Florida Labor and Employment Attorneys

Often, we receive calls from individuals who state they want to “file a lawsuit” right away. Although filing suit at the outset of representation is sometimes appropriate (for example, in matters relating to the Fair Labor Standards Act and the False Claims Act), it is usually advised to first contact out to the other side with an overview of the claims and see if there is an interest in resolving the matter pre-suit. Litigation is both time consuming, unpredictable, and expensive, as the costs related to litigation quickly add up (the filing fee, costs associated with service of process, deposition costs, etc.).  One process by which parties can attempt to reach an amicable resolution is through mediation. In a mediation, a neutral third party (the mediator) works to assist individuals in reaching a resolution. Mediation is more affordable than litigation, is faster, and is a more informal process than litigation. This post will provide an explanation of the confidential mediation process.

Once the parties agree to mediate, they must work to agree on a mediator and a date to conduct mediation. One consequence of the COVID-19 pandemic is that mediations are now routinely conducted via Zoom or a similar platform, making scheduling easier. We have found “virtual” mediations to be just as, if not more, productive than in-person mediations. At the mediation, typically the parties begin in the same room (or virtual room) for the mediator to make introductions and for the parties to present opening statements. This element of mediation is useful, particularly when the case is pre-suit, so the parties can better understand the other side’s position. This is ordinarily the only time during the mediation the parties are all in the same room. Following the opening session, the parties will be placed into separate rooms, and the mediation begins in earnest. Mediators have different techniques in trying to help the parties reach a resolution. Some mediators focus heavily on the facts prior to discussing monetary terms, while others go straight into the discussions about the money. There is no right or wrong method, and the mediator’s approach can vary depending on the case. Whatever method is used, the goal remains the same: helping the parties resolve the dispute. The parties are active participants in the process and any resolution. For a confidential mediation to be successful, each party must be willing to move off their initial dollar figures and to truly be dedicated to the process.

For cases that have proceeded to litigation, both state and federal courts require mediation at some juncture in the litigation process. Mediation allows parties the opportunity to compromise and avoid the time and expense of litigation, an exercise that would surely meet with Lincoln’s approval who once said, “Persuade your neighbors to compromise whenever you can.” [1] Jill S. Schwartz, Esquire, is a certified Florida Supreme Court mediator, and she is available both as counsel and to act as a mediator to assist parties in resolving matters.  If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] This quotation is attributed to Abraham Lincoln and comes from documents collected after his death by his former White House Secretaries John Nicolay and John Hay. It is not known if President Lincoln ever delivered the lecture from which this quotation is taken, entitled “Notes for a Law Lecture.” Here is the full context of the quotation: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”  Abraham Lincoln’s Notes for a Law Lecture, Abraham Lincoln Online, https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (last visited Oct. 31, 2022).

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In April 2022, Florida Governor Ron DeSantis signed into law legislation that is known as the “Stop Wrongs to Our Kids and Employees (‘W.O.K.E.’)” Act (referred to hereafter as the “Act”). The Act went into effect on July 1, 2022. Although much of the attention garnered by the Act focuses on its impact in the classroom, it also impacts the workplace for those employers with fifteen or more employees subject to the Florida Civil Rights Act (“FCRA”). This post will discuss the contents of the Act pertaining to the workplace and what it means for employers and employees.

In announcing the Act, Governor DeSantis stated in part, “[W]e must protect Florida workers against the hostile work environment that is created when large corporations force their employees to endure CRT-inspired ‘training’ and indoctrination.”¹ The Act amended the FCRA to include the following language to expand the liability of employers:

(8)(a) Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section:

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.

2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.

4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.

5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse

treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.

6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.

8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

(b) Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.

§ 760.10(8), Fla. Stat. (2022) (emphasis added).

The changes to the Act make it necessary for employers to evaluate their current training programs related to diversity and antidiscrimination policies. Furthermore, employers must be cautious as it relates to section (8)(a)6., which prohibits hiring an individual to achieve diversity or inclusion. As can be expected, the constitutionality of the Act has been challenged. As of the time of writing, the litigation is pending. On August 18, 2022, the Northern District Court, Tallahassee Division, granted a preliminary injunction halting the enforcement of section 760.10(8).² We will provide an update as it becomes available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

1 “Governor DeSantis Announces Legislative Proposal to Stop W.O.K.E. Activism and Critical Race Theory in Schools and Corporations,” Official Website of Florida’s Governor, https://www.flgov.com/2021/12/15/governor-desantis-announces-legislative-proposal-to-stop-w-o-k-e-activism-and-critical-race-theory-in-schools-and-corporations/ (last visited Aug. 31, 2022).

