Worker Rights and Remedies

The Rehabilitation Act protects most federal employees from discrimination because of a disability, just as the Americans With Disabilities Act protects those who work in the private sector.   The Rehabilitation Act requires federal agencies to provide reasonable accommodation to applicants and employees who have a disability but who are otherwise qualified for the position sought or held by them.  As amended, the Act now expressly incorporates the standards of the Americans with Disabilities Act.  For all practical purposes the essential requirements of these two statutes are identical.  The U.S. Congress hastily created the Transportation Security Administration (TSA) in response to the terrorist attacks of 9/11/2001.  TSA has always contended that the Rehabilitation Act does not apply to its security screeners - the officers who screen passengers and their luggage for weapons and explosives at airports throughout the U.S. The Aviation and Transportation ...

The Rehabilitation Act of 1973, 29 U.S.C. §701 et seq., protects a federal worker from discrimination because he or she has a disability.  The Act requires agencies to provide reasonable accommodation to an individual's physical or mental disabilities unless the agency can prove that the requested accommodation will create an undue hardship.  In this regard the Act incorporates the protections afforded under the Americans with Disabilities Act, as amended, which includes more recent and more detailed requirements.  Accommodation may involve the removal of physical barriers.  It may also include job restructuring and part-time or modified work schedules.  Thus, a flexible work schedule may qualify as a reasonable accommodation. Both laws expressly prohibit employers from taking retaliatory actions against employees who oppose acts or practices which are made unlawful, for making charges and/or for participating in related investigations or proceedings. ...

Section 11(c) of the Occupational Safety and Health Act protects employees from reprisals for exercising their rights under the Act, including their right to complain about unsafe or unhealthy working conditions. It provides in general that no person shall discharge or in any manner discriminate against any employee because the employee has: (a) Filed any complaint under or related to the Act; (b) Instituted or caused to be instituted any proceeding under or related to the Act; (c) Testified or is about to testify in any proceeding under the Act or related to the Act; or (d) Exercised on his own behalf or on behalf of others any right afforded by the Act. An employee who believes that he has been discriminated against in violation of section 11(c) of the Act may, within 30 days after such violation occurs, lodge a complaint with the Secretary of Labor alleging such violation. The Secretary shall then cause appropriate investigation to be made. If, as a result of such investi...

The U.S. Court of Appeals for the Eleventh Circuit vacated a district court’s order granting summary judgment to the employer in a case alleging age and race discrimination, Kilgore v. Trussville Development, LLC dab Hilton Garden, Inc., 2016 U.S.app. LEXIS 5464; 646 Fed. Apps. 765 (11th Cir. 2016).  The text of the decision can be found at https://www.courtlistener.com/opinion/3188580/valarie-kay-kilgore-v-trussville-development-llc/ Ms. Kilgore presented circumstantial evidence which supported an inference that the employer’s claim that she was fired for being rude to guests was a pretext.  She presented evidence that she was replaced by two newly hired employees who were younger and African-American - Ms. Kilgore was a Caucasian woman in her sixties.  In addition, her superiors had made derogatory statements about her age (that she was “a stubborn old woman” and “too old”) and also about her race (that she was “the wrong color.”  Such comments are circumsta...

On January 11, 2016, Administrative Law Judge Richard J. Ortiz-Valero entered a decision awarding disability insurance benefits and finding that due to her fibromyalgia the claimant was disabled under sections 216(i) and 223(d) of the Social Security Act.  The decision is significant in that fibromyalgia is not a "listed" impairment under the Social Security Administration's regulations. These regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1, list many of the most readily diagnosed medical conditions and their symptoms which can reach a severity which is considered disabling.  In the usual case, in order to award benefits the Social Security Administration must determine that the claimant's impairment is of a severity to meet or medically equal the criteria of a "listed" impairment. This claimant's condition had been diagnosed by several physicians as fibromyalgia ("FM").  FM affects the muscles and soft tissues.  Symptoms include chr...

Under Florida law an employee who is discharged will qualify for unemployment benefits unless the discharge was because of the employee's "willful misconduct."  The definition of misconduct was substantially broadened by the Florida legislature in 2014, see §443.036(29), Florida Statutes.  Nonetheless the burden remains on the employer to show it fired the employee because of a "deliberate violation or disregard of the reasonable standards of behavior which the employer expects." In a recent the claimant had a panic attack at work.  She testified that she temporarily blacked out and could not recall her actions.  Co-workers later told her about her erratic behavior during the panic attack, for which the employer sent her home and, two weeks later, fired the claimant. The Florida Reemployment Assistance Program initially found that the claimant was disqualified from receiving unemployment compensation because of her misconduct.  She appealed this determinati...

Title VII cases often are resolved without a trial.  Whether the District Court properly entered summary judgment for the employer is the subject of many Eleventh Circuit appeals.  A significant decision, Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) held that a triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents "a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decision maker."  And it is well-settled that if a plaintiff presents a prima facie case together with evidence tending to discredit the employer's proffered reasons for the alleged discriminatory action the trier of fact may reasonably conclude that the employer intentionally discriminated.  See Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) in which the U.S. Supreme Court so held, stating specifically that no additional evidence of discrimination is needed to...

