Florida Employment Lawyer Blog

The United States Department of Justice won a bench trial against the Alabama Department of Mental Health after suing on behalf of a servicemember who was denied reinstatement following deployment to Iraq. The Uniformed Services Employment and Reemployment Rights Act (USERRA) mandates that employers reinstatement employees following active duty and prohibits discrimination and retaliation against members of the military. It is rare for a state agecy to violate USERRA, but the court found that the health department did exactly that. The employee was awarded approximately $25,000 and a permanent injunction was issued against the state mandating future compliance with USERRA. The DOJ press release is here.

The blog has previously commended the DOJ for prosecuting these actions. Frequently the financial value of these types of cases is too low for a private attorney to handle on a contigency basis. Sarelson Law Firm has successfully settled similar actions. If you or someone you know is in the military, is about to be deployed, or has any questions about a servicemember's employment rights, contact us today for a free consultation.

The blog has previously posted about the Eleventh Circuit's controversial opinion in Corbitt v. Home Depot. The appellate court, with a 2-1 majority, affirmed summary judgment in a steamy sexual harassment lawsuit. A district court judge, sitting by designation, wrote a forceful dissent. The panel's decision was immediately criticized and the Eleventh Circuit decided on its own - without being requested by any party - to vacate the panel opinion and to rehear the case en banc. It was widely anticipated that the full court would reverse summary judgment and overrule its much earlier decision in Mendoza v. Borden, Inc.. The Mendoza opinion made it next to impossible for victims of sexual harassment to get to a jury in federal court. Mendoza had also been widely criticized. Earlier today, the Eleventh Circuit, at the request of both parties, dismissed the Corbitt case in its entirety. (No doubt because the parties settled the case). In dismissing the entire case, the Eleventh Circuit made clear that its original decision in Corbitt was and remains vacated. The controversial Corbitt decision is gone. This may reflect a wholesale change in the Eleventh Circuit's sexual harassment jurisprudence. Of course, the original Mendoza decision, itself widely criticized, will remain binding law in Georgia, Alabama and Florida until another case finds it way to the appellate court. Plaintiff employment lawyers now have Mendoza squarely in their sights.

According to a recent lawsuit filed by Sarelson Law Firm on behalf of a terminated employee of MedVance Institute, the private, for-profit career college has been violating the False Claims Act. When the employee complained about irregularities in the school's enrollment policy - specifically why students were being kept on the rolls despite not meeting eligibility requirements - he was terminated. MedVance, like several other private career colleges, benefits enormously from student loans that are insured by the federal government. These private schools make more money when more students are enrolled, and more students can enroll when they have access to affordable, government-backed loans. If a student drops out for personal reasons or fails out for whatever reason, the student's tuition payments stop. Since the school is for-profit, it will do what is necessary to maintain the student's enrollment - even if means changing grades or attendance records.

In recent years, several other private colleges have faced similar False Claims Act cases. Kaplan University has been for years defending a case assigned to the Southern District of Florida in Miami pursuant to a multi-district litigation order, and Texas-based Alta College settled a similar case in 2009 for $7 million.

In addition to recovering the value of the false claims, the False Claims Act has a specific anti-retaliation provision that entitles terminated employees to double back pay, as well as attorneys' fees and costs.

A copy of the pending lawsuit is here:

MedVance Institute False Claims

If you are familiar with MedVance's enrollment or business practices, Sarelson Law Firm would like to speak with you.

In Alansari v. Tropic Star Seafood, the Eleventh Circuit recently affirmed summary judgment for the employer where a black, Muslim employee alleged a hostile work environment. The plaintiff alleged that co-workers encouraged him to "find Jesus," played Christian music on the radio and made derogatory comments about his Muslim faith. The court concluded that these comments, while unwanted and in poor taste, did not rise to the level of being threatening or humiliating and did not unreasonably interfere with the plaintiff's ability to perform his job. As a result, the working environment was not considered "hostile" as that term is used in employment litigation. The seven-page, non-binding opinion demonstrates the difficulty employees face when filing hostile work environment claims. It also demonstrates that importance of contacting an experienced employment attorney while you are still employed and while the hostile environment is ongoing. Employees generally have an affirmative obligation to report hostile working environments to management and human resources before it becomes a lawsuit.

Miami-based Aventura Limousine has been sued (again) for unpaid overtime. The company has been sued several tmes over the last few years for similar overtime violations. The cases highlight two very basic issues that have harmed employees and have tricked up otherwise law-abiding employers.

First, according to the pleadings, Aventura Limousine was not hiring drivers, it was contracting with independent contractors. Employees are subject to the Fair Labor Standards Act's minimum wage and overtime provisions. Independent contractors are not employees, and thus the FLSA does not apply to them in any way. But this begs the threshold and dispositive question of who qualifies as an independent contractor?

