Firefighter's Race-Baiting Rant Renews Questions About Employers' Access to Facebook Pages

POSTED BY RICHARD D. TUSCHMAN ON APRIL 16, 2012

Do employers have a right to demand access to their employees’ Facebook pages to ensure employees’ posts do not reflect poorly on their employers? A Miami-Dade firefighter’s race-baiting rant about the Trayvon Martin case - posted on his personal Facebook page - is sparking new interest in this question.

Captain Brian Beckmann’s post, published on the website theGrio.com, criticizes the prosecutor in the George Zimmerman case for political posturing and states that “urban youth” are the products of “failed, sh*tbag, ignorant, pathetic, welfare dependent excuses for parents.” Beckmann’s post goes on to say that urban youth are “just misunderstood little church going angels and the ghetto hoodie look doesn't have anything to do with why people wonder if they're about to get jacked by a thug.”

The source of the story apparently had access to Beckmann’s Facebook page and sent a screen shot of his post to theGrio.com. The source expressed concern that the comments reflected "the thoughts of someone who responds to the homes of the very people" being denigrated in the post. The Miami-Dade Fire Rescue Department is investigating the matter.

For public sector employers like Miami-Dade County, the question of whether employers can demand access to their employees’ Facebook pages is complicated by civil service rules, collective bargaining agreements, and First Amendment rights. But for private sector employers in Florida, no law currently restricts an employers’ right to demand access to their employees’ Facebook pages.

That is not to say that requiring employees to disclose their Facebook passwords is a good idea. An employer’s routine demands to view employees’ Facebook pages would undoubtedly be viewed as heavy-handed and smack of “Big Brother.”

But where an employer has knowledge of discriminatory posts or other online behavior by an employee that reflects badly on their business, demanding access to the employee’s Facebook page may be prudent, and perhaps even necessary, to prevent liability or reputational injury to the employer.

Legislation may change the legal landscape on this issue. Maryland recently passed a bill that prohibits employers from asking applicants and employees for social media account log-ins and passwords. Several other states are considering similar legislation. Florida is not among them, for now, but federal legislation may be on the horizon. We will keep an eye on this fast-moving issue and report on new developments.

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South Carolina Federal Court Strikes Down NLRB Notice Posting Rule

POSTED BY SCOTT T. SILVERMAN ON APRIL 16, 2012

On Friday, April 13, 2012, the United States District Court for South Carolina held that the National Labor Relations Board ("NLRB") exceeded its authority when promulgating a rule which requires that all employers subject to the jurisdiction of the National Labor Relations Act ("NLRA") post a notice of employee rights.  In Chamber of Commerce of the United States, et al. v. National Labor Relations Board, et al., Case No. 2:11-cv-02516-DCN, Federal Judge David Norton held that the NLRB violated the Administrative Procedures Act when promulgating the rule, and granted summary judgment to Plaintiffs on their claim that the rule was invalid.

As previously reported, on August 30, 2011, the NLRB published a Final Rule, which is currently set to take effect on April 30, 2012.  The rule is divided into two main parts: (1) Subpart A contains the requirement that all employers subject to the NLRA post notices, in conspicuous places, that inform employees of their NLRA rights, NLRB contact information and NLRB enforcement procedures; and (2) Subpart B states that a failure to post the required notice is an unfair labor practice and that the NLRB may toll the statute of limitations for a violation of the rule and find a failure to comply with the rule as evidence of unlawful motive in unfair labor practice proceedings.

Last month, the D.C. District Court issued an order on a separate challenge to the rule and held that the Subpart A notice posting requirement was a valid exercise of the NLRB's powers.  However, the D.C. District Court found that the NLRB's remedial measures in Subpart B of the rule were impermissible.

The South Carolina District Court disagreed with D.C. District Court and held that the rule was completely unlawful.  Initially, Judge Norton focused on Section 6 of the NLRA, which grants the NLRB the power to make, "in the manner prescribed by the Administrative Procedures Act,   such rules and regulations as may be necessary to carry out the provisions of" the NLRA.  Judge Norton found that while the notice posting rule may be helpful in carrying out the NLRB's functions, it was not necessary.  Further, Judge Norton reasoned that there is no provision in the NLRA, unlike several other federal labor statutes, which requires employers to inform employees of their NLRA rights. Thus, the rule could not be said to be necessary to carry out an explicit Congressional directive.  Judge Norton opined that the NLRA framework requires the NLRB to be reactive to election petitions or unfair labor practice charges and that the Board exceeded its powers by adopting a proactive notice posting rule.

