What Legal Rights Do Employers Have When It Comes to Employee Political Speech?

By Michael T. Landen and Mayda Z. Nahhas

Recent headline events may have some wondering about how far First Amendment rights extend into the workplace. Jerry Jones, owner of the NFL’s Dallas Cowboys, declared he would bench any player who protested during the national anthem. ESPN suspended anchor Jemele Hill after a retaliatory tweet to Jones’ comments. President Donald Trump has urged the NFL to suspend players who take a knee during the flag salute.

This string of events raises questions about what rights employers, like the NFL, have when employees engage in political expression on company time. While private employers are typically given wide latitude by the courts when it comes to terminating an employee, employers should still proceed with caution when it comes to disciplining an employee for voicing political opinions in the workplace.

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As a starting point, there is a significant difference for public and private employers as it relates to an employee’s exercise of his or her First Amendment rights in the workplace. Public sector employers are generally more constrained to restrict employees’ rights to exercise their First Amendment rights in the workplace. For example, while some states may enact laws protecting political speech, there is no federal law forbidding the firing of an employee based on the employee’s political views in a private setting. For example, in 2009 a public employee was terminated from his job as a deputy sheriff when he Facebook “liked” his employer’s opponent’s political Facebook page around an election period. The judge found that the Facebook “like” didn’t amount to speech protected by the First Amendment and thus the employer was free to fire him. However, a reviewing court found otherwise and held that a Facebook “like” was sufficient speech and therefore the employee was free to sue his employer for retaliation. Had this occurred in a private sector employment setting, the outcome would likely have been different.

These situations demonstrate why it is so important for private employers to set clear policies relating to free speech issues, and to enforce these policies uniformly to all employees regardless of race, gender and religion. Employers who implement and stick to these types of policies are in a much better position to draw the line when employees seek to hold unwelcome political demonstrations in the office space or on company time. Employee handbooks and manuals are the most effective tool for regulating activities in the workplace, including the rights and restrictions governing employee speech and demonstrations.

Therefore, it is important for employers to have clear and consistent policies and guidelines in place to define what is considered acceptable and non-acceptable expression by employees. Having such policies in place before an issue arises helps set clear expectations for employees, and combat accusations of retaliation if an employee violates a policy. For instance, in 2011 the NFL denied Peyton Manning’s request when he asked for permission to wear black high-top shoes as tribute to the former Colts quarterback Johnny Unitas during a game. It is important for a private employer to set clear boundaries in their policies and apply them uniformly to each employee so that they don’t run into discrimination issues under Title VII of the Civil Rights Act.

Employees reserve the right to express themselves as they wish on their own time. It is more difficult for an employer to make a case against an employee expressing his or her political beliefs outside of the office, during personal time, unless such actions infringe on the employee’s ability to carry out work-related responsibilities. The objective of implementing policies relating to workplace speech is not to curb employees from exercising their First Amendment rights, but rather to regulate such activities in order to promote consistent rules and regulations for all employees.

Law 360: Ruling Puts Banks On Hook For Fla. Real Estate Back Taxes

Law360

Law360, Miami (October 27, 2017, 8:25 PM EDT) — When a mortgage company loaned money to a Miami buyer in 2007, the lender didn’t know the homeowner would improperly claim a homestead property tax exemption. It wasn’t until seven years later that the county would file a lien for the unpaid taxes, a lien that a Florida appeals court now says applies retroactively and takes priority over the mortgage.

The decision, issued Oct. 18, could cause headaches for lenders and title insurers who will now need to worry about priority liens popping up after closing and applying retroactively.

The biggest issue with the decision is its retroactive nature, which could, depending on the property and how long the homeowner wrongly claimed the exemption, lead to liabilities of hundreds of thousands of dollars, according to Farach. By law, a tax assessor can claim up to 10 years’ worth of back taxes for improper homestead exemptions.

“Florida has always been a first in time, first in right state, with one exception: that government liens are superior,” said Marko Cerenko, a partner at Kluger Kaplan Silverman Katzen & Levine PL. “But this means you can go back in time and prioritize a subsequent lien.”

Read the full story on Law360

Law360: Fla. Justices Give Employers Ammo For Noncompete Fights

Law360

Law360, Miami (September 15, 2017, 9:07 PM EDT) — When the Florida Supreme Court ruled Thursday that referral sources can be protected legitimate business interests under the state law governing noncompete agreements, it opened a door for employers to argue for the inclusion of additional interests in restrictive covenants, experts say.