2 Honeyfund.com, Inc., et al. v. Ron DeSantis, et al., 4:22-cv-00227-MW-MAF (N.D. Fla. Aug. 18, 2022), available at, https://www.govinfo.gov/content/pkg/USCOURTS-flnd-422-cv- 00227/pdf/USCOURTS-flnd-422-cv-00227-0.pdf (last visited Aug. 31, 2022).

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On June 28, 2022, the United States Court of Appeals for the Eleventh Circuit (Florida is in the Eleventh Circuit) announced its opinion in Patterson v. Georgia Pacific, LLC, No. 20-12733 (11th Cir. July 5, 2022). The court issued a published opinion that will serve as precedent (i.e., the opinion will serve as authority for deciding similar cases) to the courts in the Circuit. In Patterson, the court held that the so-called manager exception (or rule, as it is more commonly known) does not apply to retaliation claims under Title VII. The manager rule is a concept that when a management employee, acting within the course of her ordinary duties, disagrees with or opposes the actions of an employer, she is not engaging in protected activity. Patterson, at *11. Furthermore, the Eleventh Circuit rejected the argument that an individual cannot have a claim for retaliation against a current employer for engaging in protected activity related to a former employer.

For purposes of this post, a brief summary of the relevant facts is helpful.1 Patterson was working as a human resources manager for Georgia Pacific when she provided deposition testimony in a pregnancy discrimination suit against her former employer (she was a human resources manager at her prior employer as well). Id., at *1, 4. In the deposition, Patterson testified that she had participated in several meetings regarding the terminations of the plaintiffs. Id., at *5-6. Patterson further testified that she advised her supervisors not to take any action against the plaintiffs until she could consult with another Human Resources advisor because she was concerned firing the pregnant employees could expose the employer to legal action. Id., at *6. Within a few weeks after testifying, Patterson was confronted by Jeffrey Hawkins, Georgia Pacific’s Human Resources director. Id., at *4, 8. Patterson explained the facts to Hawkins regarding the case for which she provided testimony, and he asked her, “Did you support or go against the employer?” Id., at *8. As the Eleventh Circuit stated, “When Patterson told him she’d testified ‘on behalf of the ladies,’ as she put it, Hawkins told Patterson that meant she ‘went against’ her previous employer and that having her done so ‘made things clear’ to him.” Id. Within approximately one week, Georgia Pacific terminated Patterson. Id., at *9. Patterson was not provided a reason for her termination, either verbally or in a termination letter provided to her. Id. Georgia Pacific offered Patterson a “‘special lump sum’” payment of $50,000 if she, among other things, agreed not to bring a suit against the company. Id.

1 The Eleventh Circuit provided a detailed discussion of the events leading up to Patterson’s termination.

Patterson ultimately filed a pro se (i.e., she was not represented) complaint against Georgia Pacific alleging unlawful retaliation under Title VII. Id., at *10. Patterson alleged Georgia Pacific terminated her in retaliation for providing the deposition testimony where she opposed pregnancy discrimination. Id. The district court granted summary judgment in favor of Georgia Pacific on two grounds. Id., at *10-11. First, the district court concluded that Patterson had not engaged in protected activity because she was a human resources manager and raised her concerns within or directly related to her normal duties. Id., at *11. The district court relied on an unpublished opinion from the Eleventh Circuit, despite the fact that unpublished opinions are not precedential (and therefore do not bind the courts in the Eleventh Circuit). Id., at *16. Alternatively, the district court held that Patterson did not engage in protected activity because she did not oppose an allegedly unlawful practice by Georgia Pacific related to the deposition. Id., at *11. According to the district court, “a plaintiff’s opposition had to be to the discriminatory actions or practices of the employer that did the retaliating, not to those of a former employer.” Id. The Eleventh Circuit deemed this “‘the current employer exception.’” Id., at *12.