The South Carolina District Court has not yet issued an injunction or other formal relief to Plaintiffs. Further, it is expected that the NLRB will seek to stay Judge Norton's order pending appeal.  Finally, the D.C. District Court's decision is currently on appeal.  Given judicial developments in this area, the NLRB may postpone the effective date of the rule again, or there may be some further judicial decision in advance of April 30, 2012.  Employers are advised not to display the NLRA notice rights poster prior to April 30, 2012 and to consult with counsel to determine the current status of the rule as of the current enforcement date.

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Akerman Labor & Employment Law Seminar to Feature Discussion on New Unemployment Compensation Law Amendments and How They Help Employers

POSTED BY KAREN M. BUESING ON APRIL 9, 2012

Employers should welcome the new amendments to Florida's unemployment compensation laws. Among other things, those amendments eliminate the provision that the unemployment compensation law is to be liberally construed in favor of the claimant, broaden the definition of "misconduct" which will disqualify a claimant from receiving benefits, and require claimants to take new steps to demonstrate efforts to find work.  "Misconduct" now covers certain conduct regardless of whether it takes place in the workplace or during working hours. It now specifically includes conduct demonstrating a "conscious" (rather than "willful") disregard of an employer's interests, carelessness or negligence that manifests an intentional disregard of those interests, chronic absenteeism or tardiness,  or a violation of an employer's known, valid and consistently enforced rule.

Prior to the amendments, claimants could receive unemployment compensation even though they were also receiving severance from their employer. Now, that severance will reduce the amount of unemployment compensation claimants receive. Further, the evidentiary burden for unemployment compensation hearings is relaxed under the new amendments – hearsay may now support a finding of fact if the party against whom it is offered has a reasonable opportunity to review it prior to the hearing and the hearing officer determines that it is trustworthy, probative and in the interest of justice to admit the evidence.

These are exciting changes for employers long frustrated by the unemployment compensation process. We are pleased to have the Hon. Alan O. Forst, Chairman of the Florida Unemployment Compensation Appeals Commission join me in a discussion of how these changes are playing out in the field at the 17th annual Akerman Labor & Employment  Law Seminar in Hollywood, Fla. on Thursday April 19. We hope you will join us. To learn more please visit http://www.akerman.com/events/LELS12/overview.asp

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Temporary Visa or More Permanent Solution? Immigration Law 101 at the Akerman Labor & Employment Law Seminar Has the Answers

POSTED BY MICHAEL BENCHETRIT ON APRIL 3, 2012

The U.S. employer that wishes to have a foreign national conduct business with its company or work for its company in the United States should determine if a temporary visa or a more permanent immigration solution is required for time spent in the United States. As part of this strategy, the U.S. based employer should work closely with the foreign national to determine her educational background and employment experience abroad, especially if it is with a related entity of the U.S. based employer, in order to develop a well-rounded immigration plan.

Developing a successful immigration planning and compliance program can be accomplished by the HR professional that familiarizes himself with the I-9 Form, and understands the policy behind temporary employment options and permanent employment options. With new tools available to employers such as the E-Verify program, being able to track and manage the I-9 process and ensuring new employees are properly verified and existing employees are properly re-verified, the often complex world of immigration law and procedures can effectively be de-mystified.

In my Immigration Law 101 presentation at the 17th annual Akerman Labor & Employment Law Seminar, I'll address these topics and more. Come join us. To learn more please visit http://www.akerman.com/events/LELS12/overview.asp

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Negative Consequences May Flow From Workers' Compensation Denial

POSTED BY SCOTT T. SILVERMAN ON APRIL 3, 2012

Your company just won its workers' compensation case, and the employee was denied benefits.  Time to celebrate, right? WRONG. You may have just bought yourself a civil lawsuit for damages.

