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Articles Posted in Employment Law

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Certain types of employee complaints to an employer qualify as “protected activity.”  An employer that responds to a protected complaint by terminating, demoting, or otherwise taking an adverse employment action against the employee risks being sued for retaliation under Title VII of the Civil Rights Act of 1964 or the Florida Civil Rights Act of 1992.  For a complaint to qualify as protected activity, the employee must have a good faith and objectively reasonable belief that the complained of conduct was in fact unlawful discrimination.  Peter Mavrick is Fort Lauderdale employment lawyer who has extensive experience in defending businesses and business owners against claims of discrimination.

To establish a prima facie case of retaliation under Title VII of the Civil Rights Act of 1964, an allegedly aggrieved employee must demonstrate: (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. Coutu v. Martin County Bd. of County Comm’rs, 47 F.3d 1068 (11th Cir.1995)

The conduct complained of need not actually constitute unlawful discrimination to qualify as “protected activity.”  An employee’s erroneous complaint concerning lawful conduct can still constitute protected activity when that employee has “a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956 (11th Cir.1997).  However, it is insufficient for a plaintiff “to allege his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.” Id. The reasonableness of a plaintiff’s belief that his or her employer “engaged in an unlawful employment practice must be measured against existing substantive law.” Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir.2010).

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While courts may allow employees to bring claims of “reverse discrimination” concerning sex, race, or religion, an employee may not bring a claim of “reverse” age discrimination under current interpretations of the Federal Age Discrimination in Employment Act (“ADEA”) or the Florida Civil Rights Act (“FCRA”).  The different way that age is treated when contrasted against other protected classes is not directly found in the ADEA or the FCRA, but rather in the cases interpreting these anti-discrimination statutes.  Peter Mavrick is Fort Lauderdale employment lawyer who has extensive experience in defending businesses and business owners against claims of discrimination.

The term “reverse discrimination” refers to a circumstance where a member of a class of persons who have historically not been discriminated against claims to have suffered discrimination because of his or her membership in that class.  Examples of reverse discrimination would include a Caucasian person claiming racial discrimination, a Christian claiming religious discrimination, or a man claiming sex discrimination.  Generally, Federal and Florida courts allow claims of reverse discrimination in most contexts. See, for example, McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (“Title VII of the Civil Rights Act of 1964 prohibits the discharge of “any individual” because of “such individual’s race,” 42 U.S.C. s 2000e-2(a)(1) (statutory terms are not limited to discrimination against members of any particular race); Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991) (circumstance where white male police officers sued claiming that department diversity policies illegally discriminated against them).  This symmetry is not so for claims of age discrimination.  The relatively young may not lawfully claim that an employer has discriminated against them in favor of the relatively old under current interpretations of the ADEA or FCRA.

By statutory wording, both the ADEA and FCRA appear to limit discrimination on the basis of age, regardless of whether the claimant is relatively old or relatively young.  The ADEA states that:

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Contracts that restrict or prohibit competition during or after the term of employment are enforceable, “so long as such contracts are reasonable in time, area, and line of business…” Florida Statute § 542.335. A non-compete provision that prohibits a doctor from seeing any patients from medical practice that formerly employed him/her, is not overbroad, provided that the geographic area of the limitation is reasonable. Peter Mavrick is a Miami non-compete lawyer and employment litigation lawyer who has significant experience in non-compete litigation, including injunction proceedings.

In Supinski v. Omni Healthcare, P.A., 853 So. 2d 526 (Fla. 5th DCA 2003) Dr. Edward Supinski (“Dr. Supinski”) was recruited by Omni Healthcare, P.A. (“Omni”) for the company’s medical practice in Brevard County, Florida. Dr. Supinski was relocated from Ohio to Florida for the position with Omni.  Omni was a physician owned multi-specialty practice operating in central and southern Brevard County, and the Melbourne area. Omni and Dr. Supinski negotiated an employment agreement (“contract”) with a two-year duration, which automatically renewed unless terminated by either party 180 days before the termination date. The contract contained a non-compete provision that barred Dr. Supinski from competing with Omni within a ten-mile radius of Omni’s offices in Brevard County, for two years after termination of his employment. The contract also contained a non-solicitation provision that barred Dr. Supinski from soliciting Omni’s patients and employees.

