Miami Employment Lawyer Blog

A common practice among employers in South Florida seems to be making deductions from employee wages for mistakes made by employees. For example, if machinery breaks down due to employee misuse, many employers make deductions from the employee's wages to pay for the repair. Another example is the case where an employer makes deductions from wages because an employee shipped incorrect products to a customer or damaged merchandise or product, such as in the case where a waiter accidentally drops and breaks an expensive bottle of wine. Such deductions, however, are illegal and constitute a violation of the Fair Labor Standards Act (FLSA) if they result in the employee receiving less than the minimum wage, which is currently $7.25 per hour.

The seminal case with respect to this issue is Mayhue's Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196 (5th Cir. 1974). That case involved a Broward County based liquor store that required all employees to sign an agreement (as a condition of employment) that any cash register shortages would be deducted from the employee's wages. The trial court upheld the validity of the agreement, but the Fifth Circuit Court of Appeals declared that the agreement requiring repayment of cash register shortages was invalid because it violated the FLSA. In doing so, the Court held that (1) an employer cannot make deductions that result in the employee receiving less than the minimum wage and (2) the right to a minimum wage cannot be waived by agreement. The Court also noted that the agreement had the effect of impermissibly shifting part of the employer's business expense to the employee, which was inappropriate as a "kick-back" under the regulations.

Another common practice is for employers to make deductions for uniforms. However, under the FLSA if the uniforms are required by the employer, by law or due to the nature of the job, or if the uniforms are specially-branded clothing that must be worn by all employees, deductions for the cost of such uniforms may not reduce an employee's wage below the minimum wage.

Finally, it should be noted that this rule cannot be circumvented by requiring an employee to purchase his or her own uniforms or, in the case of merchandise damage (such as in the case of a broken bottle of wine), by requiring the employee to replace such merchandise. These would all be considered impermissible "kick-backs" that would be unlawful under the regulations.

Continue reading "Many Employer Deductions from Wages are Illegal if such Deductions reduce an Employee's Wages to Below the Minimum Wage" »

We recently settled a pregnancy discrimination claim that we filed on behalf of an employee that worked for a Miami-based financial institution. In that case, the employee performed her work well for several months, but as soon as she told her supervisor that she was pregnant, the company began treating her differently than other employees and her requests for time off to see her doctor were met with much less tolerance. She was ultimately fired, at which point we filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC). While we cannot give any more details, the case is typical of a pregnancy discrimination case.

A similar claim that was brought against the Kohler Company by the EEOC in Atlanta, Georgia was settled approximately two weeks for $175,000.00 and the company's commitment to conduct equal opportunity training. While the company denied liability, in that case the EEOC alleged that a showroom executive who had an excellent performance record was placed on probation after she informed management about her pregnancy and was ultimately fired prior to her delivery.

Under the Pregnancy Discrimination Act (PDA), discrimination on the basis of pregnancy is a form of sex discrimination. To prevail on a pregnancy claim, the employee must show that she was treated differently because of her pregnancy or a pregnancy-related condition. The PDA provides that an employer must treat a pregnant employee the same as they would treat any other similarly affected employee. The comparator employees would be employees that suffer any other temporary medical condition, such as having to undergo minor surgery.

However, while the PDA requires the employer to ignore the employee's pregnancy, the employer is not required to ignore absences from work unless the employer overlooks comparable absences of nonpregnant employees. Therefore, one of the most difficult challenges that arise with pregnancy claims is the belief that pregnant employees are entitled to take time off of work to go to medical appointments. This is not true. In this respect, the courts have held that excessive absences from work, even if caused by the pregnancy, could result in the justified termination of the pregnant employee's employment. Moreover, the PDA does not require employers to offer maternity leave or to take other steps to make it easier for pregnant women to work. As one court noted, "employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees." Troupe v. May Dept. Stores Co., 20 F.3d 734 (7th Cir. 1994). The important point is that the treatment must be the same. Therefore, a pregnant employee must be careful to schedule medical appointments during non-work hours and to limit absences from work, otherwise, her pregnancy claim could be in jeopardy.

Continue reading "Pregnancy Discrimination in the Workplace Occurs Frequently, But Excessive Absences Due to the Pregnancy Could Justify Discharge of the Employee" »

Two weeks ago, Plattner Automotive Group, which operates 11 dealerships in the State of Florida, agreed to settle a U.S. Department of Labor investigation and pay $71,129.00 in back wages to its employees. The Department of Labor determined that the company had violated provisions of the Fair Labor Standards Act (FLSA). One of the points stressed by the Department of Labor in that case was that while there is an overtime exemption for commissioned automobile salespersons, such salespersons must still be paid at least the federal minimum wage for all of the hours that they work.

