Miami Employment Lawyer Blog

The Pregnancy Discrimination Act of 1978 (PDA) provides that it is illegal for an employer to discriminate against an employee on the basis of pregnancy. Despite the passage of this law more than 30 years ago, pregnancy discrimination is still a very real and common occurrence in the work place. In fact, many employers still think that pregnant women should not be working "for their own protection." Such comments not only show ignorance, but they demonstrate illegal discrimination. For example, just last week, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Dreamz ATL, a large nightclub in Atlanta, Georgia, for terminating the employment of a waitress after learning that she was pregnant. The complaint alleges that the manger of the nightclub had taken the waitress off the work schedule when he found out that she was pregnant. When the waitress complained, he wrote her a text message stating "You are prego. You shouldn't be working."

An employer discriminates when it treats an employee or applicant for employment adversely because of pregnancy, childbirth or a medical condition related to pregnancy and childbirth. Under the provisions of the PDA, employers need not give pregnant women preferential treatment, but they must comply with the dictates of the law, which provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." This means that pregnant women must be allowed to continue performing their work and must be treated like any other employee that may be affected by a similar medical condition.

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Under Florida law, if an employee voluntarily quits his/her job, that employee would generally not be entitled to collect unemployment compensation benefits unless he/she can show that quitting was for a reason attributable to the employer. Yet, where the employer significantly reduces an employee's work hours, that may be sufficient good cause to voluntarily quit and still collect unemployment compensation benefits. That's what the Fifth District Court of Appeals held last month in the case of Diaz v. Unemployment Appeals Commission, Case No. 5D09-1011 (Fla. App. 3/26/2010).

In that case, a prep cook voluntarily left his employment and then filed a claim for unemployment compensation benefits. His claim was denied by the claims adjuster, but the employee appealed claiming that his hours were cut so severely that he spent more money getting to work than he actually earned. At the telephonic hearing, the Appeals Referee determined that the employee was not eligible for benefits because he voluntarily left work and the reason for leaving (his work hours) was not attributable to the employer. The Unemployment Appeals Commission affirmed the Appeals Referee's decision and the employee appealed to the Fifth District Court of Appeals.

On appeal the Fifth District Court of Appeals first noted that an employee who voluntarily leaves his employment without good cause attributable to the employer is not eligible for unemployment compensation benefits. The Court then noted that "good cause" for voluntarily quitting are those circumstances which would impel the average, able bodied, qualified worker to give up his employment. Then the Court reasoned that a significant reduction in hours or salary may constitute good cause attributable to the employer, which would allow an employee to voluntarily terminate his employment and still remain eligible for unemployment benefits. The Court then noted that employer did not dispute the employee's testimony that his hours had been cut and he was only working one to two days per week, sometimes for only one hour at a time. Based on that evidence, the Court reversed the Appeals Commission's decision and remanded the case for consideration of whether the reduction in the employee's hours was substantial enough to constitute "good cause" attributable to the employer.

Continue reading "A Substantial Reduction in Hours May Constitute Good Cause for an Employee to Voluntarily Quit and Still Collect Unemployment Compensation Benefits" »

Many prospective clients that come into our Miami office ask how can they prove the hours that they worked if they do not punch a time clock and the employer has no time records. This is a common problem which can be resolved with circumstantial evidence. Specifically, as an example of a case where this became relevant is the case filed by the U.S. Department of Labor (DOL) against Raceway Petroleum in Federal Court in which it obtained a judgment of nearly $4 million on behalf of approximately 700 former and current employees. In that case, over 25 witnesses testified during a trial that lasted three weeks. The witnesses testified that some employees worked as much as 100 hours per week and were not paid for breaks of less than 20 minutes. Of crucial importance was the fact that the employer failed to maintain records of the hours that the employees worked, but the witnesses were able to establish the hours worked based on a "just and reasonable inference."

Under the Fair Labor Standards Act (FLSA), if an employer failed to maintain the time records required by the FLSA, then the employee may prove the amount of hours worked as a matter of "just and reasonable inference" by presenting witnesses and other evidence. Evidence includes testimony and documents such as diaries, planners, etc. The burden then shifts to the employer to come forward with evidence of the precise number of hours that the employee worked during every work week, or with evidence to negate the reasonableness of the inferences to be drawn from the employee's evidence.

Continue reading "Gas Station Attendants to Receive Nearly $4 Million in Unpaid Overtime Wages and Liquidated Damages Based on "Just and Reasonable Inference" of Hours Worked" »

The U.S. Equal Employment Opportunity Commission (EEOC) reported last week that it settled a lawsuit that it had filed against a Sonic drive-in restaurant in Athens, Georgia. The EEOC filed suit in U.S. District Court for the Middle District of Georgia alleging that a female carhop was subjected to sexually charged comments, repeated sexual overtures and unwelcome touching from the store manager. The complaint alleged that as a result of the harassment, "the conditions of her employment were made so intolerable that she was forced to resign her position."

On April 15, 2010, after almost two years of litigation, the EEOC reported that the restaurant agreed to settle the lawsuit and sign a consent decree, agreeing to pay $70,000 and to implement equal opportunity training, reporting and postings at the work place.

Under Title VII of the Civil Rights Act of 1964 (Title VII), sexual harassment is a type of discrimination that is based on sex. Requests for sexual favors, unwelcome sexual advances, verbal comments and physical conduct of a sexual nature may all constitute sexual harassment. Under Title VII, in order to be actionable the harassment must be unwelcome and must unreasonably interfere with a person's work performance.

Continue reading "Sonic Drive-In Restaurant Settles Sexual Discrimination Lawsuit for $70,000" »

Prior to the passage of the Patient Protection and Affordable Care Act (PPACA), which is the new health care reform law passed by Congress last month (March 23, 2010), employers were not required to provide any breaks whatsoever to their employees. In essence, an employee could be required to work 24 hours per day without a break.

However, under the PPACA employers must now allow for "reasonable" unpaid breaks for nursing mothers so that they are able to express breast milk. Such lactation breaks must be provided to mothers of newborn children for up to one year after the birth of the child. There is no limitation on the number of breaks and the law specifically states that a break must be provided "each time such employee has need to express the milk." Thus, the number of breaks would depend on the circumstances of the employee. The employer must also provide an appropriate place that is shielded from view of other workers and the public and such place cannot be a bathroom.

The new law, which amends the Fair Labor Standards Act (FLSA), is effective immediately and applies to all employers except that employers with less than 50 employees need not provide such breaks if providing the break would impose an "undue hardship" on the employer by causing the employer "significant difficulty or expense" considering the size of the employer and its resources. In practice, this standard would apply to all but very small employers

Continue reading "New Health Care Reform Law Requires Employers to Provide Reasonable Breaks for Nursing Mothers" »