As a result of Joshua v. City of Gainesville, 768 So.2d 432 (Fla. 2000), and Woodham v. Blue Cross & Blue Shield,829 So . 2d 891(Fla. 2002), the Florida Supreme Court has arguably clarified the timelines applicable to lawsuits under the Florida Civil Rights Act (“FCRA”).

This brief article will discuss the question of whether there is a statue of limitations applicable to administrative proceedings under the FCRA and the answer of the Florida Commission on Human Relations (“FCHR”).

The FCHR is a commission made up of citizens of Florida who are appointed by the Governor.  Individuals who believe that they have been discriminated against in violation of the FCRA are required to file a charge with the FCHR within 365 days of the alleged discriminatory act.  The FCHR is supposed to investigate the allegations and issue a determination within 180 days.  If within 180 days of the filing of the charge the FCHR determines that there is reasonable cause to believe a discriminatory practice has occurred, then the charging party has the choice of bringing a civil action within 1 year of the date of the determination or requesting an administrative hearing within 35 days of the determination.  If a finding of “not reasonable cause” is made within the 180 days by the FCHR,then the charging party’s only remedy is an administrative hearing, which must be requested within 35 days of the not reasonable cause determination.  If the FCHR does not issue a determination within 180 days, the charging party may proceed as though reasonable cause had been found and if they choose they may file suit within four-years of when the employee knew or should have known of the allegedly discriminatory action, or they can request an administrative proceeding. 1.

A number of panels of the FCHR have held that statutes of limitations are inapplicable to these administrative proceedings.  For example, in Prentice v. North American Realty Corp., FCHR Order No. 00-021 (Jan. 9, 2001), the petitioner filed her charge on April 4, 1994. The FCHR did not complete its investigation and the petitioner requested an administrative hearing on August 21, 1998, more than four years after the alleged harm and more than four years after the charge was filed.  The administrative judge dismissed the petition on these grounds.  The FCHR overturned, reasoning that if no determination is ever made, a charging party may request an administrative hearing at any time following the initial 180 day period, even after the four year statute of limitations has run.

In Ford v. Mold-Ex Rubber Co., 23 F.A.L.R. 1586, FCHR Order No. 01-014 (Mar. 19, 2001), and Tutson v. Dep’t. of Children & Family Servs., FCHR Order No. 02-094 (Nov. 8, 2002), the administrative law judges concluded that the statute of limitations bared petitions for relief more than four years after the alleged discrimination occurred, even through they were filed within 35 days of the issuance of the not reasonable cause determination.  The FCHR rejected this position and concluded that where a determination is made, a petition for relief is timely as long as it is filed within 35 days of the determination, even if it is more then 4 years after the last act of alleged discrimination.

In sum, it is currently the FCHR’s position that a charging party may request an administrative hearing at any time after the conclusion of the initial 180 day period following the filing of the complaint.  However, where there is an FCHR determination of reasonable cause or not reasonable cause, the request for an administrative hearing must be filed within 35 days after the date of the determination by FCHR.

While the FCHR’s position may initially trouble employers, they should remember that they can still assert the defense of laches against a charging party who has waited too long to make a request for an administrative hearing.  In addition, it is not clear that a court would agree with the FCHR’s interpretation of the FCRA if an employer was to appeal an adverse order of the FCHR.

By Dyan D. Barack
Kwall, Showers & Barack, P.A.

Generally, the Florida Civil Rights Act (“FCRA”), Sections 760.01 – 760.11, Florida Statutes, is interpreted in accordance with decisions construing Title VII and other federal employment anti-discrimination laws. However, there are some differences between the federal anti-discrimination laws and the FCRA.
These include differences in the scope of the FCRA, differences in the administrative scheme, and differences in the remedies available to the prevailing plaintiff.

II. DIFFERENCES IN THE SCOPE OF STATE AND FEDERAL STATUTES

1. Size Of Employer

The definition of “employer” in the FCRA is similar to that utilized in Title VII, although without any reference to being engaged in commerce.  “‘Employer’ means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.”

2. Individual Liability

Based on the widely recognized premise that the FCRA should be interpreted in accordance with federal discrimination law, a number of decisions have held that there is no individual liability under the FCRA.

Notwithstanding these decisions, individuals can be liable under FCRA for certain types of discrimination.  See Fla. Stat. § 760.10(5) (prohibiting discrimination against persons seeking licenses, certificates, credentials, to pass an examination, or to become a member of a club, where those accomplishments are required in order to engage in a profession, occupation or trade); Fla. Stat. § 760.11(1) (complainant may bring action against, e.g., an employer “or, in the case of an alleged violation of § 760.10(5), the person responsible for the violation . . .”).

3. The FCRA Does Not Define “Disability” Or “Handicap”

The ADA defines the term “disability” or “handicap.”  Incredibly, the FCRA does not.  In the absence of a definition, different tribunals have looked to different authorities to supply the definition.  Some courts have applied the federal definition to FCRA cases.

Others have used the definition from Florida’s Fair Housing Act:  “Handicap means: (a) A person has a physical or mental impairment which substantially limits one or more major life activities, or he has a record of having, or is regarded as having, such physical or mental impairment; or (b) A person has a developmental disability as defined in s. 393.063.”  Fla. Stat. § 760.22(7).

In addition, the Florida Commission on Human Rights (“FCHR”), and at least some courts, have applied the definition from the FCHR’s rules.  The FCHR’s definition is both vague and overbroad.  On its face, this definition seems to include minor temporary conditions such as a broken toe.  It could certainly also be construed to include someone with slightly impaired vision or hearing.

Florida also has a separate statute that broadly prohibits discrimination based on HIV-positive status, the belief that someone is HIV-positive, the fact that someone has been tested for the HIV virus, or the fact that an individual is a healthcare worker who works with HIV patients. See Fla. Stat. § 760.50.  This statute makes all of the protections of the FCRA available to such individuals, and also includes its own remedial provisions.

4. Pregnancy Discrimination Under The FCRA

Neither the FCRA nor its predecessor, the Florida Human Rights Act, expressly addresses discrimination based on pregnancy.  Section 760.10(1)(a) of both versions of the law contains identical words:  “[i]t is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.”  Fla. Stat. § 760.10(1)(a).

One Florida state appellate court has held that the predecessor to the FCRA did prohibit discrimination based upon pregnancy.  Federal district courts are divided on the issue.

5. Marital Status Discrimination

Unlike federal anti-discrimination laws, the FCRA provides protection from discrimination based upon marital status.  The Florida Supreme Court has held that martial status “means the state of being married, single, divorced, widowed or separated, and does not include the specific identity or actions of an individual’s spouse.”  Donato v. American Tel. & Tel. Co., 767 So. 2d 1146, 1155 (Fla. 2000).

III. DIFFERENCES IN THE ADMINISTRATIVE SCHEMES OF THE STATE AND FEDERAL STATUTES

The administrative requirements and procedures of the federal statutes are significantly different than those mandated by the FCRA, so claims that may be viable under federal statutes may be procedurally barred under the FCRA.  Plaintiff must take certain actions to insure compliance with state law procedural requirements.

1. Basic FCRA Procedure

The FCRA gives the complainant 365 days to file a charge with the appropriate administrative agency, a window only slightly longer than the 300 days permitted by federal law.  Filing of a timely charge with the FCHR is a condition precedent to bring suit under the FCRA.

The FCHR is supposed to investigate the charge within 180 days and determine whether there is reasonable cause to believe a discriminatory practice has occurred.

2. The Workshare Agreement

1. Background

While the original statutory scheme of Title VII anticipated that all claims in deferral states would first be investigated by the deferral agency and subsequently reviewed by the EEOC, workload considerations have caused the EEOC to utilize a work-splitting procedure.  For many years, the EEOC has entered into workshare agreements dividing workloads between the EEOC and deferral agencies.

The workshare agreement divides the principle jurisdiction of the agencies geographically with the FCHR processing most dual-filed claims in North Florida and the EEOC processing most claims from South Florida (with certain exceptions).  As always, each agency maintains jurisdiction to perform a substantial weight review of the determinations of the other for the statutes over which the agency has primary jurisdiction.  The division of work is not solely based on geography.  For example, the EEOC takes charges under Title VII and the ADA which are based on events more than 240 but less than 300 days prior to the date of the charge.

2. Acceptance Of Charges Under Both Statutes

One of the most important aspects of the workshare agreement is the provision in which the EEOC and FCHR have agreed that either agency’s accepting a charge automatically initiates the proceedings of Section 706(c) and (e)(1) of Title VII and Section 760.6(10), Florida Statutes.  In essence, each agency acts as the agent of the other for the purposes of receiving charges and thus charges are considered to be automatically dual filed.

3. Substantive Differences Related To The ADA

There are four substantive statutory differences between the ADA and FCRA recognized in the workshare agreement.  Specifically, the FCRA: (1) does not enunciate a standard for evaluating safety requirements; (2) has no restrictions on inquiries into disabilities and allows employers to require examinations; (3) does not prohibit discrimination through contract; and (4) does not expressly prohibit discrimination based on association with someone who has a disability.  In recognition of these differences, the FCHR will transfer back to the EEOC any initial charges it receives involving these issues.

4.The Impact Of Determinations

The effect of the outcome of the agency determination is significantly different under the federal and state statutory schemes.  Under the federal statutes, the EEOC’s finding of cause or no cause is irrelevant to the plaintiff’s right to sue.  Although a determination may be admitted into evidence in proper cases, it is not a prerequisite to suit nor does it affect a plaintiff’s right to sue.

Under Florida’s statutory scheme for implementing the FCRA there are four potential outcomes of a charge filed with the FCHR.

1. Reasonable Cause Determined Within 180 Days

First, the FCHR may investigate the charge within 180 days of the filing of the charge and determine that there is reasonable cause to believe a discriminatory practice has occurred.  If the FCHR finds reasonable cause, the injured party has the choice of bringing a civil action or requesting an administrative hearing.

2. No Cause Determination Within 180 Days

The second potential outcome is a finding of no reasonable cause within the 180 days, which limits the aggrieved party’s remedy to an administrative hearing, which must be requested within 35 days of the no cause determination.  The aggrieved party may not file a lawsuit unless the no cause finding is overturned.  This limitation on suit in court was unsuccessfully challenged on an access to courts theory in McElrath v. Burley, 707 So. 2d 836 (Fla. 1st DCA), review denied, 718 So. 2d 166 (Fla. 1998).

3. No Determination Is Made Within 180 Days

Alternatively, the FCHR may be unable to complete its investigation within the allotted 180 days, in which case the aggrieved party may proceed as though reasonable cause had been found.  If the FCHR does not make a reasonable cause determination within the 180 days then the general four-year statute of limitations for statutory violations contained in section 95.11(3)(f), Florida Statutes applies.  Thus, a potential plaintiff is not punished for the FCHR’s failure to process the charge in a timely fashion.

Unfortunately, the Florida Supreme Court has not stated when this four-year period begins to run.  Arguably, there are at least three possible dates that do not conflict with the language of the FCRA.  First, the four years could start to run when the employee receives notice of the allegedly discriminatory action.  Second, it could start to run on the day the charge is filed.  Third, it could start to run on the one hundred-eightieth day after the charge is filed.

Precedent from the United States Supreme Court and at least one Florida district court of appeal support the view that the four years begins to run when the employee receives notice of the allegedly discriminatory action.

4. Determination Is Made After 180 days But Before Suit Is Filed

In Woodham v. Blue Cross & Blue Shield, 829 So. 2d 891 (Fla. 2002), the Florida Supreme Court held that if the Florida Commission on Human Relations fails within 180 days to make a determination either way regarding whether reasonable cause exists, the claimant may proceed to file suit regardless of whether a later no cause determination is made.

IV. EXHAUSTION OF FCRA ADMINISTRATIVE REMEDIES

1. Dual Filing

Although a charge must be filed with the FCHR to preserve a FCRA claim, the charge need not be initially filed with the FCHR by the complainant.  Filing with the EEOC while providing identification of the requested deferral agency on the charge and selection of the box requesting dual filing is generally sufficient.

When a charge is dually filed with the EEOC and the FCHR, courts consider the date of filing with he EEOC as the date of filing with the FCHR.

2. Right To Sue Letter From EEOC

Perhaps the most pervasive “deferral dilemma” is the tension between the EEOC practice of issuing early right to sue letters either automatically or upon request of the complaint.  The FCRA, in contrast to Title VII, contains no provision for the FCHR to relinquish jurisdiction prior to passage of 180 days without a decision on the merits or a settlement.

There is a split of authority concerning the effect of such early right to sue letters on FCRA claims, with the majority of federal and state courts holding that an early right to sue letter without a decision on the merits does not terminate the FCHR’s jurisdiction.

V. JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS OF STATE AND LOCAL AGENCIES

While the EEOC is not authorized to award damages, the FCRA does authorize administrative agencies to award damages, and provides for enforcement of such awards by the courts.

Orders of the FCHR, including orders entered following administrative hearings, may be appealed to Florida’s District Courts of Appeal.  A reviewing court may not substitute its judgment for that of the FCHR as to the weight of the evidence on any disputed finding of fact, but should set aside the FCHR’s decision and remand the case if a material finding of fact is not supported by competent substantial evidence.  A court may also set aside an agency’s findings because of an erroneous legal conclusion.  Because remedies awarded by a state agency are within the agency’s discretion, a court may not set aside an agency’s award of remedies absent an abuse of discretion.

VI. DIFFERENCES IN THE REMEDIES

Relief under the FCRA, like its predecessor the Florida Human Relations Act, is modeled after federal law, specifically Title VII.  Assuming the plaintiff is able to bring suit in court, the plaintiff may recover damages under § 760.11(5), Fla. Stat.