As noted above, the Eleventh Circuit disagreed with the district court. Regarding the manager rule, the court held that the “rule has no basis in the text of Title VII’s opposition clause and actually contradicts the text of it.” Id., at *15. The clause in question provides that it is “an unlawful employment practice for an employer to discriminate against any of [its] employees…because he has opposed any practice made an unlawful employment practice by this subchapter….” Id., at *12. The court noted that the manager rule did not originate in the context of Title VII, but instead arose out of Fair Labor Standard Act case law; the texts of the two statutes are very different. Id., at *16. The court examined the text of Title VII and found that Congress stated that the statute’s protection extends to “any” employee, meaning “all” since Congress did not qualify the word. Id., at *17. The court further held that “[t]he word ‘opposed’ does not somehow sneak the manager exception into the statute.” Id., at *18. The court concluded its analysis by stating, “What matters is whether the broad manager exception Georgia Pacific proposes is consistent with the statutory text that Congress enacted. It is not.” Id., at *21.

Turning to the “current employer” requirement, the Eleventh Circuit again rejected the district court’s rationale. Id. Turning to the text of Title VII, the court held that “[t]here is nothing in the anti-retaliation provision’s opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer.” Id., at *21. As the court succinctly stated, “Opposition is opposition, and any unlawful employment practice

is any unlawful employment practice.” Id., at *22. Thus, the Eleventh Circuit rejected the “current employer” requirement. Id. Examining the facts before it, the court reversed the district court’s granting of summary judgment in favor of Georgia Pacific and remanded for further proceedings. Id., at *36.

The Eleventh Circuit’s “firing” of the manager rule will have an important impact in both Title VII claims and in cases where the statutory language is similar, such as matters arising under the Florida Civil Rights Act (“FCRA”) and the Age Discrimination in Employment Act (“ADEA”). It will also undoubtedly be raised in cases arising under Florida’s public and private sector whistleblower acts. See Barone v. Palm Beach Hotel Condo. Ass’n, 262 So. 3d 767, 768 n.1 (noting that “Florida courts apply Title VII analysis to retaliatory discharge claims under this state’s whistleblower statutes.” (citation omitted)). We will continue to monitor the opinions of the courts and provide updates as they become available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

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Although arbitration is not a new concept, increasingly, employers are requiring employees to enter into arbitration agreements as a condition of employment. Arbitration is a process that takes conflicts out of the courts and places the decision in the hands of a neutral decisionmaker (or a panel of decisionmakers) known as an arbitrator. Ordinarily, the parties come to an agreement on the arbitrator, and often the employer will pay the arbitrator’s fees. Arbitration can be less expensive than litigating in court, although there are still costs associated with the process (the cost of the arbitrator and costs related to discovery, including depositions, being among the chief costs). In addition, arbitration can lead to a quicker resolution, particularly given the backlog of cases due to the COVID-19 pandemic. It is easier to schedule an arbitrator than to schedule hearings and a trial with the courts.  Arbitration also generally has its own rules of evidence and discovery, simplifying the process. For employers, one principal benefit of arbitration is that it keeps the matter out of the public eye, as arbitrations are confidential proceedings. If arbitration is binding, the arbitrator’s decision is generally final, as there are limited rights to an appeal.

Sometimes, despite the existence of an agreement to arbitrate claims, employers will decide to allow a claim to proceed to litigation through the courts.  There are a variety of reasons for an employer to make this decision, including the costs associated with arbitration, a desire to retain appeal rights, and a desire to engage in a standard discovery process set by the federal or state rules of civil procedure and evidence. There are occasions where employers determine that they want to enforce the arbitration provision after a period of litigating in the courts. As a recent United States Supreme Court decision demonstrates, however, employers should use caution when making the decision of litigating or arbitrating a matter.

