The Eleventh Circuit decided an interesting FLSA retaliation case this week, Moore v. Appliance Direct, Inc.  I have noticed an uptick in the filing of those kinds of suits in recent months/years, so this decision is significant.  The facts are basic - the three employee plaintiffs were delivery drivers for Appliance Direct, and filed an FLSA overtime suit while they were still employed.  During the pendency of the case, Appliance Direct fired the three drivers.  The company claimed that it had outsourced those jobs.  The drivers, as you might expect, filed an FLSA retaliation suit against the company and its CEO.  After some procedural machinations, the retaliation case against the CEO went to jury trial.  The jury found in favor of the drivers, and awarded each $30,000 in damages.  The Court declined to award plaintiffs an additional amount in liquidated damages.

Under the FLSA's overtime and minimum wage provisions, a plaintiff's entitlement to liquidated damages - or, double damages - is a question for the judge, and it depends on whether the defendant company acted in good faith.  For example, a jury may award an FLSA overtime plaintiff a certain sum in unpaid overtime, say $10,000.  If the judge determines that the defendant failed to prove that it acted in "reasonable good faith" with respect to the pay decisions, then an award of liquidated damages (an additional $10,000 in this example) is mandatory.

In Moore, the Eleventh Circuit considered whether the same is true in an FLSA retaliation case, and decided that it is not.  The Court noted that the text of the anti-retaliation provision differs from the text of the unpaid wages provisions, and determined that liquidated damages are discretionary in retaliation cases, even where the defendant has failed to prove it acted in good faith with respect to the alleged retaliatory conduct.  The Court stated that the FLSA "gives the district court discretion to award, or not award, liquidated damages, after determining whether doing so would be appropriate under the facts of the case."

The Court did not explain when it would be appropriate to award liquidated damages in a retaliation case, but it is safe to say that it depends on whether the company has any explanation (other than a retaliatory one) as to why it fired (or took other adverse action) against the employee.  An employer who has no explanation for the employment decision will probably be assessed liquidated damages.  On the other hand, an employer who has a reasonable, non-retaliatory explanation (with contemporaneous written documentation of the decision) may be able to avoid liquidated damages, even when that explanation was insufficient to convince the jury to find in its favor.  The real takeaway from this case is that it is more important than ever for employers to do their duty and document the reasons for terminations.

Any litigator knows that a client can torpedo his/her own case at a deposition.  And, sometimes it's not what the client says substantively, it's how they behave that gets them in trouble. 

In my experience, the richer or more "powerful" the deponent, the more likely they are to treat the proceeding as an opportunity for them to show how smart/witty/tough they are.  That rarely goes over well.  For example, I once represented a rich and powerful businessman who, in the process of inappropriately storming out of a deposition, called the female attorney who was asking the questions a "f...ing b....".  Luckily the court reporter did not record that epithet. Still, it was no fun to have to explain my client's behavior to the judge, and it certainly did not help our case.

A newsworthy example of this is Lady Gaga's recent deposition in a wage and hour case.  Lady Gaga's former personal assistant is suing Lady Gaga and her touring company for some $400,000 in unpaid overtime.  The assistant claims that she worked nearly round the clock because she was constantly at Lady Gaga's beck and call.  The case appears to raise a number of interesting legal issues, and is worth following.

But the real news this week is Lady Gaga's behavior at her deposition in that case.  As reported by the NY Post, she used the "f word" numerous times, including calling the plaintiff a "f...ing hood rat".  She referred to herself as "the queen of the universe", and was combative with the plaintiff's lawyer.  Lady Gaga directed the following to the Plaintiff - “I’m quite wonderful to everybody that works for me, and I am completely aghast to what a disgusting human being that you have become to sue me like this.”  She went on to recount some of the perks of the assistant job - caviar, partying, and high-quality bedclothing chief among them.

It goes without saying that such behavior can only hurt, not help, a case.   I am sure her lawyers prepped her well for the deposition, but sometimes clients have a mind of their own.  As a general rule, it is never a good idea at a deposition to use profanity or to disparage the lawyer asking the questions.  Those who take a "just the facts" approach usually do better than those who do not.  Lady Gaga unwittingly has given the plaintiff fodder for numerous briefs, and has almost certainly damaged her case.  If you ever have to sit for a deposition, don't let the same thing happen to you.  Pay attention to your lawyer when he/she prepares you.

Florida has always been regarded as a "pro-business" state.  We have very few employment laws here, and that's the way employers like it.  I doubt that will change any time soon, as Republicans still dominate our legislature.  But, nationally these are "progressive" times (did you listen to the President's inaugural address?), and there have already been some pro-employee bills introduced in the state legislature this year.  One such bill is the "Abusive Workplace Environment Act", which was introduced earlier this month by Sen. Oscar Braynon, who represents Miami Gardens.

