Articles Posted in Employment Law

Every year, outdoor workers all over the country suffer illnesses or injuries related to working long days under the sun. From rashes and dizziness to heat exhaustion and heatstroke, working during the hotter months can be dangerous. Summer is already a few weeks away, and with the yearly rise in average summer temperatures, this year is expected to bring record-breaking heat.

As such, we’ve created this quick guide for those of you who’ll be working outdoors in the intense Summer heat this year so you can stay healthy and most importantly safe.


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Landing your dream job or finding an exciting employment opportunity can be a life-changing event. Before you sign your employment contract, however, it is important to understand how its terms may affect you if you decide to part ways with that company down the road. Even when we make our best efforts to review and understand an agreement, sometimes disputes arise down the road. You and your employer may have very different ideas about how the terms should be interpreted, creating delays and headaches.

One of the most common terms in an employment contract is a noncompete clause. This term prevents one party from entering into or starting a profession or business that would compete with the employer. The Florida Fifth District Court of Appeals recently upheld a lower court’s decision that a noncompete clause in an employment agreement was enforceable. In Nichols v. Moore, Stephens, Lovelace, P.A., the plaintiff challenged the enforcement of a noncompete clause included in her employment contract after the plaintiff and her employer ended the employment relationship.

In upholding the lower court’s order, the appellate court relied on a 2009 case from the Fifth District, Envtl. Servs., Inc. v. Carter. In that case, the plaintiff, an environmental consulting business, sought an injunction to prevent a number of its former employees from performing certain tasks for their current employers. The plaintiff alleged that the activities would violate certain provisions of the employment agreements that the individuals signed at the outset of their employment with the plaintiff’s company.

A Florida appellate court recently overturned a lower court’s grant of summary judgment in a negligence case involving an air show. In Slora v. Sun ‘N Fun Fly-In, Inc., the plaintiff suffered injuries after a tornado struck a security booth at the Lakeland Linder Regional Airport. During the tornado, the plaintiff was working as a security guard through a security staffing agency, which had agreed to supply security personnel for the airport during the company organizing the airshow. The Federal Aviation Administration (FAA) had jurisdiction over the airshow company’s activities. One of the FAA’s regulations, and a condition to the airshow, required the airshow company to file certificates of waiver with the FAA and to hire security and police personnel for the show.

The injured security guard filed a claim for workers’ compensation benefits, which was ultimately granted. Next, the injured worker filed a lawsuit against the airshow company in Florida circuit court, claiming that the tornado that caused her damages was foreseeable and that the airshow company was negligent in not securing the security guard station booth in a reasonably safe manner. The plaintiff also alleged that the airshow company was negligent in failing to warn her of the potential harms that she could suffer should severe weather occur on the day of the airshow.

In response to the plaintiff’s complaint, the airshow company moved for summary judgment, contending that the plaintiff’s claims were barred pursuant to the exclusivity provision of Florida’s workers’ compensation law. According to this law, an injured employee is barred from suing his or her employer in civil court for the work-related injuries he or she sustained, with a few limited exceptions. The security guard opposed the motion for summary judgment on the basis that the waivers that the airshow company filed with the FAA were neither employment contracts nor subcontracts pursuant to Florida Statute Section 440.10(1)(b). The lower court granted the motion for summary judgment, finding that the airshow company had a contractual relationship with the plaintiff.

Last month, the Department of Labor (DOL) issued a statement declaring that the majority of workers who are currently classified as independent contractors are better classified as employees. The DOL referred to this widespread misclassification as “one of the most serious problems” in offices and work settings across the United States. As a result, the DOL provided an “Administrator’s Interpretation,” which is intended to help employers address situations in which they are unsure of whether to classify a worker as an independent contractor or employee.

According to the document, “when employers improperly classify employees as independent contractors, the employees may not receive important workplace protections such as the minimum wage, overtime compensation, unemployment insurance, and workers’ compensation.” Additionally, misclassifying workers also can lead to lower tax revenues for federal government entities and make it more difficult for employees to compete with other workers given full employee status.

The document suggests that one of the main reasons that employers misclassify workers is out of a desire to cut costs and save on overhead. While some employers may misclassify the employees out of an honest misunderstanding or mistake, this first group of intentional misclassifications is one of the main targets of this document.

After Governor Rick Scott took office in 2011, he issued an order mandating pre-employment drug screening and randomized drug testing of nearly 85,000 Florida state employees. Recently, Governor Scott and the union that represents the state workers entered into a settlement agreement. According to the settlement, only some of the 85,000 workers will be subject to drug screening.

