Archive for September, 2010

I have blogged many times about sexual harassment in the workplace. These laws are applicable whether you are being harassed by a member of the same sex or the opposite sex. Just ask famed tiger
tamers, Siegfried & Roy.

Siegfried and Roy, the tiger-wrangling sensation, definitely tops the wish list of most travelers to Las Vegas! Now the reputation of the most iconic duo, in the entertainment industry, has been threatened after shocking accusations of sexual harassment have been filed against them.

Siegfried and Roy are being sued by their former assistant, Oliver Preiss. Oliver submitted a complaint to the court; which stated that he was fired after years of rejecting sexual advances coming from Roy Horn. The complaint was filed in Nevada’s Clark County Court, on September 17th.

ABC News quoted the lawsuit as saying, “Roy Horn and his stage partner, Siegfried Fischbacher, made repeated “requests for sex.” Roy Horn “made sexual advances towards all male assistants.” Ray also “forced his assistants to join him in watching pornographic videos at night.” Roy “groped” Oliver Preiss, “inside and outside of Priess’ clothing.”

If you have been the victime of sexual harassment in the workplace, either by a member of the same sex or opposite sex, speak to your Human Resources and if not addressed, file a complaint with the EEOC or go to an employment law attorney to discuss your legal rights.

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While this posting is a little off topic in that it does not apply to the workplace, it does apply to discrimination against homosexuals and it is a legal decision of some real significance in the State of Florida.

The opinion of the trial court and the appellate court in Florida draws into question the legality of Florida statute Section 63.042, which provides, “No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual.” § 63.042(3), Fla. Stat. (2006). Curiously however, under Florida law, homosexuals can serve as foster parents.

The Florida adoption statute calls for an individual, case-by-case evaluation to determine if the proposed adoption is in the best interest of the child. This includes things such as home studies and many other factors. Except for homosexual persons, there is no automatic, categorical exclusion of anyone from consideration for adoption.

The trial court determined that there was no rational basis for this statute and the appellate court upheld that determination. The Third District Court of Appeal stated “Under Florida law, homosexual persons are allowed to serve as foster parents or guardians but are barred from being considered for adoptive parents. All other persons are eligible to be considered case-by-case to be adoptive parents, but not homosexual persons—even where, as here, the adoptive parent is a fit parent and the adoption is in the best interest of the children.
The Department has argued that evidence produced by its experts and F.G.’s experts supports a distinction wherein homosexual persons may serve as foster parents or guardians, but not adoptive parents. Respectfully, the portions of the record cited by the Department do not support the Department’s position. We conclude that there is no rational basis for the statute.”

The case is called Florida Department of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G., and is located at http://www.3dca.flcourts.org/Opinions/3D08-3044.pdf.

Presumably the State of Florida will appeal this decision to the Florida Supreme Court, so we will await to see the results.

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Under unemployment laws, its is pretty clear that as a general rule if you quit your job, you can’t receive unemployment benefits. So what happens if you quit your job for a better paying job and than, thereafter, are terminated or laid off due to no fault of your own?

Well the Florida First District Court of Appeals recently addressed this issue in the case of Rachel Lakey v. Cracker Barrel and Florida Unemployment Appeals Commission. In this case. Lakey worked for Cracker Barrel for about a month during the end of 2008. She then left to go work for the Peabody Hotel for a better paying job. Sometime thereafter, Lakey was laid off from the Peabody. Presumably the ducks did not like her. Its not clear from the opinion how long she worked for the Peabody. She then applied for unemployment and was told by the State of Florida that she could not receive unemployment since she quit her job with Cracker Barrel. This decisioin was then affirmed by the Florida Unemployment Appeals Commission. So Lakey sought further appeal with the First District Court of Appeal pro se (without a lawyer). The Appeals Court reversed the decision of the State of Florida stating that “…nothing in the statute provides that leaving one job in order to take a better paying job disqualifies an employee later terminated without good cause from receiving unemployment compensation benefits.”

So Ms. Lakey gets her unemployment benefits. While in this case, Ms. Lakey was able to recover her benefits representing herself, I would not advise it. There are many different levels of appeal to contest a decision made about unemployment by the State. There are also many different deadlines and if you miss one, you will find yourself with no available remedy. So if you find yourself being denied your unemployment benefits, it would probably be a good idea to speak with an employment law attorney to help you out with your issues and discuss a course of action.

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So on many occasions on this blog I have posted about under what circumstances a non-compete is valid under Florida non-compete law. So of interest to my reading public is a new case that just came out from a Florida Appeals Court holding that a non-compete agreement against one of an employer’s former tattoo artists was enforceable.

In this case, Morgan worked for Atomic Tattoos for about two years. At the time he was employed he signed a non-compete that said if he left the employ of Atomic that he could not compete against Atomic for 1 year within a 15 mile radius. Atomic argued to the Court that it trained Morgan how to be a tatoo artist and gave him access to its customer lists which they had compiled over years. When Morgan was terminated in 2009, he went 6 miles away and took Atomic’s customer lists and started to solicit and send e-mails to Atomic’s customers.

