Appellate Arguments

Potential clients should be wary of a lawyer who says that your case is a "guaranteed winner."  In the law, there is no such thing as a "sure thing."  Judges rule against even the best advocates and juries can be highly unpredictable.  Fortunately, our system of justice allows for an appellate court to review decisions by judges and verdicts by juries.  This process helps ensure that judges are following the law and jury verdicts have not been the result of errors at trial.  

Not all lawyers are litigators.  Even those lawyers who litigate cases on paper are not always the best trial lawyers.  And even fewer lawyers have the opportunity or desire to argue their cases in front of an appellate court.  Litigating, trying cases, and handling appeals are distinct skills.  

Today, May 16, 2018, Thorpe & Thorpe, P.A. attorney Shaina Thorpe will be presenting an oral argument on behalf of one of our clients.  We have already presented our arguments on paper  and today we get the chance to talk with three appellate court judges in Tallahassee about why the judge's decision should be reversed and our client should have her day in court.  While we do not know when the First District Court of Appeal will issue its opinion on the case, we remain hopeful that the appellate court will send the case back for trial.  

In the meantime, you can watch Ms. Thorpe in action via the court's live streaming website.  There are three cases set for argument today, with the first beginning at 10 am.  So click on the link below, select the Third Floor Courtroom option, and keep an eye out for our attorneys.  We work hard for you--through trial and appeal!

http://www.1dca.org/ustream.html    

March for Our Lives and the Constitution

All attorneys in Florida take an oath to uphold and defend the Constitution of the United States as well as the Florida Constitution.  As an attorney, I am bound by that oath.  I am starting this entry this way because it seems that a lot of people are taking this past Saturday's March for Our Lives event as an attack on the Second Amendment to the United States Constitution.  That is simply not the case: it is possible to fully support the Second Amendment while at the same time, demand that our elected officials take action to "well regulate" firearms in the United States.

The First Amendment has limitations.  For example, the First Amendment does not give us the right to defame others.  It does not give us the right to make death threats or make statements that would cause physical harm.  The FCC regularly involves itself in determining what "speech" is appropriate for public consumption and at what times.  The moral of the story is that each Amendment is subject to interpretation, regulation, and repeal, if necessary (for example, next time you're having a beer with your friends, please remember that the 21st Amendment revoked the 18th Amendment which established prohibition). 

Our Founding Fathers were wise in many ways, but they could not have predicted the future we live in now.  They could not have foreseen Smartphones and social media.  And yet, as attorneys and citizens, we must now grapple with how the First Amendment interacts with these new technologies. 

The same is true with respect to the Second Amendment.  When the Amendment was drafted, rapid-fire assault weapons did not exist.  Although we cannot say for sure what the Founding Fathers would have done about assault weapons specifically, what we do know is they had the wisdom to understand that weaponry could change over time.  That is why the Second Amendment begins with the words "a well regulated militia."  The intent of the Second Amendment was to ensure that we, the people, would be able to defend ourselves from a tyrranical government.  It was not meant to be a free-for-all where anybody could get their hands on weapons that could shoot up dozens in seconds. 

And so, I, a firm supporter and defender of the Constitution of the United States of America, stood up on Saturday and rallied with those during the March for Our Lives event in Tampa.  For all of the people shot up watching movies, going to concerts, or just out having a fun night out with their friends, my heart goes out to you and your families.  To the parents, family members, and friends who lost loved ones at the school shootings over the years, I can't even begin to imagine your pain and suffering. 

We have failed to "well regulate" guns in America.  We are better than this.  And so, the next march will be to the polls in November.  Don't sit this one out.