In Morgan v. Sundance, Inc., 596 U.S. ____ (2022), the Court examined one aspect of a party deciding to arbitrate after conducting litigation.  The Court noted that lower courts have created a rule of waiver specific to the arbitration context to answer the question of whether a party requested to arbitrate too late. Many courts, including the 11th Circuit Court of Appeals (Florida is in the 11th Circuit), have held that “[a] party can waive its arbitration right by litigating only when its conduct has prejudiced the other side.”  Morgan, at *1.  The Court examined the Federal Arbitration Act (“the Act”), enacted in 1925 and amended since then, and determined that the Act does not authorize federal courts to create such an arbitration-specific rule.  Id., at *1-2.  The Act “protects the integrity of many arbitration agreements by making them binding and limiting the reasons for which courts can review and set aside arbitration awards.”  “Federal Arbitration Act,” Cornell University Law School Legal Information Institute, https://www.law.cornell.edu/wex/federal_arbitration_act (last visited May 26, 2022). In Morgan, the plaintiff filed a claim pursuant to the Fair Labor Standards Act and litigated the matter in the federal district court for approximately eight months before the employer sought to stay (pause) the litigation and arbitrate the matter.  Morgan, at *2. The Court noted that requiring a showing of prejudice is not generally a feature of federal waiver law, and it held that there was no such requirement under the Act.  Id., at *3-4. The Court noted that when courts review the issue of waiver, ordinarily the focus is on the actions of the party who held the right (here, the employer), not the impact on the other party.  Id., at *5. The Court noted that the Act’s “‘policy favoring arbitration’ does not authorize federal courts to invent special, arbitration-preferring procedural rules.”  Id., at *6 (citation omitted). The Act is intended to ensure that arbitration agreements are treated like other contracts.  Id.  The Court reversed the appeals court and remanded (sent back) the case to determine if the employer had waived its right to arbitrate the matter.  Id., at *7.

Answering the question of to arbitrate or not to arbitrate can be difficult, but it does not have to lead to existential angst.  Whether you are an employee bound by an arbitration agreement or an employer considering crafting such an agreement, the attorneys at Jill S. Schwartz & Associates are well-versed in this area of the law.  We are here to help you navigate these complicated waters and avoid a sea of troubles.  If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

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At the height of the Civil War, the False Claims Act (“FCA”) was enacted to combat defense contractor fraud perpetrated against the Union Army.[1]  The FCA has been amended many times since 1863, but it remains a powerful weapon for the Government to ensure that taxpayer funds are used properly.[2]  Violators can be subjected to high-dollar fines and damages.  In 2021, the Department of Justice “obtained more than $5.6 billion in settlements and judgments from civil cases involving fraud and false claims against the government.”[3]  The FCA applies to all types of Government funds, from defense contractors to Medicare recipients.  Many states, including Florida, also have similar Acts to protect State dollars.[4]  In addition to permitting the Government to pursue violators on its own, the FCA also allows private citizens acting as whistleblowers to file suit on behalf of the Government.[5]  Such claims are called qui tam suits, a concept that arose in England where individuals could, in some instances, sue on behalf of the Crown and obtain a share of the recovery.[6]  Individuals who bring suits on the behalf of the Government are called “Relators.”  Under the FCA, private citizens may obtain a portion of the recovery for successful suits.  In cases where the Government takes over for the Relator (i.e., the Government intervenes in the case), the recovery for the individual can be between 15-25% of the recovery.[7]  In cases where the Government declines to intervene (i.e., the individual continues litigating the FCA claim without the Government), the amount can range from 25-30% of the recovery.[8]

FCA cases are complex and require a careful review of all documents and information available.  Once a decision is made by an individual and her counsel to pursue an FCA claim, the first step is for counsel to draft a disclosure statement for the Government.  This document acts as a roadmap, providing the Government with an overview of the claim.[9]  In addition to the disclosure statement, a Relator also provides all relevant documentation to the Government.  The next step is to draft the complaint, which will be filed under seal with the court.  This means that, while the Government conducts its investigation, the complaint is not made public.  Following the filing of the disclosure statement, the Government will interview the Relator.  This is an opportunity for the Relator to provide any additional information.  Once that is complete, the Government will conduct a thorough investigation into the claims and determine if it will litigate the case.  If it declines to litigate, the Relator and her counsel must decide whether to litigate the declined case.  Although a case is declined, Government approval is still necessary if there is a recovery.  FCA litigation can be expensive and lengthy, but Relators play an integral role in assisting the Government and taxpayers in taking on those who defraud the public.  Having experienced FCA counsel is critical, and the attorneys of Jill S. Schwartz & Associates are well-versed in FCA claims and the representation of Relators in these matters.

This is only a brief overview of FCA claims.  There are many complexities to this vital area of the law.  If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The False Claims Act, The United States Department of Justice, https://www.justice.gov/civil/false-claims-act (last visited May 25, 2022).

[2] Id.

[3] Id.

[4] § 68.081, et seq., Fla. Stat. (2021).

[5] The False Claims Act, https://www.justice.gov/civil/false-claims-act.

[6] What is Qui Tam?, Bracker & Marcus LLC, https://www.fcacounsel.com/false-claims-act-attorneys/what-is-qui-tam/ (last visited May 25, 2022).