Most clients believe that most commissioned employees are not entitled to overtime pay. However, that is not true. Some retail sales employees are exempt from overtime pay, but these exemptions require specific compliance with certain requirements. The classic example is the case of automobile dealerships, where sales personnel are exempt from the overtime pay requirement. Yet, this exemption is absolute. There are certain requirements that must be met. In addition, with respect to automobile salespersons, they must be paid at least the minimum wage for all hours that they work, regardless of whether or not they make a sale.

Typically, automobile salespersons are paid a set "draw" which is usually based on working forty hours per week at the minimum wage or slightly above the minimum wage. Problems arise if the salesperson either works more than forty hours per week or does not sell any automobiles. The problem is compounded if the salesperson works more than forty hours per week and does not sell any automobiles. The salesperson receives the draw, but does not receive any compensation for work performed over forty hours per week.

Another exemption for commissioned salespersons is the retail sales exemption. Typically, salespersons in a retail store are not entitled to an overtime premium. However, in order to qualify for the exemption, the following requirements must be met: (1) the employer must be a retail store, with 75% of the annual sales being retail sales; (2) the employee's regular rate of pay must exceed one and one-half times the applicable minimum wage for every hour worked; and (3) more than half of the employee's compensation must be in the form of commissions. If all of these requirements are not met, then the employer does not qualify for the retail sales exemption and an overtime premium must be paid for all hours worked over forty per week.

Continue reading "Department of Labor Found that Florida Automobile Dealership Violated Wage and Hour Laws and Required Back Wages to be Paid" »

Under the Florida False Claims Act, if an employee becomes aware that his or her employer has filed a false claim to a government agency, that employee may file a lawsuit and be awarded as much as 25 to 30 percent of the amount recovered. There is also a federal False Claims Act that covers federal false claims. For example, if an employee is required to submit a false time card or false report (e.g., an insurance report) to a state or federal agency under which the employer has a contract to provide products or services, the employee may sue under the applicable Florida or federal False Claims Act and will be awarded compensation. These laws are meant to assist the government in recovering money that is stolen by government contractors. The lawsuits are called "Qui Tam" lawsuits, which is short for Qui tam pro domino rege quam pro se ipso, a Latin phrase which means "He who sues on behalf of the King, also sues for himself as well."

However, it should be noted that an individual cannot file a claim based on "public information." The individual must be the original source of the information, e.g., he or she must have personal knowledge of and/or seen the false claim or fraud perpetrated. In the employment context, if an employee is required by his employer to submit a false claim or report, that employee has standing to sue under the False Claims Act and may recover as much as 30 percent of the amount recovered by the government. If an employee files a claim under the False Claims Act and gets fired because of it, then the employee can sue the employer for retaliation under the Florida Civil Rights Act or under the applicable federal law.

An example of recent litigation under the False Claims Act is the case of Merck Pharmaceuticals, where they agreed to pay $650,000.00 to settle a False Claims Act lawsuit. That lawsuit was settled in January 2008 and involved accusations of the company taking kickbacks and violating Medicaid best price regulations for the pharmaceuticals that it was marketing. Another example is the recent settlement (September 2009) by Pfizer Pharmaceuticals where they agreed to pay $2.3 billion for allegedly marketing "off label" drugs that were not approved by the Food and Drug Administration. In that case, a Pfizer employee will receive more than $51 million for bringing the matter to the attention of the authorities under the False Claims Act.

Continue reading "Florida False Claims Act may be a Remedy for Employees that are Faced with Doing the Employer's Bad Deeds" »

Many prospective clients have asked whether they are entitled to be paid when they are simply waiting to work or are "on-call." For example, the classic case is where the employer calls the employee in to work but, because of various circumstances, the employee is then told to wait before commencing work either because a table has not been seated, customers have not yet arrived, or other similar type of matter. The general rule under the Fair Labor Standards Act (FLSA) is that if the waiting time is spent primarily for the benefit of the employer, then it is compensable. However, whether waiting time is primarily for the benefit of the employer is dependent on the circumstances of each case. The question is whether the employee was "engaged to wait," which is compensable, or whether the employee was "waiting to be engaged," which is not compensable. See Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944), rehearing denied, 323 U.S. 818, 65 S.Ct. 427, 89 L.Ed. 649 (1945), and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (establishing "waiting to be engaged" doctrine).