In Ocean Reef Club, Inc. v. Wilczewski and Leon, No. 3D09-2779 (Fla. 3d DCA March 21, 2012), the Third District Court of Appeal made two findings of which all Florida employers should be aware: (1) an employer with knowledge of workers' compensation injuries, but who fails to properly report them, is prevented from claiming workers' compensation tort immunity, because the employee failed to file for benefits or because benefits were denied as time-barred; and (2) an employer cannot claim workers' compensation tort immunity when its carrier has denied coverage on the ground that the asserted injuries were not within the course and scope of employment.

In Ocean Reef, employees, a hair stylist and nail technician in a beauty salon, had notified their supervisors of asthma-like symptoms, headaches and respiratory problems, resulting from chemical fumes, for which they sought medical treatment.  However, neither they nor their employer gave notice to the insurance carrier of these illnesses.  It was only after Ocean Reef was sued for damages, that it notified the carrier, which denied coverage on the basis that the illnesses did not occur in the course and scope of employment and that the statute of limitations had run.  Ocean Reef then moved for summary judgment on tort immunity in the civil action, which was denied.  The denial then went to the Third District on appeal.

The Third District held that an employer could not fail in its statutory obligation to provide notice of work-related injuries, and then argue that the tort immunity applied, because the employees did not give notice, and that the workers' compensation claim was barred due to the passage of the statute of limitations.  The court also found that it would be inequitable for the employer, through its insurance carrier, to assert there were no work-related injuries and no workers’ compensation coverage, and then later, when the employee brought a tort action against the employer, to assert a workers’ compensation coverage defense.  An employer simply cannot take such inconsistent positions.

The lessons for employers are: (1) to make sure that supervisors make the required notice of injury so that the employee will be limited to the workers' compensation remedy;  and (2) to coordinate the defense of workers' compensation claims with civil litigation to make sure that inconsistent positions are not taken.  Had this employer made the required notice of injury during employment, or had made sure that an inconsistent defense was not taken in the workers' compensation proceeding, it would not now be looking at a significant civil damages exposure.

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New EEOC Rule Is Good News For Employers

POSTED BY SCOTT T. SILVERMAN ON APRIL 2, 2012

Do you ever get the idea that all developments out of Washington, DC are bad for employers?  Well, at least in this instance, there is some good news for a change.

On March 29, 2012, the EEOC issued its Final Rule on Disparate Impact and "Reasonable Factors Other Than Age" Under The Age Discrimination in Employment Act. http://www.eeoc.gov/laws/regulations/adea_rfoa_qa_final_rule.cfm

The U.S. Supreme Court had previously criticized the prior EEOC regulation, which had required employers to prove a "business necessity" for policies that had a disproportionate effect  on workers over 40.  Now, in response to a disparate impact claim, employers must only show that their practices are based on a "reasonable factor other than age," which is the RFOA defense.  As explained by the EEOC, the RFOA defense is much easier to prove than "business necessity."

The Final Rule does two (2) things: (1) it clarifies that the RFOA defense may be used in response to a disparate impact claim, not "business necessity"; and (2) it explains how the RFOA applies.  Importantly, an employer is only required to assert a RFOA defense when the employee has identified a specific employment policy or practice, and established that the practice harmed older workers substantially more than younger workers.  This is a tough standard for an employee to meet.  Moreover, even if the employee satisfies the test, to qualify for the RFOA defense, the employer must only show that it  reasonably designed and administered its policy to achieve a legitimate business purpose in light of the circumstances.

In summary, the employer must demonstrate: (1) that the criteria utilized in the policy or practice is related to a legitimate business purpose; (2) that managers and supervisor were given guidance or training on how to apply the factor to avoid discrimination; (3) that managers or supervisors were given limited discretion to assess employees subjectively; (4) that the adverse impact on older workers was assessed; and (5) the employer took steps to reduce harm to those in the protected age group.

Employers thus now have an easier defense to disparate impact age claims and specific guidelines to assert the defense.  Welcome news for once!

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Horse Doctors Make House Calls: A Lesson in Why Boilerplate Non-Compete Agreements May Not Hold Up in Court

POSTED BY RICHARD D. TUSCHMAN ON APRIL 2, 2012

Non-compete agreements need to actually prohibit the competitive activities at which they are aimed.  Thus, they must reflect the reality of the businesses for which they are drafted. 

So, if you are drafting or reviewing a non-compete agreement, it's critical that you consider not only what the business does, but how it does it- and how a former employee might be able to take away business notwithstanding that boilerplate language you were thinking about using.

