In this issue:
THE LABYRINTH THAT IS EMPLOYMENT REFERENCES
By Jennifer Fowler-Hermes, KUNKEL MILLER & HAMENT
Employers and employees alike worry about job references. Employers are concerned about potential liability related to their responses to reference checks as well as the completeness of their own reference checks. Employees worry that former employers will cause damage to their reputation and make it difficult to obtain gainful employment. Employers want to protect themselves from liability to former employees, and employees want assurances that former employers will not interfere with their ability to seek, obtain or even maintain employment.
When employees receive references from former employers that negatively impact their ability to obtain employment, they often turn to the courts, seeking damages from their former employers through the use of common law tort claims such as defamation, intentional infliction of emotional distress and intentional interference with contract or advantageous business relationships. The common law provides employers with a qualified privilege to discuss former employees with prospective employers without liability. See Linafelt v. Beverly Enterprises Florida, Inc., 745 So.2d 386 (Fla. 1st DCA 1999). In order to assert this common law privilege, employers must establish: 1) good faith; 2) an interest in the subject by the speaker or a subject in which the speaker has a duty to speak; 3) a corresponding interest or duty in the listener or reader; 4) a proper occasion; and 5) publication in a proper manner. See Thomas v. Tampa Bay Downs, Inc., 761 So.2d 401 (Fla. 2nd DCA 2000) (citing, Nodar v. Galbreath, 462 So.2d 803 (Fla. 1983)).
Even with this common law privilege, many employers still feared legal liability. These fears led to impractical reference polices that were unhelpful to both employees/former employees and their prospective employers. In order to provide for the free flow of information between prospective and former employers, allowing for more informed hiring decisions, in 1991 the Florida Legislature enacted Florida Statute § 768.095,
An employer who discloses information about a former employee's job performance to a prospective employer of the former employee upon request of the prospective employer or of the former employee is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the former employer was knowingly false or deliberately misleading, was rendered with malicious purpose, or violated any civil right of the former employee protected under chapter 760.
This statute codified the common law privilege as it relates to employment references, immunizing employers from liability for disclosing information concerning a former employee to a prospective employer unless the employee could establish by clear and convincing evidence that the employer did not act in good faith. However, the statute did not affect the flow of information between employers and prospective employers as the legislature had intended. The continued reluctance on the part of employers or former employers to disclose information was probably due in part to the continuing belief that saying anything negative could open the door to lawsuits, were even winning is expensive.
The legislature tried again, revising the statute in 1999:
An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.
The 1999 revisions clarified the employee's burden for overcoming
the qualified privilege provided for by the statute. This clarification did
not change the legal analysis when the privilege is asserted, although it
did strengthen the immunity provision by removing the "good faith"
language.
Since 1999, employers' concern over liability for negative references has
not waned. Generally, employers are still very much concerned about the possibility
of lawsuits by former employees and many are still very tight mouthed when
called for references. Some employers will give positive references, but will
not give detailed negative references. What is not commonly understood by
many employers, is that merely maintaining a policy of not providing detailed
negative references may not keep all lawsuits at bay. Glossing over an employee's/former
employee's problem areas may trigger a different risk for employers, liability
for not providing an accurate reference. For instance, in Ciarlone, et. al.
v. Allstate Insurance Co., The Circuit Court of the Thirteenth Judicial Circuit
in and for Hillsborough County, Florida, Case No. 94-04308, a prospective
employer was provided with a positive reference, a recommendation letter that
had been written by the former employer. This reference was provided even
though the employee had been terminated by his former employer when it discovered
that he was carrying a firearm in his briefcase. The prospective employer
hired the employee, not knowing about the employee's "true" employment
history. The employee then went on a shooting spree; killing three people
and severely injuring two others. The victims sued the former employer, as
it had knowingly provided false positive information to the prospective employee.
The victims prevailed.
In light of the foregoing, the best advice the labor and employment attorney
can give to employers is that if they provide anything beyond a neutral reference,
they should provide accurate references. And, in order to minimize possible
liability for providing such references, employers should establish and follow
a reference policy. Employers should inform all employees of the policy, thereby
letting their employees know what to expect long before employees even consider
leaving their employment. The best reference policies should:
Require the person with authority to provide references to document all the questions asked by a prospective employer, as well as all the information that was provided in response to those questions.
Moreover, former employers should not seek out prospective employers or current employers of their former employees and provide unsolicited information. Neither the qualified privilege that has been provided to employers by the legislature nor the privilege provided by the common law extend to former employers who offer up information to others based on their own feeling that the information should be provided. Disseminating such information, particularly information that does not relate to the employee's past performance, may cause negative repercussions for the former employee. If this occurs, it is likely that the employee will seek legal intervention. Under such circumstances, the employer may have difficulty defending the former employee's claim that it acted with malicious intent: Why else would a former employer initiate the exchange of information? In addition, employers may find that they are statutory liable for disseminating unsolicited information.
Under the right circumstances, unsolicited negative information provided by former employers to prospective employers or current employers of a former employee may subject the former employer to liability pursuant to Florida Statute section 448.045, Wrongful combinations Against Workers. This statute, which is not often utilized, provides:
If two or more persons shall agree, conspire, combine or confederate together for the purpose of preventing any person from procuring work in any firm or corporation, or to cause the discharge of any person from work in such firm or corporation; or if any person shall verbally by written or printed communication, threaten any injury to life, property or business of any person for the purpose of procuring the discharge or any worker in any firm or corporation, or to prevent any person from procuring work in any such firm or corporation, such persons so combining shall be deemed guilty of a misdemeanor of the first degree.
It is easy to see where a former employer who provides unsolicited information that has a negative impact on a former employee's ability to obtain or maintain employment may find itself liable under this statute.
As discussed above, although the legislature has made it more difficult for former employees to seek damages from their former employers for negative references, employers are still not absolutely immune from liability. As a consequence, employers should still be concerned about providing references and should develop policies regulating the dissemination of information about former employees. Moreover, such policies should prohibit the unsolicited dissemination of information about a former employee.
FOOTNOTES
i. An employer's pre-employment screening process may shield the employer from liability for negligent hiring if it includes the five requirements set forth in § 768.096, Florida Statutes:
1. a criminal background check;
2. a reference check, where a reasonable effort is made to contact references and former employers concerning the suitability of the prospective employee for employment;
3. completion of a job application that includes questions concerning prior criminal convictions;
4. a driver's license check, if such check is relevant to work the employee will be performing and if the record and be reasonably obtained; and
5. an interview.
ii. An intentional, reckless or negligent publication of a false and defamatory statement to a third party. See Anthony Distributors, Inc., v. Miller Brewing Co., 941 F.Supp. 1567 (M.D. Fla. 1996). In order to prevail in a defamation lawsuit, the employee/former employee must be able to prove special damages, such as the loss of something having economic or pecuniary value, resulting from the alleged statements or that the statements were defamatory per se. Id at 1577. Generally, courts have found that false statements published to third parties accusing an employee or former employee of misconduct would have the tendency to injure an employee in her business or occupation.