In Florida, the courts have established several factors that are analyzed in determining whether waiting time is spent for the benefit of the employer. The factors attempt to discern how much restraint is placed on the employee's use of the time. The question is "Can the employee dedicate that time to personal activities?" The factors considered in this analysis are (1) whether there was a requirement that the employee stay or live on the premises, (2) whether there were excessive geographical restrictions on the employee's movements, (3) whether the frequency of calls into work were unduly restrictive, (4) whether a fixed time limit for response was unduly restrictive, (5) whether the on-call employee could easily trade on-call responsibilities, (6) whether use of a pager could ease restrictions, and (7) whether the employee had actually engaged in personal activities during call-in time.

Under this analysis, if an employee is required to remain on the employer's premises, or so close to the employer's premises that he or she cannot use the time effectively for personal matters, then such waiting time would be compensable. In fact, even time spent at home could be compensable if the restrictions placed on an employee's activities are so restrictive that the employee cannot use the time effectively for personal matters. The typical example is the case of forest rangers who engaged in fire protection activities for their employer. They were required to monitor hand-held radios twenty-four hours per day during on-call periods and respond immediately to emergencies. In that case, the court found that the employees were entitled to compensation under the FLSA.

Therefore, the analysis will initially turn on where the employee is required to wait. Almost invariably, if the employee is required to wait on the employer's premises, then the time waiting to work would be compensable. If the employee can leave the employer's premises, then the question is whether or not the employee can use the time effectively for personal matters. This will depend on the restrictions placed on the employee's use of the time.

Continue reading "Florida Courts Hold that Waiting Time is Compensable if Spent Primarily for the Benefit of the Employer Even if the Employee Does Nothing" »

Many employees think that they are not entitled to unemployment compensation benefits if they quit their job. However, that is simply not true. While it is a commonly held belief that an employee who quits his job is not entitled to unemployment compensation benefits, a recent decision of the 1st District Court of Appeals in Florida demonstrates that this is not true in all cases. In essence, the Court held that even if an employee voluntarily quits his job, the employee does not necessarily lose his entitlement to unemployment compensation benefits.

In that case, Reedy v. Florida Unemployment Appeals Commission, Case No. 1D08-6330 (1st DCA 2009), the employee voluntarily left her job because she was facing significant stress at work that gave her anxiety and exacerbated her medical problems. On appeal, the Court of Appeals stated the general rule that an employee who voluntarily quits a job is not entitled to unemployment compensation benefits unless it is shown that she left for good cause attributable to the employer. Then the Court found that the employee's job had become exceedingly stressful and that she had repeatedly asked for assistance, but simply did not get the assistance that she needed. She began to suffer headaches and chest pains, which her physician diagnosed were related to the anxiety and stress that she suffered at work. Her job performance began to slip significantly. Then, after a short vacation, the employee informed her employer that she would not return to work. She then applied for unemployment compensation benefits.

The Court held that under the circumstances of the case, the employee had shown good cause because those circumstances were such that any reasonable person would be compelled to have given up her job when faced with what the employee was faced. The Court found that the employee voluntarily left her job for good cause attributable to the employer and reinstated the unemployment compensation benefits.

This case demonstrates that there are circumstances where an employee will still receive unemployment compensation benefits even if he quits his job. Similar circumstances could include (i) where the employer cuts the employee's hours to such an extent that the employee resigns in order to seek a job that offers more hours, (ii) where the employee walks off the job because of a hostile work environment, and (iii) where the employer transfers the employee to a location that is much further away from her home.

Continue reading "Florida Court of Appeals Holds that an Employee Who Voluntarily Quits her Job May Still Receive Unemployment Compensation Benefits" »

The Eleventh Circuit Court of Appeals (which covers Florida), recently held that "mere flirting" in the workplace is not actionable because it is part of workplace socializing. In that case, Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir., 2009), two employees were subjected to comments, caressing, unwanted hugs, stroking of their hair, and touching of their thighs by their supervisor. The two employees were also subjected to sexually harassing telephone calls, invitations to go out for drinks, and comments about their appearances, such as being "cute" and the color of their hair and their private parts, as wells as suggestions that they would "like it" if they went out with their supervisor. On several occasions the supervisor would forcefully hug the employees in front of other employees and in company meetings.

The employees protested and requested that their supervisor stop because they were married and/or simply were not interested in him. Both employees made complaints to Home Depot's human resources department regarding their supervisor's advances, but the conduct and comments continued. Eventually one of the employees quit and the other was terminated for a violation of company policies. They both filed charges with the U.S. Equal Employment Opportunity Commission (EEOC) alleging sexual harassment. However, the EEOC terminated its investigation without a decision. The employees then brought suit in federal court.

