Medicare and Medicaid Fraud

Sexual Harassment and/or Sexual Discrimination in the Workplace

Age Discrimination

An employee in his 50s feels he keeps getting passed over for promotions. His boss tells him that the company prefers “new blood”, and the “kids right out of college” have more energy and can work longer hours. Is this age discrimination?

Age discrimination can occur through a discriminatory employment policy or practice. Under the federal Age Discrimination in Employment Act (ADEA), it is unlawful to discriminate against employees who are 40 years old or older because of their age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. ADEA applies to employers with 20 or more employees (including federal, state and local governments, employment agencies and labor organizations.) For more information, see the Age Discrimination in the Workplace blog article.

Disability Discrimination

A manager discharges an employee after she reveals she has a progressive condition that is causing partial blindness. What are the consequences?

It depends on the nature of the job, whether the employer is subject to the anti-discrimination requirements imposed by law, and if so, whether providing accommodations for the employee does not cause the employer undue hardship. Federal and state laws protect persons with known qualified disabilities by requiring employers to provide them with reasonable accommodations. These requirements usually apply to employers with 15 or more employees and are subject to undue hardship by the employer. Local ordinances may impose additional restrictions. An employer provides a reasonable accommodation by facilitating, for example, special equipment, scheduling, or work assignments to aid the person in performing their job. The individual who receives the accommodation must still be qualified to perform the essential functions of the job and meet the normal performance requirements. For more information, see the Employment Discrimination on the Basis of Disability blog article.

Pregnancy Discrimination

During a job interview, an employer asks if the candidate has any children or is planning to become pregnant anytime soon. Is this allowed? What about denying a current employee a job assignment because she is pregnant?

Questions during a pre-employment inquiry about an applicant’s pregnancy and medical history of pregnancy are generally viewed as “non job-related” and pose problems under the Title VII federal anti-discrimination law. An employer may not discriminate on the basis of pregnancy unless it can prove the job is a “bona fide occupational qualification” (BFOQ) and the requirement is essential to a particular position or occupation. Workplace discrimination on the basis of pregnancy involves treating a woman, whether a job applicant or an employee, unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Similar to other types of discrimination, pregnancy discrimination may arise in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and other employment setting or condition. For more information, see the Employment Discrimination on the Basis of Pregnancy blog article.

Work Breaks for Nursing Mothers

Discrimination Based on Language and Accent, National origin, Race or Color, and/or Religion

An employee feels he was discriminated against for his accent. What are the laws regarding discrimination based on language, national origin, race or color, and/or religion?

Workplace discrimination on the basis of national origin occurs when a job applicant or an employee is treated unfavorably because he or she is from a particular country or part of the world, because of ethnicity or accent, surname, or because they appear to be of a certain ethnic background (even if they are not). Some employers have implemented “English-Only” policies at work prohibiting employees to speak in a foreign language, even while on break or when speaking with each other about personal matters. However, subject to narrow exceptions, under federal law “English-Only” policies are presumed to be discriminatory on the basis of national origin. Workplace religious discrimination occurs when a job applicant or an employee is treated unfavorably because he or she has a certain religious belief or because of personal characteristics associated with such belief (such as dress or grooming). This type of discrimination may occur in combination with other types of discrimination, such as race and national origin. Discrimination is often accompanied by workplace harassment. This conduct becomes illegal when it is based on a class protected by the law, such as race, color, religion, sex (including pregnancy), national origin, age (40 years old or older), disability, or genetic information. Harassment often occurs in combination with other

