Header graphic for print

Another FCRA Case Stayed Until Supreme Court Rules in Spokeo

Posted in Banking, General Litigation

Judge Lorna Schofield has agreed to stay a Fair Credit Reporting Act case until the U.S. Supreme Court issues its highly anticipated ruling in Robbins v. Spokeo, Inc. By entering a stay in Ernst v. Dish Network, LLC, S.D. N.Y. Case No. 12-Civ-8794 (LGS), the Southern District of New York joins several other courts that have agreed to put FCRA cases on hold.  Judge Schofield found that the Spokeo ruling would “likely clarify whether or not the named Plaintiffs and potential class members in [Dish Network] have Article III standing.”  The key issue in Spokeo is whether a mere violation of FCRA, without any alleged concrete harm, is sufficient to confer standing.  Judge Schofield found that the interests of the Court and the public are better served by staying Dish Network and that the potential prejudice in doing so would be minimal.

The Southern District of New York joins U.S. District Courts from the District of New Jersey, the Northern and Eastern Districts of California, the Middle and Western Districts of Pennsylvania, and the Northern District of Ohio in deciding to take a “wait and see” approach in FCRA cases until the Supreme Court rules in Spokeo.  One notable exception is the Western District of Missouri, which denied a request for stay in Woods v. Caremark PHC, LLC, W.D. Mo. Case No. 4:15-cv-00535-SRB.  However, the Caremark court did base its decision on a case involving a Telephone Consumer Protection Act claim.

The Southern District of Florida has not addressed this specific issue yet, but if Judge Marcia Cooke’s ruling in Boise v. ACE USA, Inc., S.D. Fla. Case No. 15-Civ-21264-Cooke/Torres, is any indication, it would appear that this Court would also be receptive to staying a FCRA case until a ruling is issued in Spokeo.  Judge Cooke, after considering the anticipated brevity of the delay, the lack of prejudice to the plaintiff, and the potentially wasted time, expense and resources, stayed Boise, which involved claims under TCPA, based upon the fact that Spokeo may be dispositive of whether the plaintiff in that case has Article III standing.

The willingness of so many courts to stay FCRA (and even some TCPA) cases is just another indication of the broad impact that the Spokeo ruling is likely to have.


David Greene is a commercial litigation partner in Fox Rothschild’s West Palm Beach office.  His practice focuses primarily on banking litigation, real estate litigation, title insurance litigation, and construction litigation. You can reach David at 561-804-4441 or dgreene@foxrothschild.com.

Medical Marijuana Makes Florida 2016 Ballot

Posted in Labor & Employment

Medical marijuana, which narrowly failed to pass (with 58% support, less than the 60% required) in 2014, will be back on the 2016 ballot.  The group supporting the medical marijuana initiative has now collected the required number of verified signatures.

2915049_s

Most experts expect the medical marijuana initiative to pass this time around since it will be on the ballot during a presidential election year which, normally, increases voter turn-out.

Check back, as I’ll be posting more on what Florida employers need to know about medical marijuana in the workplace.
————————-
Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

More Potty Police Activities

Posted in Labor & Employment

Following up on my prior potty posts here and here, the Equal Employment Opportunity Commission (“EEOC”) has recently settled a lawsuit involving a transgender employee which involved claims that the employee, Britney Austin, was not permitted to use the women’s restroom.

Ms. Austin will receive $115,000 as part of the settlement.   While this case was about more than which bathroom Ms. Austin was permitted to use while at work, the consent decree between the EEOC and employer specifically provides that the employer must ensure unhindered bathroom access for its transgender employees and that those employees are permitted to utilize the bathroom that corresponds to their presenting gender.

16839353_s

While lots of folks have strong opinions about the bathroom and who gets to use which one, employers are asking for trouble (and litigation) if they do not have up to date policies, procedures and training on this issue.  So not wait for your first transgender employee or customer or client before addressing this issue in your handbook.

————————-
Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Will Largest Creditors Decide 50 Cent’s Financial Fate?

Posted in Bankruptcy, Chapter 11, Creditors' Rights

Locked up Pig

In my August post, I stated that it was too early to tell whether Curtis James Jackson III, better known as rapper 50 Cent (“Jackson”), would be able to come to a consensual Chapter 11 plan for repayment with creditors.  Jackson has not yet filed his own proposed plan of reorganization.  However, it now appears that his largest unsecured creditors Sleek Audio, LLC, Suntrust Bank and Lastonia Leviston (holding $29 million in unsecured claims) have formed an alliance (the “Proponents”) and late last week filed a joint proposed plan of reorganization (“Creditor Plan”) that may ultimately decide Jackson’s financial fate.

