Last year, I wrote about an article written by a colleague of mine, D. Andrew Byrne regarding the billable hour and its demise.  Well, it seems that this topic has continued to generate interest in the business world and for good reason.  It simply makes sense because when it comes to clients, one size does not fit all when it comes to billing.

Alternative billing arrangements are nothing new for lawyers.  With the ever increasing cost of doing business, companies have to think about the bottom line and what makes sense when it comes to hiring and using law firms and lawyers. 

While the traditional billable hour model may make sense for some clients, not all clients can afford to do business entirely under that model.  And so, the push away from the billable hour model is occurring and the move for some is toward the alternative fee arrangement because the bottom line depends on it.

For some companies this means hiring more attorneys or assigning more work to their own company lawyers.  For others it means flat fee arrangements or contingency fee agreements but usually some form of billing other than the billable hour model. 

Either way, the message is simple: legal work needs to be cost effective for both the lawyer/law firm and the client.  Undoubtedly, the future of the billable hour is becoming less certain and staying competitive in the legal marketplace will inevitably have to include more alternative billing arrangements.

Employers expecting to have to post new notices of employee rights in the workplace can breathe a sigh of relief. On April 17, 2012, the U.S. Court of Appeals for the District of Columbia issued an injunction delaying the effective date of the National Labor Relations Board’s Final Rule requiring most employers to post a notice of employee rights in their workplaces. The Final Rule, previously scheduled to take effect on April 30, 2012, has now been postponed indefinitely due to conflicting opinions issued by several federal district courts.

Judge Amy Berman Jackson of the U. S. District Court for the District of Columbia issued a ruling on March 2, 2012, that upheld the NLRB’s authority to enact the Final Rule but invalidated the primary enforcement mechanisms. However, on April 13, 2012, Judge David C. Norton of the U.S. District Court for the District of South Carolina struck down the Final Rule in its entirety in Chamber of Commerce v. NLRB, No. 2:11-cv-02516-DCN. Judge Norton held that by enacting the Final Rule, the NLRB exceeded its statutory authority in violation of the Administrative Procedure Act.

As a result of the conflicting opinions, the D.C. Circuit enjoined the enforcement of the Final Rule pending appeal. NLRB Chairman Mark Gaston Pearce expressed the Board's opposition to the order but confirmed that all regional offices have been directed to comply with the injunction. The D.C. Circuit ordered an expedited briefing schedule and directed the court clerk to schedule oral argument in September.

Stay tuned... 

The Eleventh Circuit Court of Appeals recently affirmed a jury verdict award in favor of an employee after she brought a pregnancy discrimination claim against her employer.  The court also restored her back pay award in the amount of $80,000, which was erroneously vacated by the district court.

In the case Holland v. Gee, Holland was an employee of the Hillsborough County Sheriff’s Office.  Prior to announcing her pregnancy, Holland worked for the Sheriff’s Office for 3 years as a computer technician.  Within months of her announcement, she was transferred to the Help Desk, a position that was described as “less technical and more administrative.”  The position was also categorized with a lower pay grade and viewed by some as a demotion. 

Holland protested the decision and eventually was moved back to her former position and later terminated.  Thereafter, Holland filed suit against her former employer for violations of Title VII and the Florida Civil Rights Act.  The case proceeded to trial by jury and the jury returned a verdict in favor of Holland awarding her $80,000 in back pay and $10,000 for emotional distress.

On the sheriff’s motion, the district court upheld the jury’s verdict on liability but vacated the back pay award on the ground that Holland would have been fired anyway based on evidence acquired after the fact.  Appeals ensued, and the Appellate Court upheld the jury’s finding and restored the back pay award.

Of particular interest, in deciding to transfer Holland, her supervisor testified that she made the decision to transfer her because she was a mother who had a difficult pregnancy and she was concerned for Holland and her pregnancy after Holland had suffered a prior miscarriage. The court noted that even though the reasoning was motivated out of concern and her intentions were benign, the reason was still motivated by Holland’s pregnancy and it was therefore discriminatory.

The take-away: if a decision is based upon an individual’s protected status regardless of the intention (good or bad), it may be considered discriminatory and can subject an employer to liability - employers beware.

