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As we have previously discussed, the False Claims Act (“FCA”) provides a mechanism for private parties to bring lawsuits in the name of the United States against those who allegedly defrauded the government. Recently, the United States Supreme Court provided further guidance related to the scienter (Latin for “knowingly”) element of the FCA. Justice Clarence Thomas authored the opinion on behalf of a unanimous court in United States ex rel. Schutte, et al. v. Supervalu Inc. ¹ The Court provided an overview of the FCA and imparted valuable guidance for litigants involved in these important cases. This blog post will discuss the opinion and its impact moving forward.

In Schutte, the Court addressed two cases against pharmacies Supervalu and Safeway. The Petitioners (the Relators below) alleged that the pharmacies (Respondents) “overcharged Medicare and Medicaid programs for years when seeking reimbursement for prescription drugs that the programs covered.”² The Court provided a thorough overview of the requirements for reimbursement for Medicare and Medicaid; in short, both entities require pharmacies to seek reimbursement for the “usual and customary” price for the relevant drug.³ The Relators alleged that the pharmacies reported higher prices to Medicare and Medicaid than the ones they “usually and customarily” charged to other customers.⁴ Supervalu and Safeway adopted price-match programs that lasted until 2016 and 2015, respectively.⁵ Supervalu would match the lower price of a competitor and apply that price to future refills.⁶ Safeway had a membership program that allowed customers to obtain low-cost prescriptions for generic drugs.⁷ The Relators argued that these discounted prices were the pharmacies’ “usual and customary” prices given the popularity of the programs.⁸ One example the Court provided was that “Safeway charged just $10 for 94% of its cash sales for a 90-day supply of a cholesterol drug between 2008 and 2012. Yet Safeway apparently reported prices as high as $108 as ‘usual and customary’ during that time.”⁹ The Relators presented evidence that both pharmacies were informed that the lower prices were the “usual and customary price,” that the companies believed that the lower prices were the “usual and customary price,” and that both entities tried to hide the discounted prices from Medicare and Medicaid.¹⁰ The Relators provided evidence to support this theory, including notices from a pharmacy benefit manager about the “usual and customary price” being the discounted price; comments made by executives related to the programs; and documents directed to Safeway employees instructing them not to put the price match guarantee in writing.¹¹

As Justice Thomas succinctly stated, “[T]wo essential elements of an FCA violation are (1) the falsity of the claim and (2) the defendant’s knowledge of the claim’s falsity.”¹² The District Court granted summary judgment in favor of the pharmacies (ending the case at that level), holding that they did not act “knowingly,” and the Seventh Circuit (the court of appeals) affirmed.¹³ The Court noted that it was not reviewing the meaning of “usual and customary” or to settle factual matters.¹⁴ Instead, the Court answered the question, “If respondents’ claims were false and they actually thought that their claims were false—because they believed that their reported prices were not actually their ‘usual and customary’ prices—then would they have ‘knowingly’ submitted a false claim within the FCA’s meaning?”¹⁵

In answering that question, Justice Thomas noted that “[w]hat matters for an FCA case is whether the defendant knew the claim was false. Thus, if respondents correctly interpreted the relevant phrase and believed their claims were false, then they could have known their claims were false.”¹⁶ Under the FCA, “either actual knowledge, deliberate ignorance, or recklessness will suffice” to “knowingly” present a fraudulent claim.¹⁷ Justice Thomas emphasized that although the phrase “usual and customary” is not the model of clarity, the ambiguity “does not preclude respondents from having learned their correct meaning—or, at least, becoming aware of a substantial likelihood of the terms’ correct meaning.”¹⁸ The Court summarized its holding by stating, “For scienter, it is enough if respondents believed that their claims were not accurate.”¹⁹ The Court vacated the judgments below and remanded the cases to the Seventh Circuit.²⁰

