The Age of the Drive-By Lawsuit: Title III and Defending Against Vexatious Litigants

The American with Disabilities Act (ADA), as with almost all legislation in this country, is well-intentioned and does in fact serve a very powerful purpose in the modern world.   People who have disabilities that make them differently-abled than most are still citizens with all the rights of their neighbors, and as a result, they deserve to have access to the same services and benefits as everyone else.  Requiring businesses to make reasonable efforts to make their services accessible is in keeping with this country’s overall spirit of egalitarian and fair-minded camaraderie.  After all, no one confined to a wheelchair should be prevented from using a public restroom.

However, as many owners and operators of public-use properties such as hotels, shopping malls, and other facilities have discovered, flaws in the ADA – especially the notorious Title III – make it extremely easy for people with disabilities to file lawsuits designed solely to extract money from the business in question.  These so-called “Drive-By” suits (called such because the plaintiffs rarely have any real desire to use the facilities they are complaining about) have escalated to an epidemic as aggressive and ethically-challenged law firms have realized the profit potential.

The Problem

Title III allows for these suits to be filed when a disabled person finds they cannot enjoy equal use of a facility because the operator/owner hasn’t made the required minimum efforts- such as installing wheelchair ramps for access.  However, several flaws in the law make it an imperfect tool:

  • Currently, complainants are not required to notify the property or business or give it any chance to correct the violations or oversights before a suit is filed. As a result, the first time a business is made aware of problems is often when the lawsuit is served.
  • Plaintiffs are also often able to file claims in State courts to collect additional awards on the same complaint.
  • Nothing stops law firms or even single attorneys from collecting large numbers of plaintiffs complaining about the same properties, often swelling these cases into monumental actions.
  • Plaintiffs cannot legally recoup attorney’s fees unless there is a lawsuit in place, giving them zero reason not to file a suit.

Defending Against Title III

Currently, there are three standard strategies for defending against a Title III lawsuit:

  • An increasing number of judges have demonstrated a willingness to deny attorney’s fees based on a lack of pre-litigation notice. Although the ADA does not require such notice, judges have discretion in awarding fees and are becoming more likely to punish plaintiffs and attorneys they see as being too quick to file a suit when a simple notice might have solved the problem.
  • Many of the plaintiffs involved in these “drive-by” lawsuits are involved in multiple other suits as well, often with many attorneys or with a single firm representing many other disabled plaintiffs. Having these plaintiffs declared “vexatious” by a judge means they cannot file any further suits without the court’s permission.
  • Finally, an attack on standing has been known to work; if it can be demonstrated that a plaintiff has no real intention of ever returning to or utilizing a facility, they have no standing for a complaint under the ADA. These challenges are difficult, but have been successful in certain circumstances.

All American citizens have the right to enjoy public space or public-use facilities equally, and no one would argue otherwise.  However, a flawed law designed to protect those rights has instead created a situation where property owners and operators are not given a fair chance to do the right thing before being forced to pay out large settlements.  Until the law is changed, knowing how to defend against these situations can do wonders to keep businesses afloat and out of trouble.

Employee Handbook Basics

Every employer in the State of Florida is advised to have a set of written policies and procedures collected in what’s commonly called an “Employee Handbook” that is distributed to new hires.  While some very small businesses (with fewer than two or three employees) may feel safe going without this formality, the fact is when you hire an employee, you open yourself to liability, and having written policies can help defend you against claims.

The question of what should be contained in your employee handbook is best directed to a qualified employment law attorney in Florida, who can help analyze your specific business culture, but there are some basics that should always be included.

Basic Background

Your handbook should include a short history of your business, a statement about its goals and culture, and a statement declaring you are an at-will employer.  Your employment law attorney in Florida can help you with the precise wording of these statements.

Office Policies

The handbook should also clearly state your policies regarding harassment, discrimination, and other office behaviors, as well as clearly set out the procedures employees can follow if they find themselves victims of these or any other negative situations.

