LABOR AND EMPLOYMENT ALERT     March 2010

Historic Health Care Reform Legislation is Passed and Signed Into Law

 The Patient Protection and Affordable Care Act has been signed into law by President Obama. This new law will impact employer health plans; however, before all of the implications of the law are determined, the country will be keeping an eye on the U.S. Senate, which is currently considering whether to pass a reconciliation bill, which would alter certain provisions of the legislation and extend certain effective dates. For a copy of the new law go to:http://frwebgate.access.gpo.gov
/cgibin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3590enr.txt.pdf

Eleventh Circuit to Reevaluate Whether Repeated Flirtation and Unwanted Physical Contact Between Supervisor and Subordinates Constitutes Sexual Harassment

In what has become a hotly debated Opinion, a three-judge panel of the Eleventh Circuit Court of Appeals held in July 2009, that a supervisor’s repeated flirtations and touching of same-sex subordinates did not constitute sexual harassment.  Corbitt v. Home Depot U.S.A., Inc., 573 F.3d 1223 (11th Cir. 2009).  Only five months later, the court issued a revised opinion, but reached the same result.  Corbitt, 589 F.3d 1136.  Earlier this month, the court vacated the revised opinion and ordered that the case be reevaluated by the entire court instead of the original three-judge panel.  Corbitt, 2010 WL801708 (March 10, 2010). Although infrequent, such a move is not unusual.

At the heart of the issue is whether the conduct alleged by the employees was sufficiently “severe or pervasive” to alter the terms and conditions of employment and create a sexually hostile working environment.  The male supervisor was alleged to have made weekly phone calls to male subordinates over a 9 month period, among other things, commenting about their physical appearances; asking about shaving body hair; inquiring about the type of underwear worn by the employees; discussing and inviting the employees to engage in sexual activity; encouraging the employees to look at pornography and suggesting that the employee “cuddle” with the supervisor.  In addition to the verbal flirtations, the supervisor massaged employees’ necks and shoulders; played with their hair; gave hugs in lieu of handshakes; put his hands on employees’ backs, stomachs and thighs; and in at least one instance, placing his “privates” against another employee during a hug.

Although the final outcome is uncertain, this controversial opinion will again be fully reviewed and a third written opinion will most likely be issued.  Stay tuned to the Sniffen & Spellman Labor and Employment Law Alert for updates as this case progresses.

 U.S. Department of Labor Issues Revised COBRA Subsidy Notices

The United States Department of Labor has issued new model COBRA notices for use by employers and insurance companies. These new notices import the changes made to the COBRA law by Congress in the recently enacted Temporary Extension Act of 2010, which, among other things, extended the COBRA premium subsidy through March 31, 2010. The COBRA premium subsidy allows employees to only pay for 35% of the premium for COBRA continuation coverage, while employers pay the remaining 65%. (To view previous issues of the Alert that describe the premium subsidy go to: http://sniffenlaw.com/2009-Newsletters/NL-Dec09.html
and http://sniffenlaw.com /2009-Newsletters/NL-Novt09.html

The New Notices can be found at: http://www.dol.gov/ebsa/COBRAmodelnotice.html

The New Fact Sheet is at: http://www.dol.gov/ebsa/newsroom/fscobrapremiumreduction.html

Nine Month Delay Between Protected Activity and Adverse Action is Insufficient to Establish a Causal Relationship in Retaliation Actions

 In a recently decided but unpublished opinion, the Eleventh Circuit Court of Appeals recently held that a nine-month gap between and employee’s protected activity and his termination was insufficient to establish the required causal connection.  In affirming the grant of summary judgment for the employer, the court held that at least some evidence of causality was required to show a nexus between the two events.

Courts have generally held that the employee’s burden is slight when an adverse action closely follows a protected complaint.  In order to establish a causal connection, the employee must prove that the person making the decision to take adverse action was aware of the protected conduct, and that the protected activity and adverse action were not “wholly unrelated.”  This showing may be made when the time between the protected activity and adverse action were in close temporal proximity.  However, where there is a gap between the two events, the courts require some evidence and usually will not allow the inference of a causal relationship where the temporal proximity is greater than two or three months.

In reaching this decision, the Court reiterated the established rule that a gap of several months between protected activity and an adverse employment action, without actual evidence that the two events are related, will be insufficient to prove the required relationship.  The full text of the opinion may be found at http://www.ca11.uscourts.gov/unpub/ops/200912615.pdf

 Case Law Update: Citizens not Guaranteed Right to Speak at Public Meetings

On March 10, 2010, the First District Court of Appeal issued an opinion addressing citizens’ right to speak at public meetings.  In Keesler v. Community Maritime Park Associates, Inc., Case No. 1D09-1659 (Fla. 1st DCA 2010), the Court held that Section 286.011(1), Florida Statutes, grants citizens the right to attend public meetings but does not convey a right to speak.  In its reasoning, the Court rejected the Appellants’ argument that the phrase “open to the public” in Section 286.011(1) means that citizens have a right to speak.  The Court further explained that whether citizens should be granted a right to speak at public meetings is an issue more appropriate for the Legislature or other local public officials.

To view the entire opinion in Keesler, please visit the First District Court of Appeals’ website at http://opinions.1dca.org/written/opinions2010/03-10-2010/09-1659.pdf.

Eleventh Circuit Court of Appeal Affirms Summary Judgment in Favor of Employer

Pro se Plaintiff appealed the district court’s grant of summary judgment in favor of her former employer in her Title VII, the Florida Civil Rights Act, and the Florida Whistleblower’s Act action. The lower court’s decision was affirmed because Plaintiff failed to exhaust her administrative remedies with regard to her race and sex discrimination claims. In addition, summary judgment against her Title VII retaliation claim was affirmed because Plaintiff failed to adequately plead her retaliation claim in her complaint.  Plaintiff’s Whistleblower retaliation claim also failed because she submitted no evidence showing her pursued the administrative procedure for whistle-blower claims prior to filing her complaint. Thomas v. Miami Dade Public Health Trust, 2010 WL 750607 (11th Cir. March 8, 2010).

PAST ISSUES OF SLF LABOR AND EMPLOYMENT ALERT

You may view past issues of the SLF Labor and Employment Alert on the “Publications” page. Links to the 2006, 2007, 2008 adn 2009 Archives are provided below for your convenience.