To illustrate the holding of this opinion, it is helpful to consider a hypothetical. Teresa and Danielle own several pharmacies that receive funds from both Medicare and Medicaid. Teresa and Danielle decide that they are going to charge customers who pay cash $10 for a 30-day supply of common heart medication. The program became so popular that 99% of the customers for that medication pay cash, while the other 1% of the customers are on Medicare. Teresa and Danielle report to Medicare that the usual and customary price they charge for the medication is $200. Dolores, who acts as CFO of the company, warned Teresa and Danielle that this conduct is likely illegal. Likewise, they received a warning from a benefit manager regarding the illegality of the practice. Employee Melissa, who is upset about this practice (and indeed has complained about it and suffered a demotion), decides to seek counsel. Ultimately, Melissa’s counsel determines there are grounds to pursue an FCA action. Under Schutte, the scienter requirement would likely be met (given these facts), although the other elements of the cause of action would also have to be proven for the claim to succeed.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

1 The slip opinion can be found at https://www.supremecourt.gov/opinions/22pdf/21-1326_6jfl.pdf (last visited June 5, 2023).

2 Id., at *2.

3 Id., at *3.

4 Id., at *4

5 Id.

6 Id.

7 Id.

8 Id., at *5.

9 Id.

10 Id.

11 Id., at *5-6.

12 Id., at *6.

13 Id.

14 Id., at *8.

15 Id., at *7.

16 Id., at *2.

17 Id., at *9.

18 Id., at *12.

19 Id., at *16.

20 Id., at *17.

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On March 24, 2023, Governor Ron DeSantis signed into law a far-reaching tort reform bill. ¹ According to Governor DeSantis, “Florida has been considered a judicial hellhole for far too long[,] and we are desperately in need of legal reform that brings us more in line with the rest of the country[.]”² It is a sweeping revision in the realm of tort law and will undoubtedly change how tort cases are handled in the state. Indeed, thousands of lawsuits were filed across Florida in the days prior to Governor DeSantis signing the bill into law.³ The legislation applies to cases filed after the date of signing.⁴ This blog post will highlight one aspect of the new law—the statute of limitations (that is, the time you have to file a lawsuit) in general negligence claims. The new legislation reduces the statute of limitations in negligence claims from four years to two.⁵

In the employment law realm, we sometimes pursue negligence claims, including negligent hiring and negligent retention. As a federal court has noted, “The elements to state a claim for negligent retention are the same as negligent hiring/selection. That is, a plaintiff must allege that ‘(1) the agent/employee/contractor was incompetent or unfit to perform the work; (2) the employer knew or reasonably should have known of the particular incompetence or unfitness; and (3) the incompetence or unfitness was a proximate cause of the plaintiff’s injury.’”⁶ As can be expected, negligent hiring occurs prior to employment, and negligent retention occurs during employment. By way of example for negligent retention, if Company A had a previous complaint that employee Rachel was responsible for physically attacking employee Anna at work, but Company maintained Rachel’s employment, Company may be held liable for negligent retention if employee Rachel subsequently attacks employee Shana. Under the new law, Shana would have two years from the date of the incident to file a complaint in the proper court for negligent retention against Company (she may have other claims as well, including a battery claim against Rachel). It is vital for individuals to understand the reduced statute of limitations and file a complaint within the appropriate timeframe.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

1 Press Release, Office of the Governor of Florida, Governor Ron DeSantis Signs Comprehensive Legal Reforms Into Law (Mar. 24, 2023), available at https://www.flgov.com/2023/03/24/governor-ron-desantis-signs-comprehensive-legal-reforms-into-law/ (last visited Apr. 25, 2023).

2 Id.

3 John Kennedy, Fear of new limits prompts flood of lawsuits before DeSantis signed restrictions into law, TALLAHASSEE DEMOCRAT, Mar. 25, 2023, available at https://www.tallahassee.com/story/news/politics/2023/03/24/thousands-lawsuits-filed-florida-before-limits-kick-in-desantis/70045705007/ (last visited Apr. 25, 2023).

