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Articles Tagged with Miami Dade Employment Discrimination Attorney

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Some employers might wish to know whether a job applicant or current employee previously filed worker’s compensation claims.  At first glance, such information might seem relevant and even useful to employers.  For example, an employer in an accident-prone industry might want to know if the job applicant has a history of repeatedly filing worker’s compensation claims shortly after beginning his or her employment.  However, it is important that employers understand the liability that could result from using an applicant/employee’s previous worker’s compensation claims as a basis for making employment decisions.

Using an applicant/employee’s worker’s compensation claim to make adverse employment decisions could result in criminal liability for the employer.  Under Florida law, it is a first degree misdemeanor to knowingly fire an employee or refuse to hire an applicant because the applicant/employee filed a worker’s compensation claim.

Employers could also face civil liability if they fire, threaten to fire, intimidate, or coerce an employee because the employee filed a worker’s compensation claim.  Additionally, employers could face civil liability if they fire an employee after learning that the employee filed a worker’s compensation claim against a previous employer.

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The Fair Labor Standards Act (“FLSA”) not only requires that employers pay minimum and overtime wages, it also prohibits employers from retaliating against their employees for complaining about their wages.  The FLSA makes it unlawful for employers to “discharge or in any manner discriminate against any employee because such employee has filed a complaint or instituted … any proceeding under or related to [the FLSA].”  29 U.S.C. § 215(a)(3).  To establish a case for retaliation under the FLSA, an employee must prove three elements: (1) the employee engaged in protected activity under the FLSA, (2) the employee subsequently suffered adverse action by the employer, and (3) a causal connection existed between the protected activity and the adverse action.

A “protected activity” can be either formal or informal.  For example, if the employee formally files a complaint against the employer in court alleging unpaid wages, the employer cannot thereafter fire the employee for filing that complaint.  However, “informal” complaints could also lead to an FLSA retaliation claim.  For example, the employee may orally complain to the employer about unpaid overtime wages.  If the employer thereafter fires or takes other adverse action against the employee, the employer could be held liable for unlawfully retaliating against the employee.  The bottom line is: if the employee makes some form of complaint (either written or oral) that puts the employer on notice that the employee is asserting his or her rights under the FLSA, then the employee’s complaint will likely be considered “protected activity.”  The employee does not need to mention the FLSA by name.  However, the employee’s complaint also cannot be a general grievance; it must be sufficient in both content and context to put the employer on notice that the employee was asserting his or her rights under the FLSA.  A federal court in Florida recently found that the employees’ complaints that they were “improperly paid” were too vague to constitute “protected activity.”  Barquin v. Monty’s Sunset, L.L.C., 2013 U.S. Dist. LEXIS 144076, at *8-9 (S.D. Fla. Oct. 2, 2013).

An “adverse action” is any action taken by the employer that causes some injury or harm to the employee.  The most straight-forward example of “adverse action” is an employer terminating or firing the employee.  However, demotions or pay cuts could also constitute “adverse action.”  Other employment actions, such as job transfers or reassignments, will generally not be considered “adverse actions” on their own, but could rise to the level of “adverse action” under certain circumstances.  In general, if the employer’s actions would dissuade a “reasonable worker” from making or supporting a charge against the employer, then the employer’s actions would likely be considered “adverse.”

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