Checkoff.

Transcription

1 the Checkoff The Florida Bar Vol. LVII, No. 4 June 2018 A PUBLICATION OF THE FLORIDA BAR LABOR & EMPLOYMENT LAW SECTION IN THIS ISSUE Chair s Message... 2 NLRB Overrules Lutheran Heritage and Implements New Balancing Test for Facially Neutral Rules... 3 A (Dog) Day at the Office Accommodating Animals in the Workplace... 6 SCOTUS Declines to Review Fourth Circuit s Joint Employer Test Case Notes Section Calendar CLE REGISTER NOW! 2018 Annual Convention President s Showcase Because Legal Practice Isn t Always a Day at the Movies: Health, Wellness, and a Welcoming Workplace for Lawyers and their Clients (2858R) See page 19 for more information. For Whom the Clock Tolls Supreme Court Holds Supplemental Jurisdiction Suspends State Statute of Limitations By Sacha Dyson and Alex Sarsfield, Tampa Congress enacted the supplemental jurisdiction statute (28 U.S.C. 1367) to enable federal courts to deal economically in single rather than multiple litigation with related matters. 1 The statute gives federal courts discretion to exercise supplemental jurisdiction over claims outside of their subject matter jurisdiction when those claims are part of the same case or controversy under Article III of the United States Constitution. 2 Federal courts may decline to exercise supplemental jurisdiction for several reasons, including that they have dismissed all claims over which they have original jurisdiction. 3 However, the statute includes a tolling provision for the statute of limitations for these state claims. It provides: See For Whom the Clock Tolls, page 8 When is a Whistleblower a Whistleblower Under Dodd Frank s Anti-Retaliation Provision? The Statute Itself Provides an Unequivocal Answer, SCOTUS Holds By Samuel J. Horovitz and Kim Bouchard-Chaimowiz, Jacksonville Both the Sarbanes-Oxley Act 1 (Sarbanes- Oxley) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) 2 passed by Congress in 2002 and 2010, respectively are designed to root out corporate fraud. While both Acts protect whistleblowers from retaliation, they implement different schemes to do so. 3 Sarbanes-Oxley applies to all employees who report misconduct to the Securities and Exchange Commission (SEC or Commission), another federal agency, Congress, or an internal supervisor. 4 Dodd-Frank, on the other hand, defines a whistleblower as any individual who provides... information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission. 5 In Digital Realty Trust, Inc. v. Somers, the United States Supreme Court held that Dodd-Frank s See Whistleblower Under Dodd-Frank, page 11

2 Chair s Message Colleagues, I hope this Message finds you enjoying happiness, prosperity and great health. The Section is proud to have had an exceptional conference in Marco Island, where we were honored with presentations by the Acting Chair of the U.S. Equal Employment Opportunity Commission, Victoria A. Lipnic, and Senior Policy Advisor for the Wage and Hour Division of the U.S. ZASCHA BLANCO ABBOTT Department of Labor, Keith Sonderling, as well as Robert Weisberg, the Regional Attorney for the E.E.O.C. All offered excellent presentations and exclusive insight into recent developments at their respective agencies. In addition, the Section s Long Range Planning Retreat in April was a great success, and Executive Council members discussed ways to enhance communication with the membership, including ways to improve our website and electronic services to simplify member access to the Section s resources, publications, legal updates, as well as their Executive Council meeting participation. You will not want to miss the upcoming CLE program at the Annual Florida Bar Convention on June 14th at 2:15 p.m.: Because Legal Practice Isn t Always a Day at the Movies: Health, Wellness, and a Welcoming Workplace for Lawyers and Their Clients. The program ties in with The Florida Bar s emphasis on wellness in the legal profession, and will be moderated by the Honorable Alan Forst of the Fourth District Court of Appeal as well as the Honorable Stephanie Ray of the First District Court of Appeal. On June 14th, we will also honor the new inductee to the Section s Hall of Fame. This year s honoree is Jim Brown, former partner of FordHarrison. The presentation will be at 6:00 p.m. at the Hilton Orlando Bonnet Creek, at the Annual Convention. The Hall of Fame was created as a means of posthumously honoring persons who made substantial contributions to the Labor and Employment Law Section and the practice of labor and employment law in Florida. The Hall of Fame is also designed to promote the achievements of those individuals through the awarding of scholarships, in the name of the section member, to deserving students attending Florida law schools. A special thank you to the co-chairs of the Schools Committee Patrick Martin, Cristina Velez and Judge Stephanie Ray for their assistance in the selection of the student scholarship recipients. At the presentation on June 14th, the students receiving scholarships will also be recognized. This Bar year, through our conferences, active committees, and social activities, we continued to facilitate mentorship among Section members and continued to foster communication with the judiciary and government agencies. We also continued to strengthen our excellent continuing legal education programs and our member recruitment, involvement, and communications. And it is important to note that none of the activities could have happened without the endless time and dedication of Angie Froelich, our Section Administrator. As always, I wish you a wealth of opportunities and good cheer. the CHECKOFF The Checkoff is prepared and published by The Florida Bar Labor and Employment Law Section. Zascha Blanco Abbott Miami Chair Cathleen A. Scott Jupiter Chair-Elect J. Ray Poole, Jr. Fernandina Beach Secretary/Treasurer David Adams Tampa Legal Education Director Leslie W. Langbein Miami Lakes Immediate Past Chair Carlo D. Marichal Ft. Lauderdale Editor Angie Froelich Tallahassee Program Administrator Donna Richardson Tallahassee Design/Layout Statements or expressions of opinion or comments appearing herein are those of the contributing authors, not The Florida Bar, the Labor & Employment Law Section or the Editors. 2

3 NLRB Overrules Lutheran Heritage and Implements New Balancing Test for Facially Neutral Rules Ashley A. Tinsley, Tampa Since 2004, the National Labor Relations Board (the Board) has used the reasonably construe standard to evaluate whether an employer s maintenance of a facially neutral policy, rule, or handbook provision unlawfully restricts protected concerted activities pursuant to Section 7 of the National Labor Relations Act (NLRA). 1 First established in Lutheran Heritage Village-Livonia, 2 the reasonably construe standard is the first of three prongs that the Board could apply in determining whether a facially neutral workplace rule violates Section 7. Specifically, the Board could find that a facially neutral rule violates Section 7 where: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. 3 In the Boeing Company decision, released late last year, the Board employed a new analysis in upholding a facially neutral no-camera policy, overruling the Lutheran Heritage standard in the process. 4 To determine whether facially neutral policies, rules, or handbook provisions interfere with Section 7 rights under this new balancing test, the Board evaluates (1) the nature and extent of the potential impact on NLRA rights, and (2) legitimate justifications associated with the requirements. 5 However, the analysis does not stop there. Once the Board reaches a conclusion based on application of this new test, the Board is then required to classify the rule as falling into one category across a spectrum of three, with Category 1 encompassing rules that are lawful and Category 3 encompassing rules that are unlawful. 6 As defined by the Board, Category 1 rules include those that the Board designates as lawful to maintain, either because (a) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights, or (b) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. 7 As examples of Category 1 rules, the Board cited the no-camera prohibition at issue in Boeing as well as rules requiring employees to abide by basic standards of civility. 8 Category 2 includes those rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights and, if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications. 9 Category 3 includes rules that the Board designates as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. 10 For example, Category 3 rules include those that prohibit employees from discussing wages and benefits with one another. 11 As evidenced by the Board s definition of Category 1 rules, the Boeing decision is especially impactful with respect to rules that require employees to abide by basic standards of civility. 12 In the past, the Board has consistently held such policies to be unlawful pursuant to the Lutheran Heritage reasonably construe standard. For example, in Williams Beaumont Hospital, the Board held that a rule prohibiting conduct that impedes harmonious interactions and relationships violated the NLRA on the grounds that the rule was sufficiently imprecise so as to encompass any disagreement or conflict among employees, including discussions and interactions protected by Section By placing this type of so-called civility rule in Category 1, the Board in Boeing explicitly overruled the Williams Beaumont Hospital decision, in addition to other cases where the Board held that maintenance of such rules violates the NLRA. 14 According to the Board, there was no evidence that the requirement of harmonious relationships actually discouraged or otherwise interfered with protected Section 7 activities, [y]et, in the world created by Lutheran Heritage, it is unlawful to state what virtually every employee desires and what virtually everyone understands the employer reasonably expects. 15 Applying the new balancing test to the facts before it, the Board analyzed whether legitimate justifications for Boeing s no-camera policy outweighed any potential adverse impact on employees NLRA-protected conduct. Boeing s policy prohibits employees from using camera-enabled devices or video without a valid business need and without an approved camera permit that has been reviewed and approved by security personnel. 16 Boeing asserted that its no-camera policy was a significant part of its security protocols, which were necessary to maintain Boeing s accreditation as a federal contractor; to ensure compliance with its federally mandated duty to prevent the disclosure of export-controlling information and materials to unauthorized persons; to protect proprietary information; to limit the risk of invading the privacy of its employees; and to limit the risk of Boeing becoming a target of a terrorist attack. 17 As noted above, the Board ultimately concluded that the justifications for the no-camera policy outweighed any risk of interfering with Boeing employees exercise of Section 7 rights, thereby continued, next page

