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

A Successful Challenge to Local Minimum Wage Ordinances in Florida

With efforts to raise both the federal and state minimum wage meeting lackluster success, advocates of raising the minimum wage have been focusing on effecting change at the local level. In Florida, such efforts have led to ordinances raising the minimum wage in municipalities such as the City of Miami and the City of West Palm Beach. However, on March 27, 2017, a court struck down the City of Miami’s Living Wage Ordinance, finding that it is prohibited by Florida Statute § 218.077, which proscribes a municipality from establishing a minimum wage separate from the state or federal minimum wage. In reaching its decision, the court rejected the City of Miami’s argument that Article X, § 24(f), of the Florida Constitution provides explicit authority for municipalities to enact their own wage ordinances. The City still has time to appeal the decision to Florida’s Fourth District Court of Appeal.

The decision will lend support to challenges to other wage ordinances in the state. In addition, this decision may cull current efforts in other municipalities to increase minimum wages.

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

How Well Do You Know Intermittent FMLA Leave?

A recent Family and Medical Leave Act case decided by the 11th Circuit Court of Appeals offers some clarity on one of the most challenging aspects of administering FMLA, the dreaded intermittent leave. Intermittent leave is when an employee takes leave on an intermittent basis or a reduced schedule when medically necessary to care for a seriously ill family member, covered service member, or because of the employee’s own serious health condition.

The 11th Circuit’s recent case involved an employer that provides in-home healthcare services to the terminally ill and an employee that worked as a clinical social worker with many duties relating to care plans for the employer’s terminally ill patients. The employee requested intermittent leave to care for her elderly mother who was quite ill. The employer approved her leave request.

The employer’s leave policies required employees use PTO concurrently with an approved medical leave. In the six months following her initial request for leave, the employee frequently received notices from her employer keeping her advised of her PTO usage and letting her know when her PTO balance was low. It also reminded her that exhaustion of PTO, along with absences, could adversely impact her job and benefits.

Ten months after her initial request for leave, the employer requested not only an updated certification, but also additional documentation “to support the need of intermittent use of FMLA.” Shortly thereafter, the employer advised the employee that her leave entitlement was running low, that she may want to conserve her remaining FMLA leave, and that her continued time away from the workplace compromised the quality of care being provided to patients. Shortly thereafter, the employee altered the plans she had made to care for her mother, choosing not to take an approved leave.

Eleven months after she began using intermittent leave the employee was separated from her employment. She was informed that she was separated for poor performance. Her performance issues were documented by the employer. These issues included care plans not being timely updated, a patient without a care plan, time sheets for patient visits not being timely completed, and failure to coordinate the bereavement group. However, just days before her separation, the employer mentioned in a discussion regarding her performance issues, that “’quality of care’ [was] suffering due to repeated ‘emergent’ leaves of absence.”

How did the court evaluate these facts when the employee asserted an interference claim? Did it find that the employer’s record of performance issues supported the decision to terminate? Did it find that the employer interfered with the employee’s use of her FMLA entitlement? Need some help? Well, here are some FMLA facts that may assist in analyzing this fact pattern:

  • The regulations provide that when an employee takes unforeseeable FMLA leave, the employee must notify the employer as soon as practicable in compliance with the employer’s usual and customary notice and procedural requirements for requesting leave.
  • The regulations interpreting the FMLA provide that, aside from an annual re-certification, an employer is prohibited from obtaining additional documentation from the healthcare provider once a complete and sufficient medical certification has been obtained.
  • If there is an existing certification, an employee’s notice to the employer that there is a recurrence of the need for leave, is sufficient notice to the employer.
  • When an employee’s FMLA leave entitlement is exhausted, any further absences are not subject to the protections of the FMLA.
  • An interference claim is established when an employee shows that she was denied a benefit to which she was entitled. Benefits under the FMLA include taking leave and being reinstated following a leave period (subject to certain restrictions).
  • Unlike retaliation claims, intent is not relevant to an interference claim. Interfering in an employee’s ability to take leave encompasses not only refusing to authorize such leave when an employee is qualified, but also discouraging an employee from using such leave.
  • To recover for interference, an employee must show that she was harmed by the interference.

