Employers and Florida’s New Medical Marijuana Law

On June 23, 2017, Florida Governor Rick Scott signed into law a bill implementing the state’s medical marijuana constitutional amendment. You can view the full law here. The new law provides some clarity for employers. The statute provides, in relevant part:

This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.

Although this law fails to specifically state that an employer is not required to provide any type of accommodation to employees relating to the use of medical marijuana, it does directly address several employment related questions that have made employers a little uneasy ever since voters made medical marijuana part of the Florida constitution in 2016.

Jimmy John’s Takes on Disloyal Employees and the NLRB and Wins

Doling out a refreshing victory, the U.S. Court of Appeals for the Eighth Circuit sided with Jimmy John’s in a protected, concerted activity case brought under the National Labor Relations Act (“NLRA”). On July 3, the full en banc court reversed an earlier decision of a three-member panel of the court that had affirmed a National Labor Relations Board (“NLRB”) ruling for the employees. Unless appealed to the Supreme Court, this decision brings to an end a torturous legal saga lasting over six years.

This case was set in motion in October 2010 when an Industrial Workers of the World (IWW)-affiliated union lost a union election to represent Jimmy John’s employees at ten franchised stores in the Minneapolis-St. Paul area, owned and operated by MikLin Enterprises. After the unsuccessful election, several union supporters continued to pressure the franchisee’s management to adopt workplace policy changes, including the adoption of paid sick leave. The disgruntled sandwich-makers claimed that current attendance policies forced them to work while sick.

The dispute escalated when six of these employees placed posters in and around the restaurants, calling attention to their claims. The posters featured two identical side-by-side pictures of a Jimmy John’s sandwich. One was labeled as being made by a “sick” employee and the other by a “healthy” employee. The caption below the picture read “Can’t tell the difference?” and was accompanied by a message criticizing the employer’s attendance policies. The employer terminated the six employees responsible for these posters.

The employees challenged their terminations claiming that the employer’s actions were in retaliation for concerted protected activity under the NLRA. Both the NLRB and the three-member panel of the Eighth Circuit agreed. However, the full panel of the Eighth Circuit ruled that the terminations were lawful. Specifically, it found that the claims about food safety were false and misleading and therefore, sufficiently “disloyal” to place the actions of the six employees outside of the protections of the NLRA.

The decision is heartening for employers, as many recent NLRB decisions have been overly protective of worker actions that were calculated to harm a company’s reputation.

John M. Hament
jhament@williamsparker.com
(941) 552-2555

The United States against the United States? A Government Flip-Flop That May Help Employers

On June 16, 2017, the U.S. Department of Justice did an about-face when it filed an amicus brief with the Supreme Court of the United States in an important labor arbitration case, NLRB v. Murphy Oil USA. The Murphy case presents the question of whether arbitration agreements can restrict employees from participating in class or collective actions. The brief filed by the Department of Justice argues that employers can impose such restrictions. See the full brief here.

Arbitration agreements have traditionally required employees to submit their claims to arbitration rather than through the court system. The trend over the last several years is for employers to include class action or collective proceeding waivers in such agreements. Such provisions are believed to reduce litigation costs associated with class and collective actions (which are on the rise). In response to this trend, the NLRB ruled that such waivers violate the NLRA when they are a condition of employment.

Several of the NLRB’s cases regarding such arbitration agreements have been appealed to the circuit courts, resulting in contradictory decisions on this issue. The Second, Fifth, and Eighth Circuits held that such arbitration agreements are enforceable, with the Seventh Circuit finding that these agreements violate the NLRA. There are similar challenges to agreements being made in other circuits, including the Eleventh Circuit. Based on the split of authority on this issue, the Supreme Court accepted review of the case argued before the Fifth Circuit Court of Appeals.

