The Longo Firm Blog

You've Got Legal Questions, We've Got Answers

Category: Employment Law (page 1 of 2)

Must Employer Accommodate Disability By Extending Medical Leave?

Share This:

Under the ADA and the Florida Civil Rights Act, employers must accommodate disabilities that do not force undue hardship on the business.

Plaintiff bears the burden of suggesting an accommodation to the employer.  Plaintiff must also show that the accommodation allows her to perform the main functions of the job.  An employee is not entitled to the accommodation of her choice, but only to a reasonable accommodation.

Continue reading

Extended Medical Leave – Beyond FMLA

An accommodation is not reasonable if it does not allow the employee to perform the job duties in the present or in the near future.  An employer is not required to provide an indefinite leave of absence.

An employer is not required to provide more than 12 weeks unpaid leave under FMLA.  If an employer does allow extended medical leave, it is not protected. It becomes gray when an employee receives a termination notice while on extended leave days before they become eligible for additional FMLA leave. Here, the issue is whether the employee can perform the main job duties in the present or near future. In most cases an employer does not have to accommodate a disability by extending medical leave beyond what is required under the FMLA.

ADA Retaliation

Employers cannot retaliate against an employee for opposing an unlawful employment practice.  To establish a case of ADA retaliation, an employee must show:

  1. engaged in protected activity;
  2. suffered adverse employment action;
  3. causal connection between protected activity and adverse employment action.

Examples of engaging in protected activity include filing a charge of disability discrimination. An employee can also meet this first element by complaining to a supervisor or HR about discrimination.

The most difficult part is proving causation.  Retaliation claims require proof that the employer’s desire to retaliate was the “but-for” cause of the employment action.  This is a much higher standard than mixed-motive.  A plaintiff may satisfy her burden of proving causation by demonstrating a “close temporal proximity between the statutorily protected activity and the adverse employment action. But mere temporal proximity, without more, must be very close in time.

For example, if you filed a charge of discrimination and the next day you’re fired, you have very close temporal proximity and will likely satisfy the element of causation.  However, if you file a charge of discrimination and you’re fire six (6) months later, you’ll need to come forth with additional evidence proving that the motivation for your termination was the filing of a charge of discrimination.

For More Information

For more information about ADA disability law, reasonable accommodations, extending medical leave, and all other issue relating to employment law in Florida please visit The Longo Firm website and view our YouTube videos.

Micah J. Longo
The Longo Firm, P.A.
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
mlongo@longofirm.com

District Court Judge Halts New Overtime Rule

Share This:

mazzant-judgeU.S. District Court Judge halts new overtime rule from going into effect, at least for the time being. The new overtime rule states workers making less than $921 per week are eligible for overtime pay, irrespective of their job duties and responsibilities. An estimated 4.2 million workers currently ineligible for overtime, would automatically become eligible for overtime pay under the new overtime rule, without change to their duties.

U.S. District Court Judge Amos L. Mazzant found the new overtime rule in direct conflict with Congress’s intent.  Judge Mazzant reasoned the plain meaning of the Fair Labor Standards Act (“FLSA”) statute, as well as Supreme Court precedent, affirms that Congress intended the executive, administrative, and professional exemption to depend on worker’s duties, rather than their salary.

Continue reading

Background

In 1938, Congress passed the FLSA.  The FLSA requires workers to receive at least minimum wage for all hours worked.  Workers are also entitled to overtime pay of one and one-half times their regular rate of pay for all hours worked over 40 in a week.  When passed the FLSA contained certain exemptions to the overtime requirement.  Because Congress did not define the term “executive, administrative, or professional capacity,” they delegated the power to define to the Secretary of Labor.

Before the new overtime rule, a worker was required to meet the following criteria to qualify for the executive, administrative, or professional exemption.  First, a worker must be paid at least the minimum salary level established by the regulations.  This is called the “salary test.” The old minimum salary level was $455 per week or $23,660 per year.  Second, a worker must perform executive, administrative, or professional duties.  This is called the “duties test.”  Emphasis has always been on the duties test.