[7] False Claims Act Attorneys, Bracker & Marcus LLC, https://www.fcacounsel.com/false-claims-act-attorneys/ (last visited May 25, 2022).

[8] Id.

[9] Id.

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On February 10, 2022, the United States Congress approved a bill (H.R. 4445) entitled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (“the Act”). The bill, which received bipartisan support, will almost certainly be signed into law by President Biden. Indeed, on February 1, 2022, the Administration issued a Statement of Administration Policy that praised the legislation and called for its passage. The Administration asserted that “[t]his bipartisan, bicameral legislation empowers survivors of sexual assault and sexual harassment by giving them a choice to go to court instead of being forced into arbitration.” In short, the Act states that agreements that provide that arbitration is the only avenue for individuals (as opposed to going to court) are not enforceable in cases where sexual assault or sexual harassment are alleged. The Act amends the Federal Arbitration Act and represents a significant change for employers and employees (and others who may fall under arbitration clauses) in cases where there are allegations of sexual harassment or sexual assault.

In defining “sexual assault dispute” and “sexual harassment dispute,” the Act is fairly straightforward. “Sexual assault dispute” is defined as “a dispute involving a nonconsensual sexual act or sexual contact, [as defined in federal or similar Tribal or State law], including when the victim lacks capacity to consent.” “Sexual harassment dispute” is defined as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” In those matters, the Act provides that “no predispute arbitration agreement or predispute join-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” The Act states that the determination of whether its terms are applicable to a particular lawsuit will be made by a court, rather than an arbitrator. The Act applies “with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.”

For employers and employees, this means that any existing forced arbitration clauses are likely to be deemed invalid in cases arising following enactment of the Act where there are allegations of sexual assault or sexual harassment, although the parties can voluntarily choose to arbitrate the claims. Given that the Act specifically addresses claims of sexual assault and sexual harassment, it is possible that moving forward, some claims will have to be arbitrated while the sexual assault/sexual harassment claims proceed to court.

This legislation marks a milestone in allowing individuals to bring their allegations of sexual assault or sexual harassment to the light of the public via the court system. The Act requires an examination of current arbitration agreements and potentially will require revisions to carve out the covered claims. There are other attempts to limit the enforceability of arbitration agreements, although those attempts have thus far proved unsuccessful. We will provide updates at they become available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

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In a previous blog post, we referenced the vaccine mandate for employers announced by the Biden administration and stated that there would be legal challenges. This post acts as a follow up in the wake of the U.S. Supreme Court’s opinions in National Federation of Independent Business (“NFIB”) v. Department of Labor, Occupational Safety and Health Administration (“OSHA”), 595 U.S. ___ (2022), and Biden v. Missouri, 595 U.S. ___ (2022). 

In NFIB, the Supreme Court addressed the mandate issued by OSHA for employers with at least 100 employees. Several States, businesses, and nonprofit organizations filed applications with the Supreme Court to stay the mandate, as the Sixth Circuit had lifted a previous stay and permitted the mandate to take effect. NFIB, at *1. The mandate required all covered workers to be vaccinated, and it overruled any contrary state laws. Id. The only exceptions under the mandate were for employees who obtained a weekly test at their own expense and on their own time and wore a mask throughout the workday, employees who worked remotely 100 percent of the time, and for employees who work exclusively outside. Id., at *1, 3. The Court noted that “OSHA has never before imposed such a mandate. Nor has Congress.” Id., at *1. 

After reviewing the history of the mandate and the litigation initiated by the Applicants, the Court held that “Applicants are likely to succeed on the merits of their claim that the Secretary (of Labor) lacked authority to impose the mandate.” Id., at *5. The Court determined that the mandate, covering approximately 84 million workers, extended beyond the agency’s authority. Id., at *5-6. The Court further held that “[t]he Act (Occupational Safety and Health Act) empowers the Secretary to set workplace safety standards, not broad public health measurers.” Id., at *6. The Court rejected the Government’s argument that contracting COVID-19 qualified as an occupational hazard in most workplaces. Id. According to the Court, “[t]hat kind of universal risk (of contracting COVID-19) is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Id., at *6-7. The Court concluded that permitting OSHA to regulate daily hazards “would significantly expand OSHA’s regulatory authority without clear congressional authorization.” Id., at *7. The Court acknowledged that 

OSHA could regulate occupation-specific risks related to COVID-19 (such as researchers who work with the virus). The Court thus criticized OSHA’s “indiscriminate approach” used in the mandate. Id. Given the lack of historical precedent and the authority the Secretary of Labor sought, the Court ruled that the mandate exceeded OSHA’s authority. Id., at *8. The Court thus granted the applications for stays and remanded the cases to the lower courts to continue the legal challenges. Id., at *9. For now, the OSHA mandate is not in effect. Justices Breyer, Kagan, and Sotomayor dissented from the opinion. 

