Courts Split on Employees’ Proof of Violation of Florida’s Private-Sector Whistleblower Law

Florida appellate court has held that Florida’s private-sector Whistleblower’s Act (Florida Statute Section 448.102) (“FWA”), which prohibits private-sector employers from retaliating against employees who report employers’ legal violations to the authorities or who refuse to participate in viola- tions of the law, protects only those employees who can show an actual violation of a law, rule, or regula- tion. Kearns v. Farmer Acquisition Co., d/b/a Charlotte Honda, No. 2D12-6388 (Fla. 2d DCA Feb. 11,  2015). This standard makes it easier for an employer to defend against an employee’s claim. However, the court’s interpretation conflicts with the views of a sister District Court of Appeals, making it likely the State Supreme Court or Legislature will be called upon to resolve the split. (The Second District Court of Appeals covers central Florida’s west coast from Pasco County in the north to Collier County in the south.)

In 2013, Florida’s 4th District Court of Appeals (covering the east coast from Indian River County in the north to Broward County in the south) held that an employee becomes eligible for protection under the FWA merely by showing he had a good-faith belief that the employer was violating a law, rule, or regulation. Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. 4th DCA 2013). Since then, federal courts have adopted this holding.

Under the Fourth District standard, if an employee refuses to engage in an activity at work because he  or she mistakenly believed the activity is illegal, the employee likely will enjoy whistleblower protections from any discipline that would arise out of not per- forming his or her job. This frustrates Florida status as an at-will employment state.

Jackson Lewis attorneys are monitoring develop- ments under this law. If you have any questions about the FWA or require assistance with other workplace issues, please contact the Jackson Lewis attorney with whom you usually work, Matthew Klein at Matthew.Klein@jacksonlewis.com, or Lillian Moon, at MoonL@jacksonlewis.com.

Florida  Employment Bills on Radar

Florida’s legislative session started in March   with many employment-related measures being introduced. They include:

SB 98, HB 25: Employment Discrimination

Creating the Helen Gordon Davis Fair Pay Protection Act; recognizing the importance of the Department of Economic Opportunity and the Florida Commission on Human Relations in ensur- ing fair pay; creating the Governor’s Recognition Award for Pay Equity in the Workplace; and requir- ing that the award be given annually to employers  in Florida who have engaged in activities that elimi- nate barriers to equal pay for equal work for women.

SB 114, HB 47:

State Minimum Wage Increasing the state’s hourly minimum wage to $10.10.

SB 156, HB 33: Prohibited Discrimination

Revising the Florida Civil Rights Act to include sexual orientation and gender identity or expression as protected characteristics; and prohibiting dis- crimination based on perceived race, color, religion, sex, national origin, age, sexual orientation, gender identity or expression, handicap, or marital status.

SB 192, SB 246, HB 1: Texting While Driving

Revising penalties for violations of the Florida Ban on Texting While Driving Law to include enhanced penalties when the violation is committed in a school zone and removing requirement that provi- sions be enforced as secondary action by law enforcement.

SB 214, HB977Discrimination in Employment Screening (“Ban the Box”)

Prohibiting an employer from inquiring into or considering an applicant’s criminal history on an initial employment application, unless required to do so by law.

SB 356, HB 121: Employment of Felons

Providing incentives for employment of person pre- viously convicted of felony.

SB 456, HB 325: Labor Pools

Revising the methods by which labor pools are to compensate day laborers.

SB 528, HB 683: Medical Use of Marijuana

Permitting medical use of marijuana and providing licensure requirements for growers and retailers.

SB 890, HB 455: Florida Overtime Act of 2015

Requiring payment of time-and-one-half an employee’s regular rate of pay for all hours worked over eight in a day, over 40 in a work week, or on the seventh day of any workweek.

SB 892, HB 297: Safe Work Environments

Subjecting employees to an “abusive work environ- ment” is made an unlawful employment practice, and retaliation for reporting the practice is prohibited.

SB982, HB 625: Discrimination Based on Pregnancy

Amending the Florida Civil Rights Act to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. (The Florida Supreme Court in 2014 held that the Act protects against pregnancy discrimination.)

SB1318, HB 589: State Minimum Wage  

Making it a third degree felony to procure labor for less than minimum wage, i.e., “with intent to defraud or deceive a person.”

SB1396, HB 433: Employment Discrimination

Amending the Florida Civil Rights Act to include unpaid interns within the definition of “employee.”