4 Id.

5 Press Release, supra note 1.

6 Martinez v. Celebrity Cruises, No. 20-23585, 2021 U.S. Dist. Lexis 4852, at *20-21 (S.D. Fla. Jan. 8, 2021).

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On February 9, 2023, the DOL, Wage and Hour Division (“WHD”), issued Field Assistance Bulletin (“FAB”) No. 2023-1, providing guidance to agency field staff related to telework under the FLSA and the FMLA.1 This FAB demonstrates how the Agency applies laws and regulations to remote-work scenarios. Understanding this guidance is vital for employers and employees alike.

The FAB begins by discussing the regulations related to compensating non-exempt employees under the FLSA for all hours worked, “including work performed in their home or otherwise away from the employer’s premises or job site.” The DOL has emphasized that, generally, an employee’s workday is composed of “the period between the time when the employees commences their first ‘principal activity’ and the time on that day at which they cease such principal activity or activities.” Thus, an employee’s workday may extend beyond a scheduled shift. Pursuant to the FLSA, short breaks of twenty (20) minutes or less (for example, coffee breaks and restroom breaks) are generally considered as hours worked for which compensation is due (known as compensable time). Longer breaks where employees are completely relieved of duty and where the employee can use the time “effectively” for their own purposes (for example, meal breaks) are not compensable hours. The FAB stresses that “[t]he principles apply regardless of whether the work is performed at the employers’ worksite, at the employee’s home, or at some other location away from the employer’s worksite.” If the employee knows or should know that work is being performed by the employee, the time must be counted as hours worked. For example, if Debbie takes a meal break from 12:30 to 1:00 p.m., but she is interrupted by multiple work phone calls that each last several minutes, that meal break would be compensable. It is thus critical for employers to implement accurate time-keeping procedures, both for employees in the office and for those working remotely.

The FAB also discusses break time for pumping breast milk for teleworkers. Specifically, the FAB notes that “[t]he FLSA also requires that employers provide covered employees ‘reasonable break time for an employee to express breast milk for such employee’s nursing child for 1 year after the child’s birth each time such employee has need to express the milk’ and provide ‘a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.’” Employers are not required to compensate nursing employees for breaks taken for the purpose of expressing milk, unless employers provide compensated breaks and the employee uses that break to express milk. Importantly, as the FAB notes, “If a remote employee chooses to attend a video meeting or conference call – even if off camera – generally the employee in that case is not relieved from duty and, therefore, must be paid for that time.”

Finally, the FAB discusses the FMLA and its application to remote employees. Specifically, Employees who telework are eligible for FMLA in the same way as employees who report to the worksite for their jobs. “Employees are eligible for FMLA leave when they have worked for the employer for at least 12 months; have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and work at a location where the employer has at least 50 employees within 75 miles.” The FAB further instructs, “The determination of whether an employee has been employed for at least 12 months and has at least the required hours of service is made as of the date FMLA leave is to start; the determination of whether at least 50 employees are employed at the employee’s worksite, or within 75 miles, is made when the employee gives notice of the need for leave.” Once again, it is critical that employers maintain an accurate time-keeping system for purposes of hours worked. For teleworkers, the worksite for FMLA purposes “is the office to which they report or from which their assignments are made.” A personal residence is not considered a worksite. Regarding an employer’s number of employees, “[t]he count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.” For example, if Debbie works remotely from Morocco for a company based in Orlando that has 300 employees within 75 miles of the headquarters, her worksite would be considered Orlando, and she would be entitled to leave under the FMLA if she met the other eligibility requirements.

Understanding the rights of teleworkers is important for both employers and employees. The FAB provides guidance related to the pertinent laws and regulations, but if you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

1 JESSICA LOOMAN, U.S. DEP’T OF LABOR, FIELD ASSISTANCE BULLETIN NO. 2023-1, TELEWORK UNDER THE FAIR LABOR STANDARDS ACT AND FAMILY AND MEDICAL LEAVE ACT (Feb. 9, 2023), available at https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-1.pdf (last visited Mar. 21, 2023). All quotations herein are from the FAB unless otherwise noted.