In Biden, the Court addressed a mandate issued by the Secretary of Health and Human Services that requires facilities that receive Medicare and Medicaid funding to ensure that their staff are vaccinated against COVID-19 (unless there is a medical or religious exemption). Biden, at *1. Two District Courts prevented enforcement of the mandate, and the Government appealed to the Supreme Court. Id. The Court noted that one function of the Secretary of Health and Human Services “is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” Id., at *2. Importantly, one condition that facilities obtaining Medicare and Medicaid funding have long had to meet is to “maintain and enforce an ‘infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.” Id. (citation omitted). 

Unlike in NFIB, in Biden the Court held that “the Secretary’s rule falls within the authorities that Congress has conferred upon him.” Id., at *4. The Court noted that the mandate worked to protect patients and is “consistent with the fundamental principle of the medical profession: first, do no harm.” Id., at *5. The Court related that the Secretary of Health and Human Services routinely imposed conditions to protect patients and that the relevant facilities have always had to satisfy conditions to ensure the safe provision of healthcare. Id., at *6. The Court concluded that “the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.” Id., at *8. The Court rejected the argument raised by the challengers to the mandate that the rule is arbitrary and capricious. Id. The Court further rejected the other arguments raised by the challengers. Id., at *8-9. The Court thus granted the Government’s applications to stay the lower courts’ rulings, and the case will now go back to the lower courts. Id., at *9-10. Justices Thomas, Alito, Gorsuch, and Barrett dissented. 

As challenges to COVID-19 measures make their way through the courts, we will continue to provide important updates to help guide employees and employers. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us. 

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On November 18, 2021, Governor Ron DeSantis signed into law legislation related to COVID-19 vaccine mandates by employers. This legislation was passed during a special session of the Florida Legislature called by Governor DeSantis in response to federal vaccine mandates. As the federal mandate is embroiled in legal battles throughout the country, the legal landscape remains very much unsettled. In Florida, this new legislation took effect immediately, and it is critical for employees and employers to stay informed about these changes. 

Section 381.00317(1), Florida Statutes (2021), provides: “A private employer may not impose a COVID-19 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement on (1) the basis of medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; (2) religious reasons; (3) COVID-19 immunity; (4) periodic testing; and (5) the use of employer-provided personal protective equipment.” (Emphasis and numbering added). Employers are to use forms created by the Department of Health. Those forms can be found on the Department of Health’s website at http://www.floridahealth.gov/newsroom/2021/11/20211118-florida-department-health-covid19-vaccination-exemption-forms.pr.html (last visited Dec. 20, 2021). The takeaway from the above is that employers can implement vaccine mandates as long as they offer the stated exemptions, including allowing employees to opt to undergo testing paid for by the employer or using personal protective equipment (“PPE”). Employers can also continue to protect its workforce through the use of PPE and testing that is separate from a vaccine mandate. 

In order to claim a medical exemption, an employee “must present to the employer an exemption statement, dated and signed by a physician or a physician assistant . . . who has examined the employee.” § 381.00317(1)(a), Fla. Stat. (2021). The statement must provide that in the opinion of the medical professional, “COVID-19 vaccination is not in the best medical interest of the employee.” Id. This exemption is similar to an exemption under the Americans with Disabilities Act (“ADA”). 

Regarding the religious exemption, an “employee must present to the employer an exemption statement indicating that the employee declines COVID-19 vaccination because of a sincerely held religious belief.” § 381.00317(1)(b), Fla. 

Stat. (2021). The form provided by the Department of Health makes it clear that an “employer shall not inquire into the veracity (i.e., truthfulness) of the employee’s religious beliefs.” Notably, the employee is not required to provide documentation from a religious leader. 

In order to claim the exemption based on immunity, “the employee must present to the employer an exemption statement demonstrating competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.” § 381.00317(1)(c), Fla. Stat. (2021). The employee must attach a copy of the test results to the form submitted to the employer. 