Employment Mechanics

Your handbook should make clear how employment works, from dress code and performance reviews to pay frequency and procedure, vacation and sick day policies, attendance requirements, bonus structure (if any), and holiday schedule.

Benefits

Your handbook should also include all benefits offered standard to all employees, with clearly-worded language (crafted by a Florida employment law attorney if possible) detailing when employees are eligible for benefits and what those benefits are.

Your employee handbook should be written in simple, clear language and be confined to statements of fact.  The more detailed it is, the more beneficial it is.

Start Defending Against Wage & Hour Lawsuits before They’re Filed

If you own a business that employs people, chances are you will someday be hit with a wage and hour claim by an employee or former employee.  It’s not necessarily because people are mean-spirited or greedy – it’s simply very easy for an employee, especially one whose relationship with their job has soured, to convince themselves that they’ve been wronged.  After all, many employees have a “David and Goliath” attitude towards their employers – you have all the money and power, and they have none.

Defending against these claims is more complicated than other legal problems.  In fact, the best way to defend against such wage and hour claims is to start defending against them before they even begin.

Step One: Hire an Employment Law Attorney in Ft. Lauderdale

Your first step is to consult with an experienced and qualified employment law attorney in Ft. Lauderdale so you can fully understand the policies and the law that you are required to follow.  The worst mistake you can make is violating the law unwittingly.  A qualified attorney can help you set up the policies and record-keeping that establishes your good faith and builds a defense against wage and hour claims long before it becomes necessary.

Step Two: Keep Records

Your next step is to ensure that you have very accurate records of all employee compensation, including

  • all hours worked
  • lunch hours and other breaks
  • vacation days
  • sick days
  • holidays

This information won’t necessarily stop employees from filing claims, but it will be crucial to your defense against them.  Your employment law attorney in Ft. Lauderdale will assist you in investigating the facts of any claim, and establish your good faith and your compliance with all laws.

Employers: Avoiding Sexual Harassment Lawsuits Begins with Training

Almost no employer opens their office or shop with the intention of harassing its employees in any way.  Most wish nothing but the best for their employees and work diligently to improve conditions, opportunities, and compensation so their employees are happy in their work and eager to go the extra mile.

As a result, many employers are surprised when they find themselves facing a sexual harassment lawsuit.  Luckily, it is relatively easy to avoid such scenarios.

Step One: Don’t Take It Personally

The biggest mistake an employer can make regarding sexual harassment in the workplace is to be offended that they must consider it.  Sexual harassment can be subtle, and it does not require the employers’ direct involvement.  If the employer allows harassment in their workplace, they are liable.

Step Two: Clear Policies

The most powerful weapon an employer has against sexual harassment lawsuits is a clear policy regarding harassment and employee safety.  Work with your Human Resources or other advisors to craft a clear policy of behavior.

Step Three: Training

Most importantly, both you as the employer and your employees should be given training in recognizing harassing behavior and how to stop it.  Sexual harassment often seems like harmless pranking or friendly behavior to those standing outside of the situation.  Training can ensure that employees monitor each other and stop situations before they go too far.

Step Four: Monitoring and Communication

Finally, employers have to establish clear lines of communication for their employees to communicate problems or perceived harassment, and respond quickly and effectively to any complaint.

Don’t be blindsided by sexual harassment claims and litigation.  A strong defense is a strong offense – create a workplace that resists harassment scenarios and you won’t have to worry about lawsuits.

Educating Managers about Employee Discrimination

It’s an unfortunate fact of life that while most employers mean well when it comes to their employees, they are not always educated or informed when it comes to the laws that exist to protect employees against discrimination.  It is therefore necessary for employees to educate themselves so they can protect themselves and inform their employers of the applicable laws.

Here’s what every employee should work to ensure their employer knows.

Discrimination Is Often Convenient

Most employers contacted by the Equal Employment Opportunity Commission regarding discrimination do not believe they are guilty of discrimination, because their decisions are often based on practical matters.  For example, when a member of the armed forces is called to duty, an employer may need to fill their job with a replacement, but be unaware that when the service member returns, they are required under The Uniformed Services Employment and Reemployment Rights Act (USERRA) to re-employ that person in their old job with no changes in pay or benefits.