Although the district court granted summary judgment for the employer on the employee’s interference claim, the 11th Circuit Court reversed. The 11th Circuit found that many of the employer’s statements, such as, “[y]our continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization,” discouraged the employee from using the time she was entitled to. Further, since the employee was terminated, she suffered damage.

So, you ask, how does this case provide clarity? For one, it affirms that generally employers should not be requesting additional documentation from an employee already on an approved intermittent leave. Second, employers should avoid making statements that may be interpreted as discouraging the use of leave. Next, when discussing performance issues with an employee on an intermittent leave employers should not provide a causal connection between the leave and the performance issue, i.e., focus on a discussion of the performance difficulty and ascertain what can be done by the employee (other than to stop missing so much work) to improve performance. Finally, do not forget that during the period of intermittent leave, the employer may require the employee to transfer temporarily to an available alternative position with equivalent pay and benefits, for which she is qualified and which better accommodates the intermittent nature of the leave.

Protecting Your Valuable Business Information and Relationships

When survey after survey of America’s workforce confirms that a large majority of employees admit to taking data from their current or former employers without permission, safeguards to protect proprietary and confidential information, including trade secrets, become a priority. The loss of corporate data can be devastating. When a former employee or former business owner solicits business contacts or employees, the results can be equally damaging. In today’s highly competitive marketplace, it is essential for businesses to have a well-developed plan in place to protect corporate data and business relationships. Such plans should employ several tools, including, but not limited to, appropriate security safeguards, confidentiality policies, and agreements containing restrictive covenants.

As discussed in a May 2016 blog post, a federal civil remedy became law and employers no longer are limited to state court remedies to combat a misappropriation of trade secrets.

Restrictive Covenants in Florida – In Florida, a business can use restrictive covenants to obtain a promise from an employee, independent contractor, officer, agent, or even a seller of an acquired business not to engage in any behavior contrary to its business interests. Certain restrictive covenants protect specific interests. For example, a covenant “not to compete” is generally a promise that the employee, independent contractor, officer, agent, or seller will not be involved, in any capacity, in a competitive business in a certain geographic area for a certain time period. Other restrictive covenants include covenants “not to solicit” the employer’s customers, clients, donors, or current employees and covenants “not to disclose” the employer’s confidential business information.

Enforcement of restrictive covenants in Florida is governed by statute. The current statute provides that the enforcement of contracts that restrict or bar competition is permitted as long as the restrictions are reasonable in time, area, and line of business. Additionally, the contracts must be in writing and signed by the persons agreeing to the restrictions. To enforce a restrictive covenant, a business must be able to demonstrate that the covenant it seeks to enforce was based on the need to protect a “legitimate business interest(s)” and that the contractual restraint is reasonably necessary to protect such interests. Florida courts deem restrictive covenants not supported by a legitimate business interest to be unenforceable. In determining whether a restrictive covenant is properly supported, Florida courts may not take into consideration the relative hardship the enforcement of a restrictive covenant would have on the person against whom enforcement of the agreement is sought.

To read more on restrictive covenants, Florida’s Uniform Trade Secrets Act, and best practices for protecting information and relationships see the full article in Williams Parker’s recently published edition of Requisite, a firm publication offering insights on important legal issues. Additionally, you may view the digital version of Requisite in its entirety for more articles on topics critical to senior executives in managing their businesses and the associated risks.

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

New Information About “A Day Without A Woman” Provides Some Insight to Employers

WomensMarchFlyerInstagram4Recently, additional details were released regarding the March 8, 2017, A Day Without A Woman, organized by the same group responsible for the Women’s March in January. In addition, other groups, such as the International Women’s Strike, are now planning their own events on March 8, International Women’s Day. Some of these organizations are encouraging women to ask their employers for the day off, while others appear to suggest women should actually refuse to work. When an employer approves the time away from work, then employees are not really engaged in a “strike” in the traditional understanding of the word. On the other hand, refusing to work when scheduled without employer approval is a strike.

As explained in our previous post, the purpose of the strike determines how an employer can legally respond to its employees that refuse to work. If workers are taking action to alter the terms and conditions of their employment, and their employer has the power to make the changes being sought, such activity will most likely be protected by the National Labor Relations Act.

