Jury Trial Waivers: “Waive” Goodbye to Costly, Unpredictable Employment Litigation

By Stearns Weaver Miller on August 18, 2014 Posted in Employment Litigation

We imagine that among those former employees who sue their employers, there are many who dream of hearing the words “Ladies and gentlemen of the jury . . .“ wishing for a pot of gold to follow. Obviously, the thought of hearing those words in a courtroom may make an employer cringe.

So how can an employer try to avoid making this dream come true? One way might be to ask employees to agree to waive their right to a jury trial with regard to potential employment-related claims. Plaintiff attorneys may think twice before taking a non-jury matter on a contingency fee basis.

In Florida, depending on a number of factors, including the waiver language itself, both state and federal courts have signaled a willingness to enforce a clearly written provision which demonstrates a knowing and voluntary waiver of the right to a jury trial by both the employer and employee. The waiver can be included in an employment application or an employment-related agreement such as non-compete or confidentiality agreement.

BACK BY POPULAR DEMAND! “New Claim on the Horizon: Family Responsibilities Discrimination” Seminar

By Robert Turk on August 15, 2014 Posted in Disability & Leave, Legislation & Regulations

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As promised in a previous post, if you were unable to attend the annual seminar in May or attended but need a quick refresher, a few of our most popular sessions are back for encore presentations at our Miami office.

Our first session, “New Claim on the Horizon: Family Responsibilities Discrimination” presented by Labor & Employment Shareholder Kara S. Nickel, will be on Wednesday, September 17, 2014 beginning at 8 am.

In the past, an employee’s personal life was none of the employer’s business. That has all changed. A new claim is on the horizon: “Family Responsibilities Discrimination”. Whether it’s a disabled spouse, an aging parent, childcare, spousal abuse, or pregnancy, employees are seeking leave and other accommodations for a variety of family-related issues. Employers must recognize and understand how to manage these issues or face claims under a host of federal and state laws.

After the main presentation, Kara will share her top 5 secrets for improving your company’s FMLA administration in a bonus 15-minute session for in-person attendees.

Health Care Reform – Business as Usual (For Now)

By Sharon Quinn Dixon on August 7, 2014 Posted in Employee Benefits & Compensation, Employment Litigation

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Much publicized court cases in the last several weeks make us wonder whether the federal Health Care Reform law will survive. We leave the answer to that question to the U.S. Supreme Court. For now, employers should adopt the “business as usual” approach and continue to prepare for implementation of the “pay or play” provisions of the law.

In the widely-noted Hobby Lobby case decided on June 30th, the Supreme Court determined that the Religious Freedom Restoration Act of 1993 prevented federal regulators from demanding that closely held companies provide health insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. Although Hobby Lobby garnered huge headlines, as a practical matter it may affect only a small number of employers.

On July 22nd, two federal appeals courts issued conflicting opinions regarding subsidies (in the form of tax credits) given to individuals who purchase health coverage using an insurance exchange. The law gives the subsidy for insurance bought through “exchanges established by the State.” Only 14 states have established exchanges; the federal government runs the exchanges in the other states. The IRS ruled that people who buy insurance through a federally-run exchange are entitled to the subsidies just like those who buy insurance on a state-run exchange.

True Colors – Can Naming a Paint Color Be a Discriminatory Act?

By Stearns Weaver Miller on July 29, 2014 Posted in Discrimination & Harassment, Employment Litigation

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Benjamin Moore & Co. is an American paint company. A former Benjamin Moore Manager, Clinton Tucker, alleges that the Company is marketing paints with racially insensitive names – his two names as a matter of fact. Tucker claims that Benjamin Moore’s Clinton Brown and Tucker Chocolate paint colors refer to him and that he was fired for complaining about the paint colors. The Company responded with a countersuit against Tucker alleging, among other claims, defamation, trade libel and tortious interference.

Filing counterclaims against a plaintiff in an employment discrimination case is not the usual response, as it could be argued that unsupported counterclaims are a form of retaliation. Clearly Benjamin Moore feels strongly that it has been wronged. It states in its counterclaim, that Tucker filed his suit with a malicious intent, with the purpose of extorting money from Benjamin Moore and defaming and damaging the Company’s business reputation.

Bathroom Breaks & Decreased Productivity #HoldItIn2WinAPrize

By Andrew Rodman on July 23, 2014 Posted in Employee Handbooks & Policies, Labor Law

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Employers have fairly wide discretion in terms of developing work rules designed to increase productivity and decrease time spent “slacking off.” But, if you believe the reports, one Chicago-based company may have gone too far.

Apparently, WaterSaver Faucet Company has been experiencing a decrease in employee productivity. The perceived root of the problem? Excessive bathroom breaks. So, what did the company do about the problem? It reportedly implemented a policy declaring excessive 60 minutes or more of bathroom time over 10 working days. Essentially, a 6 minutes per day rule.

