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Articles Posted in Employment Law

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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:

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The recent United States Supreme Court case, Bostock v. Clayton County, Georgia, 17-1618, 2020 WL 3146686 (U.S. June 15, 2020), held that lesbian, gay, bisexual, and transgender (LGBT) employees are protected by Title VII of the Civil Rights Act of 1964 (Title VII).  While the holding may be considered groundbreaking by some LGBT advocates, the case does not represent a fundamental change in law from the perspective of Florida employers.  Florida employers that can show that they have legitimate non-discriminatory reasons for their employment decisions can successfully defeat claims of workplace discrimination regardless as to whether the claimed protected class is race, sex, or any other protected class.  Peter Mavrick is a Fort Lauderdale employment attorney who defends businesses and their owners against labor and employment lawsuits, including lawsuits claiming retaliation and discrimination and wages in federal and Florida state courts and charges of discrimination with the EEOC, Florida Commission on Human Relations, and city and county agencies.

Title VII 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).  The Supreme Court’s Bostock decision interpreted the meaning of the statutory term “sex” in the federal anti-discrimination statute.

Before Bostock, federal appellate courts disagreed as to the statutory meaning of “discrimination on the basis of sex” as this wording is used in the Title VII statute.  LGBT employees, like all other employees of a business employing at least 15 employees, have always been protected from discrimination on the basis of their sex.  However, it was not always clear what types of discriminatory actions qualified as “discrimination on the basis of sex” as opposed to discrimination on the basis of someone being homosexual or transgender.  The United States Court of Appeals for the Eleventh Circuit Court had previously held in Evans Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), that an employee who claimed she was discriminated against because she was a homosexual did not state a claim of sex discrimination under Title VII.  Evans held that homosexuals are not a protected class under Title VII.  Evans suggested that, had the plaintiff argued that the very same conduct was caused because of her non-conformity with gender-stereotypes, then it may have been unlawful, based on important Supreme Court precedent in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  The Supreme Court’s Price Waterhouse decision held that discrimination based on gender stereotyping is unlawful because it constitutes discrimination “on the basis of sex.”  The underlying facts in the Price Waterhouse case involved a female executive who was passed over for a promotion explicitly because she was not “feminine” enough.  The implication of Evans could yield an absurdity: plaintiffs could claim to be protected under Title VII as long as they presented their complaint of sex discrimination based on gender stereotyping rather than because being homosexual, even though the core issue consisted of discrimination based on being homosexual.

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As discussed in our previous articles about hostile work environment claims in sexual harassment cases and race discrimination cases, the severity and pervasiveness of harassment necessary to qualify as an unlawful hostile work environment is extraordinary.  Many employment claims are made based on an occasional joke made in poor taste and microaggressions.  Even if the employee’s allegations are true, they often do not meet the requisite degree of severity or pervasiveness to be considered by courts to be unlawful.  By showing that the conduct does not meet this high threshold, a Florida employer can successfully prevail against these types of claims.  A recent federal appellate case from the United States Eleventh Circuit Court of Appeals (the federal appellate court governing the federal trial courts in Florida), Fernandez v. Trees, Inc., 18-12239, 2020 WL 3053383 (11th Cir. June 9, 2020), has further clarified this standard.  Peter Mavrick is Fort Lauderdale employment attorney who defends employers throughout South Florida.  The Mavrick Law Firm has extensive experience in defending businesses and their owners against claims alleging employment discrimination, retaliation, and unpaid wages.

Title VII of the Civil Rights Act of 1964 prohibits employers with more than 15 employees from discriminating “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).

To establish a hostile work environment claim, a plaintiff must show that:

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The Family and Medical Leave Act (FMLA) was intended to allow “qualified employees” working for covered employers to be permitted unpaid medical leave arising from the employee or the employee’s family’s serious health conditions.  Sometimes, an employee who is terminated for other reasons will claim that the termination was unlawful retaliation for seeking benefits under the FMLA.  Employers who show the medical condition was not a “serious health condition” can prevail against these claims of FMLA retaliation.  Peter Mavrick is Fort Lauderdale employment attorney with extensive experience in defending businesses and their owners against claims alleging employment discrimination, retaliation, and unpaid wages.  The Mavrick Law Firm also defends the interests of employers in Miami, Boca Raton, and Palm Beach.