SB1490, HB 1185: Florida Healthy Working Families Act (“Mini FMLA”)

Requiring employers to provide sick and safe leave to employees and creating a complaint procedure, plus a civil cause of action for damages and fees in the event of a violation. Employers of more than nine employees must provide paid sick and safe leave; employers of nine or fewer employees must provide unpaid sick and safe leave.

SB 126: Social Media Privacy

Among other things, prohibiting an employer from requesting or requiring access to a social media account of an employee or prospective employee under certain circumstances.

SB 1096: Unemployment Compensation

Prohibiting disqualification of victims of domestic violence from receiving benefits if they leave work voluntarily.

If you have any questions about any of these bills, contact the Jackson Lewis attorney with whom you usually work or Donald C. Works, at WorksD@jacksonlewis.com.

Florida’s Same-Sex Marriage Ban Ruled Unconstitutional

Ordering Florida court clerks to issue marriage licenses to same-sex couples, U.S. District Judge Robert L. Hinkle, in Tallahassee, announced that his August 2014 decision finding Florida’s 2008 same-sex marriage ban violated the U.S. Constitution applied to all marriage-license appli- cants, not only to the couples named in the lawsuit. In his August ruling, Judge Hinkle wrote, “The Florida provisions that prohibit the recognition of same-sex marriages lawfully entered elsewhere,   like the federal provision, are unconstitutional. So  is the Florida ban on entering same-sex marriages.” Brenner et al. v. Scott, 999 F. Supp.2d 1278 (N.D. Fla. 2014).

This ruling has far-reaching implications for employers in Florida in terms of employee benefits, permitted reasons for leave, and possible discrimina- tion claims, among other things. Employers must ensure compliance by uniformly applying their policies and procedures to both same-gender and opposite-gender married couples.

Court clerks across the state began issuing marriage licenses to same-sex couples on January 6, 2015.

If you have any questions about or require assistance with this or other workplace issues, please contact the Jackson Lewis attorney with whom you normally work or Scott Allen, Scott.Allen@jacksonlewis.com.

DOL Updates Regulations on Definition of Spouse

The U.S. Department of Labor issued a Final Rule expanding the regulatory definition of “spouse” under the Family and Medical Leave Act. Under the revised regulations, effective March 27, 2015, a spouse is a husband or wife as defined or recognized in the state where the individual was married (“place of celebra- tion”), and specifically includes individuals in same-sex and com- mon law marriages. The Final Rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States, if it could have been entered into in at least one state.

The DOL website containing the regulations, a Fact Sheet and FAQs: http://www.dol.gov/whd/ fmla/spouse/

This change arose out of the U.S. Supreme Court’s June 2013 decision in United States v. Windsor, declaring section 3 of the fed- eral Defense of Marriage Act (DOMA) unconstitutional. Section 3 of DOMA defined spouse for purposes of federal law, which included the FMLA, as a person of the opposite sex. As a result, prior to Windsor, an employee was not entitled to take FMLA leave to care for a same-sex spouse with a serious health condi- tion.

After the Windsor decision, the definition of “spouse” extended only to employees in same-sex marriages recognized in their “state of residence.” Therefore, if an employee was lawfully married in a state that recognized same-sex marriage, but lived in a state that

did not recognize same-sex marriage, the employee was not a spouse for purposes of FMLA. By looking to the place where the marriage was entered into (referred to as a “place of celebration” rule), rather than the employee’s state of residence, the Final Rule will extend FMLA coverage to more employees.

The new definition of spouse makes FMLA leave available to all eligible employees who are legally married, regardless of where they live, but does not substantively alter other provisions of the FMLA. The revised regulatory definition of spouse also encom- passes a husband or wife in a common law marriage, as long as the common law marriage was validly entered into in a state that permits the formation of common law marriages, regardless of  the state in which the employee currently resides. Additionally, the revised definition of spouse includes individuals in a same-sex marriage entered into outside of the United States, as long as the marriage is valid in the place where it was entered into, and  could have been entered into in at least one state of the United States (a state that authorizes same-sex marriages). Keep in mind, however, that “civil unions” are not considered marriages under the FMLA. Therefore, employees in same-sex civil unions, as well as opposite-sex civil unions, are not guaranteed the rights of a spouse under the FMLA.

To the extent that an employer’s FMLA policy includes the defi- nition of spouse, the policy should ensure it reflects the new regu- latory definition. Employers also must revise template forms to conform family relationships to the new regulatory definition.

If you have any questions about this topic or others, contact the Jackson Lewis attorney with whom you usuallly work or Tasos Paindiris, Tasos.Paindiris@jacksonlewis.com.