4 NLRB OVERRULES LUTHERAN HERITAGE, continued placing this rule in Category 1. The Board reasoned that the purposes provided for the policy s enactment constituted legitimate and compelling justifications for the restriction and outweighed the comparatively slight risk of any adverse impact on NLRA-protected activity. 18 The Board additionally noted that much of the restricted activity taking photographs and videos at work would fall outside the NLRA s protection to the extent that the taking of photographs or recording of videos was not done by two or more employees for the purpose of mutual aid or protection. 19 While the Board unanimously agreed that Boeing lawfully maintained its no-camera policy, two of the three Board members strongly disagreed with the decision to overrule the Lutheran Heritage standard. To counter the dissenters of the 3-2 ruling, the majority outlined seven reasons justifying its decision to depart from Lutheran Heritage. According to the majority, the Lutheran Heritage standard is contrary to both Supreme Court and Board precedent because it does not permit any consideration of legitimate justifications that may underlie challenged policies and rules; is contrary to the Board s responsibility to promote certainty, predictability, and stability; imposes too many restrictions on the Board itself and leaves no room for the Board to draw distinctions between different types of rules, business justifications, and Section 7 rights; and has caused extensive confusion and litigation for employers, unions, employees, and the Board itself. 20 Focusing on the NLRA s overall purpose to protect employees, the majority further highlighted the fact that employer rules and policies, especially with respect to civility rules, are generally implemented to do exactly that. According to the majority, the seriously flawed premise of Lutheran Heritage was the notion that employees are better served by not having employment policies. 21 While the NLRA protects employees by giving them the right to engage in, and refrain from, protected concerted activities, the majority noted Does your client know about fraud against the government? CALL US Ryon McCabe Attorney QUI TAM Adam Rabin Attorney MCCABE RABIN, P.A. ATTORNEYS AT LAW Forum Place, Suite 505, West Palm Beach, FL that employees also have a right to protection from unlawful workplace harassment and discrimination in addition to protection from workplace assaults, accidents, and injuries caused by employee conduct. 22 Because employers have an equally important obligation to maintain work rules and policies to assure these rights and because nothing in the NLRA requires employers to adopt policies, rules and handbook provisions 23 the majority reasoned that such civility rules should generally be deemed legitimate and justifiable. Writing separately, dissenting Board members Pearce and McFerran expressed their belief that the Boeing balancing test fundamentally interferes with the NLRA s underlying purpose to protect employee self-organization and the process of collective bargaining from disruptive interferences by employers. 24 According to the dissenters, the majority view fails to recognize that the Board has routinely considered legitimate employer interests under the Lutheran Heritage standard without an explicit requirement to do so and ignores the fact that an employer s interest even if legitimate cannot excuse an employer s interference with an employee s Section 7 rights. 25 The dissenters also found the majority s new position on civility rules to be problematic, as the challenged policies in Boeing did not include any civility rules but solely a policy restricting the use of camera-enabled devices. 26 The dissenters further disagreed with the majority s conclusion that such civility rules are generally lawful, arguing that this conclusion conflicts with the Board s experience that overbroad civility rules chill employees in the exercise of their Section 7 rights and that employers have applied such rules to retaliate against employees engaged in protected Section 7 activities on numerous occasions. 27 The dissenters concluded that the majority s new standard gives employers the green light to infringe upon Section 7 rights by overprotecting employer interests while underprotecting employee interests 28 and serves as a how-to manual for employers intent on stifling protected concerted activity. 29 4

5 Despite the dissenters belief that this new balancing test will heavily favor employers, recent decisions by the Board s Division of Judges suggest otherwise. For example, in March 2018, the Division implemented the Boeing balancing test to determine whether a policy that prohibited employees from using any information resource to discredit, defame, libel, abuse, tarnish, present a bad image of, or portray in a false light the employer, its personnel, its business partners, or its customers, interfered with employees Section 7 rights. 30 The respondent asserted that the rule simply mirrored the civility rule considered in William Beaumont Hospital and should therefore be considered a lawful Category 1 rule under Boeing. 31 The judge disagreed, distinguishing the rule at issue from the lawful category of civility rules identified in Boeing. Finding that the wording of the rule suggested that its primary purpose was not to engender workplace civility among workers but rather to protect the employer s reputation and image, the judge opined that the perspective of employees remains the proper lens in which to evaluate facially valid rules, even under the new Boeing test. 32 As demonstrated by the foregoing, whether a neutral workplace rule is valid under the Boeing test may not be as clear, depending on the factual circumstances surrounding a particular employee/employer relationship. For example, the majority in Boeing cites the hospital setting as a primary example of a work environment that necessarily requires civility rules. While it is obvious that such rules in a hospital setting not only reflect common-sense standards of conduct but are also necessary for avoiding conflict that interferes with patient care, 33 the employer s burden in other business sectors may be substantially more difficult to meet. It remains to be seen whether implementation of the Boeing test will, as alleged by the majority, actually resolve the extensive confusion 34 caused by the Lutheran Heritage standard or whether the new standard instead is an incomprehensible hodgepodge of factors that will be impossible 35 for the Board, employers, and workers to interpret, as alleged by the dissenters. Ashley A. Tinsley is an associate at Thompson, Sizemore, Gonzalez, & Hearing P.A., where she practices management-side labor and employment law A. TINSLEY representing both public and private sector employers. Endnotes 1 See 29 U.S.C. 157 (protecting employees rights to self-organize, bargain collectively, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection). See also 29 U.S.C. 158(a)(1) (prohibiting employers from interfering with, restraining, or coercing employees from exercising the rights guaranteed in Section 7) NLRB 646 (2004). 3 Lutheran Heritage, 343 NLRB at The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017). 5 at *3. 6 at * William Beaumont Hosp., 363 NLRB No. 162, at *2 (Apr. 13, 2016) (citing 2 Sisters Food Group, 357 NLRB 1816, 1817 (2011)). 14 Boeing, 365 NLRB No. 154, at *4 n at *3. 16 at *5. 17 at * at * at * at * at * at * at * at *24 (Member Pearce dissenting) (quoting Am.Ship Bldg. Co. v. NLRB, 380 U.S. 300, 317 (1965)). 25 at *29 (Member Pearce dissenting). 26 at * at * United States Postal Serv. & Richard Santiago, an Individual, No. 28-CA , 2018 WL (Mar. 9, 2018) (internal quotations omitted). 33 Boeing, 365 NLRB, at *4 n at * at * % Online LL.M. in Employment Law Fall start Accepting applications year round Your laptop is your classroom employmentlaw@johnmarshall.edu (678)

