An employee must establish a prima facie case for retaliation to prevail. A prima facie case of retaliation can be established when the employee demonstrates he or she (1) engaged in a statutorily protected activity; (2) suffered an adverse employment action, and (3) the adverse employment action was causally connected to the protected activity. Buade v. Terra Grp., LLC, 259 So. 3d 219 (Fla. 3d DCA 2018). The first element usually requires evidence demonstrating the employee opposed a discriminatory activity by reporting the discrimination to his or her employer. See Carter v. Health Management Associates, 989 So. 2d 1258 (Fla. 2d DCA 2008) (opposition to discriminatory activity usually involves making complaints to management). Absent proof of a discriminatory activity, the employee’s claim will likely fail.  

Lodging a complaint regarding a discriminatory practice is usually insufficient to qualify as a protected activity as demonstrated by Kiernan. In Kiernan, an employee sued for retaliation under the FCRA after being terminated. The employee alleged she engaged in a statutorily protected activity because she complained to her supervisor that her supervisor’s friend made sexual comments to her at a work event. The supervisor “rolled his eyes” in response. The employer moved for summary judgment based on the allegations because the employee failed to demonstrate the existence of a statutorily protected activity. The motion was granted because the employee had to “show that she had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Specifically, the employee must demonstrate “(1) she subjectively believed her employer engaged in an unlawful practice, and (2) her belief was objectively reasonable in light of the facts and record presented.” An employee cannot make the requisite showing by proffering a single act of discrimination because the behavior must be severe and pervasive. Small v. City of Hollywood, 661 F. Supp. 3d 1187 (S.D. Fla. Feb. 28, 2023) (holding that complaints of a single instance of “uncalled for, ugly, racist statements are not the kind of activity protected by Title VII”); Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) (holding that a hostile environment claim requires proof of “severe and pervasive” conduct); Smart v. City of Miami Beach, Fla., 933 F. Supp. 2d 1366 (S.D. Fla. March 26, 2013) (holding single occurring instances of harassment were not severe and pervasive). Therefore, the employee’s inability to demonstrate the existence of additional discriminatory acts precluded the employee from obtaining relief against the employer.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The employee worked as a service advisor in 2018 for a motorcycle dealership. The employee’s job duties included communicating with customers and inputting work orders. The employee claimed she had a hearing impairment and requested an accommodation. The employee also alleged she was treated differently than her male coworkers because she received fewer work assignments. In 2020, the employee received several written reprimands for wearing inappropriate attire, asking a manager outside her department to help resolve an issue within her department, ordering the wrong part, several customer complaints. The employer’s final reprimand warned the employee that the failure to improve could result in termination. The employee received a low customer service rating a customer and was terminated shortly thereafter. The termination notice stated the reason for termination was leaving confidential customer information unattended low customer service ratings.

The employee sued for discrimination claiming disability discrimination for failure to accommodate her alleged hearing impairment under the Americans with Disabilities Act (ADA) and the Florida Civil Rights Act (FCRA), retaliation in violation of the ADA, gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and the FCRA, and retaliation in violation of Title VII and the FCRA.

The employer moved for summary judgment on all claims and the trial court granted the motion. The court determined the ADA claims were unmeritorious because the employee failed to show she was subjected to an adverse employment action due to the employer’s failure to reasonably accommodate the employee’s disability. Muldrow v. City of St. Louis, Mo., 601 U.S. 346 (2024) (holding that the discrimination must have “brought some disadvantageous change in an employment term or condition” to qualify as an adverse employment action). The written reprimands proffered by the employee as evidence of discrimination was not sufficient to demonstrate an adverse employment action under the Muldrow standard.

The court also relied on the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to adjudicate the termination claims against the employee. This framework requires the employee to first establish a prima facie case of discrimination, which then shifts the burden to the employer to proffer a legitimate, non-discriminatory reason for the adverse employment action. If the employer proffers a legitimate, non-discriminatory reason, the burden shifts back to the employee to establish the proffered reason is pretext for discrimination. Although the court determined the employee established a prima facie case, it also held that the employee failed to rebut the employer’s proffered reasons for terminating her because the plaintiff admitted at deposition that the proffered reasons were true. 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.

Federal courts have utilized a burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for analyzing claims of employment discrimination based on circumstantial evidence. The McDonnell Douglas test requires a plaintiff to initially establish a prima facie case of discrimination, which has four elements: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for their position, (3) the plaintiff was subjected to an adverse employment action, and (4) the employer treated members outside of the protected class more favorably. If the plaintiff establishes a prima facie case, the burden shifts to the employer to proffer a legitimate, non-discriminatory reason for the adverse employment action. However, several federal circuit courts added requirements on reverse discrimination plaintiffs to establish a prima facie case of discrimination beyond those set out in McDonnell Douglas. Ames now clarifies that reverse discrimination plaintiffs need only establish the four factors for a prima facie case set out in McDonnell Douglas.

