11th Circuit Affirms Summary Judgment In FLSA Case & Affirms Sanction Against Lawyer

In Josendis v. Wall to Wall Residence Repairs, Inc. (09-12266), the Eleventh Circuit released a published decision affirming the district court's judgment relating to the Fair Labor Standards Act of 1938 (the “FLSA”). Judge Tjoflat wrote the opinion and Judge Cox concurred. District Court Judge Korman filed a dissenting opinion.

"Wall to Wall moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for relief. Because Wall to Wall attached an affidavit and a statement of undisputed facts to its motion, the district court converted the motion to a motion for summary judgment pursuant to Rule 12(d) and gave the parties 'a reasonable opportunity to present all the material that [was] pertinent to the motion.'” After the court ordered deadline to present material passed, Josendis served discovery requests. "Wall to Wall objected to this discovery and moved the court for a protective order under Rule 26(c). The court granted Josendis leave to engage in discovery limited to the issues presented in Wall to Wall’s motion, and sanctioned Josendis’s attorney pursuant to Rule 37(a)(5)(B) for abusing the discovery process."

Issues on Appeal: "At the close of this limited discovery, the court granted Wall to Wall summary judgment on Josendis’s FLSA claim and dismissed his state law claim without prejudice. Josendis now appeals that ruling. He contends that material issues of fact precluded summary judgment and, alternatively, that, had the district court not limited his discovery as it did, he would have uncovered evidence that would have created material issues of fact. Josendis also appeals the district court’s sanctions order against his attorney."

The court began its analysis by providing a fairly extensive overview of the FLSA. The overview began:

The FLSA mandates that an “employee[]” who is “engaged in interstate commerce” must be paid an overtime wage of one and one-half times his regular rate for all hours he works in excess of forty hours per week. 29 U.S.C. § 207(a). If a covered employee is not paid the statutory wage, the FLSA creates for that employee a private cause of action against his employer for the recovery of unpaid overtime wages and back pay. Id. § 216(b).

"In order to be eligible for FLSA overtime, however, an employee must first demonstrate that he is 'covered' by the FLSA. There are two possible types of FLSA coverage....First, an employee may claim 'individual coverage' if he regularly and 'directly participat[es] in the actual movement of persons or things in interstate commerce.' Second, an employee is subject to enterprise coverage if he is 'employed in an enterprise engaged in commerce or in the production of goods for commerce,' 29 U.S.C. § 207(a)(1), where commerce means 'trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof,' id. § 203(b), and an 'enterprise” is the activities performed by a person or persons who are (1) engaged in 'related activities,' (2) under “unified operation or common control,' and (3) have a 'common business purpose,' id. § 203(r)(1)......" After providing this overview, and much more, the court analyzed the facts of the case:

Wall to Wall, formerly a Florida corporation engaged in the home restoration and repair business,10 employed Josendis from November 8, 2006, until February 11, 2008—excepting two months in 2007 when Josendis worked for a separate construction enterprise. Jorge Acosta and Eloisa Lim, both codefendants, managed Wall to Wall and its employees and were directly involved in all of Wall to Wall’s business activities during that period. While working for Wall to Wall, Josendis was assigned to various construction projects in and around southern Florida. His duties included plumbing and tiling; window, door, floor, and kitchen installation; and stucco and granite work. He worked more than forty hours a week and earned approximately $120 per day. Wall to Wall did not, however, pay Josendis the overtime rate mandated by 29 U.S.C. § 207(a) for covered employees.

After Josendis ceased working for Wall to Wall due to a dispute over back pay, he filed suit. In response to the suit, "Wall to Wall argued 13 that the complaint should be dismissed because its allegations—coupled with the statement of undisputed facts, the affidavit, and the federal tax return—showed that Josendis was ineligible for overtime compensation under the FLSA via individual coverage and enterprise coverage. As Acosta stated in his affidavit, (1) Josendis had not engaged in interstate commerce as a Wall to Wall employee, and (2) the $249,719 of income reported in the federal tax return evidenced that Wall to Wall had not satisfied the gross receipts threshold of $500,000 in any of the years in which Wall to Wall had employed Josendis." Josendis filed a Verified Amended Complaint to which Wall to Wall filed a new motion to dismiss which asserted the same arguments as those raised in the original motion to dismiss.

