Richard D. Tuschman

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On Second Thought, Wage Ordinance Does Not Expand Federal Court’s Jurisdiction

Miami-Dade County’s prevailing wage ordinance, which sets minimum wages on publicly funded construction projects, does not authorize plaintiffs to litigate prevailing wage claims in court under the auspices of the Fair Labor Standards Act, according to a recent court decision, Calderon v. Form Works/Baker JV, LLC (S.D. Fla., December 12, 2013).  The opinion is a reversal of the court’s prior … Continue Reading

In Employment Arbitrations, Prevailing Party Fee Provision “Chills” But is Not Cool

In recent years the United States Supreme Court has ruled in favor of businesses in several cases involving the enforceability of arbitration agreements.  But as illustrated by a recent decision by Florida’s Second District Court of Appeal, Hernandez v. Colonial Grocers, Inc., courts will decline to enforce arbitration agreements that have a “chilling effect” on the filing of employment-related … Continue Reading

Aery is Scary for Florida Whistleblower Act Defendants

The Florida Whistleblower Act (“FWA”) prohibits employers from retaliating against employees who object to, or refuse to participate in, the employer’s violation of a law, rule, or regulation.  But most courts have held that an employee must show that he opposed an actual violation of a law, rule or regulation; a good faith belief that a violation occurred or is … Continue Reading

It’s Official – Offering Full Monetary Relief Without a Judgment Will Not Moot FLSA Case

Last year we reported on the Eleventh Circuit’s decision in  Zinni v. ER Solutions, Inc. (11th Cir., August 27, 2012), which seemed to signal that a defendant in a Fair Labor Standards Act case cannot moot the case by offering full monetary relief to the plaintiff without also offering a judgment to the plaintiff.  The issue is significant because … Continue Reading

Can Employer Who Has Granted Employee’s FMLA Request Dispute Employee’s FMLA Eligibility?

An employee sends an email to her manager requesting FMLA leave to care for her father “while he deals with issues surrounding his terminally ill brother.”  The supervisor writes back, “Approved,” and the employee takes leave.  Neither the FMLA nor the employer’s FMLA policy allows leave to care for a terminally ill uncle.  Based on the employee’s absence, the employer … Continue Reading

Continued Employment in Dead-End Job May Entitle Employee to Incentive Benefits

In Florida, employee handbooks, procedure manuals, and other statements of an employer’s policy are generally non-binding and do not give rise to enforceable contract rights.  But suppose an employer induces an employee to continue working by offering a long term incentive plan? That was the issue addressed in a recent decision by Florida’s Fourth District Court of Appeal, Turton v. Continue Reading

Urging an Employee to Retire is Not Necessarily Evidence of Age Discrimination

Mandatory retirement is generally unlawful under the Age Discrimination in Employment Act.  So when an employer urges an employee to retire, isn’t this evidence of age discrimination that an employer should avoid?

Not necessarily, as illustrated by a recent decision by the Eleventh Circuit Court of Appeals, Woolsey v. Town of Hillsboro Beach (11th Cir., September 6, 2013).

James Woolsey … Continue Reading

Keeping the Jury at Bay: Workers’ Compensation Retaliation Claim is Subject to Arbitration

A workers’ compensation retaliation claim must be arbitrated under the parties’ arbitration agreement, according to a recent decision by Florida’s Second District Court of Appeal, Audio Visual Innovations, Inc. v. Spiessbach (Fla. 2d DCA, August 16, 2013).

Michael Spiessbach injured his back while working for Audio Visual Communications, Inc. (AVI).  He claimed that after filing a claim for workers’
Continue Reading

Employer’s Back Door Settlement of FLSA Claim Backfires

An employer’s settlement of a Fair Labor Standards Act claim directly with a former employee rather than with the former employee’s attorney was invalid and should not have been approved by the federal district court, according to a recent decision by the Eleventh Circuit Court of Appeals, Nall v. Mal-Motels, Inc. (11th Cir., July 29, 2013).

Candace Nall worked … Continue Reading

Yes, You Can Fire an Employee Because She is Hot, Iowa Supreme Court Affirms

Last year we reported on the Iowa Supreme Court’s decision in Nelson v. James H. Knight, DDS (Iowa, December 21, 2012), in which the court held that a dental practice did not discriminate against a female assistant by terminating her because her good looks and personal relationship with the dentist triggered jealousy on the part of the dentist’s wife.  The … Continue Reading

Supreme Court Affirms Narrow Definition of Supervisor Under Title VII

The Supreme Court has ruled in Vance v. Ball State University that the authority to take tangible employment actions is the defining characteristic of a supervisor, and that without such authority an employee is not a supervisor for purposes of analyzing an employer’s liability under Title VII of the Civil Rights Act of 1964.