6 A (Dog) Day at the Office Accommodating Animals in the Workplace By Aaron W. Tandy, Miami According to organizations that monitor such requests, more and more employers are receiving requests from employees to bring service animals or emotional support animals to the workplace as an accommodation for an ability challenge pursuant to the Americans with Disabilities Act (ADA) or for emotional support. Similarly, the EEOC has reported that it is receiving a higher volume of calls seeking guidance on animals in the workplace. And with physicians and therapists increasingly recommending the use of emotional support animals to their patients, those patients are asking to keep those animals at work. Employers faced with these requests must undertake the same evaluation process as for other ADA accommodation applications. The use of service animals as a reasonable requested accommodation is not a new phenomenon, although case law providing guidance to employers is sparse. 1 Moreover, in providing guidance both the ADA and the Department of Justice (DOJ) make a distinction between a service animal which is trained to perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability and is therefore a covered accommodation under the ADA and an emotional support animal that simply provides comfort or companionship. 2 Last March, however, the EEOC blurred this bright line distinction, filing a case in Florida against CRST International, Inc., taking the position that the company violated the ADA by failing to reasonably accommodate an employee s request for assistance in coping with posttraumatic stress symptoms by having an admittedly emotional support animal in the truck cab while the employee completed his routes. 3 Determining whether an animal is actually an emotional support animal, as opposed to a service animal trained to detect the onset of traumatic stress or panic attacks and alleviate those symptoms, can prove difficult for employers 4 and, under the EEOC s view, may be irrelevant to the accommodation process. Even more difficult is determining whether the accommodation itself is necessary and whether the service animal in question can perform the tasks necessary to be an adequate and reasonable accommodation. To the extent the disability is not obvious, employers as with all accommodations requests are entitled to obtain limited information regarding the nature of the issues for which the employee is seeking the accommodation (but not documentation regarding the actual disability). However, there are no guidelines regarding the amount of training, type of training, or level of training that a service animal must have or achieve to qualify as a service animal ; neither is there a requirement that an employee produce a training certificate for the service animal, nor even demonstrate the tasks for which the animal is trained. 5 And while employers are not required to care for a service animal, once the animal is on the premises, the employer is required to address how the needs (food, exercise, and waste) of the service animal will be met. 6 This past March, Judge Judith C. Herrera of the United States District Court for the District of New Mexico denied an employer s motion for summary judgment seeking to dismiss a failure to accommodate claim regarding the presence of a service dog in a dental clinic. 7 In a lengthy, well-reasoned opinion, Judge Herrera laid out the issues and pitfalls confronting employers in attempting to accommodate employees 6 requests to bring service and emotional support animals to work. There the employer claimed to face challenges in reasonably accommodating the employee s request to bring his service animal to a small office which, among other things, allegedly lacked the space to accommodate the animal and created an undue hardship on the other staff members and the dental practice. In allowing the case to proceed, Judge Herrera found that there was a significant question of fact as to whether the employer had engaged in good faith in the interactive process required under the ADA once a request for a reasonable accommodation was made. 8 While case law providing guidance is scant, it is clear that employers who receive a request to accommodate an animal in the workplace should engage in an interactive process to evaluate the use(s) to which the employee will engage the service animal or emotional support animal; evaluate the actual needs of the employee for the accommodation; and evaluate the ability of the workplace to provide the ancillary accommodations that may be required for having an animal on the premises. Aaron Tandy is a partner with Pathman Lewis, LLP and a member of its commercial litigation department. He focuses on resolution of business torts, A. TANDY regulatory and administrative hearings, employment and HR litigation, and ecommerce and intellectual property disputes. In addition, Mr. Tandy provides counsel to entities looking to comply with federal and state antitrust laws, including the establishment of

7 domestic and international distribution agreements and joint ventures. He earned his law degree, cum laude, from New York University and his bachelor of arts degree from Haverford College. Endnotes 1 See McDonald v. Dep t of Envtl. Quality, 214 P.3d 749, 761 (Mont. 2009) ( [T]he use of a service animal as an assistive device is no different than the use of a wheelchair, scooter, or walker as an assistive device. ). 2 See 28 C.F.R (emotional support alone does not constitute work as a service animal). 3 EEOC v. CRST Int l., Inc., 2017 U.S. Dist. LEXIS (M.D. Fla. Nov. 1, 2017) (transferring case to Northern District of Iowa rather than dismissing it outright). 4 See Cordoves v. Miami-Dade Cty., 92 F. Supp. 3d 1221 (S.D. Fla. 2015) (denying defendant s summary judgment motion on ADA claim regarding self-trained dog, which plaintiff claimed alleviated her panic attacks). 5 United States ex. rel. Hernandez-Gil, 2018 U.S. Dist. LEXIS 51359, at *43-47 (D. N.M. Mar. 28, 2018). 6 See United States Department of Justice, Frequently Asked Questions About Service Animals and the ADA (July 20, 2015), ada.gov/regs2010/service_animal_qa.pdf. 7 United States ex. rel. Hernandez-Gil, 2018 U.S. Dist. LEXIS at * WANTED: ARTICLES The Section seeks articles for the Checkoff and The Florida Bar Journal. If you are interested in submitting an article for the Checkoff, contact Carlo D. Marichal (carlo.marichal@cna.com). If you are interested in submitting an article for The Florida Bar Journal, contact Robert Eschenfelder (rmejd@aol.com) to confirm that your topic is available. REWARD: $150* (*For each published article, a $150 scholarship to any section CLE will be awarded.) Are you getting the most from your Member Benefits? Tap into the more than 60 free or discounted products and services. Products & Services Categories Practice Resources Internet Marketing Legal Publications Legal Research Legal Forms Banking Shipping Insurance Travel Retail Visit for more information. 7