Omni assisted Dr. Supinski in becoming credentialed by various managed care organizations, helped him gain staff privileges at hospitals, hired his staff, advertised his practice, and aided him in establishing a patient base. About one month before the end of the initial two-year term of the contract, Dr. Supinski sent Omni a letter stating that he would not renew his employment agreement.  Immediately after the termination of his employment with Omni, Dr. Supinski opened his new practice four miles from the Omni office where he previously worked. Omni filed a lawsuit against Dr. Supinski for breach of contract, failure to provide the minimum notice of non-renewal, and violation of the non-compete provision. Omni sought an injunction against Dr. Supinski, pursuant to Florida Statute § 542.335.

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The Florida Arbitration Code provides businesses with flexibility in resolving their conflicts through arbitration. Arbitration is an immensely popular method of conflict resolution for Florida business litigation and employment litigation.  Arbitration can generally help resolve disputes more quickly than litigation.  However, parties to arbitration sometimes need court intervention via “provisional remedies,” i.e., a court ruling providing interim relief to protect one of the parties in a conflict before the entire dispute can be decided by the arbitrator.  Florida Statutes section 682.031(1) specifically contemplates provisional remedies before an arbitrator is appointed.  The purpose of these provisional remedies is to allow judicial intervention when there is a real emergency that cannot be easily addressed in arbitration due to delays sometimes inherent in the arbitration process.  For example, the arbitration process requires consent of all parties to proceed, and there are sometimes delays in getting the process started especially when one of the parties is uncooperative.  An emergency request for a temporary injunction, by its very nature, is exactly the type of matter that § 682.031(1) was designed to protect. Peter Mavrick is a Miami non-compete attorney and employment attorney who has extensive experience representing the interests of businesses and business owners.

The authority for a court’s ability to adjudicate a Motion for an Emergency for Temporary Injunction is found in § 682.031, Florida Statutes, which provides that:

(1) Before an arbitrator is appointed and is authorized and able to act, the court, upon motion of a party to an arbitration proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitration proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.

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Any employee claiming illegal sex discrimination must show that an employer took an adverse employment action, such as hiring, firing, promoting, or discipling an employee, and that action was motivated by the sex of the employee.  Avoiding sex discrimination claims is complicated by the fact that the definition of “sex” as it is understood in Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act has steadily changed since its inception more than 50 years ago. The Supreme Court is expected to reinterpret the law as it pertains to applicability of antidiscrimination laws to LGBT employees, which may retroactively affect controversies involving LGBT employees. Peter Mavrick is a Miami employment lawyer who regularly defends businesses and management against employment discrimination accusations, claims, and lawsuits.

The rules governing sex discrimination are based upon the interpretation of civil rights employment law at the time that a case is pending.  This determination by a court often happens years after the alleged conduct that forming the basis of the claim. This means that it is impossible for a Florida employer to definitively know the rules that apply for its employees at any given time, because the rules that govern Florida employers, today, are governed by the law as it will be interpreted in the future.  Florida employers would be wise to be careful and avoid taking an action that could become illegal in the future, particularly in areas of law which are still developing, such as civil rights employment law concerning gay, lesbian, and transgender employees.

When Title VII of the Civil Rights Act was enacted in 1964, the law was generally interpreted so that discrimination on the basis of sex meant that employers must not bar women from applying – a common practice at the time.  Courts have steadily expanded that definition.  For example, in 1986, the Supreme Court affirmed that sexual harassment was illegal sex discrimination in Meritor Savings Bank v. Vinson, 477 US 57 (1986).  Until the decision in Meritor it had been an open question as to whether an employee could even sue for sexual harassment for almost a decade.  In 1989, the Supreme Court decided Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), when a female executive was denied a promotion because she was allegedly not feminine enough.  The Supreme Court found that this sort of conduct was in reality sex-based discrimination because discrimination based on stereotypes about what a man or a woman should be was, in reality, discrimination on the basis of sex.

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Employers in litigation against their employees face the challenge of not only dealing with the claims made by those employees, but the threat of being left to pay the attorneys’ fees bill of their opponents. Employers can mitigate that risk, and sometimes even turn the tables and win their attorneys’ fees from their former employees, but it requires a prudent and careful approach.   Peter Mavrick is a Miami employment lawyer and non-compete lawyer who has extensive experience in representing the interests of businesses and business owners.

