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According to the U.S. Equal EmploymentOpportunity Commission, of the 99,412 new
charges of discrimination it received in Fiscal Year2012, allegations of employment retaliation underall of the federal statutes enforced by the EEOC ledwith 37,836, or 38.1% of all charges — a new high,continuing the upward trend.
A retaliation claim can arise when an employeeengages in some form of “protected activity” under a federal or state law and is then subjected to an“adverse employment action.” If the employee canshow the protected activity was causally connectedto the adverse employment action, his or heremployer may be liable under the applicable statute.However, each statute provides different remediesand may define “protected activity” and “adverseemployment action” differently.
A retaliation claim can be brought under an alarm-ing array of federal and state statutes, includingTitle VII of the Civil Rights Act of 1964, the AgeDiscrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, theGenetic Information Nondiscrimination Act, theFair Labor Standards Act, the Family and MedicalLeave Act, the Florida Civil Rights Act, the FloridaWhistleblower Act, and the Florida Workers’Compensation Act, among others.
Giving employers encouraging news, the U.S. Courtof Appeals for the Eleventh Circuit, which rules on cases from Florida, Georgia, and Alabama, hasissued some favorable decisions recently. For exam-ple, in Miller v. Roche Surety and Casualty Co., Inc.,2012 U.S. App. LEXIS 26364, the Court rejectedthe employee’s claim for unlawful retaliation underthe FLSA. The employee claimed she engaged inprotected activity when she requested the employerprovide her with time and a private place to expressmilk. The Court stated that, unlike under theFamily and Medical Leave Act, merely requesting anemployer comply with the FLSA is not “protectedactivity.” The employee must make a complaintabout a potential violation.
In another FLSA retaliation case, the Court upheldthe rejection of liquidated damages, holding that inretaliation cases, unlike overtime or minimum wagecases, liquidated damages are not mandatory and areleft to the discretion of the court. Moore v. ApplianceDirect, Inc., 2013 U.S. App. LEXIS 3047. A juryhad found the employer retaliated against itsemployees for filing a suit alleging FLSA violations.Before the plaintiffs filed their first lawsuit for over-time violations, the employer began converting allof its delivery drivers, except for the plaintiffs, fromemployees to independent contractors. In upholdingthe jury verdict, the trial court found the employer’sfailure to offer the plaintiffs an opportunity tobecome independent contractors was an “adverseemployment action” under the FLSA. However, it denied liquidated damages even though theemployer did not prove it acted in good faith, finding that liquidated damages are discretionaryin retaliation cases.
In Morgan v. Orange County, 2012 U.S. App. LEXIS10335, the Eleventh Circuit rejected an employee’sFMLA retaliation claim because he failed to followthe employer’s routine absence notification proce-dure. While employed with Orange County, theplaintiff told a supervisor who was not his immedi-ate superior that he would be absent from work thenext day due to an FMLA-related illness. He failedto report his continuing absence over the next fivedays. Following an investigation, the employerfound the plaintiff had violated its call-in proceduresfor reporting FMLA leave and had committed“fraud or dishonesty.” The plaintiff’s employmentwas terminated. Finding that the termination wasnot retaliation for requesting or taking FMLA leave,the Court upheld the termination for violating thecall-in procedures.
Finally, in Brush v. Sears Holdings Corp., 2012 U.S.App. LEXIS 6145, the Eleventh Circuit adopted the “manager rule” for Title VII and Florida CivilRights Act retaliation claims, concluding the retali-ation provisions do not make an employee’s mereexpressed disagreement with her supervisor’s actions
INSIDE THIS ISSUE:
Bill Proposed to ProhibitLocal Wage and Benefit Laws
Jackson Lewis News
DOL Publishes FinalRegulations AddressingMilitary Family LeaveProvisions
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A BULLETIN ON EMPLOYMENT, LABOR, BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP
Spring 2013All We Do Is WorkSM
Guard Against Retaliation Claims
"The hiring of a lawyer is animportant decision that should not be based solely upon advertisements.
Before you decide, ask us to send you free written informationabout our qualifications and experience." Rule 4-7.3, RulesRegulating the Florida Bar.
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Proposed to the Florida State Affairs Committeein February 2013, House of Representatives Bill
HB 655 seeks to prohibit any political subdivision,such as a county, municipality, commission, ordepartment, from enacting any local laws requiringemployers to provide any employment benefits thatare not otherwise required by state or federal law. Ifthis bill becomes law, ordinances such as the Miami-Dade Wage Theft Ordinance (effective February 28,2010) and proposed ordinances for paid sick time,such as those pending in Orange County andMiami-Dade, would become illegal.
Other Florida Proposed Bills on the HorizonOther bills that may be of importance to employersand the human resources profession include:
• SB 70/HB 613 – The Helen Gordon Davis FairPay Protection Act would require the Departmentof Economic Opportunity to provide informationto employers on how to eliminate pay disparitiesbetween men and women. It creates a governor’saward for pay equity.
• SB 72/HB 561 – The Fair EmploymentOpportunity Act would prohibit discriminationagainst persons based on their having been unemployed.
