In the case, our client, who had worked for Carnival Cruise Lines for approximately 15 years, during which time she had no discipline or reprimands, knowingly violated a company policy that prohibited the use of the corporate credit card for personal expenses. However, while she used the corporate credit card for personal expenses, she promptly reimbursed the company for all of the charges. The Unemployment Appeals Referee held that such conduct constituted "willful misconduct" and denied unemployment benefits. The Unemployment Appeals Commission (now known as the Department of Economic Opportunity) affirmed the Decision of the Appeals Referee denying benefits. We appealed the Decision of the Unemployment Appeals Commission based on the general rule under the Florida unemployment law that isolated infractions of company policy with no prior warnings usually amount to no more than poor judgment rather than misconduct within the meaning of the unemployment law.

Under well-established law, the unemployment statute is to be liberally interpreted in favor of a claimant, and its disqualifying provisions are to be construed narrowly in determining whether the employee's actions support the denial of benefits. In fact, even a deliberate violation of company policy may not constitute "misconduct" under the statute where the employee was unaware that the conduct could lead to termination of her employment. Indeed, "misconduct" under the unemployment law usually involves repeated violations of explicit policies after several warnings.

In reversing the decision of the Unemployment Appeals Commission, the Third District Court of Appeals stated that "[A] review of the record demonstrates that the incident for which [the Claimant] was discharged from employment, after an otherwise unblemished fifteen-year career with the employer, amounted to an 'exercise of poor judgment [that] does not amount to misconduct sufficient to support the denial of unemployment compensation benefits.'"

The Complaint alleges that the Plaintiff worked for the Athletic Department of the University for over 15 years, was promoted in the year 2000 and again promoted to the position of Director of Football Relations in the year 2008. However, as Director of Football Relations, she was paid significantly less than other male employees in comparable positions with similar responsibility and requiring similar skill and effort. Under the Equal Pay Act, men and women in the same workplace must be given equal pay for equal work. While the jobs do not need to be identical, the law requires that if the content of the job is similar or substantially equal, then the remuneration must also be the same. This includes all remuneration, including salary, overtime pay, bonuses, vacations, benefits, etc. The law also provides that if there is unequal pay, an employer must raise the amount it pays to women rather than reduce the salary and/or benefits paid to men.

In the lawsuit, we are alleging that the Plaintiff was paid as much as $39,500 less than men doing the same or similar work with similar responsibility and requiring similar skill and effort. The positions have different titles, but under the law, titles are not determinative; what is important is job content. As stated above, if the content of the job is similar or substantially equal, and the jobs have similar responsibility and require similar skill, then the remuneration must be the same for both men and women.

Under federal law, hourly employees who work over 40 hours per work week are required to be paid one and one-half times the minimum wage of $7.67 per hour, or $15.34 per hour. Under Florida law, Section 448.01, an employee who works over 10 hours per day is entitled to an overtime premium regardless of whether or not he or she works over 40 hours in that work week.

Last week, the U.S. Equal Employment Opportunity Commission ("EEOC") filed a lawsuit in U.S. District Court for the Middle District of Florida against two Florida-based travel telemarketing firms on behalf of five female employees that were allegedly sexually harassed by their supervisors. In that case, U.S. EEOC v. Four Amigos Travel, Inc., et al., No. 8:11-CV-1163-T-26 MAP, the EEOC alleged that several male supervisors, including the general manager, conducted daily sales meetings in which there were sexually charged and sexually explicit discussions. The supervisors and managers also allegedly openly propositioned female employees for sex, inappropriately touched themselves, inappropriately touched the female employees, made other aggressive sexual advances towards them and used sexually derogatory terms. One of the supervisors is alleged to have shown a photo of his private parts to a female employee and bragged about it.

Although it is difficult to compare the conduct in the Four Amigos Travel case case with the Home Depot case, it appears that the EEOC is confident that the conduct in their recently filed case is sufficiently pervasive to constitute sexual harassment. The EEOC stated that the women were offended and intimidated by the harassment and were ridiculed for complaining about it. Nevertheless, we will watch this case closely and draw comparisons to the Home Depot decision as the case develops.

That is precisely the case in Florida. On June 1, 2011, Florida's minimum wage will increase to $7.31 per hour for all hours worked by covered nonexempt employees. Therefore, most employers in Florida will be required to pay the higher minimum wage of $7.31 per hour. For "tipped employees", meaning those employees who receive at least $30.00 in tips from customers per month, employers need only pay a direct hourly wage of $4.29, which is an increase from the previous $4.23 per hour.

The Complaint alleges that Loudy Appolon interviewed for a position with the University of Miami, Miller School of Medicine in June 2009, and she was offered the position. Indeed, she had been working in the same field for a significant period of time and was qualified for the position. However, one day before she was to start her new job, the University informed her that she would not be hired because of her credit history.

We allege that such conduct is a violation of Title VII of the Civil Rights Act of 1964 because the rejection of qualified individuals due to their credit history is not an accurate reflection of how the employee will perform and it furthers the racial discrimination that is present in the credit reporting system.