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On January 5, 2023, the Federal Trade Commission (“FTC”) announced that it proposed a new rule pursuant to Section 5 of the Federal Trade Commission Act that would ban employers from imposing noncompete agreements on employees.¹ The FTC estimated that “the new proposed rule could increase wages by nearly $300 billion per year and expand career opportunities for about 30 million Americans.”² According to FTC Chair Lina M. Khan, “Noncompetes block workers from freely switching jobs, depriving them of higher wages and better working conditions, and depriving businesses of a talent pool that they need to build and expand. By ending this practice, the FTC’s proposed rule would promote greater dynamism, innovation, and healthy competition.”³ 

The proposed rule would supersede all contrary state laws.⁴ The rule would prohibit employers from entering into or attempting to enter into a noncompete agreement with a worker, maintaining a noncompete with a worker, or, in certain circumstances, representing to a worker that he or she is subject to a noncompete agreement.⁵ The proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or not.⁶ It would further require employers to rescind existing noncompete agreements and would mandate that employers inform workers that the agreements have been rescinded.⁷ The proposed rule includes an exception for an individual “who is selling a business entity or otherwise disposing of all of the person’s ownership interest in the business entity, or by a person who is selling all or substantially all of a business  entity’s operating assets” if the individual “is a substantial owner of, or substantial member or substantial partner in, the business entity at the time the person enters into the non-compete clause.” ⁸

The FTC is seeking public comment on the proposed rule, and the comment period is open until March 20, 2023. Following that period, the FTC will conduct a further analysis of the proposed rule and may make revisions. The FTC may issue a new proposed rule, terminate the rulemaking authority on the issue, or move to adopt a final rule. Congress has an opportunity to review all final rules and may also hold hearings regarding the proposed rule or take other legislative action, and litigation is likely if a final rule is adopted. It is important to note that this is early in the process and that it is unclear what form, if any, the final rule will take and if a final rule would survive congressional action or litigation. 

We will continue to monitor this important story and provide updates as they become available. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us. 

 1 Press Release, Fed. Trade Comm’n, FTC Proposes Rule to Ban Noncompete Clause, Which Hurt Workers and Harm Competition (Jan. 5, 2023), available at https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition (last visited Feb. 13, 2023). 

2 Id. 

3 Id. 

4 Non-Compete Clause Rulemaking, § 910.4, Proposed Rule, Fed. Trade Comm’n, available at https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking (last visited Feb. 15, 2023). 

5 Id. at § 910.2(a). 

6 Id. at § 910.1(f). 

7 Id. at § 910.2(b).  

8 Id. at § 910.3.  

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On December 7, 2022, President Biden signed into law the Speak Out Act (“the Act”). The Act provides, “With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated Federal, Tribal, or State law.” 42 U.S.C. § 19403(a) (emphasis added). This means that parties are limited in being able to agree to not discuss a matter involving sexual assault or sexual harassment before the “dispute arises.” This phrase is not defined in the statute, but Congress made it clear that “[i]n order to combat sexual harassment and assault, it is essential that victims and survivors have the freedom to report and publicly disclose their abuse.” 42 U.S.C. § 19401. According to Congress, “[p]rohibiting nondisclosure and nondisparagement clauses will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.” Id. The Act follows the enactment earlier in 2022 of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (as covered in our April 2022 blog). These acts are part of a larger movement across the country to limit the use of non-disparagement and non-disclosure provisions in agreements stemming from cases involving sexual harassment and sexual assault.

In response to the Act and the Ending Forced Arbitration Act, employers should review employment agreements, confidentiality agreements, employee handbooks, and arbitration agreements to ensure compliance. Furthermore, employers should review separation agreements and settlements to confirm they comply with this (and similar) legislation. Given the lack of a definition for when a “dispute arises,” one unintended consequence of the Act may be that employers will ask plaintiff’s counsel to file suit (with as few facts alleged as possible) before resolving a matter so enforceable confidentiality and non-disparagement provisions can be included in the settlement agreement. Furthermore, employers may include severability clauses (meaning that provisions can be removed if deemed unenforceable but keep the remainder of the agreement enforceable) in an attempt to make it seem that otherwise unenforceable non-disclosure and non-disparagement clauses are enforceable. It will be interesting to see how this legislation impacts sexual assault and sexual harassment matters going forward.

