Florida Employment Lawyer Blog

Investigation: Hostile Working Environment at OshKosh B'gosh Retail Stores

Sat, 04 Sep 2010 09:20:10 -0500

Sarelson Law Firm is currently representing several employees at OshKosh B'gosh retail outlets who appear to have been subjected to a hostile working environment premised on racial and ethnic grounds. We would be interested in interviewing any witnesses who saw or heard inappropriate workplace conduct or commentary.

Stunning: $8.1 Million Dollar Jury Verdict Against Michael's Arts & Crafts

Thu, 02 Sep 2010 21:07:16 -0500

Huge. Stunning. Wow. Michael's Arts & Crafts just got hit with a $8.1 million verdict for illegally firing a female employee undergoing chemotherapy for breast cancer. The jury concluded that the company violated the Family & Medical Leave Act and the Americans with Disabilities Act. The verdict included $4M in pain and suffering and another $4M in punitive damages.

By any account this is huge victory for the plaintiff. The verdict form is here:

Jorud v Michaels Arts and Crafts Verdict

The Palm Beach Post covers the store here.

Sarelson Law Firm has represented individuals in similar cases for employees terminated or retaliated against because of a medical condition.

Breaking: Eleventh Circuit Greatly Expands the Number of Employers Required to Pay Overtime to Employees

Wed, 01 Sep 2010 13:49:57 -0500

In a large, closely-watched consolidated appeal of six cases all arising out of the Southern District of Florida, the Atlanta-based Eleventh Circuit Court of Appeals rejected what has become known as the "coming-to-rest" doctrine in Fair Labor Standards Act cases. Several judges have dismissed numerous cases on the grounds that the employer is not engaged in interstate commerce because the goods and materials used by the come had already "come-to-rest" in Florida, and thus there was no interstate commerce of the goods or materials.

This doctrine had been rejected by every other court of appeals and was at odds with the Department of Labor's own interpretation of the interstate nature of goods and materials for purposes of the FLSA. The Eleventh Circuit agreed with every other court and the DOL and rejected the "coming-to-rest" doctrine.

The end result is that more employers are responsible for paying their employees overtime and more employees are entitled to overtime. Many more local businesses - carpet installers, contractors, landscapers, local restaurants and cleaning companies - are now responsible for complying with a federal complicated and costly statute.

The case is here:

Polycarpe FLSA Opinion

Sarelson Law Firm has extensive experience representing employees and employers in these types of overtime lawsuits.

Disney World to Pay $433,000 in Unpaid Wages to Employees

Fri, 27 Aug 2010 13:15:26 -0500

The U.S. Department of Labor's Wage and Hour Division has recovered $433,819 in back wages owed to 69 employees of Walt Disney Parks and Resorts U.S. in Orlando, Fla. The company agreed to make the payments following an investigation that uncovered violations of the Fair Labor Standards Act.

A Wage and Hour Division investigator found that inventory control clerks in the park's Food and Beverage Department were not paid for work activities occurring before and after their normal shifts. In addition, they were not paid for working through their meal times and when working from home.

"While Walt Disney has specific rules regarding off-clock work, an investigation conducted by the Department of Labor's Wage and Hour Division found that managers within the company were not adhering to those important policies," said Wage and Hour Deputy Administrator Nancy Leppink. "It is not enough to have policies. Management must also ensure that all supervisors are implementing them."

The FLSA requires that covered employees be paid time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked over 40 per week. In general, "hours worked" includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal work activity of the workday. Additionally, the law requires that accurate records of employees' wages, hours and other conditions of employment be maintained. The current federal minimum wage for covered, nonexempt employees is $7.25 per hour.

Mortgage Originators, Processors and Loan Officers are Not Entitled to Overtime

Wed, 25 Aug 2010 05:16:52 -0500

Mortgage loan officers who collect, process and sell mortgages to prospective homeowners are not exempt from the overtime rules under the Fair Labor Standards Act. A recent opinion letter from the U.S. Department of Labor confirms that most mortgage officers are entitled to overtime pay. In light of the housing boom and bust of the past several years, it is very likely that a significant number of loan officers and mortgage brokers were improperly denied compensation. This is likely especially true in South Florida, which already leads the nation in violations of the FLSA and where thousands of people became "mortgage brokers" to capitalize on the housing boom.

The DOL announcement is here:

Mortgage Loan Officers Not Exempt From Overtime

Sarelson Law Firm has extensive experience representing employees in unpaid wage and overtime cases.

West Palm Beach Firefighter Denied Promotion Because he is Black

Tue, 24 Aug 2010 09:53:27 -0500

The Palm Beach County Office of Equal Opportunity ruled that a black firefighter for the City of West Palm Beach was denied a promotion due to his race. The OEO ruled that the firefighter was better qualified than several white firefighters who received promotions. The Sun-Sentinel has the full story here. The City intends to appeal.

Not Breaking News: Paralegals Are Entitled to Overtime Compensation

Tue, 24 Aug 2010 08:03:32 -0500

It is amazing how law firms are sometimes the most blatant violators of the law. One of the biggest employment related issues for law firms is the compensation for legal secretaries and paralegals. For whatever reason, many lawyers pay their paralegals a salary without additional overtime compensation. As a general rule, this is illegal.

