Love That Tender: Mooting an FLSA Action

By Glenn Rissman on November 9, 2011 Posted in Employment Litigation, Wage & Hour/Employee Classification

On September 20, we posted, Was Dionne The FLSA Magic Bullet We Thought?, which discussed recent cases under the Fair Labor Standards Act (FLSA) where the employer tried to moot the lawsuit by tendering the back pay and liquidated damages claimed by the former employee. As a refresher, in Dionne v. Floormasters Enterprises, Inc., the Eleventh Circuit refused to award attorneys’ fees and costs to an FLSA plaintiff (Dionne) after the defendant tendered full payment of overtime, liquidated damages, and interest to Dionne. We also discussed Klingler v. Phil Mook Enterprises, Inc., a decision from the federal district court in Tampa, in which the judge refused to dismiss the lawsuit after the defendant paid the plaintiff in full for allegedly unpaid overtime, liquidated damages, and interest because the defendant had not also paid for the plaintiff’s attorneys’ fees. A new order from a different Judge within the same district court in Tampa reached a decidedly different result, one that employers will rejoice.

In Craig v. Digital Intelligence Systems Corp., the plaintiff sued for unpaid overtime under the FLSA. The defendants in the lawsuit, based on information supplied by the plaintiff, calculated that the employee would be owed $6,480 in back pay if his claims were true. The defendants doubled that amount to cover liquidated damages and sent a check to the plaintiff, representing full compensation for back pay and liquidated damages. The defendants then sought to dismiss the case on the grounds that it was now moot, i.e., there was no legal issue remaining because the plaintiff had been made whole.

The plaintiff argued that while the tender amount fully compensated him for his back pay and liquidated damages, he was not fully compensated because he still had to pay his attorneys’ fees and costs. The court rejected this argument, finding that the issue of attorneys’ fees was separate from the merits of the case. The court further said that the tender of the full damages and the deposit of the check in the law firm trust account made the plaintiff’s claims moot. The court then refused to find that the plaintiff was a prevailing party, which would have entitled him to an award of attorneys’ fees and costs, because there was no judgment on the merits of the case, no offer of judgment under the federal rules, or no court-approved settlement. The bottom line – the case was moot and had to be dismissed because the plaintiff received full compensation for damages on his FLSA claim and no actual injury existed any longer that could be redressed by the court.

Will the litigation strategy used in Craig work all the time? It is hard to say because, on very similar facts, the same court (but a different Judge) in Klingler refused to dismiss the case on grounds of mootness because the tender did not pay the plaintiff for attorneys’ fees and costs. At a minimum, the tender strategy can end the fight over back pay and liquidated damages and make the case entirely about attorneys’ fees and costs. By making the tender early in the case, the defendant can better control the costs of the litigation, namely the attorneys’ fees racking up on both sides.

USCIS Extends Temporary Protected Status for Honduras and Nicaragua

By Glenn Rissman on November 4, 2011 Posted in Immigration

On November 4, the U.S. Citizenship and Immigration Services (USCIS) extended the Temporary Protected Status designation for Honduras and Nicaragua for a period of eighteen (18) months, until July 5, 2013. Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries because the country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of that country from returning safely or prevent the country from handling their return adequately. There are currently several countries designated for TPS, including El Salvador, Nicaragua, Honduras, and Haiti.

Qualifying individuals from Honduras and Nicaragua may re-register for TPS status by filing Form I-821. Applicants can also apply for a new Employment Authorization Document (EAD) by submitting Form I-765. The EADs of Hondurans and Nicaraguans currently in TPS status will be automatically extended for a period of six months, through July 5, 2012. The automatic extension is limited to EADs with an expiration date of January 5, 2012. The EADs must also bear the designation “A-12” or “C-19” on the face of the card under “Category” to qualify for the six month extension. Eventually, qualified individuals will receive new EADs valid to July 5, 2013.

When completing Form I-9 using an automatically extended EAD prior to July 5, 2012, for a new hire, the USCIS advises as follows:

1. In Section 1, the employee checks “An alien authorized to work,” writes the A-number in the first space, and writes the automatic extension date (July 12, 2012) in the second space.

2. In Section 2, the employer records the document title, records the document number, and records the automatically extended EAD expiration date (July 12, 2012).

