the
district court's holding to the contrary. 357 The court found that, even if it
agreed with the district court's weighing of the equities, the district court
exceeded its limited scope of judicial review of the agency's decision.358
The court found that the employer attempted to apply an interpretation
inconsistent with its policy, acted unilaterally to change its policy
without notifying employees, urged its purchaser not to discuss accrued
vacation liability with employees, and attempted through the asset
purchase agreement to avoid litigation by assuring some vacation would
be earned and payable by the successor in the first year of
employment. 359  This constituted "substantial evidence" sufficient to
support the conclusion that the employer intended to "cause harm" to the
employees and, therefore, supported a finding of a willful violation.360
Relying on the reasoning of the Kansas Supreme Court in Sweet v.
Stormont Vail Regional Medical Center,3 6 1 the U.S. District Court for the
District of Kansas enforced an employer's policy that decreased an
employee's pay if the employee failed to provide two weeks' notice of
her intent to leave employment.362 The policy stated that if the employee
352. Id. at 765-66.
353. Id. at 767.
354. Id. at 768.
355. Id.
356. Id. (citing Salon Enters., Inc. v. Langford, 29 Kan. App. 2d 268, 271, 31 P.3d 290, 293
(Kan. Ct. App. 2000)).
357. Id. at 770.
358. Id.
359. Id. at 770-71.
360. Id. at 771.
361. 647 P.2d 1274 (Kan. 1982).
362. Robinson v. Food Serv. of Belton, Inc., 415 F. Supp. 2d 1227, 1230-31 (D. Kan. 2005).
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failed to provide the two weeks' notice, the employer would pay the
employee the federal minimum wage rate (instead of the employee's
higher hourly rate) for the last pay period the employee worked.363 The
court reasoned that "neither Kansas nor federal law required [the
employer] .. .pay ...wages higher than the federal minimum wage
absent [an] agreement" with the employee, so the employees "did not
have an inherent right to wages higher than the federal minimum
wage. 364  Thus, their right to the higher wage stemmed from their
employment contract.365 "Under the rationale of Sweet, then, plaintiffs
(assuming they were aware of the notice policy) did not earn wages at
their regular rate of pay for the final pay period unless they satisfied the
condition precedent of the contract-providing two weeks' notice prior
to resigning their employment."
366
C. Oral Withholding Agreements Void
An oral agreement to withhold wages is void. In Beckman v. Kansas
Department of Human Resources,367 the court held that an oral
agreement to withhold an employee's wages in excess of $800 per month
was clearly illegal under the KWPA.368 The Beckman court also held
that the cause of action accrued when the employer failed to pay the
earned wages on the regular payday and upheld the hearing officer's
determination that the violation was willful because some of the money
was held as "an afterthought and an excuse not to pay, contrived later
with no relationship to a sincere belief ... that the wages were rightfully
withheld. 369
XI. DRUG TESTING
The Kansas Supreme Court affirmed an employer's enforcement of
its drug-testing policy in the face of a retaliatory discharge claim. In
Bracken v. Dixon Industries, Inc.,370 already discussed above, Dixon had
a drug testing policy that required, among other things, that an employee
363. Id. at 1230-31.
364. Id. at 1231.
365. Id.
366. Id.
367. 30 Kan. App. 2d 606, 43 P.3d 891 (Kan. Ct. App. 2002).
368. Id. at 895.
369. Id. at 895-97.
370. 272 Kan. 1271, 38 P.3d 679 (2002).
