Third DCA Applies Federal Standards for Florida Whistleblower Coverage
The Florida private sector Whistleblower's Act ("FWA") covers "any private individual, firm, partnership, institution, corporation, or association that employs ten or more persons." See section 448.101, Florida Statutes. However, the statute does not address the circumstances under which the number of employees at two related firms can be aggregated for purposes of establishing liability under the FWA.
In Diaz v. Impex of Doral, Inc. (Fla. 3d DCA, March 18, 2009), the Third District Court of Appeals held that the trial court erred in not applying the federal "single employer" and "joint employer" doctrines to a case brought under the FWA.
As explained by the United States Court of Appeals for the Second Circuit,
A "single employer" situation exists "where two nominally separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a 'single employer.'" The single employer standard is relevant when "separate corporations are not what they appear to be, that in truth they are but divisions or departments of a 'single enterprise.'"
In contrast, in a "joint employer" relationship, there is no single integrated enterprise. A conclusion that employers are "joint" assumes that they are separate legal entities, but that they have merely chosen to handle certain aspects of their employer-employee relationships jointly.
Clinton's Ditch Coop. Co. v. NLRB, 778 F.2d 132, 137 (2d Cir. 1985) (citations omitted) (cited by the Eleventh Circuit Court of Appeals in Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1360 n.6 (11th Cir. 1994)).
In Diaz, the plaintiff, Luis Diaz, claimed that the forklift he was operating, which was owned by defendant Impex of Doral Logistics ("Impex Logistics"), was unsafe and improperly maintained, in violation of the Occupational Safety and Health Administration’s (“OSHA”) regulations. Diaz alleged that when he complained about the safety of the forklift, defendant Impex of Doral ("Impex"), from whom Diaz received a paycheck, unlawfully retaliated by terminating his employment. Oscar Perez, the manager of both Impex and Impex Logistics, fired Diaz. The action proceeded to a jury trial.
At trial, Diaz presented evidence of the close operational relationship between Impex and Impex Logistics. Nevertheless, Impex Logistics moved for directed verdict against Diaz, asserting it did not have the required number of employees to make it liable as an “employer” under the FWA. Diaz’s attorney did not dispute that Impex Logistics, by itself, did not have the requisite number of employees to make it a covered employer under the FWA. However, he argued that the jury could find that Impex and Impex Logistics were either a “single employer” or a “joint employer” of Diaz. The trial court declined to apply these federal concepts and granted Impex Logistics' motion for directed verdict.
The Third DCA reversed. Citing its earlier decision in Martinolich v. Golden Leaf Management, Inc., 786 So. 2d 613 (Fla. 3d DCA 2001), the court held that the federal “single employer” and “joint employer” doctrines are applicable in FWA actions.
The Diaz holding is not surprising. It is not unusual for Florida courts to borrow employment law doctrines from federal courts, which generally have more experience in the area of employment law. Moreover, the Third DCA had expressly ruled in 2001 that the federal “single employer” and “joint employer” doctrines are applicable in FWA actions. It is not clear from the Diaz opinion why the trial court did not follow this authority.
What is clear from the Diaz decision is that employment practitioners in Florida should be fully versed in both Florida and federal law to serve their clients well.
The U.S. Department of Justice announced today that federal immigration arrests surpass drug arrests. The official release, which I reproduce here below, states:
federal suspects arrested and booked by the U.S. Marshals in 2005, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. Material witness (20 percent), immigration (15 percent) and weapons (11 percent) arrests increased at the fastest annual rate from 1995 to 2005. In 2005, immigration (27 percent) was the most prevalent arrest offense followed by drug (24 percent) and supervision violations (17 percent). Forty percent of all suspects arrested by the U.S. Marshals Service were arrested in 1 of 5 federal judicial districts along the U.S.-Mexico border, including Arizona, New Mexico, the Southern and Western Districts of Texas, and the Southern District of California. Nearly 1 in 4 (23 percent) of all suspects arrested in 2005 were arrested in the Southern and Western Districts of Texas.
The federal government reorganized key federal law enforcement agencies following the passage of the Homeland Security Act of 2002. The U.S. Customs Service and Secret Service transferred from the Treasury Department to the Department of Homeland Security; the Bureau of Alcohol, Tobacco, Firearms, and Explosives transferred from the Treasury Department to the Department of Justice; and the Immigration and Naturalization Service moved DOJ to DHS. In 2004 and 2005, the Department of Homeland Security (DHS) referred nearly half (45 percent) of all suspects handled by U.S. attorneys, compared to 33 percent of suspects referred by Justice agencies. Suspects referred for federal prosecution by the Treasury Department were 2 percent of all suspects referred in 2004 and 2005, down from 20 percent five years earlier. From 1995 to 2005, the likelihood of being prosecuted, convicted, and sentenced to prison increased. Sixty percent of suspects referred to U.S. attorneys were prosecuted in 2005 (from 54 percent in 1995). Ninety percent of defendants charged with a federal violation were convicted (up from 84 percent in 1995), and 79 percent of defendants convicted in 2005 were sentenced to prison (up from 67 percent in 1995). Thirteen percent of the defendants convicted in 2005 were sentenced to probation (down from 24 percent in 1995).
