Modern building.Modern office building with facade of glass
Representing Businesses and Business Owners Contact Us Now!

Articles Posted in Employment Law

Published on:

The Miami labor and employment attorneys at the Mavrick Law Firm have, on multiple occasions, successfully defended business from suits by current or former employees seeking unpaid overtime wages under the Fair Labor Standards Act (“FLSA”). In FLSA overtime wage cases, it is common for a plaintiff to allege that they worked a certain number of hours off the clock per week, and are thus entitled to be compensated for such work. These types allegations can create significant problems for employers who do not keep accurate records of the work performed by employees. According to the Eleventh Circuit in Jackson v. Corr. Corp. of Am., 606 Fed. Appx. 945, 952 (11th Cir. 2015):

It is well established that an employee bringing a claim for unpaid overtime wages must initially demonstrate that she performed work for which she was not properly compensated. However, it is the employer’s duty to keep records of the employer’s wages, hours, and other conditions and practices of employment. For that reason, in situations where the employer has failed to keep records or the records cannot be trusted, the employee satisfies her burden of proving that she performed work without compensation if she produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.

Thus, if an employer fails to keep accurate time records, it can be on the hook for work performed by an employee “off the clock,” so long as the employee produces sufficient evidence that the work was actually done. The Miami employment lawyers at the Mavrick Law Firm have extensive experience with these types of situations and know that a recent decision out of the Fifth Circuit limits an employee’s ability to recover damages for such work allegedly done “off the clock.”

Published on:

The use of the two-tier method to determine whether collective actions should proceed under Section 216(b) of the Fair Labor Standards Act (“FLSA”) is inappropriate because it: (1) conflates Rule 23 standards with non-applicable wage and overtime claims under the Fair Labor Standards Act; and (2) wastes judicial resources and the resources of the parties. While the two-tier approach is popular among the district courts, the Eleventh Circuit has stressed that “[n]othing in [the Eleventh Circuit’s] precedent … requires district courts to utilize this approach. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001). Thus, courts should consider the utility of authorizing notice under Section 216(b) rather than relying on jurisprudential concerns that are based in “imprecise pleading and stare decisis yield[ing] path-dependence and lock-in.” Turner v. Chipotle Mexican Grill, Inc., 123 F. Supp. 3d 1300, 1306 (D. Colo. 2015).

The two-tier approach is a method of determining whether collective actions should proceed under Section 216(b). The first phase uses a very lenient standard to determine whether the named plaintiffs are similarly situated to the putative opt-in plaintiffs and whether there are similarly situated individuals who want to join the litigation. Most plaintiffs clear the low bar of the first phase, just to, in most cases, have their classes de-certified in second phase when the court makes a factual determination on the “similarly situated” issue. See Hipp 252 F.3d at 1218 (“Based on our review of the case law, no representative class has ever survived the second stage of review”).

The conflation of Rule 23 class action standards with the application of 216(b) to collective actions can traced to the 1976 enactment of the Age Discrimination Enforcement Act (“ADEA”). The ADEA authorized similarly situated plaintiffs to aggregate their claims by incorporating 216(b) as its enforcement mechanism. As a result of the proliferation of ADEA lawsuits, the leading cases that address collective action proceedings under section 216(b) are ADEA actions, rather than actions brought under the FLSA. Moreover, because ADEA 216(b) cases often import Title VII discrimination standards that are subject Rule 23 class certification. Thus, what should be a relatively straightforward analysis of wage and overtime claims under the FLSA, is now a confounding analysis that assesses wage and overtime claims with the Rule 23 like two-tiered method, which was designed to address patterns and practices of discrimination. See Turner 123 F. Supp. 3d at 1305–06 (finding that reliance on Rule 23 “class certification” concepts in true 216(b) FLSA cases to be the result of a confluence of factors, including haphazard terminology, a misunderstanding of precedent and legislative intent, and excessive path dependence in the application of stare decisis.) “Rule 23 actions are fundamentally different from collective actions under the FLSA,” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013), as such, courts should not default to the use of the two-tier method when determining if a class should be conditionally certified.