The answer is deceptively complex. There is no clear, bright-line rule and the courts consider the issue on a case-by-case basis. This is of little help to employers. Unless the company can confidently demonstrate that it truly hired independent contractors and that it did not actually control them, most employers would be wise to settle up early and cheaply. Most of the time the employer loses this issue.

Employers need to retain an experienced employment attorney or an accounting firm to conduct an audit of what personnel are employees versus independent contractors. Aside from facing potentially enourmous civil liability by aggrieved employees, employers who misclassify their personnel face fines by the Internal Revenue Service. The government loses billions of dollars annually in unpaid payroll and income taxes.

Second, the case highlights the complexity of the motor carrier exemption. As a general rule, drivers, drivers' helpers, loaders and mechanics are exempt from the overtime provisions. But the exempt employees still need to be engaged in interstate commerce, and scholars have argued over what constitutes interstate commerice since the founding of the republic.

Sarelson Law Firm has extensive experience litigation FLSA matters on behalf of both employees and employers, and has also advised employers on FLSA compliance matters.

The blog has previously posted about law firms being sued for age discrimination due to mandatory retirement policies. Senior partners of larger firms started complaining that they weren't ready to retire and wanted to keep their equity and status. The Equal Employment Opportunity Commission even brought suit in one landmark case out of Chicago. And several law firms have changed their mandatory retirement policies in light of the Sidley experience. The emerging generally accepted legal theory was that law firm partners act and are treated more like employees than "owners" of the business, and as a result of the de facto status as employees, they were covered by state and federal anti-discrimination statutes.

Just when the debate seemed over, the Philadelphia-based Third Circuit Court of Appeals ruled that a female shareholder in a large, Pittsburgh-based law firm is not an "employee" for purposes of Title VII because, among other reasons, she could not be removed as a shareholder absent a 3/4 vote of the other shareholders. The terse opinion, which was deemed "non-precedential" by the court, affirmed summary judgment.

But the case highlights the complex, fact-intensive question of whether a shareholder can be treated as an employee. To determine whether a shareholder-director of a professional corporation is an employer or an employee entitled to invoke the anti-discrimination laws, the court looks at six factors: (1) whether the organization can hire or fire the individual or set the rules and regulations of the individual's work; (2) whether and, if so, to what extent the organization supervises the individual's work; (3) whether the individual reports to someone higher in the organization; (4) whether and, if so, to what extent the individual is able to influence the organization; (5) whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; [and] (6) whether the individual shares in the profits, losses, and liabilities of the organization. The court ruled as a matter of law that given these six factors, no reasonable juror could rule in the female shareholder's favor on the threshold issue of her status as an employee.

The short and non-binding opinion is here:

Kirleis v Dickie McCamey

This begs the question, what rights does a female shareholder have against being ousted due to her gender? The answer, for all intensive purposes, is none. (A different federal civil rights statute would protect a black shareholder from being ousted due to his race, but that statute does not apply to gender based contractual decisions).

Questions about sex discrimination? Contact an experienced discrimination attorney today.

In yet another setbeck for the overconfident employment defense bar, the Atlanta-based Eleventh Circuit Court of Appeals reversed a Miami federal judge's summary judgment ruling and reinstated an employment retaliation lawsuit for trial. In Alvarez v. Royal Atlantic Developers, Judge Carnes, in his usual colorful and literary manner, noted that the employer's confession that the employee's complaint of discriminatory treatment constituted protected activity under Title VII and confession that the employer terminated the employee because of the complaint should have resulted in the plaintiff's claims "sailing through" summary judgment. Once you read this early passage, you pretty much can stop reading:

"The company admits that Alvarez was fired sooner instead of later because of that letter, which it concedes is protected conduct. Given that admission and concession, one would think Alvarez's retaliation claim would sail past summary judgment, although the damages remedy might be trimmed because she eventually would have been fired anyway. But the retaliation claim did not drift, much less sail, past the shoals of summary judgment. It ran aground when the district court accepted as valid the company's four proffered reasons for firing Alvarez sooner instead of later. The two most interesting of those reasons are that it would be "awkward and counterproductive" to keep a disgruntled employee around and that Alvarez could vindictively use her position as controller to sabotage the company's operations."

For some reason too many employers and defense counsel wrongly believe that employers can come up with whatever excuse is necessary to justify an otherwise illegal termination or demotion. Unfortunately there are several bad opinions that remain binding that seem to suggest that the employer's hypothetical argument that it would have taken certain hypothetical action even if, hypothetically, the employer did not also consider the employee's statutorily protected rights is a defense that prevents an unlawfully terminated employee from even having his or her day in court. This "hypothetical" defense argument is a legal fiction that has no place in a court of law that concerns itself with what actually happened, as opposed to what might have happened.