In Ames, a heterosexual woman sued her employer under Title VII alleging discrimination based on sexual orientation and sex. She alleged the employer hired her in 2004 and later promoted her to an administrator position. In 2019, the plaintiff applied for and interviewed for a management position, but was not hired to the position. Instead, a homosexual woman was hired for the position. A few days after interviewing for the position, the employer removed her from her administrative position and demoted her to a secretarial role, which resulted in a significant pay cut. The employer then hired a homosexual man to replace the plaintiff in her former administrative position. Thereafter, the employee filed a lawsuit against the employer under Title VII, alleging her employer discriminated against her based on her sexual orientation and sex. The district court granted summary judgment to the employer, holding that the employee failed to prove “background circumstances” suggesting the employer one of the rare few discriminating against a majority group. However, the Supreme Court reversed because the text of Title VII makes no distinction between minority and majority groups. Title VII states that it is unlawful to discriminate against “any individual” in the terms and conditions of employment. The reference to “any individual,” established the same protections for every individual, regardless of whether the individual belongs to a minority or majority group. The Supreme Court additionally supported its decision using its prior Title VII precedent, which does not distinguish between standards applied to majority and minority groups. Therefore, there was no basis to impose additional requirements on majority group plaintiffs.

The Supreme Court’s decision in Ames will have little impact on employers in Florida because the Eleventh Circuit and Florida law never implemented a background circumstances standard for reverse discrimination plaintiffs. Florida employers should remain vigilant to protect themselves against discrimination claims regardless of whether they are normal or reverse discrimination claims.

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.

Roberson involved a long-time black male employee who regularly received superior performance reviews and two prior promotions. The employee applied for a third promotion, but was rejected. The promotion went to a white female instead. The employee sued claiming racial discrimination in violation of the Florida Civil Rights Act. In affirming summary judgment, the Roberson court analyzed the employee’s claims under a three-step analysis. First, the employee has to establish he or she belongs to a protected class like race, color, religion, sex, national origin, or disability. Second, the employee must demonstrate he or she qualified for the promotional position, the employee was subjected to adverse employment action, and the employer treated a different employee outside of the protected class more favorably. Third, if an employee satisfies the first two steps, the employer must provide a legitimate non-discriminatory reason for not promoting the employee.

The employer in Roberson was successful in step three – showing it had a legitimate reason to promote the white female. The evidence showed a three-member committee interviewed six candidates for the promotion. The committee favored the selected white female because she had an outgoing personality and two of the committee members previously worked with the white female candidate. By contract, the committee determined the employee who brought suit had a reserved and quiet personality. The committee determined an outgoing personality was better suited for the promotional position because it was a customer facing position.

The employee tried to argue the employer’s reason for promoting the white female over him was pretextual because he had better qualifications than the white female. However, the evidence demonstrated all applicants for the position were qualified. A “plaintiff cannot show pretext simply by showing that he was better qualified than the individual who received the position he wanted.” A plaintiff employee must, instead, prove pretext based on disparities in qualifications between the successful and unsuccessful applicants. Roberson, 2025 WL 611016 (the plaintiff must show “disparities between the successful applicant’s and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.”) The Roberson employee failed to meet this standard, therefore the court ruled against him.

Roberson shows that employers should always be prepared to justify promotions. The employer should not only be prepared to justify why it did not promote the unsuccessful candidates, but should also be prepared to promote the successful candidate.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A key recurring issue in defending employers against employment discrimination claims is the requirement that the former employee exhaust administrative remedies. Florida laws governing employment discrimination, including the Florida Civil Rights Act and Florida county ordinances, require the employee to file charge of discrimination with an “administrative agency,” i.e., a government agency that processes and investigates the charge of discrimination, before the employee is allowed to file a lawsuit in a Florida court. The employee must wait for the administrative agency to finish its investigation or other duties, as per the requirements of the applicable statute or county ordinance. This is called “exhaustion of administrative remedy.” If the employee fails to exhaust his or her administrative remedy, this can be grounds for the employer to successfully defend the lawsuit. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Miami-Dade County has an employment discrimination Ordinance that requires an administrative agency (the “Commission”) to determine whether there is “probable cause” for the employee’s claim. The Ordinance generally requires the Commission to make its determination whether there is “probable cause” within 180 days after the employee’s complaint. Importantly, the Ordinance provides that: “If within one hundred eighty (180) days after a complaint is filed alleging discrimination, the [Commission] has been unable to obtain voluntary compliance with the provisions of this Article, the aggrieved person may demand a notice of right-to-sue from the [Commission], the issuance of which shall terminate the jurisdiction of the [Commission] and the Board over such a complaint.” Miami-Dade County, Fla., Code of Ordinances, ch. 11A, art. IV, § 28(7)(c). Once a probable cause determination is made, however, the Ordinance requires the employee request a hearing within 15 days of its issuance, otherwise the Commission’s order becomes final.

Florida’s Third District Court of Appeal, in Pacheco v. Waldo Acebo, M.D., P.A., 50 Fla.L.Weekly D456 (Fla. 3d DCA 2025), recently ruled in favor of the employer because the employee failed to exhaust her administrative remedies under Miami-Dade County’s Ordinance. In Pacheco, the Commission issued a “no probable cause” determination, but the employee had a right to appeal and a hearing within 15 days, or the decision would be final and enforceable in circuit court. Instead of appealing and asking for a hearing before the Commission, the employee requested a “right to sue” notice, which the Commission denied on the grounds that such a notice is appropriate only before a determination and here a determination of “no probable cause” had already been issued. Undaunted, the employee filed the lawsuit anyway. The employer successfully argued to the trial Judge that the employee’s case must be dismissed for failure to exhaust the administrative remedy. After the Judge dismissed the case, the employee appealed. The Court of Appeal affirmed, stating in pertinent part: “Because Pacheco did not appeal or request a hearing before resorting to the court for relief, we find the trial court properly dismissed the complaint with prejudice for failure to exhaust administrative remedy.” City of Miami v. Gabela, 390 So.3d 65 (Fla. 3d DCA 2023) (“[W]e must give a statute (or ordinance) the plain and ordinary meaning of the words employed by the legislative body, and courts generally may not insert words or phrases in municipal ordinances in order to express intentions which do not appear…If the plain language of the ordinance is unambiguous, we are required to apply its plain meaning and are without power to construe it in a way which would modify, limit, or extend those express terms”).