Published on:

Employers that are faced with collective actions under the Fair Labor Standards Act may be able to defeat Motions for Conditional Certification if they can demonstrate the individualized nature of named plaintiff’s claims. See Caballero v. Kelly Services, Inc., WL 12732863, at *7 (S.D. Tex. Oct. 5, 2015) (denying certification where alleged violations were “not the result of a systemic policy,” so “assessment of the[ ] issues necessitates an individual inquiry for each Plaintiff, thereby making a collective action inappropriate.”) Employers can prove that the potential plaintiffs’ claims are individualized and unfit for collective action by establishing the disparate nature of the putative class’ and its representatives job requirements and pay provisions. The need for individualized inquires contravenes the basic theory of judicial economy upon which the certification of collective actions is based. See id. at *1. Therefore, employers who highlight the individualized defenses and inquiries may prevent a collective proceeding. See Lugo v. Farmer’s Pride Inc., 737 F. Supp. 2d 291, 300–01 (E.D. Pa. 2010).

To determine whether 216(b) collective actions are appropriate, most courts utilize the two-tier method. See Hipp. at 1208. At the first “notice stage,” the district court makes a decision—usually based only on the pleadings and any affidavits which have been submitted— as to whether the putative class should be conditionally certified. See id. When assessing the pleadings and affidavits, courts in the Southern District of Florida satisfy themselves that “(1) there are similarly situated with regard to their job requirements and pay provisions; and (2) there is a desire among similarly situated individuals to opt-in to the class.” See Martinez at 1853.  Put another way, there is a two-part analysis to assessing the first tier, which determines whether conditional certification will be granted.

A defendant that successfully highlights the differences in pay and job requirements between the putative plaintiffs will probably defeat a Motion for Conditional Certification. Defendants should contrast on the job requirements and pay provisions of the named plaintiff with those that the named plaintiff seeks to represent. Thus, defendants should bring attention to inconsistencies in the pleadings and affidavits or declarations to establish that plaintiff differences in pay provisions and job requirements: defendants should highlight differences such as exempt status, job duties, and schedules, among other things. See Palacios v. Boehringer Ingelheim Pharm., Inc., WL 6794438, at *1 (S.D. Fla. Apr. 19, 2011) (denying first stage “notice” authorization because an individualized analysis was required to determine whether putative class members are exempt from the FLSA overtime provisions); Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265, 1272 (M.D. Ala. 2004) (denying conditional certification because “similarly situated” inquiry must be analyzed in terms of the nature of the job duties performed by each putative plaintiff); Udo v. Lincare, Inc., WL 5354589, at *11 (M.D. Fla. Sept. 17, 2014) (denying notice authorization partly due to the variance in schedules among the potential opt-in plaintiffs.)

Published on:

Some employers might wish to know whether a job applicant or current employee previously filed worker’s compensation claims.  At first glance, such information might seem relevant and even useful to employers.  For example, an employer in an accident-prone industry might want to know if the job applicant has a history of repeatedly filing worker’s compensation claims shortly after beginning his or her employment.  However, it is important that employers understand the liability that could result from using an applicant/employee’s previous worker’s compensation claims as a basis for making employment decisions.

Using an applicant/employee’s worker’s compensation claim to make adverse employment decisions could result in criminal liability for the employer.  Under Florida law, it is a first degree misdemeanor to knowingly fire an employee or refuse to hire an applicant because the applicant/employee filed a worker’s compensation claim.

Employers could also face civil liability if they fire, threaten to fire, intimidate, or coerce an employee because the employee filed a worker’s compensation claim.  Additionally, employers could face civil liability if they fire an employee after learning that the employee filed a worker’s compensation claim against a previous employer.

Published on:

Under Florida law, employers could face civil liability for the harm an employee causes to a third party.  For that reasons, employers might wish to conduct a thorough investigation of a job applicant’s or current employee’s criminal record.  According to federal guidelines, however, federal law could impose liability on employers who base their employment decisions on criminal records.

Under Title VII of the federal Civil Rights Act of 1964 (“Title VII”), employers are prohibited from discriminating on the basis of race, color, religion, gender, or national origin.  Title VII prohibits not only “disparate treatment” (i.e., refusing to hire an African American applicant based on his criminal record and instead hiring a white applicant with a comparable criminal record), but also “disparate impact.”  Disparate impact occurs when the employer implements a facially-neutral policy that, in practice, has the effect of disproportionately screening out a protected group (i.e., a particular race, color, religion, gender, or national origin).  For example, a policy that screens out all applicants that have ever been convicted of a felony does not, on its face, discriminate on the basis of race or color.  However, in practice, the policy might have the result of disproportionately screening out African American or Hispanic applicants.  Such a policy could form the basis for “disparate impact” claim of discrimination.

