Litigation

Subpoenas

By Joseph A. Geary, Attorney
Clark, Campbell, Lancaster & Munson, P.A.

Q: My business has been served with a civil subpoena demanding business records. What should I do?

A: When a Florida business, large or small, is served with a subpoena in a civil action demanding records of the business, there are certain “do’s” and “don’ts” that business owners should follow:

  1. DO read the subpoena. Every page. Carefully. What records are demanded? When, where and how are you asked to produced the records? Next week? In another county or state? Physically or electronically? How much time have you been given to respond? A subpoena may seek records that contain, for example: employee information protected by privacy laws (such as HIPAA); financial data, trade secrets or other information you don’t want publicly known; records containing confidentiality agreements you might violate if you produced them. A subpoena might also ask you to produce data that is electronically stored (e-mails, for example) and in a specific file format.
  1. DON’T assume the subpoena has been properly issued or served, or that the lawyer responsible for issuing it has “followed the rules.” All jurisdictions have laws and court rules specifically governing both the issuance and the service of subpoenas, as well as what records can be sought, and where, how, and when you are to produce them. Your business may be entitled to the protections the law affords.
  2. DON’T ignore the subpoena or put off dealing with it. Treat any subpoena seriously. It is lawful process of the court, and can be enforced by that court by finding you in contempt and/or assessing attorney’s fees and court costs, if you wilfully disobey it.
  3. DO obtain legal advice promptly, if you have questions or concerns about the subpoena. In this context, ignorance is never bliss, and knowledge is usually power. A misstep could prove costly. A subpoena could be improper or objectionable for any number of reasons that might excuse or mitigate your obligation to obey it. However, you may not know what is proper or improper or, in the latter case, what you can do about it, if anything. The usual way to address an improper or overreaching subpoena is by a “Motion to Quash”, to be heard by a judge, filed in the court that issued the subpoena.

If your business is served with a subpoena, dealing with it proactively should always be a priority, never an afterthought.

The September 11th edition of “The Law” will address issues regarding estate planning. Questions may be submitted online to thelaw@clarkcampbell-law.com.

Breastfeeding

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: My employee returned from maternity leave and must express milk regularly. What are my obligations when she requests a break and private space?

A: As an initial matter, the Florida Civil Rights Act considers pregnancy discrimination as sex discrimination. You cannot treat employees adversely because of pregnancy or the fact that they have children. A state public health statute recognizes breastfeeding as an “important and basic act of nature which must be encouraged”, and therefore mothers can breastfeed wherever they are otherwise permitted to be, regardless of whether breasts are covered.

Last month, the United States Equal Employment Opportunity Commission (EEOC) issued guidelines stating, among other things, that lactation is a pregnancy-related medical condition and that breastfeeding employees must have the same freedom to address lactation needs as coworkers would have to address “limiting medical conditions”. Accommodations need to be made. But to what extent?

The Patient Protection and Affordable Care Act (ACA) included an amendment requiring employers to provide both reasonable break time and a “shielded” location to express milk during the child’s first year. The employer does not need dedicated space, but the employer must make a suitable, private space other than a bathroom available upon request. The extra break time need not be compensated, provided that the employee is completely relieved of duty.

The protections of the amendment extend only to employers covered by the federal Fair Labor Standards Act (FLSA)—and whether your business meets that requirement could be the subject of a much longer article—but employers with fewer than fifty employees may be able to avoid the break time requirement if they can demonstrate that compliance would impose an undue hardship when looking at the difficulty or expense of compliance in comparison to the size, financial resources, nature, or structure of the business.

Earlier this year, the American Civil Liberties Union brought its first case under the ACA’s breastfeeding provision: a mother was forced to choose between lactation in a bathroom or a dirty locker room alongside dead bugs. It remains to be seen how courts will respond to increasing breastfeeding discrimination litigation, but it appears enforcement will primarily be by the EEOC as individual employees have difficulty bringing lawsuits for damages under the FLSA absent lost wages.

The August 28th edition of “The Law” will address responding to document subpoenas.

Questions may be submitted to thelaw@clarkcampbell-law.com.