Legal secretaries and paralegals are almost never "exempt" from the overtime provisions of the Fair Labor Standards Act. If you are paid hourly, you are never exempt as a matter of law. If you are paid on a "salary," you are probably being paid improperly and may due thousands of dollars in unpaid wages and overtime.

Time spent checking your blackberry or your work email outside the offce on nights and weekends is "work" that needs to be compensated and taking documents or files home also constitutes "work" that needs to be compensated.

For employers, the key to remember is that the owners of the law firm (meaning the lawyers) are personally liable. There is not corporate shield for violations of the FLSA.

Sarelson Law Firm has represented paralegals and secretaries in disputes with law firms, and we have represented law firms with respect to FLSA compliance. One pending lawsuit -- the Firm has no involvement in this action -- by a paralegal against a law firm is identified here.

What the Eleventh Circuit Giveth, the Eleventh Circuit Taketh

Wed, 18 Aug 2010 21:13:42 -0500

The blog takes great pride in being as neutral as possible on legal issues and court opinions - Sarelson Law Firm (unlike most employment law firms) represents both employees and employers in employment disputes and avoids ideological based representation. But the Eleventh Circuit issued an unpublished opinion yesterday that really bothers me. The case is Ash v. Tyson Foods, and the blog has previously discussed the case the last time the Eleventh Circuit issued an opinion in the case.

The case is a race discrimination case under 42 U.S.C. s. 1981. In the original trial, the jury returned a verdict in favor of the employee and awarded both compensatory and punitive damages. The trial judge granted the employer's motion for a directed verdict - i.e., the judge overruled the jury's decision and entered a verdict fo the employer. The employee, who won (at least according to the jury), successfully appealed to the Eleventh Circuit and the Eleventh Circuit correctly ruled that there was evidence to support the jury verdict, and thus the trial judge was wrong to overrule the jury.

Despite this initial ruling, the Eleventh Circuit also affirmed the trial judge to the extent there was insufficient evidence to support the award of punitive damages.

When the case was remanded to the trial judge, the case was retried on both liability and damages. (Frankly the blog is confused as to why there was even a retrial -- the jury's original verdict should have been reinstated and a trial on punitive damages, if warranted and wanted by the plaintiff, should have been approriate).

At the second trial, a different jury again found in favor of the plaintiff and again awarded substantial compensatory and punitive damages. The employer made the same motion to the judge to have the judge overrule the jury's verdict. This time the trial judge -- no doubt taking his cue from being reversed by the Eleventh Circuit the last time - denied the motion and entered judgment in favor of the plaintiff.

Plaintiff won two jury trials and the first ruling on liability was already affirmed by the Eleventh Circuit. Case closed, right? Nope.

This time the employer again appealed making the exact same argument to the appellate court that was rejected the first time - namely, the failure of any evidence to support the jury's finding in favor of the employee.

As luck would have it, this time the Eleventh Circuit agreed with the employer, and again reversed the trial judge but in the exact opposite direction. Poor trial judge. The first time he ruled for the employer and was reversed. The second time he ruled for the employee on the exact same legal issue and the court of appeals reversed him again this time in favor of the employer.

The decision, despite being fairly lengthly, detailed and controversial, was "unpublished" by the Eleventh Circuit. This means the court does not want its own opinion to be binding in future cases. The case was also issued "per curiam," which means no one judge wishes to have his or her name associated with preparing the opinion. A visiting trial judge sitting by designation wrote a simple but strong dissent that got it exactly right -- two different juries found in favor of the employee and awarded compensatory and punitive damages.

Call me old fashioned but I take the Seventh Amendment's right to a jury trial seriously. The blog hopes the case is reheard en banc and perhaps petitioned to the Supreme Court if necessary.

The case is here:

Ash v. Tyson Foods

After years of fighting, it appears this Tyson's chicken is fully roasted.

Federal Judge Approves $750 Hourly Rate for Prevailing Employee's Attorney

Mon, 16 Aug 2010 20:49:09 -0500

Normally plaintiffs' employment lawyers in Florida will be awarded $350 to $425 an hour (on the high-end) by federal judges after prevailing at trial. A federal judge in Texas awarded a plaintiff's attorney a whopping $750 per hour. The plaintiff turned down an offer of $40,000, and won a $3.6M jury verdict. Given those numbers -- $750/hour seems cheap. Full story is here.

Most "Internships" Are Really Illegal Unpaid Jobs -- Are you an unpaid summer intern?

Sun, 15 Aug 2010 10:43:58 -0500

The Fair Labor Standards Act requires a minimum wage to be paid to be all employees to provide services for employers. Many companies hire unpaid interns, especially during the summer, to provide what is essentially free work for the company. In many cases, this is illegal and the unpaid intern is actually entitled to compensation.

The employer must show that all of the following criteria are satisfied for the employer to treat the intern as an "intern" and not as an employee:

1. 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;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. 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;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If you or your child is an unpaid intern, Sarelson Law Firm is available for a consultation. Employers should not take advantage of students by calling work an internship.