• SB 100 – This bill would prohibit employersfrom utilizing credit reports or credit history inmaking employment decisions (with exceptions)or requiring an applicant or employee to post abond to indemnify the employer.
protected activity. Under the “manager rule,” amanagement employee who, in the course of hernormal job performance, disagrees with or opposesthe employer’s actions does not engage in “protectedactivity” for purposes of a retaliation claim. Instead,to qualify as “protected activity,” the action mustcross the line from being the employee performingher job to lodging a personal complaint. Thus, theemployee in this case did not engage in protectedactivity when she complained about the way thecompany was investigating another employee’sharassment claim.
Even given the recent employer-friendly decisionsfrom the Eleventh Circuit, employers need to lower
the risk of such claims being brought in the firstplace. Employers should consider training (andretraining) supervisors on handling complaints thatmay be brought directly to them, instead of humanresources, and ensuring that employees are not discouraged from reporting concerns for fear of retaliation. The key to prevailing in these cases is often good documentation of the employee’s discipline and performance history.
For more information or assistance with retaliationissues, please contact the Jackson Lewis attorneywith whom you usually work, Barnett Brooks [email protected], or AmandaBallard at [email protected].
• SB 130/HB 261 – This bill would amend thedefinition of “good cause” in the Florida unem-ployment law to permit employees to leave theiremployment due to domestic violence and still beeligible to recover unemployment benefits.
• SB 308/HB 149 – The Safe Work EnvironmentAct would create a cause of action for “abusiveworkplace environment” and include injunctiverelief, other damages, punitive damages and attor-ney’s fees. (SB 308 is limited to public employers;HB 149 is not.)
• SB 532 – This bill would prohibit employersfrom inquiring into or considering an applicant’scriminal history or to include such an inquiry onan employment application. Under the proposal,consideration of criminal history is allowed onlyafter the applicant’s qualifications have beenscreened and it is determined the person meetsthe minimum requirements for the job.
• SB 710/HB 653 – The Competitive WorkforceAct would amend the Florida Civil Rights Act toinclude sexual orientation and gender identity orexpression as protected characteristics.
• SB 726 – This bill would prohibit political subdi-visions from requiring or regulating family med-ical leave benefits.
• SB 774/HB 717 – The Protect Our Women Actwould expand the definition of sex in the FloridaCivil Rights Act to include pregnancy or medicalconditions relating to childbirth.
• SB1216/HB1125 – This bill would create a causeof action for wage theft and provide for new courtprocedures for collection of wages.
Jackson Lewis will continue to monitor these billsand provide updates as warranted. For more infor-mation about these bills or Florida workplace law in general, please contact the Jackson Lewis attorneywith whom you usually work or Donald C. Works,III, at [email protected].
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EDITOR-IN-CHIEF:
Lillian Chaves Moon, [email protected]
Lillian Chaves Moon is a Partner inthe Orlando, Florida office of JacksonLewis LLP. Ms. Moon earned aBachelor of Arts degree in 1995 andher Juris Doctor degree in 2000 fromBrigham Young University in Provo,Utah. The majority of her practice isdevoted to employment litigation,defending employers in federal andstate courts, as well as before theEEOC and other administrative agen-cies. She also provides clients withday-to-day advice and counselingregarding employer policies and vari-ous workplace law issues as theyarise. In addition, prior to practicingin Florida, Ms. Moon served as anappellate attorney for the UnitedStates Department of Labor inWashington, D.C., representing theSecretary of Labor in federal appel-late courts in cases brought pursuantto the Occupational Safety andHealth Act. Ms. Moon is a memberof the Florida Bar, and the U.S.Supreme Court Bar.
This update is provided for informa-tional purposes only. It is not intendedas legal advice nor does it create anattorney/client relationship betweenJackson Lewis LLP and any readers orrecipients. Readers should consultcounsel of their own choosing to dis-cuss how these matters relate to theirindividual circumstances. Reproductionin whole or in part is prohibited with-out the express written consent ofJackson Lewis LLP.
This update may be considered attor-ney advertising in some states.Furthermore, prior results do notguarantee a similar outcome.
Jackson Lewis LLP represents man-agement exclusively in workplace lawand related litigation. Our attorneysare available to assist employers intheir compliance efforts and to repre-sent employers in matters beforestate and federal courts and adminis-trative agencies. For more informa-tion, please contact the attorney(s)listed or the Jackson Lewis attorneywith whom you regularly work.
© 2013 Jackson Lewis LLP
Bill Proposed toProhibit Local Wageand Benefit Laws
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New Office Opens in TampaJackson Lewis’ new Tampa office, the firm’s fourthFlorida location, is led by Managing PartnerBarnett Q. Brooks, who is joined by Jay Lechner,Partner, Karen Morinelli, Partner, Monica J.Williams, Of Counsel, and Amanda Ballard,Associate.
Since completing law school, Mr. Brooks has servedin a number of human resource and employmentlaw positions. He has been an AAA Arbitrator formore than 10 years and served as a court-appointedmediator in more than 75 cases. Mr. Brooks hasbeen selected for inclusion in the 2013 Florida SuperLawyers and was recognized by Chambers USA in2010.
