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Employment Law Update

Labor and Employment Law

In what appears to be a case of first impression the Fourth District Court of Appeal ruled that an employee could essentially sue her employer for sexual harassment without completing the pre-suit steps required by either Florida or Federal law. Gerber v. Vincent’s Men’s Hairstyling, Inc., Case No. 4D09-5059 (Fla. 4th DCA March 30, 2011)

Jamie Gerber was employed by Vincent’s Men’s Hairstyling as a stylist.  She filed a lawsuit against its owner and the company alleging that the owner touched her in a sexual manner on several occasions.  Her complaint included counts for negligent retention, battery and vicarious liability.  Vincent’s defended by arguing that although the complaint sounded in negligence it was actually a complaint for sexual harassment and because the employee had not completed the pre-suit filing requirements necessary to file a sexual harassment complaint, should be dismissed.  Additionally the employer argued that it was immune from suit because of workers compensation immunity.

The mere fact that the plaintiff possessed statutory causes of action did not bar her from asserting parallel common-law causes of action in tort.  The appellate court held that “Florida law permits multiple causes of action to co-exist.” Slip opinion at p. 2. Explaining further, the Court explained:

The fact that the complaint alleges a ‘hybrid’ of facts supporting both common law tort violations and statutory sexual harassment violations is not dispositive, as the allegations in the plaintiff’s complaint can stand on their own under common law. If, upon completion of the EEOC administrative process, plaintiff chooses to seek amendment of her complaint to add statutory sexual harassment claims, that is her prerogative. Meanwhile, plaintiff is free to file a complaint setting forth claims based on common law torts, as opposed to statutory violations. The trial court thus erred in dismissing her complaint.

Id. at pp. 2-3.  

Based on its reading of the Byrd v. Richardson-Greenshields Sec., Inc., 552 So. 2d 1099 (Fla. 1998), the Court concluded that Ms. Gerber’s common-law claims were not barred by the doctrine of worker’s compensation immunity because “the plaintiff’s injuries allegedly resulted from a battery, which is not directly related to the work environment or work related activities.”  Slip opinion at p. 5.

The court noted conflict with Doe v. Footstar Corporation, 987 So. 2d 1266 (Fla. 2d DCA 2008), in which the Second District Court of Appeal, based on its reading of Byrd, “held that the worker’s compensation exclusivity rule barred the plaintiff’s cause action against their child’s employer for negligent hiring, retention, and supervision and for assault, battery, and rape.” Slip opinion at p. 4.  It is the view of the Second District, as expressed by Judge Casanueva, in a concurring opinion in Footstar Corporation v, Doe, 932 So. 2d 1272, 1278, that there was no common law cause of action for sexual harassment and that plaintiffs who choose not to plead a statutory cause of action for sexual harassment face a difficult task in overcoming the employer’s worker’s compensation immunity defense.

Accordingly, the Fourth District certified conflict between its decision in Gerber with that of the Second District in Doe to resolve the apparent conflict between the circuits on this important issue. Slip opinion at p. 5.

Prepared by:     Brennan Donnelly

                                Labor & Employment Law Practice Group  

                                bdonnelly@lawfla.com

Enforcement Deadline for Red Flags Rule Extended…Again.

In a press release dated May 28, 2010, the Federal Trade Commission, (FTC) at the urging of several Members of Congress, announced that enforcement of the Red Flags Rule will be delayed until December 31, 2010.  The rule, which was created to detect, prevent and mitigate identity theft, has been the subject criticism by a number of industries.

 

In addition to criticism, the FTC has also faced industry directed legal action by both lawyers and physicians.  On October 30, 2009, the U.S. District Court for the District of Columbia ruled that the FTC may not apply the Red Flags Rule to attorneys. (American Bar Association v FTC, Civil Action No. 09-1636 (RBW)).  More recently, on May 21, 2010, the American Medical Association filed suit against the FTC in the U.S. District Court for the District of Columbia alleging essentially the same complaint as the ABA.

A link to the FTC press release is found below.

http://www.ftc.gov/opa/2010/05/redflags.shtm

 

By:

Bill Dillon

Board Certified in Health Law

Employers Beware - Two Weeks Notice Means Two Weeks of Work

On October 30, 2009 the Florida Supreme Court agreed to review Porter v. Florida Unemployment Appeals Commission, 1 So.3d 1101 (Fla. 1st DCA 2009), a case dealing with the denial of unemployment compensation benefits.   The case dealt with an employee who, after providing her employer two weeks written notice, was terminated prior to the conclusion of the two week notice period.  

