Archive for April, 2010

Well some good news has come for employees recently in a legal decision from a Federal Court in Tennessee.  Now it may not be enough for an employer to merely have an anti discrimination policy and invoke it against employees making claims against it.  Now, employers probably have to actually follow the policy and train employees on the policy.

For over 10 years, employers have been able to avail themselves of an affirmative defense to sexual harassment allegations by an employee against a supervisor/manager.   This defense is known as the Faragher/Ellerthdefense, and can be invoked where the employer can demonstrate that: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65 (1998). The vast majority of employers have anti-harassment policies including reporting procedures and protocols for employees to follow, have disseminated those policies and procedures to all employees, and have required employees to acknowledge receipt of the policies. However, the adoption, dissemination and acknowledgment of receipt of the policy by the employee may not be sufficient for employer to invoke the affirmative defense.

Recently, in Bishop v. Woodbury Clinical Laboratory, No. 3:08-cv-1032 (M.D. Tenn. 2010), the court rejected the employer’s Faragher/Ellerth affirmative defense despite the fact that the employer had an existing anti-harassment policy that was published and provided to all of its employees. The employee admitted that she had received the policy and had been directed to read it. She claimed, however, that she did not read the policy or understand the reporting requirements. The court noted that there was no evidence offered to demonstrate that the employee or her supervisor received any training on the sexual harassment policy and reporting obligations. Thus, the court concluded that the employer failed to establish that it was entitled to invoke the Faragher/Ellerthaffirmative defense as it could not demonstrate that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior.

Whether other courts around the country follow this trend remains to be seen, but at least it gives some hope to employees who are always fighting against employers’ claims that they could not have possibly discriminated because they have an anti-discrimination policy.  After all this is perfectly logical reasoning right?

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The majority of employers across the United States are NOT required to drug test and many state and local governments have statutes that limit or prohibit workplace testing, unless required by state or Federal regulations for certain jobs. Also, drug testing is NOT required under the Drug-Free Workplace Act of 1988. On the other hand, most private employers have the right to test for a wide variety of substances.   However, your employer must comply with state and federal guidelines in setting up drug testing programs.

If you work for a Federal Agency, Federal agencies conducting drug testing must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services. These Mandatory Guidelines for Federal Workplace Drug Testing include having a Medical Review Officer (MRO) evaluate tests. They also identify the five substances (amphetamines, cannabinoids, cocaine, opiates and phencyclidine) tested for in Federal drug-testing programs and require the use of drug labs certified by SAMHSA.

The current law in the private sector generally permits non-union companies to require applicants and/or employees to take drug tests.  In unionized workforces, the implementation of testing programs must be negotiated so if you are a member of a union that has not agreed for its employees to be drug tested, speak to your union representative.

Again, this body of  law also varies based upon your state and local governments. 

 However, in Florida, where my office is located, drug testing is addressed in Florida Statutes 440.101 and 440.102.  In Section 440.101, the State of Florida indicates that it wishes to promote drug free workplaces.  The statute further provides that in the event an employer insitutes a drug free workplace including notice, education, and procedural requirements regulated by the Agency for Health Care Administration, than the employer may require employees to test for drugs and/or alcohol.  As part of a drug free workplace, the employer must notify the employees that it is a condition of employment for an employee to  refrain from reporting to work or working with drugs or alcohol in their system.

Section 440.102 sets forth the required procedures that must be taken for confidentiality and the drug testing standards for laboratories.  In accordance with this statute the employer must give all employees and applicants for employment a written policy statement on drug testing which must contain certain items set forth in the statute.  In addition, if an employer that does not have a policy, chooses to start one, it must give employees at least 60 days notice of this policy change.

So long as the employer follows the very lengthy requirements of this statute,  an employer may fire an employee or refuse to hire an applicant who has failed a drug test.  In addition, since such a termination of employment would be “for cause” an employee could forfeit his/her rights to workers compensation and unemployment benefits.  In addition, if the employer follows all of these guidelines, and an employee refuses to submit to a drug test, the employee can be fired and the job applicant can be refused hire.

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Many times a student intern is working for an employer without getting paid for the hours worked. In addition, when the intern is not paid as an employee, they are also not entitled to the benefits of other employment laws such as those prohibiting sexual harassment and discrimination.