Regarding the sexual harassment claims, the trial court granted summary judgment in favor of Home Depot stating that the conduct was simply not pervasive enough to constitute actionable sexual harassment or to create a hostile work environment. The employees appealed the decision to the Eleventh Circuit Court of Appeals. The Court first stated that in order for the conduct to be actionable, the comments and conduct needed to be of a sexual nature. The Court then stated that not all of the statements or conduct complained of were of a sexual nature. For example, the Court stated that comments regarding the appearance of the plaintiffs, that their clothing was appealing, that their hair was beautiful, and that the supervisor liked their eyes were inappropriate workplace comments, but not actionable under Title VII of the Civil Rights Act of 1964 because they were not "based on sex." Yet, oddly enough, the Court stated that these were mere "flirtatious comments." Regarding the touchings and other physical conduct, the Court found that there were only four touchings that were sexual in nature. They that the supervisor put his arm around one of the employees was not conduct of a "sexual nature." Based on this analysis, the Court eliminated many of the alleged comments and touchings and then concluded that the remaining comments and touchings were insufficient to make out a case of sexual harassment because they were just not frequent enough.

The Court's decision is alarming because it fails to view the alleged conduct in its appropriate context and in its entirety, as the law requires. The Court simply eliminated some of the conduct that it considered not sexual in nature, as if it never happened. Then held that the isolated conduct did not constitute sexual harassment. In this regard, Judge Fawsett, of the Middle District of Florida, siting by designation, issued a 10-page dissent stating that the conduct alleged by the plaintiffs goes far beyond "ordinary socializing in the workplace," particularly if viewed in context and under the totality of the circumstances as the law requires. As an example, the Court had held that the supervisor's putting his arm around one of the employees was not sexual in nature. However, Judge Fawsett astutely noted that the Court's conclusion failed to indicate that at the same time that the supervisor had his arm around the employee, he had also put his hand on the employee's thigh under the table where they were seated. Judge Fawsett noted that "[s]elect comments, pulled from their context and deemed facially inoffensive by the majority, demonstrate an impermissible sex bias when viewed in context." Judge Fawsett would have allowed the jury to determine based on the totality of the circumstances whether or not the conduct and comments constituted sexual harassment.

This case shines a light on how cases of sexual harassment need to be addressed. In particular, one of the failings of the plaintiffs may have been their not addressing the conduct and the comments of the alleged harasser in their entirety. They should have shown how all of the comments and conduct had sexual undertones, since it appears that they they did. Indeed, many employees of the company started referring to one of the plaintiff's as "Lenny's bitch." How else could that have been interpreted?

Continue reading "Court Holds that "Mere Flirting" in the Workplace is Fine; Sexual Harassment Must be Pervasive in Order to be Illegal" »

Under the new proposed regulations to the Amendments to the Americans with Disabilities Act (ADA), if an employer denies a job to an applicant because of uncorrected vision requirement, it may be a violation of the ADA. Many jobs, such as policemen, airline pilots, firemen and paramedics require a certain degree uncorrected vision to be considered for the job. For example, the many municipalities require that applicants for police officer or fire rescue jobs have uncorrected vision of at least 20/100. However, unless that requirement is job-related and consistent with business necessity, then it could be a violation of the ADA. In fact, the Amendments to the ADA, which became effective in January 2009, provide that most individuals who are screened out of a job because they cannot meet an uncorrected vision standard will meet the definition of having a disability.

The U.S. Congress passed the Amendments to the ADA in a specific response to two U.S. Supreme Court cases that narrowed the coverage of the ADA. One case in particular dealt with the issue of an uncorrected vision standard. In that case, Sutton v. United Airlines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Court held that a person is not "disabled" if corrective measures allow them to function as if they did not have a disability. In Sutton, two individuals who had 20/20 vision with glasses, but 20/400 vision without glasses were denied employment as commercial airline pilots because the airline required 20/100 or better uncorrected vision. The Court held that the two individuals were not actually disabled because they had 20/20 vision using corrective measures. However, Congress found that this ruling was too restrictive and that many people with disabilities were not being covered by the ADA. The Amendments specifically overruled the Sutton decision and required the U.S. Equal Employment Opportunity Commission (EEOC) to issue regulations implementing the ADA Amendments. The EEOC issued proposed regulations on September 23, 2009.

The proposed regulations provide that mitigating measures cannot be considered when determining whether or not a person has a disability as defined under the ADA. Indeed, in the preamble to the regulations, the EEOC specifically states that most persons who are screened out of a job because they cannot meet an uncorrected vision standard will meet the definition of having a "disability" under the law. Therefore, unless the uncorrected vision standard is job-related and consistent with business necessity, the requirement will be unlawful.