A recent decision by Florida’s Fifth District Court of Appeals illustrates the problem of boilerplate language.  The former employee, an equine veterinarian, signed a non-compete agreement, which provided:

B. During the term of this agreement, and for a period of two (2) years after termination thereof, Employee shall not own, manage, operate, control, be employed by, assist, participate in, or have any material interest in any business or profession engaged in general equine veterinary practice located within a thirty (30) mile radius of 19801, County Road 561, Clermont, Florida [the employer’s business address].. 

All that boilerplate – “own, manage, operate, control, be employed by, assist, participate in, or have any material interest in” – sounds pretty impressive, right?

Not in this case.  Think about it – did you ever take your dog or cat to the vet's office and see a horse in the waiting room?   I didn't think so. The problem for the employer here was that equine veterinarians typically make house calls (or stable calls).  So, the location of an equine veterinarian’s office is unimportant – it's where the horses are that counts.  Because the plain language of the agreement did not prohibit the former employee from providing her services within the 30-mile radius, the 5th DCA reversed the trial court's injunction against the former employee.  The non-compete agreement, and all of its boilerplate language, was ultimately useless.

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Don’t Ignore that IRS Notice of Levy - And Don’t Fire the Employee

POSTED BY RICHARD D. TUSCHMANON MARCH 30, 2012

An IRS ”Notice of Levy on Wages, Salary and Other Income” arrives in your mailbox concerning one of your employees? What do you do?  

First, don’t panic.  This is primarily a problem for the employee, whom the IRS has identified as being delinquent in certain tax payments.  

But don’t ignore the notice, either.  As the taxpayer’s employer, you have a legal obligation to levy the employee’s wages in accordance with the instructions set forth in the notice.  

Ah, the instructions.  They are a bit complicated. So read them carefully.  Then read them again to be certain you know what you’re doing. Basically, though, you need to inform the employee immediately of the notice, give the employee three working days after you receive the notice to claim exemptions, and then calculate the amounts that are exempt from levy using IRS Publication 1494.  Then begin levying the employee’s wages until the IRS sends you a release of levy.  Note that the usual restrictions on the amount of wages that can be garnished do not apply to levies from the IRS or state taxing agencies.  

Levying an employee’s wages is a major headache, right?  You bet.  Can you fire the employee for putting you through this?  No, at least not for a one-time levy.  A federal statute, 15 USC 1674 (part of the Consumer Credit Protection Act) provides:  “No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.”  So take an Advil, grab your calculator, and let the levying begin.

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Manager’s Opposition to Employer’s Handling of Rape Allegations Not Protected Activity, Rules Eleventh Circuit

POSTED BY RICHARD D. TUSCHMAN ON MARCH 28, 2012

Title VII generally protects employees who oppose employment practices made unlawful by Title VII, such as sexual harassment.  But what happens when a manager disagrees with the way in which her employer handles an internal investigation into an allegation of sexual harassment?  Is the manager engaging in protected activity by voicing her disagreement?  That was the issue addressed by the Eleventh Circuit Court of Appeals in Brush v. Sears Holdings Corp., Case No. 11-10657 (11th Cir., March 26, 2012) (unpublished). 

Brush was a loss prevention manager who was charged with investigating allegations of sexual harassment made by a store employee.  Brush met with the employee alone.  The employee alleged that her boss had raped her.  But the employee requested that neither her husband nor the police be informed of the rape.  Brush told her own boss of the employee’s allegations and insisted that the company needed to contact the police.  The company declined, citing the incomplete status of the investigation and the employee’s own desire not to involve the police.

The company subsequently terminated Brush for violating the company’s sexual harassment policy in meeting with the employee alone, in suggesting to the employee that she had been raped without asking an open-ended question to see what the employee said, and in failing to properly investigate the claim by obtaining video evidence. 

Brush sued the company, alleging retaliation in violation of Title VII.  Brush asserted that her opposition to the company’s handling of the employee’s allegations constituted protected activity.  The district court disagreed and dismissed Brush’s complaint. 