iii. A plaintiff must prove the following: 1) a deliberate or reckless infliction of mental suffering by the defendant; 2) the defendant's conduct was outrageous, goes beyond all bounds of decency - regarded as atrocious and otherwise intolerable in a civilized society; 3) that the defendant's outrageous conduct caused the plaintiff's suffering; and 4) the suffering must have been severe. See Pucci v. US AIR, 940 F.Supp. 305 (M.D. Fla. 1996).
iv. In order to establish a claim for tortious interference with contract, a former employee must show: 1) the existence of a contract; 2) the former employer's knowledge of that contract; 3) the former employer's intentional interference with that contract; and 4) damages resulting from the interference. See Gossard v. Aida Services, Inc., 723 So.2d 182 (Fla. 1998). Similarly, in order to establish a claim for tortious interference with advantageous business relationships, a former employee must establish: 1) the existence of a business relationship; 2) the former employer was aware of this relationship; 3) the former employer intentionally and unjustifiably interfered with the relationship; and 4) damages resulting from the interference. See Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla. 1985).
v. When employers chose not to provide employment references, they are at risk of having other employers to reciprocate.
vi. Florida is not the only state that is recognizing these claims. For instance in Randi v. Muroc Joint Unified School Dist., 929 P.2d 582 (Cal. Sup. Ct. 1997), an employer was held liable when a former employee, for whom it had provided an unqualified recommendation, sexually assaulted a student. The former employer had known of the employee's past sexual improprieties. However, in both Randi and Ciarlone, the former employer had provided an inaccurate reference. It is difficult to predict what a court would do in such a case, if the former employer provided either a neutral reference or no reference at all former employee.
vii. Name, rank and final salary.
CONTRACEPTION CONUNDRUM
Jennifer Fowler-Hermes
KUNKEL MILLER & HAMENT
Women of reproductive age pay 68% more then men on out of pocket health costs. Contraceptives and reproductive health care services account for much of this disparity. Since the creation of prescription contraceptives, and arguably even before then, the burden of preventing unwanted pregnancies has fallen on women. This burden is due, at least in part, to the fact that only women are biologically capable of becoming pregnant, prescription contraceptives for men do not exist and oral prescription contraceptives are the only class of FDA-approved prescription drugs that are routinely excluded from insurance coverage.
Traditionally, employer sponsored health care benefit programs have not provided for prescription contraceptives. Although women have griped about this lack of coverage for years, it did not become a prominent issue until recently when two women filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") in Seattle, Washington. In their charges, the women asserted that, by failing to cover the cost of prescription contraceptives, their employers had violated the Pregnancy Discrimination Act and the Civil Rights Act of 1964. The healthcare plan that both Charging Parties took issue with covered numerous medical treatments and services, including, but not limited to: vaccinations, pap smears, routine mammograms, vasectomies, tubal ligations, prenatal vitamins, drugs to lower or maintain blood pressure or cholesterol levels, anorectics and preventive dental care. However, the plan failed to provide for prescription contraceptives, including both oral contraceptives and injectible contraceptives.
The Respondents defended their healthcare plan by asserting that the exclusion of prescription contraceptives did not distinguish between men and women and therefore was a legal, gender neutral exclusion. The EEOC rejected Respondents' argument and on December 14, 2000, issued its determination finding that there was reasonable cause to believe that Respondents had engaged in unlawful employment practices violating Title VII, as amended by the PDA, by failing to offer insurance coverage for the cost of prescription contraceptive drugs and devices. The EEOC's analysis focused primarily on the PDA. It found that, based on Congress' failure to specifically exempt prescription contraceptives from protection under the PDA as it did abortion, the PDA covered prescriptive contraceptives. It then made a quantum leap, concluding that Congress' failure to provide such an exclusion was evidence of "Congress' clearly expressed legislative intent."
The EEOC's decision immediately met with disapproval. Critics pointed out that the EEOC's authority to address substantive employee benefit plan regulations was "dubious," and that the EEOC failed to consider comparability of benefits in its investigation and analysis. More specifically, critics pointed out that, under the plan that the EEOC found to be discriminatory, women were not denied any healthcare benefit that men received. However, with respect to the dubious nature of the EEOC's authority to review the benefit plan, the EEOC was required to address the charges filed by the Charging Parties, as a notice of right to sue is generally required in order to bring a legal action asserting violations of Title VII. And, although the EEOC may not be the best entity to address issues relating to substantive employee benefit plans, if the EEOC had refused to investigate or make a determination in this case, it would have impaired the Charging Parties' ability to bring lawsuits under Title VII, and inevitably would have subjected them to a successful motion for judgment based on their failure to meet with the administrative prerequisites for suit.
It was by choice that the EEOC failed to address comparability of benefits, as it recognized that only women have the physical ability bear children. If men cannot bear children, they have no physical need for prescription medications that prevent pregnancy. So, a denial of prescription contraceptives does not impact the likelihood that they will suffer from the physical condition called pregnancy. An employer's decision not to cover prescription contraceptives does not have any impact on their healthcare coverage.
The EEOC's determination spurred action in both the judicial and legislative branches of government. On January 22, 2001, Olympia J. Snow (R-ME), on behalf of herself and others, introduced the EPICC. The EPICC proposes amending the Employee Retirement Income Security Act of 1974 ("ERISA") and the Public Health Service Act to prohibit a group health plan, and a health insurance issuer providing group coverage, from:
Further, the EPICC proposes an amendment to the Public Health
Service Act, which would apply the foregoing prohibitions to coverage offered
in the individual market.
Next, Jennifer Erickson, one of the two women who filed the aforementioned
charges with the EEOC, filed suit in the United States District Court for
the Western District of Washington asserting that the her employer's, Bartell
Drug Company ("Bartell"), failure to provide health insurance
coverage for prescription contraceptives constituted illegal sex discrimination.
Both parties filed motions for summary judgment. In its motion, Bartell
asserted six reasons why its decision to exclude prescription contraceptive
drugs and devises was not a violation of Title VII:
The court responded to each of the employer's defenses and in doing so set forth the basis for its decision denying defendant's motion and granting the plaintiff's motion. First, the court found that although some distinctions could be drawn between prescription contraceptives and other types of drugs covered under Bartell's healthcare plan, none of those distinctions justified Bartell's exclusion. As with other preventive prescription drugs, some which Bartell's plan covers, contraceptives help prevent unwanted physical changes. For instance, the plan covers prescription drugs designed to prevent high blood pressure, a naturally occurring condition. And, although being pregnant is a "natural" state, so too are many of the conditions for which the plan provides coverage for preventive prescription medications. For example, weight gain is a natural occurrence, yet, Bartell's plan provides for coverage of anorectics. Further, pregnancy is not a natural condition that is desired by all women.