The basic platform set forth for A Day Without A Woman, as explained in the draft letter to employers that can be downloaded from the Women’s March website, is that the event is to recognize “the enormous value that women of all backgrounds add to our socio-economic system — and the pervasive and systemic gender-based inequalities that still exist within our society, from the wage gap, to vulnerability, to discrimination, sexual harassment, and job insecurity.” As stated, this platform appears to focus on national, general objectives that may weigh in favor of a finding that the activity is not protected by the National Labor Relations Act. Yet, as evidenced by the charges filed against several McDonald’s a few years ago, if employees’ own wages and work conditions are an inherent and primary motivator for their participation in the strike, then the strike may be protected.

Some employers may choose to support the national platform being proposed, and either allow those wishing to participate time off without question, or shut down their operations for the day. Other employers that are unable to provide such support and need workers in order to meet client expectations, may want to impose disciplinary action pursuant to a well-established policy applicable to employees who refuse to work. If this is the case, they should first ascertain the reasons for such refusal before imposing any such disciplinary action.

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

Successfully Transitioning Employees When Implementing a Business Succession Plan

When a business succession plan includes the transition of employees from one employer to another, it is important for businesses to recognize that there are a host of employment issues that need to be addressed during the transition. From determining whether a sufficient number of employees will be hired by the new employer to avoid the requirements of the WARN Act (if applicable), to whether the new employer will require transitioned employees to complete new applications, background checks, or I-9 forms, it is important to have a well-organized plan. A human resources transition checklist that details the mandatory and suggested labor and employment items to be managed by those implementing the transition is a helpful tool in ensuring that the transition is smooth for both the businesses involved as well as the affected employees.

Advance planning is helpful to a smooth transition. To learn more about business succession planning, check out our colleague John Wagner’s recent interview with the Sarasota Herald-Tribune, in which he addresses why and when business owners should consider succession planning and provides tips for getting started.

This video was originally posted on The Williams Parker Business & Tax Blog. To read more and to subscribe, visit http://blog.williamsparker.com/businessandtax/.

Related Resources:

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

Managing Employee Participation in Social Movements: A National Strike for Women is Planned for March 8, 2017

The organizers of the Women’s March, which on January 21, 2017 drew an estimated three million participants worldwide, have announced that on International Women’s Day, March 8, 2017, they are planning a “General Strike: A Day Without a Woman.” Although the organization has not yet provided many details regarding its call to action, it is likely that as with last week’s national strike, “A Day Without Immigrants,” this event will include a call to supporters to refuse to report to work. Such a call to action will raise questions for employers regarding how they can respond to such political activity.

A walk out in support of a “General Strike: A Day Without a Woman” could be considered protected activity under the National Labor Relations Act, if there is a sufficient nexus between employment-related concerns and the specific issues that are the subject of the strike. When the motivation for political activity is a national political issue that the employer has no control over, such activity will not be protected and an employee’s discipline for a violation of well-established and neutrally applied policies is legally permissible. On the other hand, when employees leave work and withhold services as an economic tool in their own employment relationship, such activity is protected. For example, a few years ago, McDonalds’ employees held a nationwide strike in support of raising the national minimum wage. Although the national minimum wage was part of the reason workers refused to work, and their employers had no control over the national wage, the employees’ own wages and work conditions were an inherent and primary motivator for their participation in the strike. Thus, the National Labor Relations Board ascertained that a sufficient nexus existed for a finding that the strike was protected activity and filed complaints against several McDonalds challenging the disciplinary actions imposed on participating employees.

Since information is still forthcoming regarding this proposed strike, it is not yet clear whether participation in this event will be protected. Regardless, any action taken against an employee may be challenged through a complaint with the National Labor Relations Board, which has authority to enforce violations of the Act against both unionized and non-unionized employers. If your business is impacted by this event, before you make any disciplinary decisions, it is important to ascertain if the reason for the absence is related to any employment concern in your workforce.

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

Going into Overtime in the Search for a Secretary of Labor: What is Next for the 2016 Overtime Rule?

For weeks now, rumors have been circulating that the President’s nominee for Secretary of Labor, Andrew Puzder, would withdraw his name. As his confirmation hearing was delayed over and over again (five times), he repeatedly issued statements that he was fully committed to becