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Book Break — A Brief History of Seven Killings

A Brief History of Seven Killings

I’m taking a break from discussing the law to rave about the best new novel I’ve read in years.  Marlon James’ (@MarlonJames5) A Brief History of Seven Killings is ostensibly about the 1976 assassination attempt on Bob Marley.  In fact, Marley isn’t really a character in the book; he’s more of an idea that motivates the novel’s characters, and the attempt on his life is a device used to tell the story of Jamaica’s upheavals in the 1970s.  That story is told through dozens of narrators, each of whom carries a distinct voice.  It takes some getting used to, and I’ve read a fair criticism that the lengthy internal dialogues of James’ characters distracts the reader from the often brutal action unfolding in a given scene.  But that’s a small price to pay for a book this gritty, urgent and full of evil energy.

For me, one of the biggest thrills in this book is how it highlights many criminally-overlooked roots-reggae artists of the 1970s.  These artists and their songs have little in common with the kitchy, good-time reggae music that you often hear at summer music festivals.  To the contrary, much of the roots-reggae recorded in the 70s is tough-as-nails, telling unsentimental stories of a hard life, and making pointed political demands.  Consider, for instance, In The Roots of the Ghetto, in which Johnny Clarke’s bleak portrait of ghetto-life (where people are “weeping and crying because they’re starving,” compared to people living in the “residential area[s],” who are “having fun”) seamlessly rolls into calls for revolution.

Linval Thompson is even more direct in Blood Gonna Run.

Similarly, in his song Marcus Garvey, Big Youth — one of Jamaica’s best “toasters” — stirred a boiling pot with his stories of “false leaders” and “blood running in the country.”

And over lilting horns and fat organ stabs, Willie Williams matter-of-factly sings “A lotta people won’t get no justice tonight, so a lotta people going to have to stand up and fight.”

These few songs are, literally, just the tip of the iceberg.  There is a world of vital Jamaican music that was dangerously close to being completely forgotten.  Reissue labels like Blood & Fire and Pressure Sounds have rescued a lot of this music, but something like A Brief History of Seven Killings presents a rare opportunity to introduce a new generation to these crucial artists and songs. Let’s hope that opportunity isn’t squandered.1Marlon James curated a Spotify playlist as an introduction to the music that swirls around his novel.  Aside from all the great reggae, the playlist also reminds me that Shadow Dancing was a near-perfect pop song.

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Statutory Interpretation and Employment Laws

Statutory Interpretation (Cartoon)


As a recent Ninth Circuit case (Mendoza v. Nordstrom) illustrates, sometimes even straightforward concepts give employers — and Courts — fits when they’re written into laws or regulations.  California adopted laws intended to “avoid overworking employees by providing a regular day of rest in most circumstances.”  The statute says “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” but an exemption to the day-of-rest requirement exists “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”  California Labor Code sections 551 and 556, respectively.  And an employer may not “cause his employees to work more than six days in seven.”  California Labor Code section 552.  Assume an employee has the following schedule, which parenthetically shows the number of hours worked on each workday.

Sunday Monday Tuesday Wednesday Thursday Friday Saturday
OFF WORK (8) WORK (9) WORK (5) WORK (8) WORK (8) WORK (8)

Has the employer violated section 551?  It depends.  First of all, Section 551 is unclear about whether the required day of rest is calculated on a rolling basis for any consecutive seven-day period, or calculated based on a seven-day workweek.  If it’s the former, the employer has violated the law; if it’s the latter, the employer has not violated the law.  The Court notes that the statutory history can support either interpretation.

Second of all, there’s the section 556 exemption to consider.  Our hypothetical employee worked only five hours on the first Wednesday in the chart above, and section 556 exempts employers from having to give a day-of-rest if an employee’s total hours “do not exceed 30 hours in any week or six hours in any one day thereof.”  If “any” in section 556 means “any single day,” then the exemption applies.  If “any” in section 556 means “each” or “all,” then the exemption does not apply.  While the Court notes that the former interpretation is “the more natural reading,”1That is, “any” would carry the same meaning in section 556 that it does in the phrase “pick any card from the deck” it also notes, persuasively, that the latter interpretation is very plausible.2That is, “any” would carry the same meaning in section 556 that it does in the phrase “any child knows the answer to that simple question.”  Both interpretations are plausible, and there is no statutory history or California appellate case-law providing guidance on this point.