By contrast to the Miami-Dade County employment discrimination ordinance, Florida’s state-wide employment discrimination law, the Florida Civil Rights Act (“FCRA”), provides a more lenient administrative exhaustion requirement. The FCRA provides in pertinent part that, “[i]f the commission fails to conciliate or determine whether there is a reasonable cause on any complaint under this section within 180 days after the filing of the complaint: (a) An aggrieved person may proceed [to file a civil action] under subsection (4) as if the commission determined that there was reasonable cause.” Florida Statutes § 760.11(8)(a). In other words, the FCRA allows the employee to file a lawsuit in Florida courts if the commission fails, within 180 days, to make a determination or conciliate, concerning the charge of discrimination filed by the employee.

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.

To meet its burden, a business seeking to enforce a restrictive covenant to protect a trade secret or valuable confidential business information must disclose such information and prove that this information qualifies as a trade secret or confidential business information. “Generic allegations do not establish a legitimate business interest.” Lucky Cousins Trucking, Inc. v. QC Energy Resources Texas, LLC, 223 F. Supp. 3d 1221 (M.D. Fla., July 28, 2016). In Gould & Lamb, LLC v. D’Alusio, 949 So. 2d 1212 (Fla. 2d DCA 2007), a business sought an injunction against a former employee to prohibit alleged violations of a non-compete agreement. The business argued the non-compete agreement was supported by a legitimate business interest to protect trade secrets. The trial court denied an injunction and issued judgment for the former employee. Gould affirmed, holding that the business failed to prove the existence of a trade secret, and specifically quoted the definition of a trade secret found in Florida Statutes § 688.002(4). The court noted that the business relied on generic testimony of its president who “spoke in the briefest and most general terms of Gould & Lamb’s desire to protect ‘marketing plans, product plans, business strategies, financial information, forecasts, and the like.’”

Other cases have similarly denied injunctive relief for alleged breaches of restrictive covenants because the plaintiff business failed to disclose the alleged trade secret or confidential business information and failed to prove how the information constituted a trade secret or confidential business information. See Blue-Grace Logistics LLC v. Fahey, 653 F Supp. 3d 1172, (M.D. Fla., Jan. 26, 2023) (denying plaintiff’s motion for summary judgment for injunction and holding that plaintiff failed to explain what information was allegedly proprietary or confidential, and, where plaintiff was slightly more detailed, failed to explain the information’s value); Semper Food, LLC v. Ouellette, 2024 WL 3104066 (S.D. Fla., May 6, 2024) (denying motion for preliminary injunction to enforce restrictive covenant because plaintiff’s generic allegations of “business models and strategies” and “customer, supplier and vendor information, purchasing history margins and pricing information” was not sufficient for plaintiff to meet its burden of proving a legitimate business interest).

Proving the plaintiff business has a legitimate business interest in trade secrets or valuable confidential business information includes proving that the information was unique or proprietary. Again, generalized statements are insufficient. In Passalacqua v. Naviant, Inc., 844 So. 2d 792 (Fla. 4th DCA 2003), a plaintiff business sought an injunction against former employees to prohibit alleged violations of a non-compete agreement. After an evidentiary hearing, the trial court granted a temporary injunction. Passalacqua reversed because, among other reasons, the business failed to demonstrate the existence of a legitimate business interest. Passalacqua noted that the business’s CEO’s testimony that a sales manual constituted confidential information was insufficient. The sales manual was merely a compilation of widely used sales techniques. The court also stated that the CEO “did not articulate how any activity, method, or technique utilized by Naviant was unique or proprietary in any way.”

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

To qualify for the administrative exemption, an employee must satisfy all of the following criteria:

• The employee is compensated on a salary or fee basis at a rate not less than the standard salary level set by 29 CFR § 541.600 (currently $684 per week);
• The employee’s primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
• The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

29 C.F.R. § 541.200. To satisfy the second element, he employee “must perform work directly related to assisting with the running of servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a produce in a retail or service establishment.” Rock v. Ray Anthony Intern., LLC, 380 Fed. Appx. 875 (11th Cir. 2010). Much litigation over the administrative exemption involves how to determine whether an employee performs work that is directly related to assisting with the running or servicing of the business. The federal regulations define administrative work to include, but not be limited to, work in areas such as “tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations, government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities.” 29 C.F.R. § 541.203.

Regarding the third element, “the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.” 29 C.F.R. § 541.202.

