Dionne v. Floormasters Enterprises, Inc. and the FLSA.

The 11th Circuit Court of Appeals, which controls Florida, Georgia, and Alabama, recently ruled that plaintiffs may not recover attorney fees, as they normally would be entitled to under the Fair Labor Standards Act (FLSA), in situations where the defendant-employer pays plaintiffs all the actual damages, liquidated damages, and interest owed to them outside of a negotiated settlement. In Dionne v. Floormasters Enterprises, Inc., the plaintiff filed a lawsuit alleging overtime violations by the defendant. The total amount of damages sought by the plaintiff, including liquidated damages as provided under the FLSA and interest, amounted to $3,000. After the plaintiffs filed the suit, the defendant tendered a payment to the plaintiff for the full amount they were seeking, “in the interests of expeditious resolution of Plaintiff’s claim and efficient use of this Court’s time and resources.” After tendering this payment, the defendant moved to dismiss the claim as moot, since even if the employer was found to be liable, the employer would not have to pay any additional amount to the plaintiff. The court granted the defendant’s motion, dismissing the case with prejudice. However, the employer did not compensate the plaintiff for attorney’s fees and costs, and the court’s dismissal of the case means that the employer’s liability for its illegal conduct was never established.
On appeal, the plaintiff argued that it was owed attorney’s fees, which go above and beyond the $3,000 that the defendant tendered. The FLSA provides attorney fees for the plaintiff, if the plaintiff proves that the employer violated the FLSA wage and overtime laws in his or her suit. Since the only reason that the defendant paid any amount to the plaintiff is that the plaintiff brought a lawsuit, the plaintiff felt he was entitled to the reasonable attorney’s fees that he incurred in bringing the suit and facilitating the payment.
The 11th Circuit Court of Appeals decided that this is a classic application of “catalyst” test, which states that “a plaintiff should be found as prevailing if its ends are accomplished as a result of the litigation even without formal judicial recognition, there is a causal connection between the plaintiff’s lawsuit and the defendant’s actions provided relief to the plaintiff, and the defendant’s actions were required by law.” However, the Court notes, the Supreme Court rejected the “catalyst” test in 2001 in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, which requires that plaintiffs demonstrate that such a payment alters the legal relationship between the party’s in order for the plaintiff to be considered the “prevailing party.”
Since the plaintiff is not considered the “prevailing party” as decided in a court of law, it reasons that the plaintiff is not entitled to attorney’s fees as provided by statute.
Even though the 11th Circuit here seems to break new ground, the facts of this case may limit its applicability going forward. For example, the Court distinguishes cases in which plaintiffs are awarded lawyer’s fees and costs following the court’s dismissal of the plaintiff’s claims, where the dismissals incorporate the terms of a settlement between the parties. It is very likely that where there is a settlement between the parties that has been incorporated into a court order, Dionne may not apply. This is supported by the Supreme Court in Buckhannon, which states that judicial imprimatur, or the court’s seal of approval, is a necessary part of establishing a prevailing party in a lawsuit.
Importantly, in this case, the defendant never admitted liability, paid the full amount of damages sought by plaintiffs (including unpaid wages, liquidated damages, and interest), and never entered into a settlement agreement, let alone a settlement agreement that was entered as a court order. For this holding to be applied against plaintiffs in the future, a defendant would have to provide the full amount of unpaid wages, liquidated damages, and interest sought by the plaintiff. While in this case that amount was only $3,000, in many cases that amount may be much higher, and many defendants may be unwilling to pay the entire amount of the damages that plaintiffs seek in lieu of a negotiated settlement.

Your Cheat Sheet to Understanding the ADA Amendment Act of 2008

The Americans with Disabilities Act was enacted to protect workers across the U.S. from discrimination against disability.  Congress has recently amended the definition of disability within the ADA by instating the Americans with Disabilities Act Amendment Act of 2008.  The March 25, 2011 ruling made significant changes to the ADA, making it easier for individuals to prove they are disabled under the ADAAA’s guidelines.
The changes appear minimal, but will have a sizable impact on the number of citizens classified as disabled. The Amendment is one of the most significant changes in the fight for equality among disabled citizens. It finally provides the disabled an opportunity for protection against unjust discrimination, and implements the necessary change for equality.
We have compiled the most important things you should know about the new ADA Amendment Act.  The ADAAA does the following things:

