April 2004

Many community associations directly hire employees while other associations use employment agencies or management companies. In either instance associations must be cognizant of employment issues. Two recent appellate court decisions provide guidance to Florida employers.

UNEMPLOYMENT COMPENSATION: WHEN FOUL LANGUAGE GOES TOO FAR

What happens if an employee "curses out" his or her boss? Can you fire the employee and avoid an unemployment claim? It depends on who hears the profanity. In the first of two decisions, Paeden v. Unemployment Appeals Commission, 29 Fla. L. Weekly D462 (Fla. 5^th DCA, February 20, 2004), an appellate court ruled that cursing a supervisor in front of other employees constituted misconduct barring recovery of unemployment compensation benefits.

An employee of an Orlando cab company was fired after becoming abusive and using foul language toward her supervisors during a counseling session and calling one supervisor a vulgar name in front of other employees. The Unemployment Appeals Commission found the employee was discharged for misconduct and thus, disqualified from receiving unemployment benefits.

The appellate court agreed with the finding. The court pointed out that under §443.101(1)(a), Florida Statutes (2003), misconduct is defined as "conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee."

The court noted that a single curse word directed toward a supervisor but not in front of other employees may not constitute misconduct. A court looks at whether the employee had an audience. "Such behavior tends to undermine the authority and respect for the employer, supervisor, or leader of an organization, and its overall morale, to such an extent that it cannot be tolerated - like mutiny on the high seas," the court said. "Discharge or termination should be expected and it is serious enough to disqualify a fired employee from receiving unemployment compensation."

When can an employee claim he or she has been discriminated against because of a disability? Does a slight limp or temporary condition count as a disability? Not every impairment makes one disabled.

In the second appellate decision, Wimberly v. Securities Technology Group, 29 Fla. L. Weekly D421 (Fla. 4^th DCA, February 18, 2004), the court ruled an employee who had a slight limp and moved slower than he previously moved did not have a disability under the Florida Civil Rights Act. Wimberly filed a disability discrimination action alleging he had a physical impairment that limited a major life activity - his walking. However, Wimberly was still able to perform his job.

Florida courts construe cases under the Florida Civil Rights Act the same as cases under the ADA - the Federal Americans with Disabilities Act. The appellate court explained the ADA defines disability as "(A) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment."

The court pointed out the United States Supreme Court has determined that merely having an impairment is not enough to win a discrimination case. A person must establish that the impairment limits a major life activity. The appellate court explained for a disability there must be a substantial limitation on a major life activity. In other words, the person must be completely unable to perform the activity or significantly restricted in performing the activity. The court looks at the following factors: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact from the impairment.

The appellate court explained that Wimberly must have had an injury that "substantially" limited his ability to walk and stand. "An impairment’s minor interference in major life activities does not qualify as a disability," the court said. The court found that Wimberly’s slight limp did not rise to the level of a disability under the ADA.

Because associations are also employers, it is important to recognize that an association can not discriminate on the basis of a disability. That being said, not every impairment will be considered a disability. To avoid potential problems, contact your association’s counsel if you have any questions.

CABLE CONTRACTS: WHAT IS EXPECTED MAY NOT BE WHAT YOU GET

It was a battle of titans in which mere citizens were the losers. EchoStar Communications, a satellite broadcaster, was reported to be in dispute with Viacom, a network broadcaster. The dispute highlighted some risks an association may unwittingly take when entering into a contract with cable providers. EchoStar temporarily pulled from its service some of Viacom’s stations, including CBS, MTV, Nickelodeon and Comedy Central. Not a laughing matter for many people!

Most associations assume that the cable or satellite stations will never change. But if the stations do change, most people assume the association will be entitled to a credit or to cancel their contract. Guess again. Most contracts do not provide for credits or cancellation. It is important that you carefully review all contracts with cable providers to know what you are really getting when you sign up for a service.

The firm is pleased to announce the addition of Brian Sherwin to our support staff. Brian will be assisting attorneys concerning pre-litigation assessment issues. Brian has five years collections experience. Next time you call the office or come in, say hello to Brian.