Bringing Attention to the Issues #Timesup

At this year's Grammys, many artists used the term "Time's Up" to draw attention to many issues of social importance.  Some of those issues included discrimination, harassment, and inequal pay. Political sentiments aside, we need to continue the national discussion about the fact that many individuals continue to experience harassment in the workplace.  Sometimes it is sexual harassment, as we've seen in a lot of notorious cases of late.  Sometimes it is race-based harassment or even harassment based on religion.  Although discrimination can happen to men, more often than not, discrimination in pay is against women.  Studies show that women continue to earn less than men for performing the same job.  

If you work in the private sector, know that you are free to discuss your wages and benefits with your co-workers.  Many of us were raised with the idea that it is rude or inappropriate to discuss wages with co-workers.  But if you don't have the discussion, how will you know whether you are being paid fairly and equally based on your job duties and performance, or whether you are being paid less than your peers?  We must continue the discussion to trigger the change that's needed.

And for employers, be aware of what's going on in your company.  Audit your payroll, talk to your employees.  Find out what your employees are experiencing and be part of the solution. 

Together, we can move closer and closer to workplaces where people are judged on their performance and not on their gender, race, age, disability, religion, national origin, or the color of their skin.    

“Be the change that you wish to see in the world.” -- Mahatma Gandhi

Keep the Dream Alive

Thorpe & Thorpe, P.A. celebrates Dr. Martin Luther King, Jr. Day

Florida Minimum Wage Law Change

Under Florida Law, the state minimum wage can increase on an annual basis.  Any increases take effect January 1st.  Therefore, it is critical for employers to know that as of January 1, 2018, Florida's Minimum Wage was increased to $8.25 per hour, up from $8.10 per hour in 2017.  This means that employers will be required to change their minimum wage postings, as well as increase the wages for workers whose hourly rate of pay does not meet the new threshold.  The federal minimum wage remains at $7.25 per hour, but simply meeting that requirement will not shield employers from liability under the Florida Minimum Wage Act and Florida's constitutional minimum wage protections.  So don't wait!  Change those rates of pay and posters today!!! 

Court Temporarily Halts Salary Increase Requirement

Employers who were scrambling to comply with the December 1, 2016 increase to the salary requirement for exempt employees can breathe a little easier, at least for a while.

Earlier this year, the Department of Labor issued regulations which would have increased the minimum weekly salary required for an employee to be exempt from the overtime requirements of the Fair Labor Standards Act of 1938.  Generally speaking, employees are required to be paid time and a half of their regular rate of pay for all hours worked beyond 40 in a workweek.  However, there are exceptions to this general rule.

Three of these are the executive, managerial, and professional exceptions.  They are commonly referred to as the "white collar" exemptions.  People who meet the exemption's requirements are not entitled to overtime pay.  There are three requirements for the exemption: (1) the employee must be paid on a salary basis; (2) the weekly salary must meet the minimum amount set by the Department of Labor (this is currently $455 per week); and (3) the employee must perform exempt duties.

The Department of Labor changed the second prong of that test, requiring the minimum salary amount to go from $455 per week to $913 per week.  The regulation also would have caused that minimum salary requirement to automatically increase every three years.  This change was supposed to take effect December 1, 2016.  

Suffice it to say, many employers, including governmental employers, became concerned about how they would be able to meet the new salary requirement.  Some employers considered paying otherwise exempt employees on an hourly basis and simply paying them overtime.  Other employers, like the states that filed suit in the United States District Court in Texas, realized that the dramatic increase in salary amount would result in budget increases that the states could not fund.  These states argued that the salary increase could cost millions of dollars.  This could result in layoffs and a reduction in services.

The District Court agreed that the states and commonwealths that filed suit (Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah, and Wisconsin), had provided sufficient proof to justify a temporary injunction against the increase.  

In short, at this time, employers are not required to increase the salaries of their exempt employees on December 1, 2016.  Of course, employers are free to set the salaries of their exempt employees above the $455 weekly minimum if they choose to do so.  However, as of right now, employers are not required to increase the salary rate to the $913 per week on December 1, 2016.  

