Firm News Feedhttp://www.rumberger.com/?t=39&format=xml&anc=277&directive=0&stylesheet=rss&records=10&p=4149en-us24 Jul 2014 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssMust Medical Treaters Be Paid for Their Testimony?http://www.rumberger.com/90F6E0/assets/files/News/Must Treating Physicians Be Paid for Their Testimony.pdf&format=xml&p=4149<p>&quot;Must Medical Treaters Be Paid for Their Testimony?&quot; was originally published in the Florida Defense Lawyers Association Trial Advocate Quarterly, Fall 2013 (Volume 32, #4).</p>Retail & Hospitality Blog31 Oct 2013 00:00:00 -0800http://www.rumberger.com/90F6E0/assets/files/News/Must Treating Physicians Be Paid for Their Testimony.pdf&format=xml&p=4149Protecting Licensees Against Claims of Negligent Securityhttp://www.rumberger.com/?t=40&an=22521&format=xml&p=4149<p><strong>Introduction<br /> </strong>One party generally is not responsible for the intentional torts or criminal acts of another. However, the rule is not absolute.&nbsp;Proprietors must maintain their premises in a reasonably safe condition and make &ldquo;every reasonable effort&rdquo; to maintain order among those who patronize their business.&nbsp;Borda v. East Coast Entertainment, 950 So. 2d 488 (Fla. 4th DCA 2007).&nbsp;Thus, establishments have a duty to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct.</p> <p>This exception poses a special danger peculiar to Florida licensees.&nbsp;Florida is a &ldquo;comparative fault state;&rdquo; courts generally apportion damages according to each party&rsquo;s percentage of fault.&nbsp;However, in cases where one patron injures another during or after a reasonably foreseeable criminal act, the owner of the premises may be held legally responsible for a claimant&rsquo;s damages. <i>Merrill Crossings Associates v. McDonald</i>, 705 So. 2d 560 (Fla. 1997).&nbsp;In this article, we explore the basic principles underlying claims for negligent security and the different options available to licensees to be proactive and protect their businesses.</p> <p><strong>General Liability for Negligence Security</strong><br /> Licensees may be held liable for failing to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct.&nbsp;Foresee ability may be established by proving a proprietor had actual or constructive knowledge of (1) a particular assailant&rsquo;s inclination toward violence; or (2) the &ldquo;dangerous condition&rdquo; of the premises.&nbsp;<i>Hall v. Billy Jack&rsquo;s, Inc</i>., 458 So. 2d 760 (Fla. 1984).&nbsp;A plaintiff may prove that a &ldquo;dangerous condition&rdquo; existed either by showing that there was a &ldquo;likelihood&rdquo; of disorderly conduct that might endanger the safety of patrons or that security staffing was &ldquo;inadequate.&rdquo;&nbsp;Key factors include local crime rates, prior incidents (including calls to law enforcement), the crime&rsquo;s location (whether it occurred on the premises, next to the premises, or close to the premises), the type of crime, the specific circumstances of the crime, and whether security measures could have deterred the crime.</p> <p>In the case of <i>Allen v. Babrab</i>, 438 So. 2d 356 (Fla. 1983),&nbsp;an intoxicated male patron assaulted a woman in an club&rsquo;s parking lot after she rebuffed his advances.&nbsp;The establishment had a history of fighting and disorderly conduct by its patrons.&nbsp;Thus, in the past the club had employed security personnel to maintain security on their premises.&nbsp;However, on the night of the incident with Plaintiff, no security was present even though the club recognized that there was a likelihood of disorderly conduct by third persons.&nbsp;The court held that establishments have a duty to protect patrons from foreseeable harms and found that the establishment was negligent and liable for the incident because it failed to address a known danger.</p> <p><strong>Minimizing Risk and Exposure<br /> </strong>Licensees can protect themselves from liability and minimize exposure by being proactive.&nbsp;&nbsp; Some of the actions they make take include :</p> <ul> <li>Identifying who is responsible for security in their leases</li> <li>Drafting and implementing&nbsp;policies that set out the licensees practices for: <ul> <li>&nbsp;Hiring and retention</li> <li>&nbsp;Crime reporting</li> <li>&nbsp;Maintenance</li> <li>&nbsp;Safety</li> <li>Security</li> <li>Alcohol and drugs<br /> &nbsp;</li> </ul> </li> <li>Familiarizing managers with local crime statistics</li> <li>Maintaining the premises <ul> <li>Ensure appropriate lighting</li> <li>Prevent overgrown landscaping that may provide criminals with cover to hide</li> <li>Installing walls or fences if appropriate</li> </ul> </li> </ul> <ul> <li>Recordkeeping</li> <li>Documenting and tracking incidents</li> <li>Maintaining appropriate staff</li> <li>Hiring security if necessary</li> <li>Discouraging overconsumption or over-service</li> <li>Removing&nbsp;customers in appropriate cases</li> <li>Contacting the police for backup when necessary</li> </ul> <p><strong>Investigation and Defense</strong><br /> Accidents happen and many patrons are quick to file claims or suits, irrespective of their validity.