Part of your Florida Employment Law Service Tom Harper, Managing Editor • Law Offices of Tom Harper Vol. 27, No. 4 What’s Inside Lisa Berg, Andrew Rodman, Co-Editors • Stearns Weaver Miller, P.A. June 2015 Robert J. Sniffen, Jeff Slanker, Co-Editors • Sniffen & Spellman, P.A. Misconduct Worker’s dishonesty on job EMPLOYER RETALIATION application cuts off damages Preemption, wb, retal, protected activity, wd, term, er, el award ...................................... 2 Ask Andy 11th Circuit: Federal law preempts Referral bonuses are a good idea—if you consider Florida whistleblower statute all the angles ......................... 3 by Robert J. Sniffen and Jeff Slanker witnessed violations of federal law, ob- Liability Sniffen & Spellman, P.A. jected to activities at the bank that vio- lated the law, and refused to participate Is science leading to a Employers in Florida face potential li- in those activities. viable employee claim for ability for employment lawsuits originating workplace stress? ................. 4 under the state’s whistleblower protection After U.S. Bank terminated him, Accommodations laws. There are two whistleblower protec- Wiersum filed a lawsuit in the U.S. Dis- Court says telecommuting tion laws in Florida: One protects employees trict Court for the Southern District of isn’t always a reasonable who work for private-sector employers, and Florida alleging he was terminated in accommodation .................... 5 one protects employees of public employers. retaliation for his objections to alleged Both laws generally prohibit employers from illegal activity at U.S. Bank, in viola- Workplace Trends taking an adverse action (e.g., demotion or tion of Florida’s private-sector Whistle- Managers admit to asking job termination) against employees who have blower Act. The district court dismissed applicants illegal interview complained that they were acting in viola- his suit, holding that his whistleblower questions ................................ 5 tion a law, rule, or regulation. claim was preempted by federal law. In May, the U.S. 11th Circuit Court of The district court reasoned that the What’s Online Appeals (whose rulings apply to Florida em- Whistleblower Act, which prohibits re- ployers) limited the ability of some employees taliatory action against an employee Workforce to seek redress under Florida’s private-sector for engaging in protected activity, is Six things you need to know Whistleblower Act when it held that a fed- preempted by the National Banking to lead Millennials eral law applicable to the employment status Act, which permits federally chartered http://ow.ly/MAll5 of certain bank employees preempts the state banks to dismiss officers “at pleasure.” law. The decision is a reminder that certain Because federal law trumps state law, Leadership federal laws may provide employers more Wiersum couldn’t maintain an action The high cost of low employee leeway to address employment issues and under the Whistleblower Act against engagement hamper employees’ ability to bring certain U.S. Bank. Wiersum appealed. http://ow.ly/MnfYX employment law claims. Tech for HR 11th Circuit’s decision Tips for better passwords, Facts of the case The 11th Circuit upheld the decision cybersecurity bit.ly/1BfGGyS Marc Wiersum began working as of the district court, agreeing that the a vice president in U.S. Bank’s Naples National Banking Act preempts Florida’s Find Attorneys office in 2013. U.S. Bank is a federally private-sector Whistleblower Act. The To find the ECN attorneys chartered bank that’s headquartered court of appeals explained that preemp- for all 50 states, visit in Minnesota. Wiersum was employed tion simply involves whether and when www.employerscounsel.net by the bank for only a brief time, but a state law is subordinated to a federal he alleged that during that time, he law or administrative action under the Law Offices of Tom Harper, Stearns Weaver Miller, P.A., and Sniffen & Spellman, P.A., are members of the Employers Counsel Network Florida Employment Law Letter Supremacy Clause of the U.S. Constitution, which places There are myriad state laws that protect workers from federal law on a higher plane than state law. potential harms, including everything from retaliation based on filing a workers’ compensation claim to retalia- State laws that conflict with federal laws have no tion for whistleblowing. However, as this case illustrates, effect under the Supremacy Clause. With that founda- certain employers and industries may be granted leeway tion, the court noted that it had to address whether there by federal laws that remove the protections of state law was a conflict between the National Banking Act and as a constitutional procedural matter. Florida’s private-sector Whistleblower Act such that the federal law trumped the state law in the areas where the If you’re facing the prospect of litigating wrongful two conflict. termination claims under state law, you would be well The court