Florida Employment Lawyer Blog

Sarelson Law Firm is currently representing several employees at OshKosh B'gosh retail outlets who appear to have been subjected to a hostile working environment premised on racial and ethnic grounds. We would be interested in interviewing any witnesses who saw or heard inappropriate workplace conduct or commentary.

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 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 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.

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.

A question that arises in almost every single employment lawsuit is whether a plaintiff/employee can or should bring suit while the plaintiff/employee is still employed with the employer/defendant. The answer is almost always yes you can and yes you should.

First, there is no restriction whatsoever about being employed when you file suit. In fact, many hiring decisions (a failure to get a promotion, a reassignment, a transfer) are "actionable" employment actions that are still subject to state and federal anti-discrimination and anti-retaliation laws. The law protects against more than just termination - much more.

Second, if you've hired the right attorney, there are several strategic reasons why you will want to start the lawsuit while you are still employed. To begin with, if the company fires or in any way retaliates against you for filing the lawsuit (or for even speaking to an attorney), then the company is engaged in what we employment lawyers call "an independant act of retaliation" that gives rise to yet another lawsuit.

Some employer's seem willing to rid themselves of current employees who sue even if it risks another lawyer. That seems to be the case for Walmart, which recently fired a female employee who was the plaintiff in a sexual harassment lawsuit against the retail giant. The National Law Journal article is here. Nothing is more challenging to an employer's employment attorney than a lawsuit or charge of discrimination brought by a current employee!

Moreover, since the employer is very likely to terminate and is very eager to get rid of the employee who files suit, the plaintiff has an additional bargaining chip that can be used to negotiate a fair settlement. As a practical matter, any settlement of an employment lawsuit for an employee still employed is going to involve the plaintiff/employee resigning from the company.

If you wait until after you are terminated or after you resign to speak with an employment attorney, then you are doing yourself a disfavor that could result in a much weaker lawsuit. Once you believe something is wrong at work, you should immediately contact an employment attorney to learn your rights and to discuss an effective strategy.

Discount retail giant Big Lots agreed to pay $400,000 to five black employees as part of a settlement with the Equal Employment Opportunity Commission. Big Lots also agreed to new policies and procedures to insure that racial discrimination does not occur and that a racially hostile working environment can be reported and cured without fear of retaliation. In the Big Lots case, the hostile work environment came from the plaintiffs' co-workers at the same level of employment. But what got Big Lots in trouble was that the company failed to take corrective action once it was put on notice that the co-workers were making racist remarks on the job.

When you're working in a hostile working environment, the hostility alone is not what gets the employer in trouble and is not alone sufficient to bring a lawsuit. What get's the company in trouble, and what makes them liable, is the failure to correct a hostile working environment after the company knows about it. This is why it is imperative to speak with an experienced employment discrimination attorney before you are terminated or you voluntarily resign. Proactive representation is the key.

This just in to the blog. According to the Miami Herald, Boca Raton based office supply giant Office Depot has released a YouTube video to fight back against an employee who allegedly blew the whistle on mispricing of products sold pursuant to government contracts. The blog does not know what claims, if any, the employee has or is planning on bringing, but the blog is shocked at Office Depot's new viral marketing (smear) campaign. Whisteblowers and employees aware of misconduct should speak to an employment attorney as soon as possible, and preferably while still employed.

The Office Depot video is available here:

This is either an incredibly silly or incredibly bold move by Office Depot.

The Richmond-based Fourth Circuit Court of Appeals tossed a $10M punitive damage award in a case that reminds us that race discrimination claims can be based on just about any business or contractual relationship. In Worldwide Network v. Dyncorp, a jury found that Dyncorp (one of the nation's largest military contractors) terminated a subcontract with Worldwide Network because Worldwide Network was owned by African-Americans.

Title 42, Section 1981 of the federal statutes prohibits the use of race as a determining factor in entering into a business or contractual relationship. The court affirmed the jury's liability finding, i.e., Dyncorp violated anti-discrimination laws by terminating a contract due to the subcontractor's owners' race. But the court was troubled by the evidence supporting Worldwide Network's argument that the actual decisionmakers at Dyncorp who made the termination decision were racially motived. Punitive damages can only be awarded when the actual decisionmaker knows he or she is violating federal law. (A visiting judge strongly dissented and believed that there was ample evidence that Dyncorp's decisionmakers were aware that they were violating federal law).

The case was not a complete victory for Dyncorp -- the appellate court vacated the punitive damage award and remanded for a new trial with better jury instructions on when punitive damages are available. The blog anticipates that the parties will settle the punitive damage claim without the need for a retrial -- which could easily be larger than the original award and which would merely increase the attorneys' fees and costs Dyncorp would have to pay to both its attorneys and Worldwide Network's.

Were you denied a franchise because of your race? Were you denied a loan or other financial product, including insurance, because of your race? Anti-discrimination laws do not just apply to employment relationships and you should contact an experienced discrimination attorney as soon as possible.

According to the Palm Beach Post, Florida Power & Light has hired an outside law firm to conduct an internal investigation into allegations of corporate and securities fraud. The allegations were made anonymously by several FPL employees. The fraud allegations are unspecified (at least according to publicly available sources) but FPL is taking this very seriously.

Two good things have occured here -- (1) FPL employees have come forward to report what they believe to be fraudulent activity and (2) FPL is taking affirmative corrective action. Stay tuned to see how this plays out.