After July 5, 2012, the employer will have to re-verify the employee’s authorization to work.

For an existing employee who presented a TPS EAD that was valid at the time of hire, has a printed expiration date of January 5, 2012, and is now automatically extended, the USCIS recommends the following Form I-9 procedure:

1. In Section 1, the employee draws a line through the expiration date in the second space, writes July 5, 2012 above the previous date, writes “TPS Ext.” in the margin of Section 1, and initials and dates the correction.

2. In Section 2, the employer draws a line through the expiration date written in Section 2, writes July 5, 2012 above the previous date, writes “TPS Ext.” in the margin of Section 2, and initials and dates the correction.

After July 5, 2012, the employer must re-verify the employee’s authorization to work.

Employers who participate in E-Verify will receive a “Work Authorization Documents Expiring” case alert. For existing employees with TPS EADs that have been automatically extended, USCIS instructs employers to disregard the E-Verify case alert and follow the instructions above explaining how to correct the Form I-9.

USCIS reminds employers that they cannot require employees to present proof of their Honduran or Nicaraguan citizenship.

New Employment Authorization Documents (EADs) on The Way from USCIS

By Glenn Rissman on October 26, 2011 Posted in Immigration

On October 25, 2011, the U.S. Citizenship and Immigration Services (USCIS) announced that it has launched a new Employment Authorization Document (EAD) with enhanced features to strengthen security and deter fraud. The goal of the new EAD is to deter counterfeiting, obstruct tampering, and facilitate quick and accurate authentication of the EAD.

USCIS began issuing the new EADs on October 25. Unexpired EADs currently in circulation remain valid. However, when individuals apply for a new employment authorization document or the replacement of an existing card, they will be issued the EAD with the enhanced security features. A color sample of the new EAD may be viewed in the USCIS press release.

Florida’s Minimum Wage Set to Increase to $7.67 per Hour on January 1, 2012

By Glenn Rissman on October 18, 2011 Posted in Wage & Hour/Employee Classification

Effective January 1, 2012, Florida’s minimum wage will increase from the current rate of $7.31 to $7.67 per hour. Each year, the Florida Department of Economic Opportunity must recalculate Florida’s minimum wage based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. Based upon the calculation, the minimum wage will increase to $7.67 an hour.

Beginning January 1, 2012, tipped employees who receive a tip credit under the federal Fair Labor Standards Act must receive a direct wage of $4.65 per hour from their employers. Employers may apply a tip credit of $3.02 hour.

Florida’s minimum wage statute requires employers to post a minimum wage notice in a conspicuous and accessible place in each establishment where employees work. The minimum wage posting is in addition to wage and hour postings under federal law. Florida minimum wage posters in English and Spanish are available by clicking on the highlighted links.

For companies with employees outside the State of Florida, the federal minimum wage remains $7.25 per hour. You should verify that no state or local wage law requires payment of a minimum wage greater than the federal minimum wage.

Halloween Horrors for Employers

By Stearns Weaver Miller on October 14, 2011 Posted in Discrimination & Harassment, Employee Handbooks & Policies

Are you allowing your employees to dress up as ghosts, goblins and ghouls this Halloween? Celebrating Halloween in the workplace is a “treat” but employers should be aware of the risks. Here are some “real life” workplace horror stories:

Religious Discrimination: The Equal Employment Opportunity Commission (“EEOC”) sued a company for firing an employee, who was a Johavah’s Witness, for allegedly refusing to participate in a Halloween-related event. According to the EEOC’s complaint, the employee informed the company that her religious views prohibited her from participating in celebrations, including a Halloween-related carnival being held at a local mall. When the employee refused her assignment to participate in the carnival, the company fired her. The company never responded and the court entered a judgment for $33,435.02 in the employee’s favor.

Racial Discrimination: In 2007, a senior Homeland Security Department official made headlines when she and two other managers voted an employee’s costume to be the “most original” at the agency-sponsored Halloween party. The costume consisted of dreadlocks, dark makeup and prison stripes. After receiving complaints from other employees, the official apologized to her staff stating that a few costumes at the party were inappropriate. The official was later placed on leave until she made several formal apologies and her qualifications were reviewed by a Senate committee. See Committee on Homeland Security Report on the incident.

