Author Archives: Gail Farb

Gail Farb

About Gail Farb

Gail has extensive experience in the area of labor and employment law. She advises management clients regarding preventive measures in employment matters, including federal and state discrimination, harassment, retaliation, wage and hour, FMLA, NLRA, restrictive covenants, and whistleblower laws. She also defends single-plaintiff cases and collective actions in administrative, state, and federal court proceedings. Gail can be contacted at gfarb@williamsparker.com or (941) 552-2557.

Florida’s Road to Recovery Begins

Late yesterday, on April 29, 2020, Florida’s Governor issued his Phase 1: Safe. Smart. Step-by-Step Plan for Florida’s Recovery in Executive Order 20-112 and clarifying FAQs, which will be effective 12:01 a.m. on May 4, 2020, until a new order is issued. Continue reading

Governor Clarifies Florida Safer-at-Home Order

Late on Friday, Florida’s Governor issued clarifications through a List of FAQs regarding the Safer-at-Home Executive Order 20-91, which became effective at 12:01 a.m. April 3, 2020, as noted in our recent blog post and is currently scheduled to expire on April 30, 2020.

The FAQs explained that notwithstanding that persons in Florida who are senior citizens or individuals with a significant underlying medical condition are ordered to “stay at home and take all measures to limit the risk of exposure to COVID-19,” they may leave their homes as necessary to obtain or provide essential services or conduct essential activities, including but not limited to going to work at an essential service.

The Division of Emergency Management has posted and will maintain the Governor’s Executive Order 20-91 Essential Services List online. The FAQs remind businesses that if they are not an essential service, they must close their physical location to customers. However, non-essential businesses and their employees may continue their businesses by working from home, operating remotely, taking orders by telephone or online, and providing delivery or pick up.  Businesses that are essential services do not need any permit or documentation to remain open to customers pursuant to the Safer-at-Home Order. Likewise, individuals do not need a permit or documentation to leave their homes to go to an essential service or activity, although businesses may wish to provide a letter to employees to clarify that their business is indeed an essential service.

The FAQs also indicate that local law enforcement may enforce the Safer-at-Home Order and violation of the Order is a second-degree misdemeanor.

In compliance with the Safer-at-Home Order, Williams Parker remains dedicated to serving its clients and continues to advise and represent clients with respect to their legal matters. Our firm has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

Governor Issues Florida Safer-at-Home Order

 

An update to this post was published April 6.

Yesterday afternoon, on April 1, 2020, to continue efforts to slow the spread of COVID-19 and to make people in Florida safer, Florida’s Governor issued a Safer-at-Home Order (Executive Order 20-91).

First, the Safer-at-Home Order mandates that senior citizens and individuals with a significant underlying medical condition (such as chronic lung disease, moderate-to-severe asthma, serious heart conditions, immunocompromised status, cancer, diabetes, severe obesity, renal failure and liver disease) stay at home and take all measures to limit the risk of exposure to COVID-19.

Next, the Safer-at-Home Order requires that all persons in Florida limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.

I. Essential Services

For purposes of the Order, “Essential Services” means:

  • those services listed in the U.S. Department of Homeland Security’s Guidance on the Essential Critical Infrastructure Workforce, v. 2 (March 28, 2020) (“DHS Guidance”) and any subsequent lists published; and
  • those businesses and activities designated by the Governor’s earlier Executive Order 20-89 and its attachment which consists of a list propounded by Miami-Dade County in multiple orders (“Miami-Dade Orders”).

The “Essential Services” definition may be amended to add other services and will be maintained online at the Division of Emergency Management and the Florida Department of Health.

Note that the Safer-at-Home Order also specifically encourages individuals to work from home and for all businesses or organizations to provide delivery, carry-out, or curbside service outside of the business or organization, of orders placed online or via telephone, to the greatest extent practicable.

DHS Guidance

The DHS Guidance breaks down essential workers into the following industries:

  • Healthcare/Public Health
  • Law Enforcement, Public Safety, and other First Responders
  • Food and Agriculture
  • Energy
  • Water and Wastewater
  • Transportation and Logistics
  • Public Works and Infrastructure Support Services
  • Communications and Information Technology
  • Other Community- or Government-Based Operations and Essential Functions
  • Critical Manufacturing
  • Hazardous Materials
  • Financial Services
  • Chemical
  • Defense Industrial Base
  • Commercial Facilities
  • Residential/Shelter Facilities and Services
  • Hygiene Products and Services

Included in the DHS Guidance’s extensive list of essential services are restaurant carry-out and quick serve food operations; residential and commercial real estate services, including settlement services; banks; assisted living facilities and nursing homes; property management; certain contractors and builders, those responsible for the leasing of residential properties; staff at government offices who perform title search, notary, and recording services in support of mortgage and real estate services and transactions; educators supporting public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning or performing other essential functions; and many others.

