Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

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On June 12, 2009, the Supreme Court of the State of New York, Bronx County, issued a decision that allowed the plaintiff, an undocumented alien who was pursuing a tort claim, to offer evidence of probability that his asylum application would succeed so the jury could evaluate his claim for lost wages. Maliqi v. E. 89th Street Tenants, Inc., Index No. 23309/06 (Sup. Ct. Bronx Cty. June 12, 2009). Under the federal immigration laws, undocumented aliens are not allowed to work. In tort claims where lost wages are concerned, defendants often attempt to use the plaintiff’s illegal immigration status as an absolute legal bar to recovery. In most states, the courts will allow recovery for back wages on the theory that the employer should not benefit from the employee’s labors, especially if its lax application procedures allowed the employee on the organization’s payroll. The issue of how to handle claims of lost future earnings has resulted in different approaches in the various states. Most states agree that an individual’s undocumented status is not an absolute bar to recovery. This is especially the case where the employer either knew of the employee’s lack of work authorization or did not have procedures in place to properly evaluate that work authorization. E.g. Balbuena v. IDR Realty, 6 NY 3d 338 (2006). The question is how does the plaintiff prove that he is legally entitled to the lost future earnings claimed? In the Maliqi decision, the court recognized that the plaintiff’s immigration status was a relevant consideration on any lost future earnings claim. If he remained undocumented, then he had no legal right to future wages. If his asylum claim was granted, however, he might. In a novel approach, the court resolved this conflict by allowing the plaintiff to offer evidence to the jury regarding the likelihood of success for his asylum claim. In essence, the court held that the length of time during which the plaintiff might continue legally earning wages in this country and the prospect of his deportation are factual issues for the jury to determine. (From EBG's Immigration Newsletter)

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In a much-anticipated review of a Second Circuit Court of Appeals decision endorsed by Supreme Court nominee Sonia Sotomayor, the Supreme Court has reversed the appellate court's decision, ruling that white firefighters in New Haven, Connecticut, were unfairly denied promotions because of their race.  The case is Ricci v. DiStefano (Supreme Court, June 29, 2009).

The case arose out of New Haven's use of objective examinations to identify those firefighters best qualified for promotion. When the results of examination to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, the City, fearing a lawsuit, threw out the results based on the statistical racial disparity. White and Hispanic firefighters who passed the exams but were denied a chance at promotions sued the City, alleging that discarding the test results discriminated against them based on their race in violation of Title VII of the Civil Rights Act of 1964. The City responded that if they had certified the test results, they could have faced Title VII liability for adopting a  practice having a disparate impact on minority firefighters. The district court granted summary judgment for the defendants, and the Second Circuit Circuit of Appeals affirmed.

The Supreme Court reversed, holding that City’s action in discarding the tests violated Title VII. The court held that under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The court acknowledged that the racial adverse impact from the test results was significant.  However, a threshold showing of a significant statistical disparity, and nothing more, is insufficient to show that the City would have been liable under Title VII had it certified the test results, because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record, there was no substantial basis in evidence that the test was deficient in either respect. Fear of litigation alone, the Court held, cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.

The Ricci decision is certain to be a focus of upcoming Senate hearings on Sotomayor's nomination.  For employers, Ricci offers new guidance concerning the circumstances under which an employer can take race-conscious measures to avoid or remedy an unintentional, disparate impact on minority groups.  Under Ricci, the employer must have a "strong basis in evidence" to believe it will be subject to disparate-impact liability if it fails to take the race-conscious action.  This high burden is certain to be the basis for other challenges to employers' affirmative action policies throughout the United States.