&nbsp;Unfortunately, patrons typically have between two and four years to file their suits.&nbsp;During that time, memories fade, employees switch jobs, and evidence disappears.&nbsp;This makes it very difficult for establishments to defend themselves.&nbsp;Thus, it is important&nbsp;that licensees investigate all incidents as quickly as possible and document their findings by taking written or stenographic statements of witnesses and taking photographs or video if possible.&nbsp;In cases involving significant injuries or death,&nbsp;licensees may want to contact counsel&nbsp;early on to confirm that all bases are covered.</p> <p><strong>Insurance</strong><br /> Of course, it is virtually impossible to eliminate risk entirely, particularly in our extremely litigious society.&nbsp;In December 2011, a Texas woman sued a bar when she was raped by two police officers after leaving a local club.&nbsp;She claimed that the establishment was responsible because employees served her alcohol until she became intoxicated, continued serving her even after she became visibly drunk, and then allowed her to leave the club when she&nbsp;posed a clear danger to herself and others.&nbsp;While we are skeptical that a similar suit could be successfully prosecuted in Florida since it is unforeseeable that police officers would rape anyone, it serves as a great reminder of how important it is for licensees to be aware of their potential liability and obtain and maintain insurance coverage.&nbsp;</p> <p><strong>Conclusion</strong><br /> We live in an imperfect and litigious world fraught with risk, both seen and unseen.&nbsp;Businesses are cautioned to protect themselves as much as they reasonably can against all such dange</p>Retail & Hospitality Blog01 Aug 2013 00:00:00 -0800http://www.rumberger.com/?t=40&an=22521&format=xml&p=4149In With the New! Florida Appellate Court Finds Florida's Notice Statutehttp://www.rumberger.com/?t=40&an=18709&format=xml&p=4149<p>An intermediate appellate Court in Florida has ruled that the State&rsquo;s current statute for premises liability in slip and falls applies to all active cases. The result of this ruling is that Florida Statute &sect;768.0755 is controlling law for a slip and fall incident even if the incident occurred before the July 1, 2010 effective date of the law.&nbsp;</p> <p>In <i>Carrie Kenz v. Miami-Dade County and Unicco Service Company</i>, Case No. 3D12-571 (opinion filed April 24, 2013), Florida&rsquo;s Third District Court of Appeal rejected the argument by Ms. Kenz that the current premises liability law did not apply to her May 13, 2008 accident because the effective date of the law is July 1, 2010.&nbsp;Ms. Kenz argued the subject statute does not state a specific intent that it is to be retroactively applied and that absent such language the Statute can only be applied prospectively from the date of enactment.</p> <p>The Third District Court of Appeal disagreed with Ms. Kenz&rsquo; position and affirmed the decision made by the trial court to apply Fla. Stat. &sect;768.0755.&nbsp;The Third District Court of Appeal also affirmed the trial court&rsquo;s decision to grant summary judgment in favor of the defense on the grounds Ms. Kenz failed to show actual or constructive notice of the presence of the liquid on which she slipped.&nbsp;</p> <p>The threshold issue addressed by the Court was whether &sect;768.0755 is a procedural or substantive law.&nbsp;A substantive law prescribes duties and rights, whereas a procedural law regards the means and methods to apply those duties or enforce those rights.&nbsp;This distinction is critical in that substantive laws will not apply retroactively absent legislative intent.&nbsp;However, the Florida Supreme Court has held a procedural law &ldquo;should be applied to pending cases in order to fully effectuate the legislation&rsquo;s intended purpose.&rdquo; <i>Smiley v. State</i>, 966 So. 2d 330, 334 (Fla. 2007). &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>The Third District Court of Appeal held &sect;768.0755 does not add an element to negligence causes of action.&nbsp;Instead, it merely &ldquo;codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care.&rdquo;&nbsp;The Court reasoned a plaintiff who has an accrued slip and fall claim under the old statute, continues to have the same claim pursuant to &sect;768.0755.&nbsp;The statute does not alter a plaintiff&rsquo;s vested right in a prima facie case of negligence.&nbsp;Therefore, the Court concluded &sect;768.0755 is procedural and applies retroactively.</p> <p>So what&rsquo;s next?