SLF LABOR AND EMPLOYMENT ALERT August 2009
Florida’s National Guard Members Receive Enhanced Job Protections
Effective July 1, 2009, Florida’s military affairs law governing employment rights of members of Florida’s National Guard has been amended. This amendment applies to private and public employers and significantly changes the rights and responsibilities regarding the employment of Guard members who have been ordered into state active duty.
The prior version of the law permitted employees with at least 1 year of employment prior to state activation to bring a civil action against their employer if he or she was discharged, reprimanded or had another penalty assessed because of his or her absence as a result of being ordered to active duty. If proven, the employee was entitled to actual damages and attorney’s fees. See § 250.482, Florida Statutes (2008). While the amended law retains these protections, it also contains several important changes of which employees and employers alike should be aware. See § 250.482, Florida Statutes (2009).
More specifically, a National Guard member is now required to promptly notify the employer of his or her intent to return to work following the completion of state active duty service. The amendment also expressly provides for an activated employee to use accrued vacation, compensatory or any similar leave with pay during their absence. The employer, however, cannot require a member to utilize such leave during the duration of state active duty service. Guard members are also now entitled to maintain both (1) the seniority the member had attained as of the date of commencement of active duty, including all the attendant rights and benefits; and (2) any additional seniority, rights and benefits the member would have attained if he or she had remained continuously employed during the period of active service. Finally, an employee may not be discharged from employment for one year after the return to work date, except for cause.
An employer has also obtained several statutory rights under the new law. An employer is not required to reinstate a qualifying National Guard member if it can prove:
1. The employer’s circumstances have so changed as to make employment unreasonable or impossible;
2. Employment would impose an undue hardship on the employer;
3. The employment before activation was for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely; or
4. The employer had legally sufficient cause to terminate the Guard member at the time he or she left for state active duty.
Given these substantial changes, employers are encouraged to seek the advice of counsel when contemplating the reinstatement of Florida National Guard members returning from state active duty
Florida Appellate Court Expands Scope of Sexual Harassment Claims
In a recent decision, the Fifth District Court of Appeal allowed an employee to maintain a hostile work environment claim even though the sexually explicit and offensive language she complained of was not directed toward her. In Blizzard v. Appliance Direct, the plaintiff was a female employee who complained that her supervisor was constantly making sexually explicit comments about female employees; discussing his sexual prowess; and “whinnying” when an attractive female would enter the store. While the comments were not directed at the plaintiff, she claimed that the workplace became a hostile environment, and that female employees who “played along” were treated more favorably than those who did not.
The plaintiff did not make many complaints, but did bring the matter to the attention of two other supervisors. The day after she spoke with an employee in human relations, she was either terminated or quit (the matter is in dispute).
The Fifth District, relying on a similar Federal court decision involving race discrimination and a hostile work environment, applied this analysis to the plaintiff even though she was not the specific target of the sexually-charged comments and actions of the supervisor. This is the first case of this type in Florida, and could lead to a sharp increase in hostile work environment claims because it has imbued a new class of litigants with a potentially viable claim.
Department of Labor Q&A Session Provides Answers to Employers with 401(k) Plans
The American Bar Association’s Joint Committee on Employee Benefits (JCEB) has posted information regarding a recent Q&A session with staff members of the U.S. Department of Labor. The remarks provided to the JCEB are unofficial and non-binding, but do include guidance on 401(k)-related plan topics such as: uncashed checks and unresponsive participants, plan audits, and class action lawsuits. The full test of the Q&A session may be found on the ABA’s website at: http://www.abanet.org/jceb/2009/DOL2009.pdf.
Employer Options for Reducing Labor Cost
With the recent downturn in economic conditions, many employers are searching for options to reduce overhead costs. Typically, labor constitutes a significant portion of these now daunting figures. More than ever, furloughs are being utilized to offer relief to employers’ pockets while avoiding the harsh option of termination. In addition, employers are making changes to the traditional Monday through Friday, 8:00 to 5:00 work week. While furloughs and alternative work hours serve as a palatable option for all, employers must be mindful not to violate the Fair Labor Standards Act (FLSA).