then went on to analyze whether the served to explore whether any federal laws preempt Whistleblower Act’s protections from wrongful termi- the state-law claims. If so, you might be able to win dis- nation for engaging in protected activity, or “blowing the missal of a potentially costly lawsuit at the early stages whistle,” conflict with the terms of the National Banking of the litigation. Act—specifically, the language allowing certain bank Robert J. Sniffen is the founder and managing partner of employees to be discharged at will. The court noted that the Tallahassee firm of Sniffen & Spellman, P.A. He can be under the Act: reached at 850-205-1996 or [email protected]. Jeff A national banking association . shall have Slanker is an attorney with Sniffen & Spellman, P.A., in Tal- power . [t]o elect or appoint directors, and lahassee. He can be reached at 850-205-1996 or jslanker@ by its board of directors to appoint a president, sniffenlaw.com. D vice president, cashier, and other officers, define their duties, require bonds of them and fix the EMPLOYER LIABILITY penalty thereof, dismiss such officers or any of them et,retal, reinstate fmla, term, empmis, eer, aae, dam, el, ea, pp, hand, hres, hiring, at pleasure, and appoint others to fill their places. After-acquired evidence saves According to the court, the purpose of that language is to give national banks the latitude to make personnel Florida employer thousands decisions affecting officers in order to maintain the pub- in front pay and reinstatement lic trust. The court noted, on the other hand, that the Whis- by Tom Harper tleblower Act provides, “An employer may not take any Law Offices of G. Thomas Harper, LLC retaliatory person- A recent order by a federal judge in the Northern District nel action against an Certain federal of Florida shows how a good employment application can save employee because an employer money. laws may provide the employee has . employers more [o]bjected to, or re- Background facts leeway to address fused to participate in, any activity, pol- Laneitra Fourte worked for West Florida Medical employment issues. icy, or practice of the Center Clinic. She went out on medical leave protected employer which is in by the Family and Medical Leave Act (FMLA) but was violation of a law, rule, or regulation.” It then highlighted fired less than an hour after returning from her leave. cases from around the country, including the Florida She sued and, at trial, explained how her medical leave Supreme Court, in which courts held that the National upset her coworkers at the hospital because they had to Banking Act preempted wrongful termination statutes cover her shifts while (they thought) she was enjoying similar to the Whistleblower Act. “free time” during her medical recovery. Stated simply, the 11th Circuit held that the protec- The hospital denied that it fired Fourte in retaliation tions against wrongful termination in the Whistleblower for taking FMLA leave. Instead, it claimed she was fired Act are inconsistent with banks’ leeway to discharge for being insubordinate to her superiors during a meet- officers at will under the National Banking Act. When ing to address her coworkers’ concerns. Nevertheless, the two considerations collided, the court held that fed- in October 2014, a jury found in favor of Fourte on her eral law must prevail, and Wiersum therefore could not FMLA retaliation claims. maintain his action against U.S. Bank. Wiersum v. U.S. Bank, N.A., Case No. 14-12289 (11th Cir., May 5, 2015). After being fired, Fourte had a duty to mitigate her damages by trying to find a job comparable to the one she lost. She went to work in a similar job at Fortis for a Takeaway for employers while, but she was again fired. According to the court, Employers are constantly exposed to legal liability she was terminated by Fortis “for willful violations of under state antidiscrimination and antiretaliation laws. established policies.” The court viewed that conduct as 2 June 2015 Florida Employment Law Letter a failure to mitigate her damages from the West Florida wrongdoing that the employer wasn’t aware of during discharge and ruled that she wasn’t eligible for back her employment. The wrongdoing must have been so pay. Ouch! severe that the employee would have been fired for that Fourte filed a posttrial motion with the court asking conduct alone had the employer known about it. for reinstatement to her job at West Florida, front pay, an When the conduct is discovered, the employer can injunction prohibiting discrimination, and mandatory step in and claim that any relief the employee is seek- antidiscrimination training for West Florida’s manag- ing should be cut off at the date the new information ers. The hospital opposed her request, arguing that she came to light. According to the court in Fourte’s case, “To wasn’t entitled to such relief based on the after-acquired [avoid] front pay [damages], an employer must show that evidence doctrine.