Join the MDFAWL table for the DBR's Women in Law Award Luncheon, a featured article on Sexual Orientation & Employee Benefits, learn how your firm can donate legal supplies to needy students to use at school, and the launch of The Tyler Clementi Institute for Internet Safety!

MIAMI-DADE FAWL'S MONTHLY NEWSLETTER
SEPTEMBER, 2015, Vol. XXXVIII, Issue 4 

Ileana Cruz, President

Rebecca Ocariz, President-Elect

Katie S. Phang, Secretary

Lara Bueso Bach, Treasurer

Elisa D'Amico, Newsletter Editor

Deborah Baker-Egozi, Immediate-Past President
 
Ardith Bronson
 
Stephanie Moot
Lauren Brunswick

Kelly Peņa

Stephanie Casey
Jody Shulman
Brendalyn Edwards
Alicia Welch
Courtney Engelke
Talia Zucker
Mallory Gold
 
MIAMI-DADE FAWL IS THE PROUD AFFILIATE SPONSOR OF THE DBR'S "TOP 20 WOMEN IN LAW" AWARDS

Would you like to sit at the Miami-Dade FAWL table with us
at the October 14th luncheon at the J.W. Marriott?

We have several seats left (discounted tickets) so if you are interested, please email newsletter@mdfawl.org. Seats are selling out quickly!

MARK YOUR CALENDARS
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MEMBERSHIP SPOTLIGHT

Lara Bueso Bach
Courtney Engelke
Camielle N. Green
Michael Grieco
Erica Rutner

 

Miami-Dade FAWL Treasurer, Lara Bueso Bach, and Member, Erica Rutner, both with Weil, Gotshal & Manges LLP published an article in Barry Law Review, entitled "Florida's 'Brave New World': The Transition from Frye to Daubert Will Transform the Playing-Field for Litigants in Medical Causation Cases." The article is available here.

Courtney Engelke, an associate with Colson Hicks Eidson, sits on the Board of Directors of Miami-Dade FAWL and co-chairs the Accessibility and Scholarship Committees. In late September Courtney won an $11.5 million verdict for two women injured by another vehicle. The plaintiffs suffered life-threatening injuries and in the end, the jury awarded damages. This trial was Courtney's first time serving as first chair, and it was quite a win! 

Camielle N. Green, corporate associate with K&L Gates LLP, was elected as a Board Member of the Gwen S. Cherry Black Women Lawyers Association. Congrats Camielle!

Miami Beach Commissioner Michael Grieco launched Miami Beach Kids First, a 501(c)(3) foundation set on making early learning and the availability of special needs assistance in Miami Beach the best in Florida. Michael hosted the organization's inaugural event on September 17, 2015, his birthday, at the SLS South Beach. Congrats to Michael on launching an incredible organization with an amazing kick-off party!
FEATURED ARTICLE:
SEXUAL ORIENTATION & EMPLOYEE BENEFITS
by: Sherril M. Colombo & Kelly M. Peņa

2015 has been a remarkable year with regard to LGBT rights and marriage equality in the United States. With the landmark decision Obergefell v. Hodges, states must provide same-sex married couples with the same rights under state law as opposite-sex married couples. 135 S. Ct. 2584 (2015). [1] Yet, we can't stop there.  This summer also saw a landmark opinion from the Equal Employment Opportunity Commission ("EEOC"), which explicitly stated that discrimination on the basis of sexual orientation is a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (federal law prohibiting employment discrimination on the basis of sex, race, color, national origin and religion). See Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). [2] Although other jurisdictions (and many employers) have already interpreted Title VII to prohibit sexual orientation discrimination, many others are now looking at employment decisions from a broader perspective than before.

