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April 14, 2009
Did Employer Blackball Ex-Employee?

When an employee leaves a company and becomes convinced that her former employer is preventing her from finding another job, what is the possible liability of the former employer?  A Florida court of appeals recently reviewed a case raising that issue. Its decision illustrates some of the principles behind the Florida Whistleblower Act (FWA).

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What happened. “Christina” worked for “Dr. Howard,” a Palm Harbor cosmetic surgeon. She left his employ due to changes to her bonus compensation arrangement. After resigning, she sued Howard for failure to pay overtime under the federal Fair Labor Standards Act (FLSA), despite never having spoken to him about overtime before she left. Meanwhile, she began to look for another job.

She learned later that Howard had called one prospective employer, My Choice Medical, a loan company for cosmetic surgery, and warned them that hiring Christina would be a violation of the contract between their two businesses. She also learned from a former co-worker that Howard had allegedly been “blackballing” her with other potential employers. For example, the co-worker said that Howard made it known to her that he had some part in preventing Christina from getting certain positions. As a result, Christina sued Howard on a number of grounds, including retaliation in violation of the FWA. Howard asked the court to dismiss the claims.

What the court said. To prove retaliation under the FWA, Christina had to show that she engaged in protected activity, she suffered an adverse action, and that there was a connection between the two. Howard conceded that the FLSA action was a protected activity and that his admitted communication with My Choice was an adverse action. On the causal connection, Howard argued that he had been unaware of the FLSA action when he spoke to My Choice.

Christina was unable to prove whether he spoke to them before or after the filing of the lawsuit. But the evidence showed an equal possibility for either time frame, so the court found it appropriate to keep the case alive for development of further evidence on timing. And because testimony from former co-workers tended to show that Howard had a retaliatory motive, the court kept the case open to see whether his actions resulted from the FLSA suit or some other source. Kissinger-Campbell v. Harrell, U.S. District Court for the Middle District of Florida, No. 8:08-cv-568-T-27TBM (1/14/09).

Point to remember: Two important pieces of evidence that tend to prove retaliation are the temporal proximity between a protected act and an adverse action, and the presence of a retaliatory motive.

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