&nbsp; After <i>Kenz</i>, all slip and fall plaintiffs will need evidence of a business establishment&rsquo;s actual or constructive notice, even if their accidents occurred prior to the statute&rsquo;s enactment.<a name="_ftnref1" href="#_ftn1" title=""><span><span><span>[1]</span></span></span></a>&nbsp;In cases where notice is suspect, practitioners may want to consider seeking summary judgment and cite to <i>Kenz</i> as supporting authority.&nbsp;Further, the <i>Kenz</i> decision will likely serve as leverage for businesses in settlement negotiations, as it increases a plaintiff&rsquo;s burden at trial.&nbsp;</p> <div><br clear="all" /> <hr width="33%" size="1" align="left" /> <div id="ftn1"> <p><a name="_ftn1" href="#_ftnref1" title=""><span><span><span>[1]</span></span></span></a><font size="2"> Please note this opinion was filed April 24, 2013.&nbsp;Florida Rule of Appellate Procedure 9.330 provides a Motion for Rehearing &ldquo;may be filed within 15 days of an order or within such other time set by the court.&rdquo;&nbsp;Therefore, the deadline for Plaintiff to seek rehearing is on or before <u>May 9, 2013</u>, at which point this decision becomes final. </font></p> </div> </div>Retail & Hospitality Blog06 May 2013 00:00:00 -0800http://www.rumberger.com/?t=40&an=18709&format=xml&p=4149Florida Supreme Court Rules No Vicarious Liability for Businesses that Rent or Lease Vehicleshttp://www.rumberger.com/?t=40&an=18564&format=xml&p=4149<p>A recent decision of the Florida Supreme Court shields owners of vehicles leased for one year or more from liability for harm that results from the lease of the vehicles. <i>Rosado v. DaimlerChrysler</i>, ___ So. 3d ___, 2013 WL 1338047 (Fla. Apr. 4, 2013).&nbsp;In <i>Rosado</i>, the Florida Supreme Court ruled that the federal Graves Amendment, which insulates businesses that rent or lease vehicles from vicarious liability for harm caused by their drivers, preempts Florida state law.&nbsp;By a 5-2 decision, the <i>Rosado</i> Court held &ldquo;the Graves Amendment preempts liability under Florida Statutes Section 324.021(9)(b)(1).&rdquo;&nbsp;&nbsp; <i>Rosado</i>, 2013 WL 1338047, at *1.</p> <p>Prior to the enactment of the Graves Amendment in 2005, Florida law imposed vicarious liability on all owners of vehicles based on the dangerous instrumentality doctrine, which makes owners of vehicles liable for the negligence of their drivers.&nbsp;Under Section 324.021(9)(b)(1), companies that lease vehicles for a term of one year or more had the option of requiring the lessee to carry insurance of &ldquo;not less than $100,000/$300,000 bodily injury liability and $50,000 property damage liability or not less than $500,000 combined property damage and bodily injury liability.&rdquo;&nbsp;If the elective insurance is obtained, the lessor is not deemed an owner under the dangerous instrumentality doctrine, and thus not vicariously liable for the lessee&rsquo;s negligence.&nbsp;</p> <p>The Graves Amendment abolished vicarious liability against owners that rent or lease vehicles if the owner is engaged in the &ldquo;business of renting or leasing motor vehicles; and there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).&rdquo;&nbsp;49 U.S.C. &sect;30106.&nbsp;The amendment contains a savings clause, designed to ensure the statute does not preempt state financial responsibility laws, which reads:</p> <p>Nothing in this section supersedes the law of any State or political subdivision thereof&mdash;</p> <p>(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or</p> <p>(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.</p> <p>49 U.S.C. &sect;30106(b).&nbsp;The <i>Rosado</i> Court rejected the contention that 324.021(9)(b)(1) is a financial responsibility law.&nbsp;It reasoned that the statute does not &ldquo;does not impose[e] financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle&rdquo; or impose liability on businesses that rent or lease vehicles.&nbsp;<i>Rosado</i>, 2013 WL 1338047, at *7.&nbsp;Instead, &ldquo;the statute creates a process by which long-term lessors can avoid the default financial responsibility imposed upon them by Florida&rsquo;s dangerous instrumentality doctrine.&rdquo;&nbsp;<i>Id</i>.</p> <p>In so holding, the court followed the reasoning of a prior Florida Supreme Court opinion in <i>Vargas v. Enterprise Leasing Co.</i>, 60 So. 3d 1037 (Fla. 2011).&nbsp;In <i>Vargas</i>, the court held the Graves Amendment preempted Section 324.021(9)(b)(2), which related to the rental and lease of vehicles for less than one year.&nbsp;</p> <p>Nearly eight years after the enactment of the Graves Amendment, the dust has settled in Florida courts.&nbsp;Now there is certainty that regardless of whether a business rents or leases a vehicle for one day or over a year, it cannot be held vicariously liable for the harm caused by its customer during the use, operation or possession of the vehicle.