President Obama’s Directive

The Secretary of Labor is a cabinet position under the executive branch of government.  President Obama, in response to the high cost of living and modernization of the economy directed the Secretary of Labor to streamline the existing overtime regulations for executive, administrative, and professional employees. In response the Department of Labor published a new overtime rule increasing the minimum salary level to $921 per week or $47,892 per year.  The new salary level is based upon the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage region of the country, which is currently in the South.  The new overtime rule also establishes an automatic updating mechanism that adjusts the minimum salary level every three (3) years.  The first automatic increase is set to occur on January 1, 2020.

Preliminary Injunction

In October 2016, several State plaintiffs moved for emergency preliminary injunctive relief.  Over 50 private business organizations have also joined the fight to challenge the new overtime rule. A plaintiff seeking a preliminary injunction must establish the following elements:  (1) substantial likelihood of success on the merits; (2) substantial threat that plaintiff will suffer irreparable harm if the injunction is not granted; (3) threatened injury outweighs any damage that the injunction might cause the defendant; and (4) injunction will not dissolve the public interest.

A preliminary injunction is an extraordinary remedy.  It is only granted if the plaintiff has clearly carried the burden of persuasion on all four (4) elements.  It is not required to prove the case in full at the preliminary injunction stage of the case.  The decision whether to grant a preliminary injunction relies with the sound discretion of the U.S. District Court Judge.

No Authority To Use Salary Test

Judge Mazzant held the FLSA does not grant the Department of Labor the authority to use a salary test, concluding that Congress intended the exemption to depend on a worker’s duties, rather than a worker’s salary.  The court found after reading the plain meaning of the FLSA statute, it was clear that Congress intended the exemption to apply to workers doing actual executive, administrative, or professional duties.  In other words, Congress defined the exemption with regard to duties, which does not include a minimum salary level.

This is interesting, especially in terms of the professional exemption, where employers love to argue workers, who are highly compensated, are  exempt from overtime pay because of their salary.  I had a case where an employee made over $85,000 a year, yet her duties were not executive, administrative, or professional.  The employer argued because the employee was highly compensated, she must  be exempt under the statute.  Judge Mazzant’s ruling seems put into question the DOL regulation on “highly compensated” employees.

Ruling Applies Nationwide

Judge Mazzant held that the injunction applies nationwide.  Absent contrary intent from Congress, federal courts have the power to issue injunctions in cases where they have jurisdiction. It is established that the stop of injunctive relief is dictated by the extend of the violation established, not by the geographical extent of the plaintiffs case.  In other words, just because this is a judge in Texas making the ruling, it applies all across the United States.

We have seen this kind of nationwide injunction before.  In August 2016, another U.S. District Judge in Texas issued a nationwide injunction to ban enforcement of a Department of Education rule related to transgender bathroom policies.

Moving Forward

Moving forward you can expect the Department of Labor to defend their position.  Remember, at the preliminary injunction stage a Plaintiff is not required to prove their case in full.  A preliminary injunction is basically the Court saying, let’s pump the brakes and see how the case plays out.  There is a still a possibility the Plaintiff’s fail to prove their case. Also, the case could be overturned on appeal or Congress could amend the law.

The Plaintiffs chose to file this case in the Eastern District of Texas (Dallas, TX).  This is a very conservative district.  Considering we now have a Republican controlled Congress, unfortunately the chances the new DOL overtime regulations going into effect anytime soon is slim.

Micah J. Longo
The Longo Firm, P.A.
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
Fax: (954) 944-1916
mlongo@longofirm.com

ITT Tech Closed: Employees May Have A Class Action Lawsuit

Share This:

itt-tech-class-actionITT Tech closed all campuses this week.  Employees may have a class action lawsuit. The sudden closure is because of a recent decision by the Education Department to ban ITT from accepting new students who use federal student loans.