8 FOR WHOM THE CLOCK TOLLS, continued from page 1 The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period. 4 Congress did not define tolled in the statute, leaving open the question as to what the term means. The United States Supreme Court answered this question recently in a 5-4 decision in Artis v. District of Columbia 5 an employment case. As articulated by Justice Ginsburg, [t]his case concerns the time within which state claims [ ] dismissed [under 1367] may be refiled in state court. 6 In particular, the issue before the Court was whether the word tolled in 1367(d) should be interpreted to mean that the limitations period for the plaintiff s state law claims (1) is held in abeyance during the pendency of the federal case (the stop-the-clock approach), or (2) continues to run, and the plaintiff is accorded a grace period of 30 days to refile in state court after dismissal of his or her federal claims (the grace-period approach). 7 The Artis plaintiff was an employee of the District of Columbia. Thirteen months after receiving notice of her termination, the plaintiff sued her former employer in federal court, alleging that she had been discriminated against based on her gender in violation of Title VII of the Civil Rights Act of In addition to her federal claim, the plaintiff asserted three state law claims, which were before the court based on supplemental jurisdiction. When the plaintiff filed her state law claims in federal court, she had almost two years remaining on the state statute of limitations. Two and a half years later, the federal court granted the employer s motion for summary judgment on the Title VII claim and, pursuant to 1367(c), declined to exercise supplemental jurisdiction over the remaining state law claims. In dismissing the state law claims, the district court noted that the plaintiff will not be prejudiced... because [ 1367(d)] provides for a tolling of the statute of limitations during the period the case was [in federal court] and for 30 days thereafter. 8 Fifty-nine days later, the plaintiff refiled her state law claims in state court. The state court, however, dismissed the claims as time barred, ruling they were filed 29 days late. The court applied the grace-period approach, which provided the plaintiff 30 days to file her complaint because the state statute of limitations period ran while the case was pending in federal court. The District of Columbia Court of Appeals affirmed, and the United States Supreme Court granted certiorari. Justice Ginsburg delivered the opinion of the Court, joined by Chief Justice Roberts as well as Justices Breyer, Sotomayor, and Kagan. Justice Gorsuch authored the dissent, which was joined by Justices Kennedy, Thomas, and Alito. The Court concluded that 1367(d) s instructions to toll a state limitations period means to hold it in abeyance; i.e., to stop the clock. 9 Indeed, the Court explained that, in the context of a rule related to time, the typical meaning of tolled is to suspend or stop temporarily. 10 In support of its conclusion, the Court noted that the employer failed to identify any federal statute in which a grace-period meaning has been ascribed to the word tolled or any word similarly rooted. 11 The Court further explained that this definition is consistent with the approach generally taken by federal courts, including the high court itself in prior decisions, which employ the terms toll and suspend interchangeably. 12 The opinion noted only one case in the Court s history in which a grace-period approach was applied to tolling language. 13 The Artis Court found that decision to be a feather on the scale against the weight of decisions in which tolling a statute of limitations signals stopping the clock In rejecting the employer s interpretation, the Court began with this well-settled principle of statutory construction: In determining the meaning of a statutory provision, we look first to its language, giving the words used their ordinary meaning. 15 The Court found that the grace-period approach focuses solely on the word tolled and ignores the information about the verb s ordinary meaning gained from its grammatical object. 16 In this case, the Court noted that the object ( period of limitations ) sheds light on what it means to be tolled. 17 The Court further observed that the employer s interpretation of tolled leads to a strained interpretation of the term period of limitations 18 and that the employer s interpretation rendered a part of the statute superfluous. 19 Additionally, the Court found that the employer s interpretation could lead to an absurd result, where the plaintiff could file a time-barred state claim and revive that claim after the dismissal of the federal action. 20 The Court also rejected the argument that Congress had embraced the grace-period approach by a cite to an American Law Institute (ALI) study recommending that approach in the House Report. The Court noted that the cite to this study appeared in the discussion of a different section of this statute. Concluded the Court: Had Congress similarly embraced the ALI's grace-period formulation in 1367(d), one might expect the House Report to have said as much. 21 Joined by Justices Kennedy, Thomas, and Alito, Justice Gorsuch penned an 18-page dissent repudiating based on common law doctrine and the textual and contextual clues within 1367(d) the Court s interpretation of the term tolled. Justice Gorsuch asserted that the purpose of the tolling provision in 1367(d) was to provide the plaintiff who finds her case dismissed because she filed in the wrong court a reasonable grace period to journey to the right court to refile. 22 Thus, the

9 dissent relied on the long-standing common law principle of the journey s account, whereby a limitations period is suspended for the time it takes a plaintiff to journey to court to refile her claim. 23 The dissent found that the stop-theclock approach was generally only used at common law to suspend a limitations period when some disability prevented a plaintiff from pursuing an action sooner. 24 However, under that approach, the limitations period restarted when the disability period ended. Yet, in this case, the Court applied both the stop-the-clock approach to suspend the statute of limitations during the action and the grace-period approach to add a 30-day grace period after the dismissal of the case. Justice Gorsuch found no language in the statute to support this interpretation. Instead, the dissent found that textual and contextual clues support the conclusion that Congress created a grace-period approach in 1367(d). Specifically, Justice Gorsuch observed that 1367(d) references state law tolling periods, and there is no dispute that this reference is to grace periods created under state law. 25 As he further explained, the word tolling cannot have a different definition than the word tolled. 26 He commented: The alternative reading endorsed by the Court today extends too little respect to Congress s competency as drafter. 27 Justice Gorsuch also found that the Court s interpretation would produce absurd results where the limitations period for a particular state statute would be dependent on how long the case was pending in federal court and thus may differ from case to case. 28 The dissent asserted that the Court s decision was fundamentally flawed because it adopted a new rule that would afford litigants as a matter of federal law the benefit of a [stop-theclock] approach whenever doing so would yield more time to refile than the state s grace period would permit. 29 Yet, argued the dissent, the plain language of the statute does not support this conclusion and would require the Court to add this language to the text of 1367(d). In addition to relying on basic statutory construction principles, the dissent opined that the Court s interpretation raises a problem of significantly greater magnitude. 30 Specifically, the dissent asserted that the Court s approach exceeds Congress s authority under the necessary and proper clause of the Constitution by intruding on a state s right to set the time that plaintiffs have to refile in state court. The dissent questioned whether 1367(d), as interpreted by the Court, could survive a constitutional challenge. 31 By contrast, the grace-period approach provides a modest backstop consistent with existing state law, 32 suggested Justice Gorsuch. In its conclusion, the dissent noted that the implications of the Court s decision go far beyond the definition of the word toll : The Court today clears away a fence that once marked a basic boundary between federal and state power. Maybe it wasn t the most vital fence and maybe we ve just simply forgotten why this particular fence was built in the first place. But maybe, too, we ve forgotten because we ve wandered so far from the idea of a federal government of limited and enumerated powers that we ve begun to lose sight of what it looked like in the first place. If the federal government can now, without any rational reason, force States to allow state law causes of action in state courts even though the state law limitations period expired many years ago, what exactly can t it do to override the application of state law to state claims in state court? What boundaries remain then? 33 Justice Ginsburg, speaking for the Court, rejected the dissent s arguments and reliance on the common law doctrine of a journey s account. Instead, the Court determined that it must give each word its ordinary, contemporary, and common meaning. 34 The Court dismissed the suggestion that the 20th-century Congress that enacted this statute would have considered the common law doctrine. Accordingly, it is now settled that a 9 federal court s exercise of supplemental jurisdiction suspends the limitations period on state law claims during the pendency of the federal case and for 30 days thereafter. The Artis decision extends the statute of limitations period and may result in lengthy delays in the final adjudication of state law claims. This consequence, however, may convince federal courts to retain jurisdiction over these claims. 35 Regardless of the implications of this decision, it is now clear for whom the clock tolls. Plaintiffs, it tolls for thee. Sacha Dyson is a partner with Thompson, Sizemore, Gonzalez & Hearing, P.A. in Tampa. She received her B.S. with honors from Rochester Institute of Technology and S. DYSON her J.D., cum laude, from Stetson University College of Law where she served as the Executive Editor of Stetson Law Review. Alex Sarsfield is an associate with Thompson, Sizemore, Gonzalez & Hearing, P.A., in Tampa. He received his B.S., cum laude, from the University A. SARSFIELD of South Florida and his J.D., cum laude, from Florida State University College of Law, where he served as President of the Moot Court Team and Executive Editor of the FSU Business Review. Endnotes 1 H.R. Rep. No , p. 28 (1990) (H.R. Rep.) U.S.C. 1367(a) (2012) (c) (d) S. Ct. 594 (2018). 6 Artis v. District of Columbia, 138 S. Ct. 594, 598 (2018). 7 8 at continued, next page