&nbsp;</p>Retail & Hospitality Blog17 Apr 2013 00:00:00 -0800http://www.rumberger.com/?t=40&an=18564&format=xml&p=4149D.C. Circuit Holds that President Obama's Recess Appointments of the NLRB were Unconstitutionalhttp://www.rumberger.com/?t=40&an=17528&format=xml&p=4149<p>Decisions of the National Labor Relations Board issued after January 2012 may be invalid. On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit, in <i>Noel Canning v. NLRB</i>,<a title="" href="#_ftn1" name="_ftnref1"><span><span><span>[1]</span></span></span></a> held that President Barack Obama&rsquo;s recess appointments of three National Labor Relations Board (&ldquo;Board&rdquo;) members were unconstitutional and, therefore, the Board lacked the three-member quorum required by the National Labor Relations Act for the Board to act.</p> <p>&nbsp;</p> <p>In the underlying proceeding, the Board issued a decision finding that the Noel Canning Company had engaged in an unfair labor practice.&nbsp;At the time of that decision, only two of the five Board members were confirmed by the Senate; the other three Board members had been appointed by President Obama on January 4, 2012, during a time (from December 20, 2011, until January 23, 2012) when the Senate had agreed to meet in <i>pro forma</i> sessions every three business days.&nbsp;The President viewed that time as a &ldquo;recess&rdquo; and appointed the three Board members without Senate confirmation under the Recess Appointment Clause of the U.S. Constitution.<a title="" href="#_ftn2" name="_ftnref2"><span><span><span>[2]</span></span></span></a>&nbsp;&nbsp;&nbsp;</p> <p>On appeal to the D.C. Circuit, the petitioner argued that the Board&rsquo;s decision was unconstitutional because the appointments of the three Board members were not valid recess appointments and, thus, the Board had acted without a quorum and lacked the power to issue its decision.</p> <p>The D.C. Circuit agreed.&nbsp;It held that the appointments of the three Board members were unconstitutional and that the Board did not have the power to act when it issued its order.&nbsp;The D.C. Circuit further held that when the President made the three appointments, the Senate was not in &ldquo;recess&rdquo; but was merely adjourned.&nbsp;Interpreting the term &ldquo;recess&rdquo; as the time between official sessions of the Senate, the D.C. Circuit determined that the Senate was not in &ldquo;recess&rdquo; at the time of the appointments.&nbsp;Accordingly, the President was unable to appoint the Board members without the consent of the Senate.&nbsp;The D.C. Circuit also found that the appointments were improper because the three vacancies did not &ldquo;happen&rdquo; during a recess, but, instead, happened before the Senate adjourned.<a title="" href="#_ftn3" name="_ftnref3"><span><span><span>[3]</span></span></span></a>&nbsp;Because the appointments were constitutionally invalid, the D.C. Circuit vacated the order issued by the Board.&nbsp;</p> <p>This ruling not only impacts the Noel Canning Company but every one of the Board&rsquo;s decisions issued since January 4, 2012. This is particularly notable because the Board had issued several decisions in the last year extending labor-friendly positions to areas such as social media, employment-at-will policies, and the confidentiality of investigations, as well as overturning some long-standing, employer-friendly decisions of prior Boards.&nbsp;Additionally, pursuant to the decision of the D.C. Circuit, the Board would be unable to take any future action until new members are validly appointed by President Obama and confirmed by the Senate.&nbsp;</p> <p>This decision is not the end of the dispute.&nbsp;It is likely that the current administration will appeal the D.C. Circuit&rsquo;s decision to the Supreme Court.&nbsp;Until there has been a final resolution of this issue, employers should treat any decisions of the Board as valid.&nbsp;</p> <div><br clear="all" /> <hr width="33%" size="1" align="left" /> <div id="ftn1"> <p><a title="" href="#_ftnref1" name="_ftn1"><span><span><span>[1]</span></span></span></a>Case No. 12-1115 (D.C. Cir. Jan. 25, 2012).</p> </div> <div id="ftn2"> <p><a title="" href="#_ftnref2" name="_ftn2"><span><span><span><span>[2]</span></span></span></span></a> That Clause reads: &ldquo;[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.&rdquo;&nbsp;U.S. Const. art. II, &sect; 2, cl. 3.</p> </div> <div id="ftn3"> <p><a title="" href="#_ftnref3" name="_ftn3"><span><span><span>[3]</span></span></span></a>The three vacancies occurred on August 27, 2010,&nbsp;August 27, 2011, and&nbsp;January 3, 2012.</p> </div> </div>Retail & Hospitality Blog04 Feb 2013 00:00:00 -0800http://www.rumberger.com/?t=40&an=17528&format=xml&p=4149Broward County Passes a Wage Theft Ordinance - The Effect on Retailers that do Business in Floridahttp://www.rumberger.com/?t=40&an=16074&format=xml&p=4149<p>On October 23, 2012, Broward County became the second Florida County to pass a Wage Theft Ordinance (&quot;WTO&quot;). Broward Ordinance No. 2012-32 joins Chapter 22, Sections 1-10, of the Code of Miami-Dade County as the first few ordinances of their kind in the Country.