SLF LABOR AND EMPLOYMENT ALERT February 2010

Policies Prohibiting Spouses from Working Together Do Not Constitute Marital Status Discrimination Pursuant to the Florida Civil Rights Act

In a recent opinion, the Third District Court of Appeal quashed a lower court ruling affirming damages awarded to an employee by the Miami-Dade County Equal Opportunity Board for marital status discrimination, because the award constituted a clear departure from the law and a miscarriage of justice.  The plaintiff alleged she was discriminated against on the basis of her marital status because she married one of the partners responsible for the management of her employer and was subsequently terminated.

Unlike Title VII, its federal counterpart, the Florida Civil Rights Act of 1992 (“FCRA”) prohibits discrimination on the basis of an employee’s marital status.  The Court here reinforced established law holding that one cannot state a claim for discrimination on the basis of marital status based on the identity or actions of one’s spouse. Instead, the FCRA prohibits discrimination based on the status of being married.

This holding reinforces the propriety of policies prohibiting spouses from working together or within each others’ chain of command and permits employers to take action under such circumstances, including the termination of one spouse, without fear of violating the FCRA’s prohibition on marital status discrimination.  The short opinion may be found at http://www.flemploymentlawblog.com
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Employee’s Failure to Disclose Employment Discrimination Lawsuit to the Bankruptcy Court Results in Summary Judgment for the Employer

In Robinson v. Tyson Foods, Inc., the employer’s summary judgment motion was granted where the employee did not report her employment discrimination lawsuit to the bankruptcy court.  While in the midst of Chapter 13 bankruptcy proceedings, the employee brought a discrimination claim against her former employer alleging harassment, racial abuse and intimidation resulting in her constructive termination.

In seeking summary judgment, the employer argued that the employee’s failure to disclose her pending employment discrimination lawsuit constituted inconsistent positions under oath and were calculated to make a “mockery of the judicial system.” The District Court granted summary judgment and the employee appealed. In affirming summary judgment for the employer, the Eleventh Circuit recognized the employee had a continuing duty to disclose all assets and potential assets, including her pending lawsuit, to the bankruptcy court, and by extension, her creditors.  The Court held the employee’s failure to update the bankruptcy court despite a clear duty to do so resulted in inconsistent representations under oath by representing to the bankruptcy court that she had no legal claims while simultaneously pursuing her discrimination claims against the employer.  Because of the employee’s intentional contradictions, she was precluded from advancing her employment discrimination claims.

The Robinson decision provides employers another mechanism to resolve cases in the beginning stages, regardless of merit and prior to incurring substantial defense costs. The lesson from Robinson is that a litigation check in the local bankruptcy court may prove extremely fruitful for employers facing unlawful employment practices claims. Accordingly, employers and defense counsel should include a search of bankruptcy records and related asset disclosures as part of their initial case evaluation. The full text of the opinion may be found at http://www.ca11.uscourts.gov/opinions/ops/200814991.pdf.

Florida Legislature Moving Unemployment Compensation Tax Delay toward Swift Passage

The Florida Legislature is considering a bill that would delay an unemployment compensation tax increase for two years. The bill is being shepherded through the Legislature on a fast track and appears headed for passage. Last week, a panel of the Florida House of representatives approved the House version of the bill (HB 7033). A similar bill in the Florida Senate (SB 1666) was also approved in committee. A copy of the House version of the bill may be viewed at: http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=43607&SessionId=64

U.S. Senate Filibuster Prevents Appointment to NLRB

The U.S. Senate has blocked the President’s re-nomination of Craig Becker to serve as a member of the National Labor Relations Board. Because the appointment was blocked through a filibuster, the Senate will more than likely not take up the matter in the future. Since the NLRB is headed by a 3 member panel, it will continue to decide private sector labor issues with its current 2 members, Members Liebman and Schaumber.

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