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The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§1961 et seq. (RICO), is gaining popularity as a tool by the federal government, employees, competitors and others to combat immigration law violations. The resort to RICO rests in large part on the federal government’s failure to pass comprehensive immigration reform. The attractiveness of RICO as a civil or criminal claim results from its stiff penalty provisions. Successful civil plaintiffs can recover treble civil damages, reasonable counsel fees and injunctive relief if they can prove that the damages they suffered resulted “by reason of” the defendant’s immigration violations. The government finds RICO well-suited for criminal prosecutions in this area because of the ease with which it can prove conspiracy claims and thus connect illegal activities by several defendants. The Askarkhodjaev indictment, for example, contained several RICO counts. During the last month, two class action decisions were issued by the federal courts that emphasized the increased reliance on RICO as a remedy for immigration violations. On May 18, 2009, a federal court in the Eastern District of California granted class certification of RICO claims brought by employees who alleged that the employer, a food-processing company, had depressed their wages by engaging in a pattern of racketeering activity by knowingly hiring undocumented workers at low wages. Brewer v. Salyer, No. 06-1324 (E.D. Calif. May 18, 2009). On May 28, 2009, the United States Court of Appeals for the Eleventh Circuit reversed a district court decision that had denied class certification to the plaintiff employees who sued Mohawk Industries, Inc. claiming that it violated RICO by hiring undocumented workers to drive down their wages. Williams v. Mohawk Industries, Inc., No. 08-13446 (11th Cir. May 28, 2009). The Mohawk litigation has had a long and tortured history in the federal courts. It began in January 2004, and several issues have been on appeal to both the 11th Circuit and the U.S. Supreme Court. As a result of this decision, however, Mohawk now faces the prospect of treble damages if found liable to the thousands of employee plaintiffs that comprise the class. (From EBG's Immigration Alert)

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WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

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The following is a client alert authored by EBG attorney Barry Guryan on the Supreme Court's recent decision in Gross v. FBL Financial Services, which I reported on last week.   

On June 18, 2009, the Supreme Court of the United States ruled fohe first time that in order to prevail in a disparate treatment case brought under the Age Discrimination in Employment Act (ADEA), the plaintiff must prove that "but for" the alleged discrimination, the employer would not have taken the "adverse employment action." Unlike a Title VII case, the burden of persuasion does not shift to the employer when the employee shows that age was one of the factors in a mixed-motive case.

In a 5-4 decision written by Justice Thomas, the majority held that it would not extend the "mixed motive" analysis applicable to Title VII cases to ADEA cases. In Title VII cases, which prohibit discrimination based on race, sex or national origin, where an employer is motivated by both a permissible factor and an impermissible factor, (i.e. a mixed motive), the Court, historically, has applied the well-known burden-shifting analysis. Thus, if the plaintiff meets his or her initial burden of persuasion by demonstrating that the employer considered an impermissible factor, such as race, in taking an adverse action against the plaintiff, the burden then switches to the employer to prove that it would have taken the same adverse action in any event.  Gross v. FBL Financial Services, Inc., No. 08-441.

The case was brought by Petitioner Jack Gross (Gross), who claimed that his employer, FBL Financial Group, Inc. (FBL), demoted him because of his age. At the time of his demotion he was 54. His duties were transferred to a woman who, at the time, was in her early forties. At trial, Gross presented evidence that age played a role in FBL's decision. The jury returned a verdict for Gross at the trial court level, after the trial judge, over FBL's objection, instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that age was a "motivating factor" when FBL demoted him. The trial court also instructed the jury that it must find for FBL if it found that FBL would have demoted Gross regardless of his age.

On appeal, the majority held that the burden-shifting analysis does not even apply in a mixed-motive case brought under the ADEA. In reaching this conclusion, the majority noted that after the Price Waterhouse decision of 1989, which discussed the proper allocation of the burdens of persuasion in mixed-motive cases brought under Title VII, Congress explicitly amended Title VII, in 1991, by authorizing discrimination claims in which an improper consideration was a "motivating factor" for an adverse employment decision, even though other factors also motivated the adverse action. Since Congress limited its amendment to Title VII claims, the majority refused to apply the language of the amendment to the ADEA.

The Court concluded by interpreting the plain language of the ADEA, which prohibits various types of discrimination in employment "because of" age. The majority interpreted the phrase "because of" to mean that age was "the reason" that the employer decided to act. The majority concluded: "Thus, to establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for' cause of the employer's adverse action." The plaintiff, therefore, retains the burden of persuasion throughout the case.

There were strong dissents written by Justice Stevens with whom Justices Souter, Ginsburg and Breyer joined. They stated that the "but for" standard was rejected in Price Waterhouse and that it should be rejected in cases alleging violations of the ADEA as well, since both statutes use identical language in prohibiting discrimination (i.e., both statutes prohibit adverse employment actions "because of" the impermissible factor). Moreover, there is precedent that Title VII analysis has historically been applied to the ADEA.

