SLF LABOR AND EMPLOYMENT ALERT January 2009

Supreme Court Expands Anti-Retaliation Protections for Employees Participating in Internal Investigations

On January 26, 2009, the Supreme Court issued an important decision expanding the scope of the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 (“Title VII”) to include employees who report unlawful employment practices during questioning in an internal investigation. Previously, employees were required to “instigate or initiate” a complaint of unlawful employment in order to establish the protected activity under the opposition clause necessary to secure the anti-retaliation protections of Title VII. In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Court expanded employee protections under the Act to include those employees who have not initiated a complaint, but merely provide information regarding unlawful employment practices in an internal investigation. This will dramatically increase the number of employees who are protected under Title VII and may result in an increase in retaliation claims. Employers are encouraged to confer with their counsel regarding the full effect of this new law. The full decision may be found at http://www.supremecourtus.gov/opinions/08pdf/06-1595.pdf.

Minimum Wage in Florida Increases to $7.21 Per Hour

Effective January 1, 2009, the minimum wage in Florida increased to $7.21 per hour. This new rate will be in effect through July 23, 2009. Effective July 24, 2009, the Federal minimum wage will be increased to $7.25 per hour. Thereafter, Florida employers will be required to pay the higher rate required by Federal law.

Lily Ledbetter Fair Pay Act of 2009 Signed Into Law January 29, 2009

The Lily Ledbetter Fair Pay Act of 2009 has passed both houses of Congress and is expected to be signed into law by President Obama on January 29, 2009. The stated purpose of the new law is “to amend Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, to amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes.”

Section 3 of the law amends the Civil Rights Act of 1964 to declare that an unlawful employment practice occurs when: (1) a discriminatory compensation decision or other practice is adopted; (2) an individual becomes subject to the decision or practice; or (3) an individual is affected by application of the decision or practice, including each time wages, benefits, or other compensation is paid. The law also accrues liability, and allows an aggrieved person to obtain relief, including recovery of back pay, for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to practices that occurred outside the time for filing a charge. The law also applies the amendments to claims of compensation discrimination under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.

Section 4 amends the Age Discrimination in Employment Act of 1967 to declare that an unlawful practice occurs when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to the decision or other practice, or when a person is affected by the decision or practice, including each time wages, benefits, or other compensation is paid. A copy of the new law may be viewed at: http://www.govtrack.us/
congress/bill.xpd?bill=h111-11.

U.S. Supreme Court Holds That Union Allowed to
Charge Non-Members National Litigation Expenses

On January 21, 2009, the U.S. Supreme Court issued an opinion finding that the First Amendment to the U.S. Constitution allows local unions to impose charges on non-members for nation litigation expenses. In Locke v. Karass, the Court held that such charges are permitted if: (a) the subject of the litigation would also be chargeable if the litigation was occurring on a local level; and (b) the charge is reciprocal in nature (that is, the contributing local reasonably expects other locals to contribute similarly to the national's resources used for costs of similar litigation on behalf of the contributing local if and when it takes place. A copy of the opinion may be viewed at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=07-610.

Florida Appellate Court Finds Unemployment Compensation Due to
Employee Who Resigns and is then Terminated

The Florida First District Court of Appeal recently found that an employee who submitted her letter of resignation specifying a last date of employment, and was then fired before the resignation became effective, was entitled to unemployment compensation benefits. In Porter v. Florida Unemployment Appeals Comm’n, the Court found that because the employee “never left work voluntarily but was instead discharged from employment” prior to the effective date of her resignation, she was entitled to unemployment benefits. A copy of the decision may be viewed at: http://opinions.1dca.org/written/opinions2009/01-09-2009/08-0063.pdf.

New FMLA Regulations in Effect as of January 16, 2009

The new regulations promulgated by the U.S. Department of Labor regarding the Family and Medical Leave Act of 1993 are now in effect. All employers covered by the FMLA are strongly encouraged to familiarize themselves with the new regulations, which can be found at: http://www.dol.gov/
federalregister/HtmlDisplay.aspx?\DocId=21763&AgencyId=10&DocumentType=2.

Past Issues of SLF Labor and Employment Alert Posted on Website

You may view past issues of the SLF Labor and Employment Alert on the “Publications” page.

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