types of illegal conduct, such as discrimination. Federal and Florida law offer protections against harassment and discrimination. Subject to limited exceptions and undue hardship, federal and Florida law make it illegal for an employer with 15 or more employees to discriminate on the basis of religion, national origin, and race, among other factors. Employers are required to provide adjustments to the work environment to allow the employee to practice his or her religion, such as: flexible scheduling, voluntary shift substitutions or swaps, job reassignments, lateral transfers, and exceptions to dress or grooming rules. Undue hardship is determined on a case-by- case basis. Isolated incidents of harassment do not rise to the level of illegality unless they are extremely severe. The conduct must be offensive, be a condition of continued employment, or severe enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Also, the victim does not have to be the person harassed and can be anyone affected by the offensive conduct of the harasser, such as a witness of the behavior. In addition, an employer may not retaliate against an employee for reporting illegal or discriminatory conduct (such as discharging or mistreating the employee). Additionally, under the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), no employer may ask applicants about their citizenship status before the applicant is offered a job. This includes the request of citizenship documentation. In addition, employers may not treat individuals differently based on citizenship or immigration status. Further, an employer may not exclusively hire U.S. citizens or lawful permanent residents unless required to do so by law, regulation, or government contract. IRCA also makes it illegal to require more or different documents than those legally acceptable for employment verification purposes; to refuse to honor the documents the employee offers if they are legally acceptable and appear genuine; and it prohibits intimidation, coercion, threats, or retaliation against those who file charges or otherwise cooperate with an investigation, proceeding, or hearing. Protected persons under IRCA include U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, refugees, and asylees.

Finally, employers cannot discriminate against job applicants, including undocumented job applicants, on the basis of protected civil rights factors.

For additional information, see: Harassment in the Workplace; Speak English at Work! Language and Accent Discrimination; Employment Discrimination on the Basis of National Origin; and Damages in Discrimination Claims.

Discrimination Based on Gender Identity or Sexual Orientation

An employee is being harassed at work because she is transgender. She has been asked not to use the female restroom. Her co-workers also frequently laugh at her and–even though it is not her name–they call her “Bruce”, alluding to the former name of Caitlyn Jenner, the famous athlete who recently underwent a transgender transition. She has complained to her manager about the situation and was told to leave if she doesn’t like it there. What are the laws regarding discrimination based on gender identity or sexual orientation?

Workplace discrimination based on gender identity or sexual orientation is among the most harmful forms of discrimination. It consists in the mistreatment of others based on false preconceived notions of gender stereotypes.

Lesbian, Gay, Bisexual, and Transgender (LGBT) workers affected by discrimination report having to change or leave their jobs to avoid mistreatment. Individuals who are victims of employment discrimination based on sexual orientation or gender identity have legal recourse under federal law as a form of sex discrimination. This is so, even in states like Florida, where gender identity and sexual orientation are not explicitly protected. A number of local governments throughout Florida ban employment discrimination on the basis of sexual orientation, and some others also ban discrimination based on gender identity. And even if state or local laws do not prohibit discrimination based on sexual orientation or gender identity, the federal Equal Employment Opportunity Commission (EEOC) will still enforce the Title VII discrimination prohibitions against covered employers because contrary state law is not a defense to the violation of Title VII and other federal laws offering higher protection than state law. Claims for employment discrimination and workplace harassment can arise for actions such as making offensive or derogatory remarks about a person’s gender identity or sexual orientation.

Employee Discrimination Claims

An employee sues her employer for discrimination and recovers almost $2M within 1 year of her lawsuit. Will her colleagues who work for the same employer and were discriminated in similar ways recover the same amount from their employment discrimination claim? How much time do employees have to file an employment discrimination claim, and how long will it take for the employment discrimination claim to process?

One of the most frequent questions presented to attorneys as part of an employment discrimination case evaluation is: “How much is my case worth?” The short answer is: “It depends.” People are often targets of attorney advertisements on television, social media, radio, and even billboards, sharing their multimillion-dollar success stories. Showcasing a high recovery may set prospective clients’ expectations for similar recoveries. But sometimes these stories may be misleading. The reality is that each situation is different, and the recovery in every case hinges on distinct variables. Estimating damages in personal injury cases or medical malpractice is much different than estimating a recovery for an employment discrimination case. There is guidance based on judicial precedent and regulatory guidelines, but there is no crystal ball. Aside from the unique facts of each case, employment discrimination damages are shaped by a diversity of factors. These include, but are not limited to, the alleged violations, the applicable federal, state, and local laws, how much time has passed since the discrimination occurred, the defenses presented by the employer, the behavior of both parties, and whether the suit is brought at an agency level or by individuals, among other factors. Processing time depends on the nature of the claim and whether the claimant decides to file it at a federal and/or state level, among other factors. For example, generally, a Florida claimant must file his or her state claim within 365 calendar days after the discrimination took place. However, claimants wishing to also file at a federal level must submit their claims within 300 calendar days of the discrimination event. (The time limit to file a whistleblower claim for employer retaliation in Florida is 60 days.) The Florida Commission for Human Relations (FCHR), the state agency enforcing anti-discrimination laws, then has 180 days to investigate the claim. If the agency finds “reasonable cause” to believe that discrimination exists, it will notify the claimant. At this point, the claimant may bring a civil action for damages, request an administrative hearing, or request mediation. This process can take months and even years, depending on the dynamic of the claim processing.

