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

Articles Posted in Employment Law

Published on:

Sometimes, an employment relationship can become acrimonious.  A disgruntled employee is more likely to complain and more likely to fail to perform work.  As a result, some terminated employees try to assert that the loss of their employment was not their performance or attitude but instead because of unlawful retaliation.  In lawsuits accusing the employer of retaliation, plaintiff-employees generally must prove a retaliatory motive.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims in include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

There are three components to a retaliation claim.  The first is that the employee engaged in protected activity. A lot of actions can qualify as protected activity, including complaining about unlawful discrimination, participating in a discrimination lawsuit as a witness, requesting accommodations for a disability, or demanding overtime wages.  Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir. 2010)  (Title VII prohibits retaliation “when an employee ‘oppos[es] any practice made an unlawful employment practice by [Title VII]’ or ‘has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’”); 42 U.S.C. § 12203(a) (describing protected activity in relation to the ADA); 29 U.S.C. § 215(a)(3) (permitting an employee to sue for retaliation under the FLSA if the employee “filed any complaint” about unlawful overtime or minimum wage practices).

The second requirement is that there be an adverse action.  “[I]n the context of a Title VII retaliation claim, a materially adverse action ‘means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”  Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020).  “[I]t is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered “materially adverse” to him and thus constitute adverse employment actions.” Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008).  An adverse action is most often the refusal to hire a person, refusal to promote an employee, or termination of an employee.

Published on:

The Florida Civil Rights Act (FCRA) requires that an employee-plaintiff comply with an administrative procedure with the Florida Commission of Human Relations (FCHR) prior to filing suit.  The purpose of this requirement is to reduce the number of discrimination lawsuits by filtering clearly meritless claims and attempting to resolve disputes before a civil lawsuit may be filed.  These requirements are mandatory.  Often an employee-plaintiff will fail to fulfill these requirements because of impatience, negligence, or a lack of appreciation of the consequences of noncompliance.  Employers can successfully defend against a plaintiff-employee’s failure to abide by these procedures and obtain dismissal of FCRA claims.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims in include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The FCRA creates a mandatory administrative process that must be fulfilled before a plaintiff may file suit.  Maggio v. Florida Dept. of Labor & Employment Sec., 899 So. 2d 1074 (Fla. 2005) (“Under certain circumstances, the Act creates a statutory right to maintain a civil cause of action when a violation occurs. However, the Act first requires that the claimant comply with a set of presuit administrative procedures”).  The system was purposefully designed to limit the amount of discrimination lawsuits by filtering meritless claims and resolving disputes before lawsuits are filed.

Every charging party goes through initial screening by FCHR.  The statute seeks to avoid further congesting court dockets and also to avoid the impact on employers of having to defend against non-meritorious claims, by requiring an initial determination of cause before a litigant may go to circuit court.  Those whose claims are found to lack merit in the initial screening are protected from having their claims extinguished by having the opportunity to get that ruling reversed in the administrative process to which this plaintiff objects.

Published on:

The Families First Coronavirus Response Act (Coronavirus Response Act) was enacted to allow employees to take paid leave in certain qualifying conditions in relation to the COVID-19 pandemic.  Generally, an employee may take 2 weeks of medical leave and be paid 100% of his or her salary when he or she is unable to work for the following purposes: to diagnose a COVID-19 infection, a government mandated quarantine of the individual because of COVID-19, sickness due to a COVID-19 infection as diagnosed by a medical provider, or care for a person who is infected with COVID-19.  Additionally, FFCRA permits an employee to take up to 12 weeks of leave at 2/3 his or her wages to take care of a child when day-cares or other facilities are closed because of COVID-19.  The employer’s burden is offset because the employer may take a dollar-for-dollar tax credit for all payments made pursuant to this section.  A recent federal case in New York struck two common sense requirements in the FFCRA to the detriment of employers.  Employers may be burdened by the change in law until the law is ultimately reversed on appeal or the Department of Labor enacts corrective rules.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims in include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

A previous article described the recent changes in law arising from COVID-19 related legislation.  The FFCRA modified the Family and Medical Leave Act (FMLA) to require all employers of less than 500 employees to provide paid leave when an employee cannot work because of certain qualifying COVID-19 situations.  Generally, Coronavirus Response Act leave falls into two categories.  The first is two weeks of leave related to the actual treatment of COVID-19.  The second is up to 12 weeks of leave which an employee may take because the employee’s children need care and the daycare or school which the child would normally go to is closed because of COVID-19.