Second, the court found that, regardless of whether prescription contraceptives fall within the definition of a "pregnancy, childbirth, or related medical condition" as those terms are used in the PDA, the legislative history of the PDA supports an interpretation of Title VII that would not allow the exclusion of drugs made solely for women from a generally comprehensive prescription plan. After reviewing the legislative history of the PDA, the court determined that Congress "had no specific intent regarding coverage for prescription contraceptives. The court noted that Congress, in specifically overruling General Elec. Co. v. Gilbert, 429 U.S. 125 (1976), interpreted Title VII as requiring employers to, not only recognize that there are sex-based differences between men and women, but also to "provide women-only benefits or otherwise incur additional expenses on behalf of women in order to treat the sexes the same." The court determined that the true issue was not whether the PDA was intended to embrace prescription contraceptives but "whether the decision to exclude drugs made for women from a generally comprehensive prescription plan is sex based discrimination under Title VII, with or without the clarification provided by the PDA."
As for Bartell's ability to control costs, the court acknowledged that Bartell could "cut benefits, raise deductibles, or otherwise alter coverage options to comply with budgetary constraints," as long as its method of curbing costs did not discriminate. Similarly, the court rejected Bartell's argument that its exclusions were facially neutral, finding that the exclusion of prescription contraceptives "reduces the comprehensiveness of the coverage offered to female employees while leaving the coverage offered to male employees unchanged. The court spent substantial time considering the relative comprehensiveness of coverage. Through this analysis, the court found that the Bartell's prescription contraceptive exclusion solely impacts the comprehensive coverage offered to women, thereby penalizing female employees. It determined that Bartell's plan was not neutral, as the plan balanced Bartell's "benefit books at the expense of its female employees."
The court also rejected Bartell's argument that the thirty-seven (37) year absence of litigation relating to coverage for prescription contraceptives was relevant to its analysis, finding that this lack of litigation did not alter the fact that Erickson properly filed her lawsuit bringing the issue before the court and that it was "constitutionally required to rule on the issue before it."
Next, the court rejected Bartell's assertion that, because Congress was considering legislative enactments that would address prescription contraceptives, the court was precluded from making a determination. The court pointed out that its role is to interpret existing federal statutory law: "Contrary to defendant's suggestion, it is the role of the judiciary, not the legislature, to interpret existing laws and determine if they apply to a particular set of facts."
Ultimately, the court ruled that the exclusion of prescription contraceptives, which adversely impacts the comprehensiveness of healthcare coverage for women, was discriminatory and violated Title VII. The court directed Bartell to provide coverage for "contraception-related services, including the initial visit to the prescribing physician and any follow-up visits or outpatient services, to the same extent, and on the same terms, as it offers coverage for other outpatient services."
The Erickson court was the first to address the issue of whether the "selective exclusion of prescription contraceptives from [an employer's] generally comprehensive prescription plan constitutes discrimination on the basis of sex." As of the date this article was submitted for publication, the decision, that such exclusions do constitute discrimination is the only reported decision addressing the issue and it has not been appealed. However, both parties are still actively involved in the development of the law relating to health insurance coverage of prescription contraceptives.
On September 10, 2001, the Senate Committee on Health, Education, Labor and Pensions concluded its hearings on EPICC. Jennifer Erickson and a representative from Bartell Drug Company, along with representatives from the University of California in Los Angeles, Department of Obstetrics and Gynecology, American College of Obstetricians and Gynecologists, the U.S. Chamber of Commerce and the National Women's Law Center provided testimony regarding coverage of prescription contraceptives. Since September 19, 2001, no action has been taken on this bill.
It is likely at some point in the future, that the Erickson precedent or the EPICC, if it becomes law, will face a constitutional challenge on the basis that requiring religious employers to cover prescription contraceptives burdens the religious freedoms guaranteed by the United States Constitution. The Women's Contraception Equity Act, which like EPICC, requires employers providing insurance coverage for prescription medications to provide health care coverage for prescription contraceptives, was recently challenged by the Catholic Church. In Catholic Charities of Sacramento, Inc. v. Superior Court of Sacramento Cal., et. al, 2001 Cal. App. LEXIS 515 (Cal. Ct. App. July 2, 2001) the court denied the church's motion for a temporary injunction prohibiting enforcement of California's Women's Contraception Equity Act against religious organizations. If Catholic Charities is any indication of how a First Amendment challenge to either Erickson's precedent or EPPIC, it appears that such a challenge will be unsuccessful.
In the wake of the recent legal activity relating to employer coverage of prescription contraceptives, many health insurance providers and self-insured employers are already changing their health care plans to provide coverage for prescription contraceptives. These providers, weary of the possibility of "copy-cat" lawsuits, believe that the potential cost of covering these drugs outweighs the potential costs of litigating a discrimination lawsuit similar to Erickson. Regardless, defense lawyers are suggesting that self-insured employers and other health insurance providers start evaluating their prescription drug benefits to determine whether or not they are being offered in a manner that provides equal comprehensive coverage to both sexes. If any self-insured employers or other health insurance provider determines that women are adversely affected by its plan's exclusions, it should begin assessing what, if any, changes it would have to make to ensure comprehensive coverage.
FOOTNOTES
The National Labor Relations Board consists of five members appointed by the President. Its role is to administer the National Labor Relations Act (NLRA). Historically, the NLRA has regulated relations between employers and unions. Decisions of the NLRB can be appealed through the federal courts. Many important labor law principles have been established by the U.S. Supreme Court ruling on appeals from decisions of the National Labor Relations Board. One of the most famous such decisions established what has become known as "Weingarten rights." In the Weingarten case, the U.S. Supreme Court held that when an employee, in a unionized workplace, is called for questioning by management, and the employee reasonably believes that, depending on the answers he gives, he could be subjected to disciplinary action by the employer, the employee has the right to be accompanied by a representative.
Since 1988, it has been the position of the NLRB that this "Weingarten right" was limited to employers whose employees were unionized. However, in July 2000, in Epilepsy Foundation of Northeast Ohio, Inc., 331 NLRB No. 2, the NLRB did a dramatic about-face. It held that Weingarten rights are now also extended to private sector employees even if they are not represented by a union.
In that case, two employees engaged to conduct research into methods of enabling high school aged children with epilepsy to participate normally in high school were supervised by the individual above them in the chain of command. They wrote a letter to their supervisor advising him that they no longer required his supervision and letting him know that they would now work independently of him.
The supervisor took the letter to the CEO. The CEO and the supervisor called one employee to meet separately with them. The employee refused, on the grounds that in previous such meetings he had been disciplined. Accordingly, he wanted a representative present in the meeting before he would attend. He was told to go home for the weekend and to return on Monday. When on the following Monday he still refused to meet unless he could have a representative, he was terminated for insubordination. That occurred in 1995. At that time, according to the NLRB, employees who did not have a union were not entitled to Weingarten rights. It took five years for the case to proceed through the appellate stages of the National Labor Relations Board. When the Board issued its decision in July, it made its decision retroactive to 1995 and required the employer to reinstate the employee with back pay.
Some predict that the case will be of little significance because most employees in a non-union setting will be unaware of their Weingarten rights. Another factor that might diminish the issue, is the fact that when an employee asserts their Weingarten rights, the employer remains free to cancel the investigatory interview, and take disciplinary action based on information it has from sources other than the employee's answers. On the other hand, many observers believe that Weingarten rights will become a new staple in employment law litigation.