The employee in Rock v. Ray Anthony Intern., LLC is a good example of an administrative employee. The employee’s primary job duties pertained to running his employer’s crane rental department, therefore the the employee was not entitled to overtime compensation. Specifically, the employee communicated with customers, selected cranes for specific jobs, assigned crane operators to the cranes, oversaw other employees, prepared and reviewed job tickets, and maintained the crane rental schedule.

Determining whether the administrative exemption applies to a particular employee requires a close analysis of that employee’s job duties to determine whether the requisite criteria is satisfied. Employers should perform this analysis prior to designating an employee as exempt under the administrative exemption to avoid unwanted consequences.

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.

The First Amendment provides a right to petition. The right to petition is “one of the most precious of the liberties safeguarded by the Bill of Rights.” BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002). “[T]he right of access to the courts [by filing a lawsuit] is an aspect of the First Amendment right to petition.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983). A person cannot be penalized for filing a lawsuit “unless the suit lacks a reasonable basis in law or fact.” Id. This is true regardless of the person’s motive in filing the lawsuit, and regardless of whether the lawsuit is ultimately successful, as long as the lawsuit has a reasonable basis. BE & K Const. Co. v. NLRB, 536 U.S. 516 (2002). For example, in anti-trust cases, a lawsuit is protected by the First Amendment right to petition unless it is “objectively baseless in the sense that no reasonable litigation could realistically expect success on the merits.” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993).

Kentish v. Madahcom, Inc., 566 Supp. 1343 (M.D. Fla., July 16, 2008), is instructive on the issue of the First Amendment privilege to claims of retaliation brought by an employee. The employee alleged that the business failed to comply with the Fair Labor Standards Act (FLSA) by failing to pay overtime compensation. The business filed a counterclaim against the plaintiff seeking payment of business-related expenses in response. As a result, the plaintiff moved to amend his original complaint to add a claim for retaliation (also under the FLSA). The employee wanted to allege that the business’ counterclaim violated the FLSA’s prohibition against employers retaliating against employees claiming FLSA overtime violations. 29 U.S.C. § 215. However, the court denied the employee’s motion to amend because the plaintiff’s retaliation claim was barred by the First Amendment privilege. The employee failed to allege that the employer’s counterclaim was filed without a reasonable basis in law or fact.

If a business is facing a retaliation claim based on the business filing a lawsuit, raising the First Amendment could be a complete defense to the lawsuit.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

To trigger an employer’s duty to provide a reasonable accommodation under the ADA, an employee must (1) make a specific demand for an accommodation and (2) demonstrate that such accommodation is reasonable. Owens v. Governor’s Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022). “The second element requires that the employee put the employer on notice of the alleged disability for which she seeks an accommodation and provide enough information to allow an employer to understand how the accommodation would address the limitations the disability presents.” Id. After the employee provides this information, the employer must initiate an informal, interactive process with the employee to discuss and determine a reasonable accommodation that will allow the employee to perform the essential functions of their position. Id.

If an employee sues their employer alleging that the employer violated the ADA by failing to provide a reasonable accommodation, the employer could argue in defense that the employee failed to properly request an accommodation. For example, in Owens, the Court held that an employee who claimed that she was disabled due to childbirth-related complications made a specific demand for an accommodation when she requested a teleworking accommodation. The employee satisfied the first element as a result and triggered the employer’s duty to provide an accommodation. However, the employee did satisfy the second element because she did not request a reasonable accommodation. Specifically, the employee did not provide enough information that would allow her employer to understand how the teleworking accommodation would address the limitations of her disability.

If an employee properly requests a reasonable accommodation, the question arises of what constitutes a reasonable accommodation. A reasonable accommodation can take many different forms. It may include making facilities used by employees accessible to disabled individuals, as well “job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position.” 42 U.S.C. § 12111. Importantly, while reassignment could be a reasonable accommodation, an employer is not required to “bump another employee from a position in order to accommodate a disabled employee . . . .” Lucas, 257 F.3d 1249. Further, an individual with a disability is not entitled to the accommodation of their choice, but only to a reasonable accommodation. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997).

A disabled employee might demand a broad accommodation, but the employer will instead offer a more limited, but still reasonable, accommodation that addresses the employee’s disability. The employee might reject the employer’s offered accommodation. “If an individual rejects a reasonable accommodation, and “cannot, as a result of that rejection, perform the reasonable functions of the position, the individual will no longer be considered qualified.” 29 C.F.R § 1630.9. “Qualified” means that the disabled employee can perform the essential functions of their position with or without a reasonable accommodation. An employee must prove that they were “qualified” within this meaning to prevail on a claim of disability discrimination under the ADA. Lucas, 257 F.3d 1249. A disabled employee who rejects a reasonable accommodation will lose any “qualified” status and cannot succeed on a claim of disability discrimination. 

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.

Traditionally, the litigation privilege protected parties from claims of defamation and perjury for statements made in litigation. Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992). However, in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994), the Florida Supreme Court expanded the privilege. Levin ruled that the litigation privilege “must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” “[T]he litigation privilege applies in all causes of action, statutory as well as common law.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007). Courts have applied to the privilege to, for example, claims of tortious interference with business relationships (Levin), violations of the Consumer Collection Practices Act (Echevarria), and for breach of a non-disparagement agreement (James v. Leigh, 145 So. 3d 1006 (Fla. 1st DCA 2014)).