Sexual Harassment: An employee won damages for mental anguish in a sexual harassment case against her employer (unpublished case). The harassing actions included an incident on Halloween where the employee came to work in a doctor costume, and the harasser, her supervisor, “gestured to her by unbuckling his pants and telling her, ‘Here Doctor. It hurts here[,]’ while pointing to his groin.”

Workers’ Compensation: An employee sued her employer for workers’ compensation damages after she fell off a stool at work and fractured a rib when a co-employee wearing a Halloween mask frightened her (unpublised case). The parties stipulated that the injuries were compensable but litigated the extent of the employee’s damages. In another case, a sorority “house mother” left the sorority house to purchase supplies for the sorority. Several blocks from the sorority house, she stepped on a curb – which had been greased by some Halloween pranksters – fell and broke her hip. The house mother sued the sorority and compensation was awarded.

If you decide to celebrate Halloween in the office and permit employees to dress up in costume this year, consider providing guidelines on what kinds of costumes are appropriate and not appropriate. You may also want to reflect on last year’s Halloween celebration and identify any other risks to address prior to this year’s Halloween. Wishing you a horror-free Halloween!

¿Algunos de sus empleados hablan Español? [Do Some of Your Employees Speak Spanish?] If so, NLRB’s Employee Rights Poster is Now Available in Spanish

By Lisa Berg on October 13, 2011 Posted in Employee & Management Counseling, Labor Law

As discussed in an earlier post, NLRB Postpones Notice-Posting Rule Until January 31, 2012, employers subject to the National Labor Relation Board’s jurisdiction are required to post a notice notifying employees of their rights under the National Labor Relations Act by January 31, 2012. If 20% or more of your employees are not proficient in English, you must post the notice in the language the employees speak. Employers may request translated copies of the notice from the NLRB and will not be liable for posting until the translated notice is available. A Spanish version of the notice is now available on the NLRB’s website (https://www.nlrb.gov/poster).

Administrative Law Judge Reviews Two Facebook Postings – One Protected, One Not

By Stearns Weaver Miller on October 7, 2011 Posted in Employee Handbooks & Policies, Employment Litigation, Labor Law

As another follow-up to our posts, NLRB OK’s Employee Bad-Mouthing on Social Media, Update: The NLRB Seesaws On Social Media Bad-Mouthing, NLRB Issues Guidance On Social Media Policies and Administrative Law Judge Recommends Employees Fired For Facebook Be Reinstated and Provided Loss of Pay, an Administrative Law Judge (“ALJ”) has made a recommendation on another social media case brought by the General Counsel of the National Labor Relations Board (“NLRB”) against a BMW dealership, Karl Knauz Motors, Inc. (“Knauz”), for firing a salesperson, Robert Becker, for Facebook postings. The ALJ said that Knauz did not violate the National Labor Relations Act (“NLRA”) when it fired Becker for posting embarrassing photos and sarcastic comments about an auto accident that had occurred at an adjacent Land Rover dealership also owned by Knauz. A mishap had occurred when a salesperson was showing a Land Rover to a customer and the vehicle crashed into a pond. Becker took photos of the accident, which he later posted on Facebook with the comments, “this is your car; this is your car on drugs,” and “the kid drives over his father’s foot and into a pond in all of about 4 seconds and destroys a $50,000 truck. OOPS!”

A few days earlier, Becker had taken photos at a sales event promoting the redesigned BMW 5 Series automobile. Several other salespersons had complained that the humble event, featuring hot dogs, cookies and chips, would have a negative impact on their ability to earn commissions. Becker posted photos of the food on Facebook with comments criticizing management for the inferior quality of the event.

The NLRB argued that this post and the latter post were protected activity relating to the terms and conditions of Becker’s employment. The ALJ agreed that the post about the sales event was protected but that Becker was not terminated for this post. Rather, the ALJ found that Becker was terminated for the post about the auto accident, which the ALJ said was not protected, “[i]t was posted solely by Becker, apparently as a lark without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment.”

The ALJ further said that several statements in Knauz’s employee handbook pertaining to employee conduct – policies on courtesy, unauthorized interviews and outside inquiries concerning employees – violated the law. However, since the issuance of the complaint, Knauz had rescinded these policies. The ALJ ordered Knauz to notify its employees of the rescinded policies and make a statement that it would not interfere with their rights under the NLRA.

