Florida Record

Thursday, November 21, 2019

Defense lawyer sees more danger for employers in state discrimination cases over federal claims

Attorneys & Judges

By John Breslin | Oct 4, 2019


Employee litigation is more onerous for employers at the state level than in federal court, according to a leading defense lawyer.

Robert J. Sniffen, managing partner with Sniffen and Spellman in Tallahasee, noted that the state Civil Rights Act does not cap damages, unlike federal statues such as the Fair Labor Standards Act (FLSA).

Sniffen spoke to the Florida Record following the publication of a report, "Employment Litigation in the Southeast," which shows that Florida is home to the top five plaintiffs' firms involved in that type of case work. 

The report, by the legal analytics firm Lex Machina, reviewed claims of discrimination, harassment or retaliation in Florida and other courts covered within the jurisdiction of the U.S. Courts of Appeals  for the First and 11th circuits.

Growing numbers of employees, particularly in the service industry, also are claiming under federal law they are the victims of wage theft by their employers, including working after being told to clock out.

The report states that the Southern District of Florida was the busiest, with the Middle District of Florida following close behind. More than 19,000 cases were filed from 2016 to 2018 across the two circuits, with 75 percent settled, 10 percent defense wins, and 3 percent in favor of the plaintiff.

Damages awards went from $13.8 million in 2009 to $20.4 million in 2018.

But Sniffen said the report "does not even count the number of cases in state court," which, he said, are almost double those on the federal docket.

"It is as active as it has ever been," Sniffen said. "But what I hear a lot of businesses say is some reform of employment [is needed]."

He said the state cannot obviously cannot address federal statutes, but can take a look at the state's Civil Rights Act, where there are no caps on damages. Sniffen also said the state Whistleblower Act is a "claim du jour" and concerning for employers.

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