When the suit was filed, Atomic sought to enjoin Morgan from working within that 15 mile radius as set forth in their non-compete agreement. The trial court denied the injunction. On appeal, the appellate court ruled that the trial court should have granted the injunction and enforced the non-compete against Morgan.

I think this case does not really change my opinion about instances in Florida (that I have set forth in prior posts) where non-competes are not enforceable. In this case, the appeals court seemed to put emphasis on the training provided to Morgan and their customer lists which Morgan admitted to taking with him when he left. In addition, I think the court was more likely to enforce the non-compete given the very reasonable scope of the non-compete. They were only trying to keep him from working within 15 miles of their business. Morgan could have easily gone to work 16 miles away and not been bound by the terms of the non-compete. This was not the type of non-compete where the employer tried to keep the former employee from working in an entire state or county, just a relatively small geographic radius.

In light of this ruling, Morgan will probably have to pay damages and attorneys’ fees to his former employer’s attorneys, something he could have avoided had he not been so bold in his violation of his non-compete agreement.

So if you are fired or quit and are not sure about how to deal with your non-compete agreement, make sure you go to an employment lawyer to have it reviewed and give you some advice. I ahve attached a copy of the court decision to this post.

2D10-831

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Employees walk by them almost everyday and seemingly pay no attention, but they should. They spell out their rights and obligations under national and state employment laws. What are they?

State and federal laws impose numerous requirements and prohibitions on American businesses, but one of the most overlooked obligations for employers is the responsibility to conspicuously post various government labor law notices in the workplace. The purpose of these labor law posters is to inform employees of their rights under applicable laws and provide information on how to report discrimination, wage and hour violations and other rights infringements to the government.

While many employers do not readily embrace the idea of conspicuously posting information that tells their employees how to bring legal action against them, the obligation to display these notices is explicit in various labor laws and government regulations. The federal Fair Labor Standards Act (FLSA), for example, includes a provision requiring all covered employers to display the federal minimum wage poster in an area frequented by employees. OSHA (Occupational Safety and Health Administration) regulations specifically require employers to post a federal safety and health poster or a state equivalent. Failure to comply with government labor law posting requirements could lead to citations and fines during an inspection. Fines vary by poster and by enforcing agency, ranging from as low as $110 up to a potential maximum of $10,000. In total, businesses that don’t post these required notices or post outdated information could face combined fines up to $17,000 per location.

Posting the required information in a back room that employees never enter is not enough to ensure compliance. Government regulations specifically require that the information be displayed in an area frequented by employees during the normal course of the workday. For many companies, that means posting the mandatory notices next to employee time clocks or in lunch areas.

Additionally, some posters must also be displayed in lobbies or applicant areas, as they describe laws that protect job applicants from unlawful discrimination or harassment. One example is the federal “Equal Employment Opportunity Is the Law” Notice, published by the EEOC (Equal Employment Opportunity Commission).

If your employer does not post posters at your workplace relating to your rights under EEOC laws, OSHA and the Fair Labor Standards Act, then you need to either let them know or report the violation to the EEOC or U.S. Department of Labor. If they continue to fail to comply, enlist the assistance of an employment lawyer.

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An interesting discrimination issue has arisen lately in the context of nursing homes. It has become a battle between residents and nursing home caregivers in many states including Indiana where the newest case arose. Apparently, in many instances, elderly nursing home residents are demanding that their caregivers only be of certain races.

A federal appeals court in Indiana has ruled that a nursing home cannot honor patients’ requests for caregivers based on race. The case — which pitted nursing home residents’ rights against discrimination law — establishes that there may be a limit to a nursing home resident’s right to choose a health care provider.

Brenda Chaney, who is black, worked at Plainfield Healthcare Center in Indiana as a certified nursing assistant. The nursing home housed a resident who said she did not want to be assisted by black nursing assistants. In response, the nursing home’s daily assignment sheet instructed the assistants that the resident preferred “no black” aides, and the nursing home banned Chaney from assisting her. The nursing home claimed it was following state law, which provides that nursing home residents have a right to “choose a personal attending physician and other providers of services.”

Chaney went along with the policy for awhile, but after she was fired she sued the nursing home for employment discrimination, arguing that its practice of honoring the racial biases of its residents was illegal and created a hostile work environment. The lower court ruled in favor of the nursing home, finding that its policy was reasonable based on its belief that ignoring the resident’s preferences would have violated state law.

The U.S. Court of Appeals for the 7th Circuit reversed the lower court’s decision, and ruled that the nursing home’s policy of allowing patients to dictate care providers based on race violated federal employment discrimination law. According to the court, “Plainfield acted to foster and engender a racially-charged environment through its assignment sheet that unambiguously, and daily, reminded Chaney and her co-workers that certain residents preferred no black CNAs.”

According to some elder rights organizations, this issue has been coming up regularly in almost every state in the United States. The federal appeallate court has now sent the message that discrimination laws trump the rights of elderly nursing home residents.

What do you think of this issue, should nursing home residents be allowed to pick the race of their caregiver? You don’t get to select at hospitals or restaurants or movie theaters so why should you be able to at a nursing home?

If you believe you have been the subject of race discrimination, contact an employment or discrimination law attorney.

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