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FMG Law Blog Line

Archive for March, 2013

Employee Fired for Tweeting Complaint About Sex Jokes

Posted on: March 26th, 2013

By: David Cole

This USA Today article is another example of how social media is presenting new legal issues in the workplace. According to the story, the tech company SendGrid fired a female employee named Adria Richards because she tweeted complaints about a group of men sitting behind her at a conference making sex jokes.  You can read Ms. Richards’s play-by-play tweets about the jokes (complete with pictures of the alleged jokers) by clicking here.  According to the story, SendGrid says it terminated Ms. Richards, because it “doesn’t support how she reported the conduct.”  This raises a number of interesting issues, but at the very least it is a good reminder of the new challenges employers face because of social media.  Time will tell, but what do you think – fair decision or cautionary tale?

Liquidated Damages are Discretionary in FLSA Retaliation Case

Posted on: March 22nd, 2013

By: Joyce Mocek

The Eleventh Circuit Court of Appeals recently held that the standard for awarding plaintiffs liquidated damages in a retaliation claim under the Fair Labor Standards Act (FLSA) is different from that used for claims of minimum wage or overtime violations. In Moore v. Appliance Direct, Inc., No. 11-CV-15227 (11th Cir. Feb. 13, 2013), the Eleventh Circuit, in a case of first impression, affirmed a Florida district court’s decision not to award liquidated damages, because such damages would not be appropriate. Although the plaintiffs won on their FLSA retaliation claim, the court held that they were not able to recover liquidated damages because these damages were discretionary, not mandatory.

Under the FLSA, for claims for failure to pay overtime or minimum wages, the plaintiff shall be awarded liquidated damages unless an employer can show proof of a reasonable good faith exception.  Liquidated damages are generally the rule, not the exception.  In Moore, the Eleventh Circuit held that the district court had the discretion after reviewing the facts of the retaliation FLSA claims to determine whether it was appropriate to award, or not to award, liquidated damages. With this ruling, the Eleventh Circuit joins the Sixth and Eighth Circuits in holding that an employer does not have to show proof of a reasonable good faith exception to avoid liquidated damages in an FLSA retaliation claim. Thus, employers may still have to pay liquidated damages, but the burden is initially on the employee to show that awarding liquidated damages is appropriate. This is an important development for employers since FLSA claims are on the rise.

The Court in Moore also reviewed the issue of whether owners and executives can be held individually liable under the FLSA and maintained that the CEO (who was a 75 percent owner of the company) could be held individually liable to the plaintiffs for the FLSA retaliation claims. Thus, although company officials or managers cannot be held individually liable under several employment laws, the Court reminded owners that control their business that depending on the circumstances they can still be held liable in FLSA retaliation cases.

New FMLA Poster and Model Forms Issued

Posted on: March 8th, 2013

By Amy Bender

The Department of Labor (“DOL”) has issued a revised Family and Medical Leave Act (“FMLA”) notice poster that all covered employers are required post by March 8, 2013. This poster summarizes the major provisions of the FMLA and instructs employees how to file a complaint. It also references some of the recent changes to the FMLA regulations regarding military family leave and airline flight crews (see “DOL Issues Final Rule Implementing FMLA Expansions for Military Caregivers and Airline Flight Crew Employees,” February 6, 2013 post on FMG’s BlogLine for Employment Law). The poster must be displayed in a conspicuous place where employees and applicants can see it and must be displayed at all locations, even if there are no eligible employees.

In addition, the DOL has issued updated model forms. Although use of these forms is optional for covered employers, those who do use them should begin using the revised forms immediately. The forms expire on February 28, 2015. These forms do not contain any substantive changes, despite the recent military and airline crew revisions to the regulations.

Links to the revised poster and forms are below:

The Family and Medical Leave Act Poster

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381 Notice of Eligibility and Rights & Responsibilities WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency For Military Family Leave

WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

For more information, contact Amy Bender at 770.818.1421 or [email protected].

Eleventh Circuit Holds That Property Manager For Homeowners Association Is Not “Debt Collector” Under The FDCPA

Posted on: March 7th, 2013

By: Bill Buechner

The Eleventh Circuit recently held in a case of first impression that a property management company is not a “debt collector” under the Fair Debt Collection Practices Act (FDCPA).

