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Expanding Employee Protections and Employer Compliance Issues  

            In the area of employment discrimination, a single set of facts can often raise legal issues under multiple overlapping statutes.  For example, an employee who is denied a leave of absence to deal with pregnancy complications might have claims under three federal laws, Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), and one Florida state statute, the Florida Civil Rights Act (FCRA).  Depending on timing and strategic issues, an employee can elect to utilize some or all of these avenues of redress.

In recent years, these protections have been expanded even further pursuant to several county discrimination, human rights and civil rights ordinances.  Ordinances are, simply stated, local statutes that can provide protections and remedies that mirror or, in many cases, exceed those offered by federal and states law.

In Central Florida, there are currently three counties that have enacted ordinances of this type: Orange, Volusia and Osceola.  While these ordinances create certain redundancies in the law, they also expand three key aspects of employment discrimination law: (1) employers covered, (2) protected categories of employees, and (3) direct access to court system.

Expansion of Employer Coverage 

          Most federal and state discrimination statutes are inapplicable to employers with fewer than fifteen (15) employees.  The county ordinances listed above, by contrast, apply to employers with five (5) or more employees.  Thus, many small employers who are beyond the reach of federal and state law are subject to the protections afforded by these ordinances.  Consequently, these small employers must develop policies and procedures to address equal employment opportunity and harassment issues.

Expansion of Protected Categories 

The three ordinances, in addition to the categories protected under state and federal law (race, color, religion, national origin, sex, disability, age, marital status), extend their prohibitions to discrimination against individual due to their “familial status” and “sexual orientation.”

“Familial status” refers to individuals who are pregnant or in the process of securing legal custody of a minor.  “Sexual orientation” refers to an employee’s sexuality, actual or perceived, as well has his or her gender identity and expression.  In Volusia County.  These protections include, in applicable circumstances, the right of transgender employees to utilize their restroom facility of choice.

Direct Access to Court 

Unlike employees utilizing federal and state employment discrimination statutes, the ordinances do not require that employees file an administrative charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or Florida Commission on Human Relations (FCHR) before filing a lawsuit.  Thus, the first notice an employer might receive of a claim under an ordinance can be the service of a civil lawsuit.

Discrimination ordinances greatly expand the “playing field” of employment discrimination law, both for employers and employees.  Given the breadth of the protections in covered Counties, employees should consult counsel regarding their rights to determine which laws apply and best serve their purposes.  For employers, the ordinances increase the number of companies that must implement preventative policies and procedures, as well as the number of protected categories that their policies must address.

For more information regarding these issues and how they apply to you or your company, please contact the firm.

In the realm of employment law, one of the most frequently misunderstood terms is retaliation.

Employees often view the term too broadly, believing that the law prohibits all acts of retribution or punishment that follow a complaint of mistreatment. Conversely, employers often underestimate the number of circumstances in which they might have exposure to liability based upon allegations of retaliation.

The key to understanding the scope of the protections against unlawful retaliation can be summed up in two words: protected conduct.

“Protected conduct” is a catch-all for employee actions for which an employer is legally prohibited from imposing adverse consequences. They include, but are not limited to (1) allegations of or expressions of opposition to discriminatory conduct on the basis of race, color, sex, religion, national origin, age, disability, or other statutorily protected categories, (2) participation in formal proceedings related to discrimination claims, (3) invocation of rights to workplace accommodations, family and medical leave, or workers’ compensation benefits, (4) allegations of violations of laws that govern employer behavior or practices, and (5) expressions of opposition to violations of laws, rules and regulations (i.e. whistleblowers).

While the form of “protected conduct” can vary, a general rule for employees is that it must be specifically expressed. For example, an employee that believes he or she has been subjected to discrimination, but merely complains about “unfair treatment,” likely will not be found to have engaged in protected conduct. Similarly, many courts have held that retaliation prohibitions do not attach where an employee merely asserts that he or she has been subjected to “harassment” or a “hostile work environment,” but does not tie those allegations to a protected status (i.e. race, sex, age, etc.). Finally, an employee who seeks an accommodation, but does not put the employer on notice that the need has arisen from a disability, pregnancy or medical condition, may not be found to have triggered anti-retaliation protections.

Thus, while some employees may find it awkward or difficult to elevate general complaints in the workplace to specific allegations of legal violations, doing so is necessary to ensure that the “bubble of protection” provided by anti-retaliation laws are activated.

