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Amendments to jury instructions dealing with employment cases

Notices

Amendments to jury instructions dealing with employment cases

The Supreme Court Committee on Standard Jury Instructions in Civil Cases submits these amendments to the Florida Standard Jury Instructions in Civil Cases. The committee proposes amending 415.4—Retaliation; Adverse Employment Action; 415.5—Protected Activity; and 415.8—Preliminary Issue—Adverse Employment Action to clarify the Unlawful Retaliation instructions, based on the private-sector whistle-blower provisions in sections 448.101–105, Florida Statutes.

< p>Interested parties have until June 1, 2017, to submit comments electronically, [email protected], or to the chair of the Civil Committee, Rebecca Mercier Vargas, Kreusler-Walsh, Compiani & Vargas, 501 S. Flagler Drive, Suite 503, West Palm Beach, FL 33401-5913, [email protected], and a copy to The Florida Bar Liaison for the Committee, Heather Savage Telfer, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399-6523, [email protected].

415.4 RETALIATION; ADVERSE EMPLOYMENT ACTION

Retaliation means [discharging] [or] [demoting] [or] [suspending] [or] [taking certain an adverse employment action against] an employee because the employee engaged in [a] protected activit[y] [ies].]

[An adverse employment action is retaliation if it affects the terms and conditions of employment and would discourage a reasonable employee in [(claimant’s)] position from engaging in [a] [protected activit[y] [ies].] any type of significant action that would make a reasonable employee reluctant to engage in protected activity.]


NOTES ON USE FOR 415.4


1. The definitions of retaliation and adverse employment action are derived from F.S. 448.101(5) and case law. Donovan v. Broward Cnty. Bd. of Comm’rs, 974 So. 2d 458, 460 (Fla. 4th DCA 2008) ( citing Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53 (2006) for the proposition that an adverse employment action is any action which that would discourage reasonable employee from making or supporting charge of discrimination); Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53 (2006) (Title VII’s anti-retaliation provision does not confine the actions and harms it forbids to those that are related to the employment or occur at the workplace. Rather, any action, whether or not directly related to work, can form the basis of a retaliation claim, so long as a reasonable employee would consider the action to be materially adverse.).

2. Use the second paragraph of this instruction when the plaintiff claims that the defendant imposed an adverse employment action took action other than or in addition to discharge, suspension or demotion and the defendant disputes that such action constitutes an actionable adverse employment action. The trial court should use the second paragraph in conjunction with instruction 415.8.

415.5 PROTECTED ACTIVITY

Protected activity is:

[disclosing] [or] [threatening to disclose] to (appropriate governmental agency), under oath, in writing, an activity, policy or practice of (defendant) that is in violatedion of(describe law, rule, or regulation)] [or]

< p>[providing information to] [or] [testifying before] (appropriate governmental agency, person, or entity), which was conducting an [investigation,] [hearing] [or] [inquiry] into an alleged violation of (describe law, rule, or regulation) by (defendant)] [or]

< p>[objecting to (defendant’s) activity, policy, or practice that is in violatedion of(describe law, rule, or regulation)] [or] [refusing to participate in (defendant’s) activity, policy or practice that is in violatedion of(describe law, rule, or regulation)] [or] [would have violated] (describe law, rule, or regulation), had (plaintiff) participated.]


NOTES ON USE FOR 415.5


1. The bracketed language is derived from F.S. 448.102(1), (2) and (3).

2. AThe law is unsettled as to whether, under F.S. 448.102(3), a claimant must prove an actual violation of law as opposed to a reasonable, good faith belief that a violation of law has occurred. In Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013), the court held that a good-faith objectively reasonable belief is sufficient to state a cause of action. However, in Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA 2015), the court refused to follow Aery and held that proof of an actual violation was required. Some, all three federal district courts sitting in Florida have held that the plaintiff must prove an actual violation of law. See, e.g., Paulet v. Farlie, Turner & Co., LLC, 2010 WL 2232662, at *2 (S.D. Fla. June 2, 2010); Smith v. Psychiatric Solutions, Inc., 2009 WL 903624, at *7 (N.D. Fla. Mar. 31, 2009); White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1336 (M.D. Fla. 2005), while others have held that a reasonable belief is sufficient; but see Padron v. BellSouth Telecomms., Inc., 196 F. Supp. 2d 1250, 1255 (S.D. Fla. 2002) (in dicta, court noted that plaintiff’s reasonable belief that violation of law occurred is sufficient). The committee takes no position on which standard the trial court must use or whether any additional instructions or modification to the above-language is required.

415.8 PRELIMINARY ISSUE — ADVERSE EMPLOYMENT ACTION

On (claimant’s) claim there is a preliminary issue for you to decide. That issue is whether (describe the alleged conduct) was an adverse employment action. An adverse employment action is any type of significant action that would make a reasonable employee reluctant to engage in protected activity.


NOTE ON USE 415.8


Use instruction 415.8 in conjunction with the second paragraph in instruction 415.4 when plaintiff claims that the defendant imposed took an adverse employment action other than or in addition to discharge, suspension , or demotion , unless defendant concedes that such other action constitutes an adverse employment action.

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