Streaming music or videos while at work might be becoming a thing of the past.  With more and more employees clogging up the Internet while at work, companies are shutting off streaming sites or limiting access.

Companies such as Proctor & Gamble, GE Aviation, and Major League Baseball have all taken steps to block or limit their employees' access to sites that use large amounts of bandwidth.  Sites such as Netflix, Pandora, and YouTube use such large amounts of bandwidth that they have the practical effect of shutting down business servers.  The problem can be so severe that even adding additional servers is not enough to fix the problem. 

With new sites popping up everyday and more and more apps becoming available, company policies have to change just as quickly to keep up with the ever-changing technology.  The reality of today's business is that most companies do or should have an Internet usage policy in addition to having social media and computer software and usage policies.

Most policies remind employees that when it comes to the Internet and computer usage, their privacy rights will be limited.  A good policy should also limit such usage for business purposes only and to the extent it is permitted, it should only be used during an employee's lunch or other break period.

Can you really be fired for wearing an orange shirt to work?  If you live in a state where employment is at-will, like Florida, sure you can.  That's what several employees at one Florida law firm found out when they wore the color orange to work one Friday.

Apparently, employees at the law firm of Elizabeth R. Wellborn established a tradition of celebrating payday on Friday with a happy hour.  To let people know they were a group while they were out celebrating, the workers decided to wear the color orange.  While the workers viewed the decision to wear orange as a means of identification and to promote a feeling of togetherness, management saw it differently, stating that the decision by the group to wear orange was meant to be a protest.

So, is this legal?  At-will states, such as Florida, permit employers to terminate employees for any reason, good or bad, or for no reason at all, so long as there is no unlawful reasoning for the termination.  So, yes, you can be fired for wearing an orange shirt to work and you can be fired because your boss doesn't like the color orange and you are wearing it. 

Is it fair?  Maybe not.  But, it's not illegal.  However, terminating employees for protesting general working conditions can be considered activity which is a protected labor practice. 

Ah, spring is in the air and summer is just around the corner.  What does that mean?  Summer internships of course.

With every upcoming summer, certain businesses must assess their needs for summer interns and ultimately make a decision whether to hire them.  For interns, this experience can be invaluable.  It allows individuals to fill gaps in their resumes, gain experience in a particular industry, make business contacts, and sometimes find gainful employment.

For businesses though, deciding whether to hire an intern can sometimes be difficult.  As I discussed last year, this decision can be especially difficult if the internship is going to be unpaid because there are strict laws that must be followed in order for the unpaid internship to be lawful.  Making matters worse, last year, the Department of Labor decided to start cracking down on unpaid internships, which didn't make the decision to hire interns any easier. 

This year, as reported by Paul Davidson, many employers are doing away with such unpaid internship programs in the wake of the crack down and recent lawsuits that have been filed.  For example, last month, an unpaid intern sued Harper's Bazaar claiming that she was forced to do work that was normally done by a paid fashion assistant.  Fox Searchlight Pictures was also sued by interns who claimed that they performed work that was customarily done by paid employees.

So, if you are in business and looking to hire an intern this summer, what does this mean? You just need to exercise caution in hiring especially if the internship is going to be unpaid.  If you question whether the internship meets the criteria set forth by the Department of Labor that probably means the intern should be paid.  In the end, paying an intern even minimum wage will certainly be cheaper than defending your business in a lawsuit.

There are some draconian rules in the game of golf.  Take for example what happens if a player signs an incorrect scorecard?

In The 1968 Masters, Roberto De Vicenzo finished the final round with a score that would have gotten him into a playoff for the win – at least that’s how it seemed.  But De Vicenzo signed an incorrect scorecard giving himself a score one stroke higher than his actual score.  And he didn’t really give the score to himself. His playing partner, who kept De Vicenzo’s score, made a mistake on one hole (scoring a 4 instead of a 3) and Roberto did not catch it before he signed.

No harm no foul, right? It was clearly a mistake - so amend the card, post the correct score and let the playoff begin.  Not exactly.  De Vicenzo was forced to take the higher score, did not qualify for the playoff and finished second.  For those who are interested Bob Goalby won the Masters that year (by the way - he played great - final round 66).

