Archive for May, 2011

As you all may know, the Americans with Disabilities Act prohibits employers from discriminating or terminating an employee based upon a disability or perceived disability. One question that came up in Florida Court is whether it is a violation of the ADA to require employees to participate in wellness programs or face an insurance premium surcharge.

In 2009, Broward County, Florida implemented a wellness program for its employees. The program required participants to take a health assessment test and produce a blood sample to determine glucose and cholesterol levels. Those who didn’t participate had a $20 surcharge on health plan premiums.

Broward County employee Bradley Seff filed a class-action complaint, alleging that the county’s wellness incentives violated the ADA. The U.S. District Court for the Southern District of Florida dismissed the lawsuit, saying, “The wellness program is not a subterfuge; it was not designed to evade the purpose of the ADA. Rather, it is a valid term of a benefits plan that falls within the ambit of the ADA’s safe harbor provision.”

The court noted that the two requirements of the safe harbor provision were met in this case:

(1) that the party in question be a bona fide benefit plan

(2) that the provision in question be based on underwriting, classifying, or administering risk and not be used as a subterfuge for discrimination.

The EEOC has suggested informally that a wellness program that is mandatory or involves a penalty may violate the ADA, although it has not issued any formal guidance.

If you believe you have been subjected to discrimination at the workplace based upon a disability, feel free to call Scott Behren and Behren Law firm for a free consultation.

Here is a copy of the decision of the Federal Court in Bradley Seff v. Broward County.


You may recall that I posted some months ago about a lawsuit filed against the State of Florida accusing it of violating the State constitution by refusing to raise the minimum wage on January 1 to reflect the increase in cost of living.

Well guess what? Florida’s minimum wage will increast to $7.31 an hour from the current $7.25 an hour as a result of a circuit court judge ruling this week.

Leon County Circuit Court Judge Terry Lewis ruled that the State of Florida violated Florida’s Constitution by failing to raise the Florida minimum wage on January 1 to reflect last year’s increase in the cost of living, as required by a constitutional amendment approved by Florida voters in 2004.

The state minimum wage will increase to $7.31 an hour effective June 1st. The new minimum wage for tipped workers will also rise by 6 cents, from $4.23 to $4.29 an hour.

In 2004, Floridians voted to amend the state’s Constitution to enact for the first time a state minimum wage. Under the voter-approved amendment, the state minimum wage increases every January to keep pace with any increase in the cost of living during the preceding year, and does not decrease in those rare instances where the cost of living dips.

In the lawsuit, the plaintiffs charged that the state had used an erroneous formula in calculating annual adjustments in the minimum wage, instead of using the method required by the Florida Constitution. The agency’s method resulted in a decrease to Florida’s 2010 minimum wage and would have artificially held down subsequent increases, including 2011’s, by factoring in a brief dip in the cost of living during 2009.

Judge Lewis ruled that under the Florida Constitution, the minimum wage can never be decreased and that, accordingly, the correct minimum wage this year is $7.31 – six cents more than the $7.25 federal minimum wage. Judge Lewis’ ruling also requires that the state calculate future annual increases to the minimum wage using the formula laid out in Florida’s Constitution.

Its a huge victory for Florida minimum wage employees. While it is not a big difference in hourly rate, I’m sure every little bit helps in this tough economy.

If you have questions about the minimum wage in Florida or your employee legal rights, feel free to call Scott Behren and the Behren Law Firm for a free consultation.