The state workers are represented by the American Federation of State, County, and Municipal Employees Council 79 (Council 79). Council 79 in turn hired the American Civil Liberties Union to spearhead the lawsuit on Council 79’s behalf. The ACLU filed a lawsuit challenging the Governor’s executive order on the basis that both prongs of the drug testing were unconstitutional. According to the lead ACLU lawyer for the case, “[t]he question of whether the state has the power to compel all employees to submit to suspicionless searches without good reason is settled and the answer is no.”

Initially, a Miami federal district court judge struck down the order, but the United States Court of Appeals for the 11th Circuit reversed the lower court’s ruling, finding that it was not inherently unconstitutional to require drug testing for those employees who work in sensitive capacities. The United States Supreme Court declined to hear an appeal in the case.

Federal laws protect injured workers whose medical conditions prohibit them from performing job duties. In a recent case, the plaintiff worked as a training manager in a chain of restaurants owned by the defendant. While employed, the plaintiff suffered a workplace accident in which his knee was injured. After seeking treatment with his physician, the plaintiff was restricted from certain duties at work. The plaintiff’s doctor also classified his knee injury as a “serious medical condition.” As a result of the injury, the plaintiff sought workers’ compensation benefits.

After the plaintiff informed his supervisor of his health condition, he was allegedly informed that he could return to work after taking leave to receive medical treatment. However, the plaintiff was terminated instead. According to the plaintiff, he was never notified that he could take leave pursuant to the Family Medical Leave Act (“FMLA”). The plaintiff subsequently brought a lawsuit against his employer, alleging interference with FMLA rights and retaliation.

After the employer sought to have the plaintiff’s claims dismissed in Armstrong v. Doherty Florida North Port, LLC, the federal court analyzed the facts of the case under the applicable laws. In accordance with the FMLA, an employee may take up to 12 workweeks of unpaid leave as a result of a serious medical condition that makes the performance of work duties impossible. Significantly, an employee may make a claim for interference or retaliation associated with his or her FMLA rights. In order to do so, an employee must show that that he or she has been denied an available right under the FMLA. In a retaliation case, the employee must show that he or she suffered an adverse employment action because he or she engaged in FMLA protected activity.

The harsh reality is that Florida employees often face unreasonable discrimination in the workplace. The Florida Civil Rights Act makes it illegal to discriminate on the basis of race, religion, sex, national origin, age, disability, or marital status. The Florida Supreme Court recently held that discrimination on the basis of pregnancy is also prohibited by the Florida Civil Rights Act.

In deciding the case of Peguy Delva v. The Continental Group, Inc., the Florida Supreme Court reviewed a ruling set forth by the Court of Appeals for the Third District. In the underlying case, Plaintiff brought suit against her employer, alleging that she experienced adverse employment actions because she was pregnant. Specifically, Plaintiff alleged that she was not allowed to change or work extra shifts, even though the employer’s policy allowed it. Moreover, according to Plaintiff, her work was exceedingly scrutinized and her employer refused to schedule her to work when she wished to return from maternity leave. Her suit was dismissed at the trial level for failure to state a claim. On appeal, the Third District Court of Appeal held that the Florida Civil Rights Act does not encompass pregnancy discrimination.

When reviewing the Delva case, the Florida Supreme Court noted that there existed a conflict between the Districts over the validity of a pregnancy discrimination claim brought under Florida laws. The Supreme Court looked at the provisions of the Florida Civil Rights Act and acknowledged that the law does not specifically prohibit discrimination on the basis of pregnancy. However, the Act does make it unlawful for an employer to discriminate on the basis of an individual’s sex. The Supreme Court then observed that pregnancy is a condition that is unique to women, and it is a primary trait of the female sex.

Florida and federal laws prohibit employer discrimination based upon an employee’s race. Additionally, should an employee engage in activity to oppose discrimination, it is unlawful to retaliate against that employee. While it is possible for an employer to successfully refute claims of discrimination and retaliation, a recent holding by a United States District Court for the Middle District of Florida allowed a plaintiff’s claims to continue.

In the case, the plaintiff, a state correctional officer in Florida, sued her former employer, alleging that the institution engaged in racial discrimination and retaliation based upon her complaints of discrimination. These allegations in Neal-Meyers v. Florida Department of Corrections stemmed from several incidents at work during the final year of the plaintiff’s employment at the correctional facility. The plaintiff described a workplace environment in which white employees were treated more favorably than African-Americans. The plaintiff cited a meeting in which she was reprimanded for work performance, while her supervisor made complaints about African-Americans using terms such as “you people” and “people like you.”

The plaintiff and other African-American correctional officers were later told that they could no longer gather together to converse. When the plaintiff voiced concerns that the employment actions were racially motivated, she was transferred to a different work location. Another African-American employee was terminated, allegedly because of her racial discrimination complaints.

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