Clearly, this issue can complicate an employer's efforts to investigate wrongdoing such as sexual harassment in the workplace. Typically, the Weingarten issue will not be invoked in employee evaluations, as discipline does not normally result from an evaluation conference. No Weingarten rights arise when the employer is telling the employee what the discipline is, if no questions are asked. For now, the most important task is for employers to become aware of the circumstances in which the employees' Weingarten rights arise. Employers are not obligated to inform employees that the right exists. The employer is required only to allow another employee, readily available in the workplace, to be the representative.
Kunkel Miller & Hament is not just your ordinary run-of-the-mill Sarasota law firm.
The Sarasota firm is one of the top three in the country in labor law as it concerns professional employer organizations. It is also one of a handful of firms with a national practice presenting management in labor law matters and one of about 10 labor law firms in the state of Florida.
Even more remarkable, it is one of the very few independent labor law firms of any size located outside a major metropolitan area.
"When I opened my practice here in Sarasota in 1980, everybody told me I was going to starve to death, that there was no business for a labor lawyer here. But it developed slowly and steadily," says partner Dan Kunkel.
Now with seven lawyers, and one new associate to be added this year, the firm's caseload has "much more than doubled" since 1991. That is when the Civil Rights Act passed and amended Title VII, the basic anti-discrimination law, age discrimination guidelines, the Americans With Disabilities Act and the basic employment laws.
"It said now, number one, you can get a jury trial, which puts an employer at an automatic disadvantage. And in addition to getting reinstatement and attorney's fees, you can get compensatory damages and punitive damages," Kunkel says.
Once that happened, civil, or plaintiff's attorneys, found that employees make for a lucrative litigation market. "We've seen a lot of lawyers go into that market on the other side," Kunkel says. "It's been a tremendous increase in business for folks like us on the defense side." In 1991, the firm only had three lawyers; it now needs eight to handle the explosion in labor lawsuits being filed in its market area of Tampa to Miami.
The firm only represents employers and only acts as a defense. It never sues. For Kunkel Miller & Hament, which has offices in Tampa and Fort Myers, the new Civil Rights Act has meant the firm juggles, at any one time, about 25 lawsuits that are in court and a heavy caseload of 50 to 70 administrative cases such as those involving discrimination claims. Those cases have to go before an administrative hearing before going to court.
"For every case we see that (has merit), there are dozens more where there's absolutely no merit to the case," Kunkel says. "It is clear why the person was terminated. It had nothing to do with their gender, their age, their disability or anything else. But the cases get filed anyway."
This is what Kunkel calls the "litigation lottery." The plaintiff's attorney takes on the case for a contingent fee. Once the case is filed, three things can happen for the employee: They could win the case and be awarded a lot of money; they can settle the case, which is what happens in most cases, and the employee gets money; or they can lose the case and the employee breaks even.
The bottom line is that the employee does not lose. For the employer, however, even if it wins the case, it still loses because it cannot recover attorney's fees. There are provisions for an employer to be awarded attorney fees, but Kunkel says courts "rarely" make such an order.
Once an employer is sued, defensive costs begin with attorney's fees, which, in Kunkel Miller & Hament's case, range from $125 to $250 per hour, plus expenses. Even if the employer has won, it would not be unusual for the company to have racked up a legal bill of $100,000 or more.
Litigation is half of Kunkel Miller & Hament's practice. The other half is what Kunkel calls preventive labor relations - "Where we're working with an employer to try to help them to get in compliance and stay in compliance with all the various laws that regulate the workplace," he says.
Sometimes, that means the firm will write an employee handbook or set up the guidelines to implement a drug-testing program. For many clients, it is answering questions that are often complex, such as whether an employee can be terminated while on leave.
Discrimination lawsuits are the bulk of Kunkel's litigation caseload, so preventing discrimination dominates Kunkel's consulting efforts. The trend of the future, however, will be a wave of what are called "retaliation" lawsuits.
"Retaliation lawsuits encompass a wide variety of lawsuits," Kunkel says. "You could have retaliation claim where an employee says you should be paying overtime and are not. It turns out the employee is exempt and not entitled to overtime pay. Something comes up later on and you fire the employee; the employee can then say that was retaliation because he complained about overtime pay. It is not a defense. They were not due overtime pay. They still have a right to complain about it."
While retaliation lawsuits will be the "next big thing" in labor litigation, discrimination lawsuits will continue to make up the bulk of employee claims, Kunkel asserts.
Robust business activity and nationally recognized expertise has prompted Kunkel to begin looking at opening some new offices, namely in Orlando, Tallahassee and Miami, preferably via partnership with an already established lawyer or small firm. A new office could be set up this year depending upon the "opportunities."
Counted among Kunkel Miller & Hament's clients are Sarasota Bank, K-Mart Corporation, Manatee Memorial Hospital, Shannon Hotel Group and Pizza Hut, as well as several local school boards and non-profit organizations. Regardless of size or kind of clients, Kunkel advises that employers treat their employees fairly and to be upfront and honest with them. If an employee is terminated for incompetence, tell them so and do not glass it over to keep from hurting their feelings. Kunkel says misunderstanding leads an employee to believe they were fired for other reasons, such as discrimination, which leads to lawsuits.
"Also, employers have to treat the employment and legal issues about employees just as seriously as any other facet of their business. The potential for affecting their profit and loss is clearly there," Kunkel says.
One part of the 1999 tort reform legislation allows employers to obtain a presumption against negligent hiring, by adding questions to their employment application form and taking other steps. The employment application form can also serve many other important and useful functions, if properly designed. If not properly designed, it can be a source of damaging evidence if it includes certain forbidden or ill advised questions. Employers should be cautious about using forms designed for use in any state, such as those available in form books or on the Internet.
The Florida legislature, as part of the 1999 tort reform legislation, now affords some protection to employers whose employees commit intentional torts against third parties. Section 768.096 Florida Statutes (1999) is designed to encourage employers to conduct thorough background checks before hiring applicants. In return for meeting the background check requirements set forth in the statute, an employer will be presumed not to have been negligent in hiring an employee if the employee commits an intentional tort against a third party. The employer must request and obtain from the Florida Department of Law Enforcement a check of the information as reported in the Florida Crime Information Center system as of the date of the request. The employer must also make a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment. In addition, the employer must require the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action. We advise clients to also ask the applicant if they have ever pled nolo contendre to any crime. The federal Equal Employment Opportunity Commission has long held that inquiries into criminal convictions should include a notice that a conviction will not necessarily disqualify. Factors such as age at the time of the offense, the type of the offense, remoteness in time, and rehabilitation will be taken into account. The Florida Statute further provides that if the employee will be driving, the employer must also obtain, with written authorization from the prospective employee a check of the driver's license record of the prospective employee, if the record can be reasonably obtained. Finally, the employer must interview the prospective employee.
Asking the prospective employee whether they have "ever been a defendant in a civil action for intentional tort" will no doubt confuse some job applicants and perhaps a few lawyers. While the statute clearly requires that the quoted question be asked on the employment application, we recommend going a step further and adding examples of some most common intentional torts, such as assault, battery, and false imprisonment because many job applicants will have no idea what an intentional tort is.