Disciplining female employees more harshly than male employees for the same or similar conduct constitutes sex discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"). Under Title VII, it is illegal for an employer to discriminate against an employee because of that person's sex. Therefore, if female employees are treated differently than male employees with respect to terms and conditions of employment, the employer may be in violation of Title VII. In the Smith case, the company had a policy of progressive discipline whereby an employee is first be given a verbal warning, followed by a written warning, suspension and then finally termination if the conduct is not corrected. The EEOC alleged that the company failed to follow this progressive discipline policy in Smith's case, particularly because she had had not been disciplined for over two years and should have been given a verbal warning rather than termination.

Treating employees differently because of other factors may also be illegal and a violation of federal law. For example, treating older employees differently than younger employees could be a violation of the Age Discrimination in Employment Act of 1967, and treating disabled employees differently than non-disabled employees could be a violation of the Americans with Disabilities Act of 1990.

The EEOC has recently issued a guidance memorandum regarding the interplay between state worker's compensation laws and the ADA. One of the issues addressed by the EEOC is whether an employer must reassign an employee who is injured on the job and can no longer perform the essential functions of his or her job because the injury resulted in a disability under the ADA.

As an example, the EEOC cites the case where a maintenance worker fractures his or her legs in a workplace accident, takes six months' leave to recuperate, and returns to work with medical restrictions because his or her legs have become fragile due to the injury. The employee's physician states that the employee can return to work but cannot walk or stand for more than short periods of time. The EEOC states that in this case, the employer is required to provide a reasonable accommodation unless there is no accommodation that will lower the risk of harm. (e.g., there is a risk of substantial harm that cannot be eliminated or reduced with a reasonable accommodation).

However, if there is no reasonable accommodation that can be provided that will lower the risk of harm, then in that case the employer is required to reassign the employee unless it would pose an undue hardship on the employer (e.g., a significant difficulty or expense). The employer must reassign him/her to an equivalent vacant position for which s/he is qualified, absent undue hardship. If no equivalent vacant position (in terms of pay, status, etc.) exists, then the employee must be reassigned to a lower graded position for which s/he is qualified, absent undue hardship. Failure to follow these procedures may be a violation of the ADA.

However, in the recently decided case of Polycarpe v. E&S Landscaping Services, Inc., 08-15104 (11th Cir. 2010), the Eleventh Circuit Court of Appeals held that the lower courts incorrectly interpreted the FLSA. After a lengthy discussion of the origins of the FLSA and its legislative history, the Eleventh Circuit Court of Appeals held that the relevant inquiry for FLSA purposes is not whether goods or materials were recently purchased intrastate, as the lower courts had decided, but whether the "goods" or "materials" were in the past "produced in or moved interstate." The Court further noted that just because items are purchased locally in Florida does not mean that such items cannot count towards showing that the company is involved in interstate commerce under the FLSA.

Therefore, the Appeals Court remanded five of the cases so that the lower courts can determine whether or not the items constitute "goods" or "materials" that have been "produced in or moved interstate" and, if so, whether enterprise coverage exists under the FLSA. The gist of this decision is that now, many employees of small employers will now be covered by the FLSA.

One of the most important ramifications of the Amendments to the ADA is in the definition of what constitutes a "disability" under the law. Specifically, the Amendments to the ADA specifically overruled the U.S. Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), where the Court held in order to show that a plaintiff has a disability, he or she must show that his or her impairment substantially limits one or more major life activities that are of "central importance to most people's daily lives." In that case, the employee worked on the assembly line of an automobile manufacturing plant, where she developed several work-related ailments, including bilateral carpal tunnel syndrome and bilateral tendinitis due to the manual work that she performed. She filed a claim under the Kentucky Workers' Compensation statute and was treated, but was placed on lifting and other restrictions. The employee was eventually fired and it was unclear whether it was because she missed work due to her injuries and/or refused to work in the rotation required by the employer. The U.S. Supreme Court found that she did have a "disability" under the ADA because she did not show that her impairments substantially limited one or more major life activities that are of "central importance to most people's daily lives."

Based on this decision, courts have routinely held that an employee's inability to consistently lift heavy weights due to a work-related injury was not a disability under the ADA. However, the Amendments to the ADA change all that and specifically provide that an individual need not demonstrate a limitation in the ability to perform activities of central importance to daily life. Now, someone with a medical restriction that is not of short-term duration is a person with a "disability" under the law and the employer must provide a reasonable accommodation so that he or she can continue working.

In that case, Ms. Hernandez, the employee, worked as a customer account specialist for American General Finance, one of the largest loan companies in the country. Sometime prior to her discharge, she processed a loan for a customer. When the customer took out the loan, he was with a third party and according to the evidence, the customer and the third party were very close friends. Subsequently, the third party came in and requested an increase in the amount of loan, which Ms. Hernandez duly processed. However, she failed to obtain the approval of the customer or the customer's signature on any of the loan increase papers. The customer found out about it and when he complained, that's when Ms. Hernandez was fired. The company claimed that it was a violation of company policy and a violation of federal regulations. However, Ms. Hernandez had never been given a reprimand or warning for this or any other type of conduct during her entire 14-year tenure with the company. Nevertheless, the Appeals Referee determined that this was misconduct as defined in the unemployment law and denied unemployment compensation benefits. The Unemployment Appeals Commission affirmed.