Continue reading "Uncorrected Vision Requirements May Constitute a Violation of the Americans with Disabilities Act under the New Proposed Regulations" »

Many clients that have come into our offices in Miami ask whether or not sexually-charged conversations among co-workers constitute sexual harassment even if that conversation is not directed at them. Unfortunately, the use of sexually provocative language and sexual "boasting" in the workplace is all too commonplace. Many employees feel disgusted by such conduct and comments, but are unaware if they can do anything about them, particularly if the comments are not directed at them. Recently, the Fifth District Court of Appeals in Florida clarified this issue and held that sexually offensive language need not be targeted at someone in order to create a hostile work environment. See Blizzard v. Appliance Direct, Inc., Case No. 5D08-4070 (Fla. 5th DCA 2009).

In that case, the evidence showed that a male co-worker constantly talked about his penis, which included graphic descriptions of its size, and constantly bragged about his sexual prowess, history, successes and aspirations. He would make lewd comments about female workers and customers, and whinny like a horse when an attractive woman would come into the store. The comments were not directed at any employee, but one female employee was so disgusted with the constant barrage of comments that she filed a lawsuit claiming that his comments created a hostile work environment.

At trial, the lower court refused to allow the evidence to go to the jury, and Directed a Verdict for the employer. The trial court reasoned that even though there may have been lewd and vulgar comments of a sexually explicit nature, the comments were not directed at the female employee that had filed the lawsuit. They were just generalized comments in the workplace and, although lewd and vulgar, they did not create a hostile work environment because the female employee was not the target of those comments.

However, the Court of Appeals disagreed and specifically held that the plaintiff could have been subjected to sexual harassment by the comments despite not having been a target of the comments. They reasoned that she overheard and was exposed to the comments and vulgarities. That was sufficient under the law for the jury to consider whether or not a hostile work environment was created.

The Blizzard case is significant because last year the Eleventh Circuit Court of Appeals decided a similar case and held that a hostile work environment claim does not require the plaintiff herself to be targeted. See Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir., 2008). However, that decision was vacated in May 2009 when the Court ordered a re-hearing en banc (by the entire Court) of its decision. The Blizzard case helps to clarify the law in this circuit regarding what constitutes a hostile work environment.

Continue reading "Florida Court Holds that Sexually-Based Vulgarities and Comments May Constitute Sexual Harassment Even if not Directed at Any Specific Employee" »

The United States Court of Appeals for the Eleventh Circuit, which covers Florida, Georgia and Alabama, announced this month that a disabled worker must be able to identify and specifically articulate the reasonable accommodation that he or she is seeking. Under Title I of the Americans with Disabilities Act (ADA), an employer must provide a reasonable accommodation to the disability of a qualified employee as long as it does not create an "undue hardship" on the employer. For example, an employer may be required to provide equipment or devices, restructure the job, reassign a disabled employee, provide interpreters or readers, and may be required to modify work schedules, among other things.

It has generally been the position of the U.S. Equal Employment Opportunity Commission (EEOC) that where the reasonable accommodation is not readily apparent, then the employer must make a reasonable effort to identify one. See http://www.eeoc.gov/facts/ada17.html. In fact, the regulations implementing the ADA specifically provide that in order to determine an appropriate reasonable accommodation, the employer should engage in an informal, interactive process with the disabled employee. See 29 C.F.R.§1630.2(o)(3).

However, the Eleventh Circuit Court of Appeal's recent decision in Webb v. Donley, No. 09-10050 (11th Cir., 2009), appears to turn that principle on its head. In that case, which was decided two weeks ago (September 14, 2009), the Court specifically stated that "if the employee does not identify a reasonable accommodation, the employer does not have to enter into an interactive dialogue or show undue hardship." There, the plaintiff, who suffered from Fibromyalgia and Myofascial Pain Syndrome, alleged that her employer discriminated against her by failing to allow her to work on a modified schedule. What is odd is that the evidence showed that her employer had previously allowed her to work a modified schedule in the past. The Court, however, held that just because the employer allowed the employee to work a modified schedule in the past, it does not mean that the accommodation requested is reasonable. It seems that the basis of the Court's decision was that the employee did not offer any other type of reasonable accommodation.

While it is unclear whether the Webb decision will withstand legal scrutiny, the lesson to be learned is that a disabled employee must be proactive and suggest numerous reasonable accommodations to his or her employer. Insisting on a single type of accommodation, even if such an accommodation was provided in the past, may be held to be unreasonable. Therefore, a disabled employee should provide and suggest to his or her employer several alternative reasonable accommodations that will allow him or or to perform the job.

