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Cypen & Cypen
OCTOBER 4, 2007

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001


The Equal Employment Opportunity Commission has filed an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 against United Parcel Service, Inc. to correct unlawful employment practices and to provide appropriate relief to an individual who has been adversely affected by such practices. The unlawful employment practices include refusing to accommodate an employee’s sincerely held religious beliefs that he could not work past sunset on his Sabbath. The employee had worked for 17 years as a package delivery driver. In December 2000 he notified UPS that he was a member of the United Church of God, the beliefs of which include a prohibition against work from sunset Friday to sunset Saturday. He was accommodated from 2000 until 2005, and was not required to work on his Sabbath. In 2005, UPS ceased efforts to accommodate the employee, and advised him he was to finish his route regardless of his religious beliefs, or he would be terminated for job abandonment. When a medical condition prevented the employee from performing his job as driver, UPS offered him only a non-driving job that conflicted with his religious beliefs. He was forced to take short-term disability leave for his medical condition, instead of performing a full-time non-driving job, to avoid violating his religious beliefs. The effect of these practices was to deprive the employee of equal employment opportunities and otherwise adversely affect his status as an employee, because of his religion. As usual, EEOC seeks an injunction and make-whole relief.


The United States Supreme Court has granted certiorari in a public pension case involving claims of age discrimination (see C&C Newsletter for September 29, 2005, Item 6 and C&C Newsletter for November 9, 2006, Item 3). The case involves a public employee retirement plan that includes normal and disability retirement benefits. A member who is eligible for normal disability retirement benefits based on attained age plus a minimum service requirement or based on service alone is not eligible for disability retirement benefits. Because age may be a factor in determining eligibility for normal retirement, it indirectly determines eligibility for disability retirement. Further, calculation of disability benefits is based upon actual years of service plus the number of years remaining before a member reaches normal retirement age or eligibility based on years of service alone. Thus, age may also be a factor in determining amount of disability retirement benefits. The specific question posed is whether any use of age as a factor in retirement plan is arbitrary, rendering the plan facially discriminatory under ADEA?


Chapter 2007-166 (effective July 1, 2007). Previously, Section 454.18, Florida Statutes, provided that no sheriff or clerk of any court, or deputy thereof, shall practice law in Florida. The amendment adds “full-time” to “deputy,” meaning that a part-time deputy sheriff or clerk of court can practice law. (We suspect there is more to this seemingly-simple amendment than meets the eye.)

Chapter 2007-201 (effective October 1, 2007). Section 121.4501, Florida Statutes, deals with certain exemptions from the Public Records Law (Chapter 119, Florida Statutes). Previously, personal identifying information of a participant in the Public Employee Optional Retirement Program contained in Florida Retirement System held by the State Board of Administration or the Department of Management Services or their agents, employees or contractors was exempt from the Public Records Law. The amendment deletes “or their agents, employees or contractors,” meaning that information in their hands is no longer exempt. (For your information, the Public Employee Optional Retirement Program contained in the Florida Retirement System is its defined contribution component, which, by most accounts, has failed to make significant inroads into the traditional defined benefit system.)

Chapter 2007-202 (effective July 1, 2007). The act creates Section 627.3121, Florida Statutes, to provide an exemption from public records requirements and Sunshine Law requirements for Florida Workers’ Compensation Joint Underwriting Association, Inc. The Legislature found that it is a public necessity to make certain records of Florida Workers’ Compensation Joint Underwriting Association, Inc. confidential and exempt from public records requirements. The Legislature further found that it is a public necessity to exempt certain meetings of Florida Workers’ Compensation Joint Underwriting Association, Inc. from public meeting requirements.


The question of whether more workers could work past age 62 has two parts, according to a Brief from Center for Retirement Research at Boston College. First, how have older workers’ capabilities changed? Second, how have job requirements changed? Overall, individuals in their fifties and sixties are effectively younger than people the same age 25 years ago in terms of life expectancy, disability rates and self-reported health. These findings are consistent across gender and racial/ethnic groups. Along with health, employment has become less physically-demanding, except for those with relatively little education. Thus, it appears clear that if demand for older workers were sufficient, it would be feasible to raise the Early Eligibility Age for Social Security to 63.5 in order to promote longer worklives. Ideally, such an adjustment would be done with a long lead time so as to allow people to plan for the change. As a matter of social policy, it would probably be desirable to consider changes in other programs, such as providing early benefits for workers with many years of covered Social Security work or lowering requirements for receipt of disability benefits at older ages. Several studies have attempted to identify the size of the group that would be most adversely affected by such a policy. That group would be people who were physically unable to continue working but who did not qualify for disability benefits or for an early retirement pension. Studies have found that group to be relatively small -- 10% or less of older workers.


The Florida Supreme Court recently reviewed a case in which the Third District Court of Appeal certified conflict with the Fifth District Court of Appeal’s decision. The conflict issue was whether knowledge that a victim is a law enforcement officer is an essential element of the offense of resisting officer with violence under Section 843.01, Florida Statutes. The Third District held that knowledge of an officer’s status is not an essential element in the offense of resisting an officer with violence. The Fifth District had reached the opposite result. Because the Supreme Court concluded that knowledge is an essential element of the crime of resisting an officer with violence, it quashed the Third District’s decision and approved the Fifth District’s decision. The statute provides that whoever knowingly and willfully resists, obstructs or opposes any officer in execution of legal process or in lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree. The adverbs “knowingly and willfully” modify not only the verbs “resists, obstructs or opposes,” but rather the entire phrase that follows. Polite v. State of Florida, Case No. SC06-1401 (Fla., September 27, 2007). Talk about a person being misnamed!


