Southwest Florida Employment Law Blog

Employee Retaliation Claims Continue to Rise

Posted in Discrimination, Harassment, Retaliation, Sexual Harassment

Eeoc_logo2Thanks to Richard Cohen and his Employment Discrimination Report blog and the Washington Post for focusing attention on the recent report by the U.S. Equal Employment Opportunity Commission (EEOC) about the rapid increase in retaliation claims in the workplace. For years, employment discrimination complaints (i.e., claims by employees that they were discriminated against on the basis of one or more protected factors like race, gender, national origin, age, etc.) were at the top of the EEOC charts as far as number of claims filed. However, as my colleague Suzanne Boy noted back in January 2013, since 2010 there have been more retaliation claims filed with the EEOC than any type of discrimination claim.

The big increase involves claims filed by eligible employees (those who work for employers with at least 15 employees and most public employers) that they were demoted, fired, transferred, denied a raise or a promotion or similar complaints in retaliation for having complained about race, gender, age or other types of discrimination – sometimes even where the alleged discrimination involved someone else. According to the EEOC, a record 38,539 retaliation charges were filed in fiscal year 2013.

The statistics for Florida are similar. In 2013, a total of 3,095 retaliation claims were filed, representing about 41% of the complaints filed with Florida offices of the EEOC. This compares to 2,533 race discrimination complaints, representing 33% of all charges filed.

What accounts for the increase?

The Washington Post quotes Robert Weisberg, regional attorney for the EEOC’s Miami office. Weisberg attributes the increase to greater awareness by employees of their rights in the workplace: “I see often where there’s sexual harassment that in the past might have been tolerated, now is leading to internal complaints of discrimination, and that then sets the stage for retaliation of some sort.”

Only a small percentage of EEOC charges end up in court, but employers (and their insurance carriers) spend millions of dollars annually defending against these claims in the administrative process, whether or not a lawsuit actually gets filed.

Employment lawyers are hardly surprised by the EEOC statistics, as we have seen the increase in retaliation claims since the Supreme Court expanded the types of employer conduct that could be considered retaliation in the 2006 Burlington Northern & Santa Fe Railway Co. v. White decision, and in a 2011 decision, Thompson v. North American Stainless, where the majority held that a worker fired after his fiancé accused their mutual employer of gender discrimination was entitled to sue for retaliation. Given the state of the law, there is no reason to believe that retaliation claims will taper off for 2014 and beyond.

Photo Courtesy of Wikipedia Commons

Have You Been Using E-Verify More Than 10 Years?

Posted in E-Verify

If yes, please download the new “Historic Records Report” before Dec 31, 2014.

In order to comply with the National Archives and Records Administration’s retention and disposal schedule, United States Citizenship and Immigration Services will on January 1, 2015, delete all E-Verify transaction records more than 10 years old from the system. After that, employers will no longer have access in E-Verify to cases created prior to December 31, 2004.

For employers that want a record of cases that are more than 10 years old, E-Verify has created a new Historic Records Report that will include all transaction records for cases more than 10 years old. However, access to the report is only available until December 31, 2014.

It is a best practice to record the E-Verify case verification numbers on the relating Form I‑9. Accordingly, employers are encouraged to retain the Historic Records Report with the Forms I-9.

Hereinafter, E-Verify will delete transaction records more than ten years old annually. USCIS will advise employers each year when the Historic Records Report is available for downloading.

For more information and guidance on downloading see the Fact Sheet and Instructions.

Medical Marijuana and Employers’ Rights

Posted in Miscellaneous

Medical-marijuana-sign flickr Laurie AvocadoTwenty-three states now permit medical or recreational marijuana use, yet the overwhelming number of public and private employers continues to prohibit employees from using the drug. As the number of states allowing private marijuana use grows, businesses are having growing concerns about their rights to enforce workplace drug policies and otherwise operate their businesses in a drug-free environment. A case will soon be heard that will likely examine these competing interests directly.

The ABA Journal and New York Times report that in Colorado, where the drug is now legal for recreational use, an employee fired for using marijuana off-duty has appealed his termination to that state’s highest court. The Colorado Supreme Court will hear oral arguments on September 30, 2014 in a suit filed by a fired customer service representative who uses medical marijuana to control painful spasms he has suffered since he was paralyzed in a car crash.

