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.

However, the recently issued opinion states that mortgage loan officers are more like "production" employees that actually produce the primary output of the business as opposed to "administrative" employees that perform work directly related to the management of the business. The opinion identified the following duties performed by mortgage loan officers: (i) responsible for receiving internal leads and contacting potential customers or receiving contacts from customers generated by direct mail or other marketing activity; (ii) collect required financial information from customers they contact or who contact them, including information about income, employment history, assets, investments, home ownership, debts, credit history, prior bankruptcies, judgments, and liens. (iii) run credit reports; (iv) enter the collected financial information into a computer program that identifies which loan products may be offered to customers based on the financial information provided; (v) assess the loan products identified and discuss with the customers the terms and conditions of particular loans, trying to match the customers' needs with one of the company's loan products; (vi) compile customer documents for forwarding to an underwriter or loan processor, and (vii) may finalize documents for closings.

Based on the foregoing duties, the Deputy Administrator's opinion states that mortgage loan officers are generally non-exempt production employees that are covered by the FLSA and, as such, must be paid the federally mandated minimum wage and one and one-half times their regular rate for all hours that they work over forty (40) in a workweek unless another exemption applies.

Under the Fair Labor Standards Act of 1938 (FLSA), covered employers must pay a minimum wage of $7.25 per hour and, when their employees work over forty (40) hours per week, employers are required to pay at least one and one-half times the minimum wage for all such hours over forty. Tipped employees, meaning those who receive more than $30 per month in tips, may be paid a reduced direct wage of $4.23 per hour. However, certain other rules apply in order for an employer to take advantage of this so-called "tip credit." Specifically, the law provides that the employer must inform each tipped employee that it will be taking the tip credit before the "tip credit" is taken and must allow all tipped employee to retain all of their tips. In this respect, the practice of requiring tipped employees to "tip-out" other non-tipped employees (such as kitchen workers) could be a violation of the law. In addition, reductions for mistakes, such as breakages, spills, etc., could also result in a violation of the law if it causes the direct wage to be reduced below the federal minimum wage.

If an employer is found to have violated the ordinance, that employer may be required to pay the employee an amount equal to three times the amount of back wages that the employer failed to pay. An employer may also be required to pay reasonable attorneys' fees costs in connection with an action brought to recover wages under the ordinance.

An employee may file a complaint with the county or may also bring a private action in a court of competent jurisdiction to redress a violation of the ordinance. With respect to records, where an employer has failed to show that it has maintained appropriate records of the hours worked by its employees, the ordinance provides that the employer shall have the burden of negating the evidence presented by the employee of the hours the he or she worked.

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.

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.

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.

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.

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

For example, just last week the U.S. Department of Labor announced that Husk Energy, a petroleum refinery in Lima, Ohio, agreed to pay nearly $1,000,000 in back wages after an investigation by the Department of Labor in which it was found that its employees were not being paid overtime compensation. The company was also found to have not included a "shift differential" in calculating the regular rate for purposes of determining the overtime rate. As another example, Peach Tree Maintenance, Inc., a landscaping company in Nashville, Tennessee, also recently agreed to pay almost $450,000 in back wages after an investigation by the U.S. Department of Labor. According to the Department of Labor, many of the employees were being paid a flat daily rate with no overtime compensation. And, in Pine Bluff, Arkansas, a health care company was also recently required to pay over $61,000 in back wages for the failure to pay overtime compensation to its employees. There, according to the Department of Labor, the company failed to combine the hours that the employees worked at two locations. In January of this year, the U.S. Department of Labor filed a lawsuit against Security Express Inc. and Broadway Protection, two security companies in Little Rock, Arkansas for the failure to pay minimum wages and overtime compensation under federal law. Finally, the Department of Labor announced two weeks ago that it will be conducting a probe of Utah restaurants in order to battle suspected violations of minimum wage and child labor provisions of federal law.

As these examples show, violations of the Fair Labor Standards Act and wage and hour laws are widespread across the country and the U.S. Department of Labor has apparently increased its enforcement of these laws. Employees must stay vigilant to ensure that employers are paying them as required by law.