The Eleventh Circuit today remanded back to the trial court a challenge to The Florida Bar advertising rules holding that the trial court improperly granted summary judgment for The Florida Bar.
The court held that the lawyer challenging the Bar Rules “has made a sufficiently credible showing that the rules are unconstitutionally vague on their face; if they are, we decline to let the Bar ‘hammer[] [them] out case by case and thereby ‘provide [them] with a patina’ of determinacy. Eaves, 601 F.2d at 822 (citation omitted). The district court should hear these claims now.”
– City of Ontario, California v. Quon. This case involved a police officer’s text messages being reviewed by the City. The Court sidestepped the question whether public employees have an expectation of privacy, but in any event unanimously found that the city’s search of a worker’s text messages at issue in the case was reasonable under the Fourth Amendment.
– New Process Steel v. National Labor Relations Board. The NLRB due to political battles only had 2 members for a very long time. The NLRB should have 5 members. A majority of the Court held that a two-member NLRB does not have the legal authority to do the business of the board. This decision may have a major impact upon the Board, as there were over 500 decisions issued during the more than 2 years that the Board functioned with only 2 members.
Yesterday, President Obama nominated Robert O’Neill to the U.S. Attorney position in the Middle District of Florida. O’Neill has served as an Assistant U.S. Attorney in the Middle District since 1993. O’Neill must go through a review by the Senate Judiciary Committee and be confirmed by the Senate to become U.S. Attorney.
For more information, read the St. Pete Times article here.
Relief under the Florida Civil Rights Act (FCRA), like its predecessor the Florida Human Relations Act, is modeled after federal law, specifically Title VII. Assuming the plaintiff is able to bring suit in court, the plaintiff may recover damages under § 760.11(5), Fla. Stat.
1. Back Pay And Benefits
The FCRA has always been interpreted to provide relief consistent with Title VII. However, no liability for back pay can accrue from a date more than two years prior to the filing of the charge.
2. Compensatory Damages
The Court may award damages for “mental anguish, loss of dignity, and any other intangible injuries.” Fla. Stat. § 760.11(5).
3. Punitive Damages
No statutory standard is provided. Punitive damages awarded under § 760.11(5), Fla. Stat. are not subject to the procedural and substantive limitations of §§ 768.72 and 768.73, but they are limited to $100,000.
The State and its agencies and subdivisions are not liable for punitive damages.
4. Reinstatement, Hiring, Promotion
The FCRA does not expressly provide for reinstatement, hiring, promotion, etc., but those remedies are available.
5. Caps On Damages
Unlike Title VII, there is no dollar cap on compensatory damages under the FCRA. Any downward adjustment to a compensatory damage award must be based on traditional principles of judicial review of damage awards, as well as § 768.74, Fla. Stat.
However, the FCRA has a cap of $100,000 on punitive damages.
The FCRA also incorporates the limitations on the recovery of damages against the State and its agencies and subdivisions set forth in § 768.28(5).
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The Division of Administrative Hearings (DOAH) is a Florida state agency made up of Administrative Law Judges who hear cases in which substantial interests are determined by an agency and there is a disputed issue of material fact. Fla. Stat. 120.569(1).
Whenever the state takes action that is adverse to a person, she can generally request an administrative hearing. Id.
- If a state agency is taking action that negatively affects you, you may generally request an administrative hearing to determine the matter. This initial hearing request is made to the agency involved. Fla. Stat. 120.569(2)(a). If there is a dispute over a material fact, the agency will refer the matter to DOAH. If the matter is referred to DOAH, you will be notified of the case number and the judge assigned to your case.
- You are entitled to a hearing before an administrative law judge. Fla. Stat. 120.569(2) (b). After the case is sent to DOAH, you will be contacted regarding your preference for date and place of hearing. The hearing will be held within 120 days of DOAH receiving your case. DOAH offices are located in Tallahassee, but hearings may be held in other cities. You will receive notice with the time, place, and nature of the hearing. Id.
