Florida Employment Lawyer Blog

In today's groundbreaking opinion in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court ruled that an employee had a reasonable expectation of privacy in e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account, despite accessing the e-mail account on a laptop provided by the employer. Additionally, the attorney-client privilege protecting the e-mails was not eliminated because the e-mails were sent and received on the employer's laptop. Stengart communicated with her attorney about her employment discrimination suit against Loving Care. Stengart returned the laptop when she stopped working for Loving Care.

Stengart did not know that the browser software in the laptop, which she used to access her Yahoo account, automatically saved a copy of every web page she viewed. The copies were saved on the laptop's hard drive in a "cache" folder. In preparation for discovery, forensic images were made of the laptop's hard drive, including the temporary Internet files, which contained several e-mails between Stengart and her lawyer. Loving Care's attorneys read the e-mails and used the information in discovery. After Stengart's lawyer demanded the e-mails be returned, Loving Care's lawyers disclosed them.

Loving Care argued, however, that Stengart had no reasonable expectation of privacy because the files were in a computer owned by the employer and because of Loving Care's policy concerning electronic communications. The policy stated that the company may access all information on its media systems and services at any time; additionally, all e-mails, Internet communications and files are Loving Care's business records. However, the policy also stated that occasional personal use was permitted. When using the Yahoo account, Stengart did not save her Yahoo ID or password on the laptop.

To analyze the reasonableness of Stengart's expectation of privacy, the Court examined the company's policy. The policy did not give notice to employees that messages on personal web-based e-mail accounts could be monitored if the company's equipment was used and did not warn employees that personal e-mails would be stored on the hard drive and forensically retrieved. Because she used her personal account and did not save the password, Stengart had a subjective expectation of privacy. Significantly, the Court held that although employers can enforce lawful policies regarding computer use, they have no basis to read the contents of personal, privileged communications. The court held that a policy stating that the employer could read attorney-client e-mails accessed through personal accounts could not be enforced.

The entire opinion is here:

Sooner or later every state, including Florida, is going to have deal with these issues head on. Unless reasonable expectations of privacy, even at the workplace, are protected, we can expect a end, entirely, to the attorney-client privilege. Sarelson Law Firm has extensive experience litigating workplace privacy issues, including a very similar case here in federal district court in Miami. Questions about workplace privacy? Contact Sarelson Law Firm today.

A group of Mexican janitorial workers in Chicago will receive proceeds from a $350,000 settlement with their employer, Chicago-based Gonella Bakery, Inc. The suit alleged that a mid-level manager routinely made derogatory remarks to the Mexican workers regarding their national origin. The company also agreed to enter into a consent decree to ensure that similar violations of the Title VII do not happen again. The EEOC's announcement is here.

National discount superstore Kmart - a subsidiary of Sears - agreed to settle an age discrimination lawsuit for $120,000. According to the press release, a 70-year old pharmacist was encouraged to quit and faced daily harassing language directed at her age. The Age Discrimination in Employment Act (along with similar state statutes like the Florida Civil Rights Act) prohibit employers from discriminating or retaliating against workers over age 40 because of the employee's age.

As American society ages, more older workers are going to be threatened and forced out to make way for younger workers who generally earn less and who are perceived to be more manageable. Older workers have specific protections (such as pension discrimination and the right to view similar severance packages).

Sarelson Law Firm has handled significant age discrimination matters. Employees should speak to an experienced age discrimination employment lawyer before the discrimination occurs.

The U.S. Supreme Court has agreed to hear a case from Chicago where the district court and Seventh Circuit Court of Appeals concluded that an oral complaint under the Fair Labor Standards Act is not sufficient to state a claim for FLSA retaliation. Unlike most other federal appellate courts, the Seventh CIrcuit concluded that only a written complaint to the employer about unpaid wages or unpaid overtime is protected by the FLSA. Every other court has concluded than any complaint made by an employee to an employer about overtime constitutes protected activity. In other words, if an employee in Chicago has an in-person discussion with his manager about why he is not being paid overtime, the employer may lawfully terminate the employee for having this discussion. Had the employee had the same discussion in an email exhange, the FLSA's anti-retaliation provision would be applicable, and any termination that resulted from the email exchange would be unlawful.

