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EEOC Title VII Discrimination Enforcement: Transitioning to Protect the Transgendered

Posted in Labor & Employment, Uncategorized

April showers bring May flowers, but recently April has brought a flurry of Equal Employment Opportunity Commission (“EEOC”) discrimination enforcement directed to the protection of transgendered employees under Title VII.

First, a bit of background:  transgender is generally defined as a person who identifies with a gender other than the one they were born with. While there is no federal law that provides explicit protection for transgendered individuals, the legal landscape has changed over the last couple of years such that transgendered employees are asserting sex based discrimination claims under Title VII.

Back in April 2012, the EEOC solidified and confirmed its intention to protect transgendered employees under Title VII of the Civil Rights Act. The EEOC explained by stating that the “commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII sex discrimination prohibition . . . .”  As a result, the EEOC, in 2013, began tracking sex discrimination charges based on gender identity/transgendered status.

Recently, here in Florida, the EEOC settled the first transgender discrimination lawsuit brought by the EEOC.  The EEOC had sued Lakeland Eye Clinic after Brandi Branson’s position had been eliminated. When Ms. Branson’s employment at the clinic began, she identified herself as male and dressed in traditional male clothing. After Ms. Branson began to wear makeup and traditional female clothing to work, she was confronted over her appearance and later most of the doctors at the clinic stopped referring eye patients to her.  The settlement obtained by the EEOC requires payment of $150,000 to Ms. Brnason.

Additionally, there has been other recent news around the country regarding transgender discrimination cases:

  • On March 31st, the United States Department of Justice filed a Title VII lawsuit naming Southeastern Oklahoma State University and the Regional University System of Oklahoma over the failure of the University to award tenure to a transgendered woman.
  • In an April 1st Order, the EEOC ordered the Department of the Army to pay damages to a transgender employee whom it barred from a restroom matching her new identity and referred to her by her previous gender.
  • On April 13th, a transgendered man sued a finance company after he was called into a meeting, shown the dress code policy and asked to sign a form that he would comply with the dress code for female employees.

The takeaway from this recent activity is that employers need to assume that a transgendered employee will be able to sue under Title VII if they are discriminated against or harassed based on their lack of compliance with traditional gender norms.

As Federal Judge Sean Cox ruled this week, in an opinion permitting a transgender discrimination case to move forward, federal law doesn’t specifically protect a transgender person, but there is legal precedent that protects people who are fired for failing to conform to a gender-based expectation.

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.

Florida Construction Liens: Service of Notices under Florida’s Construction Lien Law

Posted in Construction & Real Estate

Service of notices permitted or required under the Construction Lien Law, or copies of notices when so permitted or required, unless otherwise specifically provided, must be made:

  1. by actual delivery to the person to be served; if a partnership, to one of the partners; if a corporation, to an officer, director, managing agent, or business agent; or, if a limited liability company, to a member or manager; or
  2. by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format. Fla. Stat. § 713.18

The terms “managing agent” or “business agent,” in Fla. Stat. § 713.18 require actual delivery to an officer, director, managing agent or business agent. Florida courts have held that these terms connote one who acts as a representative of the corporation and who officially speaks for it in its local business affairs as opposed to a mere employee. See Cont’l Home Parks, Inc. v. Golden Triangle Asphalt Paving Co., 291 So. 2d 49, 50 (Fla. 2nd DCA 1974). If service of notices by actual delivery or by mail cannot be accomplished, then posting on the site of the improvement is permitted. Fla. Stat. § 713.18.

The Plaintiff in an action to enforce a construction lien must allege service of notice in accordance with If a plaintiff fails to allege service of notice in accordance with Fla. Stat. § 713.18. The plaintiff is entitled to amend his or her complaint to allege valid service prior to dismissal of the complaint for failure to follow the statute. S & S Air Conditioning Co. v. Cantor, 313 So. 2d 422 (Fla. 3d DCA 1975).


