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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 by calling (727) 785-5100 and a member of our legal team will help you schedule an initial consultation with an experienced business law attorney who can explain your legal options and defenses.

TESTIMONIALS

I strongly endorse Andrew Mongelluzzi. He is a very skilled and able business attorney focused on customer service and results. On the front end, Andrew deftly advises new businesses on organizing properly, acquiring necessary licenses, contracting with vendors & customers, and dealing with various compliance issues that may arise. On the back end when things go south, Andrew counsels and navigates businesses through complex commercial disputes and aggressively represents them in negotiations, mediation, arbitration, and in litigation so that businesses can legally move on and get back to business. Andrew’s ability to identify legal issues and approaches to resolve business-related issues is a strength that I have learned from and professionally relied upon in approaching the business matters and cases that I handle. I regularly refer business to Andrew knowing that he will diligently represent his business clients and their best interests.
Relationship: worked together on matter

- Frank N. Genco, Florida Bar No. 440086

We hired Andrew to help us when our insurance company denied our claim when water and sewage damage completely destroyed our Florida Condominium. Even though Andrew made several phone calls and wrote an initial letter, the company continued to deny our claim. He was persistent and continued to help us negotiate with the company until we finally received a fair monetary settlement. He was always quick to respond, helpful, and courteous when working with us. I would recommend him to anyone who is fighting an unjust insurance settlement.

- Harvey

Andrew has represented my business for several years in the area of corporate law, business transactions, collection matters, contract matters, employee disputes, and more. He has always been more than approachable, accommodating and understanding. His approach is not like other lawyers in that he deals with you on your level and is able to incorporate his legal strategies into our business plan/model; instead of allowing lawsuits to takeover the business. Further, his education and practical experience in the business world equates to a valuable understanding of my business.

- Chris

Attorney Mongelluzzi and his team provided excellent and quality service. I always felt that my needs were met and that the firm was invested in me and my case. The quality services I received at Mongelluzzi’s firm were remarkable. From the initial meeting they were responsive to my calls, questions and concerns. All issues were handled professionally and timely, easily accessible, got back to me quickly, aggressive and got me the results that I wanted. Attorney Mongelluzzi and his staff all gave my case their personal attention and provided the quality of work that anyone would want when hiring an attorney.

- Client

Andrew is very thorough defining the outcome expectations. In my case, it was setting up a new corporate entity. He advised me on the most beneficial option and he then executed on that path. Andrew is a very pleasant person to work with. He is determined, skilled and committed to his client’s success.

- Gil Pinney

Andrew helped me through a difficult situation with American Express and we won the case. A great job by Andrew! He also helped me with T&C’s in my company. I would recommend Andrew highly as an attorney.

- John Sams

As a business owner for 12 years I have seen my fair share of ups and downs. Some of the downs would include landlord/tenant disputes and creditors that may have not been fulfilled to agreement. Andrew has met both of these situations for me in a timely, positive, and affordable manner.

- Rich Mattes

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