Florida Lawyer News Services | Robbins Equitas

A Fair Labor Standards Act (FLSA) Update

Defending FLSA “Collective Actions”

By: Vincent Lynch, Managing Partner of Lynch & Robbins, P.A.

Employers are facing a flood of lawsuits under the FLSA, 29 U.S.C. Sections 201-219, claiming a failure to pay overtime, minimum wage, improper FLSA exemption status or related claims.  Lynch & Robbins knows this a constantly changing and prolific area of employment law that exposes businesses to expensive lawsuits and settlements.  This update summarizes some of the common issues raised in FLSA lawsuits, identifies strategies to prevent or effectively defend such lawsuits, and presents positive solutions on how to respond to the ever prevalent FLSA Collective Action.  For more information, visit us at www.FLSADefense.com.

FLSA Lawsuits Remain on the Rise

Thousands of FLSA lawsuits are filed annually in the United States in Federal and State Court.  Over 100 FLSA cases were filed against Florida companies in Federal Court in June of 2010 alone.  Over 20% of all FLSA lawsuits are filed in Florida.

Most FLSA lawsuits are filed as a Collective Action—where one employee or former employee sues a company seeking damages for himself and anyone else that is similarly situated to the Plaintiff that filed the action.  Attorney’s fees can be awarded to the employee and their lawyer if they prevail.

Florida Federal Judges Order Special Procedures

In response to the volume of FLSA filings over the last few years, many Federal Judges across Florida including in Tampa, Orlando, Miami and Jacksonville issue special scheduling orders to manage these cases and to encourage settlement.  One of the requirements imposed early in FLSA cases is for the employee(s) to file a verified summary or affidavit of the hours worked and amount of pay they claim they were denied.  Employers must file responses to the employee’s claims and counsel must meet in person for a settlement conference.  Some Judges require a settlement conference in the presence of the Judge early in a case.

Conditional Certification and Notice to Potential Class Members

Employees and their lawyers often ask the Court to conditionally certify the case as a Collective Action and order notice to all of the company’s former and current employees who are similarly situated to the Plaintiff.  Courts routinely allow this because the legal standard for authorizing conditional certification and class notice is very lenient.

However, employers can defend themselves from this process. Fortunately, the Court has absolute discretionary power to deny the sending of notice to potential class members in an FLSA collective action. Rappaport v. Embarq Mgmt. Co., No. 6:07-cv-468-Orl-19DAB, 2007 WL 4482581, at *4 (M.D. Fla. Dec. 18, 2007).  The employer can argue that the lack of evidentiary support for a motion seeking to conditionally certify a collective action can lead to significant inefficiency and waste of litigant and judicial resources dealing with conditionally certified collective actions that have virtually no chance for final certification.

Effectively and Efficiently Defending an FLSA Lawsuit

In many instances, the key to efficiently defending an FLSA case is to immediately determine if any actual FLSA violations exist and remedy those claims voluntarily.  Lynch & Robbins evaluates each FLSA case for our clients independently and creatively based upon the particular circumstances present.  We have sometimes immediately asked the Court to stay (cease activity in the lawsuit) pending our client’s efforts to investigate the alleged claims and fix any problems.  This can greatly reduce the fees and costs incurred by both sides.  We are also able to aggressively defend and seek dismissal of any claims that lack merit and take strong action that may prevent the case from being treated by the Court as a Collective Action.

FLSA Lawsuit Prevention

Florida businesses can and should conduct periodic audits of their pay practices to catch any wage and hour issues before getting sued.  The United States and Florida Departments of Labor have useful information and tools on their websites at www.dol.com and www.stateofflorida.com.

Our Experience

Lynch & Robbins represents many companies hit with FLSA individual and Collective Actions.   We are committed to providing our clients the most current methods for preventing and defending claims under the FLSA and other employment laws.  For more information visit www.FLSAdefense.com.

Vincent Lynch is the Managing Partner of Lynch & Robbins.  In addition to representing businesses on FLSA matters, his practice includes complex federal and state court litigation, arbitration and administrative law.  Mr. Lynch has over 18 years of legal experience, and served as a state and Federal Court law clerk. He has been a member of The Florida Bar since 1992.