"On October 24, 2008. In the memorandum, he stated that he could not adequately defend against the motion, if treated as a motion for summary judgment, without additional time to complete the discovery he thought would be necessary to establish FLSA coverage. Despite the memorandum’s statement that additional time was needed for discovery, Josendis did nothing to obtain this necessary information while Wall to Wall’s motion was pending. In fact, nothing happened in the case until January 16, 2009" when the district court entered an order allowing Josendis until noon on February 3, 2009 to propound discovery. "When the clock struck noon on February 3, Josendis had not noticed the taking of any depositions or served Wall to Wall with any interrogatories or requests for admissions or production of documents. Nonetheless, approximately two hours after the court-imposed deadline had passed, Josendis faxed to defense counsel three sets of extensive discovery requests...." With regard to the discovery requests, the district court concluded “'[i]t is obvious that the drafting of [Josendis’s] instant discovery requests was done without any effort to constrain them within the bounds set for discovery at this time: responding to [Wall to Wall’s summary judgment motion].' The court subsequently ordered Costales to pay Wall to Wall $330 in attorney’s fees." This sanction was affirmed in the Eleventh Circuit's opinion.

With regard to the merits of the actual FLSA claim, the Eleventh Circuit concluded:

Josendis has failed to make a showing sufficient to survive summary judgment. In short, he has not satisfied his burden of coming forward with any admissible evidence beyond mere speculation to rebut Wall to Wall’s evidence on the essential elements of individual and enterprise coverage....An employee is subject to individual coverage if he is directly and regularly “engaged in” interstate commerce......For Josendis to survive summary judgment, he needed to produce admissible evidence that he (1) worked directly for an instrumentality of interstate commerce, or (2) regularly used the instrumentalities of interstate commerce....Josendis was not working directly for an instrumentality of interstate commerce. Josendis would therefore have had to come forward with evidence, beyond mere speculation, that, as a part of his work duties, he repeatedly traveled to and from Wall to Wall job sites outside of Florida or used an item moving in interstate commerce.....Josendis did not make a showing that he directly engaged in interstate commerce as a part of his responsibilities and, thus, cannot survive summary judgment on this record.

Employee Must Use Dispute Resolution Available Under Labor Agreement Before Filing Suit

In Kivisto v. National Football League Players Association (11-10543), the Eleventh Circuit affirmed the district court's dismissal of a lawsuit against the National Football League Players Association’s (NFLPA).

“Employees claiming breach of a collective bargaining agreement...are bound by that agreement’s terms providing a method for resolving disputes between them and their employer.” Mason v. Continental Group, Inc., 763 F.2d 1219, 1222 (11th Cir. 1985). When an employee asserts an arbitrable grievance, but has not attempted to utilize the dispute resolution available to him under the agreement, his independent suit must be dismissed. Id.

The third footnote in the opinion is interesting, especially as the NFL and NFLPA are likely to resolve their labor dispute today:

We note that after the district court entered its order, the NFLPA renounced its collective bargaining rights and no longer regulates NFL agents.

(emphasis supplied).

Eleventh Circuit Holds Claims Against NFL & NFLPA By Former Player Preempted

In Atwater v. National Football League (09-12556), the Eleventh Circuit released a published decision finding the plaintiff/appellant's claims to be preempted by the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185.  Tenth Circuit Judge David M. Ebel, sitting by designation, wrote the opinion for the Court.  The court described the background facts as follows:

Plaintiffs include several former NFL players, the spouse of one of the players, and several investment entities controlled by them. During 2004 and 2005, Plaintiffs invested approximately $20 million with Kirk Wright and Nelson “Keith” Bond, who along with others operated an investment company, International Management Associates (“IMA”). Unbeknownst to Plaintiffs, Wright was actually conducting a Ponzi scheme through which he stole most of the money Plaintiffs invested with IMA. IMA eventually sought bankruptcy relief. Wright was convicted on a number of federal felony charges and thereafter killed himself.

In this litigation, Plaintiffs sued the NFL and the NFLPA, alleging Plaintiffs would not have invested money with IMA had Defendants given them accurate information about Wright, Bond and IMA. More specifically, Plaintiffs complained that the NFLPA listed Wright and Bond with the NFLPA’s Financial Advisors Program without first conducting a proper investigation. As for the NFL, Plaintiffs asserted that several Plaintiffs requested, and the NFL provided, background checks on Wright, Bond and IMA that were inadequate. Based upon these allegations, Plaintiffs invoked the federal courts’ diversity jurisdiction, see 28 U.S.C. § 1332, asserting claims against the NFL and NFLPA under Georgia law for negligence, negligent misrepresentation, and breach of fiduciary duty.