Concerned that your company is committing corporate, tax or securities fraud? Contact an experienced employment attorney as soon as possible, and preferably while you are still employed.

Federal and state law protect against discrimination in the workplace against members of the United States active armed forces, the reserves and the national guard. If you're contemplating joining the active military or the reserves, you need to know that in most cases your employer cannot discriminate or retaliate against you for your honorable decision. Employers cannot refuse to hire a reservist because reserve training would interfere with the workplace.

With hundreds of thousands of active, reserve and guard members called to active service to fight in Iraq and Afganistan (and to help in Haiti), it is no wonder why USERRA lawsuits are on the rise. This past week the U.S. Department of Justice settled a lawsuit with prestigious technology company MasTec. According to the press release, MasTec promoted another employee to a position held by an Army reservist while the Army reservist was in active military service. This is illegal -- a member of the military has a right to the same or equivalent position when he or she returns to work from active military duty.

Most USERRA claims go unresolved because many members of the armed forces are unaware of their USERRA rights, are too embarrased or stubborn to do anything about it, or the financial damages are too low for many lawyers to take on the case. The MasTec settlement, worth about $6,000, is a perfect example of a case where liability is clear, but the money is small. (And the Blog commends the DOJ for taking the case!) Contact an experienced USERRA lawyer before you leave for active duty and before your employer has an opportunity to terminate or threaten you. Prevention is the best medicine to avoiding a USERRA problem.

According to a newly filed lawsuit, the federal air marshals that protect against terrorist acts in the sky are subject to a racially insensitive and hostile work environment. There are over 3,000 federal air marshals but apparently the friendly skies are not as friendly as you might think. Many air marshals - including several based in Miami and Orlando - are claiming to have been the victim of employment discrimination and of being forced to work in a hostile environment.

One would think that the federal government does a fantastic job at preventing workplace disrimination, but all too often government officials and agencies look the other way and allow a hostile environment to foster and linger. Most federal anti-discrimination and anti-retaliation laws protect government and public-section employees just as strongly as they protect private employees. If you work for the State of Florida, a municipality within Florida, or a federal agency, it is imperitive that you contact an experienced employment attorney as soon as possible, and preferably while you remain employed.

The Family and Medical Leave Act gives certain employees the right to take up to twelve weeks of unpaid leave to care for a new baby, to fight a serious medical condition or to care for a dependant family member. It was President Clinton's very first piece of legislation and is considered groundbreaking for its acknowledgment that many families are one medical condition away from bankruptcy and that women, more so than men, are subtly punished for having a child. But unlike most employment statutes that require intentional misconduct by the employer, the FMLA is a "strict liability" statute. The company has an affirmative obligation to compy with the FMLA, and when it fails to do so, even unintentionally, it could face serious monetary penalties.

The biggest problem area facing both employees and employers is the "right to return to work" provision. Employers must return a person on FMLA leave to the same or equivalent position, except in the rare circumstance where the position is no longer available due to reasons "wholly unrelated" to the FMLA leave. Two recent cases filed in federal court in Miami highlight the potential danger for employers. First, in Marks v. Orion Medical Enterprises, the employee was denied reinstatement after taking FMLA leave, purportedly because the employee was not physically capable of returning to work. (In the interest of full disclosure, the case against Orion was brought by the author of this blog). Second, in Guzman v. Royal Caribbean Cruises, the employee was returned to work after taking FMLA leave, but according to the complaint, the employee's temporary replacement assumed the employee's responsibiltiies and the employee who took leave was essentially shunned by the company upon returning to work.

It is common for employers to use an employee's FMLA leave to try out new or temporary employees or to "shake things up." But this is illegal and it frequently gets employers in trouble. Even if the employer did not intend to discriminate against the employee who took FMLA, the company is still violating the FMLA by failing to reinstatement the employee to the same or equivalent position.

If you are contemplating taking FMLA leave, you should contact an experienced FMLA employment attorney before you take leave to make sure that your rights are protected ahead of time.

For years the federal courts have disagreed over what amount of bad, rude, sexist and raunchy langauge is required for someone to bring sexual harassment lawsuit. But a recent opinion by the Eleventh Circuit Court of Appeals provided much needed guidance on the topic and made it clear that using words such as "bitch," "whore" and "cunt" in the workplace are unacceptable. Too many women have been denied their day in court because some judges have concluded that a certain amount of foul language is just part of the workday. Conduct that was accepted and tolerated twenty or thirty years ago is no longer acceptable and women have the right raise these issues with the employer and, if necessary, file suit to enforce and vindicate those rights.

In Reeves v. C.H. Robinson Worldwide, a female employee - who previously served in the U.S. Merchant Marines and was no stranger to sexist jokes and language - was forced to listen to her male co-workers degrade her and other women in the workplace for years. When she complained to management she was blown off and no corrective action was taken. After filing suit, the trial judge dismissed the lawsuit because he concluded that the daily verbal abuse and degradation she suffered was not sufficient to constitute sexual harassment. But the Court of Appeals strongly disagreed and issued a well-reasoned and detailed opinion reversing the dismissal and allowing the cas to proceed to trial. What makes the decision so important is that, despite being considered a very conservative court, not a single judge dissented or disagreed in any way with the reversal.

This case stresses the importance of having a zero tolerance policy when it comes to sexist language and conduct, and the importance of consulting with an experienced sexual harassment employment attorney as early as possible.