Some federal claims require a “Notice of Right to Sue” from the Equal Employment Opportunity Commission (EEOC) prior to proceeding in court. For example, claimants who file a charge under Title VII (discrimination based on race, color, religion, sex and national origin) or under the Americans with Disabilities Act (ADA) must have a Notice of Right To Sue from the EEOC before they can file a lawsuit in federal court. The EEOC generally takes about 180 days to resolve a charge, but if the case is complex or involves multiple charges, it may take longer. For additional information, see the blog articles: Damages in Employment Discrimination Claims (Parts I and II); EEOC Claim Processing; and FCHR Claim Processing.

Data Security

An employer’s computer system is hacked and their employment records, including employees’ social security numbers and health information, may have been compromised. What are an employer’s rights and responsibilities when it comes to employees’ personal data?

In the electronic age, flawed or inexistent company policies, intentional third-party data attacks, and human error can lead to data breaches resulting in significant information and reputational losses for employers and employees alike. Employers are required to comply with various federal and state laws when collecting and managing job applicant and employee information obtained throughout the course of employment. This includes information gathered from background checks, drug, alcohol and health screenings, as well as information residing in employer computers, phones, and other information systems. Businesses are also responsible for the proper collection, security, and privacy of data gathered from customers and other parties, including children. The different federal and state laws impose penalties for non-compliance, which could overlap, depending on the nature of the violation. Some provide private causes of action while others do not. At a federal level, for example, a violation of the Fair Credit Reporting Act (FCRA) for the mishandling of background check information provides for a private recovery including costs, attorney’s fees, and punitive damages. Criminal sanctions may also be imposed under certain conditions. In addition, penalties may be imposed under the Health Insurance Portability and Accountability Act of 1996 (HIPPA) for the company’s negligent compromise of health information. At a state level, for example, the Florida Information Protection Act (FIPA) penalizes an employer’s failure to provide adequate notice of a data breach to its employees and others whose information has been compromised. Failure to provide adequate notice of a data breach also violates the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and this triggers civil penalties that may accrue for every day the employer has failed to notify the affected party. Although FIPA does not provide for private redress, FDUTPA states that any aggrieved person may bring an action for appropriate relief, which may include actual damages, attorney’s fees, and costs. Besides preserving data integrity and privacy, employers must also be concerned with the improper use of their information systems by employees. This practice leads not only to economic loss, but also to heightened liability. For example, cyberloafing (employee personal use of their workplace Internet), accessing online pornography, shopping, gambling, transmitting personal emails or messages, and the use of social media via the employer’s information technology infrastructure (and sometimes even the employee’s own device) could impose liability on employers and compromise the health of the business. In partnership with legal counsel, employers should establish sound workplace data protection and privacy policies and communicate these to employees. Such policies will enable the employers and their employees to

efficiently and legally balance the competing interests of privacy, information protection, and a technology- driven environment. Once the policies are established, they should be enforced evenly with all employees. For additional information, see the blog article: Data Privacy and Security in the Workplace.

Social Media

A manager is interested in her employee and job applicants’ social media activity. She has started asking for social media profile passwords and access to social media posts via the accounts of shared friends. Is this legal?