W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on construction litigation. You can reach W at (561) 804-4432 or wmason@foxrothschild.com. Below are some recent posts W has written on Florida Construction Lien Law:


Amendment Two (Medical Marijuana) – What Florida Employers Need to Know

Posted in Labor & Employment

Overview of the Amendment

Amendment Two, medical marijuana, is on the Florida ballot for the election being held on November 4, 2014. In order to pass, this ballot initiative, must receive 60% endorsement from those voting.

Obviously, if the medical marijuana ballot initiative passes, Florida employers will need to be prepared to respond appropriately. Accordingly, my next few posts will be covering the ins and outs of this ballot initiative and the impacts on employers in the Sunshine State.

Ballot Initiative

The official title reads as follows for the ballot initiative is:  “Use of Marijuana for Certain Medical Conditions”

The ballot summary, the text voters will read when they go to cast their ballot on Amendment Two, is as follows:  Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician.  Allows caregivers to assist patients’ medical use of marijuana.  The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers.  Applies only to Florida law.  Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.

Ballot Details

Specifically, the measure would guarantee the following:

  • That medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability or sanctions under state law.
  • That a licensed physician is not subject to criminal or civil liability or sanctions for issuing medical marijuana to a person diagnosed with a “debilitating medical condition” under state law.
  • That registered medical marijuana treatment centers are not subject to criminal or civil liability or sanctions under state law.

The measure defines a “debilitating medical condition” as cancer, multiple sclerosis, glaucoma, hepatitis C, HIV, AIDS, ALS, Crohn’s disease, Parkinson’s disease “or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”

The Florida Department of Health would be responsible for regulating medical marijuana. The department would issue and regulate patient identification cards and personal caregiver identification cards, develop procedures related to medical marijuana treatment centers and institute regulations defining reasonable amounts of marijuana for medical use.

Of interest to employers, the constitutional amendment contains six limitations on how the amendment’s language can be construed:

  • The amendment does not “affect laws relating to non-medical use, possession, production or sale of marijuana.”
  • The amendment does not authorize “the use of medical marijuana by anyone other than a qualifying patient.”
  • The amendment does not allow for the “operation of a motor vehicle, boat, or aircraft while under the influence of marijuana.”
  • The amendment does not require accommodations for medical marijuana use “in any place of education or employment, or of smoking medical marijuana in any public place.”
  • The amendment does not require “any health insurance provider or any government agency or authority to reimburse any person for expenses related to the medical use of marijuana.”
  • The amendment does not require “the violation of federal law or purports to give immunity under federal law.”

Check back, as I’ll be posting more on what Florida employers need to know if Amendment Two passes in November.
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.


Florida Appeals: Timing is Everything

Posted in Appellate

When commencing an appeal in Florida, timing is everything. For instance, the timely filing of a notice of appeal is a strict matter of subject matter jurisdiction. See Fla. R. App. P. 9.110(b); Miami-Dade Cnty. v. Peart, 843 So. 2d 363, 364 (Fla. 3d DCA 2003). If the notice of appeal is not filed within thirty days of the rendition of an order (either final or non-final), the appellate court is divested of subject matter jurisdiction by “an irremediable jurisdictional defect” and a litigant’s only right to appeal is gone. Peart, 843 So. 2d at 364. Similarly, if a motion for rehearing is not filed within fifteen days of the rendition of an opinion, the right to rehearing may be lost. See Hoenstine v. State Farm Fire & Cas. Co., 742 So. 2d 853, 854 (Fla. 5th DCA 1999) (denying as “unauthorized and untimely” a motion for rehearing that was one day late); see also Fla. R. App. P. 9.330(a). Thus, calculating the time requirements is essential to success on appeal.

