Florida Employer Advisor

Don’t Leave Your Business Hanging By A Thread…

Employment law claims are often avoidable. A few proactive measures can immunize your business from most claims. Take a few minutes and review my free eBook: “Dont Leave Your Business Hanging By A Thread: 6 Ways A Business Can Get Into Employment Law Trouble”. You’ll be armed with knowledge and action steps to begin protecting your business.


The 2013 Supreme Court Employment Law Cases

The 2013 U.S. Supreme Court term features several employment law cases important to employers and human resource professionals. In subsequent posts I will “drill down” on these in more detail. The cases include…

* Vance v. Ball State University: The question in this case is the definition of a “supervisor” for purposes of harassment claims under Title VII of the Civil Rights Act. The distinction makes a great deal of difference because employers are often held strictly liable for the acts of supervisors while co-worker harassment is only actionable against employers where independent negligence or fault is shown.

* University of Texas Southern Medical Center v. Nassar: The question in this case is whether a plaintiff claiming retaliation in a Title VII case must prove the more stringent standard of “but for” causation or the more lenient “mixed motive” standard requiring only that the prohibited retaliation was a motivating factor in the adverse employment action. Since retaliation and whistleblower case filings have risen dramatically this holding may have a substantial effect on future filings.

* Sandifer v. U.S. Steel Corp.: The question presented in this wage and hour case is whether employees must be compensated for changing in and out of protective clothing at the beginning and ending of a workday and what indeed constitutes protective clothing in the first place.

* Genesis Healthcare Corp. v. Symczwk: The question in this FLSA case was whether an offer of judgment to the loan plaintiff in a putative collective action rendered the case moot on behalf of the entire class. The case was decided on April 16, 2013 in favor of the employer. More on this in a later post.

* Oxford Health Plans, LLC v. Sutter: The question in this case is whether an arbitrator can order class-wide arbitration where an employment agreement contains an arbitration clause.

* Madigan v. Levin: The question in this case is whether the Federal Age Discrimination in Employment Act provides the exclusive remedy for age discrimination claims for state and local government employees or whether such claims can be brought under the equal protection clause of the U.S. Constitution. If the Act is not the exclusive remedy plaintiffs will be permitted to bring claims under 42 U.S.C. §1983 and avoid the procedural requirements of the statute.

Workplace Courtesy Policies Targeted by the NLRB

In a recent decision, the National Labor Relations Board once again illustrated its willingness to regulate non-union workplaces. In Karl Knauz Motors, Inc. and Robert Becker the question presented was whether a “courtesy” policy violated the rights of collective action under Section 7 of the NLRA enjoyed by workers, whether union and non-union. The policy specifically stated:

“(b) Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

The Board affirmed an administrative law judge’s opinion that the courtesy policy was unlawful because it could be construed broadly to chill collective action, for example, it’s reference to “disrespectful” conduct and “language which injures the image or reputation of the dealership”. The Board ordered the respondent to cease and desist from maintaining its “courtesy” rule and other related practices.

The vast majority of employers are unaware that the NLRB has jurisdiction over non-union workplaces to protect Section 7 rights. Had this employer retained counsel to review its policies it would have spent far less than it ultimately paid an attorney to defend this case. 

An Introduction …

This blog/website is intended to be a resource for entrepreneurs and business managers seeking to avoid employee lawsuits in Florida. Large enterprises typically have the resources to retain large law firms which can provide labor and employment law counsel and representation. Small to medium size businesses, on the other hand, often operate without a working knowledge of the basic laws that apply to them … sometimes with disastrous results.