Articles Posted in Labor – Employment Law

Published on: December 5, 2020

FORT LAUDERDALE NON-COMPETE AGREEMENTS: DELAWARE CHOICE OF LAW PROVISION IN FLORIDA CONTRACT

Noncompete agreements sometimes designate the laws of other states to govern the parties’ contractual obligations, even if the agreement is made in Florida. This is known as a choice of law provision. When these choice-of-law provisions are valid and enforceable, they can have significant repercussions on the results of noncompete litigation. Peter Mavrick is a Fort Lauderdale non-compete attorney, and also advocates for clients in Palm Beach, Boca Raton, and Miami, Florida. The Mavrick Law Firm represents clients in breach of contract litigation, trade secret litigation, non-compete agreement litigation, employment litigation, trademark litigation, and other legal disputes in federal and state courts and in arbitration.

Many corporations and limited liability companies throughout the United States are incorporated or organized under Delaware law, even though they may have no particular connection to Delaware. This is because there are several benefits that medium to large sized business can enjoy from Delaware incorporation. For example, intra-corporate disputes for Delaware corporations are adjudicated by the Delaware Court of Chancery which is a judicial body designed to quickly and effectively resolve such matters without a jury. Because of the attractiveness of Delaware incorporation, many corporations will often choose Delaware as a choice of law in their contracts. As a result, Florida courts will often adjudicate disputes under Delaware law.

When applying foreign law in Florida, courts “maintains the traditional distinction between substantive and procedural matters.” Siegel v. Novak, 920 So. 2d 89 (Fla. 4th DCA 2006). “Generally, when confronted by a choice of law problem, a court will apply foreign law when it deals with the substance of the case and will apply the forum’s law to matters of procedure.” Siegel v. Novak, 920 So. 2d 89 (Fla. 4th DCA 2006). This can be a critical issue when employers seek injunctions in non-compete matters. Florida courts will apply Florida law as it relates to the procedural issues, such as whether a temporary injunction should be issued, and foreign choice of law for the substantive law questions associated with that analysis, such as the element of whether there is a likelihood of success on the merits.

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Published on: May 24, 2020

DEFENDING FLORIDA EMPLOYERS: DEFEATING CLAIMS OF DISCRIMINATION

By Mavrick Law Firm

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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Published on: May 8, 2020

DEFENDING FLORIDA EMPLOYERS: DISABILITY DISCRIMINATION CLAIMS

By Mavrick Law Firm

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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Published on: May 3, 2020

DEFENDING FLORIDA EMPLOYERS: DEFEATING OVERTIME AND MINIMUM WAGE COLLECTIVE ACTIONS – PART THREE

By Mavrick Law Firm

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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Published on: April 22, 2020

DEFENDING FLORIDA EMPLOYERS: DEFEATING OVERTIME AND MINIMUM WAGE COLLECTIVE ACTIONS – PART TWO

By Mavrick Law Firm

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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Published on: April 15, 2020

DEFENDING FLORIDA EMPLOYERS: DEFEATING OVERTIME AND MINIMUM WAGE COLLECTIVE ACTIONS – PART ONE

By Mavrick Law Firm

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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Published on: March 13, 2020

DEFENDING FLORIDA EMPLOYERS: OVERTIME WAGE EXEMPTION FOR EMPLOYEES PAID COMMISSIONS, PART ONE

By Mavrick Law Firm

This article is part one of a two-part series on the commission-based employee overtime wage exemption under the Fair Labor Standards Act (FLSA). The FLSA, at 18 U.S.C. § 207, generally requires employees to be paid one and a half times their normally hourly rate when working more than forty hours in a week. However, this federal statute contains some nuances and exceptions that allow employers to avoid the requirement to pay overtime premium compensation. One of these exceptions is for commission-based employees who work for “retail or service establishments.” Peter Mavrick is a Fort Lauderdale employment attorney who defends Florida businesses and their owners against claims for overtime wages.

The FLSA (at 18 U.S.C. § 207(i)) explains the commission-based employee exemption:

No employer shall be deemed to have violated [overtime law] by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under [federal minimum wage law], and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee.

