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Archive for the ‘Employment Law Blog – FL’ Category

What’s in a Name?

Posted on: June 20th, 2017

By: Jeremy W. Rogers

Oftentimes in the law, a seemingly straightforward term or name for something turns out to be not so straightforward. Common meanings need to be defined or else creative attorneys may avoid mandates set forth by statute, for instance. One example may include successful arguments against the applicability of a particular statute to his or her client. Statutes and regulations are rife with definitions that would make a layperson wonder out loud, “Why?” or “Was that really necessary?”

When not included in a statute, however, it is up to the courts to decide what a particular term or name really means, even if it seems obvious. One such situation occurred earlier this year when the Florida Supreme Court decided the definition of the term “sexual intercourse.” This question arose in a case out of the Florida Keys where a man was charged with violating § 384.42, Fla. Stat. which makes it unlawful for a person who is aware they are HIV-positive to have sexual intercourse with any other person without first informing that person of the disease. The State alleged that Gary Debaun violated the law when he had sex with another man without first disclosing he had HIV.  Mr. Debaun went a step further, it seems, and produced a forged lab report saying he was HIV-negative, although that little nugget is not really relevant to the story.  Of course, § 384.42 does not define “sexual intercourse,” and, citing to a prior authority, Mr. Debaun’s attorney successfully argued that “sexual intercourse” was limited only to “penetration of the female sex organ by the male sex organ.”  How very romantic. Because Mr. Debaun and his partner were both male, they did not have “sexual intercourse” under that very narrow definition. The circuit court agreed and dismissed the charges, but the Third DCA reversed, asking the Florida Supreme Court to resolve the issue.

In opposition to Mr. Debaun’s arguments once the case got this far, it was argued that the intent of the statute was not to criminalize the sexual act, but, rather, to criminalize the act of knowingly exposing one’s sexual partners to the disease. This would seem rather clear, and one wonders why there is prior authority setting forth such a narrow definition as the circuit court followed. Nevertheless, after consulting with three separate dictionaries, the Court ruled that the applicable definition is clearly more expansive than simply penile-vaginal penetration. Further reasoning, the Court noted that a more expansive definition would further the purpose and intent of the law. Thus, the Court defined “sexual intercourse” under its plain and ordinary meaning (and, as one court put it, “obvious meaning”). The definition includes penile-vaginal intercourse, anal and oral sexual activity, and is not limited to only heterosexual relations.

Who knew? (sarcasm intended)

For any questions, please contact Jeremy Rogers at [email protected].

Ten Years After Its Passage, Florida’s Law on Employment Leave for Victims of Domestic Violence Remains Obscure

Posted on: May 31st, 2017

By: Melissa A. Santalone

As of July 1, 2007, Section 741.313 of the Florida Statutes mandated that Florida employers with 50 or more employees must provide an employee who has been employed for three or more months with up to three days of leave from work in any 12-month period if the employee or a family or household member of an the employee has been a victim of domestic or sexual violence. Even though this law is nearing its tenth anniversary on the books, it may never have gotten the attention it needs in Florida’s employment law circles. Here are some frequently asked questions to get you up to speed on this law:

Are there any limitations on what reasons or activities the employee can use the leave for?

Yes. An employee may only use the leave to:

  1. Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence;
  2. Obtain medical care or mental health counseling, or both, for the employee or the employee’s family or household member to address physical or psychological injuries resulting from the act of domestic or sexual violence;
  3. Obtain services from a victim services organization, like a domestic violence shelter or rape crisis center;
  4. Make the employee’s home secure from the perpetrator of the domestic or sexual violence or to seek new housing to escape the perpetrator; or
  5. Seek legal assistance in addressing issues arising from the act of domestic or sexual violence or to attend or prepare for court-related proceedings stemming from the act of domestic or sexual violence.

Does the employee have to provide the employer with notice in order to take leave?

Generally, yes. Except in cases of imminent danger to the health or safety of the employee or the employee’s family or household member, an employee requesting leave under this law must provide the employer with appropriate advance notice of the leave as required by the employer’s policy, along with sufficient documentation of the act of domestic or sexual violence as required by the employer.

