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Articles Posted in Employment Law

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Most discrimination claims against Florida employers are based on Title VII of the federal Civil Rights Act or under the Florida Civil Rights Act of 1992.  A relatively recent case in the federal appellate court that has jurisdiction over Florida federal courts held that claims based on sexual orientation are not covered by the federal law governing employment discrimination.  Peter Mavrick, of the Mavrick Law Firm, is a Fort Lauderdale employment lawyer who regularly defends businesses against employment discrimination accusations, claims, and lawsuits.

In Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), the Eleventh Circuit Court of Appeals determined that a lesbian employee who claimed she was discharged because of her sexual orientation did not have an actionable claim under Title VII of the Civil Rights Act of 1964.  The federal appellate court explained in pertinent part: “Evans next argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation.  She has not.” The Eleventh Circuit Court of Appeals did not allow a claim based on sexual orientation based on Fifth Circuit precedent in Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).  The appellate court in Blum stated that “[d]ischarge for homosexuality is not prohibited by Title VII.”

The Eleventh Circuit Court of Appeals also relied on case law from other federal appellate courts holding that sexual orientation discrimination is not actionable under Title VII.  As examples, the Eleventh Circuit cited Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not proscribe harassment simply because of sexual orientation”); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (“Simonton has alleged that he was discriminated against not because he was a man, but because of his sexual orientation. Such a claim remains non-cognizable under Title VII”); Bibby v Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation”); Wrightson v. Pizza Hut of Am., 99 F.3d 138, 143 (4th Cir. 1996), abrogated on other grounds by Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (“Title VII does not afford cause for discrimination based upon sexual orientation….”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (“[S]exual orientation is not a prohibited basis for discriminatory acts under Title VII”); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F3.d 701, 704 (7th Cir. 2000) (“[H]arassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.”); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (“Title VII does not prohibit discrimination against homosexuals”); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (“[A]n employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the *1257 harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of action”); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (“Title VII’s protections, however, do not extend to harassment due to a person’s sexuality…. Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation”).  Peter Mavrick is a Fort Lauderdale employment attorney who represents businesses and their owners.

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The Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation to certain employees. 29 U. S. C. §201. There are, however, exceptions to the rule. In automobile dealerships, “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles…” is exempt and not entitled to overtime wages. §213(b)(10)(A) ( “FLSA exemption”). The FLSA was meant to be construed narrowly, but statutory ambiguity still existed as to whether the exemption included service advisors. The United State Supreme Court in Encino Motorcars, LLC v. Navarro, U.S., 584 U. S. ____ (2018), in a 5-4 decision, held that service advisors fell within the exemption and, therefore, were not entitled to overtime pay. The main question considered was whether service advisors were considered “salesmen” primarily engaged in servicing automobiles. The lower appellate court found that service advisors were exempt from the FLSA overtime wage requirement, and consequently dismissed the action. Navarro appealed and the United States Court of Appeals for the Ninth Circuit reversed and held that service advisors did not fall under the FLSA exemption and were entitled to overtime wages. The US Supreme Court disagreed and on April 2, 2018, it held that service advisors were considered salesmen engaged in servicing automobiles and therefore were exempt from the FLSA overtime wage requirement. Peter Mavrick is a Fort Lauderdale employment lawyer who defends businesses against overtime wage lawsuits.

In Encino, current and former service advisors of Encino Motorcars, LLC (“Encino”), a Mercedes-Benz dealership, sued Encino for backpay.  They alleged Encino violated the FLSA by failing to pay them overtime wages. Encino argued that the service advisors fell under the FLSA exemption and were not entitled to overtime pay. The circuit court agreed with Encino and dismissed the lawsuit. The United States Court of Appeals for the Ninth Circuit reversed and held that service advisors did not fall under the FLSA exemption.  This allowed the service advisors to collect backpay. The Ninth Circuit used the FLSA Occupational Outlook Handbook (“Handbook”) as a guide and concluded that because “automobile service advisors” were listed in the Handbook as one of the job titles and not listed in the FLSA exemption, service advisors were not exempt. The Ninth Circuit “also determined that service advisors were not primarily engaged in “servicing” automobiles, which it defined to mean ‘only those who are actually occupied in the repair and maintenance of cars.’” Navarro, et al. v. Encino Motorcars, LLC, 845 F.3d 925, 931 (9th Cir. 2017). Furthermore, the Ninth Circuit held, “the exemption does not cover salesmen who were primarily engaged in servicing.