FMLA provides an employee the right to medical leave “[b]ecause of a serious health condition.” 29 U.S.C. § 2612(a)(1)(D).  Under federal law, employers are not allowed to interfere with “the exercise of or the attempt to exercise” that right to leave. 29 USC § 2615(a)(1). FMLA “prohibits an employer from retaliating against an employee who attempts to exercise any FMLA-created right.” Walker v. Elmore Cty. Bd. of Educ., 379 F.3d 1249 (11th Cir. 2004).  Additionally, “[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave.” 29 C.F.R. § 825.220(c).

These restrictions, however, do not give employees carte blanche opportunity to receive leave whenever they choose.  Instead, an employee must be eligible for leave, which typically requires that the employee worked at the employer for 12 months and worked at least 1,250 hours.  29 U.S.C. § 2611 (a).  An employee’s request to take FMLA after the time they become eligible is usually protected, but an employee is not protected by requesting leave at a time before their eligibility. Walker v. Elmore County Bd. of Educ., 379 F.3d 1249 (11th Cir. 2004) (“There can be no doubt that the request—made by an ineligible employee for leave that would begin when she would still have been ineligible—is not protected by the FMLA”).

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For an employer to be liable for retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), the employee must show the adverse action (the decision to terminate) was made because of the employee’s protected activity (the submission of discrimination complaint).  Employers may prevail against these retaliation claims by showing that the particular individual who made the decision to terminate was not personally aware of the protected activity.  Peter Mavrick is Fort Lauderdale employment attorney with extensive experience in defending businesses and their owners against claims alleging employment discrimination, retaliation, and unpaid wages.  The Mavrick Law Firm also defends the interests of employers in Miami, Boca Raton, and Palm Beach.

An employee claiming that he or she was unlawfully fired in retaliation for filing a discrimination complaint under Title VII must show that the termination was a result of a protected activity, such as a discrimination complaint.  Particularly, “a plaintiff must show: (1) that she engaged in an activity protected under Title VII; (2) she suffered a materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action.”  Kidd v. Mando Am. Corp., 731 F.3d 1196 (11th Cir. 2013).  To establish the requirement of a causal connection, a plaintiff-employee must show that the relevant decisionmaker was “aware of the protected conduct, and that the protected activity and the adverse actions were not wholly unrelated.” Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712 (11th Cir.2002); Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (finding that an employee-plaintiff must show that the adverse action would not have occurred without the protected complaint)

Because it can sometimes be difficult to determine the motivating cause for a decision-maker’s adverse action, courts may infer that the protected activity caused the adverse action when the adverse action occurs soon after the protected activity.   Bechtel Const. Co. v. Sec’y of Labor, 50 F.3d 926 (11th Cir. 1995) (“Proximity in time is sufficient to raise an inference of causation”).  Courts will permit plaintiffs to demonstrate causation “by showing close temporal proximity between the statutorily protected activity and the adverse employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 (11th Cir. 2007).  “[A]n employee’s termination within days … of his protected activity can be circumstantial evidence of a causal connection between the two.” Jefferson v. Sewon Am., Inc., 891 F.3d 911 (11th Cir. 2018).

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Employees who are terminated because of their poor performance or conduct sometimes accuse their former employers of employment discrimination.  Employment discrimination claims can be based on a variety of “protected categories,” such as race, national origin, sex, or age discrimination. Such claims are most commonly asserted under federal law (such as Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act) or under Florida law (under the Florida Civil Rights Act of 1992).  Courts, however, have placed important safeguards to prevent former employees from bringing claims of discrimination when they do not have evidence to support their claims.  Without evidence directly showing that there was a discriminatory motive behind the employee’s termination, the employee must usually show that he or she was treated differently than other similarly situated employees who are not members of the protected class.  Courts often will enter summary judgment against employees who neither present direct evidence of discrimination nor can identify relevant “comparator” employees who were allegedly treated better.  The employee-comparator who was allegedly treated better than the plaintiff must be “similarly situated” to the disgruntled employee “in all material respects.”  Peter Mavrick is Fort Lauderdale employment attorney with extensive experience in defending businesses and their owners against claims alleging employment discrimination, retaliation, and unpaid wages.  The Mavrick Law Firm also defends the interests of employers in Miami, Boca Raton, and Palm Beach.

Employers need not endure the time and expense of a full trial when a former employee makes a baseless claim of employment discrimination.  When a disgruntled employee does not have direct or statistical evidence of discrimination, the employer will likely prevail in summary judgment by showing that the disgruntled employee’s claimed employee-comparators are not sufficiently similar to the employee in all material respects.