An interesting question is whether the litigation privilege applies to claims of employment retaliation. Many federal and state employment statutes allow employees to file claims of retaliation when an employer takes an adverse action against them for engaging in a protected activity. For example, Title VII of the Civil Rights Act of 1964 allows claims of retaliation when an employer takes an adverse action against an employee because he “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” associated with a claim of unlawful employment discrimination. 42 U.S.C. § 2000e-3. If an employer files a lawsuit against an employee who has filed a charge of discrimination with the Equal Employment Opportunity Commission, the employee might claim that the lawsuit is retaliation. Does the defense of litigation privilege apply in this circumstance?

This issue has not been addressed by a Florida state court. However, federal courts in Florida have addressed the issue. Phillips v. Mitchell’s Law Maintenance Corp., 2014 WL 12993599 (S.D. Fla., March 17, 2014), is instructive. The plaintiff was a former employee of the defendant. The employer initially sued its employee and the employee countersued its employer. Then, the employer amended its complaint against the employee to add more claims and the employee amended its lawsuit to claim FLSA retaliation. The employer moved to dismiss the retaliation claim arguing that Florida’s litigation privilege barred the claim. The court granted the motion to dismiss because the act of amending a complaint in a lawsuit is protected by Florida’s broad litigation privilege. However it should be noted that Phillips was reversed by the Eleventh Circuit Court of Appeals because Florida’s litigation privilege does not apply in federal court. The reasoning in Phillips can nevertheless be persuasive.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

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.

The court in the consolidated case of Texas v. DOL, Case No. 4:4-CV-499-SDJ (E.D. Tex., Nov. 15, 2024), and Plano Chamber of Commerce v. DOL, Case No. 4:24-CV-468-SDJ (E.D. Tex. Nov. 15, 2024), issued summary judgment in favor of the plaintiffs and vacated the 2024 Rule. In reaching its decision, the court applied the Supreme Court’s recent decision in Loper Bright Enters. v. Raimondo, 144 S. Ct. 2444 (2024), which states that “[c]ourts must exercise independent judgment in deciding whether an agency has acted within its statutory authority.” The court also applied a decision from the Fifth Circuit holding that the DOL cannot enact regulations that “replace or swallow the meaning” of the exemptions by instituting a definition that is fundamentally different than the text and structure of the FLSA. Mayfield v. DOL, 117 F.4th 611 (5th Cir. 2024).

The court found that the 2024 Rule improperly “swallow[s]” the meaning of the exemptions. The court reasoned that the text of the FLSA shows that the applicability of the executive, administrative, and professional exemptions are primarily determined by an employee’s duties, not the employee’s salary. The court additionally found that the DOL’s minimum salary threshold increase would reclassify millions of workers from exempt to non-exempt while also causing an additional three million to become non-exempt. The sweeping effect of the rule would suddenly make salary the determinative factor in whether an employee is exempt or not, instead of the employee’s duties as Congress intended.

The court also found the DOL Rule’s “Automatic Indexing Mechanism,” in which the salary threshold would adjust automatically every three years, violates the requirement that the DOL engage in notice-and-comment rulemaking. The Administrative Procedures Act (APA) requires agencies to go through a notice and comment process before enacting a new regulation. This process requires the agency to first publicize and receive comments about the proposed rule. The court found that the DOL Rule’s automatic adjustments to the minimum salary threshold violates the APA because the DOL would not engage in the notice and comment process before each adjustment.

Thus, for now, the minimum salary threshold for executive, administrative, and professional employees to qualify as exempt from overtime remains $684 per week. It must be noted that, on November 26, 2024, the DOL appealed the district court’s order to the Fifth Circuit Court of Appeals. Thus, employers should continue to monitor the Texas and Plano cases as the Fifth Circuit weighs in on the issue.

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.

An employee must prove the employer treated similarly situated employees outside the relevant protected class more favorably to state a claim for employment discrimination. McDonnell Douglas Corp. v. Green, 411 US 792 (1973). That said, an employer is not required to provide a reasonable accommodation to a disabled employee until the employee makes a specific demand for a reasonable accommodation. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361 (11th Cir. 1999). The employer does not have to provide the employee’s preferred accommodation. Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000). An employer must, however, engage in an interactive process with the employee to identify and agree upon a reasonable accommodation after the employee makes a specific demand for a reasonable accommodation.

Harrigan v. Diaz, Anselmo & Associates, P.A., Case No. 21-CV-62115 (S.D. Fla.), provides a good example for how an employer can comply with the various legal requirements associated with pregnant employees. The plaintiff in Harrigan worked as a human resources manager at a law firm. She claimed that, while working for the law firm, she became pregnant and requested to work from home as an accommodation for pregnancy related complications. The law firm rejected the request and required the plaintiff to continue working in the office. However, the law firm offered the plaintiff a reduced work schedule. Sometime thereafter, the law firm terminated the plaintiff after she give birth citing poor work performance as the reason for termination. The plaintiff sued the law firm for discrimination and asserted claims under Title VII, the FCRA, and the ADA.