From the employer’s perspective, when an employee communication crosses the line between general workplace matters and protected conduct, a “red flag” should be raised. From that point forward, the employer must consider whether its actions might be construed by a third party as retaliatory.

Timing is a significant factor. If an employee is subjected to an adverse action within days of having engaged in protected conduct, the level of scrutiny will likely be very high. This does not mean that an employer is entirely handcuffed and cannot take actions necessary to effectively run its business. However, in doing so, it is advisable to have clear, objective and documented reasons for the measures taken.

We frequently provide assistance in this area. Representing employees, we often act as a guide, ensuring that communications with employers clearly invoke legal rights and qualify as protected conduct. Representing employers, we have extensive experience in assisting management in balancing legal obligations with business needs. In both cases, we strongly recommend that counsel be sought early in the process. Please contact us if you wish to consult on matters of this type.

The adage that an “ounce of prevention is worth a pound of cure” is particularly applicable in the area of compliance with the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) and the Florida Minimum Wage Amendment (FMW). As the interpretation of these laws often involve grey areas and counter-intuitive rules, we strongly recommend that employers regularly conduct payroll audits with the assistance of counsel

Unfortunately, while an audit can prevent future violations, they also may reveal past errors. It is then that employers will face a dilemma: what corrective measures should be taken?

Often times, an employer’s first instinct is to correct an error on a prospective basis only (i.e. by reclassifying employees, altering pay plans, or improving timekeeping methods). The rationale behind this approach is usually twofold. First, many employers presume that employees, upon being advised of such changes, will accept their employer’s good faith and refrain from bringing lawsuits relating to past practices. Second, often times, correcting an error retroactively is deemed to be cost prohibitive.

The prospective approach is, in essence, a calculated risk. On the day the error is corrected, the “clock starts ticking” on the potential claims arising from past practice by virtue of the running of the applicable statutes of limitations. If enough time passes, those claims will be extinguished. However, if even one employee files a lawsuit, the employer can be saddled with substantial damages and attorney’s fees.

It would seem that a logical alternative would be to settle past claims with employees. Unfortunately, that option is highly problematic. Unlike most other employment related claims, claims for unpaid wages arising under the FLSA cannot be waived by employees through private settlement agreements or releases. Rather, there are only two ways an employee may waive his or her rights under this statute: (1) under the supervision of the DOL, or (2) in the context of a lawsuit. As a result, an employer that provides back wages to an employee and obtains a waiver or release can still potentially be sued by that employee (i.e. if he or she later alleges that the settlement was for less than they were actually owed).

Recently, another option has emerged. On March 6, 2018, the Department of Labor’s Wage and Hour Division (WHD) announced an initiative called the Payroll Audit Independent Determination (PAID) program. Through this program, an employer that discovers a payroll error impacting minimum wages or overtime pay can report the matter and seek assistance from the WHD. The agency will then facilitate a resolution of the matter through a supervised settlement process.

There are several potential benefits of this program. First, it is a faster and less costly mechanism for resolving matters of this type. Second, in a supervised settlement, employers are typically only required to pay two years of back pay (as opposed to the three years available in court), and are not required to pay liquidated (double) damages which are always sought in litigation. Third, in resolving the claims with the WHD, there is no additional cost of paying an employee’s legal fees. Finally, unlike a private settlement, any resolution reached under the WHD’s supervision is binding and final.

The option of “confessing” to the WHD may not be the best option in all circumstances. It could, however, be the least costly remedial measure in certain circumstances.

While the issues that arise in attempting to cure a discovered error in FLSA and MWA compliance may seem daunting, none of them should deter employers from proactively evaluating and, if necessary, correcting their pay practices. Taking control of these problems, both through prevention methods and options to cure errors, is always the best approach. We regularly assist employers in this regard, and would welcome the opportunity to assist your organization.

In recent months, the topic of sexual harassment has come to the forefront of the news, primarily due to the revelations of misconduct by several powerful figures in the entertainment industry and politics. While the increased attention to this issue is beneficial, the media often fails to accurately and adequately describe the law, or the legal procedures, relating to sexual harassment in the workplace.

In the “court of public opinion,” there is ostensibly no time limit within which an allegation must be made, the definition of sexual harassment can be very broad, and consequences can be visited upon the accused without formal legal process. The legal system, which governs these issues outside the world of celebrities, is far more rigid. For this reason, it is important that both employees and employers be made aware of some key aspects of sexual harassment law.