Finally, assume that, on the Sunday our hypothetical employee worked 9 hours, he was covering a coworker’s shift at that coworker’s request, without being pushed to work a seventh straight day by the employer.  Under section 552, an employer must not “cause” its employees to work more than six days in seven.  Has the employer violated section 552?  Again, it depends.  Does “cause” mean: force, coerce, pressure, schedule, encourage, reward, permit, or something else?  As the Court notes, it could mean a lot of things.

To “cause” can mean to “induce,” … so is it enough for an employer to encourage or reward an employee who agrees to work additional consecutive days?  In another context, causation is defined in terms of the “natural and probable consequence” of one’s action. … Is it enough for an employer to permit employees to trade shifts voluntarily, when a natural and probable consequence may be that an employee works more than the day-of-rest statutes allow?

Once again, the Court notes that the statutory text is unclear, and no legislative or appellate decision clarifies the issue.

These are open questions, unanswered by the statute’s text or history or supporting case-law, and whichever interpretation is chosen will have widespread consequences.3  The Court noted that, as to all these questions, “[t]he consequences of any interpretation of the day-of-rest statutes will have profound legal, economic, and practical consequences for employers and employees throughout the state of California and will govern the outcome of many disputes in both state and federal courts in the Ninth Circuit.”  Here, the Ninth Circuit certified the questions to the California Supreme Court, to get clarity on the law’s meaning.  Regardless of what particular interpretation is ultimately adopted, the overarching point remains: Even supposedly simple, straightforward statutes can present vexing issues for employers.  Consulting with competent employment counsel is critical for employers who must navigate these sometimes ambiguous laws and rules.

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CMS Extends Enrollment Moratorium for South Florida Home Health Agencies

CMS Moratorium on South Florida HHAs


In July 2013, CMS imposed a moratorium on the enrollment of new home health agencies in Miami-Dade County, Florida.  In February 2014, CMS extended the initial moratorium in Miami-Dade, and expanded it to also include Broward County, Florida.  Last week, CMS extended this moratorium for another six-months in both Miami-Dade and Broward Counties.  In its announcement of the extension, CMS explains what it means to health-care entrepreneurs in South Florida.

During the 6-month temporary moratorium, initial provider enrollment applications and change of information applications to add additional practice locations, received from Home Health Agencies, Home Health Agency Sub-Units and Part B Ambulance suppliers in the listed counties will be denied.  Application fees that are paid for applications that are denied due to this temporary moratorium will be refunded.

CMS based this decision on consultations with law-enforcement agencies, who maintain that there is a “high risk of fraud, waste, or abuse in these provider and supplier types within these geographic regions,”1The July 2013 and February 2014 Federal Register documents, linked above, have in-depth discussions about the nature and extent of healthcare fraud in the affected regions. and CMS’s state partners, who determined that the continued moratorium “will not create access to care issues for Medicaid or CHIP beneficiaries.”  CMS can again extend the moratorium at the end of the current six-month period.

This continued moratoria will have ripple-effects across South Florida’s healthcare businesses.  Consulting with knowledgeable healthcare counsel is essential; it will help conserve and properly allocate resources, and it will help navigate the complicated, rapidly-evolving legal and regulatory landscape in healthcare.  If you have questions about what this moratorium means for you, please contact our firm to discuss it.

References   [ + ]

Arbitration Agreements — Is Retaining Just An Executed Signature Page Good Enough?