The bill applies only to governmental employers, and seeks to prohibit abusive work environments, defined as those "in which an employee is subject to abusive conduct that is so severe that it causes physical or psychological harm to the employee."  The bill includes a lengthy definition of  "abusive conduct", but the gist is that the law would prohibit the repeated use of "derogatory remarks, insults, and epithets", or any other type of "threatening, intimidating, or humiliating" conduct.  The introduction to the bill claims that this is necessary because "[a]pproximately one-half of all employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment".

In sum, this bill seeks to make being a jerk or bully illegal in the public workplace.  The bill also includes an anti-retaliation provision, which makes it illegal to fire anyone in retaliation for their making a complaint about workplace abuse.

There will be some who see some merit to this effort.  I have never been the victim of currently illegal forms of harassment (harassment based on sex, race, age, religion, etc...), but I know that a dificult boss can make anyone's life miserable. 

On the other hand, personality conflicts are part of every workplace, and life in general.  Employers, especially public employers, are already hesitant to discipline and terminate employees.  A law such as this would make it more difficult for public agencies to manage their employees, and run their businesses. 

I have no information about this bill's likelihood of passage.  I would guess that it is slim, but we will have to wait and see.

You may recall that Congress amended the FLSA back in 2010 to require employers to provide time and private space for employees to express breast milk.  The FLSA's anti-retaliation provision applies to this new requirement.  That provision states that it is unlawful for an employer "to discharge...any employee because such employee has filed any complaint...related to this chapter".

The Eleventh Circuit has now become the first appellate court to interpret the new breastfeeding provision in Miller v. Roche Surety and Casualty Co., Inc.  Danielle Miller was employed by Roche.  In her lawsuit, she alleged that Roche violated the breastfeeding provision by failing to provide her time and space to use a breast pump, that she complained about this, and that Roche fired her in retaliation for her complaint.  The case went to trial.  At trial, the district court (Judge Richard Lazzara of the M.D. Fla.) granted Roche's motion for judgment as a matter of law, and found for Roche.

The Eleventh Circuit affirmed.  Miller had admitted in her trial testimony that she had sufficient time and private space to express breast milk, so there was little question that Roche had complied with the FLSA breastfeeding provision. 

The more interesting question was whether Miller had engaged in "protected activity" sufficient to create a jury question as to whether Roche had terminated Miller's employment in connection with a "complaint" about the breastfeeding issue.  Miller's evidence that she had made a "complaint" about that topic was limited to: (1) an email she had sent her supervisor requesting a time and space to use her breast pump; and, (2) emails she had sent friends and family (but not anyone at Roche) from her Roche email account complaining about Roche's alleged failure to comply with the breastfeeding provision.

The Eleventh Circuit concluded that Miller's email to others, even from her Roche email account, did not constitute a formal "complaint" under the FLSA retaliation provision.  The Eleventh Circuit also found that Miller's mere request that Roche provide her time and space to use her breast pump did not constitute a formal complaint.  The court stated "...[f]ar from notifying Roche that a grievance had been lodged, this email does not allege or even intimate that Roche violated the law."  This makes sense, considering there is a clear distinction between a request for a particular accommodation, and a "complaint" that the accommodation was not provided.

This decision could be useful for employers, because its clarification as to what constitutes an FLSA complaint will have application outside of the FLSA breastfeeding provision context.  I have seen a number of FLSA cases where employees claim that some discussion with a supervisor about overtime pay obligations is enough to constitute a complaint.  But, it is clear from the Supreme Court's decision two years ago in Kasten, and from this decision, that more is required.

The new Broward County "wage theft" law went into effect last week.  Miami-Dade County enacted a similar ordinance a couple of years ago.  The Broward County ordinance establishes an administrative scheme for employees (defined as any employee working in Broward County other than federal and state employees, or employees of Indian tribes) to bring claims for unpaid wages.  The threshold amount to bring a claim is $60.  The administrative scheme allows for discovery, and mini-trials before hearing officers.  The hearing officer can award back wages, an equal amount of liquidated damages, and attorneys' fees.  There is no private right of action in court under this ordinance.  The ordinance requires Broward County employers to pay earned wages within 14 days. 

I have not seen very many claims filed under the Miami-Dade ordinance, and doubt that there will be many filed pursuant to the Broward County one.  If an employer fails to pay earned wages - overtime or otherwise - there is no shortage of lawyers in our community who specialize in representing employees in unpaid wages suits in court.  Indeed, South Florida leads the nation in overtime lawsuits filed under the Fair Labor Standards Act.  In my opinion, this new ordinance is unnecessary, because it largely duplicates existing remedies.  Only time will tell whether employees take advantage of this new remedy, but all businesses with employees in Broward should be aware of this new law.