We will continue to monitor the situation and provide updates as they become available. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

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On June 2, 2022, Governor Ron DeSantis signed into law CS/HB 7027, creating a sixth appellate district effective January 1, 2023.¹ This is the first new appellate district since the creation of the Fifth District Court in 1979.² This blog post will explore the role of a District Court of Appeal (“DCA”) and will discuss the jurisdiction of the new Sixth DCA.

In Florida, the DCAs hear the bulk of trial court decisions.³ The DCAs were first created in 1957 to alleviate the caseload of the Florida Supreme Court.⁴ At the DCA level, cases are heard by a three-judge panel (in rare cases, a decision by the three-judge panel will be heard by the entire court, known as en banc review). Appeals to the DCAs provide parties the opportunity to review decisions of the lower courts to determine if a harmful error occurred and “to promote clarity and consistency in the law by publishing opinions that set forth the relevant facts of the case and the proper application of the law to those facts.”⁵ “The [DCAs] can hear appeals from final judgments in circuit court cases and in most county court cases and can review certain non-final orders.”⁶ Furthermore, the DCAs have the authority to review final decisions of state agencies and can issue extraordinary writs (orders) directing an entity to complete a specified task (for example, a writ of mandamus can direct a state agency to take a specific action).⁷ Generally, cases arising in state court will not proceed beyond the DCA level.

The newly created Sixth DCA is composed of the Ninth (Orange and Osceola Counties), Tenth (Hardee, Highlands, and Polk Counties), and Twentieth (Charlotte, Collier, Glades, Hendry & Lee Counties) Judicial Circuits. The court will be headquartered in Lakeland. Previously, the Ninth Circuit (where our office is located) was in the Fifth DCA. The Sixth DCA will be comprised of nine judges: five from the Fifth DCA, one from the Second DCA, and three appointments by Governor DeSantis. The Second DCA, previously headquartered in Lakeland, will now be headquartered in St. Petersburg.

One aspect of the creation of the Sixth DCA to monitor will be how the court handles potential conflicts in decisions in the new district from circuits previously under the jurisdiction of the Second and Fifth DCAs. Although rare, the Sixth DCA will have to address that issue. Until that occurs, trial court judges can follow the majority of the DCAs on an issue, rely upon the most recent decision of a foreign DCA, or base its decision on how the court believes the Sixth DCA will rule if there is no relevant precedent.⁸ The creation of the Sixth DCA will ideally reduce the backlog at the DCA level and lead to a more efficient judiciary.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

1 Mark D. Killian, Judge Sasso Leads Way in Establishing the New Sixth District Court of Appeal, THE FLORIDA BAR, Aug. 5, 2022, available at https://www.floridabar.org/the-florida-bar-news/judge-sasso-leads-way-in-establishing-the-new-sixth-district-court-of-appeal/ (last visited Dec. 21, 2022).
2 Id.
3 For more information regarding the District Courts of Appeal, visit https://www.flcourts.gov/Florida-Courts/District-Courts-of-Appeal (last visited Dec. 21, 2022).
4 Id.
5 Id.
6 Id.
7 Id.

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In Charles Dickens’s classic A Christmas Carol, Ebenezer Scrooge initially treats his employee, Bob Cratchit, in an undeniably hostile manner (along with all the others he comes into contact with).  The question is:  Would Bob Cratchit be able to pursue a cause of action as a result of his poor treatment?  We often receive phone calls from individuals who believe they were treated so poorly that they have grounds to pursue a cause of action (that is, they have an actionable claim).  This blog post will explore the difference between a workplace that is hostile and a “hostile work environment” for purposes of an actionable claim.

In Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010), the Eleventh Circuit Court of Appeals (Florida is in the Eleventh Circuit) stated the following concerning proving a cause of action under Title VII of the Civil Rights Act[1]:

[T]o prove a hostile work environment under [Title VII], a plaintiff must show that her employer discriminated because of her membership in a protected group, and that the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment; second, Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination in the terms and conditions of employment; third, workplace conduct cannot be viewed in isolation, but rather is to be viewed cumulatively, and in its social context; and fourth, a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.