In its reversal of the Ninth Circuit’s opinion, the United States Supreme Court concluded that service advisors were “salesmen” who sold customers services for their vehicles and were also primarily engaged in servicing vehicles. The Supreme Court classified service advisors as integral to the servicing process, as they “mee[t] customers; liste[n] to their concerns about their cars; sugges[t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discov­ered); and explai[n] the repair and maintenance work when customers return for their vehicles.”

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Employers often face the situation where an employee seeks to return to work after medical leave but may no longer be able to handle the duties of his or her job. It is unlawful to terminate an employee for taking medical leave or for having a disability.  However, it is lawful for an employer to have a uniformly applied practice or policy that requires each employee to provide medical certification from the doctor that he or she is able to resume work. 29 U.S.C. §2614(a)(4).  The failure to provide that medical certification is a legitimate, nondiscriminatory reason to terminate employment.  Peter Mavrick is a Fort Lauderdale employment attorney who defend businesses accused of employment discrimination.

In the case of Diaz v. Transatlantic Bank, 367 Fed.Appx. 93 (11th Cir. 2010), a former employee sued her former employer alleging interference and retaliation in violation of the Family and Medical Leave Act of 1993 (FMLA) and discrimination and retaliation in violation of Americans with Disabilities Act (ADA). Diaz was a bank teller at Transatlantic Bank (“Bank”). Diaz took medical leave to recover from a severe knee injury. Transatlantic Bank requested documentation and medical updates concerning her condition during her leave and Diaz complied. Her injury prevented her from climbing into the high chairs used by bank tellers, so she informed the Bank that she was willing to work at any other position that did not required her to climb into those chairs.  When Diaz’s medical leave expired, she did not have clearance from her doctors to return to work, which resulted in her dismissal from the Bank.  She then filed her lawsuit claiming FMLA interference, discrimination and retaliation by the Bank.

In support of her FMLA interference and retaliation claims, Diaz argued that the proof of her medical clearance to return to work was in her doctor’s statements on her disability application that detailed the tasks that she could complete. The doctor’s statement indicated that she could complete every task of a bank teller except climbing into the high chairs. However, the trial court was not persuaded that the application was proof of medical clearance, because the form itself stated that she would not be able to return to work for weeks beyond her allotted medical leave.  The trial court found it to be unreasonable to ask an employer to determine if she was able to return to work based on a statement contained in an application for disability benefits.

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Managing overtime is a constant struggle for many businesses especially when the employee’s duties necessitate irregular work hours or the typical work shift simply cannot be anticipated with reasonable certainty.  Businesses that require on-call services can very easily find themselves paying an excessive amount of overtime to meet the demands of their clients with diminishing returns. Peter Mavrick is a Fort Lauderdale employment attorney who represents businesses in defense against lawsuits filed by employees.

Employers need to know that there is an exception to the federal overtime wage law.  Section 7(f) of the federal overtime wage law, i.e., the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(f), allows employers to negotiate a minimum weekly pay equivalent to 40 hours at a regular rate of pay, and up to but not more than 20 overtime hours for at least one and one-half times the regular rate of pay.

This type of compensation is known as a “Belo plan” based on the United States Supreme Court’s decision in Walling v. A.M. Belo Corp., 316 U.S. 624 (1942).  Under the Belo plan, a fixed payment of this kind is permitted when the employee’s duties necessitate irregular work hours and the total wages would vary widely from week to week if computed on an hourly rate basis.

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Under the federal overtime wage law, i.e., the Fair Labor Standards Act (“FLSA”), it is not always clear whether the law considers someone an “employee,” and it is not always clear who the law considers someone’s “employer.”  Some people, for example, perform services for others while remaining self-employed as independent contractors.  Different laws construe the terms “employee” and “independent contractor” differently.  A common issue in FLSA litigation `is whether the plaintiff is truly an “employee” or an independent contractor.  The consequences of this legal determination can be significant.  A determination that the person is not an employee can nullify his or her entire overtime wage claim.  Peter Mavrick is a Fort Lauderdale employment attorney who defends businesses against employment claims, including claims for wages.