Nursing Home Here’s an interesting hypothetical.  Say your company requires that, in some relationships — e.g., new employee hires; incoming residents to a care facility — the parties sign a multi-page arbitration agreement.1As we’ve discussed before, arbitration agreements can definitely be a sensible measure.  And say your company policy is to only keep the signature page in the files.  Now assume the employee or resident later files a lawsuit against your company.  You want to compel arbitration.  You can’t say, for sure, what the terms of that agreement were (maybe the terms have changed over time), but you can say, for sure, that an agreement-to-arbitrate was signed in this case.  So, is the case sent to arbitration? According to Florida’s Second District Court of Appeals, the answer is “no.”  Last week, in Davis v. Hearthstone Senior Communities, Inc., the Second DCA reversed a trial court order compelling arbitration of the claim made by a deceased resident’s estate against a nursing home for alleged violations of the late-resident’s statutory rights (like those rights found in Fla. Stat. § 400.022).  In the hearing to compel arbitration, the nursing home presented testimony confirming that the deceased resident signed the last page of the arbitration agreement, and that it was the nursing home’s practice to only retain the signature page.  But that sole witness couldn’t confirm what version of the agreement the late-resident signed, and couldn’t otherwise verify the agreement’s terms.  The trial court still granted the motion to compel arbitration, as there was no doubt the resident signed an arbitration agreement.2Clearly, though, the Judge was frustrated by the shortcomings in the nursing home’s evidentiary submissions: “I don’t know why defense counsel didn’t just bring somebody to say[,] ‘These were [the six pages] we were using that would have been attached [to page seven] on this particular date.” The Second DCA was unwilling, on this scant evidence, to force the parties to arbitrate:

Our record does not include any of the terms of the alleged arbitration agreement.  It therefore fails to indicate whether the arbitration is binding or nonbinding, how many arbitrators are to be used, how the arbitrator will be selected, or what issues are to be included.  Although these details may be included in the missing six pages and may become available as part of the record on remand, as of the time the trial court granted the motion to compel arbitration, the record was devoid of these details, and thus the nursing home failed to meet the first requirement to enforce the agreement.  See id.  Based on the evidence of record, there is no way the trial court could determine the intent of the parties at the time they entered the agreement.  Accordingly, under Greenbrook, the trial court erred in granting the motion to compel.  We therefore reverse the order compelling arbitration and remand for further proceedings consistent with this opinion.

Now, to be fair, all this might get cleaned-up on remand, if the nursing home makes a new evidentiary submission (which confirms which agreement was used in this case).  And in many circumstances, the counterparty — for instance, an employee or resident — will have their copy of the agreement, so there won’t be confusion about what the parties agreed to.  But obviously, it’s best to avoid this problem.  The better practice, therefore, is for a company to keep complete copies of its fully-executed arbitration agreements.

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EEOC Sues Ruby Tuesday for Discrimination

EEOC (a)

Some employment practices are just hard to understand.  Today, the EEOC sued the giant restaurant chain, Ruby Tuesday, Inc., in Oregon District Court, for discriminatory practices.  According to the lawsuit and the accompanying press release, Ruby Tuesday posted an internal announcement within a 10-state region for temporary summer positions in Park City, Utah with company-provided housing for those selected.  But the announcement stated that only female applicants would be considered.  And, in fact, the lawsuit alleges that the temporary positions were awarded solely to females.  As a result, at least two Ruby Tuesday employees — the charging party and a class member — were denied “the opportunity to earn more money and gain valuable work experience while on temporary assignment to Park City, Utah for the summer of 2013 because of [their] sex (male).  [These male employees] would also have saved on rent and other expenses if Ruby Tuesday had allowed [them] to work at the Park City, Utah restaurant because Ruby Tuesday would have provided housing free of charge.”  The EEOC seeks a permanent injunction against such practices, and an award of back-pay and compensation for “past and future pecuniary losses” to the two complaining male employees.

It’s possible that Ruby Tuesday’s female-only program was designed to protect employee privacy or ensure employee safety.  In the EEOC’s view, however, “[t]he company could have addressed any real privacy concerns by providing separate housing units for each gender in Park City.”  Some interesting issues at work in this lawsuit; it’s a case to keep your eye on.