10 FOR WHOM THE CLOCK TOLLS, continued 9 at at 601 (citing Black s Law Dictionary 1488 (6th ed. 1990)). 11 at at ; see also Chardon v. Fumero Soto, 462 U.S. 650, 652 n.1 (1983) (concluding that the word tolling was interpreted to mean that during the relevant period, the statute of limitations ceases to run ); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974) (finding that tolling was interpreted to mean suspending the applicable statute of limitations ); cf. CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014) (describing the doctrine of equitable tolling as one that pauses the running of, or tolls, a statute of limitations ); United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (per curiam) ( Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped. ). 13 Artis, 138 S. Ct. at 603 (citing Hardin v. Straub, 490 U.S. 536 (1989)) (citing Moskal v. United States, 498 U.S. 103, 108 (1990)). 16 at (noting that [j]ust as when the object of tolled is bell or highway traveler, the object period of limitations sheds light on what it means to be tolled[ ] ) at 604. The employer s interpretation of tolled was that the effect of the limitations period, not the limitations period itself, was tolled under 1367(d). The Court found that this interpretation of tolled in 1367(d) caused a strained interpretation of its object period of limitations. 19 Under the employer s interpretation, the effect of the limitations period became operative only upon the dismissal of the federal case. However, the Court noted that the language of 1367(d) provides that the limitations period is tolled during the pendency of the action and after dismissal of the case. Thus, it found that this interpretation rendered the provision related to the pendency of the action meaningless at 610 (Gorsuch, J., dissenting) at at at at at Specifically, the dissent explained that it was skeptical as to how [ 1367(d), as interpreted by the Court,] could be called anything other than an unconstitutional intrusion on the core state power to define the terms of state law claims litigated in state court proceedings. 32 at at at 605 n.11; see also id. at 603 n.8 (citing Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017)). 35 City of Chicago v. Int l Coll. of Surgeons, 522 U.S. 156, (1997) (directing federal district courts to deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity ). Join A Network of Specialists: Become Board Certified In Labor & Employment Law The Florida Bar s certification program is consistently recognized as a national leader among other state programs. Board certified lawyers are: Evaluated for professionalism and tested for expertise. Florida Bar board certification can benefit you in the following ways: Certification provides an objective measure that a potential client can rely upon when selecting a lawyer. By becoming board certified, you join an existing network and a directory of lawyers at FloridaBar.org/certification of specialists who frequently refer others to specialists in their fields of practice. Certification may enhance the stature of your law firm and can result in lower malpractice insurance rates. Florida Lawyers Mutual Insurance Co. offers a 10 percent discount to board certified lawyers. Minimum standards for labor and employment law certification, provided in Rule , include: Practice of law for at least 5 years, or 4 years with an LL.M. in labor and employment law; Substantial involvement in the specialty of labor and employment law- 50% or more- in the 5 years immediately preceding application; 60 hours of approved labor and employment law certification continuing legal education in the 3 years immediately preceding application; Peer review; and, A written examination. If you're considering board certification in labor and employment law, applications must be postmarked by August 31 for the following year s exam. Standards, policies, applications and staff contacts are available online at FloridaBar.org/certification. 10

11 WHISTLEBLOWER UNDER DODD-FRANK, continued from page 1 whistleblower definition means exactly what it says and that the statute s antiretaliation provisions do not extend to an individual who has not reported a violation of the securities laws to the SEC. 6 By way of background, Dodd-Frank provides two major incentives for whistleblowers. First, a whistleblower is eligible for an award if original information provided to the SEC leads to a successful enforcement action. 7 Second, a whistleblower is protected from retaliation in three situations, including for making disclosures that are required or protected under Sarbanes- Oxley or other specified laws. 8 Though Dodd-Frank itself has only one definition of whistleblower any individual who provides... information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission the SEC promulgated regulations implementing the statute with two discrete whistleblower definitions. 9 For purposes of the award program, the regulations require a whistleblower to provide the Commission with information relating to possible securities law violations. 10 But for purposes of the antiretaliation provisions, the regulations do not require reporting to the SEC. 11 The Somers case began when Paul Somers filed suit against his former employer, Digital Realty Trust, Inc. (Digital Realty), alleging he was terminated after he internally reported suspected securities law violations to senior management. Somers claimed whistleblower retaliation under Dodd- Frank. Digital Realty moved to dismiss, arguing that Somers was not a Dodd- Frank whistleblower because he had not alerted the SEC to the alleged violations before his termination. The district court denied the motion, and the Ninth Circuit affirmed, giving deference to the SEC s regulation and concluding that Dodd-Frank allows for whistleblower retaliation claims even if the plaintiff has not reported the violation to the SEC. 12 The Supreme Court unanimously read the statute s plain language to compel a different result. Because Congress has directly spoken to the precise question at issue, the Court declined to afford Chevron 13 deference to the contrary interpretation in the SEC Rule, which it held conflicted with the plain language of the statutory text. 14 The question confronting the Somers Court was the meaning of whistleblower in Dodd-Frank s anti-retaliation provision, a question for which, according to the Court, the statute itself supplies an unequivocal answer. 15 The Court noted that it was bound to follow Dodd-Frank s explicit definition of whistleblower, even if that definition varies from the ordinary meaning of the word. 16 Because 78u 6(a) instructs that the statute s definition of whistleblower shall apply [i]n this section, that is, throughout 78u 6 the Court was bound to interpret the term as used in 78u 6(h), the anti-retaliation provision, under that definition. 17 As the Court explained, the whistleblower definition operates in conjunction with the three clauses of 78u 6(h)(1)(A) to define the scope of the anti-retaliation provision. The definition first specifies who is eligible for whistleblower protection; the three clauses in 78u 6(a)(6) then set forth what conduct, when engaged in by a whistleblower, is shielded from retaliatory employment actions. An individual must meet both requirements to invoke Dodd-Frank protection. 18 Noting that the core objective of Dodd-Frank is motivat[ing] people who know of securities law violations to tell the SEC, the majority opined that the Court s statutory understanding was corroborated by Dodd-Frank s purpose and design. 19 Finally, the Court rejected arguments advanced by Somers and the Solicitor General, finding their concerns insufficient to depart from the statutory text. 20 First, interpreting whistleblower as it is expressly defined would not vitiate the protections of clause (iii) for whistleblowers who make disclosures outside the SEC. 21 The Court opined that the statute does protect a whistleblower who reports misconduct both to the SEC and to another entity but who suffers retaliation because of the latter, non-sec disclosure. 22 Second, the Court determined that applying the statute as written would not discard protections for certain employees who may be required to report information to the company before making external disclosures. It noted that such employees remain protected by Sarbanes-Oxley and can also come under the protection of Dodd-Frank as soon as they also provide relevant information to the Commission. 23 Third, the Court found that although Somers and the Solicitor General protested that the statute as written would allow the punishment of identical misconduct to turn on the happenstance of a separate report to the SEC, it was within Congress s prerogative to reserve the statutory retaliation protections, like the financial reward provision, for employees who have done what Dodd-Frank seeks to achieve by reporting unlawful activity to the SEC. 24 Fourth, though the Solicitor General noted the apparent lack of requirement that there be a temporal or topical connection between the violation reported to the Commission and the internal disclosure for which the employee suffers retaliation, the Court declined to dwell on proffered hypotheticals, which veer[ed] far from the case at hand. 25 Finally, the Court reasoned that its interpretation does not undermine clause (ii) of 78u 6(h)(1)(A), which prohibits retaliation against a whistleblower for initiating, testifying in, or assisting in any investigation or... action of the Commission based upon information conveyed to the SEC by a whistleblower in accordance with the statute. Section 78u 6(a)(6) of the statute delegates authority to the Commission to establish the manner in which a whistleblower may provide information to the SEC. Nothing prevents the Commission from enumerating additional such means, including through testimony protected by clause (ii). 26 continued, next page 11