At least 18 states have passed laws banning employers from requesting the social media logins and passwords of employees and job applicants, but the attempts to pass similar laws in Florida have failed to date. At the time of this writing, Florida employers can request job applicants and employees to provide username and password information to their social media accounts. However, under current federal and state law, employers may not use the information obtained from these accounts to discriminate against applicants or employees on the basis of protected factors, such as disabilities, race or color, gender, national origin, religion, age, or genetic information. In addition, the federal bankruptcy law bans an employer from discriminating against an individual based on bankruptcy. That said, an employer must secure lawful access or authorization to employee’s social media information, or they may risk hefty penalties, including prison. The unauthorized access to private social media information of an individual is protected under the Stored Communications Act (SCA), which requires authorization prior to access and use of the information. In addition, an employer may not coerce an employee or job applicant into allowing access to their private social media information. However, under a particular set of facts, a court recently found that an employer secured proper access to an employee’s social media account via a co-worker who granted permission to his supervisor to see the employee’s posts via the co-worker’s social media account. As a matter of good practice, even when securing lawful access to their employees’ social media information, employers must refrain from acting adversely against employees for reasons having nothing to do with work, and especially, they may not discriminate against employees and job applicants based on factors that are protected by federal, state, and local laws. For additional information, see the blog articles: Employment and Social Media (Parts 1-3)

Non compete Agreements

I am a doctor who signed a non-compete agreement with a medical practice about three years ago. I have been offered a work-partnership opportunity about an hour away from my current employer. My employer told me that I couldn’t accept the new position because it would breach my current non-compete agreement. Is this true?

It depends on the terms of the agreement, among other factors. To protect their business and goodwill, employers can legally require employees to sign non-compete agreements. While the motivation behind this type of contract may seem reasonable, the terms of a non-compete agreement can be overreaching and may infringe on the employee’s right to earn a living once the employer-employee relationship comes to an end. This is one of the reasons why courts carefully scrutinize these contracts when they are at the center of a legal dispute.

Courts look at the law and the facts of each individual case to determine whether a non-compete agreement is reasonable in in time, area, and line of business. Typically, an agreement that is very broad will be held invalid. In Florida, any employment restraint 6 months or less in duration is presumed reasonable, and any restraint more than 2 years in duration is presumed unreasonable. For general contracts predicated on the protection of trade secrets, the timeframe increases.

In the medical profession, from a public policy perspective, the American Medical Association has openly expressed its opposition to non-compete agreements because of their effect in restricting competition, disrupting continuity of care, and potentially depriving the public of medical services. However, these agreements are still commonly required from doctors. Nevertheless, courts have invalidated them, for example, because a patient’s right to receive continued care from his physician outweighed a medical center’s business interest, or when medical patients are forced to travel excessive distances to receive care (i.e., the patients reside in a market segment far away from the employer.)

Consultation with legal counsel will provide a tailored assessment to your particular situation.

For additional information, see the blog article: Employee Non-Compete Agreements.

Independent Contractor vs Employee

Exempt vs Non-Exempt Employees

Minimum Wage

A family-owned restaurant employs three workers. The chef is paid hourly, earning the federal minimum wage of $7.25 per hour of work. A co-worker tells the manager everyone should be getting paid more. Is this true?

It may be true. Subject to some exceptions, under the Florida Minimum Wage Act, employers must pay employees the hourly state minimum wage amount for all “hours worked” in Florida. For all other minimum wage provisions, Florida follows the Fair Labor Standards Act (FLSA). The FLSA minimum wage rules apply only to covered employers and covered employees who are non-exempt. In this case, based on the nature of the business of the employer and the work, the three employees are likely covered and non-exempt, which means they should get paid the required minimum wage under Florida law unless they fall under one of the exceptions. For example, new employees under 20 years old can be paid a “training wage” of $4.25 for the first 90 days of employment. The Florida Department of Economic Opportunity (DEO) calculates the Florida minimum wage annually based on the Consumer Price Index (CPI), effective the first of January. The 2017 Florida minimum wage is $8.10 per hour, higher than the federal minimum wage of $7.25. Both the employees and employer should contact an attorney to assess their particular situation and determine whether there is a claim for back pay. For additional information, see the Minimum Wage blog article.

Child Labor, Interns and Volunteers

A manager at a nonprofit spay and neuter clinic is asking her employees to stay after hours to “volunteer” time beyond their job duties. She has also asked a 16-year- old aspiring veterinarian to be an unpaid intern at the nonprofit. Part of the intern’s duties will be helping to prepare for the organization’s yearly fundraiser and will involve work that needs to be done during the week, including during school hours. Are the manager’s requests of her employees legal? And does the unpaid intern scenario violate child labor laws?