Florida Signs MOU with DOL to Combat Employee Misclassification

Employee v. Contractor (a)

On 01.13.15, the Florida Department of Revenue signed a Memorandum of Understanding with the US Department of Labor, allowing the agencies to cooperate in investigating alleged misclassification of employees as independent contractors in Florida.  Under the terms of the MOU, the agencies will collaborate extensively:

  • Coordinating investigations and enforcement activities in Florida in “designated priority industries.”
  • Referring, from one agency to the other, possible misclassification violations.
  • Exchanging information about settlements involving misclassification issues, so the FDOR and the DOL can more effectively follow-up to ensure compliance with settlement terms.
  • Coordinating in criminal investigations involving misclassification issues, where there is overlapping jurisdiction.
  • Exchanging information — including confidential information — between agencies, without that exchange constituting a “public disclosure” that might jeopardize the confidential nature of the materials.

Florida joins a number of other states who have signed similar MOUs with the DOL.  The other states with an MOU, currently in effect, are Alabama, Colorado, Connecticut, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New York, Utah, Washington, and Wyoming.

Interestingly, a workforce agency signed the MOU on behalf of the other states.  In Florida, the signatory-agency was the FDOR, which isn’t responsible for policing violations of the minimum wage or overtime laws.  On the other hand, the FDOR signing the MOU underscores a relevant, but frequently-overlooked, state concern – that misclassification of employees as independent contractors deprives a state of “unemployment insurance taxes.”  This is an issue of considerable significance to the FDOR.

What will this inter-agency collaboration mean for Florida employers?  Hard to say.  But certainly, Florida employers should consult with counsel, to ensure that their classification of personnel is defensible, and doesn’t leave the employer exposed and vulnerable.

“But I Didn’t Know He Underreported His Time!”

No OT Cartoon


Okay, so the cartoon is facetious.  But employees who bring FLSA lawsuits routinely argue that they were directed or coerced by supervisors to work off-the-clock, without pay.  Indeed, a December 2013 GAO Report (a report that was the subject of our blog’s inaugural post) found that, in 2012, nearly 30% of all FLSA lawsuits contained allegations that workers were required to work “off-the-clock” without compensation.1The GAO report defined “off the clock” claims as those alleging that “an employer did not pay workers for all of the hours they worked within a day.”  Such claims would include, for instance, unrecorded time putting on protective work-gear, or booting up a work-computer.  A common — and often understandable — two-fold reaction by employers is (a) they didn’t know employees were working off-the-clock and that a supervisor was aware of it, or even encouraging it; and (b) an employee performing off-the-clock work violates company policies to record all hours and advise higher-level managers of supervisor misconduct.  Do these defenses work?

In Bailey v. TitleMax of Georgia, Inc., an opinion issued last Thursday, the Eleventh Circuit seems to answer “no.”  In Bailey, an employee claimed his supervisor told him to work off-the-clock because TitleMax “did not pay overtime,” and further claimed the supervisor edited Bailey’s time-records, to make it appear Bailey worked fewer hours than he really did.  In response, TitleMax argued that Bailey violated three company policies: (a) by working off-the-clock, he violated a policy requiring accurate reporting of hours; (b) by not objecting to his supervisor’s abusive behaviors, he violated a policy requiring regular verification of time; and (c) by not reporting any of this, he violated a policy instructing employees who had a problem at work to notify their supervisor or, if the supervisor was part of the problem, notifying a higher-level manager or calling an anonymous employee hotline.  TitleMax framed these arguments as affirmative defenses — unclean hands and in pari delicto 2Unclean hands requires a defendant to prove plaintiff’s wrongdoing is directly related to the claim and defendant was injured by it.  In pari delicto requires a defendant to prove that “plaintiff bears at least substantially equal responsibility for the violations he seeks to redress,” and that barring a lawsuit brought under a federal statute would not “substantially interfere” with the policy goals of the statue.  — thus creating “a somewhat novel argument.”

The Court seemed to appreciate TitleMax’s litigation creativity, but had little sympathy for TitleMax’s arguments.  The Court held that “[w]here, as here, an employer knew or had reason to know that its employee underreported his hours, it cannot invoke equitable defenses based on that underreporting to bar the employee’s FLSA claim.”  In so holding, the Court noted two prior cases, Allen v. Bd. of Pub. Educ. for Bibb Cnty and Brennan v. Gen. Motors Acceptance Corp., which reached similar results.  In both cases, employers technically required employees to accurately report hours; despite these requirements, supervisors encouraged employees to underreport their hours, and they did.  In both cases, the employers argued they lacked actual or constructive knowledge of the off-the-clock work.  In both cases, the employer’s argument was rejected.