The court of last resort for most federal law claims, including the FLSA, is the United States Court of Appeals for the Eleventh Circuit.  The Eleventh Circuit has issued legal instructions for trial court determinations of whether a person is an employee or independent contractor.  Using these jury instructions, Mr. Mavrick successfully represented a Fort Lauderdale employer in a jury trial victory.  The jury determined that Mr. Mavrick’s client never legally “employed” the plaintiff, and therefore owed him no overtime wages.  The Eleventh Circuit considers the following factors to determine the plaintiff’s legal status as employee or independent contractor:

(1)  Who controls the plaintiff’s work?  In an employer/relationship, the employer has the right to control the employee’s work, to set the means and manner in which the work is done, and set the hours of work. In contrast, an independent contractor generally must accomplish a certain work assignment within a desired time, but the details, means, and manner by which the contractor completes that assignment are determined by the independent contractor, normally using special skills necessary to perform that kind of work.

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Employers are faced with tough decisions every day with regard to their employees that could significantly affect the operation of their business.  Such decisions include hiring the right employees, firing problematic employees, choosing which employees should be promoted, and decisions concerning demotion of employees.  Employers have to be especially careful when making adverse employment decisions, such as firing or demoting, because such decisions could open the door for potential retaliation claims against the employer if the subject employee is a member of a “protected class.”  Title VII, specifically 42 U.S.C. § 2000e–3(a), makes it illegal for “an employer to discriminate against any of his employees … 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.” The ADEA contains a similar anti-retaliation provision. See 29 U.S.C. § 623(d)Peter Mavrick is a Fort Lauderdale employment attorney who has substantial experience with retaliation claims under both Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”), both of which have been discussed at length in prior articles.  (See Title VII and ADEA).  The requirements an employee must show to bring a retaliation claim under Title VII and/or the ADEA, as well as what an employer needs to demonstrate to defend against such a claim, were recently analyzed by the Eleventh Circuit Court of Appeals in Trask v. Sec’y, Dept. of Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016).

In Trask, the plaintiffs were female pharmacists in their 50s who had worked at the Department of Veterans Affairs (“VA”) for over ten years.  In 2010, the VA announced a nationwide treatment initiative that resulted in the reorganization of several VA treatment facilities, including the facility where the plaintiffs worked.  The reorganization involved the creation of new pharmacist positions to be filled internally and the elimination of certain pre-existing pharmacist positions, including the positions that the plaintiffs held.    The plaintiffs were not selected to fill the new pharmacist positions, and as a result filed discrimination claims with the Equal Employment Opportunity Commission (“EEOC”) based on gender and age.  Thereafter, the plaintiffs were reassigned to new positions and job duties.  Despite not affecting plaintiff’s pay or job grades, the plaintiffs believed their reassignments resulted in the loss of “prestige and responsibility.” Based on the foregoing, plaintiffs filed a lawsuit against the VA for, inter alia, retaliation under both Title VII and the ADEA, but the trial court granted summary judgment in favor of the VA on these claims.  Plaintiffs subsequently appealed.

According to Trask, the basic framework for retaliation claims under Title VII and the ADEA requires the plaintiffs to first establish a prima facie case of retaliation by proving that: (1) they engaged in statutorily protected conduct; (2) they suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression.  Once the plaintiffs have established a prima facie case, the employer then has an opportunity to articulate a legitimate, non-retaliatory reason for the challenged employment action.  Thereafter, the plaintiffs have the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct.  The appellate court first stated that it was questionable whether the plaintiffs could establish a prima facie case based on their reassignment because the reassignment did not result in any decrease in pay or grade.  Furthermore, the court found that the reassignment was not directly caused by the protected activity.  Nevertheless, the court held that even if plaintiffs had demonstrated a prima facie case, the trial court’s grant of summary judgment in favor of the VA was proper because the VA had articulated a legitimate, non-retaliatory reason for the reassignment.  Specifically, the VA asserted that the reassignment was needed because the reorganization eliminated plaintiffs’ prior positions and the plaintiffs were not chosen to fill the new pharmacist positions.  Moreover, the plaintiffs did not make any argument that the VA’s articulated reason was pretext for prohibited, retaliatory conduct.

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Florida’s private employer whistleblower act was enacted to protect employees from retaliation when they object to, refuse to participate in, or report certain unlawful or allegedly activities. Peter Mavrick is a Fort Lauderdale employment lawyer who has extensive experience in successfully defending employers accused of retaliation.

In Juarez v. New Branch Corp., 67 So. 3d 1159 (Fla. 3d DCA 2011), Florida’s Third District Court of Appeal was confronted with the issue of whether an employee was unlawfully terminated because she was a whistleblower. The employee in Juarez brought sued her employer and alleged she was terminated because of she opposed violence in the workplace. The employer moved for summary judgment and argued that the employee failed to her burden of proof. The Miami-Dade Circuit Court Judge ruled in favor of the employer.  The employee appealed.