NLRB Postpones Notice-Posting Rule Until January 31, 2012

By Glenn Rissman on October 5, 2011 Posted in Labor Law

On August 26, our colleague Lisa Berg posted an article on the National Labor Relation Board’s (NLRB) new rule requiring employees (union and non-union) to post a notice informing employees of their rights under the National Labor Relations Act, including the right to organize a union, form, join, or assist a union, bargain collectively, discuss wages, benefits, and other conditions of employment, raise complaints, strike or picket, and choose not to do any of these activities. The NLRB’s rule required covered employers to post the notice by November 14, 2011. Today, the NLRB postponed the implementation date of the notice-posting rule by more than two months to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses. Covered employers are now required to post the notice by January 31, 2012. If the date changes again, we will update the blog.

Is Being “Gun Shy” About Providing a Urine Sample an ADA Disability?: EEOC Opinion Letter Illustrates the Breadth of the ADA Amendments

By Glenn Rissman on October 3, 2011 Posted in Disability & Leave

Ever have stage fright when having to urinate in a public toilet? Can’t offer a sample for that employment-related drug test? The Americans with Disabilities Act (ADA) may protect such a condition and require the employer to offer a reasonable accommodation.

The Equal Employment Opportunity Commission (EEOC or Commission) recently issued an Opinion Letter on the issue of whether paruresis, also known as shy bladder syndrome, is a disability under the ADA. (The opinion letter was written by the EEOC’s Legal Counsel, Peggy Mastroianni, who was a guest speaker at our annual Labor and Employment Law seminar in 2002.) Paruresis is the inability to urinate in public restrooms or in close proximity to other people, or the fear of being able to do so.

The Commission’s Opinion Letter sets forth the legal definitions and standards for disability and substantial limitation of major life activity. The letter reminds employers that under the ADA Amendments, major life activities include major bodily functions, such as bladder and brain functions and functions of the neurological and genitourinary systems. The letter also reminds employers that the ADA Amendments were intended to construe the term “substantially limits” broadly and that an impairment does not have to prevent or severely limit or significantly restrict a major life activity to be considered substantially limiting. The EEOC opinion letter does not conclude that a person with paruresis has a disability but does state that the ADA Amendments and its implementing regulations make proving whether paruresis is a disability “much easier, by including bladder and brain functions as major life activities, lowering the standard for establishing than an impairment ‘substantially limits’ a major life activity, and focusing the determination of whether an individual is ‘regarded as’ having a disability on how the individual has been treated because of the impairment, rather than on what the employer may have believed about impairment.”

The safest approach would be to treat the employee’s pauresis as a disability and then assess whether an accommodation – hair, saliva, blood, patch drug test – would cause the employer an undue hardship. By focusing on the accommodation rather than the alleged disability, the employer may be better able to avoid a case of tinkle troubles from becoming a federal case.

Diversity Immigrant Visa Lottery Starts October 4

By Glenn Rissman on September 23, 2011 Posted in Immigration

The Department of State recently announced that it will begin accepting electronically submitted applications for the 2013 Diversity Immigrant Visa Lottery between noon, Eastern Daylight Time on October 4, 2011, and noon, Eastern Daylight Time on November 5, 2011. The Diversity Immigrant Visa Program provides 50,000 visas each year to nationals of countries that have historically lower rates of U.S. immigration.

Among other requirements, applicants must be a national of a qualifying country or be able to qualify as a national of another country through a spouse or parent (under limited circumstances). The applicant must have at least a high school education or two years of qualifying work experience. The Department of State will only accept applications through the Internet, www.dvlottery.state.gov, during the prescribed filing period. Applicants must also electronically upload photographs and will receive a confirmation number after filing. Applicants must use the confirmation number to check the status of their application. The Department of State will not send out notifications that an applicant was selected in the lottery. Instead, applicants must use the Entrant Status Check on the DOS website to learn if they were selected for the lottery and to receive further processing instructions. It is imperative that applicants not lose their confirmation number.

Countries excluded from the Diversity Immigrant Visa Program: Bangladesh, Brazil, Canada, Mainland China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Natives of South Sudan and Poland are eligible for the program, as are persons born in Hong Kong SAR, Macau SAR, and Taiwan.

Full details about the Diversity Visa lottery can be found at the Department of State’s website, www.dvlottery.state.gov.