The worker, Brandon Coats, was fired after he failed an employer-administered drug test. He argues his job at Dish Network is protected by a Colorado law that bars companies from firing workers for legal, off-duty activities, the New York Times reports.

“It wasn’t like I was getting high on the job,” Coats told the Times. “I would smoke right before I go to bed, and that little bit would help me get through my days.”

Dish Network, on the other hand, argues that marijuana is still illegal under federal law and that it had the right to fire Coats as a result of his illegal drug use.

Despite the fact that marijuana use is now legal in almost half the states, employees have had a difficult time convincing courts that the right to use pot should trump their employer’s right to run the workplace drug-free. In fact, Brandon Coats lost his intermediate appeal in a 2-1 decision by the Colorado Court of Appeals.

Employment lawyers and other observers will be watching this case closely as an indication of how courts will attempt to balance the newly-declared legal rights of employees to use marijuana against the employer’s rights.

Finally, Florida voters will soon have the right to decide whether to expand the use of marijuana for medical purposes, as Amendment 2, known as the Florida Right to Medical Marijuana Initiative, seeks to expand the types of medical disorders, conditions, symptoms and populations that can legally treat with the drug, as well as extend discretion to health care providers to prescribe the drug for medical purposes.

If Amendment 2 passes, Florida employers will soon be facing the same challenges as their counterparts in the 23 other states that permit marijuana use, and the courts in the Sunshine State will undoubtedly be busy hearing legal challenges similar to the Colorado case.

Photo by Laurie Avocado on Wikimedia Commons

Football Season Off to a Litigious Start

Posted in Fair Labor Standards Act (FLSA), Wages & Overtime

8230562364_710b5ef675_mFootball fans around the globe may be rejoicing at the official start of the NFL season, but the cheering may be somewhat less than usual this year. That’s because a number of current and former NFL cheerleaders have filed lawsuits in Florida, New Jersey, New York, California and other states for violations of state and federal wage and hour laws, including the Fair Labor Standards Act (FLSA). The cheerleaders are claiming they were significantly underpaid—or in some cases not paid at all—for their services, which include performing during games, rehearsing prior to games, and attending community events. Teams that have been sued include the Tampa Bay Buccaneers, New York Jets, Buffalo Bills, Oakland Raiders and Cincinnati Bengals.

In the Florida Complaint, plaintiff Manouchcar Pierre-Val filed a proposed federal class action seeking to represent a class of cheerleaders who worked for the Tampa Bay Bucs within the last three years, and who were allegedly not compensated at the required minimum wages due under the FLSA. The lawsuit claims that the cheerleaders were paid only $100 per game for an average of 8 home games per season, plus limited wages for appearances made at paid corporate events. However, according to the complaint, the cheerleaders actually worked many more hours each week and each year for which they were not properly compensated as required by federal and Florida law. Plaintiff Pierre-Val alleges she received about $2.00 per hour for all of her services.

Other lawsuits filed in federal and state courts allege similar minimum wage violations, as the plaintiff in Brenneman v. Cincinnati Bengals, Inc. (S.D. Oh., Feb. 11, 2014) claims her hourly wage equaled approximately $2.85, while the plaintiff in Krystal C. v. New York Jets LLC (N.J. Super. Ct., Bergen Co., May 6, 2014) claims cheerleaders received $150 per game and $100 for special events, but no pay for time spent practicing or traveling, nor for mandatory time spent on uniform maintenance. Based on her actual hours, the plaintiff in the Jets case claims that she was only paid $3.77 per hour.

For other at least one other team sued in a similar lawsuit, it could be worse. As reported by attorney Vincent Antoniello with the Resnick Law Group, P.C., a lawsuit filed in New York state court against the Buffalo Bills, captioned Jaclyn S., et al v. Buffalo Bills, Inc., et al, No. 804088/2014, complaint (N.Y. Sup. Ct., Erie Co., Apr. 22, 2014), claims that cheerleaders were required to submit to a weekly “jiggle test,” and that they could face monetary penalties for failing.