Employers should note that this injunction is temporary.  This means that the injunction could be lifted and the requirement of the increase could return.  However, based on the logic used by the Court and the dramatic impact of the temporary injunction, it would not be surprising to see extensive challenges of the decision, likely all the way up the United States Supreme Court.  You can read the decision of the court here.

Keep tuned in to blog updates from Thorpe & Thorpe, P.A. to learn more about this ongoing issue. 

Defending the Sexually Harassed

Thorpe & Thorpe, P.A. attorney Shaina Thorpe stands up for victims of sexual harassment, even against individuals who threaten to use their standing in the community to undermine the victim.  Ms. Thorpe has filed a lawsuit under Leon County's Human Rights Ordinance and will not be deterred from helping the victim of sexual harassment.  The story will be in tomorrow's Tallahassee Democrat, but can be found online here.

Sexual Harassment at Texas Roadhouse Costs Management Company $1.4 Million

As we know, gender discrimination and harassment draws a concern for not only the employed adults in the workplace but also for the minors. Nonetheless, these situations are critical should be properly treated by high-level authority, but according to a recent case filed by the EEOC against Texas Roadhouse Restaurants, that was not so.

According to the EEOC's lawsuit, a manager of a restaurant in Columbus had harassed women and even teen girls working in the front-of-the-house positions. The underlying issue is that although the incidents were reported to high-level authority, they were not addressed. It was not until video surveillance providing evidence of the harassment taking place on one high school girl that action was taken.

Therefore, for months the harassed teenager could only rely on her manager to fix the situation.  The problem was the manager was the individual responsible for the harassment.  Ultimately, the employees had the courage to go to the EEOC to file a charge of discrimination and pursue their legal rights.

As a result of the employees' decision to stand up for themselves, the company was required to provide 1.4 million in monetary relief to the harassment victims. Additionally, the company cannot rehire the offending manager. To better ensure that these offensive acts do not occur in the future, the decree also requires that the company must provide training to all employees on discrimination and retaliation. You can read more on this matter here.

If you are a victim of sexual harassment, do not be afraid to report the offender. It is your right to work in a safe environment. If you decide you want to take action against retaliation, our attorneys at Thorpe & Thorpe, P.A. will work to protect your rights.

Key Change to Mixed Motive Claims

Years ago, the Supreme Court acknowledged the existence of "mixed motive" claims of discrimination.  These are claims where although a discriminatory motive may be one reason for an employer's actions, there are other, nondiscriminatory motives at play.  For example, the evidence could show that an employee's gender played a role in an employer's decision to terminate the employee, but the employer could win the case on the theory that it had three other non-gender-related reasons for firing the employee. 

However, on February 22nd, the Eleventh Circuit Court of Appeals ruled that in these "mixed motive" cases, if the employee can show that she or he experienced an adverse employment action (such as termination) and that a protected characteristic (such as race or religion) was a motivating factor for the decision, the case can survive summary judgment.  Because the Eleventh Circuit is the federal appellate court whose decisions are binding on Florida's district courts, this decision will have an impact on employees and employers in Florida.

In short, it is no longer sufficient for an employer to identify one or two neutral reasons for its actions to avoid a possible jury trial in a "mixed motive" case based on circumstantial evidence.  Practitioners would be wise to familiarize themselves with the decision in Quigg v. Thomas County School District et al., Case No. 14-14530 (11th Cir. Feb. 22, 2016)(available here), as it may make the difference between choosing to settle a case and proceeding with litigation.

Does your employee handbook comply with the changing laws and the needs of your business?

Although annual handbook auditing is not required, it may be a good idea to have legal counsel review your employee handbook if it has not been done in a while.  2016 may be a good year to have your employee handbook reviewed for compliance due to several changes in the law.  These changes are discussed in this article.  

If your employee handbook has not been reviewed for compliance in at least 2 years, if the size of your workforce or the amount of your sales has changed significantly in the last year, or if you just have some employment law questions, give us a call to set up an appointment.