Posted by Jamie Dokovna on March 21, 2012

Fired for Wearing Orange?

fall_foliage_000002267434Large.jpgCan 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. 

Posted by Jamie Dokovna on March 15, 2012

Summer Internships

iStock_000003058096Small.jpgAh, 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.

Posted by Perry Adair on March 06, 2012

When Can You Have a "Free Drop" Under Rule 1.540?

iStock_000016154756XSmall.jpgThere 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.”