Posts Tagged ‘Florida’

Under Federal law, a woman can not be discriminated against or terminated based upon her being pregnant. Typically, there are also state laws, such as in Florida the Florida Civil Rights Act, that mirror the Federal laws. However, agricultural giant Olam International has not been following the law which has resulted in them being sued by the Equal Employment Opportunity Commission (EEOC).

A woman named Jennifer Heintz claims she was offered a job as an executive assistant to two presidents with Olam. She took the job, but three days later, she was told the company was holding off on filling the position. Four days after that, Olam hired another person to fill the position. Heitz contends that the job offer to her was withdrawn based upon her being pregnant. Apparently, the EEOC agreed since the EEOC, in most cases, does not bring suit on behalf of an empoyee.

A lawyer for the EEOC stated, about pregnancy discrimination:

“It remains a serious problem — women not getting jobs, women being forced out of jobs, essentially being fired, and in this case, hired and fired immediately after they learned of the pregnancy.”

And the problem seems to be getting worse. In the five years from 1997 to 2001, the EEOC received 20809 pregnancy discrimination complaints. In the last five years, they received 29088, a 40% increase.

The EEOC further stated, “There is an added stigma because you become pregnant, therefore in the future and after even you have your child, that you will not be a productive worker,” she said. “That’s simply not true.”

If you believe you have suffered termination or discrimination due to your pregnancy, or have been denied Family Medical Leave, feel free to contact Scott Behren and the Behren Law Firm for a free consultation.

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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.

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CHECK OUT THIS POWERPOINT WITH ALL OF THE BASIC AND NOT SO BASIC INFORMATION YOU NEED TO KNOW ABOUT THE FAMILY MEDICAL LEAVE ACT (FMLA).

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Under Florida law, the general rule is that an employee who quits their job is not entitled to receive unemployment benefits. However, there is an exception to this general rule where the employee left with good cause attributable to the employer.

Dennis Martinez was a full time car salesman for Ford Midway Mall. Martinez was originally hired on a commission basis, but some time into his employment, his position was changed to where he received a draw against his commissions. When business declined and he was earning no commissions, based upon the employer draw, he would owe the employer money each week. As of the date of his resignation, Martinez owed over $2,000 to his employer due to these draws. Martinez expressed his dissatisfaction with this arrangement to his employer and resigned.

The unemployment referee determined that Martinez voluntarily quit without good cause of the employer. He further decided that because Martinez agreed originally to this draw policy, that he could not contest it a year later.

The Third District Court of Appeal reversed the determination of unemployment. The Court held that the unemployment laws “provides that an individual is not disqualified for unemployment benefits where the individual has “voluntarily left work with good cause attributable” to the employer. § 443.101(1)(a), Fla. Stat. (2009). “Good cause” includes cause attributable to the employer, which “as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.”

The Court held that the auto dealer was in violation of the Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act because Martinez was not getting paid the minimum hourly wage for the hours he was working for his employer. The Court held that the draw agreement used by the employer was in violation of the FLSA and Florida Minimum Wage Act. Moreover, the Court held that merely allowing them to pay under the draw policy, for a period of time did not result in a waiver of his legal rights under the FLSA.

The Court held that due to the employer’s violations of the FLSA and Florida Minimum Wage Act, Martinez had left his employment due to good cause attributable to the employer. The Court reversed the decision of unemployment and awarded Martinez his benefits.

The Opinion of the Third District Court of Appeal is here.

If you have questions about your right to receive unemployment benefits, feel free to call Scott Behren and the Behren Law Firm to discuss your legal rights.

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So there has been quite a bit of publicity in the news about the repeal of “don’t ask, don’t tell”, but many may be surprised to know that there are still few protections in the workplace against sexual orientation discrimination.

Sexual orientation discrimination includes being treated differently or harassed because of your real or perceived sexual orientation — whether gay, lesbian, bisexual, or heterosexual.

Federal Law
Although federal laws, such as Title VII and the ADA protect people from workplace discrimination on the basis of race, national origin, religion, sex, age, and disability, there is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector. (Federal government workers are protected from such discrimination.) Attempts to pass federal legislation that would outlaw sexual orientation discrimination in private workplaces have been unsuccessful to date.
Read the rest of this entry »

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An Orlando woman has teamed up with high-powered attorney Gloria Allred to sue her former employer for gender discrimination and retaliation, after she said she was sexually harassed by managers who commented on her breasts.

Amy-Erin Blakely filed the lawsuit in an Orange County, Florida court on Wednesday and said the harassment at The Devereux Foundation went on for about five years. Blakely managed 900 employees at the nonprofit behavioral health organization that also provides foster and adoptive assistance. Blakely says she worked for the organization in Orlando until she was fired last year after she accused managers of sexual harassment.

“It was very humiliating to know that senior members of our management team would focus on my breasts as opposed to my performance on the job,” said Blakely at a Los Angeles press conference Wednesday.

“She also alleges that someone in management talked about how large her breasts were and that she needed to ‘hide them,’” Allred told the station.

Blakely said she always dressed professionally, was an exemplary worker and had never before been reprimanded. In fact, she said she was promoted and given raises eight times in 13 years. The 43-year-old had risen to the position of Assistant Executive Director, but claims she couldn’t advance any further because her managers said she was “too sensual.”

As many readers of my blog are well aware, sexual harassment in the workplace is prohibited by Florida and Federal law. In addition, if you complain to your employer about sexual harassment in your workplace and are retaliated against or fired, that is simillarly a violation of Federal and Florida law.

If you believe you have been the victim of sexual harassment or retaliation in the workplace, feel free to contact the Behren Law Firm or another attorney experienced in employment law matters.

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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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