The Eleventh Circuit Court of Appeals in a recent case confirmed that under federal law “illegal aliens,” i.e., undocumented workers, are covered employees under the federal overtime and minimum wage law called the Fair Labor Standards Act or “FLSA” for short. Galdames v. N & D Investment Corp., 2011 U.S.App.LEXIS 12507 (11th Cir. June 23, 2011). The court followed precedent in Patel v. Quality Inn South, 846 F.2d 700, 706 (11th Cir. 1988), “that undocumented workers are ‘employees’ within the meaning of the FLSA.” After passage of the Immigration Reform and Control Act of 1986, illegal aliens are covered “employees” under the FLSA and could sue for unpaid wages.

The appellate court also discussed two other important matters.

First, although the defendant had admitted in its answer that its gross annual revenue exceeds $500,000, which is the statutory threshold for FLSA enterprise coverage, the defendant later tried to contest the trial court’s finding that the $500,000 threshold had been met. The appellate court concluded that once the defendant made the admission, it was bound, citing Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 177-78 (11th Cir. 2009) (“[T]he general rule [is] that a party is bound by admissions in his pleadings. Indeed, facts judicially admitted are facts established not only beyond the need of evidence to prove them, but beyond the power of evidence to controvert them”). Apparently the defendant recognized, after making its admission in its answer to the complaint, that it made a mistake in its calculation and the $500,000 threshold had not been satisfied. The lesson is admit nothing unless you are certain in the admission. Never help the plaintiff make the case, especially when the employer’s admission contradicts the truth and causes the employer to lose the case.

Second, the appellate court allowed the plaintiff to recover a large award of attorney’s fees and costs, in the amount of $112,495. The FLSA allows a prevailing plaintiff to recover its fees and costs. The critical lesson here is that the employer’s litigation exposure must be evaluated early in the case, and measures must be taken either to reach an early settlement or alternatively prevail in the case so that the employer pays nothing.
Attorney Peter Mavrick represents management and business owners in employment and labor law. Mr. Mavrick has successfully represented many businesses in court as well as in responding to threatened legal action. This article is intended for information purposes only and is not legal advice. This article is not a substitute for legal advice tailored to a particular client’s situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: pmavrickesq@yahoo.com.

As part of her job duties, the manager/employee was supposed to obtain and maintain documentation from construction contractors to protect the condominium association from legal liabilities. The documentation was supposed to show each construction contractor was lawfully licensed as a contractor, had liability insurance, and was lawfully permitted to perform such work for the condominium association. The manager/employee had recommended a particular construction contractor based on her allegedly arms-length business dealings with him in the past. Problems arose with the contractor, and the employer asked the manager/employee for the documentation she was supposed to maintain, i.e., the proof of contractor license, liability insurance, and work permit. The manager/employee contended she had gotten the documentation before the work project commenced, but could not locate the documents. The employee contended the documents were misplaced. The employer terminated the manager/employee. Later the employer discovered that the now former manager/employee had been using the construction contractor’s personal residence as her personal address. The employer also independently researched the existence of a license for the construction contractor and could find nothing in the public records.

In representing the employer in the appeal, Mr. Mavrick argued that the Referee made two legal errors that invalidated the decision against the employer and required a new hearing. First, the unemployment appeals Referee refused to consider evidence that the employee had more than a mere “arms-length” relationship with the construction contractor, as reflected in the employee’s use of the construction contractor’s home address as her own address too. On appeal, Mr. Mavrick argued that this evidence would be relevant to the bias and integrity of the employee. The second error was the unemployment appeals Referee’s decision that the employer failed to tender admissible evidence of the employee’s misconduct, and instead relied solely on hearsay. However, in the appeal Mr. Mavrick argued that the Referee overlooked an exception to the rule barring hearsay evidence; that exception allows admissibility of the absence of a record that would otherwise be expected to be contained in the employer’s business records. Specifically, the absence of copies of the contractor’s license, liability insurance, and work permit should be admissible to show those records were never obtained by the former manager/employee because her job required her to get and maintain those records. Mr. Mavrick argued on appeal that if the employee was dishonest about getting those records from the construction contractor in order to help him get remuneration from the condominium association, then it would constitute gross misconduct and dishonesty. Florida’s unemployment compensation statute defines the term “misconduct” to include “willful or wanton disregard of an employer’s interests and to be a deliberate violation or disregard of the standards of behavior which the employer has the right to expect of his or her employee.” Mr. Mavrick argued that due to those two legal errors, the Referee never properly considered or weighed the evidence and the decision must be reversed.

The Unemployment Appeals Commission ruled in favor of the employer.

Attorney Peter Mavrick practices in the area of employment and labor law, defending small, medium, and large businesses in South Florida. His practice also includes a great deal of advising management and human resource departments regarding employment law issues, including employee discipline, demotions, and terminations. His office is located in Fort Lauderdale, Florida. This article is intended for information purposes only and is not a substitute for legal advice tailored to a particular client’s situation. Peter Mavrick can be reached at: Website: mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: pmavrickesq@yahoo.com.

Under Florida law, to establish that a non-competition agreement is lawful, a party must plead and prove the existence of one or more legitimate interests that justify the restrictive covenant.  Once the proponent of the injunction has established that the restraint is reasonably necessary to protect a legitimate business interest, the burden shifts to the opposing party to establish that the agreement is overbroad or otherwise not reasonably necessary. 

Although the trial judge has broad discretion to fashion a temporary injunction, the contractual terms as well as Florida law restrict the breadth of the injunction.  In this case, the trial court’s order did not place limits on the reach of the injunction.  Even lawful competition could have been prohibited by the trial court’s injunction.

Attorney Peter Mavrick advises management regarding various problems they encounter with employees, including issues involving restrictive covenants, employee compensation, misconduct, performance problems, demotion, and termination.  Mr. Mavrick also has successfully represented many employers in litigation in Florida state courts and federal courts, including trial and appellate proceedings.  Mr. Mavrick regularly studies changes in federal and Florida labor and employment laws, including legal trends affecting the interests of management.

This is an important case for lawyers who draft non-compete contracts.  Careful drafting can insulate a non-compete clause from attack when it matters most, i.e., when an employer needs to enforce a non-compete clause.  The case is also important for litigators who need to overcome an employee’s assertion of material breach for failure to pay wages.

Attorney Peter Mavrick advises management regarding various problems they encounter with employees, including issues involving employee compensation, misconduct, performance problems, demotion, and termination.  Mr. Mavrick also has successfully represented many employers when current or former employees threaten legal action.  Mr. Mavrick regularly studies changes in federal and Florida labor and employment laws, including legal trends affecting the interests of management.

In this difficult economy, it is important to recognize that any employment termination may result in a future EEOC charge of discrimination or possibly a lawsuit.  Terminated employees often have difficulty finding suitable replacement employment, and sometimes look to blame their former employers for their situation.  To protect against unnecessary legal problems, management should properly document performance problems.  This should be done even if terminating employment is not something the employer is considering at the moment.  Documenting performance issues is important to protect the employer’s interests in the event that termination of employment becomes necessary.  Performance reviews should reflect an honest appraisal of an employee’s performance, showing good and bad points.  The EEOC and the courts view employers more favorably when they possess evidence of timely and regular performance appraisals.

Attorney Peter Mavrick advises management regarding various problems they encounter with employees, including issues involving employee compensation, misconduct, performance problems, demotion, and termination.  Mr. Mavrick also has successfully represented many employers when current or former employees threaten legal action.  Mr. Mavrick regularly studies changes in federal and Florida labor and employment laws, including legal trends affecting the interests of management.

Attorney Peter Mavrick advises management regarding various problems they encounter with employees, including issues involving employee compensation, misconduct, performance problems, demotion, and termination.  Mr. Mavrick also has successfully represented many employers when current or former employees threaten legal action.  Mr. Mavrick regularly studies changes in federal and Florida labor and employment laws, including legal trends affecting the interests of management.