12 Though it is difficult to fault the Court s analysis, which followed directly from the plain language of the statute itself, the practical impact may be a loss for both employees and employers. For employees, the limitations on Dodd-Frank s scope may confine more plaintiffs to Sarbanes-Oxley (or state law, if any applies), which highlights other differences between the two statutory schemes. Sarbanes-Oxley s anti-retaliation provision contains an administrative exhaustion requirement and an 180-day deadline for filing an administrative complaint, whereas Dodd-Frank allows a plaintiff to proceed directly to suit in federal court and provides a broader limitations period (at least six years). And unlike Sarbanes-Oxley, Dodd-Frank expressly provides the opportunity to recover double back pay. 27 In sum, employees confined to Sarbanes-Oxley face an administrative prerequisite to suit, a shorter limitations period, and a more limited remedial scheme than Dodd- Frank whistleblowers. For employers, the short-term victory in Somers may come with costly downstream ramifications. Given the strong anti-retaliation protections of Dodd-Frank, a savvy employee (or one represented by savvy counsel) has a strong incentive to report perceived securities violations to the SEC. Even an employee who might otherwise have complained to the SEC now has a strong incentive to do so sooner rather than later. For example, an employee who reports misconduct internally might also simultaneously (or shortly thereafter) make a report to the SEC without allowing the internal investigation to take its course. After all, an employee is not protected by Dodd-Frank until he or she has made a report to the SEC, and an employee who wants broader whistleblower protection might well opt to make such a report before awaiting the employer s response. And no employer wants to be reported to the SEC for an alleged violation of the law, especially before it has had the opportunity to conduct its own investigation. A finding of any violation of the law can result in significant penalties and consequences. Even the best-case scenario of an SEC investigation avoiding a finding of any violation of law is likely to carry with it significant aggravation and expense. 28 The perceived victor of Somers would be the SEC in its representation of the public. 29 Armed with more reports of misconduct, the SEC will presumably be better able to root out fraud. But one would be hard pressed to declare the government the winner in Somers for two reasons. First, the Court s holding rejected the position of the United States argued by the Solicitor General. Second, the Court s ruling rejected the administrative rule the SEC had itself promulgated. In the final analysis, Somers leaves the government with the prospect of more complaints, leaves employers with the risks associated with such complaints, and leaves employees who have not availed themselves of such complaints limited litigation options. Samuel J. Horovitz is a shareholder with Rogers Towers, P.A. in Jacksonville. He received his undergraduate and law degrees from the University of Florida. S. HOROVITZ His practice focuses primarily on labor and employment law, including counseling companies on employment issues and representing clients in a range of labor and employment cases before federal and state courts and a variety of administrative agencies. Kim Bouchard- Chaimowiz is an associate attorney with Rogers Towers, P.A. in Jacksonville, where she works primarily in the labor and employment BOUCHARD- practice group. She CHAIMOWIZ received her undergraduate degree from Brandeis University and her law degree from the University of Florida Levin College of Law. Endnotes 1 Pub. L. No , 116 Stat Pub. L. No , 124 Stat Though this article focuses on federal law, several states have corresponding laws with similar goals. See, e.g., Cal. Gov t Code et seq.; Fla. Stat et seq.; Mass. Gen. Laws ch. 149, 185. Other states, such as Maryland, South Dakota, and Texas, do not. Still others offer protection under state law but only for public employees. See, e.g., Utah Code et seq.; Alaska Code et seq U.S.C. 1514A(a)(1) U.S.C. 78u 6(a)(6) S. Ct. 767 (2018) U.S.C. 78u 6(b). 8 at 78u 6(h)(1)(A)(iii). 9 at 78u 6(a)(6) C.F.R F 3(a). 11 at F 2(a)(1). 12 Somers v. Digital Realty Trust, Inc., 850 F.3d 1045, (9th Cir. 2017). Judge Owens dissented from the Ninth Circuit s ruling. Somers, 850 F.3d at 1051 (Owens, J., dissenting). The divided Ninth Circuit opinion deepened a split among the circuits on the issue. The Fifth Circuit had previously held that an employee must provide information to the SEC to seek redress under the Dodd-Frank anti-retaliation provisions. Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620, 630 (5th Cir. 2013). A divided Second Circuit had previously come to the opposite conclusion. Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 155 (2d Cir. 2015). 13 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 14 Somers, 138 S. Ct. 767, 782 (quoting Chevron at 842). Justice Ginsburg wrote an opinion for the Court that was joined in full by Chief Justice Roberts and by Justices Kennedy, Breyer, Sotomayor, and Kagan. The majority opinion relied upon both the plain language of the statute and its intended purpose. Justice Thomas, in a concurring opinion joined by Justices Alito and Gorsuch, disapproved of the majority s use of a Senate Report to analyze Dodd-Frank beyond the plain language of the statute. at Justice Sotomayor, in a concurring opinion joined by Justice Breyer, joined the majority opinion in full but wrote separately to respond to Justice Thomas s concurrence and to argue why the majority s use of a Senate Report was appropriate in statutory interpretation. at at at This reading is reinforced by another whistleblower protection provision in Dodd-Frank, 12 U.S.C. 5567(b), which has no requirement that information be conveyed to a government agency. at (quoting S. Rep. No , at 38, with emphasis added by the Court). 20 at See 78u 6(h)(1)(A)(iii). 22 at at at 769, at

13 26 at Under Sarbanes-Oxley, an employee can be awarded make-whole relief including reinstatement, back pay, and special damages (including litigation fees and costs). 18 U.S.C. 1514A(c). Under Dodd-Frank, an employee can seek reinstatement, double back pay, and fees and costs. 15 U.S.C. 78u 6(h)(1)(C). Additionally, a successful Dodd-Frank whistleblower can recover an award of ten to thirty percent of sanctions recovered by the SEC. at 78u 6(b)(1). 28 See Ctr. for Capital Mkts., U.S. Chamber of Commerce, Examining U.S. Securities and Exchange Commission Enforcement (2015) (reporting the cost for responding to an informal SEC investigation to be between $1 $5 million and the cost for responding to a formal SEC investigation to be between $1 $30 million). 29 Coincidentally, the SEC announced its largest-ever Dodd-Frank award just a few weeks after the Somers decision: $50 million shared by two whistleblowers and $33 million to a third whistleblower. See Press Release, U.S. Sec. & Exch. Comm n, , SEC Announces Its Largest-Ever Whistleblower Awards (2018), The Practice Resource Institute The Florida Bar s most comprehensive resource for running your law practice. The Florida Bar s Practice Resource Institute is designed to help Florida lawyers with law office operations and to assist with members use of technology. This digital resource is available at pri.floridabar.org, where members can: The Florida Bar Practice Resource Institute Promoting Excellence in the Profession Live chat with PRI practice management advisors and receive answers in real time. Explore comprehensive lists of law office technology, tools, and resources. Check out new providers and services in the Bar s Member Benefits program. Access shareable electronic tools, web-based archives of articles, blog posts, and listen to our monthly podcasts on Legal Talk Network. Subscribe to our digital newsletter. Technology Finance Marketing New Practice Management pri.floridabar.org 13

14 SCOTUS Declines to Review Fourth Circuit s Joint Employer Test By Alexander T. Harne, Fort Lauderdale Last year, in Salinas v. Commercial Interiors, Inc., the United States Court of Appeals for the Fourth Circuit established a new test comprised of six non-exhaustive factors to determine whether two or more entities constitute joint employers for purposes of the Fair Labor Standards Act (FLSA). 1 Inapposite to prior joint employer analyses, which focused on the economic discrepancy between worker and employer, the new test focuses on the relationship between the two alleged joint employers. 2 In expanding the circumstances in which an employer may be subject to liability as a joint employer, the Salinas court based its ruling on Department of Labor regulations implementing the FLSA. 3 Those regulations state that joint employment exists when the facts establish that employment by one employer is not completely disassociated from employment by the other employer. 4 Employers found to be joint employers for FLSA purposes are individually and jointly liable for compliance with all provisions of the FLSA, including minimum wage and overtime requirements. 5 Previous Tests In the years preceding the Fourth Circuit s ruling in Salinas, federal courts differed in their analyses to determine whether plaintiffs alleged a plausible FLSA joint employment claim. 6 In Bonnette v. California Health and Welfare Agency, for example, the Ninth Circuit set forth four non-exhaustive factors in evaluating joint employer status under the FLSA and drew its conclusions based on the totality of the circumstances. 7 The Bonnette ruling grounded in common law agency principles failed to consider the evolving definition of employee as prescribed by the FLSA. 8 Consequently, several courts have liberalized the analytical framework set forth in Bonnette and its progeny to reflect congressional intent under the FLSA to extend protections beyond common law employment relationships. 9 Fourth Circuit s New Test To combat growing inconsistencies among federal court decisions, the Fourth Circuit in Salinas and in Hall v. DirecTV, LLC. decided the same day adopted a new approach to the joint employment inquiry. This approach posits that [f]ocusing first on the relationship between putative joint employers is essential to accomplishing the FLSA s remedial and humanitarian purpose. 10 In proffering a new standard for evaluating joint employer liability under the FLSA, the court concluded that joint employment exists when: (1) two or more persons or entities share, agree to allocate responsibility for, or otherwise codetermine formally or informally, directly or indirectly the essential terms and conditions of the worker s employment; and (2) the two entities combined influence over the essential terms and conditions of the worker s employment render the worker an employee. 11 To clarify any remaining ambiguity, the Fourth Circuit also enumerated six non-exhaustive factors to consider in determining the existence of a joint employer relationship: 12 (1) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to direct, control, or supervise the worker, by direct or indirect means; (2) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to directly or indirectly hire or fire the worker or modify the terms or conditions of the worker s employment; (3) The degree of permanency and duration of the relationship between the putative joint employers; (4) Whether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other putative joint employer; (5) Whether the work is performed on premises owned or controlled by one or more of the putative joint employers, independently or in connection with one another; and (6) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll, providing workers compensation insurance, paying payroll taxes, or providing the facilities, equipment, tools, or materials necessary to complete the work. The Fourth Circuit emphasized that this is not an exhaustive list of all potentially relevant considerations, nor is any one factor controlling. 13 Rather, joint employer analysis is highly factsensitive, and considerations vary on a case-by-case basis. Applying these factors in Salinas, the court concluded that the employment relationship at issue constituted joint employment for purposes of the FLSA. 14 The Salinas court then turned to the inquiry of whether the plaintiffs constitute employees or independent contractors an analysis that focuses on the relationship between the worker and the putative employer. 15 This determination depends on whether the worker is economically dependent on the business to which service is rendered or whether the employee is in business for himself or herself as a matter of economic reality. 16 Notably, in Salinas, the Fourth Circuit concluded that, while control over the subcontractor s employees is a sufficient condition 14