The Eleventh Circuit declined TitleMax’s invitation to “contravene those holdings under a different theory.”  The Court noted that TitleMax identified no case supporting its position, although the Court goes out of its way to say that this alone doesn’t defeat TitleMax’s position.  Then the Court drops the hammer.

Congress enacted the FLSA in 1938.  See Fair Labor Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 1060.  And federal courts are no stranger to FLSA suits: in fiscal year 2012 alone, over eight thousand FLSA lawsuits were filed in the District Courts.  See U.S. Gov’t Accountability Office, Fair Labor Standards Act: The Department of Labor Should Adopt a More Systematic Approach to Developing Its Guidance 6-7 (Dec. 18, 2013). . . . In the context of such a well-worn federal statute, the dearth of precedent supporting TitleMax’s novel argument is persuasive, if not conclusive, evidence that its argument is misguided.

Now, this doesn’t mean that novel arguments aren’t welcome in FLSA lawsuits.  It does mean that grounding your arguments in established case-law is especially important in the context of litigating such a “well-worn” statute.  And that proposition has far-reaching implications, stretching beyond this particular case.

So is there hope, in the Eleventh Circuit, for an employer who truly didn’t know their employee underreported his or her hours, in violation of company policy?  The Court offers a ray of hope, by leaving open the question of whether equitable defenses based on employee misconduct might limit (but not totally bar) remedies in FLSA actions.  Such defenses can limit relief in the context of an age-discrimination lawsuit under the ADEA, but perhaps that’s because the ADEA authorizes courts to grant legal or equitable relief.  By contrast, in FLSA lawsuits, the court is only authorized to grant legal relief.  It’s a critically important issue for employers, one well-worth exploring.  It’ll just have to wait for another day.


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New Minimum Wage in Florida

Florida Minimum Wage 2015


Belated Happy New Year!  As of January 1, the minimum wage in Florida is $8.05 per hour, with a minimum wage of at least $5.03 per hour for tipped employees, in addition to tips.  Here are your new display posters and notices.

Where’s it going from here?  Well, some Florida legislators at the state level, as well as the Obama Administration at the federal level, are pressing to increase the minimum wage to $10.10 an hour, so far without success.  Still, something to keep your eye on.

Music Break (Shake 108)

Freeform Radio

Miami commercial radio is . . . well, less than thrilling.  Actually, it’s awful.  Some of the individual songs played on the pop stations are okay. But, taken as a whole, the playlists on Miami commercial radio stations are tightly confined to a focus-group tested collection of safe, mostly upbeat songs, and on-air hosts have virtually no discretion to play other records they love.  Oh sure, there’s WVUM and WDNA, and they’re both fantastic and they both deserve huge, adoring fan-bases.  But they both occupy a special place on the dial, where — largely because of their mission (college and public radio, respectively) — they don’t really compete with commercial stations.  Miami has, for years, needed a freeform station, where the on-air talent or management plays records they love, from any genre, region, or era, regardless of whether the record is a recent hit or is backed by a promotional-push.

Enter Shake 108, a freeform radio station located at 107.9 on South Florida’s local FM dial.  Here, hosts and/or the station owners play the records they love.  And that, in turn, means you’ll hear a hodgepodge of exciting but overlooked music, rubbing elbows with more familiar tunes.  Just over the last 20 minutes, the station played an eclectic mix of songs, ranging from Jamaican 80s act Ini Kamoze, to a house tune from Escort, to a wierd and wonderful song from Trombone Shortly, to . . .  Well, now they’re playing the Red Hot Chili Peppers.  But that’s the magic of freeform radio.  I guess.  The station even encourages listeners to recommend songs to add to the playlist.  I took them up on their offer, and emailed them a batch of songs I thought would be good to hear on the radio.  And you know what?  The station answered, and said they’d likely add a bunch of those songs.