&nbsp;Palm Beach County has previously considered the idea of a WTO and is expected to follow suit shortly.</p> <p>Why are the Florida Wage Theft Ordinances Problematic for Florida Businesses?</p> <p>Simply put, they create an inconsistent patchwork of administrative remedies and place responsibility in the hands of vaguely defined decision makers (referred to as &quot;Hearing Officers&quot;) who act in a quasi-judicial capacity.&nbsp;&nbsp; Further, WTOs are at odds with, or ignore altogether, the legal remedies that already exist to prevent unscrupulous employers from taking advantage of employees. The Florida WTOs&nbsp;may cause many legitimate employers to be needlessly dragged through the administrative process with commensurate expense of time and money.</p> <p>Why Should Retailers, both Large and Small, Care about Wage Theft Ordinances?</p> <p>Based upon data from the Florida Agency for Workforce Innovation, in 2010 Broward County was reaching a labor force of one million.&nbsp;The Broward County Department of Urban Planning and Redevelopment classifies the retail sector of Broward as accounting for approximately 12% of the businesses and 8% of all employees in the County.&nbsp;In reality, those figures are probably low based on rigid classifications of businesses and employees.&nbsp;Broward is home to many thriving large retail areas including those in Sunrise, Plantation, Pembroke Pines and Coral Springs.&nbsp;The reality is that given the size of the retail industry in a Broward County, it is inevitable that retailers, both big and small, will be subjected to action under Broward's WTO.&nbsp;This ordinance is more aggressive than its Miami-Dade counterpart by creating added expenses and exposure to liquidated damages, administrative costs, attorney's fees, court costs and interest.&nbsp;Employers beware!</p> <p>Breaking Down Broward Ordinance 2012-32</p> <p>Broward's WTO applies to all employers other than the United States Government, The State of Florida and &quot;[A]ny Indian Tribe&quot; that operate in Broward County.&nbsp;Under the Ordinance, all employers in Broward County are required to post a notice of the administrative claim created under the Broward WTO at their place of business.&nbsp;</p> <p>Definition of Wage Theft</p> <p>Under Broward's WTO, wage theft occurs when an employer fails to pay any portion of wages ($60 or more) due to an employee within fourteen (14) days from the date on which work is performed unless the employer has a policy or practice to pay employees on a regular schedule.&nbsp;</p> <p>The Wage Theft Claim Process</p> <p>The Broward WTO requires 60 days advance written notice to the employer as a condition to bringing an action under the ordinance.&nbsp;If the matter is not resolved, a sworn complaint may be filed. The employer has 20 days to respond to the complaint after service. The WTO offers a conciliation process which is ill-defined and to be run by Broward County.&nbsp;It has the objective of reaching an agreement to avoid any further action between the parties on the claim of wage theft.&nbsp;If conciliation fails, the employer is advised that it may have a &quot;due process&quot; hearing with a Hearing Officer appointed by the County, but if the employer elects to pursue its due process rights, it may also be held liable for the &quot;costs of the Hearing Officer&quot; and so called &quot;enforcement costs.&quot;&nbsp;No explanation is provided for the amount associated with use of a Hearing Officer. &nbsp;Likewise, &quot;enforcement costs&quot; are not defined anywhere in the WTO.</p> <p>The Powers of the &quot;Hearing Officer&quot;</p> <p>Also troubling, is the fact that there is reference in the WTO to a &quot;qualified&quot; Hearing Officer without any stated criteria outside of the officer being a member in good standing of the Florida Bar for at least 5 years.&nbsp;Further, the quasi-judicial power of the WTO lies within the empowerment of the Hearing Officer to &quot;administer oaths, issue subpoenas, and compel the production of evidence.&quot;&nbsp;&nbsp; All parties are required to appear in person at a wage theft hearing.&nbsp;The Hearing Officer may also move to hold an uncooperative witness in contempt. If an issue of contempt is referred to a civil court, penalties for a finding of contempt may include a $500 fine and up to 60 days in prison.</p> <p>Unfavorable Inference for Employers</p> <p>Of concern from the standpoint of fairness to small employers, Broward's WTO sets the burden of proof at a &quot;preponderance of the evidence standard&quot; (meaning more probable than not) and creates an inference that an employer has committed wage theft when an employer keeps &quot;imprecise, inadequate&quot; or no records.