Florida Employment Law Blog - An Honest Days Work Deserves An Honest Days Pay

The current dire economic downturn has lead to many employees being being paid less that the minimum wage or discharged for reasons other than their job performance. Both of these scenarios can be violations of both Florida and Federal laws.

Service Industry Workers - Many people get paid less than the minimum wage but also get tips. If you think that your job is illegally sharing tips with other employees, contact a labor attorney such as Lowell J. Kuvin, who handles these type of issues.

Hourly Employees - If you are an hourly employee you should be paid for every hour you work, plus time and one half for every hour you work of overtime. The law requires that your employer keep accurate time records of when you come to work and when you leave. Sometimes, in order to save on wages, employers shave hours off the time clock each week. Are you paid for breaks? Are you paid for lunch time? If you need answers to complicated labor questions, please contact a labor attorney such as Lowell J. Kuvin, who handles these type of issues.

Discrimination is prohibited by both Florida and Federal laws. Some of the laws that protect workers are:

* Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;

* the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;

* the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;

* Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;

If you think you have been discriminated against while at work, contact a labor attorney such as Lowell J. Kuvin, who handles these type of issues.* Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and
* the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

Miami-Dade Has New Wage Theft Ordinance

Miami-Dade has become the first county in the nation to adopt a countywide wage theft law, and hopefully it will not be the last. The Ordinance, which became effective on March 1, 2010, applies to private sector employees and employers, prohibits wage theft, and provides administrative procedures and private causes of action. An employer found to be in violation of the wage theft Ordinance will be required to pay the actual administrative processing and hearing costs as well as restitution to the employee, which would include back wages owed as well as liquidated damages of double that amount and possibly treble damages.

What this means for employers in Miami-Dade County is that a simple oversight or misunderstanding regarding which employees can be classified as exempt or as independent contractors under the Fair Labor Standards Act ("FLSA"), may now lead to a finding that the employer has committed "wage theft."

According to a report from the Office of Commission Auditor, which accompanied the Ordinance, for the past five years the Southern District of Florida (the federal trial court with jurisdiction over Miami-Dade County) has had a disproportionately high number of FLSA cases filed. Nevertheless, the summary that accompanied the Ordinance reflects the Commission's belief that the requirement for employees to opt-in to a FLSA class action lawsuit hampers their ability to seek remedial action in courts. Thus, the summary states that the Ordinance "is intended to be a tool to root out violations of U.S. labor laws occurring in Miami-Dade County."

According to the Ordinance, a "wage theft violation" occurs when an employer fails to pay any portion of the wages due to an employee, according to the wage rate applicable to the employee, within a reasonable time from the date on which that employee performed the work for which the wages are compensation. The Ordinance defines reasonable time as no later than 14 calendar days from the date the work was performed; however, this time may be modified to no longer than 30 days by an express agreement between the employer and employee that has been reduced to writing and signed by the employee.

The Ordinance defines wage rate as "any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether daily, hourly, or by piece." Thus, this provision could be interpreted more broadly than the employee's "regular rate" under the FLSA. Once an employee brings a timely claim that wage theft has occurred, the accused employer will have to defend itself before a county-appointed hearing examiner.

The Ordinance does not set out requirements or qualifications a person must possess to be appointed a hearing examiner; thus, it is possible the hearing examiner may not be a judge or attorney or have a background in labor and employment law. The mechanics of the hearing, as set out in the Ordinance, will be like a trial, including discovery in accordance with the Florida Rules of Civil Procedure. Employers will have to be very careful with this process because an employee can choose at any time to stop the proceedings under the Ordinance and file a civil action in State or Federal Court (for violation of state or federal wage/hour laws, which would likely be the basis for the wage theft allegation).

Also, should a hearing examiner find the employer in violation of the wage theft Ordinance, the hearing examiner can award damages of up to three times the amount of the unpaid wages.

Employers' Bottom Line: Employers in Miami-Dade County need to be more vigilant than ever to ensure that employees are properly classified and promptly paid for all work performed. A stringent review of employees currently classified as exempt or as independent contractors, conducted at the direction and supervision of experienced employment law counsel, is recommended to ensure complete compliance with the FLSA.

Employers should also set out in writing when wages will be paid and have the employees sign this written timeline of payments. (Note that the Ordinance only permits the employer to extend the time for payment of wages to up to 30 days from the date the work is performed and then only with the written agreement of the employee.) Additionally, employers will need to review their time keeping polices and make sure that accurate time records are being kept and that all time worked by employees is being recorded. While most employers only keep time records for nonexempt employees, it may be prudent to require exempt employees to do so as well. If a hearing officer determines that an employee is improperly classified as exempt, the employer will have the burden of proving actual time worked. Without accurate records, the employee can estimate the time and the hearing officer will base the wage calculation on that estimated time.

Five Laws That Protect You During Layoffs

Being laid off is an emotional event that can leave you feeling wronged. Knowing the difference between an illegal layoff and an unfair layoff can help you decide whether to fight or move on.

"It's difficult for employees to see layoffs from an objective perspective," says Marilyn Conyer, vice president of Accord Human Resources, an Oklahoma City HR consulting firm. "Many times when employees lay out the facts of a layoff, we don't think it's fair either, but there's nothing illegal about what the company did."

Employment in most states is "at will," meaning you can quit or the company can fire you without cause. However, companies still have to follow federal and state employment laws covering issues such as discrimination, whistleblowing and layoff notices.

Five major federal laws protect laid-off employees. States have their own laws about employment, so to be sure your layoff wasn't illegal, check with a local attorney.

Discrimination Laws

How can you tell if your layoff was discriminatory? Consider all the reasons you were laid off, says Sarah Beth Johnson, an attorney at Fox Rothschild LLP in Atlantic City. If there's even one other explanation for why you were let go, the discrimination charge likely won't stick.

"If you're the worst employee ever and you're older, that's not enough," she says. "It really has to be that you were told you're too old for the job, or you're a black woman who can point to a white male who's your peer in every way and you got laid off and he didn't."

It is legal to lay off a highly paid older worker. "If I can fire you and hire two people for your salary who do twice the work, I'm allowed to do that," Johnson says.

If you think discrimination played a part in your layoff, contact a lawyer or the Equal Opportunity Employment Commission (EEOC). The EEOC will listen to your story, question your former employer, make a finding and issue a right-to-sue letter you can take to an attorney, Conyer says. You can sue regardless of whether the EEOC finds in your favor.

Federal laws that prohibit discrimination include:

* Title VII of the Civil Rights Act of 1964, which prohibits companies from making employment decisions based on race, religion, sex (but not sexual orientation), pregnancy or national origin, explains Neil Patrick Parent, an attorney with Reavis Parent Lehrer LLP in New York City. * Title I and Title V of the Americans with Disability Act of 1990, which prohibit employment discrimination against those with disabilities.

* The Age Discrimination in Employment Act of 1967, which protects workers 40 and older.

* The Older Workers Benefit Protection Act, which covers workers over 40 caught in a group layoff. The law gives you extra time to consider any severance waiver your employer offers and a week to change your mind after signing a waiver.

Big Company Layoffs

If your employer is large, The Worker Adjustment and Retraining Notification Act, which sets rules for notifying workers about large layoffs and plant closures, may cover you.

Handbooks, Severance Not Binding

Employee handbooks typically cover layoffs, severance, pay for unused vacation and your duty to return company equipment, Johnson says.

However, an employer can change the rules and then do a layoff under the new rules. "If an employer has reserved the right to change [the handbook] -- and most do that -- they can change it," says Karen McLeese, vice president of CBIZ, a Kansas City, Missouri, HR consulting firm.

A company can also say it's broke so no one gets severance. "Severance [is] an unsecured promise to pay unless they've funded it into a trust," McLeese says.

Severance Releases

When severance is offered, you may have to sign a waiver releasing the company from future claims. When helping clients decide whether they should sign, Julia Murphy, an attorney with Outten and Golden LLP, a Stamford, Connecticut, firm that represents only employees, discusses the circumstances surrounding the layoff.

"Why were you picked? Did they eliminate your whole department? Do you feel like you're being singled out because you just had a baby or took a disability leave?" she says. If you want to fight the decision or ask for a better severance package, "that's when you need some legal leverage, and that comes from the facts surrounding the termination," she says.

Layoff Lawsuits

Even if you were illegally laid off, it may be tough to pursue your case in court. Johnson warns: If your salary was low, finding an attorney willing to take your case may be difficult.

A lawsuit found in your favor could result in back pay, damages and attorneys' fees. However, those come with a cost. "You have to have the stomach for litigation," Johnson says. "It will take two to four years, unless you have slam-dunk evidence."

During the litigation process, be prepared to talk about topics like your work history and whether you've ever been convicted of a crime. If you claim emotional distress, your medical records will be brought up. Claim lost income, and your employer's attorney will get to see your tax return and your spouse's return, Johnson adds.