Despite these recent decisions and the trend for equality extended to LGBT employees and individuals, Florida (unlike many other states) has yet to establish a statewide prohibition against sexual orientation discrimination. For example, if gay, lesbian or bisexual employees work for a small Florida business (fewer than 15 employees) and face discrimination based on their sexual orientation, they are unable to make a claim under federal law, Title VII. See 42 U.S.C. § 2000e. And, the Florida Civil Rights Act - which is patterned after Title VII - does not explicitly cover sexual orientation as a protected class. See Fla. Stat. § 760 et seq.  This means that an non-covered employee can be fired or face other adverse employment action because of his or her sexual orientation. [3] Notably, the FCRA also did not specifically apply to pregnancy (despite federal law codifying pregnant workers as a protected class) and it took a Florida Supreme Court decision to extend the FCRA to pregnant workers.  Delva v. The Continental Group, 127 So.3d 371 (Fla. 2014).

Employee Benefits to Same-Sex Spouses
For those employers already offering benefits to same-sex spouses in the aftermath of United States v. Windsor 133 S.Ct. 2675 (2013)(wherein the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act ("DOMA"), previously banning federal recognition of same-sex marriage) [4], the Obergfell decision will not likely have much of a practical impact. The Obergefell decision, however, directly answered the question remaining after Windsor, which is: Same-sex couples have a constitutional right to marry and states must recognize other states' marriage decrees in the same manner as done for same-sex couples.

Consequently, employers are now left to review their benefits, including employee pension and welfare benefit plans governed under the federal Employee Retirement Income Security Act of 1974 ("ERISA"). More specifically, employers should review their plans to identify ways in which their employee's same-sex spouse is impacted by the employer's benefit plans (i.e., leave policies, retirement and cafeteria plans, survivor annuities, 401K plans and rollovers, to name a few).  After Windsor, it was believed that the employers subject to the Family Medical Leave Act ("FMLA"), were required to extend same-sex spouses protections under FMLA. Yet, four states, Texas, Arkansas, Louisiana and Nebraska obtained a preliminary injunction staying enforcement of the updated Department of Labor ("DOL") final rule [5], which post-Windsor required recognition of same-sex marriages performed in states that recognized such marriages as valid marriages - even if their state of residence did not recognize those marriages. After Obergefell, the DOL's definition of "spouse" is validated and employers must afford FMLA rights to eligible employees in same-sex marriages.

And for those state employers who did not extend benefits to same-sex spouses before, they may want to make a few changes - not because of any statutory amendment or codification under ERISA - but chiefly because of the recent civil rights decisions, as set forth supra. In this regard, a review of ERISA, itself, is silent on gender discrimination, leaving the U.S. Supreme Court to conclude in Shaw v. Delta Air Lines that the distribution of ERISA-governed benefits cannot be accomplished in violation of Title VII. 463 U.S. 85, 95-96 (1983). In doing so, the Supreme Court reasoned that this was in furtherance of congressional intent with the initial passage of ERISA - to have federal anti-discrimination laws govern, and for broad, consistent rulings with regard to ERISA benefits litigation. Id. If the courts ultimately rule that Title VII includes sexual orientation - as the trend clearly suggests - then ERISA benefits cannot be extended in a way that would discriminate against same-sex spouses. In short, employers (who have not already done so) may want to extend the same spousal benefits to same-sex spouses as they do to heterosexual spouses.

This is important as under Windsor, the cost of employer-provided health insurance for an employee's same-sex spouse is not taxable income to the employee, so states that failed to recognize same-sex marriages could continue to require employers to impute income for state tax purposes. After Obergefell, the value of health coverage that is provided to a same-sex spouse should not be taxed if the same coverage is tax-free when made available to an opposite-sex spouse. As such, the burden is lessened for employers applying inconsistent tax treatment between federal and state income inclusion among employees in different states (Obergefell will require employers to resolve inconsistent treatment arising from state issues for those employees in same-sex marriages who work or reside in a state that didn't previously recognize the employee's spouse).

Employee benefit plans face an entirely different legal framework.  These plans are governed by ERISA, regardless of the size of the company. Further, state antidiscrimination laws are pre-empted by ERISA under its expansive preemption clause pursuant to section 514(d) (as further discussed in Shaw and its progeny 463 U.S. 85, 95-96 (1983)).  If, for example, Florida were to ultimately adopt anti-discrimination laws that were more expansive than Title VII, these would not be considered in an ERISA-related claim.  Shaw at 103-104 ("[w]e fail to see how federal law would be impaired by pre-emption of a state law prohibiting conduct that federal law permitted.").  Instead, these plans will be evaluated under Title VII. Id.