The U.S. Court of Appeals for the Eleventh Circuit upheld a trial court’s judgment against a prospective employee who claimed he was not hired because he had previously filed for bankruptcy. Eric Myers v. Toojay’s Management Corporation (Case No. 10-10774, May 17, 2011).  The employee appealed from a decision of the  U.S. District Court for the Middle District of Florida which held that Toojay’s did not violate a section of the Bankruptcy Code which prohibits employers from taking certain actions against people who are or have been in bankruptcy. The first subsection of the provision, 11 U.S.C. §525(a) applies to government employers. It says that they may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a person on that ground. The second subsection, which applies to private employers, says they may not “terminate the employment of, or discriminate with respect to employment against” an individual on that ground, 11 U...

Discrimination based on pregnancy constitutes prohibited sex discrimination under the Florida Civil Rights Act ("FCRA") just as it does under federal law. In Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA, 2008)a firefighter/paramedic sued her employer under FCRA claiming the City of Lake Worth would only accommodate her request for light duty assignments while pregnant by giving her light duty work outside the fire department. The City accommodated other employees with physical restrictions with light duty within the fire department. The trial court held that FCRA does not prohibit discrimination based on pregnancy. The Court of Appeal noted that the federal law, Title VII of the Civil Rights Act of 1964 was amended in 1978 to define sex discrimination to include discrimination based on pregnancy. Although the Florida law was not so amended, the U.S. Congress had declared that its intent in enacting the original act in 1964 was to prohibit discrimination ...

The FMLA protects an eligible employee from employer "interference" with her rights and also prohibits any retaliation for exercising or attempting to exercise them.  The Eleventh Circuit re-emphasized the difference in proof in a case brought by an employee of the Broward Sheriff's Office who was fired for alleged "performance deficiencies" a few days after she requested FMLA leave: “To prove FMLA interference, an employee must demonstrate that he was denied a benefit to which he was entitled under the FMLA.” Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir. 2008). “[T]he employer’s motives are irrelevant.” Id. at 1267 (quoting Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001)). In such a case, the employer is entitled to prove, as an affirmative defense, that the personnel action was based upon other reasons wholly unrelated to the FMLA. Here, the jury expressly rejected the employer's prof...

With only a minor change to one footnote in its original opinion, the Eleventh Circuit reaffirmed its earlier decision that airport shuttle drivers were exempt from the overtime requirements of the Fair Labor Standards Act.  The so-called Motor Carrier Exemption applies when the employee's hours are subject to regulation by the Secretary of Transportation, whether or not they are actually regulated.  The Court held that airport shuttle drivers who transported passengers between the airport (or ship terminal) and their hotel as part of a pre-booked and pre-paid interstate trip fell within this exemption.  Even though they never actually travelled out-of-state the drivers were engaged in transporting passengers in interstate commerce; accordingly the Secretary of Transportation had the statutory power to regulate their work hours.  They were therefore within scope of the Motor Carrier Exemption and were not entitled to receive overtime compensation. Read the decisio...

A recent decision of the Eleventh Circuit Court of Appeals holds that the overtime provisions of the federal Fair Labor Standards Act did not apply to shuttle drivers who transported passengers to and from South Florida airports.  Passengers carried by Southern Shuttle Services, Inc. typically are connecting with interstate or international flights; often they book transportation to and from the airport as part of a travel package. While the shuttle trip involves only local travel the Court held that under these circumstances it is in reality a part of the passenger's continuous interstate journey.  The drivers' duties therefore directly affect "the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce." This makes them exempt from the overtime provisions under the so-called "motor carrier exemption."  Read the decision here . For legal assistance on this and overtime ...

United States District Judge William P. Dimitrouleas entered an order in an overtime case under the Fair Labor Standards Act awarding an employee plaintiff additional attorney's fees incurred in collecting his back pay settlement.   The order clarifies the law in the Southern District of Florida regarding whether additional post-settlement collection fees are appropriate in the situation where an employer has failed to comply in full with payment obligations under a mediated settlement . Download the Court's order here. Legal advice and assistance in recovering unpaid overtime compensation at mccoyesquire.com

OSHA is beefing up its whistleblower protection program. OSHA Assistant Secretary acknowledged that protection from retaliation is essential to effective enforcement. More about what is covered and who to contact at http://www.whistleblowers.gov/ Dr. David Michaels, new OSHA head appointed by President Obama stressed that leadership at the United States Department of Labor “profoundly understands the cornerstone position that whistleblower protections have in the foundation of a strong worker protection program.” Legal advice and assistance at mccoyesquire.com

The United States Department of Labor and OSHA enforce the whistleblower provisions of the Occupational Safety and Health Act, along with some 18 other laws which protect employee who report violations in industries such as commercial motor carriers, airlines, nuclear power and health care.  New procedures for handling whistleblower complaints were published for public comment and will be finalized after November 1.  Among other things, the new regulations will allow filing of complaints by phone as well as in writing, and in languages other than English.  You can view the new regs at http://www.osha.gov Legal advice and assistance at mccoyesquire.com