The Florida Minimum Wage Act and the federal Fair Labor Standards Act (FLSA), require employers to pay covered employees for all “hours worked”. Subject to some limitations, individuals who volunteer or donate their time to public agencies and nonprofit organizations are not considered employees of the organization and do not need to be paid for their work. However, the FLSA restricts employees of a nonprofit organization from donating services that are the same as, similar, or related to their regular job duties in their employer organization. In this situation, if the manager requires her employees to spend additional time on the premises after work to “volunteer,” the time spent is considered working time. But if the time is spent voluntarily in activities outside of the employee’s normal working hours, then this time is not considered hours worked. Regarding the unpaid intern, since the individual is 16 years old, there are some restrictions on the student’s working, interning and/or volunteering status. The FLSA fixes the minimum age for work during school hours, performing certain jobs after school, and places restraints on work considered hazardous. Florida’s Child Labor Law also restricts the employment of minors, sometimes more than federal law. Once a worker reaches the age of 18, child labor laws do not restrict their employment. The FLSA does not limit the hours worked for minors who are at least 16 years old. However, Florida law provides restrictions. For example, when school is scheduled on the next day, minors 16 and 17 years of age may not work before 6:30 a.m. or after 11:00 p.m., or for more than eight hours per day. They may not be employed to work more than 30 hours per week when school is in session. In addition, they may not work during school hours (on any school day), except when they participate in a career education program. There is no hour limitation when school is out of session, such as summer, spring break, or winter break. Often, employers offer unpaid internships, usually to students or trainees. However, there are restrictions as to when employers can offer unpaid internships. Under the FLSA, an internship can be unpaid only if the employer is a nonprofit organization, if the intern earns formal college credit on the job, or if the employer provides training and learning opportunities to the intern. There are some specific requirements for the “unpaid trainee exception,” among them that the trainee cannot displace an existing employee, and that the trainee is the primary beneficiary of the experience, not the employer. Therefore, in this situation, if the 16-year- old is not working under hazardous conditions, she could be an unpaid intern if the nonprofit carefully followed the requirements. However, the charitable event preparation requiring her time during school days and hours probably does not qualify as a career education program (unless formally established as such). She would be fine working for pay at the nonprofit, even after school hours during the week, as long as she does not work after 11 p.m. during days in which she has school the next day. For more information, see the blog articles: FLSA Enterprise and Individual Coverage, Exempt or Non-Exempt? Employee Classification Under FLSA; Overtime Pay; Hours Worked, Child Labor, Interns and Trainees, and Volunteers.

Family Medical Leave Act

An employee is finalizing the adoption of his 5-year- old son. When he requested time from his employer under the Family Medical Leave Act (FMLA) to travel to Africa to finalize the administrative details of the adoption, the employer denied it, stating that the FMLA does not apply to preliminary arrangements for adoptions, just when the adopted child arrives in the home. Is the employer correct?

No. The Family and Medical Leave Act (FMLA) became effective in 1993 to help balance workplace demands with specific family and medical needs of the eligible employees of covered employers. Under the FMLA, an employee may request FMLA leave before the placement of a child for adoption in order to tend to administrative processing and legal counsel visits. Eligible employees may take up to 12 workweeks of unpaid leave in a 12-month period for one or more specific reasons. Eligible employees include those who have worked for an employer with 50 or more employees for at least 12 months and have provided at least 1,250 hours of service to the employer during the 12-month period immediately preceding the leave. Additionally, the Department of Labor (DOL) has issued clear guidance that its FMLA protections apply to Lesbian, Gay, Bisexual, and Transgender (LGBT) eligible employees. The DOL’s Final Rule issued on February 25, 2015, and effective on March 27, 2015, amended the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages are also able to take FMLA leave. The FMLA’s definition of spouse expressly includes individuals who are in lawfully recognized same-sex and common law marriages and marriages that were entered into legally outside of the United States, if they could have been legally entered into in at least one state in the United States. For additional information, see the Family and Medical Leave Act (FMLA) (Parts 1 and 2) blog articles.