Continue reading "A Disabled Employee Must Identify the Reasonable Accommodation Being Requested and Ought to Provide Alternative Suggestions" »

Section 599.221(8) of the Florida Statutes provides that food and hotel workers that have a communicable disease cannot be employed by a licensed food and hotel establishment. That requirement, however, may be a violation of federal law. Specifically, the Americans with Disabilities Act (ADA) states that employers are required to provide a "reasonable accommodation" to the known disability of an employee, except in the case that it creates and an "undue hardship" on the business. This means that the employer must change aspects of the job so that the individual with a disability can perform the job. However, the employer is not required to provide a reasonable accommodation if it causes significant difficulty or costs the employer a lot of money, taking into account the size and financial resources of the employer. In addition, Under Title II of the ADA (the public accommodation provisions), a license in any occupation cannot be denied simply because the candidate for the license has been diagnosed with HIV or AIDS.

With respect to occupations in food service and hotel establishments, a recent Guidance Memorandum issued by the U.S. Department of Justice (DOJ), which is the government agency charged with enforcement of the public accommodation provisions of the ADA, gives us an indication as to such restrictions will be viewed. In its Guidance Memorandum, the DOJ clarified that the ADA protects individuals with HIV and AIDS in professions such as barbering, massage therapy and home health care assistance. More specifically, the Guidance Memorandum states that public and private licensing agencies are prohibited from denying a license to an individual because of he or she has been diagnosed with HIV or AIDS. According to the DOJ, individuals with HIV and AIDS still face obstacles in obtaining state licensure in these occupations because of what it termed "overly broad state licensure requirements." The DOJ reasoned that "excluding individuals with HIV under these licensure requirements is unnecessary and discriminates against these individuals in violation of the ADA" because HIV is not communicated through casual contact. As a result, the DOJ stated that agencies that required a doctor's certification that an individual is free from "communicable diseases" must exclude diseases not transmitted through casual contact, such as HIV.

Based on this rationale, Florida laws that requires food service and hotel workers to be free from communicable diseases are overly broad and may be a violation of federal law. Specifically, Florida law (Section 599.221(8)) provides that "[a] person, while suffering from any contagious or communicable disease, while a carrier of such disease, or while afflicted with boils or infected wounds or sores, may not be employed by any establishment licensed under this chapter [food and hotel services], in any capacity whereby there is a likelihood such disease could be transmitted to other individuals." As indicated by the DOJ Guidance Memorandum, that law must exclude diseases not communicated through casual contact, such as HIV. To make matters worse, the Florida Division of Hotels and Restaurants also provides that Public Food Service Catering Establishment employees "must be free of open sores and skin infections, respiratory infections, upset stomach, diarrhea or other communicable diseases." That requirement may also be a violation of federal law.

Under the ADA, individuals can be denied employment or access to opportunities only if they pose a "direct threat" to the health or safety of themselves or others that could not be eliminated through a reasonable accommodation. But irrational fears and stereotypes cannot result in a determination that there is a direct threat to public safety. As the DOJ states, "[p]eople with HIV or AIDS should not be denied access to their chosen profession because of outdated laws or unfounded stereotypes and fears."

Continue reading "Florida's Requirement that Food Service and Hotel Workers Must be free of HIV/AIDS may be a Violation of the Americans with Disabilities Act" »

I have seen a disturbing trend in the South Florida job market. Many clients have come into my office in Miami stating that they have been rejected for a job based on information in their credit report. Indeed, the practice of disqualifying a job applicant because of his or her negative credit history is becoming increasingly widespread. A recent study by the Society of Human Resource Management found that almost half of employers nowadays use credit checks as a screening measure for new employee hiring. In addition, a study by the University of Florida also found that almost half of all retail employers now use credit checks as a job screening tool.

This practice, however, may constitute unlawful discrimination. Specifically, Title VII of the Civil Rights Act of 1964 prohibits hiring practices that disadvantage minorities, even if the practice is facially neutral, unless the company can prove that the practices are related to measuring a person's capability to do a job. The Supreme Court of the United States stated long ago in Griggs v. Duke Power Company, 401 U.S. 424 (1974) that a facially neutral hiring practice that has a disproportionate impact on minorities is illegal unless it is job related for the position in question and consistent with business necessity. In addition, recently, the U.S. Equal Employment Opportunity Commission's (EEOC) assistant legal counsel noted that rejecting job applicants based on financial criteria such as a poor credit rating may have a disproportionate impact on minority groups.