The requirement for making reasonable effort to contact references and former employers concerning the suitability of the prospective employee for employment, recognizes the reality that few employers will give much information because they fear being sued for defamation. The making of the reasonable effort, and the information obtained, should be well documented.
The driver's license check is required only if driving is relevant to the work to be performed and only if the record can reasonably be obtained. Florida driving records are on line and can be obtained easily. Some employers check driving records even for jobs not involving driving, on the theory that a reckless or unsafe driver is likely to be an unsafe employee. The requirement for the interview is not explained. Would anybody hire someone without an interview? We see it all the time, especially in today's job market, but it is not a good idea.
Implementing these relatively easy steps can help avoid the hiring of a dangerous person. If the dangerous person is not screened out by these procedures, the employer can at least gain a measure of legal protection. It is not complete protection because the presumption of no negligence is rebuttable. However, there is also another value to this process. It encourages a review and revision of the entire employment application, and that nearly always yields other benefits to employers. For example, we still see applications with illegal questions concerning whether the applicant has any condition that would prevent them from performing the job they are seeking. This question, like any inquiry relating to mental or physical condition, violates the Americans with Disabilities Act if asked before a conditional offer of employment is made. Any question which could show that an applicant is a member of a group protected by law from employment discrimination, is an improper question which should be deleted. Only questions which are job-related should be asked. We therefore recommend the elimination of questions which gather useless information. A review of what the employer really needs in its employees can lead to modifications which gather better information. The application should also incorporate acknowledgments of things such as "at will" employment and releases for references from prior employers. A non-discrimination statement should be clearly stated, as well as a procedure for an applicant to follow if they think they have suffered discrimination. For disabled applicants, there should be a statement that reasonable accommodation will be provided upon request. It is useful in many situations to limit an application to an active period of, for example, six months. If this is done, the application should so state. It is estimated that about one-third of applicants falsify applications. A statement that any false information will disqualify the applicant, or will be grounds for termination if discovered later, should be included.
Revising the employment application can avoid some employment problems before they start and reinforce the employer's defenses against others.
The first and only general counsel that FAPEG has ever had is Michael (Mike) Miller, a partner in the law Firm of Kunkel, Miller & Hament in Tampa, Florida. Mike began his career specializing in labor and employment law in 1971. He has been labor counsel to the Florida Health Care Association, an organization of nursing homes since 1984. Then, in 1986, Michael entered the world of PEOs and became general counsel to FAPEO.
Responsible for writing most of Florida's laws governing employee leasing and PEOs, Mike is deeply involved with regulators and the Florida state legislature, explaining to them exactly what the PEO industry is and what it isn't. "In the current session of the Florida legislature, we've worked hard to come up with the appropriate tort- reform language that will insulate PEOs from lawsuits that don't really involve the actions of PEOs," he says. "Through the years, since 1986, we've been able to develop a wonderful relationship with all the Florida governors and with the legislatures. For example, in 1987, we were able to pass legislation that recognizes the PEO for unemployment purposes. In 1991, we were instrumental in passing legislation that licenses the PEO industry under the Florida Department of Business and Professional Regulation.
"Mike has been a true champion of the PEO cause for more than 14 years. He is a living example of a man who walks softly and carries a big stick," says Kirk A. Scoggins, president of the PEO group at Tampa, Florida-based TeamStaff, Inc. "His unique knowledge of the PEO industry has allowed him to guide us through many minefields; from early days in the '8Os when we faced the UI crisis, the workers compensation exclusive remedy statute, and the sales tax on services threat in Florida, Mike was the one behind the scenes and often on the front line fighting for our survival. These early successes paved the way for our industry to survive and grow. Mike was also at the helm when we drafted and passed the first real licensing statute in Florida in '92 and through numerous other challenges with various state and federal regulatory and legislative nightmares, and through our most recent successes with the changes to the tort reform laws in '99
"Mike has helped rescue our industry (sometimes almost single-handedly) time and time again," Kirk continues. "We have much to thank him for. Even in the face of tremendous personal tragedy and pain over the past few years, Mike has always worked tirelessly and unselfishly to protect and defend our industry. Mike is much too humble to ever talk of his many contributions to the industry but many of us who were with him through those years remember well what he accomplished. Whenever our company faces a significant issue or problem, Mike is always the first number I dial."
Mike is clearly not a one-state activist, though. "Florida's PEOs have been so well received by the state's governmental agencies-and this has been so beneficial to FAPEO members-that we're preparing to spend time and effort to see how we, in Florida, can assist PEOs in other states with their relationships with state agencies and regulators," he says, "so that more PEOs may advance to the point that we're at now in Florida.
He describes PEOs as in the midst of "introducing new and specialized services to these larger companies. Some of the most exciting of these," he says, "are in the area of human-resource services. I think you'll see more PEOs offering sophisticated mediation services and alternative dispute-resolution procedures."
The most pressing issue on Mike's calendar now "is to continue to assert convince regulators that PEOs are truly employers, and not in the business of selling insurance- and furthermore, that, as employers, we will not be intruding upon the duties that are mandated by law to be controlled by our client companies."
Mike obviously can light some well-meaning fires. He can also take his home state's heat: An avid tennis player, he plays regularly with a group of local physicians in Tampa, where he resides with his wife, Barbara. (They have two college aged children, Jeffrey and Amy.)
The rest of Mike's free time is often spent volunteering for the Marrow Foundation and the National Childhood Cancer Foundation, two charities that he strongly supports. And one can only imagine how devoted he is to these organizations, given his dedication to the PEO industry alone.
As an employment lawyer representing management, I have come to observe certain absolutes. Among them are these. First, workers comp is a separate discipline into which we never tread. Second, if a plaintiff wants to be in state court, we will spare no effort to remove the case to federal court. Third, when an employee is injured at work, his/her exclusive remedy is through workers comp and they cannot sue the employer for other damages. Two recent court cases have shaken the heretofore solid foundation on which these absolutes rest. First, a brief history.
Before the workers comp system existed, employees injured on the job were on their own. Their only hope of requiring their employer to pay the cost of medical care, lost wages and diminished future earnings was to sue the employer. This required proof that the employer had been negligent. It took months, if not years, and it put employers at risk of being sued every time an employee was injured.
Then came workers comp. A bargain was struck. Injured employees would get immediate medical attention and wage loss benefits. They did not have to wait and they did not have to prove employer negligence. The employers' side of the bargain was that in return for paying for workers comp insurance, they were granted immunity from liability for work related accidents, even if they were negligent. Even if they were extremely negligent.
This bargain has been the bedrock of the workers comp system, so much so that those of us who practice employment law have rarely had to even litigate the issue. When a plaintiff has tried to circumvent the employer's statutory immunity, the courts have been quick to dismiss the claim. Now, however, this stability may be at risk.