In April 25, 2012, the Equal Employment Opportunity Commissions (“EEOC”) issued federal guidelines based on Title VII.  According to the federal guidelines, African Americans and Hispanics are incarcerated at rates disproportionate to their number in the general population.  For that reason, the federal guidelines state that facially neutral policies that screen out applicants based on criminal convictions might violate Title VII if the policies are not job-related and consistent with business necessity.

Published on:

Background checks can be a valuable tool for employers.  A thorough background check can shield an employer from future liability.  However, both federal and state law place limits on what the employer can lawfully do regarding background checks.  One such federal law is the Fair Credit Reporting Act (“FCRA”).

An employer who wishes to know a job applicant’s credit history could request a consumer report from a consumer reporting agency under the FCRA.  However, to lawfully obtain and make an employment decision based on a consumer report, employers must follow certain procedures under the FCRA.

Before requesting a consumer report for a job applicant or employee, the employer must (1) certify to the consumer reporting agency that the employer will comply with the FCRA and applicable state law; (2) disclose in writing to the job applicant/employee that the employer will seek a consumer report; and (3) secure the applicant/employee’s authorization in writing.  The employer’s written disclosure to the applicant must be in a document that consists of only the disclosure and the applicant’s written authorization.

Published on:

Under Florida law, a corporation that acquires the assets of another corporation generally does not assume the liabilities of the predecessor corporation.  The successor corporation will acquire its predecessor’s liabilities only to the extent it agreed to acquire those liabilities in the asset purchase agreement.  Many states have similar laws regarding a successor corporation’s liability.  The analysis changes, however, when the predecessor’s liability stems from federal statutes like the federal Fair Labor Standards Act (“FLSA”).  In other words, a predecessor corporation’s failure to pay its employees minimum or overtime wages under the FLSA could result in liability to the successor corporation.

Some federal courts have held that a successor corporation could, as a matter of federal law, acquire the FLSA liabilities of its predecessor despite state law to the contrary.  Under federal law, courts consider the following factors, or slight variants thereof, to determine whether a successor corporation acquired its predecessor’s FLSA liabilities: (1) whether the successor corporation had notice of the predecessor’s liabilities; (2) whether there is continuity in operations and work force of the successor and processor; and (3) whether the predecessor has the ability to directly provide adequate relief.

In March 2013, the Seventh Circuit applied those factors, among others, in Teed v. Thomas & Betts Power Solutions, L.L.C., 711 F.3d 763 (7th Cir. 2013), and found the successor corporation liable for its predecessor’s FLSA violations.  The successor corporation in Teed purchased the assets of its predecessor through an auction.  The asset transfer agreement contained a specific condition that the transfer be “free and clear of all Liabilities” including any liabilities stemming from the predecessor’s pending FLSA litigation.  The federal appellate court noted that if “state law governed the issue of successor liability, [the successor corporation] would be off the hook.”  Teed, 711 F.3d at 765.  However, the court held that federal law, not state law, governed.  Consequently the court found that the successor corporation acquired its predecessor’s FLSA liabilities despite the exclusion in the the asset transfer agreement.  The court in Teed found that “[i]n the absence of successor liability, a violator of the [FLSA] could escape liability … by selling its assets without an assumption of liabilities by the buyer … and then dissolving.”  Teed, 711 F.3d at 766.

Published on:

The Fair Labor Standards Act (“FLSA”) not only requires that employers pay minimum and overtime wages, it also prohibits employers from retaliating against their employees for complaining about their wages.  The FLSA makes it unlawful for employers to “discharge or in any manner discriminate against any employee because such employee has filed a complaint or instituted … any proceeding under or related to [the FLSA].”  29 U.S.C. § 215(a)(3).  To establish a case for retaliation under the FLSA, an employee must prove three elements: (1) the employee engaged in protected activity under the FLSA, (2) the employee subsequently suffered adverse action by the employer, and (3) a causal connection existed between the protected activity and the adverse action.