Does the leave need to be paid?

No. Whether this leave is paid or unpaid is left to the discretion of the employer.

Can the employee take this leave before the employee exhausted paid time off?

No, not unless the employer waives this requirement.

Are there any other mandates for the employer under this law?

Yes. Employers are prohibited from interfering with, restraining or denying an employee’s exercise or attempt to exercise the employee’s rights under this law. Employers are also prohibited from discharging, demoting, suspending, retaliating against or otherwise discriminating against an employee for exercising the employee’s rights under this law. In addition, private employers are required to keep confidential all information relating to the employee’s leave.

Can the employee file a lawsuit against the employer for failing to comply with this law?

Yes. The employee may sue the employer for violations of the act and claim as damages all wages and benefits the employee would have been due had the violation not occurred up to the date of judgment.

What can the employer do to prevent potential problems that may arise when an employee wants to take leave under this Statute?

Each Florida employer with more than 50 employees should have a clear, concise written policy setting forth the employer’s notice and documentation requirements to request and take leave under this law, as well as whether the leave is paid or unpaid and whether the employer will waive the requirement that the employee must exhaust his or her paid time off before taking leave. Employers should also be mindful of the fact that physical or mental injuries to an employee or his or her family members may also trigger protections under the Family and Medical Leave Act (FMLA).

If you need assistance in preparing or reviewing your employment policies with regard to domestic violence leave, please contact Melissa A. Santalone at [email protected].

Is it a Trend?

Posted on: May 12th, 2017

By: Jeremy W. Rogers

The general perception of Florida with regard to litigating cases to jury verdicts is that it is very unkind to defendants, particularly large corporations. I have spoken with numerous colleagues who believe that this reputation is completely justified, and it may be. Many also believe that there is a general trend toward much larger verdicts than have been experienced in the past. This perception is not only limited to general liability/personal injury cases, but extends to cases such as employment discrimination. The thinking goes that those who are part of the jury pool have grown increasingly angry with corporations, businesses, and “the establishment.” This is especially the case ever since the country began to experience its well-documented economic woes beginning in and around 2007-2008. Juries no longer want to make a plaintiff whole, but seek to punish the corporate wrongdoers. This fits in well with employment discrimination claims where much of the recoverable damages are somewhat formulaic (lost past wages, lost future wages), but may allow for awards of punitive damages and the ever-amorphous emotional damages. While the economy appears to have improved over the past few years, the perception of the disillusioned and angry juror has not changed much, if at all.

A couple of months ago, a jury in the Middle District of Florida decided a case based upon claims of disability and age discrimination. The jury rejected the age discrimination claim, but awarded the 74-year-old plaintiff $4.5 million in damages on the disability discrimination claim. Of that amount, less than $700,000 were wage damages, with the remaining $3.8 million allocated to emotional damages and punitive damages.

In reviewing this case, I questioned whether the general perception that increasing jury verdicts was actually a trend, or whether this type of case was the exception. A review of jury verdict reporters does provide some insight, although it would take a more in-depth review and statistical analysis to get a true, definitive answer. Nevertheless, a search of the Westlaw jury verdict reporter of Florida employment discrimination cases returned a total of 1,134 cases. A full 45% of those were defense verdicts. In cases where a jury returned a verdict for the plaintiff with a money damages award, 41% were less than $100,000. On the other side of the coin, 12% were cases involving a verdict of $1,000,000 or greater. Possibly most telling in terms of trends, however, is that just 6 of the 1,134 cases on the verdict reporter were post-2008 verdicts in excess of $1,000,000. That translates to a percentage of 0.005% of Florida employment discrimination cases reported.

So, one may ask, what conclusion can be drawn from these figures? Certainly, this somewhat cursory review of an electronic database verdict reporter would not stand up to scrutiny by a statistician or other similar professional. Also, there are far too many factors that go into a jury verdict. Nevertheless, these figures can provide one with at least an idea of whether exorbitant, punitive verdicts in employment discrimination cases may be considered more likely in current times as compared to the past.