15 for an entity to be held a joint employer under the FLSA, it is not necessary. 17 Conversely, employers would need to do more than simply avoid control over workers to avert joint employment status. The Fourth Circuit concluded that an employer could avoid FLSA liability by either (1) disassociating itself from the subcontractor with regard to key terms and conditions of the worker s employment, or (2) ensuring that its subcontractor abides by the requirements of the FLSA. 18 In other words, joint employment exists when the facts establish that employment by one employer is not completely disassociated from employment by another. Status Quo On January 8, 2018, the United States Supreme Court denied a petition for certiorari seeking to overturn the Fourth Circuit s new joint employer test under the FLSA in Hall. 19 In that case, the Fourth Circuit ruled that DirecTV was liable as a joint employer of technicians hired by an intermediary. 20 The Supreme Court issued its order without comment and did not explain the basis of its refusal to hear the case. Thus, the Fourth Circuit s broad interpretation of joint employment under the FLSA stands, and variant tests determining the existence of joint employment still linger among the other regional circuit courts. Alexander T. Harne is an associate attorney with Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. in Fort Lauderdale. Mr. Harne received A. HARNE his undergraduate degree, cum laude, from the University of Central Florida and law degree from the University of Miami School of Law. Mr. Harne focuses his practice on civil defense litigation. Endnotes 1 Salinas v. Commercial Interiors Inc., 848 F.3d 125 (4th Cir. 2017). 2 at at See also Schultz v. Capital Int l Sec., Inc., 466 F.3d 298 (4th Cir. 2006) (recognizing DOL regulations as the starting point for determining whether two or more entities constitute joint employers). 4 at 134 (quoting 29 C.F.R (a)). 5 at 134 (citing 29 C.F.R (a)). 6 at Bonnette v. Cal. Health and Welfare Agency, 704 F.2d 1465, (9th Cir. 1983). 8 Salinas, 848 F.3d at Hall v. DirecTV, LLC., 846 F.3d 757, 766 (4th Cir. 2017). 10 at 768 (internal quotation marks omitted). 11 Salinas, 848 F.3d at at at at at at 151, n at 149 (citing Reyes v. Remington Hybrid Seed Co., Inc., 495 F.3d 403, 409 (7th Cir. 2007)). 19 DirecTV LLC v. Hall, U.S., No , cert. denied Jan. 8, Hall, 846 F. 3d 757 (4th Cir. 2017). 15

16 CASE NOTES FEDERAL COURTS Eleventh Circuit By Carly Wilson Plaintiff s allegations regarding employer s overall actions against older employees, coupled with her personal experience, stated a claim for discrimination under the ADEA, but her claim for retaliation failed because the only causal link cited between her internal complaint and her subsequent termination was temporal proximity, which was not enough in this case to establish causation. Buchanan v. Delta Air Lines, Inc., No. Fed. App x, 2018 WL (11th Cir. 2018). While Plaintiff s claims that Defendant fired older workers for trivial reasons, focused on hiring younger workers, and replaced its older workers with younger workers, may not have been sufficient to state a claim for age discrimination, these allegations, considered together with the assertion taken as true that Plaintiff was fired for a policy violation she did not commit, were adequate to raise her right to relief above a speculative level. Plaintiff had not, however, stated a claim for retaliation. Although there was temporal proximity in her termination, her alleged protected activity of making a complaint to her employer occurred after her suspension and the investigation into her alleged misconduct. A company is free to interpret its own nondisclosure agreement as it sees fit in determining how to discipline employees for violations of the agreement. Langford v. Magnolia Advanced Materials, Inc., 709 Fed. App x 639 (11th Cir. 2017). Plaintiff brought this lawsuit against Defendant on the grounds of racial discrimination and retaliation. Plaintiff alleged that a comparator had committed the same violations. Although Plaintiff and his alleged comparator both breached Defendant s non-disclosure agreement by sending confidential work information to private accounts, Plaintiff and the comparator held different positions with different job responsibilities. Further, the alleged comparator sent the s to Plaintiff s personal account to allow him to continue to work during a snowstorm, while Plaintiff admitted to sending such s for purely personal reasons. Additionally, Plaintiff committed the violations on multiple occasions while the alleged comparator committed a violation of the agreement only once. Noting that Title VII does not take away an employer's right to interpret its rules as it chooses, the court found that the company can interpret its own nondisclosure agreements and breaches thereof as it sees fit. In fact, commented the court, [a]n employer may fire an employee... for no reason at all, as long as its action is not for a discriminatory reason. Therefore, the district court did not err in granting summary judgment against Defendant on his discrimination claim. With regard to Plaintiff s retaliation claim, the court found that his complaint about allegedly hazardous working conditions cannot form the basis for a Title VII retaliation claim, as the statute only covers discrimination based on various protected characteristics. Employee who was terminated for being inebriated at work due to new medication for a medical condition did not show she was terminated because of her disability or that the employer s explanation was pretextual. Caporicci v. Chipotle Mexican Grill, Inc., Fed. App x, 2018 WL (11th Cir. 2018). The Eleventh Circuit upheld the Middle District s summary judgment 16 in favor of the employer on Plaintiff s claims of disability discrimination under the Americans with Disabilities Act and Florida Civil Rights Act. Plaintiff suffered from bipolar disorder and received treatment from a physician, including prescription drugs, to control her condition. Plaintiff s supervisor was aware of Plaintiff s condition but was not initially informed of her need to utilize prescription drugs. In June of 2013, Plaintiff s doctor altered her treatment plan, placed her on a new prescription, and requested five days of FMLA leave for Plaintiff, which Defendant granted. Plaintiff returned to work feeling slow and groggy but worked three days without incident. On June 7, 2013, Plaintiff had an issue with her medication which resulted in her being slow, mishandling orders, and being incoherent. She was asked to leave her shift. Her supervisor then called Plaintiff at home and was initially understanding but called back and terminated her due to her behavior. Defendant s drug-free workplace policy bars employees from coming to work intoxicated, including under the influence of prescribed medication. In its opinion, the Eleventh Circuit first noted that [w]hether a firing based on disability-related intoxication constitutes disability-based discrimination under the ADA is an open question in this circuit and that Plaintiff had not raised the issue on appeal. Plaintiff argued instead that she established a prima facie case and showed pretext for discrimination, asserting that she did not violate the employer s policy requiring that supervisors be notified of prescribed medications. The court found this argument to be irrelevant, as Plaintiff was terminated because of her inebriation at work, not for allegedly violating the notification provision. City was not liable for harassment by an employee with a history of allegations of misconduct when, after each allegation, it took prompt remedial

