Employment Practice Defense

The Firm maintains an employment defense practice. These claims include discrimination in hiring, promotion, compensation and the termination of employees. These claims concern allegations of discrimination based on age, race, national origin, religious, political affiliation and disability discrimination. We also defend claims brought on the basis of sexual, racial, religious and national origin harassment and claims of unlawful retaliation. The Firm defends these cases both in State and Federal Court.

In addition to defending employment claims in litigation, the Firm provides risk management advice to clients on employment related issues and advises clients concurrently with occurring issues. The Firm also drafts employee handbooks and policies and procedures for use by employers.

Some of the claims we have handled include the following:

Employment Discrimination
Affirmative Action
Sexual Harassment
Age Discrimination
Americans With Disabilities Act
Family Medical Leave Act
Worker Adjustment and Retraining Notification Act
Occupational Safety and Health Act
Whistleblower Litigation
Wrongful Discharge
Employment Contracts

Employment Discrimination

Employment Discrimination laws seek to prevent discrimination based on race, sex, religion, national origin, physical disability, and age by employers. There is also a growing body of law preventing or occasionally justifying employment discrimination based on sexual orientation. Discriminatory practices include bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment. The main body of employment discrimination laws is composed of federal and state statutes. The United States Constitution and some state constitutions provide additional protection where the employer is a governmental body or the government has taken significant steps to foster the discriminatory practice of the employer.

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Affirmative Action

An Affirmative Action Plan sets standards for the recruiting, hiring and promotion of women and minorities in order to eliminate the present effects of past employment discrimination. Private employers may voluntarily institute affirmative action policies to remedy the makeup of its workforce in a particular job classification. Federal Government contractors are, for the most part, required to maintain an Affirmative Action Plan as a condition of the contract.

The hallmarks of a proper Affirmative Action Plan include:

• Is created to eliminate racial or sex-based imbalances in the workforce
  
• Does not unnecessarily impinge on the interests of non-minority employees
  
• Has flexible goals rather than strict quotas, and takes into consideration normal workforce turnover, layoffs, new jobs and retirements
  

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Sexual Harassment

Sexual harassment is any kind of sexual behavior that is unwelcome and/or inappropriate for the work place. Some examples of sexual harassment include:

• Verbal harassment: derogatory comments or dirty jokes under the right circumstances
• Visual harassment: derogatory or embarrassing posters, cartoons, drawings, etc.
• Physical harassment
• Sexual favors: sexual advances, confrontation with sexual demands
  

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Age Discrimination

The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age. An employee is protected from discrimination based on age if he or she is over 40. The ADEA also contains explicit guidelines for benefit, pension and retirement plans.

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Americans With Disabilities Act

The Americans with Disabilities Act (ADA) was enacted to eliminate discrimination against those with handicaps. It prohibits discrimination based on a physical or mental handicap by employers engaged in interstate commerce and state governments. The type of discrimination prohibited is broader than that explicitly outlined by Title VII. Consequently, much of what defines a violation of the ADA is now contained in state and federal case law, which frequently changes and is open to varied interpretation. For an employer, it is often difficult or impossible to determine what may or may not violate the ADA.

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The Family Medical Leave Act

The Family Medical Leave Act allows certain employees to take time off from work to tend to family matters. It is important for employers to understand its many details. For example, the Family Medical Leave Act:

• Covers only certain employers
• Affects only those employees eligible for the protections of the law
• Involves entitlement to leave
• Maintains health benefits during leave
• Restores an employee's job after leave
• Sets requirements for notice and certification of the need for leave
• Protects employees who request or take leave
• Includes certain employer record keeping requirements

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Worker Adjustment and Retraining Notification Act

The Worker Adjustment and Retraining Notification Act (WARN) generally covers employers with 100 or more employees, not counting those who have worked less than six months in the last 12 months and those who work an average of less than 20 hours a week. Regular federal, state and local government entities that provide public services are not covered. Employees entitled to notice under WARN include managers and supervisors as well as hourly and salaried workers. Workers, or their representatives, and units of local government may bring individual or class action suits. U.S. district courts enforce WARN requirements.

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Occupational Safety and Health Act

The Occupational Safety and Health Act (OSHA) inspections occur in several ways. In each case, the inspector is limited to inspecting the part of an employer's operation that gave rise to the inspection. For example, if an employee complaint or an accident in your loading area led to the inspection, the inspector is not supposed to delve into other areas of operation. With that said, OSHA can cite an employer for violations in other areas if an inspector happens to observe them or learn of them during an inspection of a particular area. Many inspectors, if allowed, will gradually expand the inspection to encompass other areas of a business. Containment of the inspection to one particular area or operation and shielding others from view is one of a variety of protective devices an attorney can set in place.

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Whistleblower Litigation

A whistleblower is an employee who reports to a government agency the fact that he has reasonable cause to believe that there is a violation of state or federal law occurring in his workplace. The "whistleblower" statutes prohibit employers from firing a worker who is a whistleblower and also prohibit employers from firing employees who participate in government investigations and hearings relating to violations of law at the workplace.

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Wrongful Discharge

In Florida, most employees are regarded as employees "at will." This means that the employee works at the will of the employer and the employer can fire the worker for any reason at any time. The “at will” rule allows an employer to terminate employees for almost any reason. The exceptions to this rule are: 1) When an employer discharges and employee in violation of federal laws because of age, race, sex, religion, national origin, or physical disability; and 2) when the employee has a contract of employment, giving the employee a proprietary or legal interest.

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Employment Contracts

When a contract provides for a definite term of employment, the contract is no longer terminable at-will and the employee can only be discharged for "good cause." Thus, express written assurances of continued employment lead to difficulties if the employer attempts to discharge the employee for other than good cause during the term of the agreement. Often, this issue arises because the employer was haphazard in creating an employment for a definite term and simply did not realize that it was entering into an enforceable employment agreement terminable only upon good cause.

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