Florida courts generally follow what is commonly known as the “American Rule,” which means that each party is responsible for its own, respective attorneys’ fees.  There are, however, special exceptions to that rule in the employment law context.  For example, federal law provides a one-sided fee shifting in favor of employees who prevail against their employers under the Fair Labor Standards Act in overtime, minimum wage, and in retaliation cases.  In such cases, the employees “shall” be entitled to an award of their attorneys’ fees incurred in obtaining that recovery of the allegedly owed wages.  29 U.S.C. § 216(b).  By contrast, in the context of non-compete agreements, Florida law is even-handed in allowing the winning side to recover legal expenses from the losing party.  Florida’s non-compete statute allows the prevailing employer or employee to recover legal expenses incurred in securing victory.  Florida’s noncompete statute, § 542.335(k), Florida Statutes, provides in pertinent part: “In the absence of a contractual provision authorizing an award of attorney’s fees and costs to the prevailing party, a court may award attorney’s fees and costs to the prevailing party in any action seeking enforcement of, or challenging the enforceability of, a restrictive covenant.”  Since the use of the word “may” in the statute has been interpreted by Florida courts to be permissive but not mandatory, most companies include in their noncompete agreements provisions that state that attorneys’ fees shall be awarded to the prevailing party, to make the recovery mandatory for the prevailing party a requirement of the contract with the employee who signs the non-compete contract.

The issue of recovery of legal fees can become complicated in litigation when the parties each have a different basis to claim the right to recover attorneys’ fees from the opposing party.  In McBride v. Legacy Components, LLC, the employee had FLSA claims which provide mandatory recovery of attorneys’ fees to a prevailing pursuant to federal law.  Yet at the same time, the employer claimed that the employee had breached his noncompete agreement and therefore the employer was entitled to recover its own attorneys’ fees as the prevailing party under Florida law.  18-14105, 2019 WL 2538019 (11th Cir. June 20, 2019).  The parties in McBride were ultimately able to come to a partial settlement agreement to resolve their disputes.  The company would stop trying to enforce the noncompete and the employee would stop trying to collect his back wages and agreed to an injunction to prevent him from competing.  The only thing left open was the entitlement to attorneys’ fees.  The company, perhaps believing that the employee was not a prevailing party, agreed to leave the question of the employee’s entitlement to attorneys’ fees to be decided by the court.  However, the company failed to preserve its legal right to recover its legal expense as the prevailing party in the noncompete lawsuit it filed.  The employer could have preserved its legal claim for recovery of its legal expense as the prevailing party, but under the terms of its settlement agreement the employer agreed that only the employee could recover legal expenses.

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An aggrieved employee suing his or her employer for “sexual harassment” must present evidence that his workplace is such a hostile and abusive work environment because of his or her sex that it alters the conditions of his employment. An aggrieved employee does not make an actionable claim if he or she has suffered only isolated instances of sexual harassment.  Peter Mavrick, of the Mavrick Law Firm, is an employment lawyer who regularly defends businesses and management against employment discrimination accusations, claims, and lawsuits.

Title VII of the Civil Rights Act and the Florida Civil Rights Act (FCRA) bar discrimination against employees on the basis of sex.  An employer likely has likely committed unlawful discrimination if it bases the decision to hire, fire, promote, or discipline an employee based upon the employee’s sex.  However, an employee may also sue for sex discrimination if he or she is subject to a hostile work environment because of gender, which is a claim commonly called “sexual harassment.”

To prove a hostile work environment claim, an employee must show: (1) that he or she belongs to a protected group; (2) that he or she has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment was based on his or her sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable.

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Employers in Florida are free to use all lawful criteria in deciding which employees to promote within the business.  It is well known that Florida and federal law prohibit employment discrimination based on various characteristics, such as race, age, national origin, sex, or religious affiliation.  When considering employment discrimination lawsuits, Florida and federal courts have scrutinized  evidence employees have proffered in support of their claims of discrimination.  When the evidence does not logically prove discrimination, courts have dismissed the claims.  Peter Mavrick is an experienced employment lawyer who defends businesses and their owners against claims of employment discrimination and retaliation, including accusations of discrimination filed with the United States Equal Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR).

In Wesley v. Austal USA, LLC, 18-13775 (11th Cir. June 28, 2019), the Eleventh Circuit Court of Appeals recently affirmed summary judgment in favor of an employer in a lawsuit claiming that the employee did not get a job promotion because of race discrimination.  The employee contended that circumstantial evidence showed there was a discriminatory motivation behind the employer’s decision not to promote her.

