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February 3 Webinar - Florida Employment Law: The Not-So Sunny Side

I am presenting a one-hour webinar this Friday afternoon.  See the link for the invite.  The webinar will include a good, basic overview of Florida employment law.  I hope you can attend!

Florida Employment Law Webinar -- February 3, 2012





Duane Morris Institute presents the webinar

Florida Employment Law: The Not-So Sunny Side

Friday, February 3, 2012 | 1:00 p.m. to 2:00 p.m. (Eastern Time)

Presented by
Richard D. Tuschman


This webinar is approved for CLE credit in the following states:
PA, NJ, NY, CA and FL
as well as 1.0 HRCI credit.

For information and to register, please click here.






Florida is a "right-to-work" state that is generally business-friendly. Yet businesses with employees in Florida frequently face litigation by current and former employees. Florida leads the nation in federal Fair Labor Standards Act (FLSA) lawsuits. In addition, state and local laws prohibit marital status discrimination, sexual orientation discrimination, and retaliation against whistleblowers. A basic understanding of these laws, as well as Florida's unemployment, workers' compensation and minimum-wage laws, is vital for businesses that employ workers in Florida. This webinar will cover the fundamentals of Florida employment law.







For more information on financial assistance, please contact
Deborah Margulies at or 215.979.1957.



Is a Mistaken Admission to a Conclusion of Law Binding on the Defendant?

Lawyers don’t like to admit mistakes. But, of course, even good lawyers make mistakes on occasion.  The key, I have found, is to acknowledge your mistake as soon as possible and attempt to correct it promptly.  (I suppose that’s good advice not just in litigation, but in life generally.)


A few years ago I made a mistake in filing my client’s answer to a complaint in an Americans with Disabilities Act case:  I admitted in the answer that the plaintiff had a disability.  Perhaps the mistake was understandable, as the plaintiff was born with only one hand, and the defendant had admitted in its response to plaintiff’s EEOC charge that she was disabled.  Still, the admission was a mistake, because when I took the plaintiff’s deposition, she insisted that she was not disabled and could do anything any two-handed person could do, except juggle.  Seriously, that was her testimony.  The plaintiff’s can-do attitude was admirable, but her testimony was inconsistent with her ADA complaint.  I immediately moved the amend the defendant’s answer to deny that she was disabled.  Plaintiff’s counsel opposed the motion. After briefing by the parties, the judge denied my motion on the grounds that the amendment would be futile.  The court reasoned that whether the plaintiff was disabled under the ADA was an issue of law for the court to decide; thus, the defendant’s admission of a legal conclusion could have no binding effect.  The court cited the Eleventh Circuit’s decision in Almand v. DeKalb County, Georgia, 103 F.3d 1510, 1514 (11th Cir. 1997), in which the court questioned “whether [defendant’s] admission has effect for conclusions of law that are set out in the complaint”.


(By the way, we ultimately prevailed in the case, because whether the plaintiff was disabled or not, the evidence showed that she had been fired for violating a company policy.)


I was reminded of my mistake this morning when I read of a lawyer’s similar mistake in a case under the Fair Labor Standards Act, Cortina v. F.A.D. Detective & Security Services, Inc., Case No. 11-20732-CIV-KING (S.D. Fla., December 1, 2011).  The defendants’ attorney admitted in the answer that defendants engaged in interstate commerce, which is a prerequisite for establishing that the business is covered by the FLSA.  (This is known as “enterprise coverage.”)  Subsequently, the defendants retained a different attorney. The second attorney filed a motion for summary judgment, arguing that the court lacked subject matter jurisdiction because there was no evidence that defendants had ever engaged in any interstate activities.  But the court rejected this argument on the grounds that defendant had admitted in their answer that they engaged in interstate commerce.  The court stated that while subject matter jurisdiction cannot be waived, defendants’ “assertion that they were not engaged in commerce raises a factual question.”


I find the court’s reasoning to be dubious.  All legal conclusions ultimately turn on the underlying facts.  The proper question, it seems to me, is whether the defendants admitted facts that compelled the legal conclusion that they engaged in interstate commerce, or, alternatively, whether defendant merely admitted the legal conclusion that they engaged in interstate commerce, notwithstanding any actual facts.  In my ADA case a few years ago, although defendant admitted that plaintiff was disabled, the court was open to the possibility that this legal conclusion might not be supported by the facts.  It seems to me that the judge in my case got it right, and the Cortina court got it wrong. 

But perhaps the real problem for defendants in the Cortina case was their unexplained delay of pointing out their mistake to the court.  In a footnote to its decision, the court noted that two months had elapsed between the time the second attorney had entered an appearance, and the date that defendants filed their motion for summary judgment.  Thus, the court noted, “Defense counsel had ample time to move to amend the Answer,” but failed to do so.


To answer the question posed by the title of this blog post –  is a mistaken admission to a conclusion of law binding on the defendant? – I think the answer is maybe.  Like so many other issues in the law, it depends on how the judge frames the issue.  What seems certain is that defense counsel should move to amend the answer as soon as possible after realizing their mistake, and not wait until filing a motion for summary judgment to spring their defense on opposing counsel and the court.


Defending Against Harassment-Related Tort Claims in Florida

Suppose an employee claims workplace harassment and sues her employer asserting an assortment of tort claims – intentional infliction of emotional distress, negligent supervision, negligent retention, and battery.  And suppose further the employee has declined to assert any statutory claims under Title VII or the Florida Civil Rights Act.  Can the employer move to dismiss the complaint on the grounds that the plaintiff’s tort claims are really claims of workplace harassment that must be pleaded under Title VII or the Florida Civil Rights Act? 

The clear answer is no.  Title VII and the Florida Civil Rights Act do not preempt tort claims.  And Florida and federal pleading rules allow a plaintiff to assert alternative theories of recovery under the same facts.  A plaintiff can assert Title VII claims, FCRA claims, or tort claims – or a combination thereof. 

These basic rules did not prevent the defendant in a recent case from making the novel argument that the plaintiff’s tort claims were barred because they were “actually” claims for sexual harassment that must be pleaded under Title VII or the FCRA.  And, strangely enough, the Broward County Circuit Court judge agreed with the defendant, and even sanctioned the plaintiff’s attorney for failing to comply with the pre-suit procedures set forth under Title VII and the FCRA.  Last week, Florida's Fourth District Court of Appeals reversed the trial court’s ruling in Gerber v. Vincent’s Men’s Hairstyling, Inc., Case No. 4D09-5059 (Fla. 4th DCA March 30, 2011). 

So what should a defense lawyer when faced with common law claims of harassment?  My strategy is to attack the claims on their merits, if possible.  For example, the tort of intentional infliction of emotional distress requires a showing that the defendant’s conduct was “so outrageous in character and extreme in degree as to go beyond the bounds of decency and be deemed utterly intolerable in a civilized society.”  Garden variety harassment claims will not meet that high standard.  Negligence claims are subject to attack because they require the violation of a common law duty, and there is no duty under common law to prevent workplace harassment. 

Still, a motion to dismiss may not always be possible.  To state a cause of action for civil battery, a plaintiff merely has to allege that the defendant intentionally inflicted a harmful or offensive contact upon the plaintiff.  Allegations of sexual harassment often are accompanied by a claim of battery.  In such a case, if the plaintiff alleges the requisite elements for battery, I answer the complaint and get to work on discovery.  As the Gerber case illustrates, there is nothing to be gained from asserting that the plaintiff’s tort claims are “actually” something else.  The claims will ultimately stand, or fall, on their merits.


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.