This article is concerned with two rules which were stricken by the recent case, New York v. United States Dep’t of Labor, 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).  Before New York’s holding, it was generally believed that an employee who was furloughed because there was no work for him or her would not qualify for any leave.  Logically, one cannot take leave from something that one is not employed to do.  Additionally, the Department of Labor rules specifically required that the employee have work, but become unable to do the work, for three out of six qualifying conditions.  29 C.F.R. § 826.20(a)(2) (subject to a quarantine order), (6) (to take care of a person with COVID-16), (9) (to take care of a child when no childcare is available because of COVID-19).

Published on:

The Families First Coronavirus Response Act (CARES Act) requires that employers permit their employees to have paid leave in certain circumstances related to the COVID-19 pandemic.  While the FFCRA is mandatory for qualifying businesses, the burden of this law is offset because employers receive a dollar-for-dollar tax credit for the wages paid pursuant to the act. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims in South Florida. Such claims in include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The CARES Act amended the Family Medical Leave Act (FMLA) to require employers to permit their employees to take paid leave in certain situations.  While the FMLA normally only applies to employers of at least 50 employees, the CARES Act applies to employers of “fewer than 500 employees.”  29 U.S.C. § 2620(a)(1)(B).  Employers of fewer than 50 employees may be exempt “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  29 U.S.C. § 2620 (a)(3)(B).  Such an employer may be exempt if the enforcement of the act would cause a business to no longer have positive cash flow or there are not sufficient workers to operate the business at a minimal capacity.  29 C.F.R. § 826.40.  The requirements for paid leave expire December 31, 2020, though the statute may be amended depending on the state of the pandemic as this deadline approaches.  29 U.S.C. § 2612 (a)(1)(F).

Generally, under this employment law, employers must provide paid leave to covered employees who are unable to work for particular COVID-19 related reasons.  To qualify, an employee must be employed for at least the previous 30 calendar days.  29 U.S.C. § 2620(a)(1)(A)(i).  There are two types of paid leave under the FFCRA.  The first is for employees that cannot work because he or she actually has or may have COVID-19.  This leave is limited to two weeks.  The second is for employees that cannot work because childcare facilities are not open.  These employees are permitted up to twelve weeks of paid leave.

Published on:

The “opposition clause” of Title VII of the Civil Rights Act of 1964 prevents covered employers from retaliating against employees because they oppose a practice which is unlawful under the Act.  Accordingly, an employer can be liable for terminating an employee for complaining about allegedly discriminatory conduct.  A recent en banc case with the United States Court of Appeals for the Eleventh Circuit has affirmed the boundaries of the opposition clause and concluded that an employer need not tolerate an employee’s unreasonable opposition activities that interfere with her job.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims in include alleged employment retaliation as well as claims for overtime wages and other related claims.

Title VII makes it unlawful for qualified employers to discriminate against employees on the basis of the employees’ race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a)(2).  An employee is protected from retaliation by the employer when he participates in a proceeding concerning claims under Title VII, or, opposes an employment practice which he reasonably believes to be in violation of Title VII.  The anti-retaliatation provision of Title VII states that “[i]t shall be an unlawful employment practice for an employer to discriminate against [an employee], because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.A. § 2000e-3(a).

When employees sue and claim that they were retaliated against because of a “protected activity,” employment lawyers should generally defend by showing that the allegedly retaliatory conduct occurred for a legitimate, non-discriminatory reason.  An “employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”  Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181 (11th Cir.1984).  For the employee’s claims to survive, he must show that the employer’s reasoning is pretext for an intention to retaliate. “[A] reason is not pretext for [retaliation] ‘unless it is shown both that the reason was false, and that [retaliation] was the real reason.’” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344 (11th Cir. 2007).  “Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d 1012 (11th Cir. 2000).

Published on:

Florida and Maryland’s non-compete laws are protective of business interests in customer relationships and goodwill.  Due to the advent of remote working capabilities, there are often cases when the non-compete laws of more than one state may be implicated.  For example, a Florida employee may work in Florida for a company based in Maryland, and sign a non-compete agreement that contains an explicit provision requiring that Maryland law controls any disputes between employer and employee.  In the context of employment law, the Florida law and Maryland law differ in contract interpretation and the burdens created by non-compete agreements on employees. Florida courts have found that a non-compete clause, itself, must be reasonably necessary to protect the established interests of the business. These subtle differences can impact the determination by the courts. Maryland courts have held that the enforcement of a non-compete clause must show, among other things, that the agreement is “no wider in scope and duration than is reasonably necessary to protect the employer’s interests.” CytImmune Scis., Inc. v. Paciotti, 2016 WL 3218726 (D. Md. June, June 10, 2016). Peter Mavrick is a Fort Lauderdale non-compete attorney, and also advocates for clients in Miami, Boca Raton, and Palm Beach, Florida.