“A plaintiff may prove a claim of intentional discrimination through direct evidence, circumstantial evidence, or statistical proof.”  Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253 (11th Cir. 2010).  Direct evidence of discrimination is evidence which unambiguously shows an employer had a discriminatory motive.  Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir.2004) (“[O]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination”).  When an employee does not have direct evidence or statistical evidence to prove discrimination, the employee must usually prove discrimination through the McDonnell Douglas test.  This test generally requires that the employee show that “(1) he was a member of a protected class; (2) he was qualified to do the job; (3) he was subjected to an adverse employment action; and (4) similarly-situated employees outside of the protected class were treated differently.”  Hester v. Univ. of Alabama Birmingham Hosp., 798 Fed. Appx. 453 (11th Cir. 2020).

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While the Americans with Disability Act (ADA) and Florida Civil Rights Act (FCRA) aim to ensure that disabled people are given adequate accommodations for their disability, both statutes only protect persons who are, or are perceived as, “disabled” as defined under the ADA.  Some terminated employees have sued their former employers under the ADA and FCRA claiming discrimination because related to a medical issue or need.  Yet, some of these lawsuits are meritless.  Merely because a person is affected by a medical condition does not mean that the person is protected under these statutes.  Instead, to be protected as disabled, an employee’s condition must limit a major life activity.  Employers have prevailed in cases where the alleged medical condition is not a disability under the ADA or FCRA.  Peter Mavrick is a Fort Lauderdale employment attorney who defends businesses and their owners in labor and employment litigation, including claims alleging discrimination, retaliation, and unpaid wages.  The Mavrick Law Firm also defends the interests of employers in Miami and Palm Beach.

Employees who are not disabled sometimes claim that their medical conditions qualify them for protection under the ADA or FCRA.  These employees can claim that they were discriminated against because of their medical condition or claim that their employer was not sufficiently accommodating concerning their condition.  A Florida employer can prevail in these types of cases by showing that the employee is not a “qualified person,” as that legal term is defined under the ADA or FCRA.  An employee is a “qualified person” to bring a complaint under the ADA or FCRA only if he or she has a disability that limits his or her “major life activities.”

“[T]he mere existence of a physical impairment does not constitute a disability under the ADA; the impairment must substantially limit a major life activity.”  Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998).  “Major life activities are enumerated by EEOC regulation as ‘functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’” Chenoweth v. Hillsborough County, 250 F.3d 1328 (11th Cir. 2001), quoting 29 C.F.R. § 1630.2(i); see also 42 U.S.C. § 12102 (describing similar wording in the ADA statute).

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This article is part three of a three-part series concerning employer defense against class action certification of employment law claims.  Peter Mavrick is a Fort Lauderdale employment attorney, who also represents businesses in Miami and Palm Beach. The Mavrick Law Firm defends the interests of businesses and business owners in employment law disputes, including lawsuits demanding wages and damages from alleged employment discrimination and retaliation.

Certain employment law claim may seek class action certification under Rule 23 of the Federal Rules of Civil Procedure.  The federal Fair Labor Standards Act (FLSA) does not allow such class action claims for overtime or minimum wages, but instead has its own procedure called “collective actions.”  “The certification requirements for a Rule 23 class action are more demanding” than the collective action process under the FLSA.  Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016).  A plaintiff seeking to certify a class must first show that the case meets the prerequisites of Rule 23(a), namely:

(1) the class is so numerous that joinder of all members is impracticable;

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This article is part two of a three-part series discussing how employers may successfully challenge class certification of lawsuits seeking overtime and minimum wages.  The federal Fair Labor Standards Act (FLSA) sets forth a unique procedure of “collective actions,” instead of “class actions.”  A collective action requires cumbersome procedures to get putative plaintiffs to join the lawsuit and person seeking to join the case must file with the court a written consent to join the case.  29 U.S.C.A. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought”).  Peter Mavrick is a Fort Lauderdale employment attorney and a Miami employment attorney who defends the interests of businesses and business owners in employment law disputes, including lawsuits demanding wages and damages from alleged employment discrimination and retaliation.