As with trial court filings, Florida Rules of judicial Administration 2.514 & 2.516 provide the time computation requirements on appeal. Under rule 2.514, when time for the completion of an event—for example, the filing of a brief—is calculated in days, the calculation begins the day after the event that triggered the time period, and the last day of that period is counted in determining the end date. If the last day, however, is either a weekend or “legal holiday,” the end date is the next business day or non-legal holiday. Be sure to be careful regarding “legal holidays.” This term is defined under rule 2.514, and includes the mandatory holidays delineated by the Florida Legislature. Aside from those holidays, chief judges or the clerk’s office have discretion to add additional dates. As such, be sure to check your filing court’s holiday calendar when you believe a holiday may or may not give you extra time. If you believe a holiday may apply, and it does not, you may miss a crucial filing deadline.

Next, rule 2.514 provides that “”When a party may or must act within a specified time after service and service is made by mail or email, 5 days are added after the period that would otherwise expire under subdivision (a).” This five day additional period applies when service of a document was by mail or e-mail, and the party must respond in a period of time “after service.” If a rule or court order does not explicitly state that the person must act “after service,” the additional five days does not apply. See Miccosukee Tribe of Indians of Fla. v. Lewis, 122 So. 3d 504, 506 (Fla. 3d DCA 2013).For example, a party must file his notice of appeal within thirty days of rendition of the order appealed—not thirty days after service of the order. As such, the five day additional period does not apply when filing a notice of appeal and invoking the subject matter jurisdiction of the appellate court, even if the order is received by mail or email. Id. Furthermore, the additional five days applies when service was effectuated only by mail or email. If a party also effectuates service by another method—such as personal delivery or facsimile—along with mail or email, rule 2.516(2) requires the earlier end date to apply, i.e. the shorter period, which is that without the five days.

Accordingly, understanding how to compute time when calculating filing and service dates will help a litigator (on appeal and even at the trial court level) avoid missing crucial filing deadlines, perhaps give him or her a little more time than originally thought to complete a task, and may even provide a strategic advantage over an adversary who does not understand the time requirements of Florida’s Rules of Judicial Administration.


Trademark Infringement and Cybersquatting Non-Dischargeable in Bankruptcy

Posted in Bankruptcy, General Litigation

In the recent case of Nguyen v. Biondo (In re Biondo), 2014 WL 2702891 (Bankr. S.D.Fla. 2014)(http://www.flsb.uscourts.gov) the U.S. Bankruptcy Court for the Southern District of Florida (“Bankruptcy Court”) held that $1,130,742.68 in damages in the underlying judgment entered by the U.S. District Court for the Southern District of Florida (“District Court”) for trademark infringement and cybersquatting were not dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(6).  For a debt to be found nondischargeable pursuant to section 523(a)(6), the debt must be owing from the debtor to the plaintiff and arise from “willful and malicious” injury.  An act is “willful” within the meaning of section 523(a)(6) if it is undertaken with the intent to cause injury, or if it is an intentional act and injury is certain or substantially certain to result.  With respect to debts related to financial harms, a plaintiff must show that the defendant actually knew, at the time of the intentional act, that the injury was substantially certain to result.  An act is “malicious” under section 523(a)(6) if it is wrongful and without just cause, or excessive even where there is no ill will.  The Bankruptcy Court determined that findings by the District Court that the debtor intentionally infringed on the plaintiffs’ trademark and undertook cybersquatting, with full knowledge that such acts would harm the plaintiffs’ property, and without just cause or excuse, were entitled to collateral estoppel effect and satisfied the “willful and malicious” requirement of section 523(a)(6).

Florida Construction Liens: An Owner’s Notice Requirement and the “Notice of Commencement”

Posted in Construction & Real Estate

Generally, an owner or an owner’s agent is required to record a notice of commencement in the clerk’s office and post either a certified copy of the recorded notice of commencement or a notarized statement that the notice of commencement has been filed for recording along with a copy thereof. Fla. Stat. § 713.13(1)(a). The notice of commencement must contain the following information:

1.  A description sufficient for identification of the real property to be improved. The description should include the legal description of the property and also should include the street address and tax folio number of the property if available or, if there is no street address available, such additional information as will describe the physical location of the real property to be improved.