The Seventh Circuit's decision in Kasten v. Saint Gobain Performance Plastics Corporation is clearly incorrect because it results in creating a distinction between an in-person and email discussion between an employee and an employer. The blog anticipates that the Supreme Court will reverse the decision and apply a more liberal and equitable interpretation of the FLSA's anti-retaliation provision. The case likely will not be heard until October 2010. The employee's petition for certiorari gets it exactly right, and is available here:

Sarelson Law Firm has successfully represented employees and employers in FLSA retaliation lawsuits. Contact the Firm with questions.

Temporary staffing agencies are especially prone to employment lawsuits because they are frequently responsible not just for their own discrimination, but for the illegal employment practices of the companies that they place temporary workers with, i.e., their own customers. According to the EEOC press release, two Jewish brothers working at Administaff temporary placement agency in Baltimore were subject to harassing and illegal anti-semitic comments and conduct, including being thrown in a dumpster. The employees were deemed jointly employed by Conn-X, a Florida based company, and Administaff, the temporary staffing agency.

The result was not just a federal lawsuit and a significant monetary settlement, but the company was forced to enter into a consent decree that ensure that it alters its workplace environment to prevent any similar conduct from occuring in the future.

Sarelson Law Firm has experience in religious discrimination lawsuits and in crafting settlement agreements that provide both monetary and non-monetary relief.

Pregnancy discrimination is rampant and on the rise. Both male and female managers can be biased against pregnant or expected to be pregnant women because of the stereotype of taking time off work and of being sick and out of the office a lot. According to the EEOC press release, Imagine Schools, a national charter school company, failed to retain two female employees because they were pregnant. The result for Imagine Schools was a lawsuit by the EEOC and a $570,000 settlement.

Since the Americans with Disabilities Act does not consider "pregnancy" to be a disability, Congress amended Title VII to make clear that pregnancy discrimination is a form of sex discrimination and that it is illegal. Many states, including Florida, treat pregnancy discrimination as a form of sex discrimination without have a distinct statute like the federal counterpart.

Pregnancy discrimination is not limited to actually being pregnant. Being denied a job because the prospective employer believes you will become pregnant soon is still pregnancy discrimination. Being fired because you had or are contemplating an abortion is still pregnancy discrimination. Any discrimination or retaliation against a woman because she is, was, will be or is perceived to be pregnant is illegal. Sarelson Law Firm has experience representing victims of pregnancy discrimination. Call today before a problem arises.

The Family and Medical Leave Act ("FMLA") continues to be one of the most difficult employment statutes for employers to comply with. Many people, especially mid-level managers, simply do not appreciate that the FMLA's leave provision allows an eligible employee to take time off to care for a sick family member. A perfectly healthy adult male can sue under the FMLA when he is refused time off to care for a sick wife or child. That is exactly what is alleged in Walter Mcleroy v. Walmart, recently filed in federal district court in Pensacola, Florida. According to the complaint, the eligible employee requested paperwork to take FMLA leave to care for his wife while she was being treated for heart disease. A mid-level manager terminated him the next day. The complaint is here:

The FMLA is one of the few federal employment statutes that actually places affirmative duties on an employer. An employer is obligated to inform an employee of his potential FMLA rights. Unlike TItle VII and the ADEA, the employer does not get to sit back and wait for the employee to specifically request FMLA leave. Sarelson Law Firm has handled FMLA interference and retaliation lawsuits and is especially keen at representing employees who are contemplating FMLA leave. Consulting an attorney before you request leave is the best way to ensure that your rights are protected.

The Equal Employment Opportunity Commision ("EEOC") announced that the Seattle-based Les Schwab Tire Centers will pay $2 million to settle claims that it discriminated against women by not hiring qualified women for jobs that included tire changing. Schwab operates 400 tire stores in Washington, Oregon, California, Idaho, Montana, Nevada, and Utah. The positions were sales and service department jobs that were a prerequisite for the more lucrative managerial positions. Schwab denied these positions to women for over 50 years and just recently promoted the first woman to an assistant manager position. One of the plaintiffs, who was demoted from sales when corporate took over the independently-owned store she worked at, was told "No gal in the company would ever make that kind of money. Gals should work in admin."

According to the EEOC, company founder Les Schwab's own published book exposes a corporate culture where men get the better jobs. Mr. Schwab's book describes how men can succeed in the company, reinforcing a decades-old idea that men do certain jobs and women do others. Mr. Schwab published the book some time ago, but a copy is still available for sale in every Les Schwab store.