So the question is when must a student intern be paid and treated as an employee rather than merely an intern? Well the Department of Labor has recently released some guidelines that give some information as to when a student intern needs to be paid an hourly wage and/or overtime pay.  See the attached Fact Sheet.  Department of Labor Fact Sheet on Interns

The Department of Labor has opined that the intern is not entitled to be paid an hourly wage where the intern is working for his or her own educational benefit.

In order to qualify for this limited exception, the internship must meet a six-factor test:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.

The more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience.

The internship experience is for the benefit of the intern.


In essence, the more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training.

The intern does not displace regular employees, but works under close supervision of existing staff.


If the employer would have hired additional employees or required current employees to work additional hours but for the presence of interns, the internship better resembles an employment relationship.

The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded.

If the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

The intern is not necessarily entitled to a job at the conclusion of the internship; and

The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The fact sheet notes that the internship should be for a fixed duration, and not be used as a trial period in which the employer evaluates the intern’s work performance for future work.
If all of these criteria are met, an employment relationship is not deemed to exist, and FLSA requirements do not apply. However, the exemption is supposed to be interpreted narrowly so if there is any doubt, it would be deemed to be an employment relationship rather than an internship.   However, in each case, you should confer with an employment attorney to determine whether you would be deemed an employee or not.

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You may recall my recent posting on whistleblower protections provided to employees under both state and Federal Laws. Well, the the recent Federal health care legislation provides new whistleblower protections to employees under the recently enacted Patient Protection and Affordable Care Act (“PPACA”).

Congress included whistleblower and retaliation protections in the recently-enacted Patient Protection and Affordable Care Act (“PPACA”), the comprehensive health care legislation signed by President Obama in March 2010. The whistleblower provisions encourage employees to report fraud or waste under the statute.

The PPACA clearly showed an intent by Congress to extend whistleblower protection to those who report abuses or fraudulent conduct in the delivery of health care through the use of public monies.

Any employee who believes that he or she has been discharged or discriminated against in violation of law is entitled to seek relief using the same procedures provided in 15 U.S.C. §2087(b), which contains the extensive whistleblower protections contained in the Consumer Product Safety Improvement Act of 2008. These procedures include filing a complaint concerning discrimination or retaliation with the Department of Labor, going through an administrative process to determine whether the employee’s conduct protected by Section 18C was “a contributing factor in the unfavorable personnel action” alleged by the employee, and providing for the filing of a civil action in federal court after exhaustion of the administrative process.

Interestingly, however, Section 1558 explicitly limits application of Section 18C only to violations of Title I of the PPACA. Title I covers the statute’s core provisions for medical care in conventional settings, such as the provision of health care services at hospitals, clinics and physician offices; hence, employees who report fraud, waste or violations in those settings fall under the protections afforded by Section 1558.

Finally, Section 1313 of the PPACA makes any “[p]ayments made by, through or in connection with an Exchange” subject to the False Claims Act, 31 U.S.C. 3729, et seq., if the payments involve any Federal funds. The False Claims Act prohibits the “knowing” presentation of a false or fraudulent claim for approval or payment; hence, any “knowing” presentation of a bill or invoice for health care services through an Exchange set up under the PPACA that contains overcharges is subject to a civil penalty. The penalties include a fine of up to $10,000, a civil penalty of between 3 to 6 times the amount of the overcharge, and repayment of the cost to the Federal government of bringing the civil action to prove the violation. Note that Section 1313 contains the threat of a civil penalty up to 6 times the amount of damages sustained by the Federal government as a result of a violation, which is twice as high as the maximum available under the False Claims Act. Coupled with the whistleblower provisions contained in Medicare and Medicaid statutes, any payment for health care services that involves Federal funds could be expected to be subject to the protection of a whistleblower provision.

Since these statutory provisions and processes are complicated, if you work in a healthcare setting and believe you have been retaliated against or terminated based upon complaints of illegalities in your medical office, you probably want to consult with a skilled employment lawyer to evaluate your next course of action.

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So yesterday I discussed COBRA benefits, when they are generally available and the applicable time frames. You also need to be aware of recent legislation affecting the amount and duration of your COBRA benefits.