The decision in Harrigan turned on two issues. The first was whether the law firm’s offer of a reduced work schedule constituted a reasonable accommodation. The law firm argued the accommodation of a reduced schedule was reasonable because the plaintiff sent an email to her supervisor admitting the reduced schedule was working for her. The second determinative issue was whether the employee demonstrated the law firm treated similarly situated employees outside the plaintiff’s protected class more favorably. Although the plaintiff presented evidence that two other employees were permitted to work from home, the law firm argued the two employees were not similarly situated because they had a track record of good work performance whereas the plaintiff had a track record of poor work performance. The Court agreed with the law firm on both issues and granted judgment in favor of the law firm at trial.

Harrigan is good example of how employers can treat pregnant employees to comply with the various discrimination laws. This includes working with the employee to provide an accommodation both parties agree upon in writing. The accommodation provided does not need to be the accommodation requested by the employee and can be something different so long as it a reasonable alternative. Harrigan also informs us that Pregnant employees can also be held to the same work standard as other employees, and terminated for legitimate reasons such as poor work performance.

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.

For many years, employees had to demonstrate adverse employment action by showing that an employer’s action created a “serious and material” change to the terms of employment. Davis v. Town of Lake Park, Fla., 245 F.3d 1232 (11th Cir. 2001). This standard helped employers defeat Title VII claims when employees brought claims involving unsubstantial adverse employment action. However, the Supreme Court’s recent decision in Muldrow v. City of St. Louis, Mo., 601 U.S. 346 (2024), changed the standard, which makes it more difficult for employers.

Muldrow involved a Title VII claim by a police officer who alleged her transfer to another division within the police department was sex-based discrimination. The officer worked in a plainclothes unit specializing in intelligence. She had FBI credentials, a take-home vehicle, and the authority to pursue investigations outside of the city. A new supervisor requested that the officer be transferred out of the intelligence division and was replaced by a male officer.

The female officer filed a Title VII lawsuit and the district court granted summary judgment against her because the female officer did not establish an adverse employment action. The officer did not show her transfer caused a significant change in working conditions producing a material employment disadvantage. The Eighth Circuit affirmed and then the case was heard by the United States the Supreme Court. The Supreme Court reversed summary judgment because the text of Title VII does not require an employee to show an employer’s action caused significant harm to an employee. In doing so, the Supreme Court established a new standard for adverse employment actions in Title VII cases. Employees are now only required to show “some harm respecting an identifiable term or condition of employment.” In other words, the employer’s actions must have “brought about some ‘disadvantageous’ change in an employment term or condition.”

The case law interpreting the new Muldrow standard is still developing. Therefore, Muldrow’s full impact is not yet known. Nevertheless, Muldrow has already been applied in decisions favoring employers and other decisions favoring employees. In West v. Butler County Board of Education, 2024 WL 2697987 (11th Cir. 2024), the Eleventh Circuit found that an employee who alleged an adverse employment action when his employer required him to use paid leave to observe a religious holiday had a plausible Title VII claim under Muldrow. Conversely, in Lukie v. Metlife Group, Inc., 2024 WL 4471109 (11th Cir. 2024), the Eleventh Circuit affirmed summary judgment for an employer because, among other reasons, the employee did not show her assignment to administrative tasks was an adverse employment action under Muldrow.

Going forward, employers should be cognizant that minor employment actions could possibly give rise to a Title VII claim if “some harm” to an employee occurred.

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.

According to the Complaint in Harvey, the chef and the business partner entered into a limited partnership agreement in 2019 to open a food hall. A food hall is an establishment where several chefs sell their food in an auditorium setting. The partner would be the primary financier of the business and the chef would manage the day-to-day operations of the food hall as the director of operations. The chef also made cash contributions to the business totaling $215,000, and obtained a loan of $100,000 for the business. The chef then spent the following five years preparing to open the food hall, including organizing, preparing plans, obtaining permits, completing regulatory compliance, hiring employees, arranging for chefs to become tenants at the food hall. He was not compensated for these activities, believing that, pursuant to the partnership agreement, he would be compensated with a share of profits after the food hall opened.

However, things went south in 2024. The partner began to assert more control of the business and usurped the chef’s duties as Director of Operations. This caused disputes between the chef and the partner. The chef claims that, in June 2024, his business partner gave him an ultimatum to sign an amendment to the partnership agreement that substantially changed the terms of the agreement or be terminated. The chef signed the amendment, which reduced his role to Operations Manager, was to receive an LPA distribution share of 23.7% if he remained the Operations Manager through the remainder of 2024, which would then decline to 14.04% on January 1, 2025. He was also entitled to receive a minimum salary of $75,0000 and an allotment of profits from his equity share that exceeded $75,000.00. Yet, shortly after signed this amendment, the partner and the partnership terminated him.

The chef brought counts of breach of contract, unjust enrichment, and failure to pay wages under a Pennsylvania statute. In his count of breach of contract, the chef claims that the partnership and the partner breached the partnership agreement by terminating him without justification, when the partnership agreement only allows for him to be terminated for cause. In his claim of unjust enrichment, he claims that he worked 25 hours per month for the business for several years, but he was never paid. In his claim of failure to remit wages, he claims that he should have been classified as an employee of the business and was therefore entitled to wages which the business never paid. The partner and the partnership have yet to respond to the Complaint.