In the end, an attorney can tell you whether your layoff appears to be legal or illegal, but only you can determine whether the cost of going after your former employer is worth the effort it will take.

Florida Tops List Of Hot Spots For New FLSA Suits

By Ben James

Law360, New York (February 09, 2010) -- The number of new Fair Labor Standards Act
filings in New York and Texas rose in 2009, but neither state came close to rivaling the
volume of new FLSA cases in Florida. Law360 ranked the five busiest federal courts for
wage-and-hour litigation and found the Sunshine State to be a hotbed of plaintiffs bar
activity.

The U.S. District Court for the Southern District of Florida saw 1,252 new FLSA cases show
up on its docket — either through removal, or the filing of a brand new case — in the 2009
calendar year, according to PACER. The Middle District of Florida wasn't far behind, with 776
new filings.

According to Michael Casey, managing shareholder of EpsteinBeckerGreen's Miami office,
just a handful of plaintiffs firms — including Morgan & Morgan PA, the Pantas Law Firm PA
and The Shavitz Law Firm PA — were responsible for the bulk of FLSA filings in the state.
Some of the suits target large companies, but the majority of Florida's FLSA litigation is
aimed at smaller employers, particularly those in the hospitality industry, according to
Casey.

"I would venture to say that the vast majority of restaurants in Florida are violating the
wage-and-hour law with respect to things like tip credit," Casey said.

Big companies have the resources and wherewithal to put up a big fight when sued, so
Florida's wage-and-hour plaintiffs bar has opted for a "volume approach," which entails
bringing a slew of smaller cases against smaller defendants, he said.

"There are so many hidden pitfalls and technical requirements in the FLSA that the smaller
employers are just unaware of," Casey said. "They lack access to sophisticated advice."
Florida is home to a lot of low-wage, hourly workers, and while many companies have
operations in the state, few have headquarters there, meaning that the workers' compliance
with time-keeping policies may not be closely supervised, added Anne Marie Estevez, a
Miami-based partner with Morgan Lewis & Bockius LLP.

The second-busiest venue for FLSA cases is the U.S. District Court for the Southern District
of New York, which logged 361 new filings in 2009. The U.S. District Court for the Eastern
District of New York came a close third, with 300 new wage-and-hour suits.

New York's four district courts saw a combined 695 new FLSA cases in 2009, up from 547
new suits in 2008 and 388 in 2007.

Lawyers pointed to the New York Labor Law's six-year statute of limitations — double the
three-year statute of limitations for a willful FLSA violation — as one factor behind the rise
of FLSA suits in the state.

Plaintiffs in New York are filing hybrid class and collective actions that are lodged in federal
court under the FLSA but include claims under the state's labor law that permit them to take
advantage of that relatively lengthy statute of limitations, attorneys said.
Restaurants in particular have become a frequent target in those suits, said Orrick
Herrington & Sutcliffe LLP partner Tim Long.

Any state that has wage-and-hour laws that go beyond the FLSA in terms of employee
protections naturally piques the plaintiffs bar's interest, explained Long, adding that New
York has not only about 19.5 million residents, but also plenty of plaintiffs lawyers with class
action expertise.

Though some lawyers argue that opt-in collective actions and opt-out class claims are
inherently incompatible, federal courts in New York have generally been receptive to the
concept of hybrid FLSA/NYLL suits, said Tim Selander, an attorney with Nichols Kaster PLLP,
a firm that represents plaintiffs.

"New York courts have been pretty consistent in saying you can bring an FLSA action with a
Rule 23 state law action," Selander said.

Jackson Lewis LLP partner Paul DeCamp added that cases involving hybrid claims were
starting to make their way up to appeals courts, so some meaningful guidance on those
types of cases might be in the cards.

Another factor in the increased number of wage-and-hour actions in New York's federal
courts is the low number of plaintiffs pursuing cases in state courts relative to their
California brethren, attorneys said. That's due in part to the fact that New York's state law
does not give plaintiffs the option of bringing the plethora of pay practice-related claims that
California's labor law does, Selander said.

With such employee-friendly state laws, plaintiffs in California have little incentive to file
wage-and-hour claims in federal court, Estevez noted.

"Some California lawyers have decided they really don't need the FLSA," she said.
The trend is borne out in the statistics, with the number of new FLSA cases filed in the
Golden State's four federal district courts in 2009 totaling just 298, dipping from 351 the
previous year.