The NFL and the NFLPA argued that § 301 of the LMRA preempted Plaintiffs’ state-law claims because these claims arose from, or were substantially dependent upon an interpretation of, the CBA between the NFL’s Management Council (“NFLMC”) and the NFLPA.

With regard to the law, the court stated that "in order to insure the uniform interpretation of collective bargaining agreements throughout the nation, § 301(a) completely preempts state-law claims, including state tort claims, that require the interpretation or application of a CBA."  The court continued:

If the state-law claim either arises out of a CBA or is dependent upon the meaning of a CBA, “the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal laborlaw principles—necessarily uniform throughout the Nation—must be employed to resolve the dispute.”

***

In determining whether § 301 preempts Plaintiffs’ state-law claims, we consider the elements of each of those claims in turn.....

***

For these reasons, we uphold the district court’s determination that § 301 preempts Plaintiffs’ state-law claims. We, therefore, affirm the district court’s decision granting the NFL and NFLPA summary judgment on those claims. In light of that determination, we need not consider Plaintiffs’ challenge on appeal to the alternate basis on which the district court granted the NFLPA summary judgment—that the disclaimer contained in the NFLPA’s Financial Advisors Program regulations precluded Plaintiffs’ claims against it.

Eleventh Circuit To Hear Title VII Case En Banc

The Eleventh Circuit voted to hear Corbitt v. Home Depot U.S.A., Inc. en banc.  The order vacates the prior panel opinion, Corbitt v. Home Depot, U.S.A., Inc., 589 F.3d 1136 (11th Cir. 2009), which itself vacated Corbitt v. Home Depot U.S.A., Inc., 573 F.3d 1223 (11th Cir. 2009).  The facts, from the introduction section of the Eleventh Circuit's 84 page December opinion (589 F.3d 1136) are:

The plaintiffs, David Corbitt and Alexander Raya (collectively, “Appellants”), appeal the entry of summary judgment in favor of the defendant, Home Depot U.S.A., Inc. (“Home Depot”), on their sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and their state law claims of assault and battery, outrage, and invasion of privacy. This action arose from the Appellants’ employment with and termination from Home Depot. The Appellants asserted claims of sexual harassment and retaliation in violation of Title VII, claiming that Home Depot’s regional human resources manager, Leonard Cavaluzzi, sexually harassed them and subjected them to a hostile work environment from approximately March of 2005 until mid-November of 2005, and that they were terminated on December 13, 2005 in retaliation for reporting the alleged sexual harassment. Home Depot denied their sexual harassment claim and stated that even if the alleged conduct occurred, the allegations did not rise to the level of sexual harassment under Title VII and did not constitute the intentional torts of assault and battery, outrage, or invasion of privacy. According to Home Depot, the Appellants were lawfully terminated for repeated violations of Home Depot’s policies.

Both now vacated decisions were 2-1, with Middle District of Florida Judge Patricia C. Fawsett dissenting.

GrayRobinson, P.A. -- "Family Medical Leave Act Extends to Cover Military"

GrayRobinson, P.A. released THIS press release:

Employment and Labor Newsletter -- Family Medical Leave Act Extends to Cover Military

November 19, 2009

On October 28, 2009, President Obama signed into law a Defense Department Fiscal Year 2010 Authorization Bill that expands the Family and Medical Leave Act (FMLA) requirements with respect to "qualifying exigency leave" for family and military members and "military caregiver leave." With regard to "qualifying exigency leave," the former law included only family members of Reservists and National Guard. That law has now been expanded to include any member of the Armed Forces who is either serving in a foreign country on active duty or is called to service in a foreign country. With regard to the "leave to care for wounded service members," the former law only included current members of the Armed Forces, National Guard and Reserves and that law is now being expanded to include any veteran who has served in the active military within the last five years.

The following is a policy which reflects the changes of the military leave requirements of the FMLA, and we suggest that you incorporate these changes into your current FMLA policy:

FAMILY LEAVE FOR MEMBERS OF THE ARMED SERVICES

Families of Reservists, members of the Armed Forces, National Guard or veterans who have left service within the last five years are entitled to 26 weeks of FMLA leave during a single 12 month period to care for a family member who became sick or injured while serving in the military. Families are defined as spouse, parents, children, as well as nearest blood relative.

