LABOR AND EMPLOYMENT ALERT January 2011
Governor Rick Scott Requires Verification of Employees
On January 4, 2011, Governor Rick Scott signed Executive Order 11-02 requiring all agencies in the State of Florida under the direction of the Governor to verify the employment eligibility of all current and prospective employees using the E-Verify system. Additionally, all such agencies must require as a condition of any state contract that the contractor utilize the E-Verify system to verify the employment eligibility of all of the contractor’s employees, as well as the employees of any subcontractor to which the contractor assigns any tasks under the contract. Agencies not under the direction of the Governor do not have the same obligation but are encouraged to take the same steps to ensure the employment eligibility of their employees and the employees of any state contractors with those agencies.Executive Order 11-02 is available at the following link: EO 11-02.
EEOC Approves Regulations for ADA Amendments Act
The U.S. Equal Employment Opportunity Commission (“EEOC”) approved a final set of regulations for the Americans with Disabilities Act Amendments Act (“ADAAA”) at the end of December 2010. The EEOC’s five commissioners voted privately and unanimously to approve the long-awaited regulations. However, it may be months before the rules are made public. Congress passed the ADAAA in September 2008 to make legislative fixes in light of several federal court rulings that limited worker protections offered under the original Americans with Disabilities Act (“ADA”), which was enacted in 1990. The ADAAA, which took effect on January 1, 2009, required the EEOC to develop and issue regulations within one year of enactment. The proposed rules for governing enforcement of the ADAAA appeared in the Federal Register on September. 23, 2009, and the comment period for the proposal ended sixty days later. The ADAAA final regulations were released to the Office of Management and Budget (“OMB”) and other federal agencies for review and comment. The OMB now has up to ninety days to review the regulations. Once the OMB approves the regulations, they will be published in the Federal Register. Until that time, the regulations cannot be made public.
Supreme Court Permits Third Party Retaliation Claims Under Title VII
On December 7, 2010, the U.S. Supreme Court heard oral arguments in Thompson v. North American Stainless, LP on the issue of whether Title VII prohibits retaliation against a third party who was aware of, but did not engage in, protected activities. In Thompson, Plaintiff claimed his employer terminated him after his fiancée filed a complaint with the EEOC. Plaintiff admitted he did not participate in filing the complaint or engage in any other protected activity.
The Sixth Circuit affirmed summary judgment for the employer on the basis that Plaintiff was not a person within the scope of protection Title VII provided for retaliation. The Supreme Court reversed the award of summary judgment in North American’s favor based on its ruling that Title VII’s retaliation provisions are to be interpreted broadly. The Court was unwilling to create a general rule that all third parties allegedly affected by the filing of a discrimination complaint would fit into the protection of Title VII, but at the same time concluded that a sufficient relationship between the complainant and the third party allegedly affected by the adverse employment action would afford that third party protection under Title VII and standing to pursue such an action.
The Court’s opinion can be found at the following link: Thompson v. North American Stainless, LP.
EEOC Files Lawsuit Over Use of Credit Histories in Hiring Decisions
The EEOC filed a lawsuit against Kaplan Higher Education Corporation in the District Court for the Northern District of Ohio alleging Kaplan’s use of credit history information in its hiring decisions was discriminatory towards African-American candidates. According to the EEOC’s allegations, the practice has a discriminatory impact based on race and is neither job related nor a business necessity for the applicants. The EEOC unsuccessfully attempted a voluntary settlement and, as a result, brought this action seeking injunctive relief, lost wages and benefits.
Additional information related to the lawsuit is available at the following link: EEOC Press Release.EEOC Announces Settlement with Timeless Investments, Inc. in Age Bias Suit
The EEOC announced on January 20, 2011, that it had reached a settlement with Timeless Investments, Inc. to resolve a lawsuit filed in 2008 alleging Timeless hired two younger employees instead of more-experienced applicants who were over sixty. The parties entered into a three-year consent decree requiring Timeless to pay $11,500.00 in damages to one of the claimants, retain an outside EEO consultant to ensure compliance, provide training regarding age discrimination to existing employees, implement specific provisions prohibiting age discrimination, increase recruiting efforts for employees 40 years old or older, post a notice as to the decree, hold employees responsible for violations, and report to the EEOC annually during the duration of the decree.
Additional information related to the settlement is available at the following link: EEOC Press Release.
Dodd-Frank Act Expands Whistleblower Protection
The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, H.R. 4273, (the “Dodd Frank Act”) was signed into law by President Obama on July 21, 2010. The Dodd Frank Act represents a significant change to federal financial regulations and, among other provisions, establishes a Bureau of Consumer Financial Protection within the Federal Reserve to regulate consumer financial products and services in compliance with federal law. Additionally, the Dodd Frank Act includes a provision that requires the Securities and Exchange Commission to pay awards, under prescribed regulations and subject to certain limitations, to eligible whistleblowers that voluntarily provide the SEC with original information about a violation of federal securities laws that leads to the successful enforcement of a covered judicial administrative action, or a related action.
DOL Settlement Results in $420,000.00 in Wage Payments Under FLSA
The Department of Labor announced on January 24, 2011, it reached a settlement with Super China Buffet and Golden Dragon restaurants operating in Washington for their alleged failures to pay workers proper wages pursuant to the Fair Labor Standards Act. The allegations were based on the claims of eighty-three workers, some of whom the restaurants allegedly paid only $10.00 per day. The total settlement amounted to $420,000.00 in addition to a civil penalty of $5,000.00. This settlement follows our December Labor and Employer Alert article regarding the Department of Labor’s additional funding for FLSA enforcement in the restaurant industry.
DOL Files Lawsuit Seeking $282,000.00 in Back Wage Payments Under FLSA for Emergency Transportation Workers in Texas
The Department of Labor filed suit on January 26, 2011, against Bayou City E.M.S. Group, Inc., Willowbrook E.M.S. Group, Inc., and the companies’ owners and officers alleging employees of both companies were not paid overtime pursuant to the Fair Labor Standards Act. The DOL alleges the companies are a single enterprise and require employees to work twenty-four hour shifts for both operations, resulting in a ninety-six hour work week. The employees, however, are allegedly only paid for a forty-hour work week by each operation. The success of the EEOC’s action appears to be dependent on whether the companies are legally considered a single enterprise.
Case Law Update - Wal-Mart Stores, Inc. v. Dukes - Class Certification/Sexual Discrimination
On December 6, 2010, the U.S. Supreme Court granted certiorari in Dukes v. Wal-Mart Stores, Inc. (10-277) to address issues related to the certification of a class of Plaintiffs. Oral argument is set for March 29, 2011. We will provide further updates related to this case as additional information becomes available.
The Dukes docket is available at the following link: Dukes v. Wal-Mart Stores, Inc.
Bill Filed to Ban Workplace Discrimination Based on Sexual Orientation
House Bill 361, titled the “Competitive Workforce Act,” was filed on January 26, 2011, to prevent Florida employers from discriminating against workers based on sexual orientation. It would prohibit all forms of discrimination in the workplace, including sexual orientation.
Additional information related to House Bill 361 is available at the following link: HB 361.
Firm News
We are excited to announce that 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