</p> <p>When a Violation of Broward's WTO is Found</p> <p>When an employer is found to have violated Broward's WTO, it is liable for the unpaid wages that are deemed due and owing by the Hearing Officer.&nbsp;The employer is also liable for &quot;liquidated damages&quot; which is a monetary award defined as equal to the wages the employer is found to have failed to pay the employee (while classified as &quot;liquidated&quot; this amounts to a fine or punishment).&nbsp;The Hearing Officer has full discretion to award liquidated damages, reduce them or not to award them at all.&nbsp;A Hearing Officer's ruling is considered a final administrative ruling and enforceable in a court of competent jurisdiction.&nbsp;&nbsp;&nbsp;</p> <p>Employers are Exposed to Attorney Fees and Costs</p> <p>Broward's WTO stands very far apart from its Miami-Dade counterpart in setting the stage for a potential cottage industry by offering multiple avenues for employees to recover attorney fees.&nbsp;First, if it is alleged that a conciliation agreement has been breached, the aggrieved party may file an immediate action in Broward County's Civil Court.&nbsp;In that action, the prevailing party is entitled to both costs of the action and attorney's fees.&nbsp;Second, should an employee who is successful under Broward's WTO elect to retain a lawyer to pursue the claim, the employer is required to reimburse the prevailing employee &quot;for any reasonable costs and attorney's fees incurred by the employee in connection with the administrative hearing.&quot;&nbsp;The employer is also to &quot;pay the Board of County Commissioners an assessment of costs in an amount not to exceed the actual administrative processing costs and the costs of the hearing.&quot;&nbsp;Lastly, if an employee is required to file a civil court action to recover on the final judgment of a hearing officer, the employee is also entitled to an award of court costs, interest retroactive to the date of the order finding wage theft and attorney's fees from the employer for bringing the enforcement action.&nbsp;</p> <p>When Employees File Frivolous Actions</p> <p>Employees who are found to have filed frivolous actions are exposed to repay: (1) the County's costs; and (2) the respondent's costs and any attorney fees.&nbsp;The employee may be exposed to a civil action in court if reimbursement if not made in a &quot;timely manner&quot; (not defined in the Ordinance).</p> <p>Avoidance of Duplicate Actions Under Broward's WTO</p> <p>The Ordinance provides that an employee cannot simultaneously pursue the same claim for wage theft under Federal, State and County enforcement actions.&nbsp;If the employee brings an action under either Federal or State law for unpaid wages, the County will deem the administrative action &quot;withdrawn&quot; upon notice.</p> <p>The Broward WTO's Statute of Limitations</p> <p>The Ordinance has a one-year statute of limitations which runs from the &quot;last date upon which the employee performed work for the employer.&quot;</p> <p>Conclusion</p> <p>Broward Ordinance 2012-32 takes effect on January 3, 2013 and with it, many employers who believe in paying a fair day's wages for a fair day's work will be pulled into unnecessary and costly litigation.&nbsp;More to come about Florida WTOs.</p>Retail & Hospitality Blog06 Nov 2012 00:00:00 -0800http://www.rumberger.com/?t=40&an=16074&format=xml&p=4149EEOC Sues King Soopers for Alleged Discrimination Against Employee with Bipolar Disorderhttp://www.rumberger.com/?t=40&an=15996&format=xml&p=4149<p>Last month, the U.S. Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;) filed a federal court lawsuit against King Soopers, Inc. (&ldquo;King&rdquo;), a large retail food company. The EEOC alleges King refused to accommodate and unlawfully fired a receptionist working in its corporate headquarters because of her bipolar condition.</p> <p>According to the EEOC&rsquo;s filing (EEOC v. Dillon Companies, Inc., d/b/a King Soopers, Inc. 12-cv-02458-REB-KMT), the employee was hired in 2003 and worked for five years at which time she requested time off to manage her bipolar disorder.&nbsp;Specifically, she sought use of King&rsquo;s 18-month medical leave policy &ldquo;to manage a flare-up&rdquo; in her disability.&nbsp;During her fifth month of leave, King terminated the employee for failing to report to work without permission.&nbsp;&nbsp;</p> <p>The Americans with Disabilities Act (&ldquo;ADA&rdquo;), passed in 1990, prohibits discrimination against qualified individuals with disabilities in job application procedures and in hiring, firing, advancement, compensation and job training.&nbsp;The prohibition includes discrimination by private employers, state and local governments, employment agencies and labor unions.&nbsp;The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities or who has a record of such an impairment or is regarded as having such an impairment.