In Employment Law, Harassment Cases Predominate
That doesn't mean there aren't preventive measures employers can take
In 2016, the Obama-era Department of Labor (DOL) proposed changes to the Fair Labor Standards Act that, if enacted, would have made large numbers of employees newly eligible for overtime compensation.
Federal law, as of 2004, established that certain executive, administrative and professional employees are eligible for overtime compensation provided that they don’t make $23,600 or more annually. Twelve years later, the DOL recommended that the exemption amount be increased to $47,476.
The proposal precipitated angst among many employers and celebration among employees who anticipated a pay raise. Both reactions proved premature.
A number of states and pro-business organizations filed lawsuits challenging the proposal and asserting that it represented an overreach by the DOL. Ultimately, they prevailed and the proposed increase in the exemption amount went away.
Still, reports Thomas Hoffer, a former partner at the Destin law firm of Matthews & Jones LLP who now lives in Alaska, the abandoned proposal had effects still being felt.
“The proposal,” Hoffer said, “focused the attention of both employers and employees on wage-and-hour issues, and we have seen a resurgence of claims in that area. Employers made changes in anticipation of enactment of the proposal and that further contributed to bringing wage-and-hour concerns to the forefront.”
Employers and employees found themselves dusting off handbooks and revisiting policies. And, changes like the one that the DOL proposed may properly lead an employer to seek clarification from an employment lawyer regarding how a policy change might affect him.
That contact is especially critical when businesses are being established, Hoffer said. A review of employee manuals, procedures, non-compete language and other documents can be an essential step in laying the groundwork for a smooth business launch and operational success.
“The idea, of course, is that an ounce of prevention is worth a pound of cure,” Hoffer stressed.
Businesses are well-advised, too, to contact an employment lawyer whenever they are contacted by a regulatory agency or learn that an employee has contacted an agency such as the Equal Employment Opportunity Commission or an advocacy organization like the Southern Center for Human Rights.
“Many times, an employer will wait before contacting an attorney and try to navigate the process himself or herself,” Hoffer said. “They find themselves dealing with a cause determination or a lawsuit and they have already committed themselves to positions.”
Hoffer anticipates that due to the #MeToo movement and the torrent of sexual harassment cases making headlines, changes with implications for employers may be forthcoming to Title VII of the Civil Rights Act of 1964. That federal law prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion.
Tallahassee employment lawyer Richard Johnson handles few cases related to wage-and-hour issues and speculated that they may be more prevalent in large cities or in rural areas where non-English speakers may be taken advantage of.
He has taken on clients who have been misclassified as salaried employees when they are really hourly and entitled to overtime compensation or deemed independent contractors when they are really employees.
But Johnson deals primarily with discrimination cases, sexual harassment matters, and cases involving whistleblowers and people with disabilities.
“I don’t see much in the way of failure-to-hire cases — and those cases are very hard to win,” Johnson said. “If I were to put together a composite case based on what I typically see, it would be a male supervisor putting his hand on a female employee and making sexual propositions to her and she is resisting and she goes to HR and then the company begins to make life hard for her and they create a paper trail and they wind up firing her.”
Increasingly prevalent, Johnson said, is something he calls the Trumpian example.
“That is when you sue them, they start to slander you. They say, ‘Well, she stole something or she shared our trade secrets with competitors.’ They invent some basis for a countersuit and turn a defense into an offense. That’s the new thing.”
Regarding cases involving disabled persons, Johnson said he sees a lot of “intakes” that result in a “small number of cases that I can actually do anything with.”
He did, however, win a jury verdict, upheld on appeal, for a plaintiff who was a police officer at FAMU. Johnson explained that the school went to 12-hour shifts, which the officer was unable physically to work.
“But he met every standard on his job description and still they tried to say 12-hour shifts were part of the job description, and they weren’t — and it was right there in black and white.”
Johnson said that corporate banks have figured in multiple cases tied to disabilities and cited two which resulted in out-of-court settlements.
“But the haughty administrator who can’t keep his pants zipped, can’t keep his hands to himself and can’t keep his mouth shut, that’s what I see the most of,” Johnson said.
He said he had a rush of such cases in the 1990s. That caseload then tapered off before it exploded again, post-Weinstein.
Attorney Tim Sloan of Panama City represents employers in employment law matters and, like Johnson, finds himself dealing much more frequently with discrimination and harassment cases than wage-and-hour disputes.
“The majority of my cases have to do with alleged sexual harassment or sexual discrimination and usually arise from claims of retaliation,” Sloan said. “I have seen some wrongful termination cases, again stemming primarily from alleged sexual discrimination or retaliation, and a few racial discrimination cases.”
Employers, Sloan said, may be reluctant to go to trial because plaintiffs who win a recovery in any amount are entitled to the full amount of attorney’s fees incurred.
“The fees can be a bigger hammer than the underlying claim,” Sloan said. “If you have an attorney charging $500 or $600 an hour and he runs up 1,000 hours, that gets to be a lot of money.”
Sloan said employment contracts in which employees agree not to sue the employer and to instead be content with arbitration are not prevalent in Bay County. More common is contract language whereby employees agree to non-compete or non-disclosure requirements.
Plaintiffs in employment law cases may file in federal or state court.
“If you file in federal court, you are theoretically going to get to trial faster, but it is more expensive to litigate in federal court because there are a lot more things that you have to do automatically,” Sloan said.
And, there are tactical considerations for the plaintiff’s attorney to consider.
“The federal court may be more strict on the technicalities of the law,” Sloan noted, “and it may be more apt to grant a summary judgment than a state court.”
Employees may wish to contact an attorney whenever they believe they may have been unlawfully slighted or aggrieved.
“In some cases, there may have been an actionable offense,” Hoffer said. “But there is a lot of misinformation out there and people may not understand that. In an employer-friendly state like Florida, the causes of action are relatively limited.”
Hoffer is prepared to counsel employers on preventive actions they can take to diminish the likelihood of employment-related claims being filed against them and to mitigate the exposure where mistakes have been made.
“But you can’t take proactive steps after the fact,” Hoffer stressed. “You can’t go and draw up these things after someone has complained and expect it to do any good.”