  1. Provides an interpretation of the word “disability” that is applicable to many impairments that were previously unprotected. The definition of disability remains the same, “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”  However, the ADAAA encourages that the terms in the definition should be interpreted broadly.
  2. Supplies guidelines for determining if the disability is “substantially limiting”. A substantially limiting disability is one that makes a person ”significantly restricted as to the condition, manner, or duration under which a major life activity can be performed, in comparison to the average person or to most people.”  The ADAAA also encourages this term to be interpreted broadly, but further develops the law to include guidelines for future court cases.
    1. Broad construction- The narrow interpretation of the words “impairment” and “substantially limiting” was changed to provide a broader spectrum of the definitions.
    2. Comparison to general population– The disability can be substantially limiting if the person cannot perform a major life activity in comparison to the general population.
    3. Primary issue is compliance, not substantial limitation– Court cases should focus on if the employer was in compliance with the law, rather than focusing on if the disability was, in fact, substantially limiting.
    4. Individualized assessment– all impairments that are alleged to be substantially limiting must be determined on an individual basis.
    5. No requirement for scientific analysis- when the performance of a major life activity by the disabled person is compared to the general population, no scientific, medical or statistical analysis is needed.
    6. No consideration of mitigating measures– when determining if a disability is substantially limiting, mitigating measures (other than ordinary eye glasses or contact lenses) may not be considered.
    7. Episodic impairments or conditions in remission– episodic impairments are still regarded as disabilities when in remission as long as the disability would limit a major life activity when active.
    8. One substantial limitation is sufficient– one determination of a limitation of a major life function is enough to classify an impairment as a protected disability.

 
If you feel that you have been discriminated against because of your disability, contact an attorney to discuss your options.

Censoring your Social Media Page for Employment

Companies are using social media websites as an information gateway in hiring and monitoring employee behavior.  Sites like Facebook and Twitter are influential in the hiring process for employers, and can also result in termination if they see information that is not “appropriate employee behavior.”  Employers monitor social networking sites for provocative or inappropriate photos, drinking and drug use, bad-mouthing coworkers and much more.  They even measure your communication and creativity skills from monitoring your social networking sites.
While we all use our social networking sites to display information regarding our private life for friends and family, employers fear that proprietary information will be revealed over the web and they will be negatively represented in the online world.  If you are looking for a job or currently employed, follow this list of Do’s and Don’ts to clean up your page and remain in the safety zone of social media.

  1. DO delete or hide anything on your profile that employers may view negatively.  Remove pictures of spring break, vulgar comments or posts, rude language, and any commentary you may have posted about previous employers.  Remember there is no sense of “free speech” that is regulated in social media.  We’ve all heard the recent stories of New York teachers being fired for their online commentary of unruly classrooms and scandalous private lives.  It can happen to anyone, so keep your private thoughts and comments about your job to yourself.
  2. DON’T use social networking sites to vent about your job.  While you may need to talk about an overpowering boss or an arrogant coworker, never do it online.  While you may think your page is private, a coworker that you forgot you “friended” could take the page directly to your employer.  What you say online is permanent and is valid evidence that can be used against you in court and certainly by your employer or prospective employer.
  3. DO promote yourself socially and professionally online.  Update your pages to show your creativity and work ethic.  Write about accomplishments that you have made inside and outside of work.  Include your interests and passions and your goals.
  4. DON’T post anything that could be incompatible with your work persona.  For example, if you claim a disability or injury that alters your job responsibilities, refrain from posting pictures of you partaking in physical exercise.  If you are claiming worker’s compensation, investigators will often look at your social media sites to ensure that they are consistent with your claims.  An employer cannot discriminate against you because of disabilities, but you can be terminated if they unveil inconsistencies within your social media pages.

The Dangers of Signing Severance Agreements at Termination

Although America’s economy is slowly recovering, Americans are still in fear of mass layoffs or company downsizing.  Some companies provide their employees the safety net of severance pay when they are laid off, but there are no U.S. laws that require companies to provide compensation as an unemployment benefit.  Most severance agreements must be signed by the employee and require that the employee give up their right to take any legal action against their employer for any wrongdoing that may have occurred during their employment.
If presented with a severance agreement, your employer should give you ample time to seek legal advice.  Given that most severance agreements will require you to waive  your legal rights,  you should always consult an attorney if you have doubts about giving up your rights.  These agreements can be complex or impose other legal restrictions on you such as Non-Competition clauses, so speaking to an attorney is advisable.
Although the Fair Labor Standards Act (FLSA) does not regulate severance pay, there are laws that can function as severance pay laws. The Worker Adjustment and Retraining Notification Act (WARN) requires certain employers to provide 60 days notice of layoffs, and stipulates that employees must be paid for the 60 days regardless if they were required to work or not.  The Employee Retirement Income Security Act of 1974 (ERISA) monitors companies that maintain severance pay policies and ensures that plans are executed fairly and honestly.
Discrimination laws may also stand-in as severance pay laws.  If the employee feels that he or she was denied severance pay on account of a discriminatory factor such as age, race, disability or gender, the employee may have grounds for an employment discrimination claim.
Written contracts that provide for  severance pay  may provide a legal basis for a claim if  severance pay is promised and then reneged upon.    Similarly,  if an employer historically offers severance pay to its terminated employees and denies you severance pay upon termination without good cause, you may have a breach of implied contract claim, even if severance pay is not provided for in a written contract.
It is always important to consult an attorney when proposed with a severance pay agreement.  Seeking legal advice can prevent you from losing your rights as an American worker.