One of the most interesting questions that the Gross case raises is whether the Court's holding will extend to other discrimination statutes. Most notably is the Americans With Disabilities Act (ADA), which prohibits discrimination "because of" a disability. Even though the ADA, like the ADEA and Title VII, prohibits discrimination "because of" the protected category, the Supreme Court, if faced with the right facts, could apply the "but for" test to ADA claims, since, like the ADEA, discussed in Gross, Congress did not amend the ADA when it amended Title VII in 1991.

We will continue to follow these developments.
 

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On June 22, 2009, the U.S. Citizenship and Immigration Services (“USCIS”) announced that on June 29, 2009, it would resume accepting requests to Premium Process Form I-140 petitions involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of the Professions with Advanced Degrees or Exceptional Ability who are not seeking a National Interest Waiver, and EB-3 Professionals, Skilled Workers and Other Workers. Premium Processing still is not available for EB-1 Multinational Managers and EB-2 Members of the Professions with Advanced Degrees or Exceptional Ability who seek a National Interest Waiver. Under the rules applicable to premium processing, the USCIS requires an additional filing fee (presently $1,000) and agrees to adjudicate the petition or issue a Request for Additional Evidence within 15 calendar days. Participants in the premium processing service also have access to a dedicated phone line and email address to ascertain the status of the case or ask questions.

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The United States Supreme Court ruled today that a plaintiff bringing a disparate treatment claim under the federal Age Discrimination in Employment Act ("ADEA") must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.  The case is Gross v. FBL Financial Services, Inc. (June 18, 2009). 

I will offer some analysis of the Gross decision in a future post.  Stay tuned.

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The following article originally appeared in Affluent Magazine.

by Michael W. Casey, III

Companies across the board are laying off staff. Many reductions-in-force (RIF) result in employees filing lawsuits against the employer, primarily involving class action claims of discrimination based upon age, race and gender. The potential damages in RIF class action litigation can be enormous. Here are the top 10 factors to consider when management is facing substantial declining revenues.

1. Alternatives to RIFs
While short-term savings may make a RIF attractive, employers actually may incur substantial hidden costs, over the long term. Terminations may eliminate a disproportionate number of older, female, and minority employees. This creates the potential for class action and individual wrongful discharge lawsuits. Consider alternatives like furloughs, extended vacations, pay freezes or reductions, shorter work weeks and voluntary leaves of absence.

2. Voluntary Separation / Early Retirement Programs
Voluntary RIFs involve an employer soliciting volunteers for a RIF severance package. An employee who selects himself for termination, in exchange for severance benefits, will be hard pressed to argue that his selection was based on impermissible criteria. The risk of lawsuits can be minimized, through the use of a severance agreement which includes a waiver of claims against the employer in exchange for severance benefits.

The downside of voluntary RIFs is that the employer has limited control over which, employees volunteer. A voluntary RIF may result in an exodus of talented employees while low performers decide to stay.

3. Furloughs
With a furlough, an employer requires employees to work fewer hours or take a certain amount of unpaid time off. An employer may furlough all employees one day a week and pay them for only 32 hours instead of their normal 40 hours each week.

4. Involuntary RIFs
One of the primary goals of a workforce reduction is to cut costs and become more competitive. If done wrong, a RIF can leave the organization vulnerable to litigation and actually make the business less profitable.

5. Problem: Unclear RIF Criteria
A failure to articulate and document the need for a RIF can lead to problems if the RIF is challenged as discriminatory. Merely stating that the economy is bad is insufficient. The employer must be prepared to demonstrate how the economy is affecting the employer and what alternatives to a RIF have been evaluated.

6. Discrimination Issues
Most legal challenges to RIFs are based upon the selection criteria the employer uses to determine who stays and who goes. The paramount consideration is to be careful that the terminations are based on non-discriminatory factors.

7. Severance Benefits
Federal law does not require severance pay for private-sector employees. Severance pay can be beneficial by fostering goodwill among departing employees and lessen the likelihood of them filing employment claims.

8. WARN
Depending on the total number of employees and the number and timing of employment losses, the federal Worker Adjustment and Retraining Notification Act ("WARN") may require employers to provide 60 days written notice of mass lay-offs.

9. Unionized Employers
Many companies that experience economic distress necessitating a RIF are unionized. Unionized employers typically have many hurdles to jump through before implementing a RIF.

10. Communication
RIFs invariably generate feelings of disloyalty and distrust among affected employees. If RIFs are improperly handled, those feelings can cause employees to file lawsuits. Employees value employers who keep them informed of developments that could affect their jobs. Communication fosters loyalty, morale, and, productivity.

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