It will of course take time for these cases to wind their way through the various courts, and whether any of these lawsuits will be successful remains to be seen. However, with separate pressures on the NFL to properly address (and compensate players for) concussions and other serious injuries, as well as the recent controversies regarding domestic violence by NFL players, all is not exactly rosy so far this season. No doubt that the labor practices of NFL teams will continue to be scrutinized carefully and the smiling faces of cheerleaders on the sidelines this season may be misleading.

Photo by arctic_whirlwind on Flicker

Self-Driving Lawsuits?

Posted in Discrimination

self driving car by  Steve Jurvetson flickrHere’s a novel question for you: What do so-called “autonomous” cars have in common with class action federal employment discrimination lawsuits?

As an admitted car guy, I am often taken to drawing parallels between the automotive world and the legal profession (and just about everything else in life). So when I recently came across a lawsuit filed by the EEOC, my mind wandered from the courtroom to the road. Let me explain.

First, as you may know, an autonomous car is a car that literally drives itself — a “self-driving” car. If you’ve been reading too many car magazines like me, you’ve probably read about ongoing research and development efforts by various car manufacturers to develop a truly self-driving, pilot-less vehicle. Many automotive experts predict that in a relatively short period of time — say 10 years from now, perhaps sooner — such vehicles will be commonplace on roads in the U.S. and elsewhere.

EEOC v. Bass Pro Outdoor World

Back to the law: In 2011, the EEOC filed a federal class action lawsuit in Texas against the retailer Bass Pro Outdoor World, which operates around 60 Bass Pro Shops around the country. The lawsuit (Civil Action No. 4:11-CV-3425, U.S. District Court for the Southern District of Texas, Houston Division) accused the company of hiring discrimination against Black and Hispanic job applicants. What made this lawsuit unique — and one that drew a parallel to self-driving cars in my mind — was that this may be the first class action of its kind where the EEOC did not name a single plaintiff up front. In other words, no plaintiffs! So, who was behind the wheel?

It turns out that no one was. The EEOC tried to justify its decision to proceed without any named plaintiffs by arguing that it is difficult to find victims of hiring discrimination, but as the nation’s top enforcement agency it has a legal obligation to combat workplace discrimination even where no one has come forward. Additionally, the agency is actively soliciting plaintiffs for the case and several other pending class actions on its website, and states “We are looking for people who may have been affected by the unlawful discrimination alleged in these suits.”

Bass Pro’s defense focuses on its argument that the EEOC has refused to identify potential plaintiffs, and has never provided the company with names or other identifying information that would Bass Pro to investigate the claims and determine what, if any, corrective action needed to be taken. The EEOC has responded with statistical data that it claims supports its position that Bass Pro has a “shortfall” of minority employees at its stores around the country, even though the agency failed to provide any names when it filed the lawsuit.

The Bass Pro lawsuit has had many twists and turns since 2011, and raises a number of novel legal questions, including how a federal lawsuit can proceed in court without any named plaintiffs or victims. Title VII authorizes the EEOC to sue on behalf of victims of illegal workplace discrimination, and the law also allows the agency to sue businesses that are engaged in a pattern or practice of discriminatory conduct. But, despite this statutory authority, the court agreed with Bass Pro, dismissing much of the lawsuit in 2012 because the EEOC “failed to allege even one plaintiff with any particularity.” But the dismissal was without prejudice, so the EEOC was allowed to refile, which it did—eventually naming about 200 plaintiffs.

Still, recently Bass Pro asked the court to dismiss the lawsuit again, arguing that because of the EEOC’s alleged failure to adequately identify aggrieved individuals, the company has been forced to “sift through a million application files” and try to speculate as to which applicants were minorities and which ones may have been denied employment because of illegal discrimination. The motion to dismiss is pending.

Autonomous, self-driving cars may be reality in the not-too-distant future, and if the EEOC lawsuit is successful, lawsuits without named plaintiffs may find their way into the nation’s courts. Stay tuned and keep your seat belts fastened!