Performance Reviews: How to Respond to Discrepancies

At least once every year, employers and employees at certain firms fine-tune their working skills in preparation for the employee review.  Raises and bonuses sometimes result from a positive employee review, but other times the reviews might lead to demotions or termination.  Sometimes, performance reviews may produce no end result other than providing the employee with feedback and areas for improvement.  When you receive a review you might not agree with, it is important to take the proper steps to solve what is considered to be the problem. Because many courtroom decisions rely on employee reviews to determine if termination is legal, employees should fully understand their review and discuss any discrepancies with their employer.
It is important to keep in mind that a good review doesn’t guarantee a raise or promotion, nor does a bad review always warrant termination.  The most important step is to understand your review fully in order to comprehend the level of performance your employer expects from you and how that may reflect in your performance review, and to document any discrepancies you may have.

  1. Always read your review carefully and objectively. A review aims to summarize areas that you are adept at, as well as point out areas for improvement.  It is important to remember that all workers are encouraged to progress and advance in the field, and the review is your employer’s form of communicating their expected improvements.
  2. Provide thorough and logical reasoning as to why you disagree, but understand this may not change the result of the review. It is important to show how valuable an employee you are by providing evidence that attests to your successes.  However, it is important to accept comments about areas where you may need improvement, because acknowledging this will prove to your employer that you are attempting to better your work ethic to support the team.
  3. Maintain a calm and constructive attitude. Reviews are intended to be used as constructive criticism.  Your attitude about advice implies a lot about your work ethic and dedication.  If you believe there are flaws within your review, you should request to speak with your employer in a professional manner, and document all attempts you make at approaching the topic.  If you feel you have been wrongly assessed because of discrimination, you should avoid contacting your employer and file a complaint directly to HR.
  4. Sign under protest, and document your complaint with HR. If you strongly disagree with a review or feel that your report was falsified with a discriminatory intent, sign your employee review “under protest”.  Declaring that you object to your performance review should bring the necessary attention to the situation in order to fix the problem.  Document your complaint in a formal letter to HR, and specify any discriminatory actions or instances that affect your work environment.  However, refusing to sign an acknowledgment in and of itself can be deemed insubordination and be considered grounds for termination, so do not refuse to sign it.  Rather, indicate that you are signing that you have seen it but do not agree with it, or are doing so “under protest.”

Job Applications: What are your rights and how to handle a discriminatory question.

Preparing for a new job and the application process is often nerve-wracking and stressful.  Do you ever wonder what the employer will ask you, or what qualifications you should emphasize,  to show that you are capable of performing the tasks of the job?  Preparing to answer questions such as “What can you do for our team?” or “What’s your greatest weakness?” is crucial.  But imagine your potential employer asking you “How old are you?” or, “Are you planning on having kids soon?” The interview process has changed quickly from innocent to illegal.  Before going to your next job interview, brush up on your rights as an applicant.
There are many things an employer cannot ask you on your application.  These are certain questions that violate your civil rights, such as:

  • Age/Date of birth. The Age Discrimination in Employment Act protects applicants from disclosing their age during the hiring process to prevent age discrimination.  If the applicant is less than 18 years of age, asking for the date of birth is permissible because of children’s labor laws.  After being hired, the company may ask for birth certificates or licenses to verify date of birth for pension purposes, but they may not ask for these before hiring you.
  • Race, Religion, National Origin. Title VII of the Civil Rights Act requires that covered employers consider people of all nationalities and color.  Each application should state that the company is an Equal Opportunity Employer, and at no point should you answer a question like “Where were you born”, “What is your ancestry”, or “What religious beliefs do you follow?”  There are I-9 forms that can be used to determine the status of citizenship of an applicant.  These questions do not belong on an application.
  • Physical traits, disabilities. Unless height and weight are directly related to job performance, these questions should not be on the application. The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions. The employer may ask if you are capable of fulfilling the requirements of the job, but they may not ask you if you have disabilities or health problems.

There are many other restrictions on the application and interview process, which should be explored by everyone looking for employment.  While most employers do not have discriminatory intentions and are attempting to find the right “fit for the job,” you may find yourself in a situation where you are asked a question that is unlawful.

What should you do when this problem arises?  First, consider the intent of the question and how it was phrased.  It is important that you understand the employer’s reason for asking the question and their method of assessment, rather than assuming they have discriminatory intentions.
There are many ways to creatively answer questions without disclosing unlawful information.  For example, if you are asked “How old are you?” the best answer is to refer the question back to the job you are applying for.  “I am of legal working age” is a fit answer.  If you are asked “What religion are you?” it is okay to answer with “My religious practices will not hinder my potential to successfully perform the tasks of this position.”  Keep in mind that your application becomes a permanent part of your file.  If you choose to be untruthful on your application, that only provides the employer a potentially valid reason to terminate you down the road.
There are times, however, that witty answers may not be enough for the prying interviewer.  If this is the case, you may follow these steps:

  1. Inform the employer that the question is illegal.  While most people wouldn’t dare correct an interviewer, it can be tactfully stated in a non-accusing way.
  2. Answer the question.  Now that you have informed them of the question being illegal, the employer would be in violation of your civil rights if the information is used against you.
  3. If you are offended, you can file a claim with the Equal Employment Opportunity Office.

Be aware that taking this stance for your civil rights is courageous and may cost you the opportunity for employment.  However, if an employer is left in the dark ages and has no qualms about violating your rights, it might be best to seek employment elsewhere.