The settlement concludes a gender discrimination class action suit filed in 2006. Schwab has also agreed to maintain anti-discrimination policies and provide training to all employees, as well as reporting to the EEOC to show its compliance.

The EEOC expects that this settlement will emphasize the importance of providing equal employment opportunities. Employers that place men and women in different types of jobs based on stereotypical views of what each gender is capable of doing are violating anti-discrimination laws.

If you have been denied a certain position because of your gender, you should contact an experienced discrimination attorney.

On February 28, 2010, the Miami-Dade County Commission unanimously voted to enact a wage theft ordinance to ensure that employers are paying their employees properly.

An employee owed wages may file a complaint with the County, and the County, at its expense, will serve the complaint on the employer and request that the employer respond to the allegations. A hearing officer will determine what damages, if any, are due the employee. Importantly, the employee entitled to back pay is also entitled to a liquidated damage amount of twice the amount of back pay. Translation -- if you are owed $1,000, then you will receive $1,000 in back pay and $2,000 in liquidated damages for a total of $3,000. The ordinance also allows for an employee's attorney to be compensated directly from the employer.

Unlike federal wage laws, there is no requirement that the employer be engaged in interstate commerce or that the employer gross a certain amount of revenue. The only requirement is that the employee is owed at least $60 (yes, sixty dollars). Finally, the ordinance allows the employee to recover wages from the officers and owners of a corporation --- corporate employers will not be able to hid behind the corporate veil to avoid paying employees.

The ordinance is beng codified as Miami-Dade County Ordinance 10-16 and will be in Chapter 22 of the County Code.

For now, here's the entirety of the ordinance:

Continue reading "Miami-Dade County Passes First in the Nation Wage Theft Ordinance" »

The Miami Herald has excellent coverage of Jackson Memorial Hospital's decision to lay off 4,500 employees by early May as part of major cost-cutting moves. The struggling Miami-based hospital, which is technically owned by Miami-Dade County, is also closing two hospitals -- JMH North and JMH South.

Some of the employees are unionized (mostly through SEIU) and many are not. It is unclear how JMH will decide who to terminate. Employed by the Public Health Trust? Are you in danger of being downsized? Contact an experienced employment attorney as soon as possible to learn and protect your rights.

A settlement between Walmart and the U.S. Equal Employment Opportunity Commission concluding a sex discrimination lawsuit was accepted by the court on March 1, 2010. The EEOC sued Walmart for denying warehouse positions to female applicants from 1998 to 2005, in violation of Title VII of the Civil Rights Act of 1964. Walmart regularly used gender stereotypes when hiring for entry-level order filler positions, routinely telling female applicants that the positions were not suitable for women and that they preferred hiring young men. Walmart will pay $11.7 million in back wages and compensatory damages in addition to providing jobs to women as further relief. Pursuant to the settlement, Walmart must provide the order filler positions to eligible and interested females, ensuring that the first 50 available positions are filled by women. Additionally, Walmart has agreed not to discriminate in future hiring and not to retaliate against employees who exercise their rights by complaining about discrimination or becoming involved in investigations and legal proceedings.

A large settlement with a major employer like this one sends an important warning to all employers that they must stop discriminating on the basis of sex or face serious legal and economic consequences.

Despite Title VII being in effect for over 40 years, many employers still think it is permissible to engage in sex discrimination. Think an employer has discriminated against you at the time of hiring or promotion? Contact an experienced discrimination attorney today.

Sexual harassment and gender-based disrimination is illegal -- and it does not matter whether the person being harassed or discriminated against is a man or woman. Although Title VII was designed to empower women in the workplace, there is nothing in the law that limits its applicability to women.

Men are the new protected class that routinely find themselves being subjected to a hostile working environment because of their gender. Men with female bosses and female co-workers potentially face the same time of misconduct that women with male bosses can look to Title and the Florida Civil Rights Act to prevent. And men are facing a hostile work environment not just from women, but from other men. If a gay male supervisor harasses a straight male subordinate, and the harassment is of sexual nature, then it is illegal and violates federal and state law. Similarly, if a straight male supervisor harasses a gay male subordinate, then that too is illegal.

