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Third DCA Erases $2.6 Million Racial Discrimination and Retaliation Verdict

Florida’s Third District Court of Appeals has reversed the jury verdict and judgment of a Miami-Dade Circuit Court in favor of the plaintiff for nearly $2.6 million.  Ruling that the plaintiff failed to meet the legal requirements for establishing racial discrimination or retaliation under the Florida Civil Rights Act, the appellate court ruled that the trial judge should have directed a verdict in favor of the employer. The case is Sean St. Louis v. Florida International University, Case No. 3D08-2316 (Fla. 3d DCA, March 30, 2011).

The court’s opinion is straightforward and sensible.  The plaintiff could not establish his discrimination claim, the court ruled, because he could not show that similarly situated employees outside his protected class were treated more favorably.  As for the plaintiff’s retaliation claim, the plaintiff produced no evidence that the decision makers knew of his allegations of discrimination, so they could not have retaliated against him.

The Third DCA’s opinion reads like a federal district court’s order granting summary judgment to the employer.  The difference, of course, is that this case went to trial at great expense to the employer.  That’s not surprising, because state court trial judges, unlike their federal counterparts, are generally reluctant to grant motions for summary judgment before trial, or motions for directed verdict at trial.  That’s why defense counsel remove employment cases to federal court, if possible. Here, that wasn’t possible because there were no federal claims, and there was no diversity of citizenship between the parties.  The saving grace for the employer was that cases under the Florida Civil Rights Act are supposed to be analyzed under the same rigorous standards as federal Title VII claims.  And under those standards, the Third DCA ruled that the employer was entitled to a defense verdict, the jury’s feelings to the contrary notwithstanding.




Florida Employment Law 101: The Basics

For Florida employers, or those employers thinking of employing workers in Florida, sometimes it makes sense to go back to the basics.  With that in mind, here's a brief summary of some of the major employment laws in Florida. This list is not exhaustive but does provide a good overview of the law in this area.  My thanks go out to associate Teresa Maestrelli, who put this together.

Wage and Hour Law

Minimum Wage

·                     The minimum wage applies to all employees in the state who are covered by the federal minimum wage. On July 24, 2009 the new Federal minimum wage of $7.25 replaced Florida’s minimum wage.

·                     The definitions of “employer”, “employee”, and “wage” for state purposes are the same as those established under the federal Fair Labor Standards Act (FLSA).

·                     Employees who are not paid the minimum wage may bring a civil action against the employer or any person violating Florida’s minimum wage law.  The state attorney general may also bring an enforcement action to enforce the minimum wage.

Wage for Tipped Employees

·                     Employers of “tipped employees” who meet eligibility requirements for the tip credit under the FLSA may count tips actually received as wages under the FLSA.

 ·                     The employer must pay “tipped employees” a direct wage.  The direct wage is calculated as equal to the minimum wage ($7.25) minus the 2003 tip credit ($3.02), or a direct hourly wage of $4.23 as of July 24, 2009.


·                     Employers are required to post a minimum wage notice in a conspicuous and accessible place in each establishment where employees are employed. This poster requirement is in addition to the federal requirement to post a notice of the federal minimum wage.

Child Labor

·                     Employers who hire minors must display a poster in a conspicuous place on the property or place of employment notifying them of the Child Labor Law.

 ·                     Employers are required to keep waiver authorizations, proof of age documentation, and proof of exemption from minor status for all employees who are under 18.  These records must be maintained for the duration of the minor’s employment.

 ·                     Employers are not required by law to have permission from the parents to employ their minor child.

 ·                     "Work Permits" and/or "Working Papers" are not required in Florida and are not issued by either the schools or any governmental agency in Florida.

 ·                     Minors are limited in the hours they may work to permit them to attend and complete their educational responsibilities.

 ·                     Minors may work no more than 4 consecutive hours without a 30-minute uninterrupted break.

 ·                     Minors are exempt from the hour limitations of the Child Labor Law if they have been married, graduated from an accredited high school or hold a high school equivalency diploma, served in the military, have been authorized by a court order, or been issued a partial waiver by the public school or the Child Labor Program.

 ·                     Minors are limited in the types of occupations they may perform for safety reasons.

 ·                     Minors have the right to request that the Child Labor Office exempt them from parts of the Child Labor Law.

 ·                     Employment of minors in violation of Florida child labor laws may result in fines up to $2,500 per offense and/or be guilty of a second-degree misdemeanor.


Employment Discrimination and Anti-Retaliation Laws

Florida Civil Rights Act

·                     The Act applies to employers with 15 or more employees and prohibits employment discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or marital status.

 ·                     Complaints of discrimination must be filed with the Florida Commission on Human Relations (FCHR) within 365 days of the date of the alleged discriminatory incident.

 ·                     The Act contains an anti-retaliation provision which protects employees who have opposed any unlawful discrimination practice and/or who have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

 Whistleblower Protection

·                     Florida’s private sector whistleblower statute protects employees who object to, or refuse to participate in, an activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.

 ·                     Florida’s public sector whistleblower act protects government employees and employees of government contractors who object in specified ways to wrongdoing in the workplace.


Jury Duty

·                     An employer is not required to pay an employee for responding to a jury summons or for serving on a jury.

 ·                     An employer may not discharge, penalize, threaten or otherwise coerce an employee because the employee receives or responds to a summons or serves as a juror.

 Military Law

 ·                     Florida's military affairs law protects the reemployment rights of National Guard members returning from state active duty.  The law prohibits an employer from discharging a returning member for the one-year period following the date the member returns to work, except for cause.

 ·                     At the same time, however, the law provides certain exceptions under which employers are not required to allow such members to return to work.

 ·                     The law applies where the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not apply.



The Florida Employer

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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.