2005 was more than three times greater than the average growth in U.S. resident population (1.1 percent) over this period. Suspects referred in federal judicial districts with an average population of more than five million U.S. residents grew at a faster rate than less populated districts. Suspects handled by U.S. attorneys in districts with an average population of less one million U.S. residents were declined for further prosecution at a higher rate (36 percent) than in more populated districts (20 percent). Felony convictions in federal court (25 percent) increased at faster rate than in state court (5 percent) from 1996 to 2004. In 2004, 1 in 5 convictions of state and federal weapons felons were handled in federal courts—more than twice the percentage of state and federal weapons felons convicted in federal court in 1994.
The U.S. Court of Appeals received 14,644 filings in 2005—an increase of 44 percent from 1995. About 4 in 10 appeals filed in 2005 were for drug offenses (41 percent), followed by immigration (17 percent), weapons (16 percent) and violent (5 percent) offenses. Appeals filed by immigration offenders increased an average 25 percent per year from 1995 to 2005. At yearend 2005, 375,600 persons were under some form of federal supervision—62 percent were in secure confinement, including prison and pretrial detention. Thirty-eight percent were under federal supervision in the community, including pretrial release and post-sentencing supervision.
AmericasNewsToday reported that 16 foreign nationals and corporations have been indicted in Miami on charges of illegally exporting potential military and explosives components to Iran. I reproduce here below the entire article: “A federal grand jury in Miami, Fla., has returned a Superseding Indictment charging eight individuals and eight corporations in connection with their participation in conspiracies to export U.S.-manufactured commodities to prohibited entities and to Iran. The defendants are named in a thirteen (13) count Indictment – returned on Sept. 11, 2008 and unsealed today -- that includes charges of conspiracy, violations of the International Emergency Economic Powers Act and the United States Iran Embargo, and making false statements to federal agencies in connection with the export of thousands of U.S. goods to Iran. The charges were announced today by R. Alexander Acosta, U.S. Attorney for the Southern District of Florida; Patrick Rowan, Acting Assistant Attorney General for National Security, U.S. Department of Justice; Mario Mancuso, Under Secretary of Commerce for Industry and Security, U.S. Department of Commerce; Adam Szubin, Director, Department of the Treasury, Office of Foreign Assets Control (OFAC); Sharon Woods, Director, Defense Criminal Investigative Service (DCIS); and Julie L. Myers, Homeland Security Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE). The Superseding Indictment alleges that the defendants purchased, and then illegally exported to ultimate buyers in Iran, numerous "dual use" commodities. "Dual-use" commodities are goods and technologies that have commercial application, but could also be used to further the military or nuclear potential of other nations and could be detrimental to the foreign policy or national security of the United States. In this regard, the Superseding Indictment alleges that the defendants caused the export of 120 field-programmable gate arrays, more than 5000 integrated circuits of varying types, approximately 345 Global Positioning Systems ("GPS"), 12,000 Microchip brand micro-controllers, and a Field Communicator. All of these items have potential military applications, including as components in the construction of improvised explosive devices (IEDs). The charges announced today are the result of an extensive inter-agency investigation into the use of U.S.-made goods in the construction of IEDs and other explosive devices used against Coalition Forces in Iraq and Afghanistan. Charged in the Superseding Indictment are: Ali Akbar Yahya, an Iranian national and naturalized British citizen; F.N. Yaghmaei, a/k/a " Farrokh Nia Yaghmaei," an Iranian national; Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Madjico Micro Electronics, a/k/a "MME," and Al-Faris, all Dubai-based businesses; Neda Industrial Group, an Iran-based business; Bahman Ghandi, a/k/a "Brian Ghandi," an Iranian national; Farshid Gillardian, a/k/a "Isaac Gillardian," a/k/a "Isaac Gill," an Iranian national and a naturalized British citizen; Kaam Chee Mun, a/k/a "Brian Kaam," a resident of Malaysia; Djamshid Nezhad, a/k/a "Reza," a resident of Germany; Ahmad Rahzad, a/k/a "Saeb Karim," an Iranian national; Majid Seif, a/k/a "Mark Ong,"a/k/a "Matti Chong," an Iranian national residing in Malaysia; and Eco Biochem Sdn BHD and Vast Solution Sdn BHD, Malaysian businesses. The defendants are charged with purchasing and causing the export of U.S. goods to Iran through middle countries, including the United Arab Emirates, Malaysia, England, Germany, and Singapore. More specifically, the charges in the Indictment are as follows:
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As summer approaches, Florida employers may want to re-familiarize themselves with applicable child labor laws. There are both federal and state requirements that are nicely summarized in 