On appeal, the Eleventh Circuit affirmed the lower court’s ruling.  “Brush’s disagreement with the way in which Sears conducted its internal investigation into [the employee’s] allegations does not constitute protected activity,” the court wrote.  “Since there is no evidence of Brush’s opposition to any unlawful practice [of Sears], it follows that Brush can support no claim under Title VII.”  While Brush opposed Sears’ failure to call the police, “[s]he has cited no state or federal law that would have mandated Sears take some action other that what it took.”

The court also rejected Brush’s argument that a manager’s role in reporting a Title VII violation always qualifies as a protected activity.  In so doing, the court adopted the “manager rule” that has been adopted by other circuits.  Under this rule, a management employee who, in the course of her normal job performance, disagrees with or opposes the actions of an employer is not engaging in protected activity.   

For employers in the Eleventh Circuit, the Brush decision creates a valuable defense to claims of retaliation by manager-level employees. 

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"ABC's Session" Gets Back to Basics at Akerman's 17th Annual Labor & Employment Law Seminar

POSTED BY JENNIFER WILLIAMS ON MARCH 28, 2012

The more things change, the more they stay the same. As labor and employment lawyers, in-house counsel, and human resources professionals, we are thrown into a whirlwind of complex workplace legal issues on a daily basis. No matter what the issue, though, I find that these fundamental questions pop up on a consistent basis: 

  • Is this employee eligible for FMLA leave?
  • Does this medical condition count as a "disability"?
  • How many employees in a layoff trigger WARN Act notice?
  • Do we have to accommodate employees’ religious beliefs?
  • What are "protected characteristics" under Title VII?
  • How do I notify employees of their COBRA rights?

At the annual Akerman Labor & Employment Seminar, we will address these questions and much more during the ABC's of Labor & Employment Laws session. We will cover basic knowledge of several labor and employment laws we encounter every day: Title VII, ADEA, FMLA, ADAAA, WARN, Florida's Whistleblower Act, OSHA, and USERRA.

Even the most experienced human resources professionals and legal experts will find something new to add to their knowledge base, making them a better resource for their respective organizations. Join me for this interactive session as we get back to basics. To learn more about the Akerman Labor & Employment Law Seminar, please visit http://www.akerman.com/events/LELS12/overview.asp

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Whistleblower and Retaliation Claims - Hot Topic at Akerman's 17th Annual Labor & Employment Law Seminar

POSTED BY ERIC GORDON ON MARCH 23, 2012

You have done everything right. You provide a legitimate, non-discriminatory reason for taking an adverse employment action against one of your employees. You provide all the evidence any jury could ever want, which you believe shows that the employee was never treated differently than other similarly situated employees. You think you are a sure bet for winning summary judgment. Right? Wrong! You just forgot about one of the largest problems in employment discrimination:  the retaliation claim.

Employers are prohibited under various provisions of state and federal law from retaliating against employees who engage in certain protected activities and/or who “blow the whistle” on employer misdeeds. Indeed, the Florida legislature has enacted specific “whistleblower” statutes designed to protect employees in the private and public sectors and incorporated anti-retaliation provisions into numerous other state and local laws. None of these specific statutes require any finding of discrimination.

It is important for employers in Florida to be mindful of the federal, state, and local prohibitions as whistleblower and retaliation claims are forever on the rise and although retaliation claims may be brought in isolation, more often than not, they are coupled with claims alleging underlying statutory violations. And, as recent decisions highlight, the law of retaliation continues to expand. In fact, the EEOC has reported that in 2011, it received 37,334 charges of retaliation under Title VII, the ADEA, the ADA and the EPA – which represents 37.4% of all charges of discrimination filed with the EEOC in 2011 – making retaliation claims the most popular employee claims in 2011.

Whistleblower and retaliation claims are at an all-time high. For more information about recent case decisions that are shaping how the courts and administrative agencies are dealing with these claims, we hope you will join us at Akerman's 17th Annual Labor & Employment Law Seminar on April 19, 2012. To learn more, please visit http://www.akerman.com/events/LELS12/overview.asp

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Is Pregnancy Discrimination Legal Under Florida Law? Courts Are Divided.

POSTED BY RICHARD D. TUSCHMAN ON MARCH 12, 2012

The Florida Civil Rights Act, which, among other things, prohibits sex discrimination in employment, does not prohibit pregnancy discrimination, according to a recent decision by a federal judge in Florida.