Miami-Dade County Orders

The Governor’s Executive Order 20-89, issued on March 30, 2020, designated essential services pursuant to the guidelines established by several Miami-Dade County Emergency Orders.

Such list of essential services includes, but is not limited to, grocery and pet supply stores; car dealerships and auto-repair; businesses supplying office products needed for people to work from home; taxis and other private transportation providers; child care; home based care; senior living facilities; open construction sites (irrespective of the type of building); and hotels, motels, and other commercial lodging establishments; factories and manufacturing facilities; office space and administrative support necessary to perform listed essential services; and any business that is interacting with customers solely through electronic or telephonic means and delivering products via mailing, shipping, or delivery services.

We encourage you to review the complete list of essential services identified in the DHS Guidance and Miami-Dade County Orders as they are exhaustive and cumulative.

II. Essential Activities

Essential Activities” are currently defined as the following, although this list may be amended:

  • Attending religious services conducted in churches, synagogues and houses of worship.
  • Participating in recreational activities (consistent with social distancing guidelines) such as walking, biking, hiking, fishing, hunting, running, or swimming.
  • Taking care of pets.
  • Caring for or otherwise assisting a loved one or friend.

However, the Safer-at-Home Order clarified that a social gathering in a public space is not an essential activity, and that groups of people greater than ten are not permitted to congregate in any public space.

The Safer-at-Home Order will be effective from 12:01 am on April 3, 2020, through April 30, 2020, unless extended by subsequent order.

Not affected by the Safer-at-Home Order, Williams Parker remains dedicated to serving its clients and continues to advise and represent clients with respect to their legal matters. Our firm has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.

Special thanks to attorney Nicole F. Christie for her assistance with this blog post.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

New Overtime Rules for Employers to Adopt Before the New Year

Employers, the long wait is over. You finally have an answer regarding whether the federal overtime regulations are going to be changed. As discussed in previous blog posts Let’s Try this Again: Department of Labor Proposes Salary Increases for White-Collar Exemptions and Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees, in March 2019, the U.S. Department of Labor abandoned its 2016 attempt to increase the salary threshold for exempt employees when it issued a much-anticipated proposed rule. On September 24, 2019, the DOL formally rescinded the 2016 rule and issued its new final overtime rule.

The new rule, taking effect on January 1, 2020, increases the earnings thresholds necessary to exempt executive, administrative, professional, and highly compensated employees from the Fair Labor Standard Act’s overtime pay requirements from the levels that had been set in 2004.  Specifically, the new final rule:

  • Increases the “standard salary level” from $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • Raises the total annual compensation level for “highly compensated employees” from $100,000 to $107,432 per year; and
  • Revises the special salary levels for workers in U.S. territories and in the motion picture industry.

And, for the first time, the final rule allows employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level for executive, administrative, and professional employees (not highly compensated employees).

Employers take note, however, that the new final rule does not change the duties portions of the otherwise affected exemptions. For more information about the new final rule, you can go to the Department of Labor website.

As New Year’s Day will be here before we know it, this is a good time for employers to audit their pay practices to make sure that employees are properly classified, update timekeeping and payroll systems, and train reclassified employees on new processes before the new rule takes effect.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

This post originally appeared on The Williams Parker Labor & Employment Blog.

Independent Contractor or Employee? That is the Question!

A person can provide services to a company as an employee or an independent contractor depending upon the nature of the relationship between the service provider and the company. Misclassification of employees as independent contractors remains a primary focus of many government agencies, including the IRS, U.S. Department of Labor, Florida Department of Economic Opportunity Reemployment Assistance Programs, and Florida’s Division of Workers’ Compensation.  Investigations by these agencies can be extremely costly, time-consuming, and even lead to personal liability and criminal penalties!

The presentation in the following link explains the detailed federal and Florida tests that are used by these four agencies to properly classify service providers.  It also provides practical examples in which the tests can be applied.  Additionally, the presentation includes guidance to help mitigate the potential for employer liability regarding other wage and hour complexities and pitfalls.

Independent Contractor or Employee? That is the Question!

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557