SLF LABOR AND EMPLOYMENT ALERT October 2009

Congressional Attempts to Overturn Recent Employment Decisions

On October 7, 2009, the United States Senate Judiciary Committee held a hearing titled: “Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?” This hearing discussed two recent employment discrimination decisions, Gross v. FBL Financial Services, 129 S. Ct. 2343 (June 18, 2009) and Circuit City Stores Inc. v. Adams, 532 U.S. 105 (2001). In Gross, the Supreme Court held that under the Age Discrimination in Employment Act (“ADEA”), an employee must prove that his age was the sole motivating factor resulting in an alleged adverse employment action. In Circuit City, the Court held pre-dispute arbitration provisions are enforceable under the Federal Arbitration Act.

The Committee expressed concerns that these decisions would make it more difficult for employees to have their day in court. In response to these concerns, the House and Senate have introduced the Arbitration Fairness Act of 2009 (“AFA”) (H.R. 1020) (S. 931) which would legislatively reverse Circuit City. Similarly, the House has introduced the Protecting Older Workers Against Discrimination Act (H.R. 3721), which would amend the ADEA by lowering an employee’s burden to prove only that age was a “motivating factor” in an alleged adverse employment action. This requirement would mirror Title VII which sets the standards for other types of discrimination.

We will update you as these important provisions progress through the legislative process.

Florida Supreme Court Declines to Review Florida Pledge Law

Florida law requires the Pledge of Allegiance be recited every day in elementary, middle and high schools. However, the United States Supreme Court has held the mandatory recitation of the Pledge is unconstitutional. In an effort to resolve this disparity, Florida law provides a student the opportunity to opt out of the pledge by presenting a note from a parent. The law was recently challenged in Broward County where a public high school student declined to participate in the recitation of the Pledge, but did not have a parental excuse. The District Court held the statute unconstitutional but that decision was overturned by the appellate court. With the Supreme Court declining to hear this issue, there is no additional clarification on the horizon. The safe course of action is to permit students to be excused from the Pledge as long as they are not disruptive, regardless of whether they possess the required parental excuse.

Verbal Complaints are Insufficient to Constitute Protected Activity in Fair Labor Standards Act Claims

The Seventh Circuit Court of Appeals has recently held that oral complaints of alleged violations of the Fair Labor Standards Act (“FLSA”) are insufficient to serve as the basis for a retaliation claim. Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. 2009). In that case, employees were required to use a time card to swipe in and out of a time clock. The plaintiff received several disciplinary action warnings over a period of months for violations of company policy regarding his use of the time clock. These warnings culminated in a one-day suspension and a final warning that additional policy violations could result in termination.

The plaintiff then allegedly complained about the legality of the location of the employer’s time clocks, contending that the location prevented the employees from being paid for time spent donning and doffing their required personal protective gear. He was subsequently terminated following yet another violation of the employer’s time entry policies. The plaintiff filed suit alleging his termination was in retaliation for the reporting of illegal practices under the FLSA.

In rejecting the plaintiff’s claims that his oral complaints were sufficient to establish the protected activity element of his retaliation claim, the court analyzed the plain language of the FLSA which requires the “filing” of a complaint, thus implicating the use of a written complaint process. The Court held that the natural understanding of the phrase “file any complaint” requires the submission of some writing to an employer, court, or administrative body.

Because other cases suggest, without directly holding, that oral complaints may be sufficient, employers should consult legal counsel for a fact-specific analysis before taking any action against an employee who has made oral allegations of a violation of the FLSA.

Firm News

Lisa A. Barclay Joins Sniffen & Spellman, P.A.

We are pleased to announce the addition of Lisa A. Barclay to the firm. Ms. Barclay is a seasoned civil litigator with over 15 years of experience litigating complex actions. Her practice will include matters involving labor and employment and civil rights litigation. Ms. Barclay lectures and publishes articles both statewide and nationally on civil litigation issues. She earned her law degree from Stetson University College of Law, cum laude, and her bachelor’s degree from Florida State University, cum laude.

Sniffen & Spellman Sponsors Challenge Grant

On October 26, 2009, Sniffen & Spellman sponsored a challenge grant for Florida State University radio station WFSU-FM/88.9. WFSU radio is a member of the Florida Public Radio Network and provides Tallahassee, Panama City and the surrounding communities with daily up-to-date news and information. Programs include local news and information, Florida on the Line, Capitol Report, and National Public Radio news favorites such as All Things Considered, Talk of the Nation and Marketplace as well as entertainment and documentary like Wait, Wait, Don't Tell Me, Prairie Home Companion and This American Life. For more information about WFSU or to pledge your support for public radio, go to: www.wfsu.org.

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