The complaint Alvarez opinion is reproduced in its entirety here:

Alvarez v. Royal Atlantic Developers

Congrats to Martin Leach for this appellate win. If you have questions about this opinion, or any questions concerning employment discrimination and retaliation, feel free to contact an experienced employment lawyer today.

The EEOC is reporting that it has entered into a settlement and consent decree with Starbucks Coffee Company in an Americans with Disabilities Act lawsuit pending in Arkansas. Starbucks will pay $80,000 to a prospective employee who was denied employment as a barista because of he was suffering from multiple sclerosis.

In addition to paying the prospective employee $80,000, Starbucks agreed to institute proactive measures to ensure compliance with the ADA and other equal employment opportunity laws. Noticeably absent from the settlement was an order compelling Starbucks to hire the disabled employee who applied six times for the job of barista. (It seems odd to the blog that that person is still unable to work at Starbucks).

Sarelson Law Firm has experience representing people with disabilities in employment, housing, and public accomodations lawsuits. (And we can normally get you the job or get you reinstated in addition to back pay).

Under the Employee Polygraph Protection Act of 1988 (the "Act"), employees and prospective employees of private employers can rarely, if ever, be compelled to take a polygraph test. (Government employees and employees of private government contractors engaged in national security or similar matters are excluded).

Generally speaking, a private employer may not:

(i) require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test;or
(ii) use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee; or
(iii) discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the Act.

Private employers may force an employee to take a polygraph test under one of three very limited exemptions:

(i) current employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation; or
(ii) prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments; or
(iii) prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employees who had access to persons or property that are the subject of an ongoing investigation.

There a variety of other regulations concerning how polygraph tests can be administered, what notice is required to be given to employees being polygraphed, and what rights employees have to refuse to take a polygraph.

Employees being asked to take a polygraph test should contact an experienced employment attorney before agreeing to the test, and employers should be very careful to ensure that they are complying with the Act. The Act requires strict compliance, and any deviation from strict compliance will subject the employer to a civil lawsuit brought by the employee or prospective employee.

Title VII of the 1964 Civil Rights Act places liability on an employer who fails to take appropriate corrective action when female employees are being sexually harassed by co-workers, supervisors, and third-parties who are not employed by the offending employer. For example, if a company has a regular UPS or FedEx deliveryman who makes offensive jokes or engages in offensive conduct while on the employer's premises, female employees are well within their rights to complain to management that it needs to stop the conduct by the UPS driver. The fact that the UPS driver does not work for the employer is wholly irrelevant to the analysis. Failure to stop the sexually hostile environment is illegal, no matter the cause of the sexually hostile environment.

In Beckford v. Florida Department of Corrections, the Atlanta-based Eleventh Circuit Court of Appeals affirmed a jury verdict in favor of female correctional officers who were sexually harassed by inmates. This is the first time the Eleventh Circuit has affirmed liability premised on sexual harassment by inmates. Other circuits have made similar conclusions regarding inmates. The Department of Corrections argued that prisons should be exempt from Title VII because of the unique nature of prisons and inmates. The Court categorically rejected the Department's argument and held that prisons are no different from other employers. The Department knew that female officers were complaining about gender based abuse from inmates, but the Department did nothing to remedy the situation.

Beckford is also important because it reaffirmed the Eleventh Circuit's decision in Reeves v. C.H. Robinson Worldwide that the use of certain words, including cunt, bitch, whore and slut, are inherently gender based.

The unanimous opinion, authored by Judge Pryor, is here:

Questions about sexual harassment? Contact an experienced employment attorney before you quit and before you lose your rights.

Judy Calibuso is a financial advisor with Bank of America here in Miami, Florida. She has alleged, on behalf of herself and all other similarly situated female employees, that Bank of America, through its subsidiary Merrill Lynch, systematically discriminates against female financial advisors by giving them less opportunities and a less favorable compensation scheme. Although Ms. Calibuso lives in Miami, the class-action lawsuit is pending in the federal district court in Brooklyn, New York.

The class-action complaint is here:

Questions about gender discrimination? Contact an experienced employment attorney today.

The blog has previously covered employment lawsuits against Walmart, especially the massive Title VII case out of San Francisco and several Age Discrimination in Employment Act actions pending throughout the nation. Sarelson Law Firm actually is involved in some of the ADEA cases against Walmart.

