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Businesses often envision that litigation over trade secrets will generally involve a direct lawsuit by or against a person or company that steals or divulges such information in violation of a position of trust.  However, trade secrets can come under attack by way of a discovery requests in litigation where the owner of the trade secret may not even be involved in the lawsuit.  The following two recent appellate decisions are examples of the diligence required to safeguard trade secrets in litigation. Peter Mavrick is a Fort Lauderdale trade secret lawyer who represents businesses in trade secret litigation.

In Kelley v. Healthcare-IQ, Inc., 230 So. 3d 955 (Fla. 2d DCA 2017), former employees sued their former employer for breach of an employment contract.  The former employer filed counterclaims against them alleging disclosure of its trade secrets.  During discovery, the former employer served subpoenas for documents relating to the business practices of its competitor, who was the former employees’ current employer.  The employees asserted the trade secret privilege on its current employer’s behalf. At the court hearing on the privilege, there was no evidence taken and no findings were made by the judge. Nevertheless, the trial court allowed the discovery of the trade secret information.

The employees immediately appealed to prevent the irreparable harm that the disclosure of their employer’s trade secret information would cause to their employer.  On certiorari review, the Appeals Court reversed the decision because the trial court failed to follow the proper procedure, which required it to examine evidence and determine the answers to the following two prongs: 1) whether the information requested is in fact a trade secret and 2) if it is trade secret information, whether there is a reasonable necessity for the requesting party to have the information.

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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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Trade secrets are a form of intellectual property that are maintained in secrecy. There is no bright line rule that the courts use to determine whether an employee should be enjoined from utilizing a corporation’s trade secrets. The courts must first determine whether the information in question constitutes a trade secret. Courts also look to the reasonable measures taken by the trade secret owner to protect that information. Courts have not been clear on whether skills and knowledge an employee acquired during the course of his employment can be protected as trade secrets.  Peter Mavrick is a Palm Beach trade secret lawyer who has extensive experience with trade secret misappropriation.

A trade secret exists if it has economic value because of it secrecy. As a property right, trade secrets cannot be appropriated without the exclusive consent of the trade secret owner. If a trade secret is misappropriated and made readily available to other competing businesses, they can derive economic benefits from that information to the detriment of the trade secret owner.

In Lee v. Cercoa, Inc., 433 So. 2d 1 (Fla. 4th DCA 1983), Florida Fourth District Court of Appeal was confronted with the issue of whether the skills and knowledge a former employee acquired during the course of his employment are trade secrets. In Lee, the employer was engaged in the business of manufacturing and marketing polishing compounds for glass and plastic materials. The former employee worked for two years as a production manager for the employer. As a part of his job, the former employee learned about the combination of certain chemicals and products to formulate polishing compounds. When the employer learned that the employee was going to use the information he acquired during his employment to begin manufacturing his own glass polishing compound, the employer terminated the employee and filed a lawsuit to enjoin the employee from using trade secrets belonging to the employer.  The former employee contended there was no valid agreement between him and the employer prohibiting him from disclosing or using such trade secrets. The former employee further contended that the manufactured glass polish compounds were derived from major elements and that those processes were well known to others in that field. The trial court granted the employer’s injunction preventing the former employee from utilizing the corporation’s trade secrets. The former employee then appealed that decision.

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If an employer can successfully meet their burden and establish the necessary elements for a valid non-compete agreement, the court will likely grant an injunction to protect the employer’s legitimate business interests. The injunction will only be granted if it is determined that the former employee breached the valid non-compete agreement. Once this is determined, the injunction will prohibit the former employee from engaging in the alleged harmful conduct for a specified period. The court has the discretionary power to determine what period the injunction should be measured from. The injunction could be measured from the date of the employee’s termination, or from the date of the court order. Peter Mavrick is a Fort Lauderdale non-compete lawyer who has extensive experience dealing with non-compete agreements and claims for injunctive relief.

The court’s decision to grant or deny a motion for injunctive relief is purely discretionary. An injunction is viewed as an extraordinary remedy that requires the court to balance certain factors. Particularly, the court will balance the possibility of irreparable harm to the employer, and the inadequacy of damages that would result if the injunction were not granted. If a court finds that the employee did violate a valid non-compete agreement, the court will also look to see whether the restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interests of the employer.

In Anakarli Boutique, Inc. v. Ortiz, 152 So. 3d 107 (Fla. 4th DCA 2014), Florida’s Fourth District Court of Appeal was confronted with the issue of how the injunction period should be measured.  In Ortiz, the employer brought an action against a former employee for breach of a two-year non-compete agreement, and filed a motion for temporary injunction. The former employee allegedly violated her non-compete agreement with the employer and left the company to open her own competing business near the company’s location. The trial court denied the employer’s motion for temporary injunction. The trial court reasoned that the two-year non-compete period elapsed when the former employee became an independent contractor and it expired before she left to start her own competing business. The employer rebutted the trial court’s reasoning and contended that the two-year non-compete period should have started from the time the former employer left. The employer then appealed.

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Non-compete agreements serve to protect an employer’s business interests and prevent employees from engaging in unfair competition. When a business sells its assets, merges with another company, or dissolves entirely, the ability to assign a non-compete agreement is affected differently. Peter Mavrick is a Fort Lauderdale non-compete lawyer who has extensive experience dealing with non-compete agreements and their assignability.

Florida’s Fourth District Court of Appeal in Magner Intern. Corp. v. Brett, 960 So. 2d 841 (Fla. 4th DCA 2007), was confronted with the issue of whether a corporate successor could enforce the non-compete agreement of the former employer. The corporate successor sought an emergency motion for temporary injunction to enforce the former employer’s non-compete agreement. In response to the corporate successor’s motion, the employee alleged the following: (1) that the former non-compete agreement was no longer valid because the corporation had been dissolved; (2) two separate corporations had been formed; and (3) as a result of the dissolution his non-compete agreement had not been properly assigned to the corporate successor. The Seventeenth Judicial Circuit Court ruled in favor of the employee and denied the corporate successor’s emergency motion because there was no standing to enforce the provisions of the non-compete agreement. The corporate successor then appealed.

In Magner, a Connecticut based corporation was in the process of a corporate reorganization and separation. Originally, the corporation contained two divisions, a domestic division and an international division.  As a part of the Reorganization Plan, all of the assets from the international division were transferred to the newly organized Florida corporation. Since the original non-compete agreement specifically stated that the Employment Agreement “shall be interpreted and enforced in accordance with the laws of the State of Connecticut,” the Florida courts applied Connecticut law. Under Connecticut law, non-compete agreements may be assigned upon the sale of a business or automatically assigned where the entire business is sold to another entity. The reason being that an employee’s covenant not to compete is “an assignable asset of the employer.”

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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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