The law has draconian rules like that.  They are called jurisdictional deadlines. If you miss it - game over - except where the law gives you a “free drop.”   

What is a free drop?   In golf, under very limited circumstances, a player is entitled pick up his or her ball from the location where it came to rest after the last stroke, drop it in an area defined by the rules and play it from that spot with no penalty.  An example of when a player would be entitled to a free drop is where the player’s ball comes to rest upon a cart path or the golfer's swing or stance is inhibited by the path. 

The recent case of United Funding LLC v. Brandao, 36 Fla. L. Weekly D2469, holds that under certain circumstances, a litigant may be entitled to relief from the otherwise harsh result of missing a jurisdictional deadline. A free drop if you will.

In United Funding, final judgments against United were entered on August 3, 2010.  United did not receive the final judgments until after the time for filing a motion for rehearing had expired and just three days before the deadline for filing a notice of appeal.  United might have described its feeling upon opening the mail that day as a “De Vicenzo moment.”

United filed a motion to vacate the judgments pursuant to Florida Rule of Civil Procedure 1.540. United requested that the trial court vacate the judgments and then re-enter them so that United could timely interpose a motion for rehearing and then appeal if necessary.

United provided undisputed evidence that it did not timely receive the final judgments. The trial court denied the motion.  

The appellate court reversed holding that the trial court had abused its discretion in denying the Motion. The court stated in part:

“We find that the untimely receipt of the trial court’s order, for no cause attributable to United, left United with an unreasonably short time frame within which to determine whether to seek a full appeal.  Further, by receiving the order after the expiration of the ten-day period for filing a motion for rehearing, United was prevented from seeking certain relief available under that rule but not on appeal. See, e.g., Fla.R.Civ.P. 1.530(b) (upon a motion for rehearing, trial court has authority to take additional testimony).

“Because the evidence before this Court supports United’s argument that it did not receive copies of any of the three orders it issued, and no contrary evidence was produced, we find that the trial court abused its discretion in refusing to vacate and re-enter the three final judgments for fees and costs.”

In golf parlance, the court held that United was entitled to a “free drop.”

Certainly, no golf player would ever intentionally hit the ball into a location where he or she would be entitled to a free drop.  But when a player finds that their shot has come to rest in one of the circumstances defined by the rules, the relief is available. 

Under United, when a litigant finds himself or herself in the unfortunate circumstance described in that case; a final judgment has not been timely received (through no fault of the litigant), at a minimum the trial court has the discretion, and perhaps is required, to give the litigant a “Rule 1.540 free drop.”

Many people when they think of small claims court think of the people's court.  Small claims court offers ordinary people the chance to resolve small disputes at a low cost and without a lot of complication.  Generally, the parties are not represented by lawyers and the rules of evidence and procedure are nonexistent.

But, when you think class action lawsuit, you don't think small claims court, right?  Well, not Heather Peters who after opting out of a class action lawsuit against Honda sued the motor car company in small claims court and won.  Peters, a non-practicing attorney, decided to take her chances in small claims court after learning that class members of the lawsuit would receive between $100 and $200 each and a $1,000 credit toward the purchase of a new car. 

In a 26 page decision, the judge ruled in favor of Peters and awarded her $9,867 in damages. The judge included in his decision numerous misleading statements made by Honda including that the Honda Civic hybrid would "use amazingly little fuel," it "provided plenty of horsepower while still sipping fuel," and that it would "save plenty of money on fuel with up to 50 mpg during city driving."

While Honda intends to appeal the decision, Peters has decided to renew her legal license so she can represent other Honda Civic owners who have had the same problems as her.  It is Peters' hope that she will inspire the other 200,000 people whose Honda Civic hybrids are covered by the class action proposed settlement to sue in small claims court.  If all 200,000 owners sued and won in small claims court, it could cost Honda $2 billion.  Now that would be a BIG collective victory in small claims court!