- You may represent yourself or have an attorney represent you. You may also have a non-lawyer present your case if the judge determines that he or she will adequately protect your rights. All papers filed in the proceeding need to be signed by you or your representative. Fla. Stat. 120.569(2) (e).
- Just as in a regular civil case, discovery is governed by the Florida Rules of Civil Procedure. You are entitled to request certain documents and a judge will enforce proper discovery.
- At the hearing, each side will present its evidence. You may present witnesses at a DOAH hearing. Fla. Stat. 120.569(2) (f). If a witness will not appear voluntarily, they may be subpoenaed by the court. Id. Cross-examination of opposing witnesses is allowed. Fla. Stat. 120.569(2) (j). Hearsay evidence is admissible. Fla. Stat. 120.57(1)(c).
- The judge may allow you to submit proposed decision after the hearing. A decision will be made within 90 days of the hearing. Fla. Stat. 120.569(2) (l). A record will be made of the proceedings. You may obtain a copy of the transcript but you will have to pay the costs of its preparation. Fla. Stat. 120.57 (1)(g).
- If you disagree with the recommended order, you may take “exceptions” to it by sending a letter to the agency head within 15 days. Fla. Stat. 120.57(1)(b).
- The agency head must issue a Final Order within 90 days of the Recommended Order. If you disagree with this Final Order, you have a right to an appeal in the District Court of Appeal within 30 days.
Different companies are subject to different federal employment laws based on their size.
Below is an overview of the federal employment laws that affect companies with certain numbers of employees. There may be additional state laws that apply which are not discussed here.
1+ EMPLOYEES
Although smaller companies are exempt from certain requirements, there are still a number of laws they must follow. Many laws affect employers with at least one employee.
The Fair Labor Standards Act (FLSA), which provides for a minimum wage, guarantees overtime pay, and protects whistle-blowing applies to all employers that have at least one employee if the employee is engaged in interstate commerce or the production of goods in interstate commerce. The FLSA also includes the Equal Pay Act, prohibiting sex-based wage discrimination, and child labor laws.
The Employee Retirement Income Security Act (ERISA) protects employee benefits when the employer offers them.
Other laws that apply to all employers with at least one employee are the Occupational Health and Safety Act (providing for safe working conditions), the Fair Credit Reporting Act(regulating the use of consumer credit information for employment purposes), the Immigration Reform and Control Act (making it unlawful to knowingly hire illegal immigrants), the Federal Insurance Contributions Act (requiring both employees and employers to fund Social Security and Medicare), the Employee Polygraph Protection Act (preventing employers from using lie detector tests), the Uniformed Services Employment & Reemployment Rights Act (protects armed service members’ reemployment rights after returning from a period of service), and the National Labor Relations Act (protects the right to join labor unions and engage in collective bargaining).
15+ EMPLOYEES
An employer with at least 15 employees is responsible for complying with additional statutes. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin. Additionally, the Pregnancy Discrimination Act protects pregnant employees from discrimination. The Americans with Disabilities Act prohibits discrimination based on disability.
20+ EMPLOYEES
The Age Discrimination of Employment Act (ADEA) applies to companies with 20 or more employees. ADEA protects the rights of workers over 40. The Consolidated Omnibus Budget Reconciliation Act of 1983 (COBRA) also affects companies employing at least 20 employees. COBRA allows employees to keep their health coverage during times of job loss or transition.
50+ EMPLOYEES
Employers with at least 50 employees are subject to the Family and Medical Leave Act (FMLA). FMLA grants an employee 12 weeks of unpaid leave for childbirth, a serious health condition, or to care for an immediate family member with a serious health condition.
100+ EMPLOYEES
Employers with 100 or more employees must provide 60 days notice of plant closings or mass layoffs pursuant to the Worker Adjustment and Retraining Notification Act (WARN). Employers with at least 100 employers (or 50 if the company is a federal contractor) must also file an Employer Information Report (EEO-1 Report) annually with the Equal Employment Opportunity Commission (EEOC) and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). Employers must provide a count of their employees by job category and by ethnicity, race and gender.