WARN – Advanced Notice Required

ITT Tech is subject to the “Worker Adjustment and Retraining Notification Act.”  This federal law is commonly referred to as WARN and requires employers to give at least 60 days advanced notice of closings or mass layoffs. Employers are covered under WARN if they employ more than 100 employees.

Continue reading

Damages

Employers who violate WARN by failing to provide advanced notice are liable to each employee for back pay and benefits for a period up to 60 days.  ITT Tech may have to pay each of its 8,000 employees back pay and benefits for a 2 month period.  ITT Tech employees can sue for violations of WARN in Federal Court.

Class Action Lawsuit For Employees

ITT Tech will likely face a class action lawsuit for employees because the most a single employee could recover is only 60 days of back pay and benefits.  Collectively, a class action lawsuit could be worth millions.  A class action lawsuit is a single lawsuit brought on behalf off all similarly situated employees.  In other words, a single case  on behalf of the 8,000 or so employees who weren’t given advance notice of the shut-down in violation of WARN.

If a class action is certified and a final judgment is awarded, collectability still must be considered. If ITT Tech is broke are they going to be able to pay their creditors and satisfy a final judgment at the same time?  Usually, judgment creditors are paid in order of priority.  It is entirely possible that a class action final judgment be entered for millions of dollars and ITT Tech never have the ability to pay.  Also, judgment liens may be dischargeable in bankruptcy.

Then again, ITT Tech may have sufficient assets or liability insurance in place that would cover their exposure.  It’s certainly worth examining ITT Tech’s financial health to see if they can satisfy a judgment. Nothing is worse then going the distance to get a final judgment only to find out the defendant can pay their debts.

For More Information

For more information about a class action lawsuits, WARN, or other employment related issues check out our website at LongoFirm.com.  Please don’t forget to subscribe to our YouTube Channel!

The Longo Firm, P.A.
Micah J. Longo
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
mlongo@longofirm.com

When Can You Sue For Wrongful Termination In Florida?

Share This:

Wrongful Termination Florida SueEmployees who feel they have been subjected to a wrongful termination in Florida can sue under Title VII of the Civil Rights Act of 1964 (federal law) or under the Florida Civil Rights Act (state law).  Florida is an at-will employment state.  This means you can be terminated for any reason, so long as, it’s not an unlawful reason.  An example of an unlawful reason would be you are fired because of your race, national origin, age, sex, religions, or disability.  These are the protected classes under federal and state anti-discrimination laws.

An employee can sue for wrongful termination in Florida if the reason they are being terminated is because of their membership in a protected class.  For example, if a decision to terminate a woman was motivated by her being a woman (i.e. sex), and not some other legitimate, non-discriminatory reason, then she may sue for wrongful termination in Florida.  However, if she was fired only because of poor performance, then she likely cannot sue for wrongful termination in Florida.

Continue reading

Filing:  Charge of Discrimination

If an employee believes they have been wrongfully terminated they must file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the termination.  I recommend employees who want to sue for wrongful termination co-file that charge of discrimination with the Florida Commission on Human Relations (“FCHR”).  This gives employees the opportunity to bring a wrongful termination case under the Florida Civil Rights Act (“FCRA”) which is a better law to sue under for wrongful termination for employees.

Avoiding Termination

The best way to avoid a wrongful termination is to report the behavior to the Human Resources (“HR”) department.  This should be done in writing and as soon as possible. By reporting the unlawful behavior to HR you are exercising your statutorily protected rights.  Then, if you are terminated shortly after reporting the behavior to HR, you have a prima facia case of “retaliation.”  In other words, it is unlawful to fire someone for reporting discrimination in the workplace.  This isn’t to say that you cannot still be fired for a legitimate reason, even if you made a report of discrimination.  For example, if the employer states the employee was fired for performance and not because he or she made a complaint to HR, then the burden of proof shifts back to the employee to prove that the reason offered by the employer is false.