If that sounds crazy, think again. The court’s decision in Berrios v. University of Miami, Case No. 11--CIV-22586-UU (S.D. Fla., March 1, 2012) is supported by logic and precedent. However, there is a split among courts on the issue.

Here’s the logic. Congress enacted Title VII in 1964, thereby prohibiting sex discrimination in employment. Five years later, the Florida legislature passed the Florida Human Relations Act, which prohibited discrimination based on “race, color, religion, or national origin.” In 1972, the Florida legislature amended the Florida Human Relations Act to ensure “freedom from discrimination because of sex.” In 1976, the Supreme Court ruled in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) that Title VII did not prohibit pregnancy discrimination. Because Florida law provides that a Florida statute patterned after a federal law will be given the same construction as the federal courts give the federal act, it was clear after Gilbert that the Florida Human Relations Act did not prohibit pregnancy discrimination, either. Subsequent amendments to the Florida Human Relations Act (including changing its name to the Florida Human Rights Act (“FHRA”) did not add pregnancy as a protected status, despite the Supreme Court’s decision in Gilbert.

In 1978, in response to Gilbert, Congress enacted the Pregnancy Discrimination Act (“PDA”), which amended Title VII to by re-defining sex discrimination to include discrimination on the basis of pregnancy. Yet Florida did not amend the FHRA in the years following the enactment of the PDA. In 1991, Florida’s First District Court of Appeal in O’Loughlin v. Pinchback, 579 So. 2d 788, 791-92 (Fla. 1st DCA 1991), concluded that the FHRA did not prohibit pregnancy discrimination.

In 1992, the Florida legislature amended the FHRA, including changing its name to the Florida Civil Rights Act of 1992. Still, despite O’Loughlin, these amendments did not modify the statute’s references to sex discrimination or otherwise suggest an intention to prohibit pregnancy discrimination. The language of the FCRA prohibiting discrimination on the basis of sex continued to include the pre-PDA language of Title VII. Thus, the Florida Civil Rights Act does not prohibit discrimination.

That’s the logic, anyway. In Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), Florida’s Fourth District Court of Appeals reached a different conclusion. Noting that when Congress enacted the PDA, it “expressed its disapproval of both the holding and the reasoning of Gilbert,” the Fourth DCA concluded that “Congress made clear in 1978 that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination.” Because the FCRA is patterned after Title VII, the Fourth District reasoned, "it follows that the sex discrimination prohibited in Florida since 1972 included discrimination based on pregnancy[.]"

Until the Florida Supreme Court decides the issue, whether a woman can state a cause of action for pregnancy discrimination under the Florida Civil Rights Act will depend on the court in which she litigates her case. In addition to the split among the First and Fourth district courts of appeal, federal courts in Florida are also divided on this issue. Compare Duchateu v. Camp Dresser & McKee, Inc., 2011 WL 4599837 (S.D. Fla. 2011) (holding that under Florida law, the FCRA does not include a cause of action for pregnancy discrimination); Boone v. Total Renal Labs., Inc., 565 F. Supp. 2d 1323, 1326-27 (M.D. Fla. 2008) (same), Whiteman v. Cingular Wireless, LLC, Case No. 04-80389-CIV-PAINE, D.E. 114 at 11 (S.D. Fla. May 3, 2006) (same), aff’d, 273 F. App’x 841 (11th Cir. 2008) (per curiam), and Frazier v. T-Mobile USA, Inc., 495 F. Supp. 2d 1185, 1187 (M.D. Fla. 2003) (same), with Constable v. Agilysys, Inc., 2011 WL 2446605, at *6 (M.D. Fla. June 15, 2011) (concluding that the FCRA does provide a cause of action for pregnancy discrimination), and Terry v. Real Talent, Inc., 2009 WL 3494476, at *2 (M.D. Fla. Oct. 27, 2009) (same).

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NLRB Posting Rule Upheld

POSTED BY SCOTT T. SILVERMAN  AND NEFERTARI S. RIGSBY ON MARCH 6, 2012

On March 2, 2012, Judge Amy Berman Jackson of the United States District Court for the District of Columbia held that the National Labor Relations Board ("Board") lawfully promulgated Subpart A of its Rule, “Notification of Employee Rights under the National Labor Relations Act" which requires employers to post a notice of employee rights.  However, the Board exceeded its authority under the NLRA by promulgating the two provisions under Subpart B of the Rule that permit the Board to deem failure to post an unfair labor practice and to toll the statute of limitations for claims against employers who fail to post the notice.