Florida courts tend to limit their review to the wording of non-compete contracts for indications of the parties’ intent. “In construing contracts, the court’s concern is to determine the intention of the parties from the language used, objects to be accomplished, other provisions in the Contract which might shed light upon the question, and circumstances under which it was entered into.”  Bal Harbour Shops, Inc. v. Greenleaf & Crosby Co., Inc., 274 So. 2d 13 (Fla. 3rd DCA 1973). Generally, parol evidence (evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or vary the contractual terms of a written contract) is admissible only to clarify ambiguous terms of contract in order to ascertain the parties’ intent. O’Neill v. Scher, 997 So. 2d 1205 (Fla. 3d DCA 2008) (Court could not indulge in modification of the unambiguous express terms).

Maryland courts use the “objective theory of contract interpretation” to determine “from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.” Dennis v. Fire & Police Emp’rs’ Ret. Sys., 390 A.2d 737 (Md. 2006). Dennis held that the test is not what the parties to the contract intended it to mean, but what a reasonable person in the parties’ position would have thought it to mean. In the case of Highland Consulting Group, Inc. v. Soule, 2020 WL 1272516 (S.D. Fla. March 17, 2020), the district court, applying Maryland law, addressed whether the defendant complied with the contractual requirement to return the company’s property upon termination of employment. The former employee returned the property to the company only in response to a discovery request in the lawsuit.  Soule held that no reasonable person could have interpreted the phrase “[u]pon termination of employment,” to be satisfied only after a lawsuit was filed and only in response to a discovery request.  Soule considered this unambiguous phrase in by what a reasonable person in the parties’ shoes would have thought this phrase in the contract to mean. This standard is more arbitrary than the Florida standard, because it can encompass the subjective viewpoint of the trier of fact.

Published on:

Employee-plaintiffs face strict deadlines when bringing discrimination claims.  The 90-day deadline to file a lawsuit filing receipt of a right-to-sue letter from the EEOC can sometimes be extended if the receipt of the letter was delayed.  A recent case before the United States Eleventh Circuit Court of Appeals explained that these time extensions will not be extended if the delay in receipt was caused by the plaintiff.  An employer can prevail in summary judgment and avoid trial if it can show that the lawsuit was filed late because of a matter that was within the control of the plaintiff. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims in include alleged employment retaliation as well as claims for overtime wages and other related claims.

A prerequisite for filing a discrimination lawsuit is for the employee to file a complaint with the EEOC or equivalent state agency such as the Florida Commission of Human Relations.  “An employee must exhaust administrative remedies before filing a complaint of discrimination under Title VII of the Civil Rights Act and Title I of the Americans with Disabilities Act.”  Stamper v. Duval County Sch. Bd., 863 F.3d 1336, 1339 (11th Cir. 2017); Zillyette v. Capital One Fin. Corp., 179 F.3d 1337 (11th Cir. 1999) (“It is settled law that, under the ADA, plaintiffs must comply with the same procedural requirements to sue as exist under Title VII of the Civil Rights Act of 1964”).

The EEOC will then review the claim and may take action related to resolving the claim.  “If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action.”  42 U.S.C.A. § 2000e-5(b).  Additionally, the Commission may issue a right-to-sue letter if a decision has not been reached within 180 days.  42 U.S.C.A. § 2000e-5(f)(1). The right-to-sue letter gives the employee an opportunity to bring a private lawsuit.  The plaintiff has 90 days from receipt of the right-to-sue letter to file his complaint.  42 U.S.C. § 2000e-16.  “[S]tatutory notification is complete only upon actual receipt of the right to sue letter.”  Kerr v. McDonald’s Corp., 427 F.3d 947 (11th Cir. 2005).  This is receipt by either the plaintiff or one of his representatives.  Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) (“§ 2000e–16(c) requires only that the EEOC notification letter be ‘received’; it does not specify receipt by the claimant rather than by the claimant’s designated representative”).