At the initial stage of an FLSA collective action, a court will consider whether to grant “conditional certification.”  Conditional certification is a legal decision that will allow a plaintiff’s lawyer to seek discovery of other possible plaintiffs, and invite potential plaintiffs to join the lawsuit.  This is a very important threshold legal decision, and strategically an employer will want to work to persuade the Judge to refuse conditional certification.  A court will grant conditional certification if a plaintiff demonstrates a reasonable basis to believe that: (1) there are other employees of the Defendant who desire to opt-in and (2) that these other employees are “‘similarly situated’ with respect to their job requirements and with regard to their pay provisions.” Dybach v. State of Fla. Dep’t of Corrs., 942 F.2d 1562 (11th Cir.1991); see Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016) (“To maintain an opt-in collective action under § 216(b), plaintiffs must demonstrate that they are ‘similarly situated”).  The employee-plaintiff has “the burden of demonstrating a reasonable basis for crediting [his] assertions that aggrieved individuals existed in the broad class that [he] proposed.”  Haynes v. Singer Co., Inc., 696 F.2d 884 (11th Cir.1983).  Opt-in plaintiffs “need show only that their positions are similar, not identical, to the positions held by the putative class members.” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001).  While there is no bright line test in determining whether plaintiffs are sufficiently similar, the more legally significant differences that exist among the opt-in plaintiffs, the less likely it is that the court will determine that the group of employees is similarly situated.  Anderson v. Cagle’s, 488 F.3d 945 (11th Cir. 2007).

A plaintiff must also show that there are other employees who wish to opt-in to the suit before a collective action may be certified.  Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562 (11th Cir.1991).  In making this showing, a plaintiff cannot rely on speculative, vague, or conclusory allegations.  Alvarez v. Sun Commodities, Inc., 12-60398-CIV, 2012 WL 2344577 (S.D. Fla. June 20, 2012).  An employer may prevail and avoid conditional certification by providing affidavits which are not sufficiently rebutted by the plaintiff’s affidavits.  Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir.1996); Kubiak v. S.W. Cowboy, Inc., 2014 WL 2625181 (M.D. Fla. June 12, 2014) (an employer may prevail on decertifying the class by showing that only a relatively small proportion of members of a class wish to opt-in).  The Mavrick Law Firm has successfully defended attempted collective actions by proving to federal and state Judges that the plaintiffs have not presented sufficient evidence that there is a true class of similarly situated plaintiffs.

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This article is part of a three-part series discussing the ways that employers may defend against measures taken by employee-plaintiffs who sue their employers to bring in additional plaintiff-employees into the lawsuit.  Part one of this series defines and distinguishes between Fair Labor Standards Act (FLSA) collective actions and class action claims.  Part two describes how an employer may defend against an attempt to bring an FLSA collective action.  Part three describes how employers may counter an employee-plaintiff’s attempt to certify a class of employees for a class action suit.  Peter Mavrick is a Fort Lauderdale employment attorney who defends the interests of businesses and business owners in employment law disputes, including lawsuits demanding wages and damages from alleged employment discrimination or retaliation.

Employees suing for their wages may attempt to sue on behalf of both themselves and other similarly situated employees.  For claims under the FLSA, former employees sometimes file lawsuits seeking to sue on behalf of other employees as a “collective action.” In other words, the plaintiff seeks to bring other former or current employees into the lawsuit. For claims in other areas of law, such as under the Florida Minimum Wage Act, an employee may bring a “class action,” which is a process by which all similarly situated employees are included in the suit unless they choose to opt-out.  The collective action and class action lawsuits seek to join more employee-plaintiffs into a lawsuit than would have otherwise joined it without the certification of a class.   The more employees who are plaintiffs, the greater the exposure to the Florida business.   A Florida business and their owners are not defenseless against a collective or class action because the employer can demonstrate to the court that the collective or class actions are not proper.  The Mavrick Law Firm has successfully defended Florida businesses from their employees improperly bringing collective and class actions against them.

Both collective actions, under 29 U.S.C. 216(b), and class actions, under Fed.R.Civ.P. Rule 23(b)(3), give “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources” and allow for “efficient resolution in one proceeding of common issues of law and fact arising from the same alleged [unlawful] activity.” Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165 (1989).  Both collective and class actions accomplish this through different means.  When a collective action is first certified under the FLSA, court allow the plaintiff-employee, under supervision of the Judge, to send to all potential members of the class an offer to opt-in to the litigation.  This obviously makes it more likely that employee-plaintiffs will join the lawsuit.  By contrast, in a Rule 23 “class action,” all qualifying persons automatically become members of the class unless they opt-out of the action.  See Fed.R.Civ.P. Rule 23(c)(2)(B)(v). As the federal Eleventh Circuit Court of Appeals, which governs federal court decisions in the State of Florida, explained in the case Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016), “[t]his ‘opt-out’ requirement is what makes a Rule 23(b)(3) class action a ‘fundamentally different creature’ than a § 216(b) collective action, which depends for its “existence … on the active participation of [class members].”

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