Regarding the testing exemption, “the employee must present to the employer an exemption statement indicating that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.” § 381.00317(1)(d), Fla. Stat. (2021) (emphasis added). The statute does not provide an exception if the testing cost would create an undue hardship on the employer. 

In order to claim the PPE exemption, “the employee must present to the employer an exemption statement indicating that the employee agrees to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons.” § 381.00317(1)(e), Fla. Stat. (2021) (emphasis added). The statute does not provide a definition for PPE. 

The Florida Legislature made it clear that “[i]f an employer receives a completed exemption statement . . ., the employer must allow the employee to opt out of the employer’s COVID-19 vaccine mandate.” § 381.00317(2), Fla. Stat. (2021). 

The Florida Legislature charged the Department of Legal Affairs with enforcement of these provisions. Any employee may file a complaint with the Department “alleging that an exemption has not been offered or has been improperly applied or denied in violation of this section.” § 381.00317(3), Fla. Stat. (2021). If the investigation uncovers a violation, the employer must be notified and the employer must be given the opportunity to cure the noncompliance. Id. 

If an employer terminates an employee for failing to comply with the vaccine mandate, the employee can file a complaint with the Department. Id. The Florida Legislature noted that “[t]ermination includes the functional equivalent of termination,” which would include forcing an employee to resign. Id. If the terminated employee files a complaint with the Department and the investigation determines that an employee was improperly terminated in violation of the statute, the Attorney General is required to impose an administrative fine not to exceed $10,000 per violation for an employer with fewer than 100 employees and $50,000 per violation for employers with 100 or more employees. Id. The Attorney General may not impose the fine if the employer reinstates the employee with back pay to the date the complaint was received prior to the Department issuing a final order. Section 381.00317 does not provide for individuals to sue their employers. 

The Florida Legislature explicitly notes that “[a]n employer may not impose a policy that prohibits an employee from choosing to receive a COVID-19 vaccination.” § 381.00317(7), Fla. Stat. (2021). Finally, this legislation expires June 1, 2023. § 381.00317(8), Fla. Stat. (2021). 

In addition to employer vaccine mandates, the Florida Legislature also prohibited “any business operating in this state” from requiring “patrons or customers to provide any documentation certifying COVID-19 vaccination or postinfection recovery to gain access to, entry upon, or service from the business operations in this state.” § 381.00316(1), Fla. Stat. (2021). The legislation “does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or government-issued guidance to protect public health.” Id. There are similar restrictions on governmental entities and educational institutions. § 381.00316(2)-(3), Fla. Stat. (2021). There are exceptions for health care providers, certain behavioral health providers, and clinicians. § 381.00316(5), Fla. Stat. (2021). The Department of Health is permitted to impose a fine of up to $5,000 per violation. § 381.00316(4), Fla. Stat. (2021). 

The federal vaccine mandates continue to work their way through the court system. To the extent that Florida law directly conflicts with the federal mandates that remain in place, the federal law would likely control. This will, of course, depend on if the federal mandates survive. This is an ever-changing area of the law, and there will likely be legal challenges to this legislation as well. As these developments occur, we will update this blog. 

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us. 

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In the classic Quentin Tarantino film PULP FICTION (A Band Apart/Jersey Films 1994), one of the primary plot points revolves around main characters Jules and Vincent safeguarding a briefcase with mysterious contents.1 They go to great lengths to ensure the briefcase does not leave their possession. Just as Jules and Vincent take all necessary steps to protect the briefcase, so too must employers ensure the protection of employees’ health records. We often receive calls from employees and employers regarding protecting medical records obtained as part of an individual’s employment, and this post will provide an overview of that topic.

As an initial matter, many individuals associate medical records with the Health Insurance Portability and Accountability Act (“HIPAA”). Although it is true that HIPAA was designed to protect “sensitive patient health information from being disclosed without the patient’s consent or knowledge,” the well-known “Privacy Rule,” which addresses the use and disclosure of protected health information, applies only to “Covered Entities.” See “Health Insurance Portability and Accountability Act of 1996 (HIPAA),” Centers for Disease Control and Prevention, https://www.cdc.gov/phlp/publications/topic/hipaa.html (last visited Nov. 17, 2021). “Covered Entities” include healthcare providers, health plans, and healthcare clearinghouses. Id.