Employees may also be eligible for qualifying exigency leave. Immediate family members (spouse, parents and children) of members of the Reserves, National Guard, or Armed Forces who are either serving in a foreign country or who are called to active duty in support of a military operation or during an national emergency, are entitled to 12 weeks of unpaid FMLA leave to handle affairs, such as arranging for child care and school activities, financial and legal arrangements, counseling, rest and recuperation, and post-employment activities. Qualifying exigency leave counts against an employee's 12 weeks or 12 month allotment of FMLA leave.

Please contact us for more information on this topic.

Sincerely,

William H. Andrews

On behalf of the GrayRobinson Employment and Labor Law Team

Fees Cannot Be Awarded Against Employer Who Assists Employee In Violating Restrictive Covenant - Conflict Certified

In Bauer v. Dilib, Inc. (4D08-3787), the Fourth District addressed an appeal of whether attorneys fee could be awarded against an employer who assists an employee in breaching a restrictive covenant.  The Fourth District held they cannot and certified conflict with Sun Group Enterprises, Inc. v. DeWitte, 890 So. 2d 410 (Fla. 5th DCA 2004).  The court stated:

whether an employer who has a restrictive covenant with employees can recover its attorney’s fees from a third party who knowingly aids and abets the employees’ violation of the restrictive covenant. We hold that the employer cannot recover its attorney’s fees from the third party in that situation.

The plaintiff below and two employees entered into confidentiality agreements containing a restrictive covenant stating that, for two years after the employees’ last date of employment, they would not compete with the plaintiff’s business. The employees later left the plaintiff’s business. Within a few months, the plaintiff’s owner received a phone call from a competitor, Denise Bauer, asking whether a non-compete agreement bound one of the employees. The plaintiff’s owner allegedly told Bauer that the employee was bound, although Bauer claimed that the owner refused to respond. In any event, Bauer hired the employees.

The trial court entered an order awarding attorneys fees to the plaintiff and against the defendants - both the former employee and the former employee's new employer.

We hold that the plaintiff was not entitled to recover its attorney’s fees from Bauer. To the extent the circuit court awarded attorney’s fees as a matter of equity, the court erred. “Attorney’s fees cannot be awarded as a matter of equity.”...“The fundamental rule in Florida is that attorneys’ fees are in derogation of the common law and will only be granted pursuant to a contractual agreement or statutory authority.”

***

To the extent the plaintiff sought to recover its attorney’s fees under section 542.335(1)(k), no such statutory authority exists against a third party like Bauer...“A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.” § 542.335(1)(a), Fla. Stat. (2007) (emphasis added). If a plaintiff cannot enforce a restrictive covenant against a person who did not sign it, then it follows that a plaintiff cannot recover its attorney’s fees from that person either.

***

Even though section 542.335(1)(a) precludes a plaintiff from enforcing a restrictive covenant against a third party, a plaintiff still may enjoin a third party who aids and abets the violation of a restrictive covenant. As we have said in the past, “‘There is no doubt that a court can enjoin others who were not parties to the non-compete agreement’ as long as they ‘receive notice and have an opportunity to be heard.’”

The court then certified conflict with the Fifth District's decision in Sun Group Enterprises, Inc. v. DeWitte, 890 So. 2d 410 (Fla. 5th DCA 2004) as quoted below:

In their briefs, the parties have identified one decision which facially contains a contrary result. In Sun Group Enterprises, Inc. v. DeWitte, 890 So. 2d 410 (Fla. 5th DCA 2004), a plaintiff unsuccessfully sought to enforce a restrictive covenant against defecting employees and their subsequent employer. Id. at 412. The Fifth District granted appellate attorney’s fees under section 542.335(1)(k) to the employees and the subsequent employer, even though the subsequent employer did not sign the restrictive covenant. Id. The Fifth District did not provide any reasoning to support its decision or indicate whether the plaintiff contested the issue. We certify conflict with Sun Group. Reversed as to judgment for attorney’s fees against appellant.

