West Palm Beach Employment Lawyer

Published on: May 16, 2014

BACKGROUND CHECKS & COMPLIANCE: WORKER’S COMPENSATION CLAIMS

Some employers might wish to know whether a job applicant or current employee previously filed worker’s compensation claims. At first glance, such information might seem relevant and even useful to employers. For example, an employer in an accident-prone industry might want to know if the job applicant has a history of repeatedly filing worker’s compensation claims shortly after beginning his or her employment. However, it is important that employers understand the liability that could result from using an applicant/employee’s previous worker’s compensation claims as a basis for making employment decisions.

Using an applicant/employee’s worker’s compensation claim to make adverse employment decisions could result in criminal liability for the employer. Under Florida law, it is a first degree misdemeanor to knowingly fire an employee or refuse to hire an applicant because the applicant/employee filed a worker’s compensation claim.

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Published on: May 13, 2014

BACKGROUND CHECKS & COMPLIANCE: CRIMINAL RECORDS

By Mavrick Law Firm

Under Florida law, employers could face civil liability for the harm an employee causes to a third party. For that reasons, employers might wish to conduct a thorough investigation of a job applicant’s or current employee’s criminal record. According to federal guidelines, however, federal law could impose liability on employers who base their employment decisions on criminal records.

Under Title VII of the federal Civil Rights Act of 1964 (“Title VII”), employers are prohibited from discriminating on the basis of race, color, religion, gender, or national origin. Title VII prohibits not only “disparate treatment” (i.e., refusing to hire an African American applicant based on his criminal record and instead hiring a white applicant with a comparable criminal record), but also “disparate impact.” Disparate impact occurs when the employer implements a facially-neutral policy that, in practice, has the effect of disproportionately screening out a protected group (i.e., a particular race, color, religion, gender, or national origin). For example, a policy that screens out all applicants that have ever been convicted of a felony does not, on its face, discriminate on the basis of race or color. However, in practice, the policy might have the result of disproportionately screening out African American or Hispanic applicants. Such a policy could form the basis for “disparate impact” claim of discrimination.

In April 25, 2012, the Equal Employment Opportunity Commissions (“EEOC”) issued federal guidelines based on Title VII. According to the federal guidelines, African Americans and Hispanics are incarcerated at rates disproportionate to their number in the general population. For that reason, the federal guidelines state that facially neutral policies that screen out applicants based on criminal convictions might violate Title VII if the policies are not job-related and consistent with business necessity.

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Published on: May 9, 2014

BACKGROUND CHECKS & COMPLIANCE: FAIR CREDIT REPORTING ACT

By Mavrick Law Firm

Background checks can be a valuable tool for employers. A thorough background check can shield an employer from future liability. However, both federal and state law place limits on what the employer can lawfully do regarding background checks. One such federal law is the Fair Credit Reporting Act (“FCRA”).

An employer who wishes to know a job applicant’s credit history could request a consumer report from a consumer reporting agency under the FCRA. However, to lawfully obtain and make an employment decision based on a consumer report, employers must follow certain procedures under the FCRA.

Before requesting a consumer report for a job applicant or employee, the employer must (1) certify to the consumer reporting agency that the employer will comply with the FCRA and applicable state law; (2) disclose in writing to the job applicant/employee that the employer will seek a consumer report; and (3) secure the applicant/employee’s authorization in writing. The employer’s written disclosure to the applicant must be in a document that consists of only the disclosure and the applicant’s written authorization.

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Published on: May 6, 2014

SUCCESSOR CORPORATIONS COULD BE LIABLE FOR PREDECESSORS’ FEDERAL WAGE LAW VIOLATIONS

By Mavrick Law Firm

Under Florida law, a corporation that acquires the assets of another corporation generally does not assume the liabilities of the predecessor corporation. The successor corporation will acquire its predecessor’s liabilities only to the extent it agreed to acquire those liabilities in the asset purchase agreement. Many states have similar laws regarding a successor corporation’s liability. The analysis changes, however, when the predecessor’s liability stems from federal statutes like the federal Fair Labor Standards Act (“FLSA”). In other words, a predecessor corporation’s failure to pay its employees minimum or overtime wages under the FLSA could result in liability to the successor corporation.

Some federal courts have held that a successor corporation could, as a matter of federal law, acquire the FLSA liabilities of its predecessor despite state law to the contrary. Under federal law, courts consider the following factors, or slight variants thereof, to determine whether a successor corporation acquired its predecessor’s FLSA liabilities: (1) whether the successor corporation had notice of the predecessor’s liabilities; (2) whether there is continuity in operations and work force of the successor and processor; and (3) whether the predecessor has the ability to directly provide adequate relief.

In March 2013, the Seventh Circuit applied those factors, among others, in Teed v. Thomas & Betts Power Solutions, L.L.C., 711 F.3d 763 (7th Cir. 2013), and found the successor corporation liable for its predecessor’s FLSA violations. The successor corporation in Teed purchased the assets of its predecessor through an auction. The asset transfer agreement contained a specific condition that the transfer be “free and clear of all Liabilities” including any liabilities stemming from the predecessor’s pending FLSA litigation. The federal appellate court noted that if “state law governed the issue of successor liability, [the successor corporation] would be off the hook.” Teed, 711 F.3d at 765. However, the court held that federal law, not state law, governed. Consequently the court found that the successor corporation acquired its predecessor’s FLSA liabilities despite the exclusion in the the asset transfer agreement. The court in Teed found that “[i]n the absence of successor liability, a violator of the [FLSA] could escape liability … by selling its assets without an assumption of liabilities by the buyer … and then dissolving.” Teed, 711 F.3d at 766.

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Published on: May 2, 2014

FLORIDA SUPREME COURT RULES ON PREGNANCY DISCRIMINATION

By Mavrick Law Firm

On April 17, 2014, the Florida Supreme Court resolved a conflict in Florida law: whether discrimination based on pregnancy constitutes “sex” discrimination in violation of the Florida Civil Rights Act of 1992 (“FCRA”). The Court held that because pregnancy is a “natural condition unique to women and a ‘primary characteristic of the female sex,’” discrimination on the basis of pregnancy is unlawful sex discrimination. Delva v. The Continental Group, Inc., Case No. SC12-2315, 2014 Fla. LEXIS 1316 (Fla. Apr. 17, 2014).

Under Title VII of the federal Civil Rights Act of 1964 (“Title VII”), the federal equivalent of the FCRA, it took a congressional act to make pregnancy discrimination unlawful. In 1976, the U.S. Supreme Court held that Title VII does not prohibit pregnancy discrimination. Two years later, in response to the U.S. Supreme Court, Congress passed the Pregnancy Discrimination Act (“PDA”), which amended Title VII to clarify that discrimination on the basis of pregnancy is sex discrimination and therefore unlawful.

The FCRA was patterned after Title VII. Consequently, Florida courts have held that the FCRA shall be given the same meaning as Title VII. The Florida legislature, however, has not amended the FCRA to include pregnancy discrimination. Because Florida did not amend the FCRA, a conflict developed among Florida courts regarding whether the FCRA prohibits pregnancy-based discrimination.

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