Harvey is an example of a common business dispute. Partners will enter into an agreement to start a business, but then one partner wants to exert more control and look for ways to push others out. This shows the importance of having well-drafted business agreements to protect oneself from the unscrupulous actions of business partners, and, if necessary, even engage in litigation.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Federal courts have a well-established burden shifting test to analyze claims of discrimination under the landmark decision McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas test requires the plaintiff to first establish a prima facie case of discrimination, which has four elements: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for their position, (3) the plaintiff was subjected to an adverse employment action, and (4) the employer treated members outside of the protected class more favorably. If a plaintiff establishes a prima facie case, the burden then shifts to the employer to proffer a legitimate, non-discriminatory reason for the adverse employment action. The burden then shifts back to the plaintiff to prove that the employer’s proffered reason is pretext for discrimination.

In Ames v. Ohio Dep’t of Youth Services, 87 F.4th 822 (2023), a heterosexual woman sued her employer under Title VII alleging discrimination based on sexual orientation and sex. She alleged the employer hired her in 2004 and promoted in 2014. In 2017, she was assigned a homosexual supervisor. In 2019, the plaintiff applied for and interviewed for a higher position, but was not hired. A few days after the interview, the employer terminated the plaintiff from her then current position and offered her a demotion. The employer then hired a much younger and lesser experienced homosexual man to replace the plaintiff. The employer also chose a homosexual woman to fill the higher position that the plaintiff interviewed for.

After the plaintiff filed the lawsuit, the district court granted summary judgment to the employer, and the Sixth Circuit affirmed. The Sixth Circuit held that the plaintiff could not establish the first element of a prima facie case of discrimination, that she was a member of a protected class. This was because the plaintiff was a member of a majority group, for which the Sixth Circuit requires a proof of “background circumstances” indicating discrimination. Such “background circumstances” include, for example, the relevant minority group made the employment decision at issue, or statistical evidence shows a pattern of discrimination by the employer against members of the majority group. Notably, the Sixth Circuit does not require members of minority groups alleging discrimination to prove “background circumstances.” In addition to the Sixth Circuit, four other federal circuits also require members of majority groups to prove “background circumstances.” This includes the D.C. Circuit, the Seventh Circuit, the Eighth Circuit, and the Tenth Circuit.

The plaintiff petitioned for certiorari from the Supreme Court, which was recently granted. The plaintiff argued that the “background circumstances” requirement imposed by the United States Sixth Circuit Court of Appeals conflicts with Title VII. It will be interesting to see how the Supreme Court addresses the “background circumstances” issue in the future.

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

A worker is not an independent contractor simply because a business labeled them as such. The determination requires an in-depth legal analysis of the various aspects of the worker’s actual duties and relationship with the business. The Eleventh Circuit Court of Appeals established the following factors to determine whether a worker is an independent contractor under Title VII:

1. the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision;
2. the skill required in the particular occupation;
3. whether the ‘employer’ or the individual in question furnishes the equipment used and the place of work;
4. the length of time during which the individual has worked;
5. the method of payment, whether by time or by the job;
6. the manner in which the work relationship was terminated; i.e. by one or both parties, with or without notice and explanation;
7. whether annual leave is afforded;
8. whether the work is an integral part of the business of the ‘employer;’
9. whether the worker accumulates retirement benefits;
10. whether the ‘employer’ pays social security taxes; and
11. the intention of the parties.

Cobb v. Sun Papers, Inc., 673 F.2d 337 (11th Cir. 1982). Courts holistically assess these factors in determining a workers independent contractor status. No single factor is dispositive.

If an analysis of these factors shows that the worker is independent from the business, a court will likely find that the worker is an independent contractor. A lack of supervision under factor one generally indicates independent contractor status. Highly skilled worked under factor two tend to be independent contractors, and independent contractors tend to supply their own equipment under factor three. Independent contractors tend to work for shorter periods, unlike employees who tend to be hired indefinitely. Independent contractors pay their own social security taxes, provide employment benefits like retirement and annual leave, while employers pay these expenses and benefits for employees. In addition, independent contractors often perform services for the business that are not integral to the business. A small company that sells a particular product might hire an independent contractor CPA to perform accounting functions. Courts often consider the intent of the parties. If the business and the worker intend to create an independent contractor relationship, courts tend to honor the parties’ intent. This is often evidenced by a written contract between the parties stating the relationship an independent contractor relationship.

It is important that businesses that classify workers as independent contractors closely analyze these factors to ensure that these workers are properly classified. Properly classifying workers could avoid liability under the FLSA, Title VII, and other state and federal laws.

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.

On June 14, 2024, an administrative law judge with the NLRB issued a decision in J.O. Mory, Inc., finding that an employer’s non-compete and non-solicitation provisions violated Section 7 of the NLRA. In J.O. Mory, a union organizer began working for an HVAC company without revealing that he was a union organizer. The company required him to sign an employment agreement that contained a non-compete provision and a non-solicitation provision. The non-compete provision prohibited employees from working for a competitor for twelve months after the employment terminated. The non-solicitation provision prohibited employees from soliciting other employees to leave employment with the company for twenty-four months after employment terminated.

The union organizer eventually revealed to the company that he intended to recruit the company’s employees to join a union. The company terminated the organizer’s employment as a result. The organizer then filed a complaint with the NLRB alleging he was terminated in violation of the NLRA for being a member of a union and engaging in union activities. The organizer also alleged that the company’s non-compete provision and non-solicitation provision violated Section 7 of the NLRA. Section 7 of the NLRA states employees have the right to engaged in “concerted activities” such as forming and joining labor unions. 29 U.S.C. § 157.