For any questions, please contact Jeremy Rogers at [email protected]

FAQs: Medical Marijuana in Florida and Accommodations Under the ADA

Posted on: April 10th, 2017

By: Melissa A. Santalone

In this past election cycle, Floridians voted to approve Amendment 2 by a landslide, officially amending the State Constitution to allow the medicinal use of marijuana by those with “debilitating conditions,” free from criminal or civil liability under Florida law. The amendment went into effect on January 3, but questions remain as to exactly how this amendment affects the rights of employers and employees under the Americans with Disabilities Act (ADA).

Who can use medicinal marijuana under Amendment 2?

Amendment 2 provides for legal medicinal use of cannabis under Florida law by “qualified users,” or those with “debilitating conditions.”  “Debilitating conditions” have been defined as:

  • Cancer;
  • Epilepsy;
  • Glaucoma;
  • HIV;
  • AIDS;
  • Post-traumatic stress disorder (PTSD);
  • ALS;
  • Crohn’s disease;
  • Parkinson’s disease;
  • Multiple sclerosis; and
  • Other debilitating medical conditions “of the same kind or class or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for the patient.”

It remains to be seen how the potential vagueness in the definition of “other debilitating medical conditions” will play out in proposed state rules and regulations and in the courts. Under draft administrative rules recently proposed by the Florida Department of Health, the Florida Board of Medicine will have the final say as to what other conditions may qualify for use of medical marijuana.

Does the ADA mandate accommodations for the use of medical marijuana?

No. Title I of the ADA prohibits employers with 15 or more employees from discriminating against disabled employees and the case law suggests an employer may be required to provide reasonable accommodation for disabled employees that need to take medication during their shift.  However, there is a carve-out in the ADA for the use of ”illegal drugs,” which is defined by the federal Controlled Substances Act (CSA). As marijuana is still currently illegal under the CSA, the ADA does not require an accommodation be made for the use of medical marijuana.

Does Amendment 2 require employers to make accommodations for employees’ use of medical marijuana?

We currently don’t know with certainty, but we may be able to make a good prediction. Amendment 2 expressly provides that “[n]othing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.” The language is clear in that no accommodation must be made whatsoever for employees to use medical marijuana while on the job. However, Amendment 2 remains silent as to any accommodations to be made for off-site use, and the Amendment is too new for the Florida courts to have weighed in on this point.

The wording of Florida’s Amendment 2 mirrors that of the State of Washington, though, which is also silent as to accommodations for off-site use. In Washington, the courts have declined to interpret their law’s silence as a mandate that accommodations are to be made for off-site use of medicinal marijuana.  Given Florida’s relatively conservative jurisprudence, it seems likely that Florida courts will likely adopt a similar interpretation.

Moreover, Amendment 2 further provides that “[n]othing in this section shall permit the operation of any vehicle, aircraft, train or boat while under the influence of marijuana.” This language would support an employer’s denial of any accommodation for off-site use of medical marijuana by an employee required to operate vehicles or heavy machinery.

What developments in the law do Florida employers need to look out for?

The Florida Department of Health has been tasked with promulgating final administrative rules for Amendment 2 by July 2017. The Florida Legislature is also moving forward with bills delineating a regulatory scheme for Amendment 2 in this legislative session. These rules and laws, when enacted, may offer employers further guidance.

Florida employers seeking assistance in the development of ADA policies in light of the passing of Amendment 2 or those with accommodation questions should contact attorneys in FMG’s Tampa office.

Breaking News – Puzder Withdraws from Consideration to be Secretary of Labor

Posted on: February 15th, 2017

By: Paul H. Derrick

Andy Puzder, President Trump’s nominee for Secretary of Labor, has withdrawn his name from consideration after being plagued by criticism since his nomination. Union leaders and prominent Democrats have been among his staunchest critics. Puzder’s decision to step down comes a day before his Senate confirmation hearing was set to begin. Just hours before the announcement of his withdrawal, media outlets had begun reporting that Republican officials advised the White House that Puzder lacked the votes needed for confirmation because at least four GOP senators intended to break ranks and vote against him. It remains to be seen who President Trump will nominate in his place.

For any questions, please contact Paul Derrick at [email protected].