EEOC Investigations

Employers should be aware that if an employee or former employee makes a discrimination complaint against them, the EEOC will launch an investigation regardless of the circumstances.  An investigation may result in the EEOC seeking a lawsuit, or it may determine that no action is needed.  An investigation is not in and of itself a finding of fault.

Employees Are Protected

Employers should also be reminded that once an employee has made a formal complaint of discrimination, even if the employer feels it is unjustified, they cannot take any steps to punish that employee through termination, reassignment, or reductions in pay or benefits.

Most employers intend to do well by their employees.  The law exists to protect against the minority who would take advantage, and against accidental discrimination.

The Employment Laws Every Employer Must Know

The story of labor in general is one of increasing rights and protections, and the modern business climate sees employees enjoying the best conditions in history.  As an employer, it is incumbent upon you to be familiar with the Florida and federal laws that protect employees so you don’t run afoul of them by accident.  Here are the laws every Florida employer needs to know.

Job Discrimination and Reemployment

The Civil Rights Act of 1964 prohibits discrimination in firing, hiring, or compensation based on religion, race, ethnicity or sex.  The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees that members of the armed forces be reemployed in their previous positions at the same pay and with the same benefits and privileges.  The Age Discrimination in Employment Act (ADEA) specifically prohibits discrimination against employees over the age of 40 due to their age.  And The Americans with Disabilities Act (ADA) prevents discrimination against people living with disabilities as long as they can perform a job’s core duties.  The Pregnancy Discrimination Act (PDA) prohibits discrimination against female employees who become pregnant.

Compensation

The Fair Labor Standards Act (FLSA) sets the minimum wage nationally (your state may have a superseding minimum wage) and sets overtime rules.  It also limits the work that underage employees can engage in.  The Equal Pay Act (EPA) requires employees to pay women as much as their male counterparts for the same jobs.

Leave

The Family and Medical Leave Act (FMLA) assures employees of up to 12 weeks annually of unpaid leave after the birth or adoption of a child, or to care for a sick family member.  However, the FMLA only applies to businesses of 50 or more employees.

What to Do When the EEOC Comes Knocking

The Equal Employment Opportunity Commission is something most employers don’t think about – or, sometimes, even realize exists – until the day they are contacted about a complaint.  As a result, employers make several common mistakes regarding an EEOC investigation in Florida and across the country that can worsen their situation or even guarantee they are dragged into court with a bad outcome.  As with other aspects of business, there are some key steps that an employer can take to mitigate the damage and limit the trouble an EEOC investigation causes.

Take It Seriously

Too many employers regard claims of discrimination as “nuisances,” and often regard the complainant as merely a disgruntled employee or former employee.  EEOC investigations in Ft. Lauderdale and elsewhere have serious consequences, and must be taken seriously.

Assign an Attorney

One of the biggest mistakes employers make when served notice of an EEOC investigation is to allow a non-attorney to handle the process.  While a manager directly involved or a Human Resources professional might seem a natural choice, EEOC investigations have a complex set of rules and procedures an experienced Florida attorney is best suited to handle.  For example, every statement made during an EEOC investigation can be used later against you if the EEOC decides litigation is justified.

Prepare the Position

Every employer under EEOC investigation has the right to craft a Position Statement in which it can refute the charges and offer its perspective on the situation.  The more thought and effort put into this document, the better your chances of escaping litigation.  In the event of litigation, this document is often at the center of either the attack or the defense, so prepare it thoughtfully.

EEOC investigations don’t have to turn into lengthy nightmares – if you take proper steps.

Employer’s Rights in a Wrongful Termination Case

It’s never easy to part ways with an employee, but the situation can become more complex when the employee attempts to pursue a wrongful termination case.  In the vast majority of Florida employment situations, employers and employees have an “at will” relationship.  This gives the employer the right to alter the conditions and term of the employment at any time, without notice, and for any reason.