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Published on: February 26, 2020

DEFENDING FLORIDA EMPLOYERS: THE LEGAL DOCTRINE OF JUDICIAL ESTOPPEL AS A DEFENSE AGAINST EMPLOYMENT LAWSUITS

By Mavrick Law Firm

Employers may invoke the legal doctrine of judicial estoppel to prevent employees from suing their employers when those employees fail to disclose that claim in bankruptcy. In the recent case of Smith v. Haynes & Haynes P.C., 940 F.3d 635 (11th Cir. 2019), the United States Court of Appeals for the Eleventh Circuit, which governs Florida federal courts, clarified the test for application of the doctrine of judicial estoppel. Peter Mavrick is a Fort Lauderdale employment attorney who defends businesses against claims of discrimination and lawsuits seeking wages.

Judicial estoppel is an equitable doctrine that precludes a party from “asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir.2002). The purpose of judicial estoppel is “to protect the integrity of the judicial process by prohibiting parties from changing positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. 742 (2001).

This doctrine has been upheld in the context of statements made to the bankruptcy court. A debtor seeking shelter under the bankruptcy laws must disclose all assets, or potential assets, to the bankruptcy court. 11 U.S.C. §§ 521(1), and 541(a)(7). A pending lawsuit seeking monetary compensation qualifies as an asset. Parker v. Wendy’s Intern., Inc., 365 F.3d 1268 (11th Cir. 2004). The debtor must swear to, “any pending civil claims, and identifying any lawsuits he has filed against others.” Slater v. United States Steel Corp., 871 F.3d 1174 (11th Cir. 2017).

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Published on: February 15, 2020

DEFENDING FLORIDA EMPLOYERS: WORKER’S COMPENSATION RETALIATION CLAIMS

By Mavrick Law Firm

Florida law prohibits retaliation against an employee seeking worker compensation benefits. A recent Florida appellate decision allowed a worker compensation retaliation claim even though the employee never actually filed a worker compensation claim before termination of his employment. Peter Mavrick is a Fort Lauderdale employment attorney who defends businesses and business owners against claims of employment discrimination and retaliation and demands for wages.

Florida Statutes Section 440.205 states in pertinent part that: “[n]o employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.” The Florida Supreme Court’s precedent in Koren v. Sch. Bd. of Miami-Dade County, 97 So. 3d 215 (Fla. 2012), explained that to establish a claim for worker compensation retaliation an employee must prove the following elements:

1) the [employee] was engaged in protected activity;

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Published on: February 12, 2020

FLORIDA NON-COMPETE AGREEMENT LAW VERSUS NEW YORK LAW: PROTECTION OF CUSTOMER RELATIONSHIPS AND GOODWILL

By Mavrick Law Firm

Florida and New York’s non-compete laws are protective of business interests in customer relationships and goodwill. Due to the mobility of workers as well as the frequent overbreadth of non-compete covenants in today’s economy, there are often cases when the non-compete laws of more than one state may be implicated In the context of employment law, the Florida law and New York law differ differ in their concern for the burdens created by non-compete agreements on employees. Florida courts have found that businesses have a legitimate business interest in protecting customer relationships and goodwill from competition by former employees who gained substantial knowledge of its customers, their purchasing history, needs and preferences. Conversely, New York courts have held that the enforcement of a non-compete clause based merely upon the employee’s knowledge of the former employer’s customers is generally not protectable. Peter Mavrick is a Fort Lauderdale non-compete lawyer who has substantial experience with agreements restricting employment, solicitation, and other forms of competition.

Both states’ laws have a similar standard for evaluating the necessity of the protection intended for non-compete agreements. Under Florida law, the validity of non-compete clauses under Florida Statute 542.335 requires: “the employer to plead and prove (1) the existence of one or more legitimate business interests justifying the restrictive covenant and (2) that the contractually specified restraint is reasonably necessary to protect the established interests of the employer.” North American Products Corp. v. Moore, 196 F.Supp.2d 1217 (M.D. Fla. 2002) (emphasis added). Florida law allows a non-compete clause to be enforced as long as it is “reasonably necessary” to protect the established interests of the employer.

Under New York law, a non-compete agreement “will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.” BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999). The common law rule adopted by New York law holds that “[a] restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public.” BDO Seidman v. Hirshberg, 93 N.Y.2d at 392–93 (emphasis added).

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