LABOR AND EMPLOYMENT ALERT    May 2010

Supreme Court Ruling: Disparate-Impact Claims

On May 24, 2010, the Supreme Court issued an opinion addressing the question of “whether a plaintiff who does not file a timely charge challenging the adoption of a practice—here, an employer’s decision to exclude employment applicants who did not achieve a certain score on an examination—may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice.”  Lewis v. City of Chicago, Case No. 08-974 (2010).  The Supreme Court ultimately answered the question in the affirmative and held that a plaintiff that fails to timely file a charge challenging the adoption of an employment practice may later assert a disparate-impact claim against his or her employer so long as the timely-filed charge challenges the later application of the employment practice.  Importantly, the Supreme Court acknowledged that its opinion may cause new issues for employers.  Specifically, the Supreme Court stated, “[e]mployers may face new disparate-impact suits for practices they have used regularly for years. Evidence essential to their business-necessity defenses might be unavailable (or in the case of witnesses’ memories, unreliable) by the time the later suits are brought.”

The slip opinion is available at the following link: http://www.supremecourt.gov/opinions/09pdf/08-974.pdf

U.S. Department of Labor Issues Fact Sheet Regarding For Profit Private Sector Internships

The U.S. Department of Labor (“DOL”) has issued a fact sheet (Fact Sheet #71) to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act (“FLSA”). The fact sheet is limited to interns in the for-profit private sector. Non-profit or governmental employers are governed by a different set of standards relative to internships. A copy of the new fact sheet may be viewed at: http://www.dol.gov/whd/regs/compliance/whdfs71.htm. DOL indicated that it intends to begin enforcing rules relating to internships in the private sector. As such, private sector employers are well advised to review the fact sheet and audit any internship programs that are offered.

Florida Department of Corrections Can be Held Liable Under Title VII for Failing to Remedy Sexually Hostile Work Environment Created by Inmates

In the case of Beckford v. Dept. of Corrections (11th Cir. 2010), several former female prison employees brought suit against the Department of Corrections (“DOC”) for failing to remedy sexually offensive conduct of male inmates during their employment at the Martin Correctional Institution.  The sexually offensive conduct of the male inmates included the use of gender-specific abusive language and the performance of sexual acts in the presence of the female prison employees.   The case raised the issue of whether DOC could be held liable under Title VII of the Civil Rights Act when male inmates sexually harassed female prison employees. 

The jury returned a verdict in favor of the female prison employees, and the 11th Circuit affirmed. In holding that DOC may be held liable for sexual harassment by inmates, the Court refused the invitation of the Department to treat inmates differently from other third-party harassers and prisons differently from other employers under Title VII.  The Court also rejected the notion that prisons are uniquely exempt from liability for sexual harassment under Title VII.   The Court ruled that nothing in the law suggests that prison officials may ignore sexually hostile conduct and refrain from taking corrective actions that would safeguard the rights of the victims, whether they are employees or inmates.

DOL, IRS and HHS Issue Regulations Implementing Expansion of
Group Health Coverage to Adult Children

The U.S. Department of Labor, Internal Revenue Service and Department of Health and Human Services have issued joint regulations implementing recent health care reform legislation that requires group health plans and insurers of group or individual health coverage that offer dependent coverage to continue to offer such coverage for adult children until they reach the age of 26. In addition to the regulations, the agencies have promulgated a “Fact Sheet” and a set of “FAQs.” These documents may be viewed at:

Regulations: http://edocket.access.gpo.gov/2010/pdf/2010-11391.pdf

Fact sheet: http://www.dol.gov/ebsa/newsroom/fsdependentcoverage.html

FAQs: http://www.dol.gov/ebsa/faqs/faq-dependentcoverage.html

Changes in Florida’s Unemployment Compensation Laws

On May 17, 2010, Governor Crist approved several changes to Florida’s Unemployment Compensation Laws. Temporary state unemployment benefits are extended from February 27, 2010, to June 2, 2010. This extension for private sector employees is completely funded by federal funds. It is estimated that the cost of this extension for state and local government employees will cost the State $1.1 million and local governments $2.6 million. These amendments require those seeking unemployment compensation to register with the workforce information system and report to local one-stop centers. In addition, employers must timely respond to notices of claims within 20 days to avoid the benefits automatically being charged to the employer’s account. This change like others in the amendments is designed to reduce overpayments and, in turn, reduce the burden of socialized costs on Florida employers.

Second Circuit Court of Appeals Finds No Individual Liability for ADA Retaliation Claims

The Second Circuit Court of Appeals has held that the anti-retaliation provision of the Americans with Disabilities Act (“ADA”) does not authorize suits against individual defendants. The court’s decision in Spiegel v. Schulmann, 06-5914-CV, issued on May 6, 2010, can be viewed on the Second Circuit’s website at: www.ca2.uscourts.gov/decisions. The Eleventh Circuit Court of Appeals, the Federal appellate court with jurisdiction over Florida, Georgia and Alabama, already passed upon this question some three years ago and, like the court in Spiegel, found that individuals may not be sued for retaliation under the ADA. See, Albra v. Advan, Inc., 490 F. 3d 826 (11th Cir. 2007).

