HR Specialist: Florida Employment Law

There’s a dark side to doing business in the Sunshine State. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This Florida-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: Florida Employment Law and the free report you’ll get when you subscribe...
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Make sure your entire staff is on the same page when it comes to responding to FMLA requests. Decide on a contact person and set a policy that lets all employees know. Create a log for recording all incoming FMLA communications. Remember, certifications may come directly from medical providers, who are likely to use fax or mail delivery.
When Congress raised commercial pilots’ mandatory retirement age from 60 to 65, not all pilots were pleased. Pilots who had previously been forced to retire at age 60 weren’t grandfathered into the new system. Now the pilots are seeking back pay and lost wages under state laws and the Federal Tort Claims Act.
The owners of a Boca Raton staffing company that placed Filipino immigrants in jobs at South Florida country clubs and hotels will stand trial for human trafficking following an indictment by a federal grand jury.

Workers at Bank of America’s retail branches and call centers in five states have filed a lawsuit claiming they are due unpaid overtime from the banking giant. The suit, filed in federal district court in Kansas, alleges the bank requires employees to work more than 40 hours per week, but only pays them for 40.

Despite your best efforts, a rogue supervisor occasionally slips through. He may harbor discriminatory attitudes that can color his termination and disciplinary decisions. But you can cut that chain by doing a little independent digging into what really happened. Then document your efforts to get both sides of the story.

Employees who complain about alleged discrimination are protected from retaliation for complaining. That protection, however, isn’t unlimited. There’s a huge difference, for example, between an employee who calmly reports that he has been discriminated against and someone whose complaints sound more like threats of physical harm.

It seems logical enough: Employees shouldn’t be able to sue over promotions they never applied for. But in some cases where positions were never posted, employees have successfully sued, alleging they would have applied had they known there was an opening. Fortunately, the 11th Circuit won’t allow those employees an automatic win ...

Let’s say a supervisor acts too hastily in firing an employee who has turnaround potential. Or perhaps you learn the employee has a plausible discrimination claim, and you’d rather address the issue right away than risk litigation. If you offer to reinstate the employee right away and she refuses to return, chances are a court won’t conclude you unfairly terminated her in the first place.
The 11th Circuit Court of Appeals has overturned a jury’s $300,000 retaliation award, reasoning that the complaint that was the basis for the retaliation claim wasn’t based on a good-faith belief that discrimination had occurred.

Students often complain about foreign professors whose accents they have trouble understanding. Those concerns can be a legitimate reason for a university to hire a candidate with better communications skills. That’s true even though accent discrimination can be construed as national-origin discrimination.

The immigration landscape keeps changing, and employers must keep up. And now you also have to worry about employees who claim you hired illegal workers as a way to cut labor costs and therefore put legal workers at a competitive disadvantage. Clever attorneys have begun filing RICO Act lawsuits, alleging that some employers are essentially running “mob” operations.
Former University of South Florida football coach Jim Leavitt has sued the university and its foundation, claiming his contract was improperly terminated. Leavitt lost his job last January after allegedly grabbing a football player by the throat and hitting him.
The U.S. Constitution guarantees citizens the right to free association without government interference. Courts have used that right to strike down laws that prevent members of different ethnic backgrounds from marrying each other. But what about the right of public employees to free association? Can a public employer punish an employee for having a romantic relationship with a subordinate? That was the question recently answered by the 11th Circuit Court of Appeals.

Thanks to a recent 11th Circuit Court of Appeals decision, it’s now clear that Florida employers can terminate employees who have FMLA leave coming—if they can prove they would have terminated the employee anyway. To prove that, you must be able to produce solid documentation showing that you were indeed going to terminate the employee whether or not she asked for FMLA leave.

According to the latest numbers from the U.S. Bureau of Labor Statistics, Florida lost 71,000 union jobs in 2009, and now just 5.8% of Floridians belong to unions, compared to 6.4% in 2008.
Do you have an employee who seems to generate an inordinate number of customer complaints? As long as you can show that this employee got more complaints or more serious complaints than other employees, you have a legitimate reason to fire. And you’ll be able to use that reason in court if she sues.

Some firefighters have additional law enforcement duties. Those employees are sometimes called “dual assignment” employees under the FLSA and must be paid overtime based on which duties they perform most of the time. That means that once firefighters begin spending the majority of their time on law enforcement duties, they’re eligible for overtime pay after working 86 hours in a two-week period. Firefighters must work more than 106 hours to receive overtime pay.

Here’s an employer argument that didn’t work: It couldn’t have been pregnancy discrimination when we fired her because she wasn’t pregnant anymore.
Faced with what you consider a meritless employee lawsuit, it’s often tempting to fight it out in court as a matter of principle. But at some point, it’s better to cut your losses and settle. The only parties that benefit from 10-year legal battles are lawyers, as the following case shows.
Nationwide staffing company Administaff has agreed to settle an EEOC religious discrimination lawsuit stemming from an ugly series of incidents that occurred at one of Florida-based cable-TV company Conn-X’s facilities. The allegations created a perfect storm of co-employer liability: video technology plus employee thuggery added up to evidence that practically begged for an out-of-court settlement.
Some employees think getting a prescription is enough to claim FMLA leave. Fortunately, that is not true. Otherwise, every employee would be entitled to time off just because they took a prescription drug.

Bank of America took control of a lot of toxic assets when it purchased brokerage house Merrill Lynch in 2008. Part of the poison was apparently a litigious workforce that couldn’t wait to meet its new co-workers. Two Florida women are part of a sex discrimination lawsuit claiming that the combined companies treat their female financial advisors like “second-class citizens.”

The FMLA provides protected leave for employees who meet the law’s eligibility requirements. That protection includes the right to reinstatement to the same or an equivalent position when the employee is ready to return to work. But that right has limits. Employers are entirely within their rights to continue any disciplinary action they began before the employee went out on leave.

It often makes sense to offer a fresh start to an employee who claims discrimination. By settling her case and moving her to another position, she gets a chance to begin again, and the employer gets a chance to avoid a potentially expensive lawsuit. To make the move effective, make sure that any new supervisors don’t know about the bias complaint.

Employees who have diabetes and take insulin may claim to be disabled. And employers frequently make accommodations to help diabetic employees control their conditions. That doesn’t mean, however, that every diabetic will be able to show he’s disabled under the ADA.