The U.S. Department of Labor provides answers to common employer questions with regard to the use of furloughs and other cost-cutting labor methods at: http://www.dol.gov/esa/WHD/flsa/FurloughFAQ.pdf. These frequently asked questions provide guidance for both exempt and non-exempt employee regulations under the FLSA, as well as answers to questions regarding meeting payroll. Employers should note that employment actions affecting employee wages often have implications not only under the FLSA, but also under other anti-discriminatory laws.
Florida Non-Compete Agreements
On July 30, 2009, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Proudfoot Consulting Company v. Gordon, 2009 U.S. App. LEXIS 17057, No. 08-14075, (11th Cir. 2009) that heavily addressed Florida’s non-compete law. For background purposes, Florida’s non-compete law is set forth in section 542.335 of the Florida Statutes. The statute contains a comprehensive framework for the enforcement of restrictive covenants. Although not an exhaustive list, the following are components of enforceable non-compete agreements:
• Must be reasonable in time, area, and line of business;
• Must be in writing and signed by the person against whom enforcement is sought;
• Must contain one or more legitimate business interests justifying the restrictive covenant; and
• The contractually specified restraint must be reasonably necessary to protect the legitimate business interest or interests justifying the restriction.
With respect to the Eleventh Circuit’s decision in Proudfoot Consulting, the Court confronted several issues related to non-compete agreements that warrant consideration for employers. First, the Court discussed the reasonableness of a non-compete agreement’s geographic scope. Proudfoot Consulting explains that courts can imply a reasonable geographic scope if the agreement is silent as to geographic limitations. Additionally, the Court addressed the reasonable belief defense. In addressing this defense, the Court articulated that an employee’s reasonable belief as to the scope of a competitor non-compete agreement “does not grant him a license to work for a competitor in violation of the [a]greement.” Essentially, an employer can still enjoin an employee’s ability to work for a competitor under these circumstances. The Court also discussed broad non-compete agreements and expressed concern over whether a “broad competitor non-compete covenant, which bars [the employee] from working for a competitor irrespective of which clients he is serving, would be reasonably necessary to protect [the employer’s] interest in the relationships that [the employee] developed with its clients.” Finally, the Court addressed damages and emphasized that damages are proper when the former employer can 1) prove its loss and 2) prove that the lost profits were “a direct result” of the employee’s breach of the non-compete covenant’s non-solicitation clause. The Court explained that damages for breaching a non-compete are not designed to punish employees; rather, damages are designed to make the prior employer whole.
The entire Proudfoot Consulting opinion is available at the following link: http://www.ca11.uscourts.gov/opinions/ops/200814075.pdf.
Section 542.335, Florida Statutes, is available at the following link:
http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display
_Statute&Search_String=&URL=Ch0542/SEC335.HTM&Title=%3e2009%3 eCh0542%3eSection%20335#0542.335.Firm News
Firm shareholders Robert J. Sniffen and Michael P. Spellman were named to Florida Trend magazine's Legal Elite in the area of Labor and Employment Law for 2009. This marks the third consecutive year that each lawyer has been named to this prestigious list of state-wide lawyers. The Florida Legal Elite is comprised of the top 2% of attorneys practicing in Florida according to the results of the magazine's statewide peer surveys.
Rob Sniffen was also named in the 2009 edition of The Best Lawyers in America publication as one of the top attorneys in Labor and Employment Law in the country. Mr. Sniffen’s selection was based upon peer-review surveys in which leading lawyers confidentially evaluate their professional peers.
Michael Spellman has been appointed Chair of the Second Judicial Circuit Grievance Committee "A". The Grievance Committee is comprised of lawyers and non-lawyers appointed by the Florida Bar, who reside within the Second Judicial Circuit. The Committee has the jurisdiction and power to hear and act upon complaints alleging misconduct and violation of the Rules Regulating the Florida Bar.
Terry J. Harmon has been selected for inclusion on Super Lawyers’ Florida Rising Stars list for 2009. No more than 2.5 percent of the lawyers in the state are named to this list of outstanding young attorneys.
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