Reeves, 594 F.3d at 807 (emphasis added).  A plaintiff attempting to establish a hostile work environment claim “must prove that the environment was both subjectively and objectively hostile.”  Id. at 809.  In other words, a reasonable person must also perceive the environment as hostile; the plaintiff’s perception alone is not enough.  As the Eleventh Circuit has noted, “‘Title VII does not prohibit profanity alone, however profane.  It does not prohibit harassment alone, however severe and pervasive.  Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex.’”  Id. (quoting Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301-02 (11th Cir. 1982)).  The context of the statements matters, and the courts will examine the totality of the conduct to determine if Title VII was violated.  See Reeves, 594 F.3d at 810-11.  As the Fifth District Court of Appeal (one of the soon-to-be six intermediate appellate courts in Florida) has noted, cases brought under Title VII (and the Florida Civil Rights Act) “are fact-specific in the extreme . . . .”  Dupont, 933 So. 2d at 84.

As we often tell clients, it is not illegal to just be a difficult or abusive person.  Although Scrooge certainly mistreated Mr. Cratchit prior to his epiphany, there is no evidence that Scrooge would be liable in a modern context.

We hope you and yours have a safe and happy holiday season.  If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] Title VII applies to claims of race, color, religion, sex, or national origin discrimination.  The Florida Civil Rights Act is interpreted in the same manner as Title VII, although the Florida Civil Rights Act is broader (for example, it also includes age and marital status as protected categories).  Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75, 79-80 (Fla. 5th DCA 2006).

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Often, we receive calls from individuals who state they want to “file a lawsuit” right away. Although filing suit at the outset of representation is sometimes appropriate (for example, in matters relating to the Fair Labor Standards Act and the False Claims Act), it is usually advised to first contact out to the other side with an overview of the claims and see if there is an interest in resolving the matter pre-suit. Litigation is both time consuming, unpredictable, and expensive, as the costs related to litigation quickly add up (the filing fee, costs associated with service of process, deposition costs, etc.).  One process by which parties can attempt to reach an amicable resolution is through mediation. In a mediation, a neutral third party (the mediator) works to assist individuals in reaching a resolution. Mediation is more affordable than litigation, is faster, and is a more informal process than litigation. This post will provide an explanation of the confidential mediation process.

Once the parties agree to mediate, they must work to agree on a mediator and a date to conduct mediation. One consequence of the COVID-19 pandemic is that mediations are now routinely conducted via Zoom or a similar platform, making scheduling easier. We have found “virtual” mediations to be just as, if not more, productive than in-person mediations. At the mediation, typically the parties begin in the same room (or virtual room) for the mediator to make introductions and for the parties to present opening statements. This element of mediation is useful, particularly when the case is pre-suit, so the parties can better understand the other side’s position. This is ordinarily the only time during the mediation the parties are all in the same room. Following the opening session, the parties will be placed into separate rooms, and the mediation begins in earnest. Mediators have different techniques in trying to help the parties reach a resolution. Some mediators focus heavily on the facts prior to discussing monetary terms, while others go straight into the discussions about the money. There is no right or wrong method, and the mediator’s approach can vary depending on the case. Whatever method is used, the goal remains the same: helping the parties resolve the dispute. The parties are active participants in the process and any resolution. For a confidential mediation to be successful, each party must be willing to move off their initial dollar figures and to truly be dedicated to the process.

For cases that have proceeded to litigation, both state and federal courts require mediation at some juncture in the litigation process. Mediation allows parties the opportunity to compromise and avoid the time and expense of litigation, an exercise that would surely meet with Lincoln’s approval who once said, “Persuade your neighbors to compromise whenever you can.” [1] Jill S. Schwartz, Esquire, is a certified Florida Supreme Court mediator, and she is available both as counsel and to act as a mediator to assist parties in resolving matters.  If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] This quotation is attributed to Abraham Lincoln and comes from documents collected after his death by his former White House Secretaries John Nicolay and John Hay. It is not known if President Lincoln ever delivered the lecture from which this quotation is taken, entitled “Notes for a Law Lecture.” Here is the full context of the quotation: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”  Abraham Lincoln’s Notes for a Law Lecture, Abraham Lincoln Online, https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (last visited Oct. 31, 2022).