So let’s hear it for overlooked, under-appreciated, otherworldly music from all genres and eras.  Like, say, Mohammed Raffi’s horn-drenched Bollywood tune, Jaan Pehechaan Ho, which memorably soundtracked the opening scene of the 2001 movie, Ghost World.

Or Someone to Fulfill My Needs, the soulful 1966 single by The Moovers, which was released on Miami’s own Deep City record label.  The vocal harmonies here are really something.

Or something modern and melancholy, like 2013’s Rival Dealer, from one of the best acts of our era, Burial.

Welcome to South Florida, Shake 108.  You’re part of an exciting new cultural landscape here. I hope you’ll be around for a long while, marching to the beat of your own drum, playing music we won’t hear anywhere else on the dial.

Introducing Our Firm Blog

Welcome to our Firm blog.  In this space, we will highlight developments in our two areas of concentration: employment law and healthcare law.  There’s a lot to talk about.

Employers face enormous challenges in today’s legal environment.  Actually, that’s putting it mildly.  The number of federal lawsuits that allege violations of the Fair Labor Standards Act – the federal law setting minimum wage and overtime pay standards – rose by more than 500 percent over the past 20 years.  That trend is eye-opening, but the trend over the past 10 years is astonishing:

FLSA Screenshot

Florida, in particular, has become a hotbed of wage-and-hour litigation.  Since 2001, roughly 33 percent of all FLSA lawsuits filed in the United States were filed in Florida, despite the fact that Florida’s population constitutes only roughly six percent of the country’s population.1There are no easy explanations for what is driving the rise in FLSA lawsuits, nationwide or in Florida.  Persons laid-off during the recession are more likely to file FLSA lawsuits than are current employees.  Many employers – often inadvertently or unknowingly – violate the FLSA.  And many plaintiff’s lawyers have focused their practices on prosecuting wage-and-hour cases.

Given these trends, business owners should carefully evaluate their wage-and-hour policies and procedures. The FLSA poses traps for unwary employers, and the law favors employees in the event of a lawsuit.  There are a dizzying number of standards, exemptions, payment-calculations, record-keeping requirements, and legal acronyms to be aware of.  For these reasons, it’s crucially important for employers to have good guidance on how to avoid these problems, or how to deal with them once they arise.  We’ll try to make some sense of it all here.

Of course, everyone’s familiar with the regulatory overhaul of the healthcare industry at the national level.  But beyond the federal Patient Protection and Affordable Care Act, there are endless varieties of new state initiatives and pilot programs affecting the nature and delivery of health care.  Florida, for example, has fundamentally changed its Medicaid Program, shifting it away from a traditional fee-for-service model to a managed-care model.  Under this new platform, called the Statewide Medicaid Managed Care Program, beneficiaries enroll in a private health plan, which is paid a fixed rate by the State to manage that beneficiary’s healthcare needs.  Within limits, the plans keep what they don’t spend.  As a result, the plans have a strong incentive to press providers in Florida to accept the lowest possible reimbursement rates.  This brings an almost hydraulic pressure to bear on providers – such as physicians, durable medical equipment companies, home health agencies, assisted living facilities, and speech pathologists, among others – attempting to integrate into the new system.  Here, we will discuss developments in healthcare law, focusing on issues confronting such providers.

We will try to analyze these unclear, complicated topics using clear, uncomplicated language. We’ll do our best to avoid grammatical heresies like dangling modifiers, apostrophe errors, comma splices, sentence fragments, faulty parallelisms, misplaced semicolons, and sentence-ending prepositions.  Well, we may have already broken that last rule.  So be it.

If there are topics you’d like to see discussed, or if you’d like to speak with our lawyers about employment or healthcare law, contact us anytime.  For your convenience, there are handy boxes at the bottom of most of our site’s pages, so you can easily reach us.  We also invite you to follow or like us on one of our firm’s new social media platforms, like Google+, Twitter, FaceBook and LinkedIn.  You may also, from time-to-time, see me post about under-the-radar music, from roots reggae to dubstep.  That’s just because I like it.  We look forward to a lively discussion on topics of importance to business owners and healthcare providers.

References   [ + ]