The administrative law judge ruled in favor of the organizer. The judge found that the non-compete provision was “overly broad in scope and would deter a reasonable employee from engaging in protected activity . . . .” The judge found that the non-compete provision “chills” Section 7 rights because an employee would be unwilling to engage in protected activity (such as union activities and concerted activities) out of fear that they would be fired and unable to work for another HVAC company in their geographic area. The administrative law judge also found that the non-solicitation provision “chills” Section 7 rights because employees would be deterred from soliciting other employees to work for other employers in the area to recruit the employees of those other employers to join a union. The ALJ ordered the employer to rescind the non-compete and non-solicitation provisions of its employment agreement.

On July 10, 2024, the company filed exceptions to the administrative law judge’s ruling. This essentially acts as an appeal because an NLRB panel (i.e. the “Board”) will hear the case and issue a ruling. The NLRB should issue a final ruling sometime in the next few months.

The NLRB’s decision in J.O. Mory could have significant implications on employer use of non-compete and non-solicitation provisions. If the NLRB upholds the administrative law judge’s decision, employers will need to be cautious in using non-compete and non-solicitation provisions to avoid the risk of an NLRB proceeding.

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

The federal court in Ryan LLC issued the permanent injunction based on many of the same reasons as its preliminary injunction entered earlier in the case. The Judge relied heavily on the federal Administrative Procedures Act (APA), which requires that courts set aside administrative agency actions when they are “arbitrary, capricious, or otherwise not in accordance to the law” or “in excess of statutory jurisdiction, authority, limitations, or short of statutory right.” 5 U.S.C. § 706. In applying the APA, the court found that the FTC Act does not grant substantive rulemaking authority to the FTC, and the non-compete ban is arbitrary and capricious. 2024 WL 3879954. The court reasoned that the FTC Act does not grant it substantive ruler making authority. Section 6 only vested the FTC with the authority “to make rules and regulations to carry out the provisions of the subchapter.” The Ryan LLC court characterized section 6 as a “housekeeping” statute. See also Chrysler Corp. v. Brown, 441 U.S. 281 (1979). It lacks a statutory penalty and is in a nonessential location. In addition, the court determined the non-compete ban is arbitrary and capricious because it is unreasonably broad. The studies the FTC relied on a to enact its rule did not support a such a sweeping ban.

In reaching its holding, the Ryan LLC court did cite to Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the recent Supreme Court case that eliminated court deference to agency rules. This reference suggests the court did not provide deference to the rule that would normally be applied before the Looper Bright Enterprises decision. However, the court did not expressly make such a ruling.

The FTC will likely appeal the ruling to the United States Court of Appeals For The Fifth Circuit. It is possible that the case could eventually reach the Supreme Court. At this point, we cannot be certain what the final result will be, whether the prohibition against the FTC’s ban will remain nationwide, or whether the FTC ban will be allowed to take effect, in full or in part, while litigation moves through the federal court system.

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

In denying the motion for preliminary injunction, the court in ATS Tree Services, LLC found that the plaintiff did not establish irreparable harm or the likelihood of success on the merits. 2024 WL 3511630. The plaintiff argued, among other things, that the FTC rule would cause it to suffer irreparable harm because the plaintiff’s employees could immediately leave employment to work for a competitor thereby depriving the plaintiff of the benefits of the training it provided its employees. The plaintiff also claimed it would be irreparably harmed because there was a risk its employees would expose the employer’s confidential information to a competitor once they left the company. However, the court rejected both arguments. The argument regarding deprivation of training benefits was rejected because it was too speculative. The plaintiff did not provide any evidence that its employees would actually leave to work for a competitor. The argument regarding disclosure of confidential information was rejected because The FTC’s non-compete ban does not apply to non-disclosure agreements.

The court also denied the plaintiff’s request for an injunction prohibiting enforcement of the ban against non-compete agreements. The court determined that the plaintiff was not likely to succeed on the merits. The court determined the FTC had authority to engage in substantive rulemaking or its authority was not limited to procedural rulemaking. 2024 WL 3511630. The court analyzed the language of Section 6 of the FTC Act, which allows the FTC to “make rules and regulations for the purpose of carrying out the provisions of this chapter.” 15 U.S.C. § 46. The ATS court stated Section 6 does not explicitly limit the FTC’s rulemaking authority to only procedural rulemaking. In addition, the court analyzed Section 5 of the FTC Act, which allows the FTC to “prevent persons, partnerships, or corporations . . . from using unfair methods of competition . . . .” 15 U.S.C. § 45. Use of the word “prevent” inherently contemplates substantive rulemaking. 2024 WL 3511630. This holding contradicts the reasoning in Ryan LLC, which determined the FTC did not have substantive rulemaking authority. Ryan LLC, 2024 WL 3297524. Ryan LLC characterized Section 6 as a “housekeeping” statute.

It is noteworthy that ATS scarcely discussed Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024), a recent Supreme Court decision eliminating the deferential standard provided to agency rules established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). ATS’s omission provides strong indication further litigation on the enforceability of the FTC’s non-compere ban is forthcoming. Only time will tell whether the non-compete ban ultimately survives legal challenge.

Peter Mavrick is a Fort Lauderdale business litigation lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.