When the NLRB submitted its petition for writ of certiorari in Murphy, the Department of Justice supported the NLRB and its argument that the ability for an employee to engage in concerted activities is the “core substantive right” of the NLRA, and prohibiting class and collective actions infringe on that right. However, in its new brief, the Department of Justice argues that the NLRB failed to give adequate weight to the congressional policy of favoring arbitration agreements. This change of heart by the Department of Justice creates the potential for an unusual situation. Typically, when the Solicitor General’s office files an amicus brief, a lawyer for the government will present oral argument before the court on that side of the case. Given that the NLRB sits on the other side of the case, the upcoming oral arguments may consist of a lawyer for the United States arguing against a lawyer for a U.S. agency: the United States arguing against the United States.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

2016 Overtime Regulations: They Are Still Out There

Like a science fiction television show from the 90s, the 2016 overtime regulations are still out there, as is the injunction preventing their implementation. To bring those that may just be returning from Close Encounters of the Third Kind up to date, in the latter part of 2016 employers rushed to get ready for December 1, 2016, the effective date for the regulations. On November 22, 2016, just days before the effective date and as employers scrambled to make their final preparations for the changes, a federal judge blocked the implementation. With the speed of Quicksilver, the Obama administration initiated an appeal. The Fifth Circuit Court of Appeals granted expedited review of the injunction, and many anticipated witnessing The War of the Worlds play out during oral argument. Then, as if a spacecraft had landed in Roswell and this time everyone stopped to watch the aliens disembark, the momentum came to a crashing halt just like a hirsute alien spacecraft piloted by Jeff Goldblum.

Shortly after President Trump took office, the U.S. Department of Labor (“DOL”) requested a postponement of its deadline to submit a reply brief. This request was granted. Just as that deadline was filed, the DOL again requested a postponement. Currently, the DOL’s reply brief is due on June 30, 2017. Although the new Administration could have withdrawn the appeal, it has not. Therefore, there still may be a chance for a strategic showdown such as that seen in Pixels.

Wage Theft Ordinances: Dandelions in the Spring

“Wage theft” ordinances have been popping up in Florida like dandelions in the spring. At first glance, these ordinances look like a lovely spring flower providing employees an administrative and/or legal avenue to recover unlawfully withheld wages. However, these ordinances are really weeds causing headaches not only to employers, but also to employees who are not prepared to navigate the unique procedures for making such claims. A growing list of municipalities, including Miami-Dade County, Broward County, City of St. Petersburg, Pinellas County, and Hillsborough County, have all implemented some variety of a wage theft ordinance, and there is a lack of uniformity among procedures and rules for bringing claims pursuant to these ordinances. Companies operating in one or more of these areas should be aware of the additional regulations that may apply to their businesses, some of which call for triple damages and attorneys’ fees. This task can be quite daunting for any company that operates statewide or in two or more of the participating municipalities. Now, in addition to defending wage claims under the Fair Labor Standards Act, Florida Minimum Wage Act, Florida Statute Section 448.08, and common law unjust enrichment claims, companies will also be defending claims brought pursuant to these ordinances and sometimes will be defending such claims in two different forums, possibly at the same time.

Knowledge of these ordinances can serve as legal Roundup to help employers defeat attempts by employees to obtain damages. This is best evidenced by Green v. Stericyle, Inc., No. 1:16-CV-24206-CMA (S.D. Fla. Dec. 15, 2016), a case in which an employee brought a wage theft claim that was dismissed by the court because the employee failed to comply with the prescribed procedure. The ordinance did not grant an initial private right of action, but rather provided an exclusive administrative procedure to bring the claim to the county. The employee failed to follow the administrative procedure, thereby compelling the court to dismiss the case. As this case illustrates, although emergence of wage theft ordinances causes problems for employers, the onus remains with the employee to navigate a municipal code to bring a proper claim. Failure to do so could be fatal to the claim.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Offensive Facebook Posts May Be Protected Speech

Human resources experts often recommend a detailed analysis before disciplining an employee for offensive statements. On April 21, 2017, the Second Circuit Court of Appeals highlighted this requirement and forced an employer to reinstate an employee who had been fired for posting highly offensive comments about his supervisor. Although this case, National Labor Relations Board v. Pier Sixty LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. April 21, 2017), involved a union organizing campaign, such a dispute can arise outside the union context. It can arise in a breakroom conversation, a media interview, a picket sign, or a social media post. If the content involves protected speech, such as criticism of the terms and conditions of the employee’s employment, and especially if the speech purports to speak on behalf of or for the benefit of others, the speech may be protected, whether or not there is a union involved.