The employee in Juarez was a female who worked in a dry-cleaning business. The employee was battered by a male employee over a dispute regarding improper ironing of a garment. At first the male employee tried to trip her after she notified the business owner that the employee was not performing his job properly. The following day tensions escalated as the coworker attacked her. Shortly thereafter the police were called, a report was filed, and a restraining order was sought against the co-worker. During the pendency of the restraining order, the co-worker was not working and the alleged whistleblower alleged that the business owner’s treatment of her changed. Upon expiration of the restraining order, the co-worker returned to work and the alleged whistleblower was fired. Her termination prompted the lawsuit against the employer for unlawful retaliation for “blowing the whistle” in violation of the Florida private employer whistleblower statute.

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Title VII of the Civil Rights Act of 1964 is a federal law which makes it unlawful to discriminate against a job applicant or employee based on their race, color, religion, sex, or national origin. This article provides an overview of the Faragher-Ellerth defense and how it can protect employers against claims for sexual harassment under TitleVII. Peter Mavrick is a Miami employment lawyer who has extensive experience dealing with Title VII claims of sexual harassment.

The Faragher-Ellerth defense comes from two landmark opinions delivered by the United States Supreme Court. The Supreme Court created the Faragher-Ellerth affirmative defense to provide employers a safe harbor from vicarious liability resulting from sexual harassment claims against a supervisory employee. The employer must satisfy two elements to successfully assert this defense: “(a) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775 (1998); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 765 (1998).

The United States Eleventh Circuit Court of Appeals in Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296–97 (11th Cir. 2000), analyzed the Faragher-Ellerth defense in connection with a claim for sexual harassment under Title VII. In Madray, two female employees alleged Title VII hostile environment sexual harassment and claimed the employer should not be entitled to use the Faragher-Ellerth defense. The employer rebutted their argument and moved for summary judgment alleging it established the requirements under the Faragher-Ellerth defense.

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The Fair Labor Standards Act (“FLSA”) establishes an employer’s obligations regarding the payment of overtime and minimum wages. The FLSA also contains various exemptions under which employees may not be entitled to overtime wages. One of these exemptions is the administrative exemption. Peter Mavrick is a Fort Lauderdale employment lawyer who has extensive experience dealing with the FLSA and its exemptions, including the administrative exemption.

There are several requirements that must be met for an employee to be exempt under the administrative exemption. To be employed in a bona fide “administrative capacity,” an employee must: (1) meet the compensation form and amount requirements; (2) have the primary duty of performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) have a primary duty that includes the exercise of discretion and independent judgment with respect to matters of significance. The general definition of “primary duty” is found at 29 C.F.R. § 541.103: “In the ordinary case it may be taken as a good rule of thumb that primary duty means a major part, or over 50%, of the employee’s time.”

In Saver v. Hyatt Corp., 407 So. 2d 228, 229 (Fla. 2d DCA 1981), Florida’s Second District Court of Appeals was confronted with the issue of determining whether an employee was performing office or non-manual work relating to the management of the employer’s business. In Saver, the employee was an assistant chief engineer who wore a uniform and spent most his time doing physical repair work with tools. Although, the administrative exemption was primarily intended for white collar employees, it does not completely prohibit performance of manual work by an administrative employee.

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The Florida Legislature enacted the Florida Civil Rights Act of 1992 with the intention of following the federal anti-discrimination law commonly known as Title VII of the Civil Rights Act of 1964. Both the Florida Civil Rights Act and Title VII of the Civil Rights Act prohibit certain types of employment discrimination. This article discusses whether the Florida Civil Rights Act prohibits pregnancy discrimination. Peter Mavrick is a Fort Lauderdale employment lawyer who has extensive experience in successfully defending employers accused of violating the Florida Civil Rights Act and Title VII.

Florida’s Fourth District Court of Appeal in Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), was confronted with the issue of whether pregnancy discrimination is prohibited by the Florida Civil Rights Act (“FCRA”). The employee is Carsillo brought an action against the city and alleged pregnancy discrimination and retaliation under the FCRA. The city moved for summary judgement and alleged that the FCRA does not prohibit pregnancy discrimination. The trial court ruled in favor of the city and the employee appealed.

The employee in Carsillo was a female firefighter/paramedic who had requested light duty within the fire department because of her pregnancy. Her request was granted, but it was not within the fire department and she initially objected. The employee then filed a lawsuit and alleged discrimination in violation of the FCRA because other employees with physical restrictions had been accommodated with light duty within the fire department.

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