First and foremost, not all offensive conduct of a sexual nature is deemed to be actionable sexual harassment. In determining whether that line has been crossed, the law asks three questions: The first is whether the employee considered the conduct offensive and unwelcome (the “subjective” test). The second is whether a reasonable employee would also find the conduct offensive and unwelcome (the “objective test”). The third is whether the conduct was severe or pervasive (as opposed to minor and consisting of isolated incidents).

If, in answering these questions, the conduct is found to qualify as sexual harassment, the employer is not automatically liable. Rather, in most cases, if the employer maintains a policy prohibiting harassment in the workplace, the employee must first attempt to seek a remedy internally by reporting the conduct to the employer. If the employer takes prompt action and corrects the problem, it is typically insulated from liability. If the employer fails to do so (allowing the harassment to continue), or if it retaliates against the employee who complained, significant liability can result.

The legal system, unlike the “court of public opinion,” has strict time limits. To preserve a claim of sexual harassment (not involving a tort such as assault and battery), an employee must file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) within three hundred days, or with the state Florida Commission on Human Relations (FCHR) within three hundred sixty five days, of the unlawful conduct.

From a practical standpoint, the best advice that can be given to both employees and employers is to get ahead of the issue. Employees should utilize the available reporting mechanisms provided by their employer “early and often.” While this can be an extremely daunting task, in our experience, this is the surest way for an employee to protect and, ultimately, vindicate their rights. We routinely assist employees through this difficult process.

Similarly, employers should adopt an “ounce of prevention is worth a pound of cure” approach. By creating and disseminating a clear and comprehensive anti-harassment policy, and by addressing complaints with a prompt and thorough investigation and, where necessary, disciplinary action, an employer can reduce the likelihood that a rogue manager will saddle the company with significant liability. Our attorneys provide guidance to employers in this crucial aspect of employee relations as well.

Workplace harassment, unfortunately, remains a serious problem. Contrary to the media’s implication, however, the legal principles that address this issue have been in place for decades. Simply stated, it’s not new to us. We welcome the opportunity to assist you in navigating this system.

In November 2016, the Florida Medical Marijuana Initiative, also known as Amendment 2, was approved by voters, leading to the legalization of marijuana for medical use. As the prescription and usage of marijuana becomes more commonplace, the question of how this law impacts the workplace is also becoming more prevalent.

Simply stated, the question that is being asked more and more frequently is, can an employer take any adverse action against an employee who is legally using marijuana for medical purposes with a prescription?

The most effective way to answer this complicated question is to divide the response into two parts. The first is how the law addresses impairment due to marijuana use, while the other is how the law addresses mere usage without impairment.

The law has not changed when it comes to impairment. An employee who comes to work impaired may be subject to drug and alcohol screening and disciplinary action. This is true whether the employee is impaired due to the use of legal substances, such as alcohol or prescription medications, or due to the use of unlawful substances.

Of course, the question of whether an employee is “impaired” is not always simple. Certainly, employees in safety-sensitive positions, such as first responders, machinery operators, or anyone who drives a motor vehicle as part of his or her job, will be deemed “impaired” if they have any substance in their system that might cause drowsiness, impact motor functions, or cause intoxication. For an employee with a desk job, the threshold is lower, though an employer still has an unchallenged right to mandate that its employees refrain from reporting to work with any diminished capacity resulting from the use (lawful or unlawful) of drugs or alcohol.

The more difficult questions arise where an employer learns of marijuana usage that does not result in impairment. For example, if an employer detects marijuana usage during a random drug screening, can it take an adverse action against the employee if the marijuana was prescribed by a physician and it causes no impairment during working hours?

The answer may be a bit surprising. Currently, an employee who is fired for legally using medical marijuana in Florida may not have a claim. The reason is technical, rather than logical. The primary law that protect employees who are undergoing medical treatment is the Americans with Disabilities Act (ADA). This is a federal law and, as a result, it defines the term “legal drug use” under federal narcotics legislation. Unlike Florida’s state law, federal law continues to regard all marijuana use as unlawful.

This issue, however, is certainly far from being fully resolved. Both the courts and the legislatures (state and federal) have the power to reconcile these laws in a manner that provides greater protection to employees using marijuana for medical purposes. Employers and employees should continue to monitor this issue, both in the media and here on our blog.

For additional information regarding employment law matters, please click on the following link contact us from our contact page.