In Pier Sixty, the employee posted on Facebook that his supervisor is a “NASTY MOTHER F—ER” and “F—his mother and his entire f—ing family!!!”  The post criticized his supervisor’s communications style, saying, “…don’t know how to talk to people!!!!”  The post also included a pro-union statement, “Vote YES for the UNION!!!!!!”

The court weighed the protections (here, concerted activity) versus how abusive or “opprobrious” the comments were. The court reviewed the context of the statements, including that the employer was found to have permitted past vulgarity and to have engaged in other efforts to impede unionizing efforts. Commenting that these posts fall on the “outer bounds” of protected activity, the court declared the posts to be within the bounds of protected concerted activity and required the employer to bring the discharged employee back to work.

Employers should ensure that workplace rules are consistently enforced and that the reason for discharge does not involve and does not appear to involve a protected reason. Employers should be prepared to articulate and, if required, prove the lawful reason for discharge rather than relying on at-will status.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628

Another Day, Another March: Did This One Impact Your Workforce?

Yesterday was International Workers’ Day and, around the world, there were marches planned to bring attention to both the accomplishments achieved through the efforts of workers and to the hardships experienced by workers (who are we kidding – these marches are mostly about the latter of these objectives). Although the marches were intended to focus generally on workers’ rights, not all of the scheduled marches were intended to bring attention to the same subset of workers. Some participants marched to support immigrant workers and others to support women workers. More than a few participants in the United States joined the march to protest the policies of the current Administration.

The level of any workforce’s participation in the march for International Workers’ Day directly determines the impact of the event on you as the employer. Clearly, if no one participates then you have no cause for concern, as no one is missing work, no one is violating work rules, and tasks are being completed. However, if your employees did participate, and did so without properly requesting time off, then you have to decide how to respond. If you did not catch either of my blog posts here and here regarding “A Day Without a Woman,” then let this post serve as a refresher on what actions, if any, you can take if one or more of your employees missed work to participate in an International Workers’ Day march.

If the employee was not authorized to participate, his refusing to work when scheduled in order to march constitutes a strike. However, even though considered a strike, your employee may be protected if his activity yesterday was considered protected concerted activity under the National Labor Relations Act, i.e., if there was a sufficient nexus between employment-related concerns and the specific issues that were the subject of the march.

When the motivation for political activity is a national political issue that you as the employer have no control over, such activity will not be protected. In such cases, you may choose to discipline an employee for violating your well-established and neutrally applied policies (you have them right?). On the other hand, when your employees withhold services as an economic tool in their employment relationship with you, such activity is protected. If workers are taking action to alter the terms and conditions of their employment and you as their employer have the power to make the changes being sought, such activity will most likely be protected by the National Labor Relations Act, and any action taken against the employee could subject you to liability.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Beyond the Hemline: Using Fashion to Recognize Employment Law Issues in the Workplace

There is a well-known saying that a person’s eyes are the keys to the soul. In the employment context, fashion choices are often keys to employee issues that not only impact employee performance and productivity, but also (should) alert employers to issues that, if not properly handled, will lead to legal liability. It may sound odd, but fashion in the workplace often provides insight into issues that implicate important employment laws, and employers should know what to look for.

When I say fashion in the workplace, I am not talking about the fashionista boss with unreasonable expectations from the 2006 movie The Devil Wears Prada (although that character has some amazing clothes), I am talking more along the line of Peter Gibbons from Office Space (1999). Peter stops coming into work on time, and when he does come in, he is dressed in casual clothing and even wears flip flops. Seriously folks, no one at Initech wondered what was up with Peter? No one investigated? I love the film, but in my Board Certified Labor and Employment attorney opinion, that is really a major plot flaw.

Consider how fashion and employment law are tied in the following scenarios:

  1. On his fifth anniversary with the company, Bob comes to work in a dress and asks to be called Barbara.
  2. Sue shows up to your conservative workplace on a Monday covered in tattoos.
  3.  Joe shows up to work wearing clothing with politically charged statements.
  4. You have an employee whose religious garb violates your company’s dress code policy.
  5. A pregnant employee comes to work with a photo of a pot plant on her shirt.
  6. Jane, who usually comes to work really put together, comes into work several days in a row wearing over-sized clothing and heavy makeup.
  7. You have an employee that appears to be wearing the same three outfits over and over.

