Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein


Posted: July 24, 2009 Filed under: Uncategorized

The federal minimum wage increases to $7.25 per hour today. Because the Florida minimum wage is currently $7.21 per hour, Florida minimum wage will also increase by four cents, to $7.25 per hour. Governing law requires that employers pay the higher of the minimum wage mandated by state law or federal law.

In 2004, Florida voters approved a state constitutional amendment (Art. X, Sec. 24, Fla. Const.) that increased the Florida minimum wage. Under the state constitution and implementing statutory law, the Florida Agency for Workforce Innovation must calculate a new minimum wage each year on September 30, based on the Consumer Price Index. If that calculation is higher than the federal rate, the state’s rate takes effect the following January.

The minimum wage is different for tipped employees. The current Florida rate of $4.19 per hour plus tips also increases today to $4.23 per hour as a result of the federal increase.

Employees who are not paid the required minimum wage may bring a civil lawsuit against their employer. Federal law also permits many employees to sue employers who fail to pay required overtime compensation. Because legal protections do not extend to all employees, one must verify whether minimum wage and overtime laws apply to their given jobs.

Home Depot Must Explain Terminations

Posted: July 20, 2009 Filed under: Uncategorized

By a 2-1 vote, a panel of the U.S. Court of Appeals for the Eleventh Circuit last week concluded that sexually suggestive behavior of a Home Depot regional human resources manager toward two Home Depot store managers did not create a sufficiently pervasive or severe work environment as to be actionable.

The dissenting judge felt that that the sexually-charged behavior and comments should be viewed in context. “Certainly there is a difference between a coworker cheerfully stating, “Hey, I really like your pants,” and a coworker stating, “I really like how you look in those pants….” The dissent also suggested, while avoiding use of the controversial term “activist,” that the majority overstepped its role by deciding fact issues that should be left for the jury.

Notwithstanding its resistance to the store managers’ harassment claims, the court unanimously agreed that the store managers should have their day in court on the question of whether Home Depot terminated them in retaliation for complaining about the harassment. Even though the store managers could not identify the individual who made the ultimate decision to terminate their employment, the court held “evidence that a biased employee with retaliatory motives influenced or participated in the decision to terminate an employee raises a genuine issue of material fact whether there is a causal connection between the employee’s protected conduct and his termination.” The managers were terminated 25 days after formally complaining, and they presented other evidence that Home Depot’s purported reason for the terminations was a sham.

The case is Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. July 10, 2009), and the opinion is available online HERE.

Legislature Unconstitutionally Pushed Costs onto Counties

Posted: July 20, 2009 Filed under: Uncategorized

A three-judge panel of Florida’s First District Court of appeal unanimously concluded last Friday that the Florida Legislature unconstitutionally pushed the cost of funding regional conflict counsel offices on county governments.

The legislature created the regional offices in 2007 in an effort to curb the cost of court-appointed counsel for indigent criminal defendants and poverty-stricken parents accused of abusing or neglecting their children. The legislature created five offices, one for each of the state’s five appellate districts, but each office maintains satellite offices in multiple counties. The legislature required counties to pay for the offices, but several counties balked and filed suit. A trial judge ruled in favor of the counties, and the district court of appeal affirmed that decision.

The legislature will now have to determine how the State will absorb the additional costs in a future legislative session. Capping the compensation other court-appointed attorneys receive may not be an alternative cost-saving measure, as those rates are already so low that many contend the rates are unconstitutional.

Read the district court of appeal’s opinion HERE.

Interview with Justice O'Connor

Posted: July 12, 2009 Filed under: Law-Related News

The Daily Beast features an interesting interview with retired US Supreme Court Justice Sandra Day O’Connor.

Fifth District Court of Appeal Rules in Favor of Immigrant Youth

Posted: July 11, 2009 Filed under: Uncategorized

A copy of the July 10, 2009, decision is available here.

PERC Rules for Osceola County Corrections Officer

Posted: July 11, 2009 Filed under: Uncategorized

A copy of the order is available here.

Life Ain't Fair, And Neither Is Employment Law – Thank Goodness For Lilly Ledbetter

Posted: July 10, 2009 Filed under: Commentary, Employment Law, Legislation

While reading the case law that has developed since President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law last January, I was reminded that law is not always logical, intuitive, or fair. One of the cases surveyed case law evaluating the effect of unequal work assignments, emphasizing that a higher workload by itself is not actionable discrimination. That court cited, among other decisions, an Eleventh Circuit Court of Appeals decision from 2008, which held that an employee did not suffer adverse employment action when a supervisor increased the employee’s workload, assigned him additional tasks, and denied him breaks while allowing employees of another race to take breaks. The Eleventh Circuit felt that the abusive treatment experienced by the employee did not meet a “threshold level of substantiality” and did not “show a serious and material change in the terms, conditions, or privileges of employment.” Simply put, “unfair treatment does not, under Eleventh Circuit precedent, constitute the type of ‘adverse employment action’ necessary to support a disparate treatment claim.”

This type of case law is why employers win upward of 85% of the cases that go into litigation, as explained in a Wall Street Journal article linked in an earlier post on this site. Attorneys must be diligent and creative when asserting most discrimination claims because of restrictive interpretations found in court decisions.

On a brighter note, Congress did the right thing in enacting the Lilly Ledbetter Fair Pay Act of 2009. As a New Jersey federal district court explained, the Act reverses prior U.S. Supreme Court case law and now permits employees “‘recovery of back pay for up to two years preceding the filing of the charge [of discriminatory pay with the EEOC], where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.’” One purpose underlying the Act was to give victims of pay discrimination full back pay for two years rather than to limit it to 180 or 300 days. Under the Act, the statute of limitations period and the back pay recovery period are separate and distinct.

Unanimous Florida Supreme Court Orders Governor Crist to Make Judicial Appointment

Posted: July 4, 2009 Filed under: Case Law, Judicial Appointments, Law-Related News

In a unanimous opinion authored by Justice Jorge Labarga, the Florida Supreme Court determined that Governor Crist exceeded his constitutional authority in refusing to appoint one of six judicial nominees certified by the Judicial Nominating Commission for the Fifth District Court of Appeal. The nominees, who included two women and four men, are all white. Governor Crist deemed the pool of nominees insufficiently diverse, even though only one woman currently serves on the Fifth District Court of Appeal and no woman has been appointed to that court since 1990. The case challenging the governor’s failure to fill the vacant position on the court of appeal was filed by the judge whose retirement created the vacancy, The Honorable Robert J. Pleus, Jr. The Supreme Court’s opinion is available here.

Reversal of Course, not Sotomayor, in Ricci v. DeStefano

Posted: July 1, 2009 Filed under: Case Law, Employment Law, Law-Related News

This article explains that the US Supreme Court’s decision in Ricci v. DeStefano shifted course and changed the rules for determining when job requirements producing a “disparate impact” on minorities are permitted.

The five justice majority established a new standard for determining when employers may toss facially-neutral promotional exams. Previously, employers had to justify job requirements having a “disparate impact” on minorities by showing the job requirement was “actually necessary.” Now, under Ricci, employers may not ignore the results of job requirements, such as promotional exams, unless the employer can demonstrate “a strong basis in evidence” that it would have been liable for disparate-impact discrimination if it didn’t act.

Admitted: Florida, Kansas, New Mexico (inactive)