To track bathroom usage, the company reportedly installed a tracking system that requires employees to swipe ID cards to access the bathroom.

SLAM Academy: Disrupting Poverty Through Education

By Rene Ruiz on July 21, 2014 Posted in Employee Benefits & Compensation

Photo by: Raul Pedroso

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It is no secret that income inequality is a growing concern in our country. The gap between the richest and poorest among us is increasing at an alarming rate. While we can point to many reasons for that trend, it is clear that education remains the most reliable vehicle towards upward social mobility. Here in Florida, for instance, there is an undeniable correlation between income and FCAT test scores. Since most families are not in a position to pay tuition for private schools, we must explore every possible way to improve our public schools.

About ten years ago, I began volunteering my time at public charter schools in Miami. My desire to improve parental schooling options through choice and competition, coupled with my love of sports, placed me on a path which allowed me to help create SLAM Academy, a sports leadership and management public charter school in Little Havana. SLAM is located in one of the City’s most impoverished neighborhoods, and serves middle school and high school students seeking careers in the sports industry. The school opened its doors in 2013, with a 7-story state-of-the-art facility featuring a penthouse gymnasium in the shadows of Marlins Park, and services an overwhelmingly minority student population (over 80% of which qualify for free or reduced lunch). SLAM offers these students a unique educational model because it integrates national Common Core Standards and sports-related themes into a core curriculum of mathematics, language arts, science and social studies, while preparing students for careers in sports medicine, business, marketing, health and communications through elective coursework.

Religious Discrimination: The Balance Between Protecting Customer Relations and Making Employee Accommodations

By Susan Toepfer on July 17, 2014 Posted in Discrimination & Harassment, Employment Litigation

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A bank teller in Kentucky recently sued her employer claiming that she was fired from her job for telling every customer she met to “have a blessed day.” She was just being polite, right? Well, the bank alleges that several customers were offended by the teller’s comment. The teller also allegedly confronted a customer asking “Did you take the Lord’s name in vain?” and proceeded to talk to him about salvation.

The bank is going to argue that the teller’s conduct crossed the line to proselytizing, and justified its response, which included disciplining the teller and then terminating her employment when the conduct continued. But does the employer have to wait for complaints, or is the mere risk of offending customers sufficient for an employer to adopt a policy prohibiting this or similar religious phrases or greetings?

Of course, employees of private (non-governmental) employers do not have First Amendment rights vis-à-vis their employers. But that doesn’t mean that employees have no right to act on their religious beliefs in the workplace. Title VII protects employees from religious discrimination, but also requires employers to accommodate religious practices to the extent that they do not impose an undue hardship on the operation of the employer’s business.

Encore Performances from Our Annual Labor & Employment Law Seminar to Start in the Fall

By Robert Turk on July 11, 2014 Posted in Disability & Leave, Discrimination & Harassment, Employee & Management Counseling, Labor Law

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May 1, 2014, was not a typical day in the office for us. We left our offices from across the state and headed to the Trump National Doral Hotel to join over 380 attendees at our 24th Annual Labor and Employment Law Seminar.

Thanks to all the private and public sector employers who joined us-it was great to see so many friends who have joined us from past seminars and to meet first-time attendees who are now new friends. We may have taken a picture of you if you were an attendee. Check out our photos by clicking here.

For those who were unable to attend the seminar, some of our most popular sessions will be back for encore presentations at our Miami office beginning this Fall – stay tuned for details.

If you missed this seminar or attended but need a quick refresher, here are the top takeaways from our 16 presenters.

Is it Reasonable to Accommodate the Fear of Rush Hour Traffic?

By Andrew Rodman on July 8, 2014 Posted in Disability & Leave, Employment Litigation

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Let’s do a little role-playing. You’re the HR Director and Jane is an employee at your company:

Jane: I’ve been feeling anxious and depressed since my return to work from medical leave.

HR Director: I’m sorry to hear that, Jane. I hope you feel better soon. Is there anything I can do to make your transition back to work easier?

Jane: Actually, there is. My anxiety and depression seem to be aggravated by rush hour traffic.

HR Director: I know what you mean. I feel like pulling my hair out during my commute every day.

Jane: I’m really having trouble dealing with it. I think that if I start working a 10-4 schedule, that would really help me cope, because I would miss the morning and afternoon rush hour commute. Would that be ok?

HR Director: Let me think about that, Jane, and get back to you this afternoon.
(code for “Let me speak to my employment law attorney”)

Jane: Ok, and here’s a note from my doctor, who has advised me that avoiding rush hour traffic will help alleviate my anxiety and depression.

Far-fetched? No. Reality.