2.  A general description of the improvement.

3.  The name and address of the owner, the owner’s interest in the site of the improvement, and the name and address of the fee simple titleholder, if other than such owner. A lessee who contracts for the improvements is an owner as defined under s. 713.01(23) and must be listed as the owner together with a statement that the ownership interest is a leasehold interest.

4.  The name and address of the contractor.

5.  The name and address of the surety on the payment bond under s. 713.23, if any, and the amount of such bond.

6.  The name and address of any person making a loan for the construction of the improvements.

7.  The name and address within the state of a person other than himself or herself who may be designated by the owner as the person upon whom notices or other documents may be served under this part; and service upon the person so designated constitutes service upon the owner.

The Fourth District discussed the purpose of the Notice of Commencement in a 1999 decision. As the court explained:

Though the Notice of Commencement was originally required to trigger a commencement date from which to measure time limitations under the Mechanic’s Lien Law, the information contained in the Notice of Commencement provides all the details necessary to complete a Notice to Owner. Indeed, Section 713.13(1)(a), Florida Statutes, requires with Notice of Commencement information including the name and address of the owner and contractor. Thus, the legislature contemplated that the Notice of Commencement would provide the lienor with the current names and addresses of the owner and contractor, so that the lienor could properly mail the Notice to Owner. If no Notice of Commencement was ever posted or recorded by the owner as mandated by the statute, a lienor may have difficulty obtaining the names and addresses of the owners and contractor.

Sasso Air Conditioning, Inc., v. United Companies Lending Corporation, 742 So.2d 468, 470 (Fla. 4thDCA 1999), citing Symons Corp. v. Tartan-Lavers Delray Beach, Inc.456 So.2d 1254, 1259 (Fla. 4thDCA 1984). The Notice of Commencement signals the beginning of a construction project. Gulfside Properties Corp. v. Chapman Corp., 737 So.2d 604, 607 (1stDCA 1999). Under Fla. Stat. § 713.01(5), the “commencement of the improvement” is defined as “the time of filing for record of the notice of commencement provided in s. 713.13.” The key function of the Notice of Commencement is to provide the lienor and other third parties with the information they need to prepare necessary notices and related documents under Florida’s mechanic’s lien statutes. Gulfside Properties, 737 So.2d at 607.

 The failure by a property owner to file a Notice of Commencement does not relieve a contractor or supplier from satisfying the mechanic’s lien statute’s notice requirements. Professional Plastering & Stucco, Inc., v. Bridgeport-Strasberg Joint Venture, et al., 940 So.2d 444, 449 (Fla. 5th DCA 2006), citing Mursten Constr. Co. v. C.E.S. Indus., Inc., 588 So.2d 1061 (Fla. 3d DCA 1991). For instance, where a supplier failed to serve written notice of nonpayment on the contractor, the supplier’s failure to adhere to the requirements of the statute prevented its recovery under a construction bond despite the fact that the owner failed to file a notice of commencement. Murston, 588 So. 2d at 1062-63.


W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on construction litigation. You can reach W at (561) 804-4432 or wmason@foxrothschild.com. Below are some recent posts W has written on Florida Construction Lien Law:


Florida’s New Data Breach Law – Tips for Employers

Posted in Labor & Employment

It seems like just about every week there is a new report on a data breach related to credit cards, debit cards or other sensitive information.  Here in Florida, hospitals and doctor’s offices are a popular source of identity information.

In response, Florida Gov. Rick Scott recently signed the Florida Information Protection Act of 2014 (SB 1524) into law, amending Florida’s breach notification statute effective July 1, 2014.  The amendments to Florida’s data breach law include an unique statutory requirement to provide copies of forensic reports and “policies regarding breaches” to the Florida attorney general upon request; an expanded definition of “personal information” to include online account credentials (i.e. email address and passwords); and a shorter deadline (30 days) for individual notice.

