Jury duty auto enrollment is the process to auto enroll all non-essential state and federal employees in the Voluntary Employee Benefits Association (VEBA) and its Health Plan. Employees have seven days to opt out of the VEBA program. Auto enrollment, with no employer permission and choice, has been approved by the United States Court of Appeals for the Eleventh Circuit. The Court declared that the law requiring consent and a choice on the part of the employee was preempted by the federal Employee Retirement Income Security Act (ERISA), which allows automatic enrollment. The Eleventh Circuit found that no consent or choice were required under federal or Florida law because there is no ERISA plan and the federal government, like any private employer, can require employees to participate in a retirement plan. In other words, it would be illegal for a private employer to require an employee to sign up for a retirement plan without consent. So it is illegal to require consent or choice for a non-ERISA plan such as the VEBA that is not an ERISA plan. The Eleventh Circuit agreed with the district court’s rejection of arguments that a state law requiring the plan sponsor to obtain consent and choice for the enrollment would not have the impermissible effect of interposing the state between an employee and an ERISA plan. The district court stated that in order for an employer’s right to collect payments to be vested, the employer must be the plan’s administrator, the plan sponsor has to have the exclusive authority to control the operation and administration of the plan, and the plan sponsor has to control the allocation of assets. A state law also has to permit employees to get the benefits that ERISA provides and that the state law requires. In this case, the VEBA plan is maintained by a separate private entity that is not owned or administered by the State of Florida, the employer, or a governmental agency. Also, the plan does not constitute the assets of a governmental agency and is not maintained solely by governmental employees for their benefit. The case was heard by the Eleventh Circuit on July 30, 2016, and is a victory for the United States. The United States will send a copy of the Court’s opinion to the U.S. Department of Labor (DOL), which is currently considering whether to approve or disapprove auto enrollment. DOL is aware that federal and state governments use auto enrollment to offer benefits. Since the plan is not an ERISA plan, the employer does not have to secure an election from employees to enroll. The Court of Appeals for the Eleventh Circuit has upheld a final judgment in favor of a U.S. Army serviceman in a racial discrimination case. The serviceman brought an action against his employer, claiming that he was discharged in violation of Title VII of the Civil Rights Act. The district court held that the United States was entitled to immunity from the suit because the service member’s claims were barred by the Feres doctrine, which provides that no serviceman has a right to bring an action against the United States for service-related injuries. The Eleventh Circuit found that the suit was barred by the Feres doctrine, which protects the United States from suits for damages arising out of injury to military personnel in the course of military service. The case involved a claim of racial discrimination by a military police officer. The military police officer claimed he had been harassed by two co-workers at his previous post before he transferred to another location and that he was transferred after he made complaints. The trial court dismissed the racial discrimination claim after finding that the military police officer was transferred in order to bring the military police officer into the army’s mainstream force. The Eleventh Circuit found that the military police officer’s transfer to a non-combat military unit was “incident to his military service.” The court’s analysis focused on the nature of the employment relationship between a serviceman and the federal government. Relying on a case from the U.S. Supreme Court that held that “the Feres doctrine encompasses claims that federal employees were unlawfully discharged in violation of the First Amendment,” the Eleventh Circuit held that the Feres doctrine barred the serviceman’s claim. The serviceman was deployed with a combat unit that served a combat role and was required to be in a high state of readiness and readiness on any given day. As a non-combatant, the serviceman was required to be vigilant, alert, and fully capable of coping with the rigors of combat. As for the claim for discrimination, the Eleventh Circuit recognized that the serviceman complained that there was a high probability that he would be transferred for his performance. The Court of Appeals for the Eleventh Circuit has upheld a lower court’s ruling that the employer must pay back wages to an employee in a whistleblower suit and that the employer was not entitled to offset the backpay with the employee’s gross income. The Ninth Circuit held that the employer, a Florida-based company that operates a chain of retail stores, had retaliated against the whistleblower for complaining about the violations of overtime laws and about the company’s unfair method of determining overtime. The Court of Appeals for the Ninth Circuit ruled that the lower court did not err in its calculation of the back pay. In calculating the back pay award, the district court assumed that the employee could have accepted a job paying $7 per hour, which was less than what he was earning at the time of his termination. The lower court determined that the employee could have made the same overtime salary that he was making when he left the employer’s employment. In addition, the lower court included a reduction of 1.5 hours per week for every week during which the employee did not work, which was standard for the employee’s age, as well as payments to the employee for accrued vacation time, sick leave, paid holiday leave, and paid personal leave. The Ninth Circuit also held that the lower court was not required to offset the award with the employee’s income from another job or to offset the award with the employee’s income from the employer. The lower court awarded damages to the employee for lost earnings, but found that the loss was not so great as to prevent the employee from obtaining other work. Therefore, the Court of Appeals said that the lower court’s decision not to offset the award against the employee’s other income was not an abuse of discretion. The case was originally filed in the federal district court in Florida. The U.S. District Court for the Southern District of Florida then transferred the case to the U.S. District Court for the Southern District of California. After the complaint was amended, the Ninth Circuit affirmed the district court’s decision finding that the employee had suffered an adverse employment action, such as a termination. The employee had filed the lawsuit in 2009 after he was terminated for reporting safety violations at his work site. The lawsuit alleged that the employee was fired in retaliation for reporting safety violations and the lack of procedures to ensure the safe operation of the employer’s machinery. The lower court concluded that the company’s violation of the federal overtime requirements was sufficiently serious and that it was a motivating factor in the termination. The court found that the lower court also had substantial evidence to support its finding that the employee would not have been fired but for his reporting of the violations. The Court of Appeals agreed that these findings were supported by the record. A recent case illustrates the difficulty of maintaining a viable claim against a company for damages related to overtime violations. The plaintiff worked for a company that rented and provided space to a series of video poker players. One employee at the plaintiff’s workplace claimed that the workplace violated the Fair Labor Standards Act (FLSA). The complaint alleged that the plaintiff was not compensated properly for overtime work. A federal district court found that the employee could not recover for alleged overtime violations because she was paid the required overtime. The plaintiff alleged that she was employed by the defendant from 2004 to 2011. She asserted that, during this time, she had a series of different job titles but that she had been an employee at all times. The plaintiff claimed that she worked overtime on many occasions, but that she was not compensated properly for these hours worked. The plaintiff worked between 10 and 25 hours per week and averaged between $15 and $20 per hour. The plaintiff claimed that she was paid an hourly wage only when she worked, for example, when she was working in the cash register. The plaintiff said that, at other times, she had not been paid for her hours. The plaintiff alleged that she had been paid improperly, but she did not claim that the defendant was required to pay overtime. The District Court for the Southern District of Florida found that, in order to be able to recover under the FLSA, the employee had to show that she was owed overtime. Under the FLSA, an employee is entitled to overtime for a 40-hour work week, but the court found that there was a question of fact whether the plaintiff worked a 40-hour work week. The employee claimed that, on any given week, she worked more than 40 hours. However, her hourly work records did not record the number of hours worked. The employee also claimed that she had worked at other times for hours that were not reflected in the written record of hours worked. However, the employee did not provide any admissible evidence to show that she had worked hours that were not reflected in her written record of hours worked. In addition, she said that she could not remember how many hours she worked in total or how many hours were worked in excess of 40 hours per week.