Photo Courtesy of Steve Jurvetson on Flickr

What to Expect When Your Employee is Expecting

Posted in Discrimination, Family Medical Leave Act (FMLA)

This month, the EEOC issued its controversial Enforcement Guidance: Pregnancy Discrimination and Related Issues. Of course, we all knew that pregnancy discrimination was unlawful, but did you know that according to the EEOC Guidance:

  • Many short term pregnancy related conditions are considered disabilities under the ADAAA, and thereby implicating a duty to reasonably accommodate.
  • Employers must offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodations to non-pregnant employees with similar work restrictions.
  • Lactation is a covered pregnancy related medical condition under the ADAAA.
  • An employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drug devices and services that are used to prevent the occurrence of medical conditions other than pregnancy. (At least the EEOC at least recognized the Hobby Lobby decision by stating that the Guidance does not address whether an employer may be exempt from Title VII’s requirements under the Religious Freedom Restoration Act or the First Amendment!)
  • Parental leave (which is distinct from FMLA leave and medical leave associated with child birth and recovery) must be provided to similarly situated male and female employees on the same terms and conditions.

pregnant business woman in the officeThe EEOC Guidance is not law, but it is the enforcing agency’s non-binding interpretation of the law. Will courts agree with the EEOC’s broad interpretation of the Pregnancy Discrimination Act (“PDA”) and the ADA? We will know more after the Supreme Court hears the case of Young v. United Parcel Services, Inc. next term. In the UPS case, the Supreme Court agreed to review a Fourth Circuit decision finding that the PDA does not require employers to offer light duty to pregnant employees with work restrictions even if light duty is available for certain categories of non-pregnant employees.

Until we hear more from Those Who Wear Black Robes, be forewarned. Dealing with pregnant employees may be more complicated than you ever expected! And more costly!

Employment Law IQ: Nursing Mothers in the Workplace

Posted in Fair Labor Standards Act (FLSA), Wages & Overtime

Consider this scenario:newborn - flickr cc gabi_menashe

Eve is employed as a counter person at Cars-R-Us, an auto parts store with twenty employees. Eve recently returned to work after giving birth. She asked Cars-R-Us for periodic breaks to express her breast milk. She also asked the company provide her with a dedicated, private room to use her breast pump.

Which of the following statements is correct?

A.  Cars-R-Us can deny Eve’s request because it has less than 50 employees.

B.  Cars-R-Us can deny Eve’s request unless she has worked for the Company more than 1,250 hours during the consecutive twelve-month period preceding her request.

C.  Cars-R-Us should permit Eve reasonable lactation breaks, but it may require her to use the women’s bathroom to express milk.

D.  Cars-R-Us should permit Eve to take a reasonable lactation break in a private location, unless to do so would pose an undue hardship.

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Employment Law IQ: Unemployment Benefits and Handbook Headaches

Posted in Employee Handbooks

Time to test your Employment Law IQ again! Consider this scenario:employee handbook

Mike R. Clean hired Tommy as a night-time janitor at Squeak E Clean, Inc. During the first month of his employment, Tommy was a super star, but his performance went downhill quickly after that. Mike tried to coach Tommy, but Tommy just could not get it together. At the end of Tommy’s second month at Squeak E Clean, Mike terminated Tommy’s employment. A couple of weeks later, Mike was shocked when he found out Tommy would not only get unemployment, but it was going to be charged to Squeak E Clean’s account.

Why are Tommy’s unemployment benefits being charged to Squeak E Clean’s account?

A.  Because Tommy was not terminated for gross misconduct.

B.  Because Squeak E. Clean did not notify Tommy of the probationary period within the first 7 days of his employment.

C.  Because Mike did not write Tommy up before he was terminated.

D.  None of the above.

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Employment Law IQ: Reasonable Accommodation, Termination and the ADA

Posted in Disability Discrimination (ADA), Discrimination

ergo chair via Kare Products FlickrConsider this scenario:

Carmen Parada worked for Banco Industrial de Venezuela in New York as a credit analyst, a largely sedentary job that involved organizing credit letter applications, ensuring that certain documents complied with various standards, and issuing credit letters. In 2007, she fell on the sidewalk and suffered a spinal injury in her lower back. As a result, the employee was directed by her doctor to avoid “prolonged sitting” and to stand after 10 or 15 minutes of sitting. She borrowed a colleague’s ergonomic office chair temporarily, and was able to sit using that chair without the need for standing breaks. The employee asked her employer (a bank) multiple times for a permanent ergonomic chair as a “reasonable accommodation” under the Americans with Disabilities Act of 1990 (ADA). However, she never received the chair and was ultimately terminated.