In a unanimous decision, the Supreme Court said that though Florida Statute 542.335, which governs noncompete agreements, does not specifically list referral sources as subject to protection, they can be. The statute, which lists only five kinds of protected business interests, is not meant to be exhaustive, and trial courts are equipped to make case-by-case determinations depending on the facts of specific cases and the industries involved, the court said.

With this decision, employees can no longer swat away a suit to enforce a noncompete agreement by arguing that referral sources are not protected, and companies can argue that not just referral sources may be protected, but other types of business interests not listed in the law can be part of a noncompete contract.

Michael Landen, an employment litigator at Kluger Kaplan Silverman Katzen & Levine PL, said the two cases involved had a “clearer fact pattern than most” and wasn’t sure whether the decision would extend beyond referral sources in the noncompete litigation space, though for those who defend employers in these cases, it is a helpful tool to use.

“The language that the court uses in the opinion in the analysis can always be the kind of thing that can be helpful in another case that an employer might rely on,” Landen said.

 

To read the full article, visit Law360.

Daily Business Review: Elder-Abuse Plaintiffs Attorneys Weigh In After Nursing Home Deaths

Daily Business Review
By: Celia Ampel
Daily Business Review
September 15, 2017

Elder-law attorneys were quick to weigh in Thursday on the legal implications of eight deaths at a Hollywood nursing home following a loss of air conditioning during Hurricane Irma.

Any need for regulatory reform will be determined by the facts as they emerge, said Fort Lauderdale attorney Jonathan Gdanski of Schlesinger Law Offices. Key questions, he said, would include the following: What steps, if any, were taken to transport nursing home residents? Was the facility monitoring the deterioration of patients over time? And what plans were in place to help those who needed assistance the most?

“​Some of the most basic facts still need to be determined, yet what is already known seems to present a clear picture of absolute, complete, reprehensible conduct, which resulted in death,” said Gdanski, a plaintiffs lawyer focused on catastrophic personal injury and medical malpractice.

Meanwhile, he said, “the large majority” of caregivers across the state appear to have been adequately cautious in the face of the storm.

More than 150 residents of the Rehabilitation Center at Hollywood Hills were evacuated to hospitals Wednesday. Three people were already dead when first responders arrived, and five more died that afternoon. Gov. Rick Scott called the deaths “unfathomable,” and state and local authorities have started a criminal investigation.

The nursing home’s administrator, Jorge Carballo, said in a statement that the facility was “cooperating fully with relevant authorities to investigate the circumstances that led to this unfortunate and tragic outcome.”

Broward County reported the nursing home told officials Tuesday the air conditioning was out but did not request help, according to the Associated Press. The facility complied with a state law requiring an evacuation plan and hurricane drills.

“I have been litigating nursing abuse cases throughout Florida for years and this is the worst case I have seen,” said Fort Lauderdale attorney Marcus Susen of Koch Parafinczuk Wolf Susen.

The Hollywood nursing home seems to be an outlier rather than an example of a systemic problem, said Miami attorney Bruce Katzen of Kluger, Kaplan, Silverman, Katzen & Levine.

“I believe our existing regulatory scheme is sufficient to administer nursing home and rehabilitation facilities,” said Katzen, whose practice includes elder abuse cases. “However, the existing regulatory system needs to be enforced. This facility apparently had a long list of violations.”

To read the full article, click here.

Best Lawyers 2018 Recognition

On the heels of the recent Chambers USA recognition, Kluger Kaplan and many of its attorneys have been once again recognized among the best in their field by the international publication, Best Lawyers®. The attorneys were selected by votes from a peer group, based on an exhaustive evaluation. 83,000 industry leading attorneys are eligible to vote (from around the world) every year.

Best Lawyers 2018

The specific attorneys recognized by Best Lawyers are:

    • Deborah S. Chames
      • Family Law
    • Abbey L. Kaplan
      • Commercial Litigation
      • Entertainment Law – Motion Pictures and Television
      • Litigation – Mergers and Acquisitions
      • Litigation – Real Estate
    • Bruce A. Katzen  
      • Securities / Capital Markets Law
    • Alan J. Kluger  
      • Commercial Litigation
      • Litigation – Banking and Finance
      • Litigation – Real Estate
    • Todd A. Levine
      • Litigation – Real Estate
    • Philippe Lieberman
      • Commercial Litigation
    • Jason Marks
      • Family Law
    • Steve I. Silverman
      • Commercial Litigation

 Minneapolis, MN

  • Daniel N. Rosen
    • Eminent Domain and Condemnation Law

 

Based entirely on peer review, the methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

Founding Member Alan Kluger said, “this recognition is yet another proud moment for the firm. The number of attorneys recognized again and again demonstrates the depth and expertise of our team, and the dedication to our clients.”