Ms. Porter, who worked as a cook for  Allen Children Centers, provider her employer with two weeks written notice of her resignation.  Although the record is unclear as to whether the employer accepted Porter's resignation the employer did immediately run an ad to replace Porter.  The employer hired a new cook who was able to start work three days before the end of Porter's two week notice period.  Citing the inability to pay for two cooks the employer terminated Porter and told her to leave.  Porter filed for unemployment compensation and at a hearing before an appeals referee was denied benefits.  The appeals referee determined that Porter voluntarily left her position and was therefore disqualified from receiving benefits.  Ms. Porter appealed to the Unemployment Appeals Commission who affirmed the referee's decision. 

The Florida 1st District Court of Appeal, finding that the appeals referee's decision was not supported by competent and substantial evidence, reversed the decision of the Commission and ruled that Porter was eligible for unemployment compensation benefits.   The Court found that because Porter had provided a date certain for her resignation, that termination prior to that date could not be considered voluntary.   While the Court indicated that it found no other Florida cases addressing this issue it cited to a line of cases from other state courts and adopted the following holding:

" an employee whose employer terminates her employment prior to the effective date of her resignation has never left work voluntarily and therefore cannot be disqualified from receipt of benefits on that basis, even for the period following the employee's intended departure date."

Accordingly, employers, particularly those in the jurisdiction of the 1st DCA, should take care when terminating employees who have provided their employer with written notice of termination.

Prepared By:

Bill Dillon

wdillon@lawfla.com

Employment Law Update

On November 10, 2009, the Broward County School Board approved a settlement with Charlene Rebecca Blackwood, a former building inspector who had filed a Whistleblower claim against the School Board. Ms. Blackwood had alleged that she was fired in retaliation for blowing the whistle about building code violations on school construction projects.

Significantly, whereas Ms. Blackwood will receive a net monetary payment of $45,461 for lost wages from the School District, Ms. Blackwood’s attorneys are to receive $150,000 in attorney fees under the settlement.  Ms. Blackwood reportedly said that her case was never about getting a large financial settlement with the district.  This case illustrates how the amount of attorney’s fees in employment litigation cases can often far exceed the monetary amount being sought by the plaintiff. 

Many businesses and local governmental entities are beginning to use pre-suit mediation of employment disputes in an effort to resolve such claims before the parties incur so much attorneys fees that settlement becomes almost impossible.

An article from the South Florida Sun Sentinel on this story can be found here.

Prepared by:

James J. Dean

jdean@lawfla.com

 

Employment Law Update

The Fifth District Court of Appeal, on November 6, 2009, released a decision which addressed a question of first impression under the Public Employee Whistleblower’s Act, Section 112.3187 - .31895, Florida Statutes (2005).  The case, University of Central Florida Board of Trustees v. Richard Turkiewicz, Case No. 5D09-1243, is important because the Court held that a state-agency employee must first file the whistleblower claim with the Florida Commission on Human Relations, and allow the FCHR to investigate the matter, before the employee is permitted to file a lawsuit in court.  The court's opinion can be found here.

 

    Mr. Turkiewicz, UCF’s Director of Police and Public Safety, had been an exemplary employee for about 18 years.  However, after reporting alleged wrongdoing by the University, he was notified that he would not be reappointed to his position.  Instead of filing a whistleblower claim with the FCHR, Mr. Turkiewicz initiated an internal grievance under UCF’s university rules, and the grievance was heard by a Step One grievance panel, a UCF Vice President and ultimately by UCF President John C. Hitt.  Following denial of the grievance, Mr. Turkiewicz filed a lawsuit.

 

    The Fifth DCA held that Mr. Turkiewicz’s internal grievance proceeding did not satisfy the statutory requirement that the claim be submitted to the FCHR for investigation prior to filing suit in court.  The Court thus held that the Whistleblower complaint had to be dismissed. 

 

    Although the Florida Civil Rights Act, the Florida Whistleblower’s Act and other similar employment laws in Florida are liberally construed in favor of employees, the courts continue to dismiss such claims for failure of employees to exhaust administrative remedies in compliance with the statutes, prior to filing suit.

 

Prepared by: James J. Dean

jdean@lawfla.com