In Turner v. PCR, Inc., 2000 WL 232595 (Fla. 3-2-00) the Florida Supreme Court revisited the standard a plaintiff-employee must meet when suing an employer for work related injury. It is well established that employees are barred from suing employers for negligence. However, the workers comp statute has never prevented injured employees from suing for intentional injuries. It is just that the standard of proving that the injury was intentional was exceedingly high. In order for a plaintiff-employee to prove an intentional tort, the employer must be shown to have either "exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death." Id. at 4. Turner did not plead that PCR exhibited a deliberate intent to injure. Rather, she (Turner's widow) pleaded conduct which is substantially certain to result in injury or death. The affidavits of two expert witnesses were submitted by the plaintiffs to counter the defendant's motion for summary judgment. The First District Court of Appeal granted summary judgment to the defendant but certified the case as being of great public importance. The question certified to the Supreme Court was whether the experts' opinion affidavits were sufficient to create a disputed issue of material fact, so that summary judgment would be precluded. The Supreme Court accepted the case but declined to address the certified question.
Instead, it embarked on an analysis of what a plaintiff-employee must show when attempting to prove the commission of an intentional tort by an employer in order to avoid an otherwise valid workers compensation defense. Previous case law generally held that the plaintiff had to prove that the employer "knew or should have known" that the employer's conduct was substantially certain to result in injury or death. The Court abrogated (West Law uses this in place of "reversed") this case law. Instead the Court split the "knew" from the "should have known."
| In other words, we consider whether, ... an employee must establish that the employer actually knew (subjective standard) or rather the employer should have known (objective standard) that the conduct complained of was "substantially certain to result in injury or death." |
The Court then, applying the objective approach, concluded that the expert opinion affidavits along with other evidence, were sufficient to raise genuine issues of material fact as would preclude summary judgment.
The facts of the case, which were presented in the light most favorable to the plaintiff, as they must be when the defendant moves for summary judgment, were egregious and probably influenced the Court to create this new standard. However, the abrogation of several long-standing precedents will no doubt energize the plaintiff's bar to test the borders of the new doctrine relentlessly.
With the same quiet anticipation of a gallery1 watching Tiger Woods read the green2 and make a putt3 for yet another win, the world of golf and much of the legal community (often one and the same), have been waiting for the Supreme Court of the United States' (hereinafter, the "Supremes") decision in PGA Tour, Inc. v. Martin, 14 Fla. L. Weekly Fed. S 271, 2001 U.S. LEXIS 4115 (May 29, 2001). And, to no one's surprise, the Supremes' opinions have the gallery in a round robin4 of heated discussion that it would not dare undertake if it were standing by the 18th hole with Tiger Woods and Phil Mickelson tied at six under par5 and Mickelson finds the break6 but fails to sink the putt7. Even my husband, a non-attorney, non-golfer, came home the other day citing sections from Scalia's grasscutter8 dissent. "One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son's disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)" Id. at *72. I do digress, but then I am a hack9.
The person generating all of the controversy is Casey Martin, who both the majority and dissent agree is a talented golfer (that is about the only matter they agree on) who has Klippel-Trenaunay-Weber Syndrome. This degenerative circulatory disorder makes it nearly impossible for Martin to walk an 18-hole golf course, as it causes him great pain and greatly increases his risk of hemorrhaging and developing blood clots. Martin asked the PGA Tour, Inc. ("Tour") to provide him with an accommodation in the form of a golf cart in the third stage of the Tour's Q-School10 and golf tournaments. The Tour declined, so Martin grounded his club11 and took 'em to court, filing suit in the United States District Court for the District of Oregon, alleging that the Tour's refusal to accommodate him violated both Title I and Title III of the Americans With Disabilities Act ("ADA").
The ADA protects persons with disabilities against discrimination. Title I of the ADA specifically prohibits disability discrimination in employment and requires employers to provided the disabled with reasonable accommodations. Title III applies to public accommodations and prohibits discrimination by places of public accommodation. It ensures the disabled access to the goods and services offered by a public accommodation. Just as Title I, Title III requires the reasonable accommodation of the disabled. Not every person with an impairment is entitled to the protections of the ADA. Courts are required to look at each case on an individual basis to determine if the individual seeking the protection of the ADA has an impairment that substantially limits a major life activity.
The Tour, hoping its arguments would be an ace12, moved for Summary Judgment on all Martin's claims. The District Court granted summary judgment as to Martin's Title I claims, finding that he was an independent contractor, not an employee. Only employees are entitled to protection under the ADA. See Casey Martin v. PGA Tour, Ins., 984 F. Supp. 1320 (D.C. Or. 1998). The court did, however, allow Martin's Title III tee shot to find the green and go to trial. Title III provides:
| No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. |
| 42 U.S.C. § 12182(a). |
At trial, the issues before the court were: whether the Tour is a private club and therefore exempt from the provisions of Title III; whether the golf tournaments sponsored by the Tour are places of public accommodation; whether the walking requirement was a substantive rule of the Tour's competitions; whether waiving the walking rule for Martin would alter the nature of the competition; and, whether the analysis of the appropriateness of the requested accommodation should be made on an individualized basis. See Casey Martin v. PGA Tour, Inc., 944 F. Supp. 1242 (D.C. Oregon 1998).
The trial played out like the Senior Tour with a veritable whirlwind of green jackets13. Golfing greats Arnold Palmer, Jack Nicklaus and Ken Venturi took the stand, each testifying that physical fitness and fatigue are part of the game of golf. The Tour argued that it was a private club and not an entity covered by the ADA: the general public does not have a right to enter into its competitions as only the crème de la crème of golfers are allowed to participate, (hacks need not apply; I wonder if I can get my registration fee back?). And, in the alternative, if the court were to determine that the Tour is a commercial enterprise, Martin was not a customer or client seeking a good or service, but was a person rendering a service in furtherance of the commercial enterprise. See Id; 2001 U.S. LEXIS 4115, *18-19.
After all of the evidence was presented and arguments were heard, the presiding Magistrate Judge determined that the Tour is a commercial enterprise operating in the entertainment business and, as such, is required to comply with Title III. Further, the court rejected the Tour's assertion that, because Martin is talented enough to qualify for the competition, he should not be afforded the same protection that he would be entitled to if he did not qualify. Finally, the court, looking at Martin's request for accommodation on an individual basis, determined that he would not be afforded a competitive advantage if he were allowed to use a golf cart. Accordingly, the court entered a permanent injunction requiring the Tour to allow Martin to use a golf cart in all three stages of play during Q-School and during the tournaments.
The Tour appealed to the Ninth Circuit Court of Appeals, reasserting that the competition was not a pubic accommodation and that the use of golf carts would fundamentally alter the competition. The Ninth Circuit rejected the Tour's arguments and agreed with the trial court's determination that the use of a golf cart by Martin would not fundamentally alter the game. The Ninth Circuit also rejected the Tour's arguments that, while it's golf courses were normally places of public accommodation, this was not the case for competitors during one of its tournaments. As expected, especially from the Ninth Circuit, it affirmed the district court's decision.
The day after the Ninth Circuit's decision, the Seventh Circuit, considering a similar case, came to a contrary conclusion. See Olinger v. United States Golf Assoc., 205 F.3d 1001 (7th Cir. 2001)(the physical ordeals test the stamina of the players, such tests are fundamental to the game of golf). The Tour sought certiorari review and the Supremes granted review based on the conflict of authority. See PGA Tour, Inc. v. Casey Martin, 530 U.S. 1306 (2001).