Do you know how to properly handle these situations? Are you aware of what laws may be implicated by each? If you are interested in learning more, on Saturday, May 6, 2017, join me and another Sarasota-area employment lawyer at the Holiday Inn Lido Beach from 9:00 a.m. to 12:00 p.m., where participants will be part of an interactive presentation, including a fashion show presented contemporaneously with each scenario, that addresses the above situations (and others) and, in doing so, will review the basics of several labor and employment law issues, including but not limited to:

  • Religious Accommodation
  • Florida Domestic Violence Leave
  • Family Medical Leave Act
  • Americans with Disabilities Act
  • The Transgender Workforce
  • Gender Bias
  • Medical Marijuana
  • Employment Policies
  • Political Discourse in the Workplace

Although this presentation has been arranged by the Florida Association of Legal Support Specialists, it is open to anyone interested in attending. It has been approved for three General CLER credits. In addition, both HRCI and SHRM have confirmed with the Association that non-pre-approved attendees can obtain certification credits by directly requesting credits from the organizations using the information provided on the Attendance/CLE Certificate provided the day of the event.

Please visit falss.org for more information and to register.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Guidance for Employers from the Dark Side?

A long time ago in what seems like a galaxy far away, Congress passed the National Labor Relations Act. Since then, Congress has continued to pass laws governing the employee/employer relationship. In 1938, it passed the Fair Labor Standards Act; in 1964, it passed the Civil Rights Act; and in 1993, it passed the Family and Medical Leave Act. These acts and many others can make businesses feel like they have been thrown into a trash compacter or frozen in carbonate. Management attorneys, a.k.a the light side of the force, provide guidance and counsel to businesses and assist in navigating these laws which seem to appear and/or change as if powered by a hyper drive. On Thursday, April 27, from 8:00 a.m. to 12:00 p.m. at Michael’s on East in Sarasota, businesses will have an opportunity to learn about recent developments and current trends related to wage and hour compliance, employee criminal conduct, and sexual orientation and gender identity not only from their Jedi, but also from a Sith, a.k.a. a plaintiff’s employment attorney. It is not often that businesses have an opportunity to learn from both sides of the Force.

This seminar will provide guidance in important areas of employment law to assist professional service providers in their role as employers. The workshop will include best practices from legal compliance and human resources perspectives, and will conclude with a Sith providing insight into employers’ mistakes that strengthen the dark side. This seminar is intended to be an interactive presentation with the aim of providing solutions to troublesome employment issues confronting law firms and other professional service providers. To learn more about this event and to register, visit the Sarasota County Bar Association website.

Disclaimer: This seminar does not have a Star Wars theme; I just watched The Force Awakens on HBO this weekend.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Setting the Stage for Supreme Court Review of Whether Title VII Prohibits Sexual Orientation Discrimination

Three circuit courts of appeal have issued opinions on whether Title VII prohibits sexual orientation discrimination. The Second Circuit (New York, Connecticut, and Vermont) and Eleventh Circuit (Alabama, Georgia, and Florida), relying on past precedent, have held that Title VII does not prevent discrimination based on sexual orientation. However, on April 4, 2017, the Seventh Circuit (Indiana, Illinois, and Wisconsin) issued a conflicting opinion, becoming the first circuit to hold that sexual orientation discrimination is indeed prohibited. Now, with the circuits split on this issue, the stage is set for the U.S. Supreme Court to be asked to resolve this conflict. However, recent reports opine that the employer in the Seventh Circuit case will not appeal the decision to the Supreme Court. If the employer does not appeal, another case will have to make its way through the lower courts before the divergence of opinion can take center stage at the Supreme Court.

Until the battle is fought before the Supreme Court, Florida employers should keep in mind that while Florida falls under the jurisdiction of the Eleventh Circuit Court of Appeals, and thus, arguably sexual orientation discrimination is not currently prohibited by Title VII, many municipalities, including the City of Sarasota and City of Miami, have local ordinances that prohibit such discrimination. Further, the Equal Employment Opportunity Commission, the agency charged with enforcing Title VII, takes the position that discrimination on the basis of sexual orientation constitutes sex discrimination and is therefore prohibited.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558