This was apparently an otherwise winnable case for the employer.  But it appears there was a failure of appropriate legal research at the early stage of the case, and that apparent error was not avoided by catching the error during the 14 month discovery process.

A lesson of this case is not to presume that the case will settle and thereby refrain from conducting appropriate legal research and analysis at the early stages of the case.   In this case, the employer apparently did not carefully re-examine its legal defenses during the discovery process and instead waited until just before trial to attempt to assert the defense.  The trial judge even allowed the employer to assert the defense at trial, and on that basis the employer won the case at trial.  But the case did not end there.  The employee appealed. 

The appellate court concluded that this was a mistake by the trial judge because the employer waited too long to identify the administrative exemption affirmative defense.  The employer was required to assert its legal defense well in advance of trial to avoid unfair surprise to the employee’s attorney.

Overtime wage cases can be very simple if they settle at early stages. However, sometimes the employee demands compensation that the employer has no obligation to pay and is unwilling to pay.  If there is a valid affirmative defense, be cautious and assert it early in the case.

Attorney Peter Mavrick advises management regarding various problems they encounter with employees, including issues involving employee compensation, misconduct, performance problems, demotion, and termination.  Mr. Mavrick also has successfully represented many employers when current or former employees threaten legal action.  Mr. Mavrick regularly studies changes in federal and Florida labor and employment laws, including legal trends affecting the interests of management.

Before Roadrunner hired attorney Peter Mavrick, the plaintiff demanded payment of several thousand dollars. Despite the threat of further litigation, Roadrunner refused to pay that because it believed it did nothing wrong. In addition, Roadrunner contended that the lawsuit was without merit because the plaintiff never received the advertisements. Instead, another company received the advertisement at the same address.

Attorney Peter Mavrick argued at a hearing before a Broward County Judge that the initial lawsuit filed by the first company lacked merit. The Judge agreed. The Judge determined that Roadrunner was entitled to reimbursement of its legal expenses associated with the lawsuit, because the case lacked an adequate basis under the law. The same law firm that represented the original plaintiff, filed another lawsuit against Roadrunner asserting grounds similar to the first lawsuit. Eventually, the case settled with Roadrunner paying nothing to either of the plaintiffs. Roadrunner admitted no wrongdoing.

Attorney Peter Mavrick practices in the field of business and labor/employment litigation in Fort Lauderdale, Florida. His law office phone number is (954) 564-2246. Information contained in this article is accurate as of September 2008. This article is for general information use only, and does not substitute for specifically tailored legal advice.

Before hiring attorney Peter Mavrick, the client corporation tried to show the plaintiff corporation that no trade secrets were stolen and that there was no breach of Florida law. However, the plaintiff demanded that Mr. Mavrick’s client close its business entirely and pay thousands of dollars.

After court argument and several depositions, the evidence showed that there were no trade secrets because nothing was kept secret. The plaintiff never treated any of its alleged secrets as a “secret” until after it decided to sue its former employees’ corporation. For example, the alleged trade secrets were kept in the open for everyone to view, there were no protective measures to safeguard the alleged secrets, and the plaintiff never even told its employees the alleged trade secrets were even “secrets” that were required to be kept confidential. Attorney Peter Mavrick argued that the there could be no theft of trade secrets under Florida law when no measures existed to ensure secrecy ever existed before the plaintiff’s lawsuit was filed. In addition, Peter Mavrick argued that the alleged secrets would not qualify as trade secrets that meet the requirements of Florida law.

Eventually, the case settled whereby attorney Peter Mavrick’s client recovered payment from the plaintiff based on his client’s counterclaim.

Attorney Peter Mavrick practices in the field of business and labor/employment litigation in Fort Lauderdale, Florida. His law office phone number is (954) 564-2246. Information contained in this article is accurate as of September 2008. This article is for general information use only, and does not substitute for specifically tailored legal advice.