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be tested when the employee was involved in an on-the-job accident or
was sent to the company doctor or hospital. 371 The policy stated that
"any employee who tested positive or admitted being under the influence
of alcohol or drugs [would be] terminated., 372 Bracken, a long-term
employee of eighteen years, complained of pain in her arms and hands
and subsequently saw the company doctor. 373 She tested positive for
cannabis and admitted to Dixon that she smoked marijuana the night
before.374  Dixon then terminated her.375  Bracken filed a retaliatory
discharge claim against Dixon, alleging she was a good worker and had
been discharged because Dixon anticipated she would file a worker's
compensation claim.376 There was evidence that at least one other Dixon
employee had been terminated after a positive test, and no known
instances of an employee remaining employed following a positive
test.377 The Court found "no inference of discriminatory intent in
Dixon's actions.,
378
XII. LEAVES OF ABSENCE FOR VICTIMS OF DOMESTIC ABUSE AND
SEXUAL ASSAULT
The 2006 legislature enacted a statute requiring that employers give
employees who are victims of domestic violence or sexual assault time
off from work for certain specified reasons. 379 This statute was part of a
larger bill dealing with address confidentiality for victims of domestic
violence, sexual assault, trafficking, or stalking, and authorizing the
Secretary of State to perform certain functions in maintaining
confidential addresses.38°
For purposes of the leave of absence provision of the 2006 law,
"domestic violence" means abuse as defined in section 60-3102 of the
Kansas Statutes, 38' and "sexual assault" means any crime defined in
371. Id. at 681.
372. Id.
373. id. at 1274.
374. Id.
375. Id.
376. Id.
377. Id. at 1279.
378. Id.
379. Act of May 24, 2006, ch. 213, §§ 9-10, 2006 Kan. Sess. Laws 1824, 1829-30 (codified at
KAN. STAT. ANN. §§ 44-1131 to -1132 (2006)).
380. Id. §§ 1-8 (codified at KAN. STAT. ANN. §§ 75-451 to -458 (2006)).
381. KAN. STAT. ANN. §44-1131(a).
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various criminal statutes dealing with sexual offenses. 382  Neither
"employer" nor "employee" is defined. Presumably courts will apply a
common law definition of employee, but the lack of a definition for
employer raises the question whether the statute will apply to employers
with only one employee.
The law prohibits an employer from firing, discriminating, or
otherwise retaliating against an employee who is a victim of domestic
violence or sexual assault for taking time off work to:
(1) Obtain or attempt to obtain any relief, including.., injunctive relief
to help ensure the health, safety or welfare of the victim or the victim's
child or children; (2) seek medical attention for injuries caused by
domestic violence or sexual assault; (3) obtain services from a domestic
violence shelter, domestic violence program or rape crisis center .... ;
or (4) make court appearances in the aftermath of domestic violence or
sexual assault.383
The employee must "give the employer reasonable advance notice of [his
or her intent] to take time off, unless such advance notice is not
feasible., 38 4 Within forty-eight hours of returning from the time off, the
employee must provide documentation to substantiate the reason for the
leave.385 The documentation may include, but is not limited to, "[a]
police report indicating that the employee was a victim of domestic
violence or sexual assault;" "a court order protecting or separating the
employee from the perpetrator of an act or domestic violence or sexual
assault, or other evidence from the court or prosecuting attorney that the
employee has appeared in court;" or documentation from an appropriate
professional that the employee was undergoing treatment for physical or
mental injuries or abuse.386  If an unscheduled absence occurs, "the
employer shall not take any action against the employee if the employee,
within [forty-eight] hours after the beginning of the unscheduled
absence, provides a certification to the employer in the form of any" of
the documentation just listed.387 Employers are required to maintain the
confidentiality of any employee seeking leave under the statute and the
confidentiality of any supporting documentation the employee
provides.388 Finally, an employee may use any accrued paid leave, or if
382. Id. § 44-1131(b).
383. Id. § 44-1132(a).
384. Id. § 44-1132(b)(1).
385. Id.
386. Id. § 44-1132(b)(2)(A)-(C).
387. Id. § 44-1132(b)(2).
388. Id. § 44-1132(c).
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the employee has no paid leave available, unpaid leave, of up to a total of
eight days per calendar year, as time off for a purpose described in the
statute, unless an applicable collective bargaining agreement or other
terms of employment provide for a longer period of time.389
Missing from this statute is any means of enforcement. Even
assuming that employers and employees are aware of their rights and
responsibilities under this leave law, what recourse does an employee
have if he or she is fired in violation of the express terms of the statute?
Or what if the employer fails to keep the employee's name and the
reason for the leave confidential? The failure to provide for a civil cause
of action with a damages remedy must have been a legislative oversight.
If the legislature does not amend the statute to deal with this omission,
the leave law might well be the perfect opportunity for the Kansas
Supreme Court to expand the scope of the public policy wrongful
discharge cause of action under Kansas law.
389. Id § 44-1132(d).
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