1. Back Pay And Benefits

The FCRA has always been interpreted to provide relief consistent with Title VII.  However, no liability for back pay can accrue from a date more than two years prior to the filing of the charge.

2. Compensatory Damages

The Court may award damages for “mental anguish, loss of dignity, and any other intangible injuries.”  Fla. Stat. § 760.11(5).

3. Punitive Damages

No statutory standard is provided.  Punitive damages awarded under § 760.11(5), Fla. Stat. are not subject to the procedural and substantive limitations of §§ 768.72 and 768.73, but they are limited to $100,000.

The State and its agencies and subdivisions are not liable for punitive damages.

4. Reinstatement, Hiring, Promotion

The FCRA does not expressly provide for reinstatement, hiring, promotion, etc., but those remedies are available.

5. Caps On Damages

Unlike Title VII, there is no dollar cap on compensatory damages under the FCRA.  Any downward adjustment to a compensatory damage award must be based on traditional principles of judicial review of damage awards, as well as § 768.74, Fla. Stat.

However, the FCRA has a cap of $100,000 on punitive damages.

The FCRA also incorporates the limitations on the recovery of damages against the State and its agencies and subdivisions set forth in § 768.28(5).  Section § 768.28(5) provides that ‘neither the State nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the State or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000.”

6. Jury Trial

The FCRA provides for right of trial by jury for claimants seeking compensatory and punitive damages.

7. Interest On Judgment

1. Pre-judgment Interest
Generally, under Florida law, prejudgment interest is allowed from date of liquidation.

2. Post-judgment Interest
Any judgment for money damages shall bear, on its face, the rate of interest that is payable on the judgment. The rate of interest stated in the judgment accrues on the judgment until it is paid.

8. Attorneys’ Fees

Fla. Stat. § 760.11(5) allows for the recovery of reasonable attorney’s fees.  The statute provides that that “[i]t is the intent of the Legislature that this provision for attorney’s fees be applied in a manner consistent with federal case law involving a Title VII action.”

A contingency enhancement for attorneys’ fees is not available in federal fee shifting employment litigation.  However, some have suggested that under Florida law a contingency multiplier (not to exceed 2.5%) may be available.

By Ryan D. Barack
Board Certified Labor & Employment Lawyer

The Fair Labor Standards Act (“FLSA”) requires an employer to compensate an employee who works more than forty hours per week “at a rate not less than one and one-half the times the regular rate at which he is employed.”  See 20 U.S.C. § 207(a).  Specifically, the FLSA provides in pertinent part:
Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1).

The FLSA exempts from the requirement to pay overtime “any employee in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1).  However, since the FLSA is a remedial statute, any exemptions are to be narrowly construed and the employer must show that the exemption applies “plainly and unmistakenly.”  Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L. Ed. 2d 393 (1960).  The Eleventh Circuit has held: “[t]he employer bears the burden of proving the applicability of a FLSA   exception by clear and affirmative evidence.”  Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir. 2001).  This is because “[t]he Fair Labor Standards Act was designed ‘to extend the frontiers of social progress’ by ‘insuring to all our ablebodied working men and women a fair day’s pay for a fair day’s work.”  Message of the President to Congress, May 24, 1934, (cited in Sack v. Miami Helicopter Service, Inc., 986 F. Supp. 1456, 1463 (S.D. Fla. 1997)).  The FLSA does not define the parameters of the exemptions.  Instead, the exemptions are defined by Department of Labor regulations, which are entitled to deference from the Court under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed. 2d 694 (1984) and the Administrator’s opinion letters which entitled to weight under the factors set forth in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).  See Christensen v. Harris County, 529 U.S. 576, 587 (2000).

The Department of Labor has frequently stated that paralegals are not exempt from the overtime requirements of the FLSA.   See e.g., Opinion Letter of January 7, 2005 from Alfred B. Robinson, Jr., Acting Administrator, Wage & Hour Division, Department of Labor, 2005 DOL WH LEXIS 2 (discussing “the longstanding position of the Department that paralegals and legal assistants do not qualify for the learned professional exemption.”).  The Department has stated that “[p]aralegals and legal assistants generally do not qualify as exempt learned professionals because an advanced specialized academic degree is not a standard prerequisite for entry into the field.”.  29 C.F.R. § 541.301(e)(7).  The Department has also opined that “[i]t has long be our opinion that paralegal employees’ duties do not involve the exercise of discretion and independent judgment of the type required by [the administrative exemption].”  See Opinion Letter of March 20, 1998 from Daniel F. Sweeney, Office of Enforcement Policy, Fair Labor Standards Team, 1998 DOL WH LEXIS 32.

