Miami Employment Lawyer Blog

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" »