In Harris v. Liberty Community Management, Inc., the property management company (Liberty) was designated in its contract with the homeowners association as the general agent for the HOA.  Liberty performed a broad range of tasks for the HOA, including contracting for maintenance of the pool and other common areas, obtaining utilities, and performing a variety of accounting and banking functions. Liberty also collected on current and overdue assessments.

Due to the accumulation of more than $140,000 in unpaid assessments, the HOA adopted an amendment to its governing declarations, authorizing the HOA to suspend water service if the homeowner owed more than $750 in unpaid assessments and received adequate notice of the water suspension. The plaintiffs had their water service suspended by the HOA pursuant to this provision and filed a lawsuit challenging this action. The plaintiffs asserted that Liberty was a “debt collector” under the FDCPA and that its actions constituted an unfair debt collection practice. The plaintiffs also asserted that Liberty’s actions constituted an unfair trade practice under the Georgia Fair Business Practices Act (GFBPA).

Affirming the district court’s grant of summary judgment in favor of Liberty, the Eleventh Circuit noted that “not all who collect debts are ‘debt collectors’” under the FDCPA. The Eleventh Circuit concluded that Liberty fell within an exemption in the FDCPA for entities “collecting or attempting to collect any debt owed … to the extent such activity is incidental to a bona fide fiduciary duty.” The Court emphasized the numerous tasks that Liberty performed for the HOA other than debt collection, and that debt collection was only incidental to Liberty’s obligations to the HOA as its general agent.

As to the Georgia Fair Business Practices Act claim, the Court noted that the termination of water service for non-payment did not fall within the 34 specified practices identified in the statute as examples of unfair business practices. In rejecting Plaintiffs’ GFBPA claim, the Court stated that “a natural consequence of a person’s failure to pay for a service is that, at some point, the service provider may refuse to continue to provide that service.” In support of this statement, the Court cited a United States Supreme Court decision noting that, under common law, a utility is entitled to terminate service for nonpayment of an undisputed charge.

As a result of the Harris decision, property managers for HOAs, condominium associations and apartment complexes likely are exempt from the FDCPA, as long as they are performing a broad range of tasks for these entities as their general agent. Also, as a result of the Harris decision, suspending water service for nonpayment of assessments likely does not constitute an unfair trade practice under the GFBPA, as long as the homeowner receives adequate notice and the homeowner does not dispute the assessments owed.

Georgia High Court to Revisit Scope of Official Immunity for State-Employed Physicians

Posted on: March 7th, 2013

By: Scott Rees and Michael Eshman

The highest Court in Georgia recently heard oral argument in a medical malpractice case with implications for medical providers working in state-run facilities. The issue, generally, is: when are medical providers working in state-run facilities who treat private-pay patients entitled to “official immunity” from civil suit as state employees or agents?

Since the Court’s 1997 decision in Keenan v. Pouffe, Georgia courts have applied a fact-specific analysis to each case in determining whether official immunity applied. Factors considered by the courts are: 1) whether the patient was one the physician was obligated to treat by virtue of the physician’s position with the state; 2) whether the patient was private-pay or indigent/public-pay; 3) whether an entity separate from the state billed the patient and/or provided the physician with any compensation, including fringe benefits such as the provision of liability insurance; and 4) whether the attending physician’s treatment of the patient was left to the physician’s sole medical discretion. Georgia courts applying Keenan have since held that a state-employed medical provider treating a patient whose care is provided by public funds, as opposed to private-pay, is entitled to official immunity.  (See Porter v. Guill)

In Shekhawat v. Jones, the case recently heard by the Georgia Supreme Court, the plaintiff was a private-pay patient who received medical care at the Medical College of Georgia’s Children’s Medical Center. The Plaintiff sued a neonatologist, anesthesiologist, and resident fellow for their alleged failure to ensure the patient was adequately oxygenated during intubation, which resulted in permanent disability. The trial court initially granted all of the physicians’ motions for summary judgment on the basis of official immunity. The Court of Appeals, applying the same fact-based analysis, reversed the trial court’s decision with regard to the neonatologist and anesthesiologist, but affirmed that the resident fellow was entitled to official immunity.

The Georgia Supreme Court granted the writ of certiorari and has already heard oral arguments on the case. We expect that a decision from the Court in Shekhawat will likely offer more insight into the proper application of the fact-specific analysis under Keenan, but the Court could also choose to move away from the Keenan analysis and provide more of a bright-line rule. Either way, the decision should offer some insight into the future application of official immunity to medical providers working in state-run facilities.