Florida's minimum wage is tied to the Consumer Price Index, which means that the minimum wage is subject to re-calculation each year.  For 2013, the minimum wage will increase by 12 cents.  The new minimum wage is $7.79, which is $.54 higher than the federal minimum wage of $7.25. 

Also, the new Florida minimum wage for tipped employees is $4.77. 

These new rates go into effect tomorrow, January 1.  Make sure you pay your employees accordingly.

Those employers that conduct Fair Credit Reporting Act ("FCRA") background checks need to be aware that three important FCRA forms have been revised.  One of the three is the Summary Of Rights form that employers must distribute to employees before obtaining an FCRA investigative consumer report.  As of January 1, 2013, employers must use the new forms, which are available here at Appendices K, M, and N.

The primary reason for the changes is that, pursuant to the Dodd-Frank Act, a new governmental agency, the Consumer Financial Protection Bureau ("CFPB"), has rule-making responsibility for the FCRA.  Previously, the Federal Trade Commission ("FCRA") interpreted the FCRA.

As always, if employers have any questions regarding these changes or the FCRA in general, they should contact labor and employment counsel.

We've previously written about the Eleventh Circuit's confusing Dionne decisions, which dealt with whether an FLSA claim is "moot" if the defendant has tendered all money the plaintiff claims he is owed.  This week, in Zinni v. ER Solutions, Inc. the Eleventh Circuit issued another decision on the "mootness" issue, this time in the Fair Debt Collection Practices Act ("FDCPA") context. 

There, Zinni was seeking $1,000, which is the maximum amount of damages permitted under the FDCPA, plus attorneys fees and costs.  After the case was filed, the defendant offered to pay Zinni $1,001, which represented the maximum damages plus one additional dollar.  As part of the offer, the defendant also offered to pay Zinni the reasonable attorneys' fees and costs he had incurred.  It sounds like the defendant had offered full relief, and that the case would be moot, right?  Judge Ryskamp thought so, and dismissed the case. 

The Eleventh Circuit disagreed, and reversed on the grounds that full relief would include a judgment in favor of Zinni, against the defendant.  From this logic, it appears that the only way for a defendant to moot an FDCPA (or, presumably, FLSA) claim would be to serve a Rule 68 offer of judgment in the full amount of monetary damages plus attorneys' fees/costs.

I can't say that I understand the logic of this decision.  Let's say a defendant tenders a check in the amount of maximum damages, plus fees and costs, and the plaintiff cashes the check.  Per Zinni, the case is not moot, so the plaintiff could theoretically still go to trial.  But, what would the trial be about?  Whether the plaintiff is entitled to a judgment, even though the defendant now owes the plaintiff no money?  Perhaps the Eleventh Circuit will have occasion to address that question in the future.  In the meantime, it would appear to me that it just got more difficult to "moot" statutory claims (including FLSA claims) in the Eleventh Circuit.

Last week in Delva v. The Continental Group, Inc., the Third District Court of Appeal held that the Florida Civil Rights Act ("FCRA") does not prohibit pregnancy discrimination.  In this blog last year, we discussed and analyzed the status of this issue. 

The Third DCA's decision is good for employers, and is in line with the First DCA and most federal courts that have reached this issue.  But, it is in conflict with the 4th DCA's Carsillo decision from 2008.  In Delva, the Third DCA certified a conflict with Carsillo, which may prompt the Florida Supreme Court to resolve this question once and for all. 

The Third DCA covers Miami-Dade County, while the Fourth DCA covers Broward and Palm Beach. So, this conflict is of particular import to South Florida employment attorneys and their clients. 

Some may ask why this is a big deal.  Women who believe they have a pregnancy discrimination claim can always sue under federal law.  But, if they file under federal law, employers will have a right to litigate the case in federal court.  Some plaintiff's attorneys want to litigate in state court exclusively, and are hesitant to take cases that may require them to be in federal court.  The Delva decision should dissuade those attorneys from filing pregnancy discrimination claims in Miami-Dade County.

So, while Delva doesn't resolve the ultimate question, it takes us one step closer to clarity.  We will keep you posted as to what happens next.

My colleague Mark Beutler wrote a detailed blog post in March about the employer's request that the Supreme Court review the Third Circuit's decision in Symczyk v. Genesis Healthcare Corp., 656 F.3d 189 (3d Cir. 2011).  In that decision, the Third Circuit Court of Appeals held that a defendant employer may not use the Rule 68 offer of judgment mechanism to “moot” a single-plaintiff FLSA case styled as a putative collective action, even when the plaintiff has yet to seek class certification. 

Yesterday, the Supreme Court decided to hear the case. Mark explained the issues at play here better than I can.  Whatever the result of this appeal, the Supreme Court’s decision will have great impact on those of us who litigate frequently in this area.  We will keep you posted as this develops.