Current Florida Litigation Trends (July 2010)

By: Vincent Lynch, Managing Partner of Lynch & Robbins, P.A.

At Lynch & Robbins, our Florida lawyers continually monitor trends in recent lawsuit filings in Federal and state courts and administrative tribunals across Florida. We focus our research and advice to clients on the most prolific areas of the moment such as the Fair Labor Standards Act (FLSA), Fair Debt Collections Practices Act (FDCPA), Americans with Disabilities Act (ADA), securities, partnerships, and intellectual property law. We also track favorable developments in our other core practice areas including Commercial Litigation, Product Liability, Franchise, and administrative law cases. Lynch & Robbins has offices in Tampa, St. Petersburg, Orlando and Miami.

Florida Court Dockets Remain Flooded

The tidal wave of foreclosure and eviction cases coupled with the reduction in the Florida State Court budget have greatly impacted the number of cases on the dockets of the state court judges in Florida. However, many Florida judges and their staff are working hard to manage their dockets and we have seen surprising progress on state court cases we handle for clients throughout the Circuit Courts of Florida.

The Federal Courts in Florida

FLSA, ADA, Fair Debt Collection Practices Act (FDCPA) and intellectual property law cases are among the most filed lawsuits in the Federal Courts in Florida–that encompasses the Southern, Middle and Northern District Courts. Approximately 150 FLSA cases were filed against Florida companies in Federal Court in June of 2010 alone and over 20% of all FLSA lawsuits filed in Federal Court are filed in Florida. Over 50 intellectual property law cases were filed in Federal Court in Florida in June of 2010 including Patent Litigation, Trademark Infringement, and alleged Copyright violations.

In response to the extremely high volume of filings in certain areas including the FLSA and ADA, many Federal Judges across Florida including in Tampa, Orlando, Miami and Jacksonville issue special scheduling orders to manage and progress these cases quickly. Some Judges, particularly in the Southern District Courts in Miami and Fort Lauderdale enter orders allowing for shortened discovery periods and setting cases for a trial date a relatively short period of time from the date the case was filled—otherwise known as a “Rocket Docket.” These Judges know that nothing disposes of cases more efficiently than a firm and early trial date.

Over 750 lawsuits are filed monthly under the Federal Fair Debt Collection Practices Act and other Consumer Protection Laws in Federal Courts in the United States. At least 30 FDCPA cases were filed in Federal Court in Florida in June, 2010.

Employment Litigation

Employment litigation consistently remains one of the most prolific areas of litigation in Florida and across the U.S. Over 220 employment related lawsuits were filed against employers in federal court in Florida in June, 2010 including 150 FLSA and 75 employment discrimination cases.

Our Experience

Whether you need an employment lawyer (to defend and FLSA or discrimination case under Title VII, the Florida Civil Rights Act or the ADA), an intellectual property attorney or are involved in commercial litigation, the lawyers of Lynch & Robbins can help you. We are committed to providing our clients the most current methods for preventing and defending litigation efficiently and effectively. For more information, please visit us at www.floridalawyer.com.

Vincent Lynch is the Managing Partner of Lynch & Robbins. Mr. Lynch represents businesses, employers and individuals in complex federal and state court litigation, arbitration and administrative matters. Mr. Lynch has over 18 years of legal experience, and served as a state and Federal Court law clerk for 4 years before entering private practice. He has been a member of The Florida Bar since 1992.

Battle Over Airport Noise Ordinances Goes Bi-Coastal

A battle over the authority of a local municipality to enact aircraft noise ordinances is shaping up simultaneously on both the “left coast” (California) and the “right coast” (Florida). In California, the city of Santa Monica has appealed an FAA decision that prohibited the city from banning certain jets from operating at the Santa Monica Municipal Airport (SMO). The city adopted an ordinance in March 2008, banning Category C and D jets (e.g. Gulfstreams, Challengers, and some Citations) based on what the city called “safety issues.” The FAA issued a cease and desist order on April 24th, the day that the ordinance was to go into effect, and a District Court granted the FAA a temporary restraining order which stopped the ordinance from being enforced. The city then appealed the FAA decision and the case will soon be heard by the U.S. Court of Appeals, D.C. Circuit.