The Obama Administration passed the American Recovery and Reinvestment Act (“ARRA”) of 2009 which provided expanded rights under COBRA. ARRA gave employees (and their dependents) who were involuntarily terminated from employment between September 1, 2008 and December 31, 2009 the right to elect COBRA coverage and pay only 35% of the COBRA premium. Under ARRA, the subsidy was limited to a total of 9 months.

Since the enactment of ARRA, the subsidy period has been extended twice to include employees involuntarily terminated through March 31, 2010 and the length of the subsidy has been increased from 9 to 15 months. On April 15, 2010, Congress passed the Continuing Extension Act of 2010 (“Act”) and the White House is reporting that it was signed by the President on the same day. The Act again extends the subsidy, this time to employees who are involuntarily terminated through May 31, 2010. The Act also provides transition relief to individuals who lost their jobs between March 31, 2010 and the date of enactment. The subsidy still remains capped at 15 months.

So make sure when determining how much COBRA premium you are required to pay and how long you are entitled to receive COBRA that you either check with your Human Resources department or an experienced employment law attorney.

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In today’s business environment, with so many people losing their jobs, one big concern of people is what are their rights to continue benefits such as health insurance under COBRA. So this post is intended to give you some information on COBRA, who it applies to and how it works.

For all those interested COBRA refers to the Consolidated Omnibus Reconciliation Act. COBRA was passed in 1986 and provides certain former employees, retirees, spouses, former spouses, and dependent children the right to temporary continuation of health coverage at group rates. This coverage, however, is only available when coverage is lost due to certain specific events. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. It is ordinarily less expensive, though, than individual health coverage.

In order for your employer to be subject to COBRA, they must have had at least twenty employees on more than 50 percent of it business days in the prior calendar year. Both part time and full time employees are used to calculate this, two part time employees count as one full time employee. Even if your employer was not subject to COBRA, many states, such as the State of Florida have similar benefit continuation statutes that apply to smaller employers.

You are entitled to COBRA coverage if you are a covered employee or the spouse or dependent child of the covered employee and a qualifying event as follows took place:

Qualifying Events for Employees:

Voluntary or involuntary termination of employment for reasons other than gross misconduct
Reduction in the number of hours of employment

Qualifying Events for Spouses:

Voluntary or involuntary termination of the covered employee’s employment for any reason other than gross misconduct
Reduction in the hours worked by the covered employee
Covered employee’s becoming entitled to Medicare
Divorce or legal separation of the covered employee
Death of the covered employee

Qualifying Events for Dependent Children:

Loss of dependent child status under the plan rules
Voluntary or involuntary termination of the covered employee’s employment for any reason other than gross misconduct
Reduction in the hours worked by the covered employee
Covered employee’s becoming entitled to Medicare
Divorce or legal separation of the covered employee
Death of the covered employee

Employers must notify the group health insurer or provider of benefits of a qualifying event within 30 days after an employee’s death, termination, reduced hours of employment or entitlement to Medicare.

A person entitled to benefits under the group insurance must notify the plan administrator of a qualifying event within 60 days after divorce or legal separation or a child’s ceasing to be covered as a dependent under plan rules.

In the event of a COBRA qualifying event, you generally must be sent an election notice not later than 14 days after the insurance company or plan administrator receives notice that a qualifying event has occurred. The individual then has 60 days to decide whether to elect COBRA continuation coverage. The person has 45 days after electing coverage to pay the initial premium.

Once you elect to COBRA coverage, you are entitled to COBRA benefits for up to 18 months. However some employers may elect to allow COBRA coverage for longer than 18 months.

Remember that you can only get COBRA benefits if your former employer continues to operate the group insurance plan. So if you employer shuts down and has not more insurance plan, they are not required to furnish COBRA benefits.

If you do not got the required COBRA notices from your former employer, there are civil actions that can be brought where you are entitled to damages for each day they are late in delivering your COBRA notice and this statute also provides for recovery of attorneys’ fees.

Since COBRA is a complicated area that has some new rules that have been effected by the Obama administration, I will continue to provide some more information on COBRA tomorrow.