In sum, with the recent trend of federal decisions, this is all-the-more reason to ensure that relevant employer benefit plans do not distinguish same-sex spouses from their heterosexual counterparts. And, a key take-away from the Obergefell decision is that because employees who are eligible to be married may now enter into same-sex marriages in their state of residence or any other state, employers' duties should be easier in applying this universal rule, whether in benefits or leave administration.
[1] Since the decision of United States v. Windsor, same-sex married couples have been treated the same way as opposite-sex married couples under federal law for all federal rules relating to employee benefits.  Many employers, after this decision, reviewed their policies and benefit plans and made changes to comply with the federal law requirements.
[2] This decision is of particular importance to Miami-Dade County practitioners, as it originated from a discrimination charge in Miami, Florida.  For a free copy of the EEOC's decision, please visit here.
[3] There are, however, a number of local Florida regulations that prohibit discrimination based on sexual orientation.
[4] See the DOL's Guidance set forth in order to implement changes necessitated by United States v. Windsor, available online here. Prior to Windsor, DOMA explicitly defined a spouse as "a person of the opposite sex who is a husband or a wife." Pub. L. No. 104-199, 110 Stat. 2419, September 21, 1996.
[5] 29 C.F.R. § 825.102 modifying the definition of "spouse" under the FMLA.

Sherril M. Colombo
Kelly M. Peņa
Sherril M. Colombo is a shareholder at Littler Mendelson's Miami office and is a Board Certified Labor & Employment attorney who represents management in employment matters and carriers in disability, life and health insurance cases.    
Kelly M. Peņa is a labor and employment associate in the Miami office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., who represents management in employment discrimination claims, wage and hour claims, and ERISA disability benefits litigation.
Bridging the Gap Between Courthouse and Classroom: Miami-Dade FAWL Partners with Lawyers Join Hands for Students
by: Lara Bueso Bach

After noticing that barely used office supplies typically provided to judges during hearings and trials were being discarded, U.S. District Court for the Southern District of Florida Judge Beth Bloom (at the time, Circuit Court Judge in the Eleventh Judicial Circuit), quickly stepped in and created "Lawyers Join Hands for Students." Research demonstrated that more than 6400 students within Miami-Dade County depended upon the school system's Homeless Assistance Program. 

Recognizing that many students and educators in Miami-Dade County could not afford to purchase these supplies, she sought to bridge the gap between courthouse and classroom.  Lawyers Join Hands for Students places recycle bins on the third floor of the Miami-Dade Dade County Courthouse and in the Miami-Dade County Law Library, and places boxes within each judicial chamber in the Miami-Dade County Courthouse, to encourage judges to donate gently used but unwanted supplies. The supplies are then donated to the Education Fund, Project Upstart, and other entities in need of school supplies. The idea is to ensure that these didactic materials are not simply discarded, but put to good use. After Judge Bloom's appointment to the federal bench, Judge Norma Lindsey volunteered to continue spearheading the program in the civil courthouse.
 
Miami-Dade FAWL is now joining the Miami-Dade Trial Lawyers  Association, Dade County Defense Bar Associations, Dade County Bar Association, and Cuban Bar Association in supporting this initiative. If your firm or organization would like to become involved in donating unwanted supplies (such as binders, notebooks, folders, paper, backpacks, staplers, etc.), hosting a supply drive, or if you are aware of additional entities in need of such supplies, please contact Lara (lara.bach@weil.com) or Keri Joseph (keri.joseph@gmail.com) for more information.
Lunch at Kabobji with Judge Spencer J. Multack
by: Ingrid Benson-Villegas
 
On September 9, 2015, Miami-Dade FAWL coordinated a "Table for 8" lunch with Miami-Dade County Court Judge Spencer J. Multack at Kabobji.