With respect to credit checks, the evidence is overwhelming that minority groups have a worse credit score than non-minorities. In fact, in a study by the Federal Home Loan Mortgage Corporation (Freddie Mac), it was found that both African Americans and Hispanics have statistically significantly lower credit scores that their White counterparts. Furthermore, even the Federal Reserve found in 1991 that African American borrowers obtain loans far less often and on worse terms than non-minorities, concluding that there is widespread and institutionalized discrimination in the nation's banking system. Also, an article in the University of Miami Law Review in 2005 found that African Americans make up a disproportionate percentage of debtors in bankruptcy, which further affects a person's credit score. Therefore, it is unquestionable that minorities have on the average lower credit scores than non-minorities. As such, the use of credit checks in hiring practices will have a disproportionate impact on minorities and may constitute unlawful discrimination.

Because of these reasons, Courts are beginning to apply Title VII concepts to these types of employer practices. In fact, as early as 1974, a U.S. District Court in Illinois found that a police department could only use financial information in their background checks if using the information did not have an adverse impact on minorities or if it is job related and consistent with business necessity. See United States v. City of Chicago, 385 F. Supp. 543 (N.D. Ill. 1974). Recently, in 2004, an EEOC charge was filed against the Johnson & Johnson Company alleging that an employee was denied a position because of a credit check. That case resulted in a settlement that changed the way that the company uses credit checks in their hiring practices. Even the EEOC in a 2006 Directive for its Compliance Manual stated that the practice of screening job applicants based on credit history would be subject to challenge under the discrimination laws.

Despite this alarming trend, there may be some relief coming in the future. An example is the bill introduced on August 10, 2009 by Wisconsin State Representative Kim Hixon that seeks to prohibit the use of credit checks as a job screening tool by employers. According to Rep. Hixon, Assembly Bill 367 will stop employers from using poor credit history as a deciding factor for employment.

Continue reading "Rejecting Job Applicants Because of Their Credit Report May Constitute Illegal Discrimination" »

Many employees come into our Miami offices and ask whether they can be denied unemployment compensation because of an accident, a cash register shortage or similar mistakes at work. The answer is usually no. Under Florida law, an unemployed individual who is otherwise eligible and has met the wage requirements cannot be denied unemployment compensation due to simple negligence. This means that a careless accident or an inadvertent shortage in the cash register will generally not be sufficient to deny unemployment compensation benefits.

Florida law provides that an individual may be disqualified from receiving unemployment compensation benefits if he or she was involved in "misconduct connected with the work." Under the statute, "misconduct" is defined as conduct demonstrating willful disregard of the employer's interests or negligence that demonstrates culpability, wrongful intent or evil design. Simple carelessness or negligence is not sufficient. Specifically, carelessness that does not "manifest culpability, wrongful intent, or evil design" does not constitute "misconduct" within the meaning of the Florida unemployment compensation laws. Furthermore, in defining whether specific employee action constitutes misconduct, courts are required to liberally construe the statute in favor of the employee.

Thus, an individual's conduct at work may be sufficient to justify termination from employment, yet not amount to misconduct sufficient to deny unemployment compensation benefits. Each case, however, must be viewed on its own facts and circumstances. The following examples show how the law is interpreted:

• Where an employee was discharged due to ineptitude and poor work performance that was not a result of a lack of effort, the employee was not denied unemployment compensation benefits.

• Where an employee was given a corrective action plan due to poor performance, his disagreement with the corrective action plan was sufficient to warrant discharge, but insufficient to deny unemployment compensation benefits.

• Bank teller's mistake that cost the bank a significant amount of money was sufficient to warrant discharge, but insufficient to deny her unemployment compensation benefits.

• The use of foul language or vulgarity directed at a supervisor was sufficient to warrant discharge but insufficient to deny unemployment compensation benefits.

It should be noted that a mere isolated violation of a company policy is insufficient to deny an individual unemployment compensation, particularly if the employee was never warned that such a violation could result in discharge. However, if an employee continuously violates company policies, and is warned that further violations will result in termination, it is likely that the employee will be denied unemployment compensation. Also, excessive absenteeism and tardiness that demonstrate a lack of effort are also sufficient to warrant a denial of unemployment compensation benefits.

Therefore, as it can be seen, conduct that will deny unemployment compensation benefits must be fairly egregious and be a willful or wanton disregard of the employer's interests. As indicated by the cases, the conduct must demonstrate an "evil design" or "wrongful intent".

Continue reading "Unemployment Compensation Cannot be Denied due to Employee Negligence" »

We recently litigated a hostile work environment claim raised by a female employee against her South Florida employer. One of the principal issues in the lawsuit was not whether the employee had been subjected to a hostile work environment, but whether or not she had taken advantage of the anti-harassment procedures implemented by her employer. In the case, the employee filed a lawsuit against her employer under Title VII of the Civil Rights Act of 1964 alleging that she had been subjected to racial and sexual harassment, which created a hostile work environment.

