Refusing to Give Employees a Reason at the Time of Termination May Increase Litigation Costs.

Although Florida employers have no obligation to give a reason or cause for terminating their “at will” employees, their failure to give a reason at the time of termination may increase litigation costs. In Mock v. Bell Helicopter Textron, Inc., the Eleventh Circuit held that the employer’s refusal to give the employee a reason on the day of his firing was enough to preclude dismissal and require a jury trial. The court reasoned that a jury could reasonably find that the employer’s evidence of unsatisfactory job performance (including a post-termination letter stating that reason) was not the real reason for the discharge based on the employer’s refusal to give that reason at the time.

Courts Generally Enforce Agreements to Arbitrate Employment Disputes But Not Poorly Drafted Ones.

Employers are increasingly requesting employees to arbitrate all employment disputes as a condition of employment or continued employment. Courts generally enforce such agreements pursuant to the liberal federal policy (under the Federal Arbitration Act) favoring arbitration agreements. In Walthour v. Chipio Windshield Repair LLC. (March 21, 2014), the Eleventh Circuit U.S. Court of Appeals joined other federal courts in holding that employees may even enter into arbitration agreements that waive their right to bring collective actions under the FLSA (federal wage and hour law). However, courts refuse to enforce poorly drafted arbitration clauses where, for example, employees are asked to waive rights without adequate consideration, where an employer retains a unilateral right to modify the agreement without notice and where the agreement purports to restrict some non-waivable substantive right. In Hernandez v. Colonial Grocers, Inc. (October 25, 2013), Florida’s Second District Court of Appeals refused to enforce an arbitration agreement where the arbitration clause was drafted to require the losing party to pay for all attorneys’ fees. The Hernandez court reasoned that the arbitration clause infringed upon the employee’s substantive right (under the FLSA) not to be exposed to paying the employer’s attorney’s fees.

Religious Discrimination Claims on the Rise.

Religious discrimination charges filed with the EEOC are on the rise. Title VII prohibits harassment and discrimination because of one’s religion as well as retaliation against an employee who complains of such misconduct. To minimize the risk of costly litigation, employers should 1. Revise employee handbooks to prohibit religious harassment and discrimination in the same manner as policies and procedures covering sex, race and other unlawful discrimination; 2. Make sure H/R managers are trained to handle complaints of religious harassment or discrimination and to fairly consider requests for reasonable accommodation of religious observances; and 3. Avoid rigid enforcement of workplace dress or appearance requirements merely based on the preferences of customers without due consideration of the EEOC Compliance Manual.

How One Word Can Change Everything: Forum Selection in Non-competition Agreements.

A forum selection clause within a contract allows parties to agree that any litigation resulting from a conflict within a contract will be conducted in a specific forum. In some circumstances, an employee and his or her new employer, a non-signatory, may be bound to the terms within a binding non-competition agreement with a prior employer that contains an exclusive forum selection clause, based on the mandatory or permissive language used regarding such exclusivity as exemplified in cases East Coast Karate Studios, Inc. v. Lifestyle Martial Arts, LLC and A-Ryan Staffing Solutions, Inc. v. Ace Staffing Management Unlimited, Inc. Moreover, as illustrated in Deloitte & Touche v. Gencor Industries, Inc., non-signatories may also be bound by an employee’s former agreement. Attorneys for clients who require forum selection clauses in contracts should 1) draft clauses carefully to increase certainty in selection of both forum and governing law; and 2) ensure that forum selection and choice of law provisions implement the client’s forum expectations as to exclusivity and as to entire range of interactions and possible claims between parties, not just specifics of contractual agreement. Additionally, it is imperative to question potential employees as to whether they have signed any such agreement with a previous employer. If so, it is necessary to review the agreement and determine its validity and scope, applying many of the principles in the aforementioned cases.

Firing After Filing: Illegal Retaliation under Florida Law?

In the last couple of years, cases where an employee is fired after getting injured on the job and subsequently filing a Workers’ Compensation Claim are becoming more prevalent. However, under Section 440.205 of the Florida Statutes (which specifies that following a work-related injury, a covered employee may file a claim under the Florida Workers’ Compensation Law and receive medical and supplemental payments while unable to work), this may constitute illegal retaliation. In order to state a claim for retaliation, the employee must prove that 1) he or she engaged in a statutorily protected activity; 2) an adverse employment action occurred; and 3) the adverse action was causally related to the employee’s protected activity, elements addressed in the case of Ortega v. Engineering Technology Services, Inc. However, this is only applicable when an employee has been discharged because he or she filed a Workers’ Compensation claim and is not relevant when an employee has been discharged for other legitimate business reasons, such as unsatisfactory job performance or excessive absenteeism.