According to court filings, Jackson is not a proponent of the Creditor Plan and was not consulted about its terms or conditions.  Whether the Creditor Plan will become a consensual Chapter 11 plan of repayment may be revealed at the February 18, 2016 hearing on approval of the Disclosure Statement for the Creditor Plan.

The Proponents suggest in their court filings that Jackson has not fully disclosed or been forthcoming about his financial affairs, including assets, debts, businesses and income.  Proponents also reference pictures posted on instagram (10/14; 10/14; 11/26; 11/7; 12/3) by the Debtor which suggest he has retained material amounts of cash while at the same claiming an ongoing inability to satisfy the claims of creditors or propose a repayment plan.

Accordingly, the Creditor Plan provides that all income of Jackson from any source whatsoever be turned over to Trustee, Richard M. Coan, of New Haven Connecticut, for distribution under the Creditor Plan.  Proponents propose that the Trustee take charge of all Jackson’s property, engage in a supervisory role with respect to all Jackson’s business dealings and that Jackson be prohibited from engaging in any further business activities without the Trustee’s review, consent and approval.  The Trustee would further liquidate property and distribute the proceeds in a “waterfall” created under the Creditor Plan.  The Proponents believe the likely outcome of the Creditor Plan would be payment of 100% of claims to creditors, with interest.

It is doubtful that Jackson will consent to the Creditor Plan with the provisions outlined above, but unfortunately for Jackson, his consent is not required for approval of a proposed plan by the Bankruptcy Court.  However, as one of my learned colleagues commented…could Jackson object that these proposed Creditor Plan provisions essentially force him into indentured servitude?…there are cases that prohibit that.


 

Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP.  Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation.  You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

Transgender Mechanic’s Discrimination Claims Survive in the Eleventh Circuit

Posted in Labor & Employment

As a follow up to my earlier posts here, here and here, Title VII is now, quite regularly, being interpreted to protect transgender employees under its gender identity or sex stereotyping protections.

Most recently, in the U.S. Court of Appeals for the Eleventh Circuit (which includes Florida), that Court has found that a transgender mechanic may have been fired, in part, based on sex.  The mechanic, Jennifer Chavez, had never been disciplined prior to undergoing her gender transition.

As she began her transition, she was directed by her employer not to wear a dress or anything “outlandish” to and from work and she was directed to cease using a unisex restroom that other female employees were permitted to use.  Ms. Chavez also alleged in her lawsuit, that her employer skipped progressive discipline steps set out in the employer handbook and that her termination for sleeping on the job was pretextual.

The lower court in this matter granted summary judgment to Ms. Chavez’s employer, but the Eleventh Circuit found that her circumstantial evidence was sufficient to raise a Title VII mixed-motive claim.  Mixed-motive means that an employer had both legitimate and illegitimate reasons for making an employment decision.

Employer Guidance

What is the take away for employers?  At this point, a trend has become a tide.  Employers should assume that transgender employees will be protected under Title VII.

31423790_s

As such, policies and procedures should be updated.  More importantly, managers and supervisors need to be educated that transgender employees are protected under gender identify and sex stereotyping case authority.  Transgender employees should be permitted to use the bathroom of their choice, they should be permitted to dress in accordance with the employer’s policies for the gender that they identify with (meaning if women in your workplace can wear dresses and skirts so can a transgender employee who identifies as female).  Do not wait for your first transgender employee, rather you need to prepare and educate now.

————————-
Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Recreational Marijuana Misses 2016 Ballot

Posted in Labor & Employment

The effort to get recreational marijuana on the Florida 2016 ballot has failed.

However, as I previously posted medical marijuana is likely to make the 2016 Florida ballot and most experts expect it to pass.  The prior medical marijuana attempt, Amendment Two, narrowly failed when it received 58% voter approval (falling just short of the 60% required).  At present, United for Care reports 800,000 petition signatures collected with 380,706 validated.  The ballot initiative needs 683,000 valid signatures by February to make the ballot.

30535210_s

______________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Florida Medical Marijuana Times Two and Take Two

Posted in Labor & Employment

In 2014, Amendment 2 which would have broadly legalized medical marijuana failed to obtain 60% of the votes necessary to pass.

The groups behind Amendment 2 have been working to add a similar ballot measure to the 2016 ballot.  According to United For Care, approximately 360,000 petition signatures have been validated by the State of Florida and another approximately 325,000 valid petition signatures need to be collected and submitted to the State of Florida before the February 1, 2016 deadline.

However, recently Florida’s Attorney General Pamela Bondi put out a statement that, unlike the 2014 effort, her office would not file a legal challenge to the proposed 2016 amendment.

