Miami Employment Lawyer Blog

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" »