Published on:

An employee can make a claim of unlawful retaliation under federal and Florida anti-discrimination law when he or she complains about racial discrimination, and then is subsequently passed over for a promotion.  Actually proving such a claim, however, can be extremely difficult for the employee when the employer expresses a non-discriminatory reason for refusing to promote the employee. Cases interpreting Title VII of the Civil Rights Act of 1964 require the plaintiff to prove that the employer’s explanation was pretextual and that no reasonable person would have selected the other candidate. These are critical hurdles put in place by the court to protect employers from employees who are simply dissatisfied with an employer’s decisions. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims in include alleged employment retaliation as well as claims for overtime wages and other related claims.

Title VII makes it unlawful for employers of 15 or more employees to “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Furthermore, Title VII makes it unlawful for an employer to retaliate against an employee for attempting to exercise his rights under Title VII. 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment […] because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, […] under [Title VII]”). Accordingly, an employee can prevail on a claim of retaliation “by showing ‘(1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) there is some causal relation between the two events.’” Sridej v. Brown, 361 Fed. Appx. 31 (11th Cir. 2010).

Not every employer’s action qualifies as being material enough to support a claim of retaliation. The United States Supreme Court has held that Title VII is not “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc.,523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). “An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Id. The alleged failure to promote an employee to a position that he is qualified for is sufficiently material to support a claim of retaliation. E.g. Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (finding that the employee can make a prima facie case of discrimination if he establishes a causal link with the protected activity and the failure to promote).

Published on:

In defense against an employment lawsuit asserting discrimination, religious organizations can assert they are exempt from Title VII of the Civil Rights Act of 1964 based upon the “ministerial exemption.”  The exemptions permitted religious organizations were explored in a recent employment law article on the case Bostock v. Clayton County, Georgia, 17-1618, 2020 WL 3146686 (U.S. June 15, 2020).  Another recent Supreme Court case, Our Lady of Guadalupe Sch. v. Morrissey-Berru, 19-267, 2020 WL 3808420 (U.S. May 11, 2020), further expanded on the “ministerial exemption.” Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims in include alleged employment discrimination or retaliation as well as claims for overtime wages and other related claims.

Employment law has gradually collided over the years with religious freedoms guaranteed by the United States Constitution.  A great deal of court decisions have examined the proper balance between religious freedom rights versus prohibition of employment discrimination under Title VII.  This federal civil rights statute makes it unlawful for employers of 15 or more employees “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Title VII’s restrictions on discrimination do not apply equally to religious institutions.  Churches and other religious organizations can generally discriminate on the basis of religion in their hiring decisions.  Title VII explicitly provides an exception for religious organizations to discriminate on religious grounds. 42 U.S.C.A. § 2000e-1(a) (“[Title VII] shall not apply to an employer with respect […] to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities”)

Published on:

The federal statute 26 U.S.C. § 7434 permits a person to claim that another has filed a false tax return on his or her behalf, potentially subjecting an employer to a statutory penalty of $5,000 and attorneys’ fees.  Sometimes, disgruntled former employees and independent contractors (collectively referred to as “workers”) will use this statute to try to get leverage over an employer in a dispute.  Often the former workers will claim that they were misclassified as an independent contractor when they should have been classified as an employee.  While there are some cases which have found that “misclassification” of a worker as an independent contractor is a violation of § 7434, the view most courts have held that misclassification is not a violation of § 7434.  Courts have held this even when the business believed the misclassification as an independent contractor is improper.  Peter Mavrick is a Fort Lauderdale employment attorney who defends the interests of businesses and business owners against claims asserting alleged discrimination and retaliation (in federal and state court proceedings and before the EEOC, Florida Commission on Human Relations, and local government agencies enforcing anti-discrimination laws) and against claims for allegedly owed overtime wages, minimum wages, and other wages.

Determining whether a worker is an employee or an independent contractor is not always easy for Florida employers.  Under Florida law, there are ten factors to consider in making this determination, the “most important factor” of which is the “extent of control” that the hiring company has over the worker. McGillis v. Dep’t of Econ. Opportunity, 210 So. 3d 220 (Fla. 3d DCA 2017).  Accurately classifying whether a worker is an employee or an independent contractor can have important tax and liability consequences for a business; however, a Florida business should not be risking a violation of 26 U.S.C. § 7434 even if it misclassified a worker.

The federal tax fraud statute, 26 U.S.C. § 7434, allows a person to sue any other entity if that other entity issued a tax return which inaccurately represented the money being paid.  In part, § 7434 provides:

Contact Information