Both AOPA and NBAA have been actively involved in the dispute (which has been going on for more than 7 years) and each will file briefs as amicus curiae or “friends of the court” with the D.C. Circuit. Kathy Yodice, legal counsel for AOPA, explained why this issue is important to the national “alphabet” aviation groups, and why they are weighing in on this issue: “The implications of this case extend beyond the instant dispute between the city and the FAA, and any decision by this court could potentially affect how similar circumstances are treated elsewhere . . . If the city of Santa Monica is allowed to implement its desired bans, such precedent could provide airport sponsors nationwide with a basis to implement restrictions at a publicly funded airport, an action that should and always has been within the exclusive province of the FAA.”

Meanwhile, back here in Florida, a similar battle is brewing at the Vakaria Airport which proves AOPA’s point. Although the Valkaria Airport (X59) is owned and operated by Brevard County, it sits within the Town of Grant-Valkaria. The Town (which is located between Melbourne and Sebastian on the east coast of Florida) passed an ordinance that prohibited commercial flight training/instruction at the airport and prohibited commercial flight training/instruction schools from being located at the airport. Like Santa Monica, the Town cited noise and safety concerns as the basis for its ordinance claiming that homeowners have been “victimized and harassed by the
noise associated with certain low flying aircraft over or near their property.”

After passing the ordinance, the Town asked the FAA if it could enforce the ordinance and the FAA was unequivocal in pointing out that it could not. In its August letter to the Town, the FAA cited the abundant legal authority giving the FAA the sole and exclusive authority to regulate “airspace use, management and efficiency, air traffic control, safety, navigational facilities, and the regulation of aircraft noise at its source.” Based on this authority, the FAA advised the Town that the ordinance is not enforceable because, among other things, the Town is not the “proprietor” of the airport: “Nonproprietor jurisdictions such as the Town of Grant- Valkaria have no role in determining the legal requirements affecting the operation of the airport or airport development. This would include prohibiting the basing of commercial flight schools and flight instruction at the Airport for purposes of controlling aircraft noise and safety.” It is presently uncertain whether the Town will appeal the decision, or whether the airport proprietor (Brevard County) will take steps to enact regulations that mirror the ordinance adopted by the Town.

These two battles provide us with an example of federal preemption of state and local law, as discussed in an article that appeared in the Fall, 2008, edition of Florida Aviation Business (“Pre What? The Fight Over Federal Preemption and What it Means to You”). As we have seen at the Naples Municipal Airport, the power of the FAA is not unlimited, and a municipality can enact “reasonable” regulations to reduce aircraft noise at an airport that is owned and operated by the municipality. In such cases, the FAA may not withhold airport improvement grants based on the FAA’s determination that the municipality violated grant assurances. The problem for both Santa Monica and Valkaria airports, however, is that the ordinances the municipality wishes to enact will most likely be found to be unreasonable and discriminatory. That is so because the ordinances prohibit one activity, while another similar activity has precisely the same noise and/or safety impact.

Nevertheless, the process underway at Santa Monica (and possibly Valkaria) airport provides an excellent example of the process of FAA/federal preemption at work. A municipality enacts an ordinance, the FAA decides that the ordinance is either expressly preempted and/ or unreasonably discriminates against certain flight activities, the municipality appeals, and the D.C. Circuit decides the issue. We know how the process turned out at Naples, and it will be important to monitor the outcome of the Santa Monica and Valkaria disputes. While it might appear on the surface that only aviation businesses at Santa Monica and Valkaria will be affected by the outcome of these disputes, there is no question that the entire aviation industry will be adversely impacted if the FAA loses either one of these battles. This is one time that it might serve all of us to cheer, rather than jeer, the FAA.

Americans with Disabilities Act Update

Disability Access Lawsuits on the Rise

By Vincent Lynch, Managing Partner of Pinkard Lynch, P.A.