Hon. Spencer Multack
Hon. Spencer Multack
Image Source: Eleventh Judicial Circuit Court, Miami-Dade County, Florida
During lunch, attendees were able to engage in a discussion with Judge Multack. Throughout the lunch, Judge Multack touched on various issues, but one of the most interesting topics was learning about his trajectory to becoming a judge. Judge Multack discussed his beliefs about how becoming a board-certified lawyer heightened his qualifications for a judgeship. Judge Multack also described the importance of being prepared for hearings. He revealed that he is truly impressed when an attorney appearing in his courtroom is well-versed in the law.

The lunch was a success, not only because attendees learned more about Judge Multack, but also because he learned more about our members.
Florida's New "Sexual Cyberharassment" Law is Here
by: Elisa D'Amico

Florida Statutes Section 784.049 Became Effective on October 1, 2015
Governor Rick Scott signed Florida's "Sexual Cyberharassment" bill into law in May of this year, but the law became effective only a few days ago, on October 1, 2015. Florida Statutes Section 784.049 criminalizes the intentional nonconsensual posting of sexually explicit media on a website. The first offense is a first-degree misdemeanor, punishable by up to one year in jail and a $1,000 fine. A subsequent offense is a third-degree felony, punishable by up to five years in prison and a $5,000 fine.
Along with the possible jail-time and criminal monetary penalties, the Sexual Cyberharassment law authorizes victims to bring civil claims against their perpetrators. The law contains a provision for statutory damages ($5,000), as well as for the recovery of attorney fees and costs.
The new law certainly has limitations: the law requires that perpetrators have the "intent of causing substantial emotional distress to the depicted person"; and the law requires that the offending content is posted "to an Internet website," necessarily excluding texted photographs and/or video. But, Florida's Sexual Cyberharassment law is a leap in the right direction toward criminalizing what is colloquially known as "revenge porn" (although the perpetrator often is fueled by something other than revenge).
Proponents of the law expect it to act as an incentive for attorneys to take on more pro bono cases. And hopefully, over time, the law will deter perpetrators from engaging in cyberharassment campaigns to torture their innocent victims.
The Tyler Clementi Institute for Internet Safety has Been Launched
On October 3-4, 2015, New York Law School hosted the First Annual Tyler Clementi Internet Safety Conference where the launch of The Tyler Clementi Institute for Internet Safety was announced. The Institute, a pro bono law school clinic (at NYLS), will provide free counsel to victims of cyberharassment. Along with NYLS Professor Ari Waldman, Carrie Goldberg (C.A. Goldberg, PLLC) will be directing the clinic, with the help of the Cyber Civil Rights Legal Project, the global K&L Gates pro bono legal project.
Elisa D'Amico, co-founder of the Cyber Civil Rights Legal Project and Carrie Goldberg, Board Member of the Cyber Civil Rights Initiative, discuss "The Role of the Attorney" in sexual cyberharassment at the First Annual Tyler Clementi Internet Safety Conference at New York Law School on 3 October 2015.
Sexual Cyberharassment Victims are Not Alone
Victims of online sexual harassment can seek help by speaking to either a victim counselor or lawyer, or by reporting harassment via an online reporting tool. Some of those resources are listed below. In any situation where a victim is in urgent need of help and needs to speak to someone, there is a 24-hour hotline (below), and 911 is always available in case of emergency.
Resources for Victims of Online Harassment 
Cyber Civil Rights Initiative (victim advocates) - cybercivilrights.org
Cyber Civil Rights Legal Project (lawyers) -  cyberrightsproject.com
Google reporting form - here
Microsoft reporting form - here
Facebook reporting info -here
Twitter - reporting revenge porn - here
Instagram - reporting revenge porn - here
CORRECTION CORNER

In the August edition of The Advisor, we announced that Miami-Dade FAWL member Evelyn Sheehan (U.S. Attorney's Office) was selected as a recipient of the Daily Business Review's Women in Law award, which will be presented on October 14th. However, in our excitement, we accidentally published the wrong photograph with our "Membership Spotlight" announcement. Our sincere apologies and congratulations to Evelyn, who is (we promise) pictured below!
Evelyn Sheehan
Elisa D'Amico, Newsletter Editor | Miami-Dade FAWL
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