There are certain situations in which the “at will” arrangement does not apply, but they are rare.  A union collective bargaining agreement, an employment contract that outlines other protections and rights, and civil serve regulations that govern the work of public employees are all examples of situations where the employee does not serve at the will of the employer.

There are also several federal and state regulations and laws that prohibit an employer from taking certain actions regardless of whether the employee is classified “at will”.  This refers to workplace discrimination based on a protected class, attempting to obtain workers’ compensation benefits, complaints about sexual harassment, and reacting to an employee who has engaged in whistleblowing activity.

If you have been accused of wrongful termination, collect any documents related to the employee’s performance at work and share them with a wrongful termination defense attorney in Fort Lauderdale.  Planning ahead can be crucial for the success of your case.

Unless you, as the employer, have violated bargaining agreements or discrimination laws regarding a protected class, you have rights when an employee alleges wrongful termination.  Disgruntled employees may want to take to you to court and tarnish your reputation with false allegations, which is why it’s essential to hire your own Fort Lauderdale wrongful termination defense attorney.  Don’t let a legitimate termination destroy you and your business.

Next Steps for an Employer Accused of Sexual Harassment

Being accused of sexual harassment in the workplace should never be taken lightly; even the presence of a case itself can harm your reputation.  If an employee alleges that you have engaged in sexually harassing behavior, your next steps are crucial for a possible legal case but also for your own peace of mind.

If you have been accused, do not joke about the matter.  An employee must be able to demonstrate four things in order for a sexual harassment case in Ft. Lauderdale to be successful: that the employee was subjected to conduct that was sexual in nature, that the conduct was not welcomed by that employee, that the conduct persisted in a pervasive or severe manner, and that the continued sexual harassment altered employment conditions to create a discriminatory abusive working environment.

An employer who has been accused does have rights in a Ft. Lauderdale sexual harassment case.  If you have exercised reasonable care to correct any behavior falling under the category of sexual harassment and/or if you made reasonable efforts in this manner and the employee failed to take advantage of them, you need to provide documentation of such to your sexual harassment defense attorney immediately.

Evidence and protocol are key in a sexual harassment defense case.  A disgruntled employee may believe that he or she will easily be able to accuse you of sexual harassment, but being able to show communication reports about sexual harassment, trainings or other behavior implemented by management to address any sexual harassment, and manuals discussing company management of such an allegation may all be crucial to your case.

A sexual harassment case can impact an employer’s reputation for years to come; contact a sexual harassment defense attorney in Ft. Lauderdale today to protect yourself.

How to Handle Being Accused of Workplace Discrimination

The term workplace discrimination might seem a bit broad, and that’s because the legal cases that fall into this category are known for being complex.  If you have been accused of discriminating against someone in the workplace, you need to protect your interests by hiring a Florida workplace discrimination attorney.

Being accused of workplace discrimination is a serious matter.  The Florida laws about workplace discrimination are quite clear, and if your employee or former employer has exaggerated their claims, you need to protect your rights in court.  Cases where an employee alleges discrimination as a result of work ethic or personality, for example, do not meet the legal guidelines for a workplace discrimination suit.

This is because employers maintain discretion over pay for employees, so unless your pay guidelines discriminate against a protected class, a lawsuit over salary and pay may not have any merit in court.

The law protects individuals from being discriminated against with regard to their sexual preference (although this depends on your exact area), veteran’s status, disability, race, age, sex, national origin, creed, and religion.  Discrimination laws are in place to help reduce the opportunity for employers to deny individuals equal opportunity in the workplace.  An employee must have evidence that discrimination occurred as a result of membership in a protected class.

As a business owner or manager, your reputation is on the line in a workplace discrimination case.  Take any allegations seriously by hiring an experienced Florida workplace discrimination defense attorney.  The law protects certain classes of individuals in the workplace, but the law also protects employers who are wrongfully accused of workplace discrimination.  If you have an employee that has taken a claim too far, contact a Florida workplace discrimination defense attorney as soon as possible.