Specifically, in the complaint, the employee claimed that she had been the subject of sexually and racially harassing remarks during her employment. The employer, however, contended that it was unaware of the hostile work environment because the employee never made any complaints to management or to the Human Resources Department about the sexually and racially harassing remarks. The employer had previously published an Employee Handbook that contained specific procedures that needed to be followed in the event that any employee was faced with harassment or a hostile work environment. The Employee Handbook provided that anyone who felt that they were the subject of discrimination or harassment must report the incidents to management or to the Human Resources Department.

Under the law, an employer can effectively defend a hostile work environment claim by showing that (1) it exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the employee unreasonably failed to take advantage of the corrective opportunities provided by the employer. This legal doctrine was first announced by the U.S. Supreme Court in the cases of Faragher v. City of Boca Raton, 524 U.S. 775, 8071998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Under the doctrine, if an employer shows that it promulgated and disseminated a procedure to be used by employees in the event that they are subjected to harassment, and the plaintiff failed to use the anti-harassment procedure, then the employer will not be held vicariously liable even if a hostile work environment was found to have existed. This would apply only if the employee did not suffer an adverse employment action, i.e., was demoted or discharged.

In the case that we litigated, the facts showed that the employee had not followed any of the procedures outlined in the Employee Handbook. She did not raise any hostile work environment complaints with any management employee or the Human Resources Department. There were no reports of sexual or racial harassment. The employer had no opportunity to investigation and resolve any of the claims. The inference was that abusive events claimed by the employee may not have occurred. The case turned on this fact. Therefore, to the extent that an employer promulgates and disseminates an Employee Manual that contains EEO procedures, employees must avail themselves of these procedures. However, if after availing themselves of the procedures, the company fails to take corrective action, the employer may nevertheless be held liable for a hostile work environment.

Continue reading "Employees who feel that they are being Subjected to a Hostile Work Environment Must Take Advantage of the EEO Procedures Implemented by Employer" »

Two women from Peru who were brought to Miami to work as domestic employees were recently awarded $125,000 by a South Florida jury for the failure of their domestic employer to pay them the required minimum wage. The domestic employees, who lived with the domestic employer, filed a five-count complaint in U.S. District Court for the Southern District of Florida claiming, among other things, violations of the Fair Labor Standards Act (FLSA) and violations of federal human trafficking laws. According to the complaint, the domestic employees worked anywhere between 15 and 19 hours per day and were paid less than the minimum wage. The complaint further alleged that the domestic employer confiscated the domestic employees' passports and forced the domestic employees to live in a closet next to the trash chute. After a five-day jury trial, the jury found that the domestic employers failed to pay the domestic employees minimum wages and awarded them approximately $125,000 in back wages.

The regulations under the FLSA specifically cover domestic employees. The term domestic employment refers to all services performed in a household or in a private home. Domestic employment includes cooks, waiters, butlers, valets, maids, housekeepers, nurses, janitors, caretakers, handymen, gardeners, animal groomers and chauffeurs of automobiles that are used by the family. Furthermore, the regulations specifically provide that all domestic employment affects interstate commerce. Therefore, domestic employers cannot defend on the basis that they are not covered employers by virtue of not having handling goods or materials in interstate commerce.

With respect to wages, the regulations provide that all domestic employees must be paid the federal minimum wage and, to the extent that the domestic employees works over forty hours per week, the employee must be paid overtime compensation at the rate of one and one-half times the regular rate of pay. However, if the domestic employee resides in the household where they are employed, the FLSA provides an exemption for overtime pay so long as all of the hours worked are compensated at least at the minimum wage.

In meeting the wage responsibilities, a domestic employer may take credit for the reasonable cost of food, lodging and other facilities provided to the domestic employee. However, the credit may only be taken where the employee's acceptance of the facilities is voluntary and not coerced. The confiscation of passports or other items may be deemed to be coercion sufficient to prevent the domestic employer from taking the credit for food and lodging. Finally, where uniforms are required by the domestic employer, the cost of the uniforms and their care must be paid by the employer and the employer cannot take a credit for the cost of such uniforms.

The calculation of hours worked by domestic employees is generally a tricky issue because, normally, an employee who remains on an employer's premises and is "on-call" must be paid for those hours. Yet, when it comes to domestic employees, the employee and employer may agree as to the time periods that are not included as hours worked, such as meal times and other time periods where the domestic employee is free to pursue his or her own interests. However, for periods of free time to be excluded from hours worked, the period must be long enough in duration to enable the employee to make effective use of the time to pursue his or her own interests.

Continue reading "South Florida Court holds that Domestic Employees are Entitled to be Paid Minimum Wage for all Hours that they Work" »