&nbsp;Under the ADA, employers are required to make a &ldquo;reasonable accommodation&rdquo; for a qualified applicant/employee so long as it does not impose undue hardship on the employer&rsquo;s operations.&nbsp;</p> <p>Employers must be careful not to overlook the fact that under the ADA, medical leave constitutes a &ldquo;reasonable accommodation.&rdquo;&nbsp;An employer can provide &ldquo;reasonable accommodations&rdquo; to a disabled employee by allowing the employee an amount of leave consistent with federal or state laws or, consistent with that which is already available to the employee under the employer&rsquo;s general leave policies.</p> <p>As of the date of this article, King has not yet filed its response to the EEOC&rsquo;s complaint and therefore its position is unknown.&nbsp;However, in order to establish a prima facie case of unlawful discrimination under the ADA, the plaintiff will have the burden of establishing the following elements by a preponderance of the evidence:&nbsp;(1) that the employee has a disability; (2) that she was qualified to serve in the position, with or without some reasonable accommodation by King, despite the disability; and (3) that she suffered an adverse employment action because of the disability.&nbsp;Unless the EEOC has direct evidence of discriminatory intent by King, it can attempt to demonstrate discrimination by indirect evidence.&nbsp;Then, the burden will shift to King to articulate a legitimate nondiscriminatory reason for its employment decision.&nbsp;Once King has offered evidence of a legitimate, non-discriminatory reason, in order to proceed the EEOC must present some concrete evidence, in the form of specific facts, demonstrating that King&rsquo;s reason was only a mere &ldquo;pretext&rdquo; for discrimination.&nbsp;The EEOC will not be permitted to rely on a possibility or inference of discriminatory motive.&nbsp;If the EEOC cannot present this evidence, King may be entitled to summary judgment.</p>Retail & Hospitality Blog26 Oct 2012 00:00:00 -0800http://www.rumberger.com/?t=40&an=15996&format=xml&p=4149Toys "R" Us Sued for Allegedly Stealing Trade Secretshttp://www.rumberger.com/?t=40&an=15229&format=xml&p=4149<p>On September 24, 2012, Fuhu, Inc. filed suit against Toys &quot;R&quot; Us alleging the toy retailer stole trade secrets in creating its children's tablet computer, the Tabeo. The lawsuit, filed in the U.S. District Court, Southern District of California, alleges breach of contract, fraud, unfair competition and trade secret misappropriation. According to the lawsuit, in October 2011 Toys &quot;R&quot; Us agreed to become the exclusive distributor of Fuhu's Nabi tablet computer. Fuhu alleges that Toys &quot;R&quot; Us did almost no promotion and the relationship ended in January 2012.</p> <p>Recently, Toys &quot;R&quot; Us announced its Tabeo Kids Tablet, set to start shipping on October 21, 2012. Fuhu alleges Toys &quot;R&quot; Us stole trade secrets in designing the Tabeo Kids Tablet. Fuhu asks the Court to order Toys &quot;R&quot; Us to stop selling the Tabeo, that all Tabeos be turned over to Fuhu, and unspecified money damages.</p> <p>Fuhu has sought a temporary restraining order to not allow Toys &quot;R&quot; Us to sell the Tabeo, including taking any internet orders for the device. Toys &quot;R&quot; Us alleges the lawsuit, and the temporary restraining order, are sought to limit competition during the 2012 Christmas season. Toys &quot;R&quot; Us points to Fuhu's request for a 3 month injunction as evidence of Fuhu's interest in limiting competition during the Holiday season. The hearing on the temporary restraining order is set for late October, 2012.</p> <p>The case is <em>Fuhu Inc. v. Toys R Us Inc</em>., Case No. 12-CV-2308, U.S. District Court, Southern District of California.</p>Retail & Hospitality Blog01 Oct 2012 00:00:00 -0800http://www.rumberger.com/?t=40&an=15229&format=xml&p=4149The California Brinker Decision: A Win for Employershttp://www.rumberger.com/?t=40&an=13257&format=xml&p=4149<p>A &ldquo;break&rdquo; for the restaurant, hospitality, and other industries that pay hourly-based wages has recently surfaced from the Supreme Court of California. In a decision released in April 2012, the court in <i>Brinker v. Superior Court</i> held that, while employers must &ldquo;relieve the employee of all duty for [a] designated meal [or rest] period,&rdquo; employers are <i>not</i> obligated to affirmatively ensure that no work related tasks are performed during such periods.&nbsp;A tremendous sum has been expended by employers defending class action lawsuits such as this, <i>Brinker</i> surely is favorable to employers who have had to defend allegations of not providing adequate break periods or coercing employees into &ldquo;voluntarily&rdquo; skipping breaks altogether.</p> <p>The origin of the <i>Brinker</i> case is found in a decision by the California state legislature and the State&rsquo;s Industrial Welfare Commission (IWC) to approve the availability of monetary remedies (as opposed to only injunctive relief) for violations of meal break statutes.