A “protected activity” can be either formal or informal.  For example, if the employee formally files a complaint against the employer in court alleging unpaid wages, the employer cannot thereafter fire the employee for filing that complaint.  However, “informal” complaints could also lead to an FLSA retaliation claim.  For example, the employee may orally complain to the employer about unpaid overtime wages.  If the employer thereafter fires or takes other adverse action against the employee, the employer could be held liable for unlawfully retaliating against the employee.  The bottom line is: if the employee makes some form of complaint (either written or oral) that puts the employer on notice that the employee is asserting his or her rights under the FLSA, then the employee’s complaint will likely be considered “protected activity.”  The employee does not need to mention the FLSA by name.  However, the employee’s complaint also cannot be a general grievance; it must be sufficient in both content and context to put the employer on notice that the employee was asserting his or her rights under the FLSA.  A federal court in Florida recently found that the employees’ complaints that they were “improperly paid” were too vague to constitute “protected activity.”  Barquin v. Monty’s Sunset, L.L.C., 2013 U.S. Dist. LEXIS 144076, at *8-9 (S.D. Fla. Oct. 2, 2013).

An “adverse action” is any action taken by the employer that causes some injury or harm to the employee.  The most straight-forward example of “adverse action” is an employer terminating or firing the employee.  However, demotions or pay cuts could also constitute “adverse action.”  Other employment actions, such as job transfers or reassignments, will generally not be considered “adverse actions” on their own, but could rise to the level of “adverse action” under certain circumstances.  In general, if the employer’s actions would dissuade a “reasonable worker” from making or supporting a charge against the employer, then the employer’s actions would likely be considered “adverse.”

Published on:

On April 17, 2014, the Florida Supreme Court resolved a conflict in Florida law: whether discrimination based on pregnancy constitutes “sex” discrimination in violation of the Florida Civil Rights Act of 1992 (“FCRA”).  The Court held that because pregnancy is a “natural condition unique to women and a ‘primary characteristic of the female sex,’” discrimination on the basis of pregnancy is unlawful sex discrimination.  Delva v. The Continental Group, Inc., Case No. SC12-2315, 2014 Fla. LEXIS 1316 (Fla. Apr. 17, 2014).

Under Title VII of the federal Civil Rights Act of 1964 (“Title VII”), the federal equivalent of the FCRA, it took a congressional act to make pregnancy discrimination unlawful.  In 1976, the U.S. Supreme Court held that Title VII does not prohibit pregnancy discrimination.  Two years later, in response to the U.S. Supreme Court, Congress passed the Pregnancy Discrimination Act (“PDA”), which amended Title VII to clarify that discrimination on the basis of pregnancy is sex discrimination and therefore unlawful.

The FCRA was patterned after Title VII.  Consequently, Florida courts have held that the FCRA shall be given the same meaning as Title VII.  The Florida legislature, however, has not amended the FCRA to include pregnancy discrimination.  Because Florida did not amend the FCRA, a conflict developed among Florida courts regarding whether the FCRA prohibits pregnancy-based discrimination.

Published on:

Florida law tends to favor enforcement of non-competition covenants.  Under Florida law, non-competition covenants are enforceable if they protect one or more legitimate business interests and if they are reasonable in time, area, and line of business.  In fact, Florida law explicitly forbids courts from considering “any individualized economic or other hardship that might be caused to the person against whom enforcement is sought” when determining whether a non-competition covenant is enforceable.  Fla. Stat. § 542.335(g)(1).

For those reasons, companies might wish to take advantage of Florida’s non-competition laws even when the non-competition contract will be enforced outside of Florida.  In those situations, companies will likely include a “choice of law” provision in their non-competition covenants.  Generally, a “choice of law” contractual provision allows the parties to decide which state’s laws should apply to the contract.

Consider the following example:  A Florida corporation conducts business in New York.  To protect its legitimate business interests, the Florida corporation enters into a non-competition contract with its New York employee.  However, New York’s laws do not favor non-competition covenants to the same extent that Florida’s laws do.  New York law requires courts to consider whether the non-competition contract would impose undue hardship on the employee, a consideration that is forbidden under Florida law.  To take advantage of the Florida law, the Florida corporation includes a “choice of law” provision in the non-competition contract stating that Florida law shall apply to the contract.  That is exactly what a Florida corporation did in Brown & Brown, Inc. v Johnson, 980 N.Y.S.2d 631, 637 (N.Y. App. Div. 4th Dep’t 2014).  The New York appellate court, however, found that New York law, not Florida law, applied to the non-competition contract notwithstanding the contract’s “choice of law” provision.

Contact Information