Breastfeeding in Public Receives New but Limited Legal Protection

Sat, 14 Aug 2010 10:28:44 -0500

The Fair Labor Standards Act (which covers minimum wage and overtime rules) does not require workbreaks. Many employees mistakenly believe that they need to be given a 15 minute paid break for every eight hours worked - or some variation of that rule. This is a myth and is not required by federal law. (Some states, but not Florida, have greater workbreak protections).

But at least one break is now required. Breaks for breast feeding. The Department of Labor put out new regulations requiring reasonable unpaid break times for breast feeding mothers for up to one year and for non-exempt (hourly) employees who work at firms with at least 50 employees.

The fact sheet is here.

If you're an employer with a breastfeeding employee or a woman who is being harassed about breastfeeding or anything else having to do with your pregnancy, feel free to contact Sarelson Law Firm to learn your legal rights and obligations.

Former Miami News Anchor Wins Nearly $1M in Damages in Age Discrimination Case

Fri, 13 Aug 2010 21:28:32 -0500

A former news anchor for WSVN Channel 7 Miami (owned by Sunbeam Television) won a huge jury verdict earlier today. She was awarded nearly $750,000 in back pay, $97,000 in lost pension benefits, and $50,000 in punitive damages. The plaintiff is also entitled to attorneys' fees and costs, which will likely exceed several hundred thousand dollars. The case is Mitzell v. Sunbeam Television Corporation and was tried in the Miami-Dade County Circuit Court.

The defense was represented by Michael Casey, head of the Miami office of Epstein Becker & Green. Casey is a terrific employment lawyer so you can bet an appeal is being contemplated. (The plaintiff was apparently seeking $2M in back pay and $100,000 in punitives -- so the verdict was less than what she was seeking).

The Sun-Sentinel covers the story (but not the verdict) here. The plaintiff alleged that she was fired because the station wanted a younger anchor. A south Florida jury agreed.

Sarelson Law Firm was the lead counsel in the Eleventh Circuit's landmark age discrimination case Mora v. Jackson Memorial Foundation and has extensive experience representing older workers. (Ironically enough, Jackson Memorial was and is represented by Mr. Casey as well).

Jackson Lewis Liable for $1M in Legal Malpractice Case Stemming from Failed Defense of Employment Discrimination Lawsuit

Thu, 12 Aug 2010 07:37:44 -0500

National employment defense firm Jackson Lewis' motto is "All we do is work." Apparently that work doesn't include filing a timely notice of appeal from a jury verdict that, as a matter of law, had to be reversed.

In what Jackson Lewis described as a matter of first impression, the Massachusetts Supreme Judicial Court (i.e., what most states refer to as the supreme court) ruled that Jackson Lewis should have filed an appeal from a jury verdict in a case where the plaintiff was awarded over $1M in damages but where the trial judge got the law wrong. I.e., the trial court committed obvious error in allowing a lawsuit under the Massachusetts Maternity Leave Act to go to trial, and had the defendant filed a timely appeal, the supreme court would have obviously reversed the verdict in favor of the defendant.

The case is unique because normally a law firm can argue that it did not commit malpractice because there was no ground for an appeal or because the chances of prevailing on appeal were low. Here, the supreme court basically said the appeal would have certainly resulted in a reversal, and thus Jackson Lewis committed malpractice. Pretty harsh language.

The case will be remanded to the trial court for an evidentiary hearing on damages. The client/employer is Global NAPS Inc. They were represented by Jackson Lewis and Winokur Serkey & Rosenberg in the employment discrimination lawsuit. Both firms were found responsible for malpractice. The National Law Journal has the story here.

Sarelson Law Firm is available to serve as outside or consulting counsel in employment cases to ensure that the company is being properly represented by its trial counsel. We can review invoices and consult on your counsel's trial strategy to ensure that you are getting the best representation possible.

Baker Landscaping Corporation of Palm Beach County Faces Class Action Over Upaid Wages and Unpaid Overtime

Wed, 11 Aug 2010 10:27:03 -0500

A recently filed class action alleges that Baker Landscaping Corporation of Palm Beach County, Florida failed to properly compensate its employees. The Complaint is here:

Abrego v. Baker Landscaping Corporation

A Cool $12 Million Avoids Sexual Harassment Lawsuit for Hewlett-Packard

Tue, 10 Aug 2010 02:08:50 -0500

Sexual harassment lawsuits are difficult. Garden variety sexist comments and flirtations are not sufficient to justify a lawsuit. But apparently something happened over at Hewlett-Packard that resulted in the CEO receiving a $12M severance package that, according to published reports, is going to wind up going to the woman who complained that the CEO was sexually harassing her.

The short story is this: Demand letter is sent to HP's CEO accusing CEO of sexual harassment. CEO tells general counsel. General counsel announces CEO's resignation with hefty severance package. The full story is here. (Actually the "full story" will almost certainly never see the light of day).

Wow. Congrats to the plaintiff's attorney in Texas who handled that one.