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In April 2022, Florida Governor Ron DeSantis signed into law legislation that is known as the “Stop Wrongs to Our Kids and Employees (‘W.O.K.E.’)” Act (referred to hereafter as the “Act”). The Act went into effect on July 1, 2022. Although much of the attention garnered by the Act focuses on its impact in the classroom, it also impacts the workplace for those employers with fifteen or more employees subject to the Florida Civil Rights Act (“FCRA”). This post will discuss the contents of the Act pertaining to the workplace and what it means for employers and employees.

In announcing the Act, Governor DeSantis stated in part, “[W]e must protect Florida workers against the hostile work environment that is created when large corporations force their employees to endure CRT-inspired ‘training’ and indoctrination.”¹ The Act amended the FCRA to include the following language to expand the liability of employers:

(8)(a) Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section:

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.

2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.

4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.

5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse

treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.

6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.

8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

(b) Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.

§ 760.10(8), Fla. Stat. (2022) (emphasis added).

The changes to the Act make it necessary for employers to evaluate their current training programs related to diversity and antidiscrimination policies. Furthermore, employers must be cautious as it relates to section (8)(a)6., which prohibits hiring an individual to achieve diversity or inclusion. As can be expected, the constitutionality of the Act has been challenged. As of the time of writing, the litigation is pending. On August 18, 2022, the Northern District Court, Tallahassee Division, granted a preliminary injunction halting the enforcement of section 760.10(8).² We will provide an update as it becomes available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

1 “Governor DeSantis Announces Legislative Proposal to Stop W.O.K.E. Activism and Critical Race Theory in Schools and Corporations,” Official Website of Florida’s Governor, https://www.flgov.com/2021/12/15/governor-desantis-announces-legislative-proposal-to-stop-w-o-k-e-activism-and-critical-race-theory-in-schools-and-corporations/ (last visited Aug. 31, 2022).

2 Honeyfund.com, Inc., et al. v. Ron DeSantis, et al., 4:22-cv-00227-MW-MAF (N.D. Fla. Aug. 18, 2022), available at, https://www.govinfo.gov/content/pkg/USCOURTS-flnd-422-cv- 00227/pdf/USCOURTS-flnd-422-cv-00227-0.pdf (last visited Aug. 31, 2022).

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On June 28, 2022, the United States Court of Appeals for the Eleventh Circuit (Florida is in the Eleventh Circuit) announced its opinion in Patterson v. Georgia Pacific, LLC, No. 20-12733 (11th Cir. July 5, 2022). The court issued a published opinion that will serve as precedent (i.e., the opinion will serve as authority for deciding similar cases) to the courts in the Circuit. In Patterson, the court held that the so-called manager exception (or rule, as it is more commonly known) does not apply to retaliation claims under Title VII. The manager rule is a concept that when a management employee, acting within the course of her ordinary duties, disagrees with or opposes the actions of an employer, she is not engaging in protected activity. Patterson, at *11. Furthermore, the Eleventh Circuit rejected the argument that an individual cannot have a claim for retaliation against a current employer for engaging in protected activity related to a former employer.

For purposes of this post, a brief summary of the relevant facts is helpful.1 Patterson was working as a human resources manager for Georgia Pacific when she provided deposition testimony in a pregnancy discrimination suit against her former employer (she was a human resources manager at her prior employer as well). Id., at *1, 4. In the deposition, Patterson testified that she had participated in several meetings regarding the terminations of the plaintiffs. Id., at *5-6. Patterson further testified that she advised her supervisors not to take any action against the plaintiffs until she could consult with another Human Resources advisor because she was concerned firing the pregnant employees could expose the employer to legal action. Id., at *6. Within a few weeks after testifying, Patterson was confronted by Jeffrey Hawkins, Georgia Pacific’s Human Resources director. Id., at *4, 8. Patterson explained the facts to Hawkins regarding the case for which she provided testimony, and he asked her, “Did you support or go against the employer?” Id., at *8. As the Eleventh Circuit stated, “When Patterson told him she’d testified ‘on behalf of the ladies,’ as she put it, Hawkins told Patterson that meant she ‘went against’ her previous employer and that having her done so ‘made things clear’ to him.” Id. Within approximately one week, Georgia Pacific terminated Patterson. Id., at *9. Patterson was not provided a reason for her termination, either verbally or in a termination letter provided to her. Id. Georgia Pacific offered Patterson a “‘special lump sum’” payment of $50,000 if she, among other things, agreed not to bring a suit against the company. Id.