While FIPA will likely have a major impact on businesses and how they respond to consumer data breaches, employers and Human Resource professionals need to be proactive and aware that data breaches regarding employee information may also be covered by this law.

What Employers Need to Know

The definition of personal information has been expanded and is defined to include an individual’s first name or initial and last name in combination with one of the following:

(1) Social Security number;

(2) Driver’s license or identification card number, passport number, or similar government document;

(3) A financial account number or credit or debit card number, in combination with any required security code or password that is necessary to permit access to the account;

(4) Information about an individual’s medical history, treatment or diagnosis;

(5) Health insurance policy number or subscriber identification number and any unique identifier used by the health insurer to identify the individual;

(6) Username or email address in combination with password or security question and answer that would permit access to an online account.

A covered entity under FIPA includes sole proprietorships, partnerships, corporations, trusts, estates, cooperative, or other commercial entity that acquires, maintains, stores, or uses personal information.

The term breach now means unauthorized access of electronic data containing personal information.

Covered entities must take “reasonable measures” to protect and secure personal information and dispose of records containing personal information (paper or electronic) once the records no longer need be retrained. Of course, “reasonable measures” is undefined in the law and likely will be established through Court opinions.

What Happens if There is a Breach

If there is a breach, an individual must be notified via email or letter, as soon as possible, but not more than 30 days after the breach was discovered.

If a breach impacts 500 or more Floridians, then notice must be provided to Florida’s Attorney General within 30 days.

Penalties for violations do not include a private right of action.  What that means is that an employee or customer cannot sue you directly under FIPA.  Rather, the law provides that the Attorney General may bring an enforcement action against a covered entity and levy penalties up to $500,000.

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.


Gender Based Hiring – Beware of the Assumption Trap

Posted in Labor & Employment

Back in December 2013, I posted regarding a new lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”) which involved a grocery store that would not hire a woman for an open courtesy van driver position.  The complaint alleged that the store manager told the applicant that he would not hire a woman for the position out of concern that the job would not be safe for a female driver.  The applicant otherwise met the qualifications for the position, but a few days later the grocery store hired a male candidate for the position.

This case has now been settled.  The applicant, Deborah Newell, will receive $10,500 as part of the settlement.  The employer will also adopt and implement a formal companywide anti-discrimination policy.  The employer will provide annual training to all of its managers, supervisors and employees regarding Title VII of the Civil Rights Act.  The employer is also required to provide the EEOC with reports, every six (6) months, which shall include the identities of all employees who have complained that they were discriminated due to their sex.

Remember, the EEOC has focused on eliminating barriers to hiring as one of its six (6) national enforcement priorities.  Gender based assumptions in hiring and promotions can quickly lead to claims for sex discrimination.  As an employer, do not assume that a woman will not want to work in a traditional male field, i.e. driver, construction, etc.  Rather focus on the actual duties of the position and apply them fairly and equally across your candidate pool.  So, while an employer hiring for a construction position may screen out applicants who are unable  to lift and carry items of a certain weight (assuming that is a real requirement of the position) an employer should not assume that women cannot fulfill that employment requirement.

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.


Payroll Cards – Convenience or Crooked?

Posted in Banking, Labor & Employment

More and more, employers are ditching the traditional paper check and providing wages to their employees via a payroll card which works much like a debit card or gift card.  But, some of those payroll cards come with fees and that has spawned litigation around the country.

Credit Card (Ficticious)

Here in Florida, Florida Statute § 532.01 was amended in 2009 to include payroll cards as a permissible form of wage payment.  Employers that choose to use payroll debit must ensure that the instrument is negotiable and payable in cash, on demand, without discount, at an established place of business in the state, the name and address of which must appear on the instrument or in the payroll debit card issuing materials. But, that doesn’t mean that fees associated with payroll cards are not permitted.  Rather, just like a check cashing fee, if an employee chooses to use his payroll card at a location where he will incur fees that is his choice.

