In E.M.D. Sales, Inc., a food distributor was sued by a group of employees. The employees worked for the distributor as sales representatives who managed inventory and took orders at grocery stores. The company’s primary defense was that the employees were exempt under the outside sales exemption. The trial court applied a heightened standard of proof to this defense, which required the company to prove the exemption by clear and convincing evidence. A clear and convincing standard requires a party to prove its claims or defenses to a reasonable certainty. After trial, the court concluded that the employer did not meet this high standard and found in favor of the employees. The company appealed and the Fourth Circuit affirmed based on their own prior precedent.

The company appealed again to the Supreme Court. The Supreme Court held that the correct standard of proof for FLSA exemptions is preponderance of the evidence. Under the preponderance of the evidence standard, a party must show that the greater weight of the evidence supports the party’s claims or defenses. Preponderance of the evidence is the default standard in civil litigation and, notably, is a lower standard than clear and convincing evidence. The Supreme Court determined that a heightened standard of proof like clear and convincing evidence has been applied in only three situations: where a statute establishes a heightened standard, when the Constitution requires one, and in cases where the government takes an unusually coercive action. None of these situations applied to the considerations of an FLSA overtime exemption. The Supreme Court buttressed its ruling by also holding that the default preponderance of the evidence standard applies when a statute is silent on standards of proof. Since the FLSA is silent on the standard of proof for proving an exemption, preponderance of the evidence applies.

E.M.D. Sales, Inc. is important for employers in Florida because it clarifies the correct standard of proof for FLSA exemptions. Employers in Florida are covered by the Eleventh Circuit Court of Appeals, and the Eleventh Circuit has given contradictory rulings regarding the standard of proof for overtime exemptions. For example, in Dybach v. Fla. Dep’t of Corrections, 942 F.2d 1562 (11th Cir. 1991), the Eleventh Circuit held that a preponderance of the evidence standard applied to whether an employee was exempt under the professional exemption. However, in Birdwell v. City of Gadsden, Ala., 970 F.2d 802 (11th Cir. 1992), the Eleventh Circuit held that an employer must prove applicability of an exemption by “clear and affirmative evidence.” The Supreme Court’s decision in E.M.D. Sales, Inc. resolves this confusion in favor of the more reasonable preponderance of the evidence standard.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

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.

In a case handled by attorney Peter Mavrick, an employer wanted to enforce a noncompete covenant against Mr. Mavrick’s client, an employee that had received some training from his former eimployer. However, the training was minimal. Most importantly, the employee had many years of experience in the employer’s industry before he signed the noncompetition contract. It was because of that substantial industry experience that the employer hired Mr. Mavrick’s client. The employee was highly competent because of his experience.

Based on case law invalidating a noncompete contract where the employee’s specialized knowledge preceded his contract, attorney Peter Mavrick successfully argued that the noncompetition covenant was invalid. Mr. Mavrick’s client was allowed to continue his own business in competition with his former employer.

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.

At the evidentiary hearing in this case, witnesses testified about the machinery and who was the owner. However, the evidence did not demonstrate that the plaintiffs were the owners of the machinery or that Soroka’s International, Inc. had possession of anything owned by the plaintiffs. At the end of the hearing, the Judge refused to grant the prejudgment writ of replevin.

Thereafter, Mr. Mavrick’s clients, Soroka’s International, Inc. and its owner, counterclaimed. Eventually a default was entered in favor of Mr. Mavrick’s clients as to their counterclaims. The plaintiffs did not further pursue the issue of replevin.

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.

Attorney Peter Mavrick recently successfully represented a Miami corporation, FLX of Miami, Inc. (“FLX”), that prevailed in an overtime wage case filed by a
former employee. FLX transports freight in local, national, and international commerce. The case was venued in federal court in Miami, Florida.

The employee had filed a lawsuit under the Fair Labor Standards Act (“FLSA”) against his former employer, FLX, alleging that FLX failed to pay him for the
hours he worked overtime. FLX contended that it did not violate the overtime wage law and that it is exempt from any overtime requirements relating to the
plaintiff pursuant to the Motor Carrier Act. FLX contended that the FLSA exemption applied because FLX is a “motor carrier” engaged in interstate
commerce, and that the former employee’s dispatcher duties directly affected the safety and operation of FLX’s motor vehicles. The parties agreed that the plaintiff was a truck dispatcher for FLX.

One of the most important points of the federal court’s decision was its interpretation of whether the former employee sufficiently “affected the safety and
operation of motor vehicles,” which is necessary for applying the FLSA exemption under the Motor Carrier Act. Attorney Peter Mavrick argued that a
truck dispatcher necessarily affects the safety and operation of vehicles because the sending of trucks on routes or the issues involved when a truck is distressed, fall on the shoulders of the dispatcher to resolve the safety related issues.

The court agreed. The court’s opinion explained that the former employee’s job duties were analogous to cases applying the Motor Carrier Exemption to drivers, mechanics, loaders and helpers. The court cited, for example, that it was not disputed that the plaintiff’s job duties as truck dispatcher for FLX included calling mobile mechanics for stranded FLX truckers when mechanical breakdowns and flat tires stranded the drivers’ vehicles or impeded their safe operation; the plaintiff had the duty to assign particular drivers to particular trucks based on his assessment of the vehicle and the appropriateness for the vehicle for the task; and the plaintiff’s responsibilities also included checking the vehicles for tire safety, adequate oil, and verifying the vehicle was in safe operation before the driver left FLX’s facilities for deliveries. All are safety-related duties. The court concluded that the plaintiff was engaged in safety-affecting activities in his position as truck dispatcher for FLX. In reaching its conclusion, the court relied on Wirtz v. Robinson & Stephens, Inc., 1972 WL 852 *5 (N.D. Ga. 1972) (applying the Motor Carrier Act exemption and finding mechanics, wrecker and truck drivers, drivers’ helpers, loaders, yardmen and dispatchers for the defendant employer were exempt from the overtime requirements of the FLSA).

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.

Peter Mavrick, a Fort Lauderdale lawyer, recently recovered funds owed to his client, a construction subcontractor in a case venued in Palm Beach Circuit Court. The settlement was paid by a general contractor to attorney Peter Mavrick’s client, Scotti M. Glass & Mirror, Inc., a subcontractor that supplied labor and materials under a construction contract. Before hiring Peter Mavrick’s law office, the business had unsuccessfully sought payment for its services for several months.

An interesting aspect of the case was that fact that Scotti M. Glass & Mirror, Inc. had actually been a defendant in a previous case, and attorney Peter Mavrick represented the plaintiff in that case. After resolution of that case, the company asked Peter Mavrick about the possibility of representation in the construction collection case.

Peter Mavrick practices in the areas of business litigation and employment litigation, and his office is based in Fort Lauderdale, Florida. After the real estate boom, there has been an increase in construction payment disputes, especially where subcontractors need to recover payments from general contractors. Especially for small businesses, the non-payment for labor and materials can be financially devastating.

The law office of attorney Peter Mavrick has represented construction sub-contractors to recover payments for services and materials rendered. Some sub-contractors have actually had to close their businesses because they got so deep into non-payments from the general contractors. While waiting for payments that never arrive, the sub-contractor has to pay its workers, its office, phones, insurance, taxes, and pay for materials for the construction contract. The bigger the sub-contractor’s commitment to the construction project, the more devastating non-payment becomes to the sub-contractor’s business.

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.

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.