SLF LABOR AND EMPLOYMENT ALERT September 2009

EEOC ISSUES PROPOSED REGULATIONS AND Q&A ON ADAAA

As discussed in prior issues of the Labor and Employment Alert, the Americans With Disabilities Act Amendments Act of 2008 went into effect on January 1, 2009. (See http://www.sniffenlaw.com/NL-Dec08.html). The U.S. Equal Employment Opportunity Commission has issued proposed regulations implementing the Americans With Disabilities Act Amendments Act of 2008 and a Q&A on the proposed regulations. The proposed regulations are published in the Federal Register and may be found at: http://www.lawmemo.com/docs/eeoc/ADAAproposedregs.pdf. The Q&A publication may be found at: http://eeoc.gov/policy/docs/qanda_adaaa_nprm.html. Employers are strongly encouraged to follow the development of these proposed regulations, as they are expected to have a substantial impact on disability issues in the workplace.

LAWSUIT INITIATED BY FORMER SCHOOL BOARD LAWYER DISMISSED WITH PREJUDICE

In Rico v. School Board of Miami-Dade County Public Schools, et al., 22 Fla. L. Weekly D54a (S.D. Fla. 9/17/09), a former lawyer of the Miami-Dade County School Board sued the Board and one of its members for defamation. According to the Complaint, member Perez “allegedly stated that Plaintiff was dishonest, guilty of wrongdoing, and a thief who stole money from the School Board and could not be trusted.” The U.S. District Court, Southern District of Florida dismissed the Complaint, finding that Perez enjoyed an absolute privilege with respect to all of the alleged statements. Citing the Florida Supreme Court’s decision in McNayr v. Kelly, 184 So. 2d 428 (Fla. 1966), the court found that public officials such as Perez are accorded an absolute privilege as to defamatory statements made in connection with the performance of their official duties. The court went on to find that Perez’s statements were made in connection with the performance of her official duties and responsibilities and, therefore, were privileged and not actionable.

SUBSEQUENT EMPLOYER CANNOT BE HELD LIABLE FOR ATTORNEY'S FEES UNDER FLORIDA'S NON-COMPETE STATUTE

Under Florida’s non-compete statute, a prevailing party is entitled to an award of attorney’s fees and costs. However, if an employer sues an employee’s subsequent employer, is the employer entitled to attorney’s fees and costs? That question was answered by the Fourth District Court of Appeal in Bauer v. Dilib, Inc., Case No. 4D08-3787 (Fla. 4th DCA 9/16/09).

In Bauer, the question presented was whether an employer who has a restrictive covenant with employees can recover its attorney's fees from a third party who knowingly aids and abets the employees' violation of the restrictive covenant. The court explored Florida’s non-compete statute, §542.335, Florida Statutes and held that “the employer cannot recover its attorney's fees from the third party in that situation.”

FIRM NEWS

SNIFFEN & SPELLMAN EARN DEFENSE VERDICT IN FEDERAL JURY TRIAL

On August 12, 2009, a jury returned a defense verdict in favor of the State Department of Transportation in a case alleging gender discrimination, retaliation and a hostile work environment. Rob Sniffen, Michael Spellman and David Marsey were counsel of record for the DOT in the 3-day trial in the U.S. District Court for the Northern District of Florida. The case was brought by a senior attorney with the DOT, who alleged that her former supervisor had discriminated against her on the basis of her gender, and following her complaints, had subjected her to a hostile work environment and retaliation. The jury deliberated for just over one hour before reaching its verdict that Plaintiff had failed to prove any of her claims.

SPELLMAN APPOINTED TO THE FEDERAL COURT PRACTICE COMMITTEE

Michael P. Spellman has been appointed by The Florida Bar as a member 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.

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