There are benefits to payroll cards for the employee.  Payroll cards can be a less expensive option for low wage workers who do not have access to a free or low cost checking account.  Similarly, payroll cards can be cheaper than check cashing stores and other similar services.

Of course, employers like payroll cards because a payroll card deposit costs $0.35 compared to $2.00 to issue a payroll check.  Multiply those savings for hundreds of employees and it adds up.

Best Practices

In order for an employer to implement a successful payroll card program, make sure to be aware of the following best practices tips:

  • Employees should be able to access their full wages, without fee, at least once per pay period. Failure to provide such access will open up the employer to Fair Labor Standard Act or other minimum wage litigation (assuming that the fees bring the wages below the permissible threshold).
  • Federal law prohibits mandating payroll cards, rather employers must offer at least one other alternative.
  • Additionally, employers should be aware that payroll cards are subject to federal regulation under the Electronic Funds Transfer Act (“EFTA”) and Regulation E, which implements the EFTA.  Accordingly, the regulations require that the employee receive certain disclosures concerning the fees associated with the payroll card.  Also, there are limitations on the employee’s liability for unauthorized transfers using the payroll card (think about your own debit card).  Regulation E also provides error resolution procedures relating to the payroll card.  While the third party payroll card provider will likely be responsible for compliance with Regulation E, the employer likely will be the target of litigation if there is some failure or employees are dissatisfied with the payroll card program.

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.


Vacation Time – Optional or Medicine?

Posted in Labor & Employment

It’s summer time, which means family vacations and travel for many.  But, when was the last time you were able to take 11 weeks of vacation?


In a recent Florida case, Hurley v. Kent of Naples, Inc., No. 13-10298 (11th Cir. 2014), that was exactly the issue. Patrick Hurley, began working for Kent of Naples, Inc. in 2001 as CEO.  In 2008, Hurley sent the CEO of the parent company, Gil Neuman, an email with a vacation scheduled that listed 11 weeks of vacation time over two years. Responding as many employers would to a demand for 11 weeks of vacation, Mr. Neuman denied the request.  There were a few back and forth emails in which Mr. Hurley explained that the requested vacation time was not optional and that he had been advised to take said time off by medial professions.  Shortly thereafter, Mr. Neuman terminated Mr. Hurley for insubordination and poor performance

A week after the termination, Mr. Hurley’s doctor filled out a Family Medical Leave Act (“FMLA”) form noting that Mr. Hurley suffered from depression and needed treatment.  Thereafter, Mr. Hurley filed a FMLA interference and retaliation lawsuit.

While the defendant admitted that Mr. Hurley had a chronic serious health condition there was no evidence that there requested vacation time was for a period of incapacity.  At trial, the jury found that Mr. Hurley was an eligible employee under the FMLA, that he suffered from a serious health condition and that he gave proper notice under the FMLA.  But, the jury answered “no” to whether Mr. Hurley’s leave request caused his termination, but then awarded damages.  In sum, an inconsistent verdict by the jury.

On appeal, Kent of Naples Inc. reasoned that Hurley’s requested vacation leave did not qualify for FMLA protection. Mr. Hurley, on the other hand, argued that he needed only to “potentially qualify” for FMLA leave in order to file an interference claim against his employer.

The Eleventh Circuit siding with Kent of Naples, found that:

Giving an employer notice of unqualified leave does not trigger the FMLA’s protection; otherwise, the FMLA would apply to every leave request.

Furthermore, the Eleventh Circuit also ruled that the requested leave was not for a period of incapacity (as defined by the FMLA) since Mr. Hurley did not contend that his leave was for a period of treatment or that he would be incapacitated (since he could not predict his period of incapacity) during the proposed vacation days.

Despite the fact that the employer eventually won this case, protracted litigation and an appeal are both expensive.  As such, employers need to train supervisors in the FMLA certification process and be careful and diligent in documenting the process when an employer provide notice of a need for leave that may qualify for FMLA.

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.