An employee using circumstantial evidence to show that she was discriminated against must comply with the judicial doctrine called the “McDonnel Douglas burden-shifting framework.”   McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008).  The employee is required to demonstrate that he or she (1) is a member of a protected class; (2) was subjected to an adverse employment action (such as a decision not to promote); (3) qualified to do the job, and (4) was treated less favorably than “similarly situated employees.”  If the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action.  After the employer proffers the non-discriminatory reason, then the employee must show why this reason is not true or is otherwise a “pretext,” i.e., a reason given that is not the “real” reason.

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A plaintiff alleging intentional discrimination must present sufficient facts to permit a jury to rule in his or her favor. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) established a burden-shifting framework to test the sufficiency of the facts in plaintiff’s discrimination claim. Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by showing (1) that he or she belongs to a protected class, (2) that he or she was subjected to an adverse employment action, (3) that he or she was qualified to perform the job in question, and (4) that his or her employer treated “similarly situated” employees outside her class more favorably. If the plaintiff succeeds in making out a prima facie case, the burden of proof then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant carries its burden, then the plaintiff must demonstrate that the defendant’s proffered reason was merely pretext for unlawful discrimination. Peter Mavrick is an employment lawyer who has extensive experience with defending Florida employers sued for employment discrimination.

In a previous article, the Mavrick Law Firm discussed the new federal law standard for “similarly situated” comparators decided by the federal Eleventh Circuit Court of Appeals case of Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019).  As further detailed herein, Lewis v. City of Union City, Georgia helps Florida employers in their defense against baseless employment discrimination claims by imposing a heightened burden on employee plaintiffs: the federal appellate court required employee-plaintiffs to clearly articulate the “comparator” basis for the claim that allows employers to obtain dismissal early in the lawsuit instead of having to expend money in discovery to prove the claim was meritless from the very beginning.  In the words of the federal court decision, the appellate court required that the comparator analysis must take place in the plaintiff’s initial prima facie claim before the burden shifts to the employer-defendant.

The facts of the case are simple.  Jacqueline Lewis (“Lewis”) a former police officer, filed a lawsuit alleging that she was terminated based on her race, gender, and disability in violation of § 1981, Equal Protection Clause, Title VII, and Americans with Disabilities Act. The federal district court judge granted summary judgment to the defendant, concluding that Lewis’ proffered comparators did not qualify under the similarly situated standard. Lewis appealed. The Eleventh Circuit affirmed the judgment in part, reversed it in part, and remanded it to the district court. Defendant petitioned for rehearing en banc. On rehearing en banc, Lewis argued that the “similarly situated” comparison should be removed from the initial prima facie stage of the McDonnell Douglas analysis and instead moved into the latter “pretext” stage. In other words, Lewis contended she should not have to prove that her former employer treated comparators more favorably until after the former employer articulated a legitimate, nondiscriminatory reason for its termination of her employment. The Eleventh Circuit disagreed and ruled against the employee-plaintiff.

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A party seeking a temporary injunction to enforce a non-compete agreement must establish four elements: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) the threatened injury to the petitioner outweighs any possible harm to the respondent, and (4) the granting of a temporary injunction will not disserve the public interest. Avisena, Inc. v. Santalo, 65 So. 3d 14, (Fla. 3d DCA 2011).  The party seeking the injunction has the burden of persuasion of these four elements. Peter Mavrick is a Miami non-compete lawyer who has extensive experience representing clients in non-compete litigation, including cases seeking injunctions.

In Avisena, Inc. v. Santalo, 65 So. 3d 14, (Fla. 3d DCA 2011), Avisena, Inc., (“Avisena”), i.e., the former employer, sued Alberto C. Santalo (“Santalo”), its founder and former president and chief executive officer, along with his new company CareCloud Corporation (“CareCloud”) for alleged violation of a non-compete agreement.  Santalo had previously signed an employment agreement containing non-compete covenant that prohibited competition with his former employer. Santalo’s non-compete period was conditional because it depended on whether he voluntarily quit or instead whether he was terminated and what was the basis for the employment termination.

The employment agreement articulated three reasons that Santalo’s employment may be terminated either by the Avisena or by Santalo. Subsection 5.5 of the employment agreement described termination by Avisena without cause. This subsection stated that Santalo may be terminated by Avisena for any reason or for no reason. Subsection 8.9 of the employment agreement provided varying lengths of non-compete periods depending on which of the three subsections of Section 5 applied. Subsection 8.9 provided that if Santalo were terminated without cause, then the non-compete period would be the twelve-month period following Santalo’s termination from Avisena.

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