The Americans with Disabilities Act (ADA) was established by the United States Congress in 1990 to protect disabled Americans from discrimination in employment, government services and places of public accommodation, such as privately owned or operated hotels, restaurants, and shopping centers. The ADA is a Pandora’s Box of litigation for small, medium and large businesses.

Title III of the ADA requires businesses to be accessible to the disabled that utilize their goods and services. The ADA requires removal of structural barriers in businesses open to the public where removal is “readily achievable.” 42 U.S.C. §12182(b)(2)(A)(iv). Where removal of a barrier is not readily achievable, businesses may provide access “through alternative methods if such methods are readily achievable.” 42 U.S.C. §12182(b)(2)(A)(v). Aggrieved individuals may sue to enforce the ADA and, if successful, obtain injunctive relief and an award of attorney’s fees. 42 U.S.C. §§12188(a)(1); 2000a-3(a). Monetary damages are not recoverable. Several disabled persons, disability organizations and their attorneys are bringing high volume ADA litigation that is hurting business in an already difficult economic climate.

High Volume ADA Plaintiffs’ and their Lawyers

Some of these persons and organizations include Stephen A. Karakis, Nolan R. Campbell, Access for the Disabled Inc., and Access 4 All Inc. Over the last few years, hundreds of lawsuits were filed against a variety of businesses in an overzealous attempt to force compliance with the ADA. One of the most prolific ADA Access litigants is A. Joseph Raetano. Mr. Raetano, through his attorney, Todd Shulby, filed approximately 100 ADA cases in the Tampa Metropolitan Area in 2009 claiming discrimination by a laundry list of private businesses. Mr. Raetano sued 27 commercial property owners in Clearwater, Florida and 10 on Main Street in Dunedin, Florida. His lawyer, Todd Shulby, filed approximately 800 ADA lawsuits since 1995. Where does it end?

Enter Scott N. Johnson, Esq. a disabled attorney near Sacramento California who jumped on the ADA bandwagon and added a new twist. Mr. Johnson filed over a dozen lawsuits in November 2009 alone in the US District Court for the Eastern District California. Mr. Johnson filed over 100 lawsuits so far, represents himself and Disabled Access Prevents Injury, Inc., and seeks not only injunctive relief (such as repairs) but monetary damages under the California Civil Code. California courts are being flooded with new disability access cases in part because of even broader state protections than those available under the ADA and the right to seek damages.

Some backlash has taken place from Judges that handle ADA cases and several bills were presented before Congress to reform the ADA, but none have passed and it remains extremely easy for a business to be sued for a failure to comply with the ADA. Orlando Federal Judge Gregory Presnell indicated that “[t]he current ADA lawsuit binge is essentially driven by economics-that is, the economics of attorney’s fees.”

A Federal Court in California described their tactics:

“The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violation and attempting to remedy the matter through ‘conciliation and voluntary compliance,’ a lawsuit is filed, requesting damage awards that would put many of the targeted establishments out of business.

Defending a Disability Access Lawsuit

Structures built before 1992 constitute “existing facilities” under the ADA. A business run in an “existing facility” need only remove actual structural barriers to access that are “readily achievable” and do not require “much difficulty or expense.” This is a fairly lenient standard and takes into consideration the cost of making repairs to remove the alleged barriers to access in a lawsuit. New facilities or buildings constructed after 1993 must be “readily accessible” and “usable” by individuals with disabilities. A comprehensive list of specific regulations govern new construction including specific architectural and building specifications such as counter heights and the size of a bathroom stall.

In either case, a company can defend the case by proving the person did not attempt to actually access the premises or has no real intention of returning which may be the case with a high volume Plaintiff. The private company can also assert that the alleged barrier does not, in fact, prevent the person from gaining access to the goods and services of the business. Also, the company can argue that the modification sought would create an undue burden or expense.

Our Experience

Our firm has successfully represented dozens of small and large companies throughout the US in disability access and employment litigation and prevention. Our clients include health care professionals, restaurants, golf courses, recreational businesses, shopping centers, retail stores and hotels.