When Employees Die, Who Gets Their Last Paycheck?

This is not the most pleasant topic, I know, but a client recently asked this question after one of their Florida employees was tragically shot and killed.  After doing a bit of research, I was surprised to learn that a Florida statute addresses this question.  It's pretty straightforward, so I'll simply reprint it here:

 

222.15 Wages or unemployment compensation payments due deceased employee may be paid spouse or certain relatives.
 
(1) It is lawful for any employer, in case of the death of an employee, to pay to the wife or husband, and in case there is no wife or husband, then to the child or children, provided the child or children are over the age of 18 years, and in case there is no child or children, then to the father or mother, any wages or travel expenses that may be due such employee at the time of his or her death.

(2)  It is also lawful for the Agency for Workforce Innovation, in case of death of any unemployed individual, to pay to those persons referred to in subsection (1) any unemployment compensation payments that may be due to the individual at the time of his or her death.

Bystander Employee Can Claim Sexual Harassment

Sexually offensive language need not be targeted at the plaintiff in order to support a claim of sexual harassment, according to a recent decision by the Fifth District Court of Appeals in Blizzard v. Appliance Direct, Inc. (Fla. 5th DCA, August 7, 2009). 

The plaintiff in the case, Neina Blizzard, a former sales associate at an appliance store, alleged that the manager of the store, Jeff Rock, constantly talked about his sexual prowess, made lewd comments about female workers and customers, and would whinny like a horse when an attractive woman would come into the store. However, the comments were not directed at Blizzard, nor did he ever touch her or make any sexual advances toward her. In fact, Blizzard was under the impression that Rock did not like her at all. She did claim, however, that Rock would give preference to other women who were receptive to his management style.  Blizzard either quit or was fired (there was a dispute on this point), and subsequently sued her employer, claiming sexual harrassment and retaliation. 

A plaintiff in a sexual harassment case must prove that the harassment was "based on" her sex. The "knotty question" raised by Blizzard's harassment claim, according to the Fifth DCA, was whether harassment in the form of offensive language was “based on” Blizzard's sex, even when she was not the target of the language, and even though other employees were equally exposed to it.  In answering that question in the affirmative, the court cited the decision by the United States Court of Appeals for the Fourth Circuit in Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001).  In that case, the court held that racist comments by a white manager, including comments about the manager's own African-American wife, could support an African-American plaintiff's claim of racial harassment, even though the comments were not directed at him. 

(Interestingly, in a footnote, the Fifth DCA noted that the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) reached a similar conclusion in Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1145 (11th Cir. 2008), reh'g en banc granted, vacated by 569 F.3d 1290 (11th Cir. 2009).  In April of this year, however, the Eleventh Circuit vacated its opinion in order to consider the case en banc (i.e., by the whole court rather than a 3-member panel).  Will the Eleventh Circuit reverse itself on this point?  That seems unlikely.  As noted by the Fourth Circuit in Spriggs, "whatever the contours of one's environment, they surely may exceed the individual dynamic between the complainant and his supervisor."  In fact, Spriggs cites a 1982 Eleventh Circuit decision, Walker v. Ford Motor Co., 684 F.2d 1355, 1359 n.2 (11th Cir. 1982), for this proposition. In Walker, the court held that "[t]he fact that many of the epithets were not directed at [the plaintiff] is not determinative. The offensive language often was used in [his] presence.")

For Florida employers, the lesson of the Blizzard case is clear:  Do not condone or tolerate sexually explict langugage or behavior, especially by supervisors, in the workplace.  Whether the targets of such comments and behavior are offended may be irrelevant.  "Bystander" employees who take offense may have viable claims against their employer.

USDOL to Audit All PERM Labor Certifications Filed by Fragomen

On June 2, 2008, the USDOL announced that all PERM Labor Certification Applications (“LC”) submitted by the law firm of Fragomen, Del Rey, Bernsen & Loewy (“FDBL”), the largest immigration firm in the nation, will be audited.

USDOL’s announcement states: “The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.”

I do not know what FDBL did or did not do, but I certainly take objection at USDOL’s decision, as a colleague stated, for “trying” FDBL in a press release. Such announcements should be reserved only for cases in which the USDOL has found the existence of wrongdoing.

In its announcement the USDOL also states that: “There is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program.” I could not disagree more or in stronger terms. It is wrong for an attorney to advise the employer not to hire a qualified U.S. worker, but USDOL regulations are clear as far as an employer’s right to receive legal counsel through the much confusing and convoluted PERM process. 20 CFR § 656.10(b)(1) states clearly that attorneys may represent employers throughout the process. As long as the attorney does not interview or consider the U.S. worker for the position, the attorney has not violated any rule. Through this announcement USDOL also appears wanting to restrict the open communication that must exist between an attorney and his client for purposes of legal representation.

But there is another point I wish to make. Many employers in their quest for the “easiness” of a mill application process and low attorney fees receive legal services which may cover the minimum application requirements, but that do not offer protection. The days of “easy” compliance are long gone; today’s immigration law is complex, always changing and confusing. The US government has become more active in enforcing immigration laws against employers. In response to 9/11, the government has increased security measures and electronic initiatives to address national security concerns. The increase in the government's immigration policies is manifesting itself in a resurgence of government audits and criminal investigations of US employers. Given these enforcement times we live in, employers would be better served by researching and hiring legal services that offer them safety.