Daily Business Review: Real Estate Agent Loses Job After Video Shows Her Mocking Gillum Supporters in Election Protest

Kluger Kaplan’s Michael Landen provides employment law insights in today’s Daily Business Review. 

Michael Landen_226 greyA United Realty Group Inc. real estate agent demonstrating with protesters calling for the firing of the Broward election supervisor is out of a job following a high-profile Twitter video.

Liliana Albarino-Olinick was fired Saturday as an independent contractor with Plantation-based United Realty after videos surfaced of her mocking and berating supporters of Democratic gubernatorial candidate Andrew Gillum.

Employment law attorneys said United Realty acted within its rights as an employer dealing with fallout from tight Florida elections that triggered automatic recounts in three statewide races, including Gillum’s run for governor…

Michael Landen, a partner at Kluger, Kaplan, Silverman, Katzen & Levine in Miami, said there’s no reason United Realty couldn’t sever its relationship with the Olinicks since they were independent contractors.

Private employers dealing with contractors have the right to say, “You know what, we are not going to do business with that company. We don’t like what they stand for.”

Click here to read the full article.

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.

Standard for Expert Opinions Uncertain in Light of the Supreme Court of Florida’s Recent Decision

 

Case

The Florida Supreme Court has declined to follow the Florida Legislature’s decision around expert witness testimony requirements. On February 16, 2017, the Supreme Court of Florida declined to adopt the 2013 amendments to the Florida Evidence Code which replaced the Frye standard for expert witnesses with the Daubert standard. The ruling shows that the interplay between the Florida Supreme Court and the Florida Legislature may create confusion and uncertainty for attorneys and judges about the standard they should apply for expert witness opinions going forward.

 

Florida Supreme Court

 

Background

In January 2013, the Florida Legislature amended the Florida Evidence Code regarding expert opinions. The purpose of the amendment was for Florida to shift from the Frye standard to the Daubert standard for expert witness opinions, in order to put Florida in line with the federal courts and most states. What’s the difference between the two?

  • The Frye Standard: an expert opinion based on a scientific technique is only admissible if such technique was “generally accepted” as reliable in the relevant scientific community.
  • The Daubert Standard: a more stringent and slow process, which requires additional hearings to determine the validity of expert opinion.

 

Ruling

The FL Supreme Court declined to adopt the new amendments, and therefore Florida will continue to use the Frye standard, unless or until challenged in a “proper case or controversy” where the Supreme Court of Florida has an opportunity to review the constitutional issues it referenced. The Court explained that even though it is the policy to adopt provisions of the Florida Evidence Code as the Legislature suggests, they have declined to on occasion “because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.”

The Court noted ‘grave constitutional concerns’ with the change. The concerns were not discussed in detail in the opinion, but touched upon the constitutional right to a jury trial and denying access to the courts.

Justice Polston, concurring in part and dissenting in part, disagreed with the majority for rejecting to replace the Frye standard, honing in on the fact that the Daubert standard is followed not only in federal courts, but also in “36 states.” Justice Polston continued, stating he knew of “no reported decisions that have held that the Daubert standard violates the constitutional guarantees” and in fact, cited to case law across the nation stating the opposite.

 

Impact

The ruling could have a substantial impact in the trial courts. For example, when a party objects to the admissibility of an expert witness opinion based upon the Daubert standard, the opposing party may argue that, based on the Court’s ruling, the Daubert amendments are unconstitutional. A party seeking to admit expert testimony could also argue that the amendments are procedural in nature, and because they were not adopted by the Supreme Court of Florida, the court should use the Frye standard in ruling on the motion.

Unless or until the FL Supreme Court rules differently on the issue, it appears this ruling is likely to cause confusion in courts across the state in applying the standard for admitting, challenging, or excluding expert opinions under the Florida Evidence Code.

 

 

Gina RhodesGina Rhodes is an associate at Kluger, Kaplan, Silverman, Katzen & Levine, P.L. and focuses her practice on commercial litigation disputes in both state and federal court.

Third DCA Affirms: A Voluntary Dismissal is not a Determination that an Injunction was Wrongfully Entered

By Jeffrey Berman

Last week, Kluger, Kaplan, Katzen and Levine, P.L. obtained a victory for a client when the Third DCA affirmed a ruling from Judge Sarah Zabel denying a motion to seek damages against an injunction bond. Read opinion here.

We obtained an injunction on behalf of our client, Aventura Tennis, LLC after the appellants opened up a competing business in violation of their non-compete agreements.  After the injunction expired on its own terms, we voluntarily dismissed the action.  The Defendants then sought to recover damages against the injunction bond, claiming that the voluntary dismissal operated as determination that they had been wrongfully enjoined.

Both the trial court and the appellate court agreed that based upon the facts of our case and the fact that we only dismissed the action after the injunction expired, the dismissal did not support a finding that the injunction was wrongfully entered and as a result, the Defendants were not entitled to proceed against the bond.

Although there are instances where a voluntary dismissal could result in a finding that a defendant was wrongfully enjoined, it is not automatic.  The courts must look to the facts of the case to determine whether a defendant is allowed to proceed on the bond.

The Americans with Disabilities Act opened doors

July 26 marked the anniversary of the Americans with Disabilities Act (ADA), a landmark law passed in 1990 that for the first time in our history created nationwide standards for combating discrimination against people with disabilities in employment, transportation, public accommodation, communications, telecommunications relay services and government activities.

The Act has led to a number of significant legal decisions, which have helped to balance the rights and responsibilities of workers with disabilities and their employers. For example, the ADA requires owners of stores, restaurants and other public locations to provide access to people with disabilities — this is something we often take for granted.

As a labor and employment attorney, I often deal with cases involving the ADA. It is imperative that employers understand the law and the consequences of noncompliance.

Despite the ADA creating a benchmark for employers, it also created a strong foundation for lawmakers to build on and provide even broader protections for disabled workers. For example, President George W. Bush amended the law in 2008 and more recently, President Obama signed an executive order, requiring the federal government to hire 100,000 new employees with disabilities by 2015.

The ADA, like many other laws designed to combat discrimination, is successfully furthering the cause for equality among all people. With about 20 percent of the labor force made up of people with disabilities, everyone should take a moment to reflect on the importance of this law and be cognizant of its impact on our workforce in places of public accommodation, and how it has improved the quality of life for millions of Americans.

Michael Landen, Miami

The letter was published by the Miami Herald.