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A federal jury in Hartford, Connecticut, recently awarded $1.37 million in damages to a former Pfizer scientist who alleged that she was fired for raising safety concerns. This just shows the types of awards that are being given to employee whistleblowers who blow the whistle on violations of laws by their employer and have their job terminated in response.

Under Florida law, and in most states there exists a whistleblower law. For instance in Florida it is illegal to retaliate or terminate an employee for complaining about the employer’s violations of a law, rule, or regulation of state or Federal law. So if you complain about a violation of law, it is not only illegal for your employer to fire you, but they also can’t retaliate against you by reducing your hours, salary, working conditions, etc. For instance, my law firm has in the past represented an employee of Publix who complained about its failure to follow safety precautions in its meat department, an employee of Suntrust Mortgage who complained about illegalities in origination of mortgages, and employees of doctors offices who have submitted false medicare claims.

In addition to the whistleblower laws available under state laws, many Federal laws provide remedies to an employee for whistleblowing. For instance, if you complain to OSHA (The Occupational Health and Safety Administration) about safety issues, that statue has its own protections for whistleblowers. Also there are protections under the Federal Sarbanes Oxley statute as well as many other statutes such as major federal environmental laws (Clean Air, Toxic Substances, Clean Water, Atomic Energy, Solid Waste, Safe Drinking Water, and Superfund) each have special provisions protecting corporate whistleblowers. There are also protections under the Federal False Claims Act which relates to issues such as false or fraudulent claims being submitted to Medicare.

So the bottom line is if you think that you have blown the whistle on your employer and have been terminated or retaliated against you should speak with legal counsel about the issues.

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As many of you may know, a workers compensation injury is one where you have suffered an injury working on the job for your employer. Many employers carry workers compensation insurance to cover medical care and injuries caused by on the job accidents. Normally when you suffer these injuries you need to let your employer know as soon as possible so that they may complete the necessary claims forms to get your the medical care you need. It is also sometimes helpful to retain an attorney that specializes in workers compensation claims to guide you through the process. But, this article is really not intended to talk to you about this process.

Some of you may not know that an employer’s workers compensation insurance premiums are a type of insurance called retrospective. In other words, the more claims and open claims an employer has, the higher their premiums go. So why should that matter to the employees? Well, on many occasions, employers don’t want to continue to employ employees who have suffered workers compensation injuries for a number of reasons. First, their insurance premiums may increase. Second, they may not want to continue to employe an employee who has a higher chance of getting injured in the future. Third, they may not want to have to pay an employee for the time it takes to go to doctors appointments to care for their injuries.

On may occasions, the ultimate outcome is that employers try to find ways to terminate employees who have suffered workers compensation injuries. However, in Florida and most other states around the country there is a civil cause of action for workers compensation retaliation. In Florida, it is Florida Statutes Section 440.205 while other states have their own statutes. These types of statutes were created to protect employees who have suffered on the job injuries. Under these statutes, you can’t be fired for making a workers compensation claim. While you can be fired for other legitimate reasons, the workers compensation claim can’t be a motivating factor in the decision to terminate your employment. In addition, under the Florida statute, an employee can’t be terminated for threatening to bring a workers compensation claim. An employee can also not be harassed as a result of a workers compensation claim. For instance, an employer may not refuse to abide by medical restrictions imposed by your doctor such as lifting restrictions. Under the Florida Statute, an employee who is terminated or harassed in violation of this statute may recover monetary damages against their employer including possible punitive damages.

So if you believe you have been terminated, harassed or retaliated against due to the filing of a workers compensation claim, you may want to consult with an attorney in your state to discuss your legal options.

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Many employees come to my office to consult with me about sexual harassment or discrimination based upon race, pregnancy, gender or age. On some occasions, the employee may still be employed by the employer. In those instances I always encourage them to file complaints or reports with human resources to allow the employer to use its internal procedures to address the problem. In the event that the employer does not address the issues, I will than encourage the employee to file a Charge of Discrimination with the EEOC.

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.