Justices Stevens, O'Conner, Kennedy, Souter, Ginsburg, Breyer and Chief Justice Rehnquist of the Supremes agreed with both lower courts that the Tour qualified as a place of public accommodation and that Martin was a customer. See 2001 U.S. LEXIS 4115, *35. It opined that the Tour's assertion that Martin is not a client or customer of the Tour was "inconsistent with the literal text of the [ADA]." Id. at *35. The Supremes determined that the Tour's "refusal to consider Martin's personal circumstances in deciding whether to accommodate his disability runs counter to the clear language and purpose of the ADA." Id. at * 48-49.
The majority of the Supremes went on to discuss the history of the game of golf, going back to its origins in Scotland, finding "that shot-making has been the essence of golf since early in its history." Id. at * 43 n.39. The Court then determined that walking was not "an indispensable feature of tournament golf." Id. at *43-44. The Supremes stated that, even if the walking rule did have a purpose in the game of golf, that Martin's handicap, even with the use of a cart, caused him greater fatigue and physical pain than the other participants who were required to walk. Id. at * 51. The majority affirmed the Ninth Circuit's opinion finding that the ADA requires that the Tour provide Martin with his requested accommodation.
Justice Scalia14 cried "fore"15 and issued his 'knockdown shot'16 dissent. With a shotgun start17, Scalia grabbed his driver18 and teed off like a gorilla:19 "In my view, today's opinion exercises a benevolent compassion that the law does not place within our power to impose. The judgment distorts the text of Title III, the structure of the ADA, and common sense." Id. at * 53. Scalia questioned whether an independent contractor providing services to the Tour could also be a customer of the Tour. He went on to rain on the fairway of the majority's decision, the reasonableness of Martin's requested accommodation. Scalia opined that golf, as all athletic competitions, is a test of athletic prowess and that allowing an accommodation by challenging the rules of a competition would be to undermine what the competition was designed to test in the first place - athleticism. Id. at * 72-73.
The flagstick20 of Scalia's dissent was that the Supreme Court is not the appropriate body to serve as golf's ultimate observer:21
| It has been rendered the solemn duty of the [Supremes], laid upon it by Congress in pursuance of the Federal Government's power "to regulate Commerce with foreign nations, and among the several States," U.S. Const., Art, & 8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf. |
Id. at *68 (emphasis in the original). In spite of his groove,22 and his great shots23 at the majority's analysis, in the back nine24 Scalia choked,25 whiffed26 a shot, hooked27 the next one into the rough,28 found water on 17, dropped29 a fried egg30 on 18, then hit a brick31 before finishing three shots back with the Supremes. However, only time will tell whether the gallery will see this case as did the majority, as dictated by the law; or, as the dissent, an "Alison in Wonderland"-"Animal Farm" determination that is unjustified by the law and merely an act of benevolent compassion by the majority. Id. at *76.
Endnotes:
1 Spectators at a tournament or match. See Gulf Europe, Dictionary of Golf Terms, http://golfeurope.com/almanac/golf_terms (all the following definitions are pulled from this source).
2The act of determining the preferred path the ball must take in order to go into the hole.
3A type of golf shot.
4A tournament in which everyone gets to play everyone else.
5The number of shots it should take to complete a hole or a round or the standard score for a hole.
6A path a putt must follow over a contour in the green in order to go in the hole.
7To hit the ball in the hole.
8A shot which travels low and fast just skimming the grass.
9A poor golfer.
10The process of qualifying for PGA membership.
11To place the club on the ground prior to striking the ball when addressing it.
12A hole in one.
13The mantle of honor given to the winner of the US Masters.
14Joined by Justice Thomas, who one of my law professors at the University of Florida used to refer to as Scalia's "twin." Actually, my professor used to say "Rehnquist and the twins" (obviously referring to Scalia and Thomas as the twins). However, in an unusual turn of events, in this case the twins disagreed with Rehnquist.
15To cry 'Fore' is to warn other players that your ball may hit them.
16A shot played low in the wind.
17Tournament in which the field start from different holes at the same time rather than queuing up at the first tee.
18A 1-Wood club normally used for the Tee shot.
19Someone who hits his/her tee shot a long way.
20The pole in the center of the green with a flag attached.
21One who ensures that a golf match or round is played in accordance with the Rules of Golf.
22The description given to a good repeated swing..
23Attempts to hit the ball.
24The last nine boles of an 18-hole course.
25When a golfer looses his nerve and therefore plays an important or hard shot badly.
26When a golfer missed the ball during a swing.
27When a golfer induced topspin onto the ball causing it to move from outside to in on your swing.
28The high grass area adjacent to the fairway and green.
29When the ball is brought back into play after striking the last shot our of bounds or into a water hazard etc. The ball is released from an outstretched arm held at shoulder height.
30When a ball remains in it own pitch mark when landing in a bunker.
31To strike the ball on the green such that it does not roll past the cup.
In the June 2000 edition of the Checkoff (Vol. XXX, No. 4), Michael P. Spellman reported in the article Florida Supreme Court Grants Review of Harassment Suit Based on Negligence that the Florida Supreme Court agreed to review City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3rd DCA 1999), cert. granted, 767 So.2d 456 (Fla. 2000). In the year following Spellman's report, the Florida Supreme Court not only heard oral argument on this case, but also issued its determination.
Guerra, a former employee of the Miami Beach Police department, filed suit in the Circuit Court for the Eleventh Judicial Circuit in and for Dade County, Florida, claiming that she was the target of unwanted sexual harassment in the form of unwanted touching, sexual innuendo and other acts creating a hostile work environment. See City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3rd DCA 1999). Guerra failed to file a charge of discrimination with either the Equal Employment Opportunity Commission or the Florida Commission on Human Relations and thus was precluded from pursuing claims under either Title VII or the Florida Civil Rights Act. See Spellman, supra1. Her one-count amended Complaint alleged that the City of Miami Beach was negligent in allowing her to be subjected to sexual harassment. See Guerra, 746 So.2d at 1159.
The City moved for summary judgment on the grounds that Florida law does not recognize a negligence action based on sexual harassment. See Id. The Circuit Court denied the motion and allowed Guerra to try her case before a jury. See Id. The jury found that Guerra had been subjected to a hostile work environment and awarded her $275,000 (minus 25 percent for her own negligence). Id; and See Spellman, supra. The City's motions for a New Trial and for Judgment Notwithstanding the Verdict were both denied. Guerra, 746 So.2d at 1159.
The City appealed to the Third District Court of Appeal, asserting that the Circuit Court erred when it denied the City's motion for summary judgment. See Id. In defending the Circuit Court's decision, Guerra asserted that the Supreme Court's decision in Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla. 1989), "permits a cause of action for common law negligence for sexual harassment." Id. at 1159.
