EMPLOYMENT CLAIMS

Employment claims can have extremely detrimental effects on a business. It is necessary to become educated and train your management teams on the correct ways to handle your exposure.

In defending against an employment claim, the following areas will be highly scrutinized:

1. Employment Agreements

2. Payment and Overtime practices

3. Comparable Wages amongst protected classes

4. Employee Handbooks and Policies; and

5. Fair Enforcement of Company Policy.

It is imperative that you reach out to an experienced professional who can help you throughout your case.

DISCRIMINATION CLAIMS

One of the most commonly asserted employment claims is an allegation of discrimination in the workplace. Workplace discrimination based on race, color, religion, sex, age, pregnancy, disability, marital status, and national origin is prohibited by both federal and state law and while some employers do use discriminatory practices and should be held responsible, many more are wrongfully accused by disgruntled employees who were recently fired or denied a promotion. For this reason, it is important for all employers to be ready for an employment claim by ensuring that all company policies and practices are in line with federal and state regulation.

A discrimination claim can be filed either with the Florida Commission on Human Relations (FCHR) or the Equal Employment Opportunity Commission (EEOC). Many employees choose to file with the FCHR because Florida’s anti-discrimination statute covers employers who hire fewer than 15 employees and so are not covered by federal law. Employees are required to file their claims with the appropriate agencies before they are permitted to take a case to court. A failure to file within the 300 day time limit or a failure to comply with other procedural requirements can lead to the case being dismissed.

Employers may be required to defend themselves against an unfair lawsuit by demonstrating that they never treated any employee differently due to race, pregnancy, disability etc. This will most likely require that an employer provide certain evidence, including:

• Employee records demonstrating that poor work performance, misconduct, lateness, or another legitimate cause was the reason for an employee’s termination;
• Printed company handbooks that describe procedures for complaints, discipline, and termination;
• Proof that employees were familiar with the complaint process and that supervisors were trained in how to receive and investigate complaints;
• Proof that the employee was let go or not hired because he or she was not qualified for the job; and
• Evidence that an employee failed to notify the employer of the discriminatory actions as a result of which, he or she was not given a reasonable time to remedy the situation.

While these defenses may persuade a court that no discrimination took place, the best way to defend against these types of claims is to take preventive measures before a claim is ever filed. This includes creating a clear policy regarding employee discrimination in the workplace and formulating a well-ordered process for making complaints.

WAGE AND HOUR CLAIMS

The Fair Labor Standards Act (FLSA) establishes the minimum wage, child labor standards, and overtime pay in both the private sector and the federal, state, and local governments. Alleged violations of its provisions can be reported to the Department of Labor and prosecuted in court. Some of the most common alleged violations relate to an employee’s claim that an employer is:

• Paying less than Florida’s minimum wage of $8.05 per hour;
• Refusing to allow employees to have meal and break periods;
• Limiting sick pay and vacation time;
• Requiring employees to work overtime without pay;
• Refusing to pay an employee his or her final paycheck after termination;
• Violating record keeping requirements; or
• Hiring underage workers.

To demonstrate that these claims are unfounded, an employer may have to provide evidence of paying overtime workers one and one-half times the regular rate. Furthermore, the FLSA does not require that employees be paid overtime wages because they are working on a weekend or holiday, unless they are actually working additional hours past their regular shift. Employers can also provide proof that they prominently display an official poster outlining FLSA requirements. Time and pay records can also exonerate an employer accused of violating wage and hour laws.

SEXUAL HARASSMENT

Another commonly raised employment-related claim is an allegation of sexual harassment, which is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

• Submission to such conduct is made a term or condition of the victim’s employment;
• Submission to or rejection of such conduct is used as a basis for an employment decision affecting the victim; or
• Such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creates an intimidating or hostile working environment.

Like discrimination claims, employees are required to file complaints with the EEOC and the FCHR within 300 days from the date of the illegal act. Often, claims relate to one of the following activities:

• Sharing sexually inappropriate images in the workplace;
• Sending suggestive emails;
• Telling lewd jokes or making inappropriate sexual gestures;
• Staring in a suggestive manner;
• Making sexual comments about a person’s appearance;
• Inappropriate touching;
• Asking personal questions about someone’s sexual history; and
• Making offensive comments.

In response to these types of actions, an employer has the duty to promptly investigate the complaint. In fact, employers can avoid liability for sexual harassment that did not involve an employment action, such as demotion, firing, undesirable reassignment, or a change in benefits if they can demonstrate that:

• They took reasonable steps to prevent or correct sexual harassment in the workplace; and
• The employee unreasonably failed to take advantage of those corrective measures.

Steps that have been found by the courts to constitute reasonable preventive or corrective actions include:

• Adopting and promoting an anti-harassment policy;
• Educating employees about sexual harassment policies and how to make a complaint;
• Investigating all claims of sexual harassment thoroughly by conducting interviews and taking witness statements;
• Reassuring the victim that no retaliatory measures will be taken;
• Notifying Human Resources and informing the company’s president of the incident; and
• Swiftly punishing the responsible party, which could include verbal and written reprimands and suspension without pay.

Swiftly and appropriately handling sexual harassment complaints can protect an employer from liability while also ensuring the safety and well-being of employees.

CONTACT A DEDICATED BUSINESS LAW ATTORNEY

Allegations of sexual harassment, discrimination, and wage violations can have devastating consequences for employers, so if you are a Florida business owner and are being investigated for a workplace violation, please contact my Clearwater office or call me at (727) 314-3867 and a member of our legal team will help you schedule an initial consultation with a skilled business law lawyer who can explain your legal options and defenses.