At oral argument before a panel of three judges of the Third District Court of Appeal, we argued that this was an isolated incident of a lapse of judgment that should not rise to the level of being "misconduct" as defined by the unemployment law. The Unemployment Appeals Commission ("UAC") argued that the conduct was so egregious that it was tantamount to a willful and wanton disregard of the employer's interests. The UAC cited several opinions for this proposition, such as the case of Sears & Roebuck v. Florida Unemployment Appeals Commission, 463 So.2 465, (Fla. 2d 1985), where an employee was denied unemployment benefits because of a clear violation of company policy, which also included a violation of law. However, I argued to the judges that the cases cited by the UAC involved situations where the employee garnered a benefit from the conduct. In the case before the Court, the employee received no benefit whatsoever. As such, it was a simple error in judgment. The Court agreed and found that one incident of poor judgment exercised by Ms. Hernandez over a fourteen-year career with the employer, does not rise to the level of being misconduct as defined by the unemployment law.

Under the statute, in order to state a claim for retaliation under Section 440.205, the employee must prove that (1) he engaged in a statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was causally related to the employee's protected activity. These elements were recently addressed by the Third District Court of Appeals (which covers Miami, Florida) in the case of Ortega v. Engineering Technology Services, Inc. In that case, the employee fractured his right wrist when he fell off a ladder at a job site while installing a fire sprinkler system. The employee filed a claim under the Workers' Compensation statute pursuant to which he was given payments for medical treatment and a percentage of his salary, as a result of that work-related accident and injury. When he was released to work without limitations several months later, the company told him that there was no work available for him. On these facts, the trial court granted summary judgment for the employer, but the Appeals Court found that a jury could have reasonably concluded that his termination was a result of having filed a claim under the Workers' Compensation law and remanded the case for further proceedings.

Employees should note, however, that the Workers' Compensation statute only prohibits the retaliatory discharge of an employee because he or she filed a Workers' Compensation claim. An employee can be discharged for any other legitimate business reasons after the filing of a claim, such as unsatisfactory job performance or excessive absenteeism. In fact, many employers have a policy that an employee will be discharged if he or she is absent from work due to a medical condition for more than 90 days in a calendar year. These policies have been deemed to be legitimate under Florida law. Therefore, an employee who files a Workers' Compensation claim must ensure that he or she pursues medical treatment and returns to work as quickly as possible.

Under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, treating women who have complications with their pregnancy different than other employees with a medical condition is pregnancy discrimination. The law provides that pregnant women and women who come back from maternity leave after giving birth, must be given the same rights as any other employee who incurred a similar medical condition.

Under the Fair Labor Standards Act (FLSA), time spent in activities that are preliminary (before an employee begins his or her principal work) or postliminary (after an employee ends her or her principal work) are not generally compensated unless the activity is directly related and essential to the principal work activity. For example, riding on a bus to get to work and commuting time would not be compensable time. However, the time that a lathe operator takes in cleaning or greasing his machine prior to his shift would most likely be compensable time because those tasks are directly related and essential to the principal work to be performed. Another example would be the putting on and taking off protective clothing and uniforms at the beginning and at the end of the workday. Such time would most likely be compensable time because the employee cannot perform his or her principal duties without putting on the protective clothing.

That was the issue in the lawsuit filed by the U.S. Department of Labor (DOL) against Tyson Foods, Inc. In that case, which was filed in U.S. District Court for the Northern District of Alabama, the DOL sought back wages for poultry processing employees for the time that they spent in putting on and taking off their protective gear and uniforms, as well as the time they spent in sanitizing themselves. After more than seven years of litigation, the DOL reported last week that the company finally agreed to a consent judgment in which it agreed to pay over $500,000.00 to its employees for all of such work. The consent judgment extends to all of the Tyson Foods plants and requires the company to pay all employees for such putting on and taking off their protective uniforms.

Similar issues are faced by persons who work as nurses and machine operators when they are required to report to work before the start of their shift so that they can effectively receive instructions, to replace the employees on the prior shift in a seamless manner and/or to continue the work in progress. This time is referred to as "reporting time" and is compensable under the FLSA.

Under the Fair Labor Standards Act (FLSA), a student intern must be paid the federally mandated minimum wage of $7.25 per hour and overtime compensation of one and one-half the regular rate for all hours worked over forty (40) per week. However, if the internship is similar to an "educational environment" and is merely an extension of the student's academic educational experience, then the FLSA would not apply and neither the minimum wage nor overtime pay would be required. The following six factors are used to determine whether or not there is truly an "educational environment" so that the FLSA would not apply:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If the factors listed above are all met, then it is deemed that an employment relationship does not exist under the FLSA, and therefore, the employer need not pay minimum wage and overtime compensation.