Employer Must Pay For Weight Loss Surgery - Indiana Court of Appeals and Supreme Court of Oregon

There are a number of stories about this published decision from the Indiana Court of Appeals in the case of PS2 LLC d/b/a Boston’s Gourmet Pizza v. Childers (No. 93A02-0902-EX-176).  The Associated Press reports here that the court "ruled that a pizza shop must pay for a 340-pound employee's weight-loss surgery to ensure the success of another operation for a back injury he suffered at work."  The article continues:

Boston's The Gourmet Pizza must pay for lap-band surgery for Adam Childers, a cook at the store in Schererville, under last month's Indiana ruling that upheld a 4-3 decision by the state's workers' compensation board.

Childers, who was then 25, weighed 340 pounds in March 2007 when he was accidentally struck in the back by a freezer door. Doctors said he needed surgery to ease his severe pain, but that the operation would do him no good unless he first had surgery to reduce his weight, which rose to 380 pounds after the accident.

On August 27, 2009, the Supreme Court of Oregon reached the same result in affirming the lower court.  The Supreme Court of Oregon's decision can be found here wherein they held:

We emphasize that the sole question before us is whether the gastric bypass surgery was "directed to" claimant's current arthritic knee condition, which was caused in major part by his compensable 1976 injury. ORS 656.245(1)(a) does not limit the compensability of medical services simply because those services also provide incidental benefits or help to treat other medical conditions that were not caused by the compensable injury. The fact that the gastric bypass also treated claimant's morbid obesity as a necessary incident of effectively treating his knee condition does not affect the resolution of the compensability of his medical services claim. Because the gastric bypass was "directed to" claimant's current arthritic knee condition, we need not express an opinion as to the classification or cause of claimant's morbid obesity. It is not relevant to the issue before us.

Summary Judgment Should Be Granted To Employer Under Workers Compensation Statute In Personal Injury Suit Even When Employers Stops Paying Benefits

In Fly and Form, Inc. v. Marquez (3D09-43), the Third District reversed the trial court's order denying Fly and Form's motion for summary judgment in a personal injury lawsuit.  The court held:

Fly and Form moved for summary judgment based on the exclusivity of workers’ compensation benefits and its immunity from suit as Marquez’s employer. We conclude that the trial court erred when it denied Fly & Form’s motion for summary judgment. Fly & Form was not estopped from asserting the exclusivity defense of the workers’ compensation statute, even though it had denied Marquez further workers’ compensation benefits. See Coca-Cola Enters., Inc. v. Montiel, 985 So. 2d 19 (Fla. 2d DCA 2008) (holding the trial court erred in finding, as a matter of law, that Coca-Cola was not entitled to the exclusivity defense of the workers’ compensation statute because the employer had denied the employee workers’ compensation benefits). Accordingly, we reverse the trial court’s final judgment and remand for entry of summary judgment in Fly and Form’s favor.

Eleventh Circuit Affirms Sanction Order Relating to Improper Solicitation of Clients

In Hamm et al v. TBC Corporation (09-11221), the Eleventh Circuit affirmed the district court's sanction order. The court stated:

A few months after the case was filed, Tire Kingdom filed a motion seeking court-imposed sanctions against SLG for direct solicitation of putative class members, in violation of Southern District of Florida Local Rule 11.1.C and Florida Rule of Professional Conduct 4-7.4(a). In the motion, Tire Kingdom alleged that SLG impermissibly solicited at least three then current Tire Kingdom employees – Christopher Johnson, Nicholas Kilgore, and Shane Cook – in an attempt to convince them to join the pending lawsuit and have SLG represent them.

***

“[A] federal court has the power to control admission to its bar and to discipline attorneys who appear before it.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). A court’s decision as to “whether a party or lawyer’s actions merit imposition of sanctions is heavily dependent on the court’s firsthand knowledge, experience, and observation.” Harris, 97 F.3d at 506. The Rules Regulating the Florida Bar (“Florida Rules”) contain an anti-solicitation provision which mandates that “a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.” R. Reg. Fla. Bar 4-7.4(a). The Southern District of Florida Local Rules (“Local Rules”) subject attorneys to discipline for violating the Local Rules or Florida Rules. S.D. Fla. L. R. 11.1.C. Such disciplinary measures may include disbarment, monetary sanctions, or “any other sanction the Court may deem appropriate.” S.D. Fla. R. I.B.