U.S. Department of Labor Discontinues Fact-Specific FLSA Guidance

On March 24, 2010, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) announced it was discontinuing the practice of issuing opinion letters explaining how the Fair Labor Standards Act applies to specific employment situations. Instead, DOL will occasionally issue “Administrator Interpretations” which broadly summarize the agency’s general interpretations of the FLSA. The “Administrator Interpretations” will only be issued when “further clarity regarding the proper interpretation of a statutory regulatory issue [relates]… to an entire industry, category of employees, or to all employees.” In the future, DOL will respond to requests for opinion letters by “providing references to statutes, regulations, interpretations, and cases that are relevant to the specific request but without any analysis of the specific facts presented.”

Increase in Wages Exempt from Garnishment

On May 26, 2010, Sections 222.11 and 77.041, Florida Statutes, were amended to allow for an increase in the amount of wages which are exempt from garnishment. With an effective date of October 1, 2010, the amendments increase the amount of disposable income exempt from garnishment from $500 a week to $750 a week. Only one who provides more than one-half of the support for a child or other dependant qualifies as a head of family and receives the exemption from garnishment. In addition, the amendments provide a form that must be used to waive one’s exemption from garnishment.

Amendment to the FLSA: Nursing Mothers

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act into law.  The Act, among other things, amends the FLSA to provide a reasonable break time for nursing mothers.  Employers with less than 50 employees are not subject to the Act if the Act “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.”

The full text of the Act is available at the following link:

http://www.calvert.house.gov/UploadedFiles/Health_Care_Reform_Bill_-_Passed_Into_Law.pdf

New U.S. Department of Labor Poster Required for Federal Contractors and Subcontractors

As of June 21, 2010, federal contractors and subcontractors are required to post employee rights under the National Labor Relations Act (“NLRA”). The poster must be placed conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted both physically and electronically. The size of the poster must be 11x17 inches or larger. The DOL poster can be found at: http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf

Case Law Update: Subcontractor Immunity Under Florida’s Workers’ Compensation Law

On May 12, 2010, the Third District Court of Appeal in Florida issued an opinion holding that the 2003 amendment to Section 440.10, Florida Statutes, does not retroactively apply to claims that arose before the amendment.  Ramcharitar v. Derosins, Case No. 3D09-1313 (Fla. 3DCA 2010).  In Ramcharitar, a flight operations manager for American Airlines sued an American Airlines’ subcontractor and the subcontractor’s employee for injuries he suffered on the job.  The lower court granted summary judgment in favor of the Defendants holding that they were immune from tort liability under Florida’s Workers’ Compensation Law.  On appeal, Defendants reasserted, among other things, that the 2003 amendment to Section 440.10 should be applied retroactively and, alternatively, that the 2003 amendment was remedial in nature and did not affect substantive rights.  In rejecting these arguments, the Court held that “because [Defendants] were not immune from suit under the version of section 440.10 in effect at the time of [Plaintiff’s] injury, as interpreted by Abernathy; because there is no clear legislative intent that the 2003 revision of the statute be applied retroactively to this case; and because the 2003 revision is not remedial, summary judgment should not have been entered in their favor.”

FIRM NEWS

Engelhardt Appointed to the Standing Committee on Professionalism

Todd D. Engelhardt has been appointed to a three-year term by The Florida Bar as a member of the Standing Committee on Professionalism. The scope and function of the Standing Committee on Professionalism is to assist the Commission and Center in implementing programs, events, and activities to promote professionalism throughout the state.

Spellman Appointed as Vice Chair to the Federal Court Practice Committee

Michael P. Spellman has been appointed Vice Chair of the Federal Court Practice Committee.  The Federal Court Practice Committee serves as the Bar’s liaison to the federal courts, the standing committees of the Federal Judicial Conference, and to chapters of the Federal Bar Association in Florida, and those committees of The Florida Bar interested in federal practice. The committee reviews proposed changes to the federal rules, including all local rules. The committee publishes the Florida Federal Court Judges’ Practice Guide which describes the practices of individual federal judges in all three districts.

Tyndall Admitted to the United States District Court, Middle District of Florida

Heather N. Tyndall was admitted to practice in the Federal Middle District of Florida which encompasses three of the six largest metropolitan areas in the state, Tampa, Jacksonville, and Orlando. The Middle District of Florida stretches nearly 400 miles from the Georgia border to Naples. The Middle District of Florida contains 5 divisions: Jacksonville, Ocala, Orlando, Tampa, and Fort Myers

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