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Archive for the ‘Employment Law Blog – FL’ Category

Florida Appellate Court Invalidates Local Minimum Wage Law

Posted on: February 9th, 2018

By: Melissa A. Santalone

A recent decision by Florida’s Third District Court of Appeal invalidated Miami Beach’s local minimum wage law, holding that a state statute preempted the local ordinance.  In 2016, the City of Miami Beach enacted a local minimum wage hike, which would have gone into effect January 1 of this year and would have raised the local minimum wage to $10.31 per hour.  In City of Miami Beach v. Fla. Retail Federation, Inc., the Third DCA analyzed a the ordinance under both a state statute and an amendment to the Florida Constitution.    The state statute, Fla. Stat. § 218.077, enacted originally in 2003, provided, in relevant part, that “a political subdivision may not establish, mandate, or otherwise require an employer to pay a minimum wage other than a state or federal minimum wage.”  In 2004, Florida voters passed a constitutional amendment, brought by citizens’ initiative, that established a higher minimum wage across the state than that provided by the federal minimum wage law.  It also provided that the amendment “shall not be construed to preempt or otherwise limit the authority of the state legislature or  any other public body to adopt or enforce any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits.”  The Third DCA found that the constitutional amendment did not specifically nullify or limit § 218.077’s preemption provision, and therefore, Miami Beach’s local minimum wage ordinance was invalid.  The City of Miami Beach plans to appeal the decision to the Florida Supreme Court.

Florida employers should look out for the Supreme Court’s ultimate decision on this case, but for now, they can rest assured that there will be no enforceable local minimum wage laws enacted to adhere to in the interim.  Employers in other states disputing local minimum wage ordinances may want to seek advice on preemption statutes in their home venues in light of the approach taken by employer coalitions in Florida.

If you have any questions or would like more information, please contact Melissa Santalone at [email protected].

2017 Florida Legislative Scorecard for Labor and Employment Laws

Posted on: August 9th, 2017

By: Melissa A. Santalone

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In its 2017 legislative session, both houses of the Florida Legislature introduced bills on a wide array of topics that, were they to become law, would affect the interests of Florida employers in numerous ways.  Over all, most employment-related bills failed, but their mere introduction should place employers on notice of changes on the horizon.  Here are the key bills that were introduced, grouped by those that passed and failed:

Passed

  • Contractors on State-Funded Projects:  Both houses introduced bills prohibiting the State, counties, and cities from mandating contractors on State-funded public works projects to provide certain benefits to their employees or pay certain wages. The House version was passed and the law went into effect July 1, 2017.
  • Medical Marijuana:  This law codified Amendment 2, which Florida voters overwhelmingly voted in favor of in the 2016 election, that legalized medical marijuana by Constitutional Amendment.  We discussed the Amendment in detail here, and the law reflects the contents of the Amendment.

Failed

  • Raising the Minimum Wage:  The Senate introduced a bill that would have slowly raised the Florida minimum wage, currently $8.10 per hour, by $1.00-1.50 per year through 2021.  The bill died in Committee.
  • Wage Discrimination: Both houses introduced bills that would have broadened protections against wage discrimination on the basis of sex or gender identity and made it easier for women to sue over being paid less than male colleagues for the same work.  Both bills died in Committee or Subcommittee.
  • LGBT Anti-Discrimination: The House introduced a bill that would have amended the Florida Civil Rights Act to prohibit discrimination based on sexual orientation and gender identity in employment, and would have made it impermissible to discriminate on these bases in other contexts such as housing.  The bill died in the Careers and Competition Subcommittee.
  • Verification of Employment Liability:  The House introduced a bill that would have required employers to use the E-Verify system to verify the legal employment eligibility of new hires and prohibited an employer from knowingly or intentionally employing unauthorized aliens, imposing fines and suspensions and losses of license to do business in Florida for violations.  The bill died in Subcommittee.
  • Gun Liability:  Both houses introduced bills that would have created a cause of action against businesses and other organizations that prohibited those with concealed-carry gun permits from bringing firearms onto their premises if the permit-holder could demonstrate he or she was injured by a person or animal on the premises and the injury could have been prevented had the permit-holder not been disarmed.  Both bills died in Committee or Subcommittee.
  • Public-Sector Unions:  Both houses introduced bills that would have automatically decertified public-sector labor unions, except those for police, firefighters, and corrections officers, if they failed to collect dues from at least 50% of the workers they represented.  Both bills died in Committee or Subcommittee.
  • Workers’ Compensation Attorney’s Fees:  Both houses introduced bills that would have capped attorney’s fees for injured workers at $150 per hour (House bill) or $250 per hour (Senate bill).  Each bill passed its respective house, but died as the houses tried to reach a compromise on the rate.

Florida employers should keep an eye out next year for many similar issues in the failed bills to be taken up again by the Legislature.  Contact Melissa A. Santalone at [email protected] if you have any questions about the current status of any Florida labor and employment law.

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]