Law and Arbitration Offices of Donald T Ryce

The Importance of Being Ernest (About Being Neutral)

In St. Johns County School Dist. v. O'Brien,--- So.2d ----, 2007 WL 4545876 (Fla.App. 5 Dist.), the School District appealed the Order of the Florida Commission on Human Relations (“FCHR”) affirming the Administrative Law Judge's finding that the District discriminated against an applicant for employment on the basis of a perceived disability of alcoholism.  The employee had filled out a computerized employment application on which he failed to disclose two prior DUIs. The School District had a neutral policy to automatically disqualify an individual whose computer application and criminal background check did not match.  When the employee was tentatively selected for employment, a background check was conducted which uncovered his DUI convictions, thus automatically disqualifying him. In so informing the supervisor who originally chose the employee for hire, the District’s HR department did not disclose the nature of the convictions, but simply stated that there was a discrepancy between the application and the criminal background check.  While the court discusses other issues in the case, such as the District’s policy requiring any applicant with two or more DUIs, regardless of whether their application was accurate, to provide proof of treatment to requalify as an applicant.  The controlling factor in the court’s decision to overturn the FCHR judgment was that the only pertinent causal connection in the case was between the School Board’s neutral policy of disqualification and the decision to treat him as unqualified and revoke his application.  This case demonstrates the importance of an employer’s having neutral policies in place regarding deficiencies in employment applications and in enforcing them in a nondiscriminatory matter  - a powerful defense to any lawsuit by a disgruntled applicant.

Heads the Employee Wins, Tails the Employer Loses

Two recent Eleventh Circuit Fair Labor Standards Act cases appear at first glance to take a conflicting approach on the relationship between a jury’s finding on “willfulness” and the judge’s finding on an employer’s “good faith.”  In FLSA lawsuits, if liability is proved, to recover for three years rather than two there must be a showing that the employer’s actions were “willful,” i.e.,the employer knew or acted with reckless disregard as to whether it was violating the FLSA.  On the other hand, to avoid an award of liquidated damages (double damages), an employer must demonstrate that it acted in good faith even though it violated the Act.  In jury trials, the jury decides the “willful” issue and the judge decides the “good faith” issue.

In Perez v. Sanford-Orlando Kennel Club, Inc., --- F.3d ----, 2008 WL 220070, C.A.11 (Fla.), January 29, 2008 (NO. 06-15931) after a jury found that the employer’s actions were willful, the judge nevertheless ruled that it acted in good faith and should not have to pay liquidated damages.  The Perez court held that the two findings were irreconcilable, and that the jury conclusion that the employer’s violation was willful precluded the trial judge from finding that the employer acted in good faith.  However, in Rodriguez v. Farm Stores Grocery, Inc., --- F.3d ----, 2008 WL 215817, C.A.11 (Fla.), January 28, 2008 (NO. 06-13303, 06-13186) even though the jury found that the employer’s violation was not willful, the court affirmed the conclusion of the trial judge that the employer did not prevail on its good faith defense.

Although these two rulings initially seem inconsistent, the explanation is simple:  burden of proof.  The plaintiff has the burden of proving willfulness, but the defendant has the burden of proving good faith.  As the Rodriguez court pointed out, in cases where the evidence on these issues is close, it is quite conceivable for a rational person to conclude that neither party satisfied their burden of proof.

"Adverse" Means Adverse, Plain and Simple

Until 2006, many courts, including the Eleventh Circuit, took a rather restrictive view of the "adverse employment action" required to prove a retaliation case under Title VII.  The term was thought by these courts to be limited to material adverse changes in terms and conditions of employment.  However, in Burlington  Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the Court held that any action, whether or not directly related to work, may form the basis of a retaliation claim if a reasonable employee would consider the action to be materially adverse.

A recent Florida case demonstrates the inpact of this broadened interpretation of "adverse employment action."  Broward County has an informal investigatory and mediation procedure that can be used by an agrieved employee who believes he or she has been discriminated against.  However, the County's policy was to terminate its internal process if the employee filed a complaint with the EEOC or the Florida Commission on Human Relations.  The court held that the County's policy of suspending access to its internal procedure if an administrative charge is filed is an adverse employment action and thus illegal relatiation, even though it was unlikely that the actual purpose or intent  of the rule was retaliatory.  Donovan v. Broward County Board of Commissioners, 2008 WL 183397 (Fla. 4th DCA).

 It is clear that this ruling would apply to both private and public sector employers who have an internal grievance procedure which will be limited or terminated if an employee files an EEOC or FCHR charge.  Also, employers should be wary of any policy that adversely affects employees who file such charges, even if the policy does not impact employees' wages or working conditions.

Adverse Employment Action Includes Disseminating False Information To Prospective Employers

Burlington has significantly broadened the scope of "adverse employment action."  One circuit court has held that the term can include "the dissemination of false reference information that a prospective employer would view as material to its hiring decision ." Szymanski v. County of Cook, 468 F.3d 1027, 1029 (7th Cir.2006). However, the emloyee must prove that the information was actually transmitted, id., and that it was false. Matthews v. Wisconsin Energy Corp. Inc., 2008 WL 2639152, 9 (7th Cir. 2008).

No "Safe Harbor" For Employers To Remedy Adverse Discriminatory or Retaliatory Action

The Eleventh Circuit has ruled that a retroactive pay increase and promotion would not cure an allegedly illegal failure to promote or to grant wage increases.  The court observed that "[t]o conclude otherwise would permit employers to escape Title VII liability by correcting their discriminatory and retaliatory acts after the fact."  Crawford v. Carroll, --- F.3d ----, 2008 WL 2246677 (11th Cir. 2008). The court did not discuss the issue of whether, as a matter of public policy, employers should be encouraged to engage in self-correction. Nor did it indicate precisely what effect such a correction would have on damages and attorney's fees.

Technical Corrections Act of 2008 Modifies Motor Carrier Exemption From Overtime

Congress "accidently" removed the FLSA motor carrier exemption for smaller vehicles in 2005. On June 6, 2008, the President signed into law a statute which, among other things, was supposed to clarify the current status of that exemption. But there is controversy over the scope of the relief Congrss gave employers. Some would say Congress's "clarification" is as clear as mud. See the Article in this website discussing this issue.

Telling Employees To Leave If They Didn't Like A Payroll Practice Can Be Illegal

In Alton H. Piester, LLC and Darrell Chapman, 353 NLRB No. 033,  Case 11–CA–21531 (2008), the NLRB held that an employer's response to truckers' complaints about a change in fuel surcharge policy, that they could "clean out their trucks" and leave, was an implied threat against comments which were protected, concerted activity.  This case is a reminder that the National Labor Relations Act grants legal protection even to non-union workers with respect to certain concerted conduct or speech relating to wages, hours, or working conditions.