Mr. Lechner has more than 11 years of experiencerepresenting employers in all aspects of workplacelaw, including wrongful termination, harassment,discrimination, wage and hour violations, retaliationand whistleblower claims, as well as restrictivecovenants, unfair business practices, and related statetort and contract issues. In addition to his litigationpractice, he assists employers in complying withfederal and state employment laws, as well as inimplementing preventive measures to reduce therisk of litigation, including counseling on personnelpolicies and procedures. Before attending lawschool, Mr. Lechner spent several years in manage-ment and served as a volunteer firefighter.
Ms. Morinelli concentrates her practice in unionnegotiations, employer/employee relations, litigationand alternative dispute resolution, and has served asChief Negotiator for clients in both the public andprivate sectors. She counsels clients on a wide rangeof labor and employment matters, including TitleVII, the ADA, the ADEA, the FMLA, NLRA,PELRA, FCRA and local fair employment practicestandards. Ms. Morinelli was a former GeneralCounsel and Vice President of Human Resources,where she managed a corporate legal departmentand a variety of employment-related issues in corpo-
rate mergers, acquisitions and divestitures, includ-ing national class action litigation. She conductsinternal investigations of potential workplace issues,including sexual harassment and ethics violations, aswell as public sector formal investigations in accor-dance with state and local laws. Ms. Morinelli alsoadvises employers with respect to drafting employ-ment contracts, severance agreements and settle-ment agreements, and advises clients on all aspectsof the employment process including hiring, disci-pline and terminations. Ms. Morinelli is listed in the2013 edition of Best Lawyers in America and is AV-Rated by Martindale-Hubbell.
Ms. Williams’s practice includes defending andadvising management in employment-related disputes including allegations of discrimination,retaliation, harassment, wrongful discharge, negli-gent hiring and other employment torts. She alsofrequently defends clients in actions brought underTitle III of the Americans with Disabilities Act andprovides advice and counsel to clients regardingstructural accessibility issues. She represents clientsin federal and state courts and before local, state and federal government agencies, including theEqual Employment Opportunity Commission. Ms. Williams has been recognized by Florida SuperLawyers as a Rising Star since 2010.
Amanda Ballard defends and advises public- andprivate-sector employers in a wide-range of employ-ment-related disputes, including discrimination,retaliation, harassment and wrongful discharge, aswell as the ever-changing areas of workplace socialmedia issues and electronic discovery. Ms. Ballardwas selected for inclusion in 2013 Florida SuperLawyers as a Rising Star.
Contact:Jackson Lewis LLPWestshore International Plaza2202 N. West Shore Blvd.Tampa, FL 33607(813) 288-4644
Jackson Lewis News
University of Puerto Rico and a LL.M from HarvardUniversity, joins as a Partner. Juan Felipe Santosjoins as Of Counsel. Mr. Santos is a graduate of theSchool of Industrial and Labor Relations at CornellUniversity and the University of Puerto Rico School of Law.
Working closely with these attorneys and providingvaluable support to the firm’s clients in Puerto Rico are
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First U.S. Employment Boutique toOpen Puerto Rico OfficeJackson Lewis’ new San Juan, Puerto Rico officeextends the firm’s geographical reach and enhancesits ability to meet the growing needs of clients.Joining the team are lawyers who have been repre-senting multi-national corporations doing businessin the region. Sara Colón-Acevedo, who receivedher undergraduate and J.D. degrees from the
Pedro Torres-Díaz and Zahira D. Díaz-Vázquez,both graduates of the University of Puerto RicoSchool of Law. Mr. Torres-Díaz is a Partner in ourMiami office and will serve as the Puerto Ricooffice’s Litigation Manager. Ms. Díaz-Vázquez is anAssociate in the firm’s Orlando office.
Contact:Jackson Lewis LLPCity Tower252 Ponce de Leon AvenueSan Juan, PR 00918(787) 523-7939
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TAMPA OFFICEWestshore International Plaza2202 N. West Shore Blvd.Suite 200Tampa, FL 33607813-288-4644
Jackson Lewis LLP represents management exclusively in employment, labor, benefits and immigration law and related litigation.
The firm has more than 750 attorneys practicing in 52 locations nationwide.
Jackson Lewis represents employers before state and federal courts and administrative agencies on a wide range of issues, including discrimination,wrongful discharge, wage/hour, affirmative action,immigration, and pension and benefits matters.Jackson Lewis negotiates collective bargaining agreements, participates in arbitration proceedingsand represents union-free and unionized employersbefore NLRB and other federal and state agencies.The firm counsels employers in matters involvingworkplace health and safety, family and medicalleaves and disabilities.
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DOL Publishes Final Regulations AddressingMilitary Family Leave Provisions
The U.S. Department of Labor has published final regulations clarifying several amendments to theFamily and Medical Leave Act that expand the law’s military family leave provisions. The agency’s
final rule, released on the FMLA’s 20-year anniversary, also implements changes enacted through theAirline Flight Crew Technical Corrections Act and contains other modifications to the prior regula-tions. For details, please see our article at http://www.jacksonlewis.com/resources.php?NewsID=4377.
Jackson Lewis NewsContinued from page 3
