LABOR AND EMPLOYMENT ALERT February 2011
Record Number of Discrimination Charges Filed with EEOC in FY 2010
The number of workplace discrimination charges filed with the EEOC in FY 2010 was the highest in history. In all, a total of 99,922 charges were filed against private employers. Additionally, the total number of charges in each category increased (Race, Sex, National Origin, Religion, Retaliation, Age, Disability, and Equal Pay Act). The previous record for charges filed in a fiscal year was 95,402 (FY 2008).
EEOC charge statistics for FY 1997 through FY 2010 are available at the following link: Charge Statistics.
Excessive Damage Award Stricken by Court
The Second District Court of Appeal in Ernie Haire Ford, Inc. v. Benjamin Atkinson provided guidance for both economic and non-economic damage awards in discrimination cases and reduced a jury award for the Plaintiff in both areas. Atkinson filed suit alleging age discrimination and obtained a jury verdict at trial including an award for pain and suffering of $3,579,611.00. However, Atkinson presented no proof of physical injury or medical/psychological evidence of pain and suffering. The Second District Court of Appeal noted that without such evidence, courts have been reluctant to award more than six figures and further observed that the Fourth District Court of Appeals has held that, absent such evidence, noneconomic damages should not exceed a range of $5,000.00 to $30,000.00. The Court remanded the case to the trial court for further proceedings consistent with its ruling.
A copy of the opinion can be found at the following link: Ernie Haire Ford, Inc. v. Benjamin Atkinson.
Airport Shuttle Driver Exempt from FLSA
The Eleventh Circuit Court of Appeals in Abel v. Southern Shuttle Services, Inc. affirmed summary judgment in favor of the employer, because the employer’s shuttle service fell under the Motor Carrier Act Exemption to the FLSA. Abel sought overtime pay under the FLSA after being terminated for failing to transport a passenger. Southern Shuttle moved for summary judgment on the basis of the Motor Carrier Act Exemption, because many shuttle passengers originate from or travel to destinations outside Florida, subjecting Southern Shuttles to the jurisdiction of the U.S. Secretary of Transportation by virtue of this connection to interstate commerce. The District Court granted summary judgment in favor of Southern Shuttle on this basis and the Circuit Court upheld this decision. In its ruling, the Court found Southern Shuttle’s activities, although consisting entirely of intrastate transportation, were sufficient to meet the Motor Carrier Act Exemption based on the connection to people traveling outside the state that both reserved the shuttle from destinations outside Florida and used the shuttle service as part of their transportation.
A copy of the opinion can be found at the following link: Abel v. Southern Shuttle Services, Inc.
Eleventh Circuit Affirms FMLA Plaintiff not Required to Establish Causal Link
The Broward County Sheriff’s Office appealed a judgment based on an interference and retaliation claim brought under the FMLA in Spakes v. Broward County Sheriff’s Office. The Eleventh Circuit Court of Appeals stated plainly that the causal nexus element required for FMLA retaliation claims does not apply to an FMLA interference claim. Thus, an employee is not required to show a connection between the employer’s actions and the FLMA protected activity for interference claims. Still, employers are able to defeat FMLA interference claims by establishing lawful reasons for the adverse employment action.
A copy of the Eleventh Circuit’s opinion can be found at the following link: Spakes v. Broward County Sheriff’s Office.
Florida House Bill Reducing Unemployment Benefits Advances
On February 25, 2011, the Economic Affairs Committee voted 12-5 approving Florida House Bill 7005 (“HB 7005”). HB 7005 reduces state unemployment benefits from 26 weeks to a maximum of 20 weeks and lowers taxes for employers. The Florida Senate’s version (SB 728) does not include a reduction in the length of time an unemployed individual can receive benefits.
More information regarding HB 7005 and SB 728 is available by accessing the following links: HB 7005 and SB 728.
EEOC Considers Discrimination Against the Unemployed
The EEOC conducted a public meeting this month to discuss whether employers discriminate against the unemployed in the hiring process. EEOC Chair Jacqueline A. Berrian remarked that the meeting “gave the Commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools.” Comments at the public meeting included concerns that denying jobs to unemployed individuals may have a negative impact on racial and ethnic minority community members as well as people with disabilities. Meeting materials, including testimony, are available at the following link: Meeting Materials.
The EEOC also issued a press release related to the public meeting which is available at the following link: EEOC Press Release.
Class Certification for FLSA Violation Appealed to Ninth Circuit
In Harvey v. KAG West, LLC, Case No. 10-17360 (9th Cir. 2010), Defendants appealed the Northern District Court of California’s decision to certify Plaintiffs. Defendants asserted the District Court improperly placed greater weight on the fewer common issues in the claim and failed to properly analyze the numerous individual factual issues related to the Plaintiffs. Plaintiffs consisted of drivers for KAG West, the largest North American bulk petroleum transporter. Plaintiffs alleged KAG West’s policies resulted in numerous violations of the FLSA and California law. The District Court certified the class based on common issues related to the policy language and the potential defense of exemption from the FLSA based on Defendants’ assertion that the Motor Carrier Act applies to their activities.
Defendants asserted the certification was improper because: (1) the language of the policies at issue is too ambiguous to determine liability without an investigation as to the practical application of the policies; (2) the facts related to the practical application of the policies at issue are not sufficiently common to certify the class; and (3) the facts related to the defense of exemption based on the application of the Motor Carrier Act are not sufficiently similar to certify the class.
The Defense Research Institute, the American Trucking Association and the Chamber of Commerce of the United States of America filed amicus briefs asserting similar positions.
Department of Labor Enforcement Updates
As part of our continuing effort to keep employers apprised of the DOL’s greater enforcement efforts of FLSA violations, the following awards and settlements were publicized by the DOL this month:
- $934,000.00 recovered for 479 employees of United Healthcare in Hartford, Connecticut for overtime violations due to employees improperly being classified as exempt from the FLSA;
- $199,464.00 recovered for 30 current and former workers of Aaron Auto Glass, Inc., in Chicago, Illinois, for overtime wage violations;
- $397,703.00 recovered for 129 workers at 9 Mexican restaurants in Ohio who were denied minimum wage and overtime pay, in addition to an $11,000.00 civil money penalties for repeated and willful violations;
- $54,000.00 in wages and civil penalties recovered for 14 employees of Park It Management, Inc., for repeated and willful violations consisting of requiring employees to work more than 40 hours per week without overtime pay and not maintaining proper records;
- $104,000 in overtime back wages recovered for 24 employees of Treviicos-Soletanche JV, who were working on Kentucky’s Wolf Creek Dam repair project funded by the Recovery Act, after the DOL determined that the administrative and technical support workers were incorrectly identified as exempt;
- Using the “hot goods” provision of the FLSA (which provides that whenever goods are produced in violation of the FLSA’s minimum wage, overtime or child labor provisions, the Labor Department can prevent those goods from being shipped as interstate commerce), the DOL secured immediate payment of $138,524.15 in back wages to 33 former workers from a receiver of the now-defunct Hackett Precision Co. Inc.; and
- A lawsuit against Houston-based Kinder Morgan Inc. and Kinder Morgan Energy Partners has been filed to secure more than $1 million in overtime compensation for 4,500 operators, technicians, maintenance workers, laborers and administrative non-exempt employees, nationwide.
Firm News
As we mentioned in January’s Labor and Employment Alert, we have relocated to our new office as of January 31, 2011. Please note that our new address is 123 North Monroe Street, Tallahassee, Florida 32301.
PUBLICATION ARCHIVES:
123 North Monroe Street
Tallahassee, FL 32301
850.205.1996
850.205.3004 FAX