In National Association of Manufacturers, et al. v. National Labor Relations Board, et al., Civil Action No. 11-1629 (ABJ) (D.D.C.), the court considered plaintiffs' legal challenges to the Rule under the Administrative Procedures Act ("APA") and the First Amendment to the United States Constitution.  Regarding the argument that the Board had violated the APA, Judge Jackson found that the Board had not  exceeded its authority under the NLRA and that its Rule was reasonable and neither arbitrary nor capricious.  In addition, the Rule did not violate the First Amendment, because the required notice poster is clearly a communication from the Board. Therefore, it is compelled "government speech," which is not subject to free speech scrutiny.

However, Judge Jackson held that the remedial provision in the Rule stating that a failure to post a notice is an unfair labor practice was an invalid "blanket determination."  Instead, the Board must consider the circumstances of each failure to post claim and make specific findings before it can find an unfair labor practice. Similarly, Judge Jackson found that universal tolling of the statute of limitations for unfair labor practice claims against noncompliant employers was invalid.  Again, the Board must make an individualized determination as to any tolling claim.

Based on Judge Jackson's ruling that the Board's notice posting requirement is valid, all employers should plan to comply on April 30, 2012.   Although the ruling from Judge Jackson states that a failure to post a notice cannot be  considered a per se unfair labor practice and that tolling of the statute of limitations must be made on a case-by-case basis, these remain possible remedies that the Board may impose against a violating employer. The Board will need to revise Subpart B of its Rule, but it is fully expected that Subpart A will be effective as of April 30, 2012.

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OSHA Elevates Priority for Whistleblower Enforcement Under 21 Federal Statutes

POSTED BY RICHARD D. TUSCHMAN ON MARCH 5, 2012

The Occupational Safety and Health Administration announced last week a “major restructuring” of its Office of the Whistleblower Protection Program that reflects an increased priority for federal whistleblower protections.

The program will now report directly to the agency's Office of the Assistant Secretary instead of to its Directorate of Enforcement Programs, according to OSHA’s press release.

So what’s the big deal, you say?  It’s just a bureaucratic reshuffling in an agency that only addresses workplace safety issues, right? 

Well, not exactly.  While OSHA is charged with enforcing the Occupational Safety and Health Act and its whistleblower provisions, Congress has also empowered OSHA to enforce the whistleblower provisions of twenty other federal laws, including the Sarbanes-Oxley Act, the Consumer Financial Protection Act of 2010 (part of the Dodd-Frank Act), and the Surface Transportation Assistance Act.

So when OSHA makes a change that “represents a significantly elevated priority status for whistleblower enforcement,” as OSHA’s press release states, that is a big deal. 

It remains to be seen what the increased priority for whistleblower protection means in practice.  But among the changes, according to news accounts, is that OSHA will be adding investigators and strengthening the training of its investigators.  For employers, that likely means more “cause” findings and more penalties.

We will keep you posted as we learn more.

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No, You Can’t Fire Employees For Being Out on Jury Duty

POSTED BY RICHARD D. TUSCHMAN ON FEBRUARY 24, 2012

A former Orlando-based employee of a national trucking company has filed a lawsuit claiming that she was terminated for serving on a federal jury, according to a recent article in the Orlando Sentinel.    In an unusual move, the court has appointed a lawyer to represent the former employee.

Whether or not the employee’s allegations are true, employers should remember that both federal and state laws make it illegal to terminate an employee for serving on a jury -- regardless of the length of service.

Under federal law, employers held liable are responsible for reinstating the employee, paying the employee’s lost wages and attorney’s fees, and paying a fine of up to $5,000. Under Florida law, employers held liable are responsible for paying the employee compensatory damages, attorney’s fees, and punitive damages.

Neither federal nor Florida law requires employers to pay jurors while they are serving on a jury. However, some county ordinances in Florida, and some states’ laws, do require employers to pay their employees while serving. 

If you have employees who have been called to serve on a jury, congratulate them for fulfilling their civic duty, hold their jobs open, and hope that it’s a short trial.  And ask an employment lawyer for advice if you are uncertain about your legal obligations.

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