Florida Employment Lawyer Blog

A former news anchor for WSVN Channel 7 Miami (owned by Sunbeam Television) won a huge jury verdict earlier today. She was awarded nearly $750,000 in back pay, $97,000 in lost pension benefits, and $50,000 in punitive damages. The plaintiff is also entitled to attorneys' fees and costs, which will likely exceed several hundred thousand dollars. The case is Mitzell v. Sunbeam Television Corporation and was tried in the Miami-Dade County Circuit Court.

The defense was represented by Michael Casey, head of the Miami office of Epstein Becker & Green. Casey is a terrific employment lawyer so you can bet an appeal is being contemplated. (The plaintiff was apparently seeking $2M in back pay and $100,000 in punitives -- so the verdict was less than what she was seeking).

The Sun-Sentinel covers the story (but not the verdict) here. The plaintiff alleged that she was fired because the station wanted a younger anchor. A south Florida jury agreed.

Sarelson Law Firm was the lead counsel in the Eleventh Circuit's landmark age discrimination case Mora v. Jackson Memorial Foundation and has extensive experience representing older workers. (Ironically enough, Jackson Memorial was and is represented by Mr. Casey as well).

Within the world of employment law, judges have created a judicial doctrine known as "the stray remark." There is absolutely nothing in the text of any anti-discrimination statute that even remotely discusses "stray remarks." The theory is this -- many times employees might say a phrase or two that, standing alone, is harmless and unintentional, and thus is not sufficient to rise to the level of discriminatory animus.

For example, a co-worker or an indirect decision-maker who says "you must have had a senior moment" is not actually making a comment about the employee's age, but is rather just making a silly off the cuff remark that has no legal significance. A co-worker who complains that a restaurant is "Jewing us" when the portion size is too small is not anti-Semitic, he's just making a stupid remark that is not indicative of bigotry.

It might be true -- people make silly stray remarks all the time. People says things they don't mean. Yelling at a "crazy woman driver" who cuts you off is not necessarily an indication that you hate women.

But courts have taken the concept of a "stray remark" to an extreme. Many trial judges will rule, as a matter of law, that stray remarks are not evidence of discriminatory animus, and thus the employee is not even entitled to his or her day in court.

This has never made much sense to the blog. Sure people make dumb comments all the time that they don't mean (or that they wish they could take back). But should a judge or jury decide if a stupid, off-the-cuff comment is evidence of racial animus or just a stray remark. Juries are not stupid and they can tell the difference.

Recently, the California Supreme Court finally had the courage to challenge the "stray remark" doctrine and forced the defendant to actually convince a jury that a stray remark was just a stray remark. The case is Reid v. Google, Inc. (yes the Google we all love and use daily).

Google unsuccessfully argued that comments such as "old man" and "old fuddy-duddy" were just stray remarks and were not evidence of age discrimination. The California Supreme Court did not weigh in on the merits of the terminated employee's claims, it merely held that the stray remark doctrine is not appropriate and that the jury decides what certain phrases and words mean. Reuters has good coverage here.

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.

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.

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.

This blog's author is the plaintiff/appellant's attorney in Josephine Mora v. Jackson Memorial Foundation, Inc. The district court granted the employer's motion for summary judgment on the employer's "same decision" affirmative defense. But today, the Eleventh Circuit reversed and allowed the case to proceed to trial. Aside from being a great personal victory for the plaintiff, the case is important because it is the first appellate decision to analyze the Supreme Court's 2009 decision in Gross v. FBL Financial, 129 S.Ct. 2343 (2009). In Gross, the Supreme Court rejected an employer's mixed-motive/same decision affirmative defense in claims brought pursuant to the Age Discrimination in Employment Act.

The Eleventh CIrcuit today clarified Gross and held that ordinary summary judgment principles apply in age discrimination cases. Either the plaintiff was terminated because of her age, or she was not. What the employer hypothetically might have done is not relevant to the claim. The opinion is here:
Mora v. Jackson Memorial Foundation

Questions about age discrimination or retaliation? Contact an experienced age discrimination employment lawyer today.

Ordinarily one would not think that child labor is a significant problem in the United States. And generally speaking, you would be right. But it is not unheard of and a recent series of raids by the Department of Labor illustrates the problem. Over the past several months, several local malls -- including the Dolphin Mall, the Sawgrass Mills Mall and the Gardens Malls -- have been cited for violating child labor laws.

The United States has few laws prohibiting child labor (and Florida has even less), but one of the few laws routinely violated is the prohibition on children 17 years old and younger engaged in hazardous activities. Anything considered "hazardous" is off-limits, but the regulations do not specify what is and what is not deemed hazardous. Machine equipment, trash compactors and forklifts are generally hazardous, but what about an industrial kitchen or gym equipment?

Questions about federal and state child labor laws? Contacted an experienced employment attorney today.

Walmart doesn't have the best reputation as an employer and it has been defending a billion-dollar sex discrimination lawsuit for years in California. Now it is alleged that Walmart has a practice of systematically terminating older workers and replacing them with younger workers. A lawsuit filed on behalf of several New York based Walmart employees was recently filed in federal court in Manhattan. But with stores throughout the nation, including many here in Florida, you can bet current and former Walmart employees all over Florida and the country will be following this lawsuit very closely. The lawsuit is here:

Walmart Age Discrimination Class Action Complaint

Questions about age discrimination? It has become much more prevalent in recent years and companies are getting savvy about how to layoff older workers without getting caught. Don't hesitate to contact an experienced age discrimination employment attorney today.

Among the most intellectually challenging and unresolved issues facing employment attorneys is the very basic question of whether a partner in a business can also be an employee. Over the last several years many law firms have been sued by "partners" for violating the Age Discrimination in Employment Act -- even though the plaintiff was a partner in the firm, i.e., the plaintiff is, at least theoretically, one of the owners of the business. Generally speaking, the owner of a business is not also an employee and cannot sue for employment discrimination. But the Equal Employment Opportunity Commission has alleged that major international law firms, including Sidley and Kelley Drye, have forced out older partners and that in doing so, they violated federal discrimination laws that protect older Americans.

Now one Florida appellate court has chimed in on the subject. Florida law provides that anyone who prevails against an employer in a lawsuit for unpaid wages is entitled to have the employer pay the plaintiff's attorneys' fees. (This is important because when it comes to ensuring the employees are paid their proper wages, it is vital the employee be "made whole."). But does Florida law include claims brought by a partner against the partnership for unpaid wages pursuant to an employment agreement? We now know the answer is "yes." In what the blog considers to be a case of first impression, Florida's Third District Court of Appeal concluded that Florida's statute mandating attorneys' fees to prevailing employees applies to a partner's claim for unpaid wages against the partnership.

It is unclear whether the rule in BDO Seidman LLP v. Bee will be followed by other Florida courts or whether it is an outlier whose ruling is limited. Questions about your status as a "partner" in a law or accounting firm? Don't hesitate to contact an employment attorney before your question becomes a lawsuit.