A recent New York Times article on a proposed law in New York state to provide basic employment protection to domestic employees like nannies, raises a very interesting issue. In Florida, domestic employees have very little protection from abusive employers. While it is relatively well established that the minimum wage provisions of the Fair Labor Standards Act apply to nannies, there is far less clarity about the overtime provisions.
Perhaps this New York law is the beginning of a trend to increase employer accountability, but I am not holding my breath.
‘You can read the New York Time article about the proposed nanny law here.
In Utility Workers Union of America v. City of Lakeland, the Second District Court of Appeal, on June 2, 2010, held that the City of Lakeland engaged in an unfair labor practice by altering the status quo pending collective bargaining.
For twenty years, the City has provided annual across-the-board wage adjustments to its employees. In June 2007, members of the City’s electric department elected the Union as their collective bargaining representative. Three months later, in September 2007, the City approved a budget that included a 2.5% wage increase to all nonunionized City employees. The Union, in November 2007, filed an unfair labor practice charge against the City, alleging a violation of section 1.016(1)(a) and (c) of the Lakeland Public Employees Relations Ordinance, which is based on section 447.501, Florida Statutes (2007). The Union asserted the City’s unilateral change in its past practice disrupted the status quo. Lakeland PERC’s General Counsel dismissed the charge, and Lakeland PERC affirmed.
The Court held that the City’s twenty-year practice of administering annual, across-the-board wage adjustments to its employees was a part of the status quo. By not providing newly unionized employees with this wage adjustment, the City failed to maintain the status quo. In doing so, the City committed an unfair labor practice, as defined in section 1.016(1)(a) and (c) of the Lakeland Public Employees Relations Ordinance and section 447.501(1).
When an employee receives a severance offer, they are often shocked to see in the agreement that the employer is telling them to consult a lawyer, that they have 21 days (or sometimes 45 days) to consider the agreement, and that they have seven days after they sign the agreement to change their mind.
Why do employers do this? Are they just trying to be nice to the employee that they are firing?
NO!
Employers do this because if the worker is over 40 years of age and the employer wants the employee to waive claims of age discrimination, federal law says they have to do these things.
Specifically, the Older Workers Benefits Protection Act (OWBPA) part of the Age Discrimination In Employment Act requires seven things.
- The waivers must be drafted in plain language geared to the level of comprehension and education of the average individual(s) being terminated.
- An OWBPA waiver must expressly spell out the Age Discrimination in Employment Act (ADEA) by name.
- A waiver must advise the employee in writing to consult an attorney before accepting the agreement.
- A waiver must provide the employee with at least 21 days to consider the offer. The 21-day consideration period runs from the date of the employer’s final offer. If material changes to the final offer are made, the 21-day period starts over. If it is a mass layoff, the employee must have 45 days to consider the offer.
- A waiver must give an employee seven days to revoke his or her signature.
- A waiver must not include rights and claims that may arise after the date on which the waiver is executed.
- A waiver must be supported by consideration in addition to that to which the employee already is entitled.
If a waiver of age claims fails to meet any of these seven requirements, it is invalid and unenforceable. In addition, an employer cannot attempt to “cure” a defective waiver by issuing a subsequent letter containing OWBPA-required information that was omitted from the original agreement.
Recently Sam Seltzer’s Steakhouse had a massive layoff of all employees. In circumstances like this, the employees might have a claim under the WARN Act, which deals with mass layoffs.
WARN offers protection to workers, their families and communities by requiring employers to provide notice 60 days in advance of covered plant closings and covered mass layoffs.
In general, employers are covered by WARN if they have 100 or more employees, not counting employees who have worked less than 6 months in the last 12 months and not counting employees who work an average of less than 20 hours a week
More information about the WARN Act is here.
It is important to talk with an experienced employment law specialist if you think you might have a claim under the WARN Act.
This would include employees of Sam Seltzers who were just laid off with no advanced notice.