***

The district court expressly identified the purposes of the sanctions as “ensuring that counsel acts ethically in this litigation and . . . sanctioning The Shavitz Law Group for unethically soliciting clients.” Hamm v. TBC Corp., 597 F. Supp. 2d 1338, 1340 (S.D. Fla. 2009) (emphasis added). There is no evidence indicating the district court intended for these sanctions to apply to future cases, or that the misconduct in this case would impact suits against defendants other than Tire Kingdom.

***

In the instant case, an evidentiary hearing was held, the report and recommendation contained detailed factual findings, and the magistrate judge discussed the Gulf Oil opinion when determining the appropriate form of sanctions. Under these circumstances, the district court did not abuse its discretion by prohibiting SLG from representing or collecting fees from opt-in plaintiffs, other than those that were co-workers of the named plaintiffs.

Third District: Employment Discrimination Claim Fails Due To Lack of Evidence Regarding Similarly Situated Employees

In Valenzuela v. GlobeGround North America, LLC (3D07-1742), the Third District reviewed an employment discrimination case. After stating that Florida courts look to federal law when reviewing a claim for employment discrimination the court stated as follows:

Under the McDonnell Douglas framework, a plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. If successful, this raises a presumption of discrimination against the defendant...If a prima facie showing is made, the burden of proof then shifts to the employer to offer a “legitimate, non-discriminatory reason” for the adverse employment action. If the employer meets its burden, the presumption of discrimination disappears and the employee must prove that the employer’s legitimate reasons for dismissal were a pretext for discrimination...In order to establish a prima facie case of disparate treatment based on gender discrimination, a plaintiff must prove that: (1) the employee is a member of a protected class; (2) the employee was qualified for her position; (3) the employee suffered an adverse employment action; and (4) similarly situated employees outside the employee’s protected class were treated more favorably.

***

“In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.”...The employee must show that she and the employees outside her protected class are similarly situated “in all relevant respects.”...Thus, “the quantity and quality of the comparator’s misconduct [must] be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges.”

Similarly situated employees “must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff’s, without such differentiating conduct that would distinguish their conduct or the appropriate discipline for it.”

Supreme Court Grants Certiorari in Seven Cases

The Supreme Court granted certiorari in seven cases today. The briefs for a couple of them, and a short description is pasted from the SCOTUS Blog below:

Docket: 08-803, 08-810, 08-826
Title: Alfieri v. Conkright; Conkright v. Frommert; Pietrowski v. Conkright
Issue: Whether the statutory requirements for releases of claims under the Older Workers Benefit Protection Act are applicable to ERISA claims; whether Firestone deference applies to a plan administrator’s interpretation of benefits when issued outside of the administrative claims process; and whether a totality-of-the-circumstances test should be used to determine if an employee has “knowingly and voluntarily” waived pension benefits by signing a boilerplate release.

Opinion Below (2nd Circuit)
Petition for certiorari (08-803)
Petition for certiorari (08-810)
Petition for certiorari (08-826)
Brief in opposition(08-803, 08-826)
Respondent’s supplemental brief (08-803, 08-826)
Brief in opposition(08-810)
Brief in opposition of 62 respondents and 7 cross-respondents (08-810)
Petitioner’s reply (08-810)
Petitioner’s supplemental brief (08-810)
Brief amicus curiae of Business Roundtable (in support of petitioners in 08-810)
Brief amicus curiae of the United States (recommending that certiorari be denied)

Docket: 08-661
Title: American Needle Inc. v. NFL, et al
Issue: Whether NFLP, the NFL, and the teams functioned as a “single entity” when granting the company an exclusive headwear license and therefore could not violate Section 1 of the Sherman Act, 15 U.S.C. 1, which requires proof of collective action involving “separate entities.”
Petition for certiorari
Brief of respondents NFL
Petitioner’s supplemental brief
Brief amicus curiae of NHL in support of respondents
Brief amicus curiae of NBA in support of respondents
Brief amicus curiae of the United States (recommending that certiorari be denied)

Docket: 08-1214
Title: Granite Rock Company v. nternational Brotherhood of Teamsters, et al.
Issue: Whether a federal court has jurisdiction to determine collective bargaining agreement formation and whether a §301(a) action is available against a union that is not a direct signatory to the collective bargaining agreement.
Petition for certiorari
Brief in opposition of respondents International Brotherhood of Teamsters
Brief in opposition of respondent Teamsters Local 287
Petitioner’s reply
Brief amicus curiae of Center on National Labor Policy, Inc.
Brief amicus curiae of Associated General Contractors of America, Inc.
Brief amicus curiae of National Association of Manufacturers

Employee Not Entitled to Benefits When Leaves Employment Without Good Cause

In Price v. Unemployment Appeals Commission (5D08-1817), the Fifth District affirmed the trial court's order that the employee was not entitled to unemployment benefits because the employee left her employment without good cause. The court held:

The determination that an employee left employment voluntarily and whether she did so without good cause are questions of fact. Brown v. Unemployment Appeals Comm'n., 820 So. 2d 457 (Fla. 5th DCA 2002). Moreover, the factual determinations of an appeal referee are ordinarily presumed to be correct. Smith v. Unemployment Appeals Comm'n., 823 So. 2d 873 (Fla. 5th DCA 2002). Thus, if there is substantial competent evidence in the record to support the findings of the referee, and in particular the finding that Ms. Price voluntarily left her employment without good cause, this court must affirm. Brown, 820 So. 2d at 458.

Fourth DCA Reverses Decision on Unfair Labor Practices Charge

In School District of Martin County, Florida (4D08-1964) the Fourth District reversed the Circuit Court's decision relating to the manner of distribution of funds for classroom items to teachers.

The union filed an unfair labor practice charge alleging that "the School District violated section 447.501(a) and (c), Florida Statutes (2007), by failing to bargain its decision to distribute FTLP funds to teachers through Visa debit cards, in lieu of distribution through traditional check."

"The Commission’s construction of the statute in this case was clearly erroneous because the 2008 statutory amendments unequivocally expressed that the method of distribution does not affect a term or condition of employment. While the Florida Constitution provides that an employer may not abridge an employee’s right to collectively bargain, it has left it up to the legislature to define what subjects are matters of collective bargaining. In exercising this right, the legislature defined mandatory subjects of collective bargaining as those that affect a term or condition of employment. § 1012.71, Fla. Stat. (2007). With the 2008 statutory amendments, the legislature further expressed that the method of distributing FTLP funds did not affect a term or condition of employment and thus, was not a mandatory subject of collective bargaining. § 1012.71(3), Fla. Stat. (2008). This clear expression of legislative intent demonstrates that the Commission’s decision to the contrary is clearly erroneous."

Employee Can be Terminated for Failure to Cooperate in Investigation

In Cropsey v. School Board of Manatee County, Florida (2D07-5959), the Second DCA reversed a school board's decision to terminate an employee for failing to cooperate in an internal investigation. However, the reversal was based upon the following unique facts: (1) the employee was given twenty-four hours notice of the investigation; and (2) the employee did not cooperate upon the reasonable advice of counsel who did not have sufficient time to investigate the issue.

The ultimate conclusion based upon the facts aside, the Court adopted the law of many other jurisdictions that an employee can be fired for refusing to cooperate in an internal investigation. The court held:

Many adult citizens are aware that the Fifth Amendment protects a person from being compelled to testify in a self-incriminating manner. But a school principal is not a police officer, and an employer, including a government agency, can often justifiably fire an employee who refuses to participate in an investigation into matters that may seriously affect the employer.

In this setting, the case law has evolved to provide that "a government employee who has been threatened with an adverse employment action by her employer for failure to answer questions put to her by her employer receives immunity from the use of her statements or their fruits in subsequent criminal proceedings." Sher v. U.S. Dep't of Veterans Affairs, 488 F.3d 489, 501 (1st Cir. 2007). Such immunity arises because the government cannot use the threat of discharge to obtain incriminatory evidence against the employee. See Garrity v. New Jersey, 385 U.S. 493, 500 (1967).2 [2 These considerations are unique to the relationship between a public employer and its employee. See Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation of City of New York, 426 F.2d 619, 626 n.3 (2d Cir. 1970).]

As a result of this automatic immunity, however, the employee may be disciplined or terminated for remaining silent in response to questions relating to the performance of employment duties. Gardner v. Broderick, 392 U.S. 273, 278 (1968). This is because the immunity attaching to any incriminating statements made to the employer renders unnecessary the employee's assertion of Fifth Amendment rights. See Sher, 488 F.3d at 502. Under these circumstances, the employee's silence on purported Fifth Amendment grounds is unprotected by the Constitution and may in fact provide a basis for termination.