Richard D. Tuschman

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The Importance of Written Employment Offers

Although written employment contracts or offer letters are not required by Florida law, employers should clearly state the terms of a new hire’s offer in writing to avoid any misunderstandings – or, worse, claims of breach of contract or fraudulent inducement.

A recent case from Florida’s Fourth District Court of Appeals, Ioannides v. Romagosa (Fla. 4th DCA, July 11, 2012)Continue Reading

Offering to Settle an EEOC Charge Can be Unlawful

An employer’s unconditional offer of a light-duty position to a pregnant employee became a conditional offer after the employee filed an EEOC charge, and was rescinded when the employee refused to withdraw her charge. That was unlawful retaliation in violation of Title VII, according to the Eleventh Circuit in a recent decision, Chapter 7, Trustee v. Gate Gourmet, Inc. (11th Continue Reading

Premarital Sex is Not Protected Under Title VII – But Pregnancy Is

Premarital sex is not protected activity under Title VII.  But it can lead to pregnancy, which is a protected status under Title VII.  Which raises the question:  can an employer use an employee’s pregnancy as evidence of premarital sex, and terminate her employment because the employer has a moral objection to premarital sex?

The answer is yes.  But as the … Continue Reading

EEOC Updates Enforcement Guidance on Arrest and Conviction Records

The Equal Employment Opportunity Commission has updated its enforcement guidance on employers’ use of arrest and conviction records in making employment decisions.

The enforcement guidance consolidates and clarifies prior EEOC guidance in light of judicial decisions on the use of arrest and conviction records.  The guidance clarifies that the selective use of arrest and conviction records may constitute disparate treatment … Continue Reading

Transgender Workers Are Protected by Title VII, Rules EEOC

The EEOC has ruled that claims of discrimination based on transgender status, also known as “gender identity,” are protected by Title VII.

In a decision issued on April 20, 2012, the agency found that the claims of Mia Macy (“Macy”), a transgender woman who had applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATFE”), were … Continue Reading

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

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, … Continue Reading

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

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 … Continue Reading

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

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 … Continue Reading

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

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 … Continue Reading

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

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. … Continue Reading

OSHA Elevates Priority for Whistleblower Enforcement Under 21 Federal Statutes

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 … Continue Reading

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

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 … Continue Reading

Serious and Willful OSHA Violations: What’s the Difference?

It’s never good news when the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) cites your business for violations. But there’s bad news, and really bad news, and a recent case in South Florida illustrates the difference.

On February 8, 2012, OSHA announced that it cited Hialeah-based Bennett Electrical Services Co. Inc. for three safety violations after an … Continue Reading