Each failure by an employer to properly pay overtime for hours worked in excess of forty in a work week represents a new violation of the FLSA.   See Knight v. City of Columbus, 19 F.3d 579, 581 (11th Cir. 1994) “[e]ach failure to pay overtime constitutes a new violation of the FLSA.”).  The statute of limitations for actions under the FLSA is extended to three years for “willful” violations.  See 29 U.S.C. § 255(a).  In light of the clear requirements to pay paralegals overtime, a failure to do so will likely be considered willful and consequently allow for the three years limitations period.

Employees who are not paid overtime properly are entitled to recover the amount of their unpaid overtime compensation and an additional equal amount as liquidated damages.  29 U.S.C. §216(b).  Thus, if the employee is due $2500 in unpaid overtime, it the total recovery is doubled to $5000.  In addition, the FLSA provides that prevailing employees also recover their reasonable attorney’s fees and costs.

In conclusion, paralegals that work in excess of forty hours in a workweek are generally entitled to overtime at time and one half their regular rate of pay plus an equal amount in liquidated damages for the three years prior to the filing of suit..

If you have questions about paralegals and overtime or would like to discuss a potential claim for overtime, please contact Ryan Barack rbarack@TampaBayEmploymentLaw.com or (727) 441-4947.

By Ryan D. Barack
Board Certified Labor & Employment Lawyer
Kwall, Showers & Barack, P.A.
Tampa Bay, Florida ]]> http://ksblaw.com/2010/05/paralegals-are-entitled-overtime-for-hours-over-forty-in-a-workweek/feed/ 0 http://ksblaw.com/2010/05/your-right-to-email/ http://ksblaw.com/2010/05/your-right-to-email/#comments Tue, 04 May 2010 18:26:43 +0000 admin http://tampabayadministrativelaw.com/?p=35
EMPLOYEES’ RIGHT TO ENGAGE IN CONCERTED ACTIVITY APPLIES TO EMAIL.

Section 7 of the National Labor Relations Act (“the Act”) provides in part:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…

Rights under section 7 apply to both union and nonunion workers.

Employers often fail to appreciate the impact of the Act on employee relations.  For example, it is generally seen as a violation of the act to have a policy that prohibits employees from discussing their pay or compensation with co-workers.

The National Labor Relations Board (“NLRB”) is responsible for enforcement of the Act.  They have issued a few rulings on issued that have taken the Act into the digital age.  In one case, the NLRB held that an employer’s policy of allowing employees personal use of the email system, but not allowing the employees to use the system to distribute union materials violated the act.  Essentially, the NLRB held that if an employer allows employees to send or receive person email, they must also allow union email.  In another case, the NLRB held that an employee who utilized the employer’s internal email system to communicate with co-workers and criticize the employer’s new vacation policy was engaged in protected activity.  The NLRB held that it was a violation of the act to terminate the employee for “concerted activity.

In addition to the NLRB, the General Counsel’s Office of the NLRB also issues opinion letters.  The General Counsel, appointed by the President to a 4 year term with Senate consent, is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of unfair labor practice and representation cases.

In one opinion memorandum, the General Counsel’s Office maintained that an employer’s policy prohibiting personal use of the company e-mail system was overbroad and illegal on its face because it restricted solicitations even on non-work time.  The General Counsel considered email as a substitute for oral communications.  The General Counsel’s Office also opined that a policy prohibiting non-business use of email, but allowing some personal use was unlawful if it did not allow for discussion of union issues.  In another memorandum, the General Counsel’s Office maintained that a policy that prohibited use of the employer’s computer system for “inappropriate or offensive communications-offensive language, derogatory remarks-or any material that reflects negatively on the Company” is unlawful.  In a fourth memorandum, the General Counsel’s Office maintained that a policy that prohibited “chain” or “bulk” email was unlawfully ambiguous since it did not define these terms.

However, the General Counsel’s Office has also issued a memorandum opinion that an employer can discipline an employee for creating and printing a pro-union computer file on company property on company equipment during a time the employee should have been working.  In addition, the General Counsel’s Office has held that an employee can be disciplined for posting an internal company memorandum on the union’s World Wide Web site.

In short, when drafting and enforcing an electronic communications policy, employers should also be aware of the applicability of the National Labor Relations Act. Employers should insure that employees are not disciplined for conduct that is protected by the Act.

By: Ryan D. Barack
Board Certified Labor and Employment Lawyer
Kwall, Showers & Barack, P.A.
www.tampabayemploymentlaw.com