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Archive for the ‘Employment Law Blog – FL’ Category

EEOC Settlement With Florida Hotel Is A Reminder To Be Careful In Implementing A Mass Termination Program

Posted on: August 1st, 2018

By: Jeremy Rogers

Recently, the EEOC announced a settlement in a lawsuit brought against SLS Hotel in South Beach.  The lawsuit, filed in 2017, followed an investigation into charges made by multiple Haitian former employees who had been terminated in April 2014. They worked as dishwashers in three separate restaurants located in the SLS Hotel.  They alleged that they had been wrongfully terminated in violation of Title VII of the Civil Rights Act on the basis of race, color, and/or national origin. All told, there were 23 dishwashers fired on the same day in 2014, all but 2 of which were Haitian.  On the date of termination, each terminated employee was called into a meeting with the HR department and fired.  When fired, they allege, they were told that they must sign a separation and final release in order to receive their final paychecks.  Prior to termination, they claim that they had been subjected to considerable forms of harassment including verbal abuse (they assert they were called “slaves”), being reprimanded for speaking Creole among themselves while Latinos were allowed to speak Spanish, and being assigned more difficult tasks than non-Haitian employees.

What makes this case interesting is that SLS had re-staffed these positions using a third-party staffing company. The new staff supplied by the staffing company were primarily light-skinned Latinos.The new staff also included at least one employee who had been terminated by SLS, but that individual was also Latino.  Articles about this case from when it was filed,  show that the EEOC took the position that SLS was attempting to hide their discrimination behind the use of the staffing company. SLS, for their part, asserted that they had made the decision to change to the use of a staffing company 2 years before the mass termination. Despite this, the district director emphasized once again, when the EEOC announced the settlement, that the EEOC will not allow companies to hide behind business relationships to engage in discriminatory practices.  This was, according to the EEOC, just such a case.

So how egregious did the EEOC believe this case to be?  They accepted settlement on behalf of 17 workers for the sum of $2.5 million, which works out to just over $147,000.00 per employee if split equally.

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

Arbitration Agreement Litigation Wins Continue to Fall Like Dominoes for Pizza Hut

Posted on: June 26th, 2018

By: Tim Holdsworth

Following the Supreme Court’s opinion in Epic Systems that class and collective actions waivers in arbitration agreements are enforceable, a federal court recently granted a motion to compel arbitration to one of the nation’s largest Pizza Hut franchisees in a lawsuit in Illinois.

In Collins et al. v. NPC International Inc., case number 3:17-cv-00312, in the U.S. District Court for the Southern District of Illinois, drivers from Illinois, Florida, and Missouri filed a collective action under the Fair Labor Standards Act asserting that their employer had failed to reimburse them for vehicle expenses. In May 2017, the judge stayed the franchisee’s motion to compel individual arbitration pending the Supreme Court’s ruling in Epic Systems. The franchisee renewed that motion after the Supreme Court’s ruling, and the judge granted it.

The drivers will now have to bring their claims individually against the franchisee in arbitration, likely saving the franchisee expenses and time.

Epic Systems gave credence to arbitration agreements containing class and collective action waivers, and employers using them continue to reap the benefits. If you have any questions about the issues above or want to learn more about implementing arbitration agreements, please contact me at [email protected], or any of Freeman, Mathis & Gary’s experienced labor and employment law attorneys.

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

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].