The significance of the Vance case … Continue Reading

Silence is Golden for Employee Suspended Without Pay

Employers:  Read and understand your employment agreements with your employees, and don’t assume you have contractual rights that are not spelled out in the agreements.  Those are among the lessons to take from a recent decision by Florida’s Second District Court of Appeal, Nancy Havens, D.D.S. v. Coast Florida, P.A., Case No. 2D12-1047 (June 12, 2013).

Nancy Havens is … Continue Reading

When Bad Things Happen to Good Employers: An Equal Employment Opportunity Update

I’ve had many clients tell me they can’t believe they’re being sued for discrimination. They tell me they treat their employees fairly, that they’re not bigoted, that they would never discriminate against employees on the basis of their race or ethnicity or age or disability. They tell me they believe in equal opportunity, that their own nephew has a disability, … Continue Reading

No, Pregnancy Discrimination is Not Legal in Florida (Despite What You May Have Read)

I just read an article entitled “Florida lawmakers look to end discrimination against expecting mothers.”  Posted on the website of a Fox News affiliate, the article begins by stating:

Pregnant women throughout the United States are protected from employment discrimination under federal law, but that’s not necessarily the case in Florida. Two state lawmakers are now trying to change that Continue Reading

Yes, Dear, I Will Fire My Employee Because She is “Hot”

Can a boss fire an employee simply because he finds her attractive?  Yes, according to the Iowa Supreme Court in a recent decision, Nelson v. James H. Knight, DDS (Iowa, December 21, 2012).  And, lest you conclude that the case is an anomaly, the decision relies heavily on a 1990 decision by the Eleventh Circuit Court of Appeals (which covers … Continue Reading

Independent Contractor and Former Employee May Be Bound by Non-Compete Agreement, Florida Court Rules

Section 542.335 is the Florida statute that governs non-compete agreements.  As most practitioners know, the statute is not limited to employment relationships.  Thus, it is not uncommon for businesses and independent contractors to enter into non-compete agreements.

But what happens when an employee who has signed a non-compete agreement becomes an independent contractor of that business?  Can the worker be … Continue Reading

Employees Have a (Limited) Duty of Loyalty under Florida Law

It has long been established under Florida law that employees have a duty of loyalty to their employer.  Secretly assisting a competitor, or soliciting customers or employees for the benefit of a future employer, generally violates the employee’s duty of loyalty.

But certain actions that an employer may view as disloyal do not breach an employee’s duty. “Blowing the whistle” … Continue Reading

Should Employers Be Concerned About Broward County’s Wage Ordinance? Probably Not.

On January 2, 2013, Broward’s new wage ordinance goes into effect.  Originally titled “Wage Theft,” the ordinance, codified at Chapter 20 ½ of the Broward County Code of Ordinances, is now called “Non-Payment of Earned Wages.”  Regardless of its name, business groups vigorously opposed the ordinance, claiming it was unnecessary and duplicative of existing laws.  They were right.  But for … Continue Reading

Will Offering Full Monetary Relief Without a Judgment Moot an FLSA Case?

As has been widely reported, it appears that the Supreme Court, by granting certiorari in Genesis HealthCare Corp. v. Symczyk, 656 F.3d 189 (3d Cir. 2011), may soon be deciding whether an offer of judgment for full relief under Rule 68 moots an FLSA case; or, alternatively, whether the case should survive to allow the collective action certification process … Continue Reading

Can a Private Sector Employer Use Comp Time?

A private sector client recently asked me if the company could permit “comp time” — allowing nonexempt employees who work overtime to take compensatory time off at a later date rather than receive overtime pay at one and one-half their regular rate of pay.

The short answer is no, the Fair Labor Standards requires nonexempt employees in the private sector … Continue Reading

Is a General Assignment Clause Sufficient under Florida’s Non-Compete Statute?

Florida’s statute governing the enforcement of non-compete covenants provides that a court may enforce such covenants in favor of an assignee or successor, provided that “the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.”  §542.335(1)(f).

Is a general assignment clause in an agreement that contains a non-compete covenant sufficient under the statute?  The answer to that question … Continue Reading

Statute of Frauds Bars Employment Contract Claim, Rules Florida’s Third DCA

The old adage “get it in writing” remains good advice, as illustrated by a recent decision by Florida’s Third District Court of Appeal, LaRue v. Kalex Construction and Development, Inc., Case No. 3D11-2368 (Fla. 3d DCA, August 22, 2012).

Rose LaRue began working for Kalex Construction and Development in February 2006 as a vice-president.  After her termination in December … Continue Reading

Third DCA Holds that Florida Civil Rights Act Does Not Prohibit Pregnancy Discrimination, Certifies Conflict with Fourth DCA

Florida’s Third District Court of Appeal is the latest appellate court in Florida to rule that the Florida Civil Rights Act (“FCRA”) does not prohibit pregnancy discrimination.

In Delva v. The Continental Group, Inc., the court ruled that the plaintiff’s claim of pregnancy discrimination under the FCRA failed to state a cause of action.  The court agreed with the … Continue Reading

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