Employment Law Update

On January 11, 2011, the U.S. Equal Employment Opportunity Commission (“EEOC”) reported that the filing of Charges alleging discrimination and/or retaliation with the federal agency nationwide hit an unprecedented level of 99,922 during fiscal year (FY) 2010, which ended Sept. 30, 2010. While the number of Charges have increased, the EEOC reports that the amount of pending Charges has only increased approximately 1%, meaning that the EEOC is processing Charges more efficiently. The Miami District Office of the EEOC has seen such an increase in Charges, that it has been transferring claims to the EEOC’s San Juan, Puerto Rico office[...]

Cyber Security of Consumers’ Financial Information

With the rapid growth of the use of technology in business comes great risk to consumers private information, and a concomitant risk to many of the businesses that are charged with the protection of that private information. In recent years, the Federal Government has enacted regulations, albeit vague in form, in an attempt to manage these risks. One such act, entitled the Gramm-Leach-Bliley Act (GLBA), or the Financial Services Modernization Act, was enacted by Congress in 1999 in an effort to provide a forward-looking framework within which “financial institutions” must proactively protect consumers’ nonpublic financial information.1 Financial institutions are required[...]

Do You Value Your Appraisal Provision?

Insureds have increasingly used Florida’s informal mediation program, set forth in §627.7015, Florida Statutes, as a defense to an insurer’s request to demand appraisal under the insurance policy. The statute provides that if an insurer fails to abide by certain notice requirements contained in the statute, the insured shall not be required to submit to, or participate in, any contractual loss appraisal process as a precondition to legal action for a breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.1 According to the statute, for personal lines and commercial residential policies,[...]

“Cat’s Paw” Theory of Liability

Recently, the Supreme Court issued an opinion upholding the US “cat’s paw” theory of employer liability, under which an employer may be liable for discrimination in an adverse employment decision against an employee where the ultimate decision maker is unbiased and has no discriminatory motives. Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011). Under this theory, the discriminatory motive of a non-decision maker is imputed to the decision maker, and employer, where the discriminator has some significant influence that leads to the adverse employment action. Id.The term “cat’s paw” is derived from the Aesop’s fable, “The Monkey and The Cat,”[...]

Cracking the Code Florida’s Senate Bill 408’s Significant Changes

On May 17, 2011, Governor Rick Scott signed Senate Bill 408 (the “Bill”) and significantly changed the landscape of sinkhole claims.  Although prior versions of the Bill sinkhole carriers to offer sinkhole coverage, the final version requires homeowners’ insurers to provide coverage for sinkhole loss.  Fla. Stat. § 627.706(1)(b).  Therefore, insurers cannot ignore the vast amount of amendments by simply nonrenewing sinkhole coverage.  However, insurers can restrict sinkhole loss coverage to the principal building as defined in the policy.  Fla. Stat. § 627.706(1)(c).  The Bill specifically attempts to address insurers’ concerns regarding insuring sinkhole loss in Florida, including the issues[...]

Summer 2011 CSK Quarterly

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Fourth DCA: Illegality of Contract Must be Considered

In Jupiter Medical Center, Inc. v. Visiting Nurse Association of Florida (full case here), the Appellant brought the action to vacate an arbitral award on the ground that it was based on an illegal contract.  The trial court did not address the issues of the contract's legality, and entered an order enforcing the arbitral award.  The Fourth District Court reversed and remanded the decision of the trial court, because Florida courts cannot enforce an illegal contract.It was argued that because the parties had gone through arbitration, section 682.13(1) of the Florida Statutes, provided the only five circumstances under which a[...]

Second District Addresses Landlord/Owner Liability in Negligent Security Cases

In Jones v. Basha, the Second District addressed Landlord/Owner Liability in the negligent security context.  This case involved a carjacking, which occurred in arguably an area considered to be the "Common Area."  The court terms the parking lot, where the carjacking occurred, outside the store as "public access to the store," as opposed to being part of the demised portions of the building that were actually purchased by the store.  Therefore, although the landlord owned the asphalt where the plaintiff was allegedly attacked, the Landlord, and/or its employees, did not venture over into the subject area, for any type of[...]

NLRB Issues New Notice Posting Requirements Effective 11/14/11

Pursuant to the National Labor Relations Board's new notice requirement (found here), every employer, subject to the National Labor Relations Act, must conspicuously post notices to employees informing of their rights under the National Labor Relations Act.  Failing to post the required notice may be considered an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act.

Fourth District Court determines that Proposal for Settlement not Ambiguous

In Jeffrey Jones v. Publix Supermarkets, Inc., the Plaintiff filed a proposal for settlement that provided in part that "This proposal for settlement encompasses all damages and expenses associated with this claim even those damages or expenses as to which collateral source payments have been made," and that plaintiff "will execute a full release of liability in favor of Publix Supermarkets, Inc., a Florida Corporation, and it's [sic] affiliated insurance company, and the stipulation for voluntary dismissal."  There was no further summary of the release included, nor was a copy of the proposed release attached to the proposal.The trial court[...]