The San Francisco-based Ninth Circuit Court of Appeals, sitting en banc with 11 judges participating, upheld the district court's certification of a class of nearly 1.5 million female employees of Walmart. The decision was 6-5 in favor of class certification, and two judges wrote blistering dissents. In light of the potentially billion dollar exposure for Walmart, you can bet a petition for certiorari with the Supreme Court is being briefed as I write this.

Here's a link to the Ninth Circuit's opinion -- it is too large to post here. Questions about Title VII, class-actions, or age discrimination lawsuits? Contact Sarelson Law Firm today.

Sarelson Law Firm has filed a putative class action lawsuit against Miami, Florida-based International Shipping Partners, Inc. for not paying employees proper wages and overtime. The lawsuit seeks class action status for all on-board employees who are not exempt seamen under the Fair Labor Standards Act. The word "seamen" has a very narrow and precise meaning in the law, so many employees who work on a ship, and even some who are called "seamen," are still entitled to overtime pay. ISP owns and manages ocean going vessels.

The lawsuit currently has four named plaintiffs and can be found here:

Moreno v. International Shipping Partners Class Action

If you have any questions about this lawsuit, please feel free to contact the Firm today.

Many employment lawyers and non-employment lawyers at large law firms have been following the EEOC's lawsuits against Sidley and Kelley Drye. These firms, like many law firms and other businesses, have mandatory retirement policies. Under the Age Discrimination in Employment Act, mandatory retirement policies are almost certainly illegal.

The issue for law firms is whether "partners" are "employees" within the meaning of the ADEA. Normally the owners of a business are not treated as employees, but most partners at large law firms, even equity partners, are more akin to employees than to owners.

Kelley Drye has agreed to change its mandatory retirement policy, and it will allow partners who reach age 70 to keep their equity. The firm will not confirm that it changed its policy in response to the EEOC lawsuit, but clearly it had to have played some role.

It remains to be seen what other large law firms modify their mandatory retirement policies in the wake of Kelley Drye and Sidley.

This week, two Eleventh Circuit decisions affirmed the district courts' entry of summary judgment in favor of employers in Family and Medical Leave Act cases. In Krutzrig v. Pulte Home Corporation, No. 09-12512 (11th Cir. April 5, 2010), the Plaintiff requested FMLA leave to have foot surgery. The next day, she was terminated. The supervisors deciding to terminate her employment said they were not aware of Krutzrig's leave request when they made the decision. The employer said the decision was based on Krutzrig's unsatisfactory job performance; she had been placed on a 30-day performance improvement plan. Despite the temporal proximity of the events, the court found no evidence contrary to the employer's claim that both decision makers were unaware of Krutzrig's leave request. The court adopted other circuits' reasoning that like the FMLA right to reinstatement, the FMLA right to non-interference with the commencement of leave is not absolute. The Court ruled that "an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave." Krutzrig demonstrates the difficulty an employee has in even getting to a trial in federal court because the court requires the employee to have actual proof that the actual decisionmakers actually took her FMLA request into consideration. The actual summary judgment standard requires a plaintiff to present evidence that she "could" win at trial, but the summary judgment standard that is being applied in practice is that the plaintiff must present evidence that she "will" win at trial. The blog is afraid that this decision will encourage employers to isolate decisionmakers and to avoid a paper trail of communication between and among supervisors and decisionmakers at all levels in an effort to escape liability for an illegal termination. This allows employers to get a free pass if the plaintiff cannot show that the employer's "we know nothing" defense is a fiction.

A second case, Schaaf v. Smithkline Beecham Corporation, dba Glaxosmithkline, No. 09-10806 (11th Cir. April 6, 2010), also addressed an FMLA interference claim. The decision affirmed the trial court's granting of summary judgment in favor of the employer. The plaintiff, Schaaf, was demoted upon returning from maternity leave. As in the above-discussed case, the employer claimed that their decision to demote or terminate Schaaf was based on the numerous complaints form her subordinates, failure to comply with a performance improvement plan, and several problems found by her interim replacement. Again, the court was persuaded by the employer's evidence that Plaintiff was demoted because of ineffective performance, and not for taking FMLA leave. The court rejected Schaaf's argument that the employer's finding of deficiencies while she was on leave constituted interference in violation of the FMLA. The court ruled, however, that the statute's purpose was not frustrated if the employee's absence allows the employer to discover previous problems that result in an adverse employment action. Such a situation would not be interference because "the employer is motivated not by the taking of the leave itself, but rather by prior deficiencies that, whenever they were discovered, would have prompted demotion or discharge whether or not the employee took FMLA leave."

These cases demonstrate the importance of retaining a seasoned FMLA attorney before requesting leave.