Which of the following statements is correct?

A. The bank may deny the employee’s request for the ergonomic chair as a reasonable accommodation under ADA, since she is not precluded from sitting at all times.

B. The bank must grant the employee’s request for breaks to allow her to stand after 10-15 minutes of sitting as a reasonable accommodation under ADA but is not required to provide the chair at the employer’s expense.

C. The bank must grant the employee’s request to either stand periodically or use an ergonomic chair, but not both, and the employee has to pay for her own chair.

D. The bank must grant the employee’s request and provide the chair at the employer’s expense, if the employee can show that she is a qualified individual with a disability and the chair will allow her to perform the essential functions of her job.

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The Calculation of Florida Workers’ Compensation Benefits May Change

Posted in Workers' Compensation

firefighter by DVIDSHUB on flickrThe Florida Supreme Court will hear oral argument in the Westphal v. City of St. Petersburg early June 2014, a case that employers, insurance carriers, and workers compensation attorneys are closely watching. The First District Court of Appeal, which hears all workers compensation appeals from the Judges of Compensation Claims, certified the following question:

Is a worker who is totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at “maximum medical improvement” (MMI) by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?

“Date of maximum medical improvement” is defined as “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” The date an injured worker reaches MMI is a significant milestone in workers compensation, as it has historically determined the end of eligibility for temporary disability benefits.

Background of the Westphal Case

Bradley Westphal, a firefighter, felt a sharp pain in his back as he was moving heavy furniture while fighting a fire. By the time he returned to the fire station, he reported extreme pain and a loss of feeling in his left leg from the knee down. The City of St. Petersburg accepted compensability of his low back and left knee injuries and provided both indemnity and medical benefits.

Mr. Westphal sought and obtained temporary total disability (TTD) benefits for a period of 104 weeks but he was still totally disabled at the time those benefits expired. He filed a petition for benefits seeking permanent total disability (PTD) benefits, but the judge of compensation claims denied the petition after agreeing with Mr. Westphal’s treating physician that he was not at MMI.

This controversy stems from a supposed “gap” in the statute, in which some totally disabled workers are ineligible to apply for PTD benefits if they are not medically deemed to be at MMI. The First DCA was deeply concerned about this “gap,” with the majority finding that “the notion that there can be a period of time during which a disabled worker is not entitled to be compensated for his or her workplace injury is contrary to the basic purpose of the Workers’ Compensation Law.”

The First DCA’s Opinion

The First DCA withdrew an earlier decision which declared the 102 week statutory limitation on TTD benefits unconstitutional. In place of the earlier opinion, it issued an “en banc” decision holding that a worker who is totally disabled as a result of a workplace accident, and remains totally disabled by the end of his or her eligibility for temporary total disability benefits, is deemed to be at maximum medical improvement by operation of law.  Therefore, the worker is eligible to assert a claim for permanent and total disability. In doing so, the First DCA rejected its prior decisions that held an employee whose temporary benefits have run out, or are expected to do so imminently, must be able to show not only total disability at the end of temporary benefits but also that total disability will be existing after the date of MMI.

The court observed that employers and workers compensation carriers are not without recourse, since the Workers Compensation Law (§ 440.15(1)(d), Fla. Stat. (2009)) allows them to discontinue the payment of disability benefits to a worker who has regained earning capacity through rehabilitation: “When an employee is deemed to be at maximum medical improvement by operation of law, the employer is not stuck with that determination forever. The worker’s status and eligibility for benefits can change with the circumstances.”

However, the dissenting judges characterized the court’s decision as an “end run” and “brazen defiance of a clear statutory directive” that limits temporary benefits to two years under Florida law.

The Bottom Line

Given the importance of the First DCA’s ruling to future workers’ compensation benefits and cases, employers, insurance carriers, and attorneys are anxiously waiting to see how the Florida Supreme Court rules on these issues. We will of course keep you posted—stay tuned to our blog for updates.

Photo Courtesy of DVIDSHUB on Flickr