Bottom line -- all Americans have a constitutional right to be free from sexual harassment in the workplace. Of course not all flirtations or off-color jokes constitute illegal sexual harassment, but anyone who has every worked in even a medium sized office can testify to that "that guy" or "that girl" who takes it to whole new level. Too many courts have wrongly overcomplicated the analysis by considering the gender and sexual orientation of the harasser and the victim. This is silly and has absolutely no basis in federal or Florida anti-discriminatio and anti-retaliation statutes.

The Miami Herald, courtesy of the AP, has a great article on the subject. Sexual harassment against men is probably vastly underreported because most men would never complain or file a lawsuit because of the fear of embarassment or stigmatization. But that too shall pass in time.

Questions about sexual harassment? Don't wait until you're fired or you resign in protest -- it may be too late. Contact an experienced sexual harassment lawyer today.

A federal judge in Philadelphia refused to dismiss a lawsuit filed under the Family and Medical Leave Act where the employee named various individual managers as defendants. Unlike most federal and state laws, the FMLA allows aggrieved employees to file suit against the managers who terminated them in their personal capacity. According to the Order, the plaintiff's manager and other employees who conducted a forensic search of the employer's computers (to dig for a reason to "legitimately" terminate the employee) were subject to being personally sued.

This Order is important because some courts have incorrectly ruled that personal liability under the FMLA (and its sister statute the Fair Labor Standards Act) is limited to high level managers or corporate officers. Department managers and human resource managers need to be very carefully when dealing with an employee asserting his or her FMLA rights. The order is here:

Questions about the Family and Medical Leave Act? Contact an experienced FMLA attorney as soon as you are contemplating FMLA leave in order to protect your rights.

Federal civil rights actions against police officers under 42 U.S.C. s. 1983 are normally limited to the actual police officers who violate the federal constitutional rights. Police departments and supervisors are not "vicariously liable" for the misconduct of subordinate officers in the way an employer is vicariously liable for the negligent acts of its employees.

The only limited exception is when the supervisory police officers could have intervened to stop the subordinate officers from violating the citizen's constitutional rights. But these lawsuits are rarely successful because supervisors do not ordinarily sit on the sidewalk and watch a street officer beat the crap out of a person for no reason.

For every general rule there's an exception -- and the Eleventh Circuit just opined on a major one. The court affirmed a district court ruling that refused to dismiss a First Amendment lawsuit filed against the City of Miami's former police chief and other supervising offiers. The case stems from the massive protest at the 2004 Miami summit of the Free Trade Association of the Americas.

The relevant portion in Keating v. City of Miami is here:

"Because [Chief] Timoney, Fernandez, and Cannon had the authority, and exercised that authority, to direct the subordinate officers to engage in unlawful acts to violate the Protesters' First Amendment rights, they likewise had the authority to stop the subordinate officers from exercising such unlawful acts. Therefore, because Timoney, Fernandez, and Cannon knew that the subordinate officers would engage in unlawful conduct in violation of the Protesters' First Amendment rights by directing such unlawful acts, they also violated the Protesters' First Amendment rights by failing to stop such action in their supervisory capacity. Thus, their alleged failure to stop the subordinate officers from acting unlawfully
caused the First Amendment violations,"

The whole opinion is here. The case will be sent back to Judge Martinez for trial. Stay tuned -- I anticipate the City of Miami will file a petition for certiorari with the Supreme Court.

Washington Inventory Service, Inc., the nation's largest inventory control out-sourcing company, and its parent company, WIS Holdings Corporation, was sued for violating the Fair Labor Standards Act's minimum wage and overtime provisions. According to the Complaint, a WIS employee was "paid" via a Visa Debt Card but the Visa Debt Card had been activated by a different WIS employee. The Complaint also alleges that a class of employees were not paid properly because the company failed to maintain proper recordkeeping of all hours worked. The Class-Action Complaint is here:

Contact Sarelson Law Firm, P.A. if you would like more information about the lawsuit.

According to a recently filed lawsuit in New Jersey, a Sikh-American who wears a Turban was denied employment as a sales representative with Tri-County Lexus in northern New Jersey. This blog has written repeatedly about companies with grooming or dress codes that prevent religious Sikhs, Jews and Muslims (and some Christians) from gaining employment. The lawsuit, filed in cooperation with the Washington, D.C.-based Sikh Coalition, was filed last week in the New Jersey Superior Court and was brought under state law only. The complaint is here:
Kherha v. Tri-County Lexus Lawsuit

Sarelson Law Firm is not involved in this matter but has represented three Sikhs denied similar employment.