In Byrd, a group of female employees brought a lawsuit against their employer for assault and battery, intentional infliction of emotional distress, and negligent hiring and retention2 of employees based on incidents where they were subjected to repeated unwanted touching and sexual advances by male co-workers. See Byrd, 552 So.2d at 1100. The trial court dismissed the plaintiffs' claims on the grounds that the workers' compensation statute provided the exclusive remedy for the plaintiffs. See Id. On appeal, the Second District Court of Appeal for Florida affirmed. See Id. The Florida Supreme Court quashed the lower courts' rulings finding that, "the clear public policy emanating from federal and Florida law holds that an employer is charged with maintaining a workplace free from sexual harassment. Applying the exclusivity rule of workers' compensation to preclude any and all tort liability effectively would abrogate this policy…." Id. at 1103-04.
In Guerra, the Third District Court of Appeal, citing the City's principle case Vernon v. Medical Management Association of Margate, Inc., 912 F.Supp. 1549 (S.D. Fla. 1996), rejected Guerra's position and reversed the circuit court: "Florida does not recognize a cause of action for sexual harassment under a common law negligence theory." Guerra, 746 So.2d at 1160,
In Vernon, the plaintiff alleged that she was sexually harassed by a male employee, who had touched, squeezed, hugged, and tickled her in addition to making lewd remarks. 912 F.Supp. at 1153. The plaintiff alleged that she reported this harassment to her supervisor and that her supervisor responded, "deal with it yourself." See Id. When her situation did not improve, the plaintiff resigned and brought a multi-count complaint, which included claims for sexual harassment, hostile work environment, false imprisonment and negligent retention. See Id.
Vernon's negligent retention claim was premised on Vernon's allegations that she had been subjected to sexual harassment. See Id. at 1553. Specifically, Vernon claimed that her supervisors failed to use reasonable care in responding to her complaints of unwanted sexual advances by a male co-worker. Id. The plaintiff cited Byrd as supporting her claimto recover against her supervisor and employer based on a theory of negligence. See Id. At 1549. The United States District Court for the Southern District of Florida, rejected this contention, finding that the Byrd decision was limited to the proposition that employers who allow their employees to commit intentional torts on their co-workers can not escape liability by hiding behind the workers' compensation exclusion rule. See Id. at 1549. The court also rejected plaintiff's contention that, in Byrd, the Florida Supreme Court intended to provide for a new common law tort based on harassment. See Id3.
Guerra sought certiorari review of the Third District's decision. On May 24, 2000, the Florida Supreme Court granted Guerra's petition for certiorari based on the conflict of authority between Guerra and Byrd. See Guerra v. City of Miami Beach, 767 So.2d 456 (Fla. 2000). This case was of great interest for employment law practitioners, as a decision in favor of Guerra would have been a significant change to employment law. Specifically, if Guerra prevailed on her appeal, employees claiming that they were subjected to harassment would have a new avenue by which to obtain monetary damages from employers, an avenue circumventing the administrative requirements of Title VII and the Florida Civil Rights Act.
In November 2000, at about the same time that the Court was hearing Florida's election cases, the Florida Supreme Court heard oral argument on this case. Counsel for both parties thought their arguments went well, but neither was able to get a sense of the Court's position with respect to the issues. And, although many of the Court's questions to counsel focused on whether Guerra expressly conflicted with Byrd, neither side predicted, what the Court actually did.
On March 28, 2001, the Court issued the following dismissal:
| We initially accepted review of the decision of the district court of appeal in City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3rd DCA 1999), based on express and direct conflict with the decision in Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla. 1989). Upon further consideration, we find that review was improvidently granted. Accordingly, this review proceeding is dismissed. |
26 Fla. L.W. S. 195, 2001 Fla. LEXIS 620.
Petitioner's counsel, Donna M. Ballman, Esquire4 is of the opinion that the Court's "inaction" leaves the issue unresolved. She believes that resolution will come only after another plaintiff questions whether Byrd opened the door for plaintiffs to seek recovery for sexual harassment through a cause of action for negligence -- taking his/her case all the way to Florida's Supreme Court.
Donald Papy, Esquire, counsel for City of Miami, takes the position that in dismissing the review proceedings, the Court, after further consideration of the applicable cases, determined that the Third District's opinion in Guerra did not conflict with Byrd, as Byrd did not allow for a common law negligence cause of action for sexual harassment. According to Mr. Papy, the Court's dismissal was a "Graceful way to put an end to it."
Regardless of whose interpretation of the Supreme Court's dismissal is correct, the Circuit Court's decision in Guerra stands in the Third Circuit and serves as persuasive precedent in all other Florida courts.
Endnotes:
1Counsel for both the City of Miami and Guerra were interviewed in preparing this article. Many of the specifics of the case not referenced in a published decision were obtained as a result of these interviews.
2In order to prevail on a claim of negligent hiring, supervision and/or retention, a plaintiff must base his/her claim on a recognized independent tort. Negligent supervision under Florida Law requires a plaintiff to show: (a)the employee is engaging in or shows a propensity to engage in conduct that is in its nature dangerous to members of the general public; (b) the employer has notice that the employee is acting or in all probability will act in a manner dangerous to other persons; (c) the employer has the ability to control the employee such as to substantially reduce the probability of harm to other persons, and (d) the other person must in fact have been injured by an act [recognized independent tort] of the employee which could have reasonably been anticipated by the employer and which by exercising due diligence and authority over the employee the employer might reasonably have prevented.
McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198, 201 (Fla. 4th DCA 1970). Claims for negligent retention and negligent hiring also allow "for recovery against an employer for acts of an employee committed outside the scope and course of employment." See Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986).
3Generally, courts agree that under Florida Law there are no common law causes of action, and therefore no recognized independent torts, for wrongful discharge, employment harassment or discrimination. See Seattle v. Sears, Roebuck and Co., 59 FEP cases (BNA) 275 (M.D. Fla. 1992), aff'd, 990 F. 2d 1267 (11th Cir. 1993) (There is no authority under Florida law to support a claim for wrongful discharge); Zombori v. Digital Equipment Corp., 878 F.Supp. 207 (N.D. Fla. 1995), aff'd, 103 F.3d 147 (11th Cir. 1996) (Florida common law does not provide for tort claims of retaliatory discharge.); Weld v Southeastern Companies, Inc., 10 F.Supp. 2d 1318, (M.D. Fla 1998)(there is no common law claim for wrongful termination based on national origin discrimination);Monteverde v. Baby Superstore, 10 IER Cases (BNA) 1631(N.D. Fla. 1995) (Florida common law does not recognize a common law tort of sexual harassment); Maiorella v. Golf Academy of the South, 62 FEP cases 1519 (M.D. Fla. 1993); Wiggins v. Southern Management Corp., 629 So.2d 1022 (Fla. 4th DCA 1993) (Florida law does not recognize a common law claim for retaliatory discharge); Fowler v. Taco Viva, 646 F.Supp. 152, 158 (S.D. Fla. 1986) (Florida Law does not recognize a common law cause of action for sexual harassment or sexual discrimination); Hartley v. Ocean Reef Club, Inc., 476 So.2d 1327 (Fla. 3rd DCA 1985) (Florida Law does not recognize a common law claim for wrongful discharge).
4Ms. Ballman assumed responsibility for this case after Guerra's
amended Complaint was filed in the Circuit Court.