Although an employer may also sponsor a health plan, the Privacy Rule “does not protect your employment records, even if the information in those records is health-related.” “Employers and Health Information in the Workplace,” U.S. Dep’t of Health & Human Services, https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html (last visited Nov. 17, 2021). Generally, the “Privacy Rule” does not apply to the actions of an employer. Id. If an employer also acts as a Covered Entity, it must consider what position it played in obtaining the health information (for example, an individual may be employed by a healthcare provider and be a patient of that provider). Employers are permitted to ask employees for a note from a physician or other health information if necessary for an employment-related purpose (e.g., sick leave, workers’ compensation, wellness programs); however, if employers seek information directly from a Covered Entity, the employee’s authorization will be required. Id. As the Department of Health and Human Services notes, “[g]enerally, the Privacy Rule applies to the disclosures made by your health care provider, not the questions your employer may ask.” Id. Although HIPAA generally does not apply in the employment context, that does not mean employers can freely share an employee’s health information.

Under the Americans with Disabilities Act (“ADA”), if an employer obtains medical records regarding an employee as part of the interactive process, the employer must keep the medical records separate from the personnel file and label them as “confidential medical records.” Employers may share the information with supervisors and managers who need to know the necessary accommodations and potential restrictions on the employee’s duties; first aid and safety personnel who may need to treat the employee if an emergency arises; and government officials who need the information to investigate compliance with the ADA. Similarly, records obtained by employers for purposes of the Family and Medical Leave Act (“FMLA”) must be kept separate from the employee’s personnel file and labelled as “confidential medical records.”

Like Jules and Vincent, we are here to ensure that you know the ins and outs of keeping someone’s “briefcase” secure (or know your rights if there is a concern about someone losing your “briefcase”). If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

¹ As an interesting trivia fact, that briefcase serves as a MacGuffin, “an object, event, or character in a film or story that serves to set and keep the plot in motion despite usually lacking intrinsic importance.” In Merriam-Webster.com. Retrieved November 5, 2021, from https://www.merriam-webster.com/dictionary/MacGuffin.

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Many people take DNA tests every year. Services such as AncestryDNA and 23andMe have become increasingly popular over the last few years. Undoubtedly, genetic testing has become instrumental not only in learning about one’s family history but also in helping to diagnose medical conditions. One of the lesser-known areas of employment law involves genetic information discrimination. This post will examine the Genetic Information Nondiscrimination Act (“GINA”) of 2008 and explore its impact in the workplace.

Title II of GINA prohibits discriminating against employees or applicants because of their genetic information. As with other classes protected by federal law (such as Title VII or the ADA), GINA applies to employers with fifteen (15) or more employees. As a starting point, it is important to understand the meaning of “genetic information.” This phrase includes information about genetic tests and the genetic tests of an individual’s family members (spouse, dependent child, parent, grandparent, or great-grandparent), as well as family medical history. Congress included family medical history because of the routine use of such information to determine if an individual is at an increased risk of getting a disease, condition, or disorder in the future. “Genetic information” also includes an individual’s request for or receipt of genetic services or the participation in clinical research that includes genetic services. Furthermore, the phrase includes the genetic information of a fetus or embryo carried by the employee or a family member of the employee.

GINA makes it clear that an employer may not use genetic information to make an employment decision. Under GINA, it is also illegal to harass a person because of her or his genetic information. This includes, as an example, routinely mocking an employee for his genetic information or about the genetic information of the employee’s family member. As with other forms of discrimination, the harassment must be severe and pervasive to be actionable; in other words, an offhanded comment or isolated incidents of harassment will not be enough to assert a claim against an employer. As with other forms of harassment, employees should report incidents to the proper individual, and employers should take all complaints seriously. Finally, it is illegal to retaliate against an employee for opposing discrimination based on genetic information. Retaliation may include disciplining an employee, demoting an employee, or terminating an employee for raising complaints of discrimination based on genetic information or filing a charge of discrimination with the Equal Employment Opportunity Commission and/or the proper state agency (in Florida, the Florida Commission on Human Relations). It should also be noted that when employers obtain genetic information about employers, such information shall remain confidential except in very limited circumstances.

GINA brought to the forefront the importance of genetic information and ensured that employees are protected from discrimination and retaliation based on the genetic information (and that of family members), just as other classes are protected. When dealing with genetic information discrimination and retaliation, it is important to know your “ACGTs.” We are here to help and ensure employees and employers do not get confused by the law. If you need assistance, do not hesitate to contact us.

We hope you and your family stay safe and healthy.

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