42095987_s

Meanwhile, very slowly, medical marijuana pursuant to Florida’s 2014 Compassionate Medical Cannabis Act is one step closer to actually reaching patients.  Florida’s Department of Health recently approved five nurseries that will be allowed to grow medical marijuana under the 2014 law.  The 2014 law is much narrower than the proposed ballot amendment, the 2014 law only permits medicinal use of strain of marijuana that is low in euphoria-inducing tetrahydrocannabinol, or THC, and high in cannabidiol, or CBD.

______________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Not Down on the Farm – NY Farm Fined $13,000 for Refusing Lesbian Couple Wedding

Posted in General Litigation, Labor & Employment

Liberty Ridge Farm, an upstate New York farm, has recently appealed a $13,000 fine imposed by New York’s Division of Human Rights for refusing to host a lesbian couple’s wedding.  Liberty Ridge’s owners argued that they should not be required to host a lesbian wedding because of their Christian beliefs that marriage is between a man and a woman.

In fact, the farm owners had offered the farm for the reception, but not for the wedding ceremony.  Weddings typically are conducted on the first floor of the farm owners’ home or in an adjacent field.  As such, the farm owners had argued that their home was private and not a place of public accommodation under the New York law.

Administrative Law Judge Migdalia Pares of the Bronx rejected the owners’ argument that the farm and their home was not a place of public accommodation and was therefore not subject to the anti-discrimination provisions of New York’s Human Rights Law.

[Liberty Ridge Farms] is a for profit business and directs its publicity to the general public. … LRF engages in widespread marketing to the general public through advertising at a bridal show and on the internet … LRF is encouraging members of the public to lease the use of its facilities and purchase its services. Thus, there is no exclusivity and LRF is not “distinctly private.

5659926_s

New York, is one of many states with a public accommodation law the encompasses sexual orientation.   While Florida does not have a state wide public accommodation law that covers sexual orientation, many counties have their own public accommodation ordinances that companies need to be aware of.  In fact, Palm Beach County, Florida recently expanded its public accommodation ordinance to include many more businesses than it previously covered.

The term “public accommodation” is often confusing for small business owners.  But, if you advertise to the public, charge for services, buy or sell goods your business is more than likely a public accommodation.    Although private clubs can be exempt from public accommodation laws, if they offer services to the public (even on a limited basis) they may become a public accommodation as well.

Bottom line, unless you are a priest or a house of worship, declining services to someone on the basis of sexual orientation is likely to bring an expensive lawsuit.

______________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Houston’s Equal Rights Ordinance Defeated Due to Potty Politics

Posted in Labor & Employment

For the last few months, I’ve been posting about bathroom access policies and the problems employers run into when they act as the potty police.  See my posts here and here.

Now, comes news that a Houston’s Equal Rights Ordinance was soundly defeated on Tuesday.  The HERO ordinance (as it has become known) would have made it illegal to discriminate against someone based on 15 different “protected characteristics,” including sex, race, religion, sexual orientation and gender identity.  These employment/housing/public accommodation ordinances have become quite common around the country, including here in Florida (see my recent posts on Wellington and  Osceola County and expansion of the Palm Beach County ordinance).

As the Texas Tribune reported, the coalition that defeated the HERO ordinance focused its advertisement and campaign on bathroom fears:

Dubbing it “the bathroom ordinance,” they argued the ordinance’s gender identity protection would allow sexual predators to enter women’s bathrooms.  Outside of polling places, signs read “NO Men in Women’s Bathrooms.” And television ads bankrolled by opponents depicted a young girl being followed into a bathroom stall by a mysterious older man.

44737256_s

Does the defeat of HERO by the Texas bathroom brigade mean that Houston employers are off the hook on the bathroom issue?   More than likely, no.  The Equal Employment Opportunity Office and Occupational Safety and Health Administration have both indicated through recent enforcement actions and policy and rules notifications that bathroom access and policies restricting bathroom access based on birth gender are on their radar screen.  While state and local legislators are playing catch up to Federal agency enforcement trends, best practices is for employers is to permit transgender employees to use the restroom for their presenting gender.

______________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Employees Hit the Dislike Button – Proposed Florida Law Would Limit Employers Ability to Ask for Social Media Passwords

Posted in Labor & Employment

Recently, the Senate Commerce and Tourism Committee voted 5-1 to support a draft bill  (SB 186) which would prohibit employers from requesting access to employees’ private social media accounts.

The draft bill would prohibit an employer from requesting the user name, password, or any other means of accessing the social media account of an employee or prospective employee, if the social media account’s contents are not available to the general public.

38696003_s

Many states have already passed similar legislation.

______________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.