Unlawful Retaliation

Retaliation cases are much easier to prove.  All that is required is a good faith belief that discrimination is taking place.  There are cases where the plaintiff loses the discrimination part of the case, but wins on retaliation. This is especially true when an employee is fired just after making a written complaint to HR or filing a charge of discrimination.

For example, suppose employee feels his boss is treating him badly and it’s because he is Black.  The employee files a written complaint with HR claiming that he boss is discriminating against him and the reason is because of the color of his skin.  Two (2) weeks later the employee is fired.  Provided the employee can prove that he wasn’t fired for some other legitimate, non-retaliatory reason, he has a winning retaliation case.

For More Information

If you believe that you have been wrongfully terminated because of your race, national origin, age, sex, religion, or disability, you can sue in Florida.  For more information visit our Davie employment law firm website at longofirm.com.

The Longo Firm
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel:  (954) 862-3608
Fax: (954) 944-1916

Micah J. Longo
mlongo@longofirm.com

Can Employer Fire Me Without Giving A Reason In Florida?

Share This:

Reason.Fired.Florida.Florida employers can fire employees without giving a reason. Florida is an “at-will” employment state. This means an employee can be fired for any reason, so long as it’s not an “unlawful reason.” An example of an unlawful reason would be firing because of race, national origin, age, sex, religion, or disability.

Florida Laws On Firing Employees

There is no law in Florida that requires an employer to provide a reason for why they’re firing an employee. Only in an unlawful termination lawsuit is an employer required to provide a “legitimate, non-discriminatory” reason for the termination.  If an employee proves the basic elements of a wrongful termination claim, the burden then shifts to the employer to offer a “legitimate, non-discriminatory” reason for their actions. For example, an employer could cite poor performance or violation of company policy as the reason for the employee’s termination.

Continue reading

After an employer offers a “legitimate, non-discriminatory” reason for termination, the burden shifts back to the employee to show that the employer’s reason was not true. So, if an employer claims the employee was fired for poor performance, yet the employee has always had excellent performance reviews, this could satisfy the employee’s burden of proving the employer’s reason is not worthy of belief or “pretextual.”

Ask Why You’re Being Fired

If an employee thinks they’ve been fired unlawfully it never hurts to ask why.  Sometimes, an employer will open-up and give you hints into the real reason you were fired.  Direct evidence of unlawful termination is extremely rare these days.  Most unlawful termination cases are built on circumstantial evidence.  Admissions of fact by the decision-maker at the termination meeting could make the difference between winning and losing an unlawful termination case in Florida.

Signing Termination Paperwork

First, before signing anything you should always read what you’re signing.  This is good advice in everything you do.

Second, if the paper work cites to the reason why you’re fired and you disagree with that reason, write somewhere on the margin that you disagree with their reason.  You don’t want that document to be used against you later on as an admission.  For example, if the paperwork says you’re being fired for violating a company policy and you sign acknowledging the paperwork, it could be viewed as you’re agreeing with the employer’s position.  This doesn’t happen often, but you want to make sure the record is clear.

Most paperwork that you sign after a termination is to provide you with information on moving forward.  You’ll like receive information on extending health insurance benefits (COBRA) and rolling over 401k accounts, etc. However, you want to make sure you’re not signing your rights away.  I had a case once where the employee was fired and she was told she had to sign the document.  The employee didn’t read the document and she actually signed a severance release.  Thankfully, we were able to revoke the severance release and file a wrongful termination lawsuit, but had the employee waited she may have lost her right to sue.  So, it’s always a good idea to run any termination paperwork by a qualified employment lawyer first!

For More Information

For more information about unlawful terminations in Florida visit our website at LongoFirm.com. Also, don’t forget to subscribe to our YouTube channel!

The Longo Firm
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
Fax: (954) 944-1916

Micah J. Longo
Fla. Bar No. 97333
mlongo@longofirm.com

Older posts

© 2017 The Longo Firm Blog

Theme by Anders NorenUp ↑