17 CASE NOTES action and ultimately terminated the employee. Patsalides v. City of Fort Pierce, Fed. App x, 2018 WL (11th Cir. 2018). Plaintiff alleged that over a two-week period, a fellow police officer for Defendant touched her on the arm, shoulders, or hands on ten separate occasions and, at one point, also rubbed her thigh with his hand. While he never made any inappropriate comments to her, Plaintiff reports that this male officer would repeatedly try to maximize the amount of time spent with her. After two weeks of this behavior, Plaintiff reported the officer to her superiors. He was placed on administrative leave and ultimately terminated due to this and past findings regarding sexual misconduct. Following this, Plaintiff alleges she was retaliated against by her coworkers, who referenced her snitching on her fellow officers. Plaintiff was terminated a year later for excessive absenteeism, and she filed the current lawsuit. On appeal, the Eleventh Circuit upheld the Middle District s dismissal of Plaintiff s harassment and retaliation claims. Specifically, the appellate court agreed with the district court s reasoning that the city could not be held liable for the officer s harassing conduct, as it took prompt remedial action. Moreover, while the officer had four prior allegations of misconduct over a sixteen-year period, the city had properly responded to these prior incidents with prompt remedial action and increased punishment, which is consistent with Title VII. With regard to Plaintiff s retaliation claims, the court held that the comments by her coworkers were not severe or pervasive enough to create a retaliatory, hostile work environment. District Courts Anti-abortion activists who worked for an oncologist failed to state claims for retaliation and failure to accommodate and could proceed only on disparate treatment claims for recording events at a neighboring abortion clinic. Passmore v. 21st Century Oncology, LLC, No. 3:16 cv 1094 J 34PDB, 2018 WL (M.D. Fla. April 11, 2018). Plaintiffs legally recorded, and later broadcast on an anti-abortion website, video of an ambulance arriving at an abortion clinic adjacent to the parking lot of their employer, an oncology center. Plaintiffs were terminated from their employment with Defendant and filed suit alleging religious discrimination; specifically, failure to accommodate, disparate treatment, and retaliation. Defendant moved to dismiss Plaintiffs claims. The Middle District held that Plaintiffs had failed to state a claim for failure to accommodate because, while Plaintiffs allege that abortion is contrary to their deeply held religious beliefs, Plaintiffs failed to establish a conflict between their religious beliefs and the employer oncology center s rules or work requirements. With regard to the disparate treatment claims, Plaintiffs identified as comparators two other employees who did not participate in the recording and instead just watched the events unfold. These employees were not disciplined, and no information was provided regarding their religious beliefs. This information, coupled with a supervisor s comment that not everyone shared Plaintiffs religious beliefs, was sufficient to state a plausible claim for religious discrimination. Plaintiffs failed to state a claim for retaliation as they failed to allege that they opposed any activity of their employer, much less one which they believed was unlawful under Title VII. Employment status is an element of a Title VII claim, not a jurisdictional issue, and therefore a plaintiff does not have to prove he or she is an 17 employee in order to survive a motion to dismiss on a Title VII claim. Howell v. City of Lake Butler, No. 3:17-cv-641-J-32JRK, 2018 WL (M.D. Fla. Jan. 16, 2018). Plaintiffs brought claims of sexual harassment against Defendant following multiple instances of alleged sexual misconduct perpetuated on Plaintiffs by city firefighters. Defendant moved to dismiss Plaintiffs claims on the grounds that Plaintiffs were volunteer firefighters, not employees, and therefore not authorized to bring claims against Defendant under Title VII. The district court held that the issue of whether Plaintiffs were employees was an element of the Plaintiffs claims for relief and not a jurisdictional issue as the Defendant suggested. Therefore, while Plaintiffs would have to prove their employment status to ultimately succeed on their claims, at the motion to dismiss stage Plaintiffs need only have pled their status as employees. STATE COURTS Sexual harassment that occurred at non-work-sponsored party with coworkers was sufficient to support a jury finding in Plaintiff s favor under the Florida Civil Rights Act. Village of Tequesta v. Luscavich, So. 3d, 2018 WL (Fla. 4th DCA 2018). Plaintiff worked at Defendant s police department and, in her time off from work, attended a party at another employee s house to celebrate a coworker s promotion. Other department employees, including the soon-tobe-appointed Chief of Police (Chief), were present at the party. Plaintiff reported that at the party the Chief stuck his hand down her shirt and felt her breasts, rubbed her back under her shirt, put her hand on his crotch, and told her he wanted to make love to her. Plaintiff rebuffed his advances. Following this incident, the Chief rejected Plaintiff s request for training, Also,

18 CASE NOTES Plaintiff was passed over for other positions despite being more qualified, and she reported rumors that other officers were afraid to interact with her in dispatch because the Chief was monitoring who came and went from the room when Plaintiff was there. A jury found in favor of Plaintiff and awarded damages. Defendant appealed on multiple grounds, including that its Motion For Directed Verdict was improperly denied in that one-event sexual advances at a private party did not constitute an unlawful employment practice. The Eleventh Circuit held, inter alia, that because the tangible employment action resulted from the refusal to submit to sexual demands, the location and timing of the sexual harassment did not matter for the purposes of the motion for directed verdict. Carly Wilson is an associate at Allen Norton & Blue P.A. in Tampa. She received her undergraduate and law degrees from the University of Florida. She graduated C. WILSON cum laude from the Levin College of Law where she was on the Trial Team and Environmental Moot Court. Section Bulletin Board Annual Florida Bar Convention Hilton Orlando Bonnet Creek Orlando Thursday, June 14, :15 p.m. 5:15 p.m. President s Showcase Seminar Because Legal Practice Isn t Always a Day at the Movies: Health, Wellness, and a Welcoming Workplace for Lawyers and Their Clients (2858) Bonnet Creek Ballroom III 5:30 p.m. 6:00 p.m. Labor & Employment Law Section Executive Council Meeting Taylor Room 6:00 p.m. 6:30 p.m. Awards Presentation Hall of Fame, Lifetime Achievement, and Law School Scholarships Taylor Room 6:00 p.m. 7:30 p.m. Reception Honoring State and Federal Judicial Nominating Commissions, Co-Sponsored by the Labor and Employment Law Section and the Florida Lawyers Chapters of the Federalist Society Floridian Ballroom F 18

19 CONTINUING LEGAL EDUCATION Earn 3 hours of CLE Credit! 0.5 Mental Illness The Florida Bar Continuing Legal Education Committee and the Labor and Employment Law Section present 2018 Annual Florida Bar Convention * PRESIDENT S SHOWCASE * Because Legal Practice Isn t Always a Day at the Movies: Health, Wellness, and a Welcoming Workplace for Lawyers and their Clients In this age of 24-hour connectivity, all lawyers whether in large firms, small offices, or institutional settings face stresses that come from heightened expectations, increased demands on their time, and a sharpened focus on workplace safety and propriety. This special seminar is devoted entirely to helping lawyers avoid and manage common pitfalls that can lead to personal and professional difficulties. Jurists and experienced attorneys discuss some of the most important matters facing legal practices today, such as providing a flexible workplace, maintaining a work-life balance, handling issues arising under the FMLA and the ADA, assessing the realities of today's workforce, evaluating and accommodating mental health issues, preserving workplace safety, and preventing harassment in all its forms. Course No. 2858R Intermediate Level Live Presentation Thursday, June 14, :15 p.m. - 5:15 p.m. Hilton Orlando Bonnet Creek & Waldorf Astoria Bonnet Creek Resort Lane Orlando, FL Certification Credit Labor and Employment Law: 3 hours Register through Members Portal, OR at the link below. Click this link 19