While small claims court often levels out the playing field between individuals and corporations, claims brought in small claims court should be taken seriously even though the dollar value is small.  For example, in Florida, if you are a defendant and fail to appear at the first pretrial conference, a default judgment can be entered against you.  The judgment may or may not be overturned but it will inevitably cost considerably more in time and potential damages as opposed to if it is dealt with in an appropriate manner when it is first received. 

The lesson learned is that a lawsuit no matter how small should be treated carefully to minimize costs and potential damages.

The Internet, through the hundreds, if not thousands, of complaint boards and review websites, such as ripoffreport.com, has provided an effective means to bad-mouth and degrade a company, or its principals, while reaching an audience of millions of people, and simultaneously being protected by a cloak of anonymity.  However, this cloak of anonymity is not impervious.  If defamatory or libelous material is being posted about you, or your company, then you may obtain the identity of the individual posting such material (the “Poster”) from the website providing the medium on which the material is posted.

By filing what is commonly referred to as a “John Doe suit,” you can compel a website or internet service provider to fork over the Poster’s identity.  Although often executed, this is not as simple as merely filing suit and listing John Doe and the website or posting medium as defendants, and then asking the website or posting medium to divulge the Poster’s identity through discovery requests. 

Rather, as the party requesting the information/identity of the Poster, you must show that you have made reasonable efforts to inform the Poster of the pending discovery request, including the pertinent case information, and inform the Poster of the right to timely and anonymously file and serve a response to the request. You must also attempt to notify the Poster via the same medium used by that Poster. 

Further, you must establish that your action would likely survive a motion for summary judgment, regardless of the Poster’s identity, and that the balancing of the interests of the parties weighs in favor of divulging the Poster’s identity.  Courts will not allow somebody to abuse the system and use a John Doe suit merely to circumvent a speaker’s First Amendment right to anonymous speech, unless the appropriate circumstances are present.  

Keep in mind that the ability to discover the Poster’s identity may not always be as important as bringing an end to the Poster’s behavior and requiring the website to take down the defamatory and libelous information.  However, in some cases knowing the identity of the Poster is crucial, for example, the case of an ex-employee who is violating the terms of their non-compete agreement.

Don’t get me wrong, the prevalence and influence of these complaint boards has its advantages, as these websites have helped uncover scams and can provide the consuming public with important information.  However, inherent in such prevalence and influence is the danger of abuse and utilization for improper motives.  Bad reviews can cause serious damage to a business above and beyond a decrease in revenue, such as hindering investors and lenders who find these reviews during their due diligence process.  The good news is that there is a remedy, and it goes by the name of Doe.

As most employers know, the Family Medical Leave Act ("FMLA") protects employees of covered employers who take leave for specified family and medical reasons by affording the employee unpaid, job protected leave with continuation of group health insurance coverage.

To be eligible for leave, the employee must have worked the requisite number of hours and be entitled to leave because of a triggering event such as the birth of a child.  In a case of first impression for the Eleventh Circuit Court of Appeals, Pereda v. Brookdale Senior Living Communities, Inc., the Court held that the FMLA does, in fact, protect employees who make a pre-eligibility request for post-eligible leave.

Pereda began working for Brookdale, a senior living facility, in October 2008, and was terminated 11 months later in September 2009.  In June, she advised her employer that she was pregnant and that she would be requesting FMLA leave in November 2009.  Pereda claims that after Brookdale learned of her pregnancy, she was harassed and later placed on a performance improvement plan, which caused her stress and other complications with her pregnancy.  She was then terminated.

Brookdale argued that because Pereda was not eligible for FMLA leave, they could not have interfered with her FMLA rights or retaliated against her.  The district court agreed, but that decision was overturned by the Eleventh Circuit.

In finding that Pereda did state a claim for both interference and retaliation related to her FMLA rights, the Court relied on the FMLA regulatory scheme, which includes the 30-day notice requirement and the Department of Labor implementing regulations. 

The Court reasoned that "without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can become eligible.  Such a situation is contrary to the basic concept of the FMLA."

The lesson for employers to take away is that they should be very careful in how they handle FMLA issues, specifically pre-eligible requests.  The purpose of the FMLA is for the protection of the employee and the law will be construed in that fashion.