On Monday, in EEOC v. Houston Funding II, Ltd., the EEOC argued to the Fifth Circuit that Title VII protects women from being fired for lactation and breast pumping at work.  The charging party -- Donnicia Venters – was fired allegedly for stating her intent to use a breast pump upon her return from pregnancy leave.  The  EEOC advanced two claims: (a)  violation of Title VII’s prohibition against sex discrimination, and (b) violation of the Pregnancy Discrimination Act, which bars employment discrimination based on “pregnancy, childbirth, or related medical conditions.” 

The EEOC argued that discrimination based on breastfeeding or any other sex-specific trait is per se sex discrimination, even apart from the PDA.  The EEOC’ s position has serious internal contradictions.  Of course breastfeeding is a sex-specific trait, but no more so than pregnancy and childbirth.  If discrimination based on a sex-specific trait constitutes sex discrimination barred under Title VII, then what does the Pregnancy Discrimination Act add?   Apparently, the EEOC believes the PDA is redundant and prohibits nothing not already prohibited under Title VII’s ban against sex discrimination. 

In General Electric Company v. Gilbert, 429 U. S. 125 (1976), the Supreme Court held that discrimination based on pregnancy was not discrimination based on sex (at least not disparate treatment).   The case involved health insurance benefits that excluded coverage for pregnancy.  Congress responded to the decision with the Pregnancy Discrimination Act. 

Oddly, in Houston Funding, the EEOC’ s primary argument was under Title VII, not the PDA, which was its secondary argument.  Gilbert, which is still good law to the extent not superseded by the PDA, closes the door on the EEOC’s Title VII argument.  The EEOC mentions Gilbert but spends many pages dancing around the precedent, essentially arguing that Gilbert is bad law, albeit without using those words.  

The better argument is that breastfeeding is protected under the PDA.  To prevail on that claim, the EEOC must persuade the court that the need to breastfeed or use a breast pump is a “medical condition” related to pregnancy.  That statutory language may not be ideal, but neither would it require a hernial reach to accept that producing breast milk is a “medical” condition caused by pregnancy and childbirth? 

The Fair Labor Standards Act provides new legal protection that Venters did not have when she gave birth to her baby in 2008.  Effective March 23, 2010, the Patient Protection and Affordable Care Act, also known as the Healthcare Reform Act (HRA), amended the FLSA to require most employers to provide a nursing mother break time to pump.  Covered employers must provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has need to express milk. See 29 U.S.C. § 207(r). Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk. Id.  The FLSA amendment does not require employers to pay employees for such break time. Id.   However, presently before the Supreme Court is a constitutional challenge to certain provisions of the HRA (not the FLSA amendments).  It is possible, albeit unlikely, that the Supreme Court’s decision will invalidate the entire HRA. 

More and more clients have been asking me whether it is wise to require employees to sign mandatory arbitration agreements. My response is generally that there are advantages and disadvantages to mandatory arbitration of employment claims, and that it depends largely on what the client is trying to accomplish.  Many employers these days view the advantages of mandatory arbitration - avoiding jury trials and class and collective actions - as outweighing the disadvantages. 

Recently, however, there has been some question whether class/collective action waivers are enforceable in the employment context.  The National Labor Relations Board issued a ruling earlier this year, In re D.R. Horton, Inc., which held that, at least in certain circumstances, they are not.

Judge Lazzara of the Middle District of Florida issued an important decision on Friday, compelling arbitration of collective action FLSA claims.  At issue was an arbitration agreement that clearly required arbitration of the FLSA claims, including those brought as part of a collective action.  The plaintiffs argued that the collective action waiver was unenforceable as a result of Horton. Juge Lazzara ultimately disagreed, and noted that the law in the Eleventh Circuit is clear on this point - class/collective action waivers in arbitration agreements are enforceable. 

This decision provides clarity on this subject, and is ultimately good news for Florida employers.  This has been a fast moving area of the law in recent years, but, at least for now, it is clear Florida courts will enforce properly drafted arbitration agreements containing class action waviers.

I had previously posted about an Eleventh Circuit case recognizing that discrimination against transgendered persons is prohibited sex discrimination under Title VII.  The EEOC, in a decision issued last month, has adopted that reasoning.  The EEOC stated:  "...[W]e conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on...sex,' and such discrimination therefore violates Title VII."  The linchpin of this decision is the notion that discrimination against transgendered people is differential treatment based on the transgendered person's failure to conform to gender stereotypes, and thus is discrimination based on sex.

This is a potentially important decision because I can foresee employees (and their attorneys) arguing that Title VII protects gay and lesbian persons under a similar rationale.  After all, aren't all instances of sexual orientation discrimination  based on the individual's failure to adhere to a preconceived gender norm (attraction to the opposite sex)?  This is a developing area of the law, and we will have to wait to see what happens next.