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Andrew Gordon is a litigator who focuses his practice in the representation of management-side labor and employment matters such as defending …

Showing 10 posts by Andrew M. Gordon.

Beginning next year, Florida’s minimum wage is going up.

On January 1st, 2017, the minimum wage in Florida will increase from $8.05 an hour to $8.10 an hour. This represents the fifth-smallest hourly increase since Florida established a state minimum wage in 2005. For tipped employees, the minimum wage will be at least $5.08 an hour. More ›

11th Circuit Upholds bar on Claims by Jail Officer with Cancer

The 11th Circuit recently held that an officer at a county jail in Florida who was undergoing treatment for cancer cannot proceed with her Americans with Disabilities Act ("ADA") claim because she failed to identify a reasonable accommodation that would allow her to perform the essential functions of an available position. More ›

Department of Labor: Married Same-Sex Couples have FMLA Rights Regardless of State of Residence

The U.S. Department of Labor ("DOL") recently announced its Final Rule changing the definition of "spouse" in the Family and Medical Leave Act ("FMLA") to include most same-sex married couples. The Final Rule becomes effective March 27, 2015.   More ›

Supreme Court Backs Whistleblowing Air Marshall

On January 21st, the Supreme Court affirmed a former air marshal's right to whistleblower protection relating to his leaking of air security plans to the media. The 7-2 decision written by Chief Justice John Roberts in the case, Department of Homeland Security v. MacLean, No. 13-894 (U.S. January 21, 2015), represents a rare victory for government whistleblowers who expose dangers to public health or safety. More ›

11th Circuit: The EEOC can't Always get what it Wants

The 11th Circuit Court of Appeals recently shouted down the EEOC's broad subpoena powers when it held that the Commission wasn't entitled to hiring and firing information relating to Royal Caribbean's workers and job applicants who were not U.S. citizens, because that information had no bearing on the charge before the EEOC.

In 2010, Jose Morabito, an Argentinean national who was employed by Royal Caribbean as an assistant waiter on one of its cruise ships, filed a charge of discrimination with the EEOC.  In his charge, Mr. Morabito claimed Royal Caribbean violated the ADA when it failed to renew his employment contract after he was diagnosed with a medical condition.  Royal Caribbean responded to the charge by arguing (1) that the ADA was not applicable because Mr. Morabito was a foreign national who was employed on a ship flying the flag of the Bahamas, and (2) that, because Royal Caribbean ships are registered under the laws of the Bahamas, Royal Caribbean was required to follow the Bahamas Maritime Authority ("BMA") medical standards for seafarers, which disqualified Mr. Morabito from duty.  More ›

Security Guard Terminated After Incident with Psychiatric Patient Cannot Advance Discrimination Claims

The Sixth Circuit recently upheld a Michigan district court's decision to dismiss a 52-year-old African-American female security guard's age, race, and sex discrimination claims arising from her discharge following an incident with a combative psychiatric patient at the hospital where she worked. More ›

Fifth Circuit Broadens Definition of "Adverse Employment Action" under Title VII

The Fifth Circuit Court of Appeals has historically been one of the more restrictive federal appellate courts in its definition of an "adverse employment action." The court recently held, however, that a city police department's restriction of a detective's responsibilities after his return from a disciplinary suspension was sufficient to fall within the category of "adverse employment action." More ›

Second Circuit: Dodd-Frank Act's Whistleblower Protections do not Extend to Foreign Tipsters

The Second Circuit ruled Thursday that the Dodd-Frank Act's whistleblower protections do not cover whistleblowers overseas, siding with a foreign employer in a case brought by a former employee alleging that he was fired after reporting alleged fraud relating to events that occurred abroad. More ›

Prevention and Corrective Policies help Employer to Avoid Sexual Harassment Liability

Rhonda Simpson's manager first approached her in 2002 at a local fast food restaurant because he thought Ms. Simpson looked just like Farrah Fawcett. The manager suggested Ms. Simpson come see him at the national closeout retailer (the "Company") where he worked should she ever need a job. Ms. Simpson eventually did interview with the manager and was hired by the Company as a cashier and worked her way up to assistant manager. For most of the time she worked for the Company, she did not report to the manager who initially recruited her. More ›

Trucking Company did not Violate ADA or the FMLA when it Fired an Alcoholic Driver

An employee worked for a trucking carrier for several years before he was diagnosed with alcoholism in 2010 and sought leave to obtain treatment. The employee’s request for leave was approved. After being out of work for approximately one month, the employee sought to return to work. The trucking carrier decided that the employee was no longer qualified to be a commercial motor vehicle driver, pursuant to applicable regulations and company policy. As such, the employee’s employment was terminated.

The Department of Transportation's (“DOT”) regulations prohibit anyone with a “current clinical diagnosis of alcoholism” from driving commercial motor vehicles. 49 C.F.R. § 391.41(b)(13). In addition, the trucking carrier had a company policy prohibiting the employment of anyone as a commercial motor vehicle driver if he or she had been diagnosed with alcoholism in the past five years.

The employee sued his employer, asserting claims under the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act ("FMLA"), arguing that the trucking carrier discriminated against him due to his disability — alcoholism — and that the trucking carrier interfered with his FMLA rights and retaliated against him for exercising his FMLA rights. The district court disagreed and granted summary judgment in favor of the trucking carrier. The U.S. Court of Appeals for the Eleventh Circuit affirmed.

The court heldthat the employee was not a “qualified individual” under the ADA because he was not physically qualified to drive under DOT regulations. The Court observed that it is the employer's burden to ensure that a driver meets all DOT physical qualification standards. 49 C.F.R. § 391.11(a). Because the DOT does not permit anyone with a “current clinical diagnosis of alcoholism” to drive, the employer must determine whether someone suffers from such a diagnosis. The trucking carrier determined that the employee was not physically qualified to drive a commercial motor vehicle, and neither the district court nor the Eleventh Circuit found fault with that conclusion.

The Eleventh Circuit also upheld the dismissal of the FMLA interference and retaliation claims. The employee’s FMLA interference claim failed because he would have been discharged regardless of whether he took FMLA leave. The retaliation claim failed because he could not show that his termination was related to his FMLA leave.

This case is important to DOT-regulated employers as it shows that the courts will uphold an employer's judgment concerning a driver's physical qualifications to drive a commercial motor vehicle.

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