However, when both state and federal wage-and-hour suits are taken into account, Florida
and California are on par with respect to the total volume of cases, lawyers noted.
Rounding out the top five busiest federal courts for wage-and-hour litigation is the U.S.
District Court for the Southern District of Texas, with 231 new filings. Statewide, new FLSA
cases rose to 534 in 2009, up from 348 in 2008.

Estevez said members of the zealous and well-organized plaintiffs bar, which lawyers say is
a major force behind the proliferation of wage-and-hour actions in Florida, had now set their
sights on Texas.

Overall, the number of new FLSA cases in federal courts across the country jumped to 6,165
in 2009, up from 5,227 in 2008, according to PACER.

Some lawyers are skeptical that the dramatic jump in wage-and-hour activity over the past
several years can be maintained in the long term, but they expect to keep seeing high levels
of wage-and-hour filings in the short term.

The FLSA, which was written in the 1930s, has gray areas that companies can potentially
exploit to boost profits at the expense of wages, Selander said.

"As long as those gray areas exist, there are going to continue to be more FLSA cases filed,"
he said.

OSI Restaurants settles suit for $19M

OSI Restaurants settles suit for $19M


TAMPA, Fla.  (Dec. 30, 2009) Outback Steakhouse parent company OSI Restaurant Partners LLC has agreed to pay $19 million to settle a class-action lawsuit filed by women claiming that corporate promotions were tainted by sex discrimination.

The Tampa-based restaurant operator said this week that the consent decree with the U.S. Equal Employment Opportunity Commission “includes no finding of fault on the part of Outback.”

The lawsuit was originally filed in September 2006 on behalf of two Colorado women, Rosalind Martinez and Mindy Byers. The suit alleged they were not promoted beyond low-level restaurant management jobs while less qualified men were made “managing partners,” who could share in restaurant profits. Female employees “hit a glass ceiling at Outback and could not get promoted to the higher-level profit-sharing management positions in the restaurants,” the EEOC lawsuit alleged.

The settlement could include numerous female employees at various locations throughout the United States. The Outback Steakhouse chain totals about 971 restaurants, of which 792 are based in the United States. OSI also operates and franchises the Carrabba’s Italian Grill, Bonefish Grill, Fleming’s Prime Steakhouse & Wine Bar and Roy’s Hawaiian Fusion Cuisine brands.

Liz Smith, the new chairman and chief executive of OSI, said in a statement: “I am very pleased the company and the EEOC have resolved this legacy issue. There is no glass ceiling at OSI, and we do not tolerate discrimination in any form.”

The EEOC also claimed women were denied favorable job assignments, particularly kitchen management experience, which was required for employees to be considered for the top management job in the restaurants.

In addition to the $19 million in the four-year consent decree, which was signed by Federal Court Judge Christine M. Arguello, Outback must:

# Institute an online application system for employees interested in managerial and other supervisory positions
# Employ a human resource executive in the new post of vice president of people
# Hire an outside consultant for at least two years to determine compliance with the decree and analyze data from the online application system to determine if women are being provided equal opportunities for promotion
# Report every six months to the EEOC on progress.

OSI said Tuesday that the consent decree “reflects the policies, procedures and systems that were developed by Outback to provide all employees the opportunity to express interest in and be considered for promotions.”

Smith said further: “I have a profound commitment to ensuring not only equal, but very compelling and rewarding employment opportunities for all individuals and I look forward to building on the processes already in place at Outback to ensure we live up to that standard every day.”

The company, which said it decided to settle the lawsuit with funds provided by insurance rather than litigate the case further, said it was “pleased that the EEOC recognizes [OSI’s] electronic registry as an important tool to provide and track equal employment and advancement opportunities for all employees.”

Mary Jo O’Neill, a regional attorney in the EEOC’s Phoenix district, which covers Colorado, said, “We are pleased with the initiatives that Outback has agreed to in this settlement and look forward to seeing its efforts to promote women into management positions realized.”

Rita Byrnes Kittle, a senior trial attorney in the agency’s Denver field office, said, “We are particularly pleased about Outback’s commitment to a new process for employees to apply for promotion online and for hiring managers to make their selections from the online applications. We think this new process will help give women a fair opportunity to advance in the company.”

An administrator will set up a claims process for women who might be eligible for relief in the $19 million pool provided in the consent decree. Letters will be sent to women who worked in corporate Outback restaurants from 2002 to the present and have at least three years with the company.

Stephanie Struble, the EEOC Denver trial attorney who worked with Byrnes Kittle on the case, said, “We encourage women who believe they were discriminated against by Outback to come forward and complete the claims form to obtain monetary relief.”