The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

An EEOC Charge can either be filed with the assistance and representation of counsel or by the employee on their own. If you do it on your own, the EEOC will give you the forms and guidance on how to prepare the Charge of Discrimination. Once a complaint is made to HR or the EEOC, the employer is not legally allowed to retaliate or discriminate against you for making these complaints. However, that does not always mean the employer will follow the rules so you should keep careful notes and documentation of all complaints made, to whom you made them, and any actions taken against you as a result of these complaints.

The EEOC has a link on its website that you can use to do an online assessment of whether or not you should bring a charge with the EEOC. The link is at https://egov.eeoc.gov/eas/.

It is important to know however that if you choose to file an EEOC Charge, you must do so within 180 days or 300 days of the claimed discrimination or harassment, so don’t wait too long to take this action. You get 300 days if your state has a an agency similar to the EEOC such as in Florida, there is the Florida Commission on Human Relations (“FCHR”). You can fill out a charge in person at one of the EEOC offices or do it by mail.

Once the EEOC Charge is filed, the Equal Employment Opportunity Commission, a federal agency, has a staff of investigators who investigate your complaints. The employer is supposed to receive a copy of your Charge within ten days. They allow the employer an opportunity to file a formal response and generally will then ask for a reply from the employee. Sometimes, they will seek to interview the employee in person or over the telephone to get more information for their investigation. Sometimes the investigators will seek documents from the employer. Sometimes the EEOC will offer the parties to mediate the claims prior to further investigations. Keep in mind that if you choose to file an EEOC charge on your own, without an attorney, you will not have the support and guidance of an attorney to help you through this process.

Once the EEOC completes its investigation, they will issue either a “cause determination” finding that they believed discrimination took place or will issues a “Notice of Suit Rights” which states that although they don’t believe discrimination took place, you can file a legal action against the employer if you choose to do so. If the EEOC issues a “cause” determination, they can choose to file a lawsuit on your behalf, but are not required to do so.

Upon receipt of your Notice from the EEOC, if you are going to file a lawsuit, you must do so quickly since any Federal claims under the ADA, Title VII, the Pregnancy Discrimination Act, etc must be filed within 90 days. In Florida and other states, there are also state statutes which provide you a longer time to file suit.

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First, off this post is limited to Florida law. While I generally try to provide legal information that is applicable in many states, I have no knowledge of unemployment laws in other states other than Florida. So if you have questions relating to unemployment benefits in another state, you should check with the applicable agency for your state or speak with an employment lawyer.

In Florida, in many circumstances where an employee gets fired, they are not sure whether to try to collect unemployment benefits. The answer is, YES, you should always make your claim for unemployment benefits. Go the the Florida Agency for Workforce Innovation site and you can apply online. You will be required to fill out basic information and will be advised of the decision on your unemployment some time later. You need to make sure, while you are claiming unemployment, that you are actively looking for alternative employment and keeping records of your search.

Even if you were fired, you are entitled to claim unemployment benefits under Florida law. The only time where you are not entitled to recover them is if you were fired for misconduct. In many instances the employer may try to fight your recovery of unemployment benefits by claiming that you were fired for “misconduct.” However, even if the State agrees with the employer, you should not just lay down and accept the decision. “Misconduct” under Florida law, to not be able to recover unemployment benefits is a very difficult burden to prove. You have to have been fired for really bad stuff to not be able to get your unemployment benefits. This means that just because you get fired for not doing a good job or not following an employer’s rules you still are probably entitled to recover benefits. In most cases, even if the employer has fired you for a justified reason, it does not mean they are able to deny you your unemployment benefits. Even if your employer denies your benefits, there are many levels of appeal you can take and can have a hearing to address these issues. You probably also want to speak to an attorney when/if your benefits are refused since there are deadlines you need to meet. Many attorneys, such as my office, take these matters on a flat fee basis.

The other question that is typically asked to me is whether if I quit my job I am entitled to receive unemployment benefits. The answer to that question is is it depends on whether you quit or not for “good cause.” Generally, under Florida law if an employee quits, they are not entitled to recover benefits. However, if the employee was forced to quit or the work conditions were intolerable, than the employee may still be able to recover benefits. Once again, if you apply for benefits are are refused you probably want to speak to an attorney who can research the issues applicable to your situation and give you advice and how to deal with it. There are many different levels of appeal that can be pursued with the State of Florida to preserve your benefits.

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