&nbsp;Subsequently, Brinker Restaurant Corp., which owns or has owned popular restaurant chains such as Chili&rsquo;s, Romano&rsquo;s Macaroni Grill, and On the Border Mexican Grill &amp; Cantina, was sued by a class of plaintiffs comprised ofcurrent and former Brinker employees in California. &nbsp;The complaint alleged that Brinker failed to provide the statutorily required rest and meal breaks.&nbsp;</p> <p>The court addressed two primary legal questions the amount of break periods that must be authorized and the timing of the break periods.</p> <p>The California Supreme Court interprets the statutory wage provisions to read that an employer must provide an employee with no less than a thirty-minute meal period by the end of the fifth hour of work. The meal break must also fall in the &ldquo;middle&rdquo; of the work shift as much as practicable, the break must not be interrupted, and it must be free from employer duty and control. &nbsp;An employer may also not &ldquo;impede or discourage&rdquo; the employee from taking the entire break period.&nbsp;The statutory language does <i>not</i> however, instruct that meal breaks must fall into sequential five-hour intervals.&nbsp;This means that two thirty-minute meal breaks may be joined together; one at the end of the fifth hour and one at the beginning of the sixth hour of work.&nbsp;Finally, each employee is entitled to an additional ten minutes of rest for every three and one half and six hours of work, twenty minutes of rest for every shift between six and ten hours, and thirty minutes of rest for shifts between ten and fourteen hours.&nbsp;</p> <p>While these are affirmative allowances that must be given by the employer, the Brinker court found that there is a clear release of obligation by the employer to &ldquo;police meal breaks and ensure no work thereafter is performed,&rdquo; as stated by the <i>Brinker</i> court.&nbsp;&nbsp; In this employer/employee exchange, it is the role of the employer to &ldquo;relinquish [full] control over [the employee&rsquo;s] activities&rdquo; and afford employees an &ldquo;opportunity to take an <i>uninterrupted</i> thirty-minute break.&rdquo; &nbsp;The reasoning behind this instruction would be self-defeating however, if the employer is also <i>obligated to impose its influence</i> during the employee break, in an effort to ensure the employee does not work, through monitoring and the imposition of restrictions on the employee&rsquo;s activities.</p> <p>So what does the <i>Brinker</i> decision mean?&nbsp;Employers must afford their workers the opportunity to enjoy statutorily protected break requirements and during that period, must be absent from control or influence.&nbsp;Additionally, employers may not attempt to circumvent these obligations by direct or indirect pressure on employees to perform work activities during break periods.&nbsp;On the other hand, without an affirmative duty on employers to ensure that employees are not working during break periods, employees cannot then choose to work during these periods and subsequently attempt to pin liability on the employer for doing so.&nbsp;Accordingly, the <i>Brinker</i> decision is sure to limit future litigation, thereby saving significant legal expenses for employers.&nbsp;Simultaneously, <i>Brinker</i> affords employees an opportunity to a break during the workday or the right to forego their breaks altogether.&nbsp;Scott Graham, commenting on website www.law.com, states that the &ldquo;ruling in <i>Brinker</i> turns almost exclusively on California law, but is expected to reverberate throughout the country&rdquo; which is most assuredly the case.</p>Retail & Hospitality Blog29 Jun 2012 00:00:00 -0800http://www.rumberger.com/?t=40&an=13257&format=xml&p=4149Even the Chairman is Not Immune to Company Policieshttp://www.rumberger.com/?t=40&an=12993&format=xml&p=4149<p>Best Buy&rsquo;s founder and chairman, Richard Shulze, was caused to step down after an internal probe revealed he knew CEO Brian Dunn had a relationship with a 29 year old subordinate and failed to report it to the Board. Best Buy policy requires the Chairman to report the findings to the Board. Schulze founded the company, made Best Buy the company of the year in 2004, and is a former Entrepreneur of the Year, but none of this protected him when he failed to follow company policy. The outcome at Best Buy is a powerful example that corporate compliance applies to all employees and in this era, companies are more serious than ever about having an above the board image post-2008 meltdown.</p> <p>For the original story, clicke <a href="http://online.wsj.com/article/SB10001424052702304192704577403922338506912.html?mod=dist_smartbrief">here</a>.</p>Retail & Hospitality Blog05 Jun 2012 00:00:00 -0800http://www.rumberger.com/?t=40&an=12993&format=xml&p=4149