Hendricks filed suit against her former employer, seeking wages to which she claimed entitlement under Family Medical Leave Act. The District Court granted summary judgment against Hendricks, and she appealed. The United States Court of Appeals affirmed. Hendricks was employed as a utility driver, making $12.23 per hour. She suffered a rotator cuff injury while at work, and applied for workers’ compensation benefits. She did not, however, apply for leave pursuant to FMLA until three months later. Instead of taking FMLA immediately after her injury, she elected to take light duty under her workers’ compensation program. While on light duty, Hendricks did office work, earning $9.00 per hour. She filed suit seeking recovery of the $3.23 per hour pay differential between her wages as a utility driver and her wages while on light duty. She asserted that while on light duty she was entitled under FMLA to receive the pay rate she had received as a utility driver. The appellate court held that there was no such thing as “FMLA light duty,” whether pursuant to statutes or their corresponding regulations. To the extent that “light duty” is mentioned in the regulations, it is as a component of workers’ compensation. The regulations do not address rate of pay an employee is to receive while on light duty, because that matter is covered by workers’ compensation and not by FMLA. Although an employee may receive payment through workers’ compensation benefits while on FMLA leave and an employer may not require an employee to use paid leave time while receiving workers’ compensation, FMLA does not require an employer to pay a certain pay rate while the employee is on leave; FMLA only requires that an employer permit an employee to take up to twelve weeks of unpaid leave for illness and return to his prior post or an equivalent position. Hendricks v. Compass Group, USA, Inc., Case No. 06-3637 (U.S. 7th Cir., August 6, 2007).


Investments by California Public Employees’ Retirement System, the country’s largest public pension fund, spurred $15.1 Billion in economic activity in California in 2006, creating more than 124,000 jobs, according to the Los Angeles Times. Referring to a new study, the newspaper says that the $247-Billion fund created more economic activity last year than industries including machinery, manufacturing, oil/gas extraction and amusement/gambling/recreation. It also created more jobs in the heavy/civil engineering construction industry and motion picture/video production industry. CalPERS directly invested $8.3 Billion in the state economy in 2006, which translates to a $15.1 Billion ripple effect through the market place. More than half of the fund’s direct investments were in private real estate development, 29% in stocks and 11% in construction-related partnerships. Los Angeles got the biggest piece of the investment pie, at $2.2 Billion. CalPERS has a strong investment history with a portfolio that has grown an average of 9.1% annually over the last decade.


Financial fraud by definition involves at least two sets of numbers, but those tracking it find even more. The Deloitte Forensic Center, a newly-created research arm of Big Four auditor Deloitte & Touche, has combed through the 344 financial fraud enforcement actions leveled by the Securities and Exchange Commission between 2000 and 2006, and identified 1,240 individual fraud schemes in the same 344 companies. Eighty-two percent of the companies tagged by SEC had from one to five fraud schemes, while 22 companies had ten or more. Four companies had more than 20 fraudulent activities with one company tallying up 47. Reported in Financial Week, the report found that the number of fraud schemes peaked in 2004, without 252 identified -- roughly one for every working day. Although the annual number of schemes has decreased since then, there were still 208 in 2006. The most common type of financial fraud for the six-year period involved revenue recognition, accounting for 41% of the total schemes. Improper disclosure was the second most common type of fraud (12%), followed by manipulation of expenses (11%). Telecommunications, media and technology companies were responsible for 39% of the fraudulent activity. Consumer business companies were second, with 30%, and manufacturing companies made up 10% of the total. Nice. Real nice.


Former City of St. Petersburg police officers filed a class action against the City and the police pension board of trustees, claiming entitlement to contributions they made to the police pension fund. Their counsel served the City with interrogatories seeking names and addresses of those police officers who might qualify as members of the class. Subsequently, without consulting the City Attorney, plaintiffs’ counsel directly faxed a public records request to the City Clerk regarding the same information he had requested in the interrogatories. He sent a copy of his request to the City Attorney, who objected to direct contact with the City Clerk. However, the Clerk responded to the request after counsel indicated he would file a separate suit against the City if the records were not produced immediately. The City sought a protective order in the class action litigation, claiming that counsel for the class violated the Rules Regulating the Florida Bar by sending a public records request directly to the City without first obtaining consent of the City Attorney. Rule 4-4.2 of the Rules Regulating the Florida Bar provides that, in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Where the opposing client is an organization, the rule prohibits communication with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter; has authority to obligate the organization regarding the matter; or whose acts or omissions regarding the matter could be imputed to the organization. Here, the City Clerk is not one of the types of employees covered because in her capacity as custodian of the City records her official functions are ministerial. While the City Clerk might consult with the City Attorney regarding the public records request, there is no indication that, as records custodian, the City Clerk has supervised, directed or regularly consulted with the City Attorney regarding substance of the litigation. Likewise, there is no indication that, as records custodian, she has any authority to obligate the City regarding the litigation or could commit any acts or omissions regarding the litigation that could be imputed to the City. In denying the City’s motion for protective order, the court recognized that there may be situations in which a City Clerk has acted in her managerial capacity relevant to litigation, and in such situation she might fall within the types of employees who could not be contacted directly. However, when class counsel directed a public records request specifically to the City Clerk in her ministerial capacity, he did not engage in any ex parte communication prohibited by Rule 4-4.2. Instead, the City Clerk was under a mandatory duty either to provide the requested documents or cite the specific exemption under which she was withholding them. Editorial comment: the request included names and addresses of former police officers. What happened to the confidentiality under Section 119.071, Florida Statutes? Remia v. City of St. Petersburg Police Pension Board of Trustees, 14 Fla. L. Weekly Supp. 854 (Fla. 6th Cir., July 17, 2007).


“Part of the secret of success in life is to eat what you like and let the food fight it out inside.” Mark Twain


If life deals you lemons, make lemonade; if it deals you tomatoes, make Bloody Marys.

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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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