1 The Eleventh Circuit provided a detailed discussion of the events leading up to Patterson’s termination.

Patterson ultimately filed a pro se (i.e., she was not represented) complaint against Georgia Pacific alleging unlawful retaliation under Title VII. Id., at *10. Patterson alleged Georgia Pacific terminated her in retaliation for providing the deposition testimony where she opposed pregnancy discrimination. Id. The district court granted summary judgment in favor of Georgia Pacific on two grounds. Id., at *10-11. First, the district court concluded that Patterson had not engaged in protected activity because she was a human resources manager and raised her concerns within or directly related to her normal duties. Id., at *11. The district court relied on an unpublished opinion from the Eleventh Circuit, despite the fact that unpublished opinions are not precedential (and therefore do not bind the courts in the Eleventh Circuit). Id., at *16. Alternatively, the district court held that Patterson did not engage in protected activity because she did not oppose an allegedly unlawful practice by Georgia Pacific related to the deposition. Id., at *11. According to the district court, “a plaintiff’s opposition had to be to the discriminatory actions or practices of the employer that did the retaliating, not to those of a former employer.” Id. The Eleventh Circuit deemed this “‘the current employer exception.’” Id., at *12.

As noted above, the Eleventh Circuit disagreed with the district court. Regarding the manager rule, the court held that the “rule has no basis in the text of Title VII’s opposition clause and actually contradicts the text of it.” Id., at *15. The clause in question provides that it is “an unlawful employment practice for an employer to discriminate against any of [its] employees…because he has opposed any practice made an unlawful employment practice by this subchapter….” Id., at *12. The court noted that the manager rule did not originate in the context of Title VII, but instead arose out of Fair Labor Standard Act case law; the texts of the two statutes are very different. Id., at *16. The court examined the text of Title VII and found that Congress stated that the statute’s protection extends to “any” employee, meaning “all” since Congress did not qualify the word. Id., at *17. The court further held that “[t]he word ‘opposed’ does not somehow sneak the manager exception into the statute.” Id., at *18. The court concluded its analysis by stating, “What matters is whether the broad manager exception Georgia Pacific proposes is consistent with the statutory text that Congress enacted. It is not.” Id., at *21.

Turning to the “current employer” requirement, the Eleventh Circuit again rejected the district court’s rationale. Id. Turning to the text of Title VII, the court held that “[t]here is nothing in the anti-retaliation provision’s opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer.” Id., at *21. As the court succinctly stated, “Opposition is opposition, and any unlawful employment practice

is any unlawful employment practice.” Id., at *22. Thus, the Eleventh Circuit rejected the “current employer” requirement. Id. Examining the facts before it, the court reversed the district court’s granting of summary judgment in favor of Georgia Pacific and remanded for further proceedings. Id., at *36.

The Eleventh Circuit’s “firing” of the manager rule will have an important impact in both Title VII claims and in cases where the statutory language is similar, such as matters arising under the Florida Civil Rights Act (“FCRA”) and the Age Discrimination in Employment Act (“ADEA”). It will also undoubtedly be raised in cases arising under Florida’s public and private sector whistleblower acts. See Barone v. Palm Beach Hotel Condo. Ass’n, 262 So. 3d 767, 768 n.1 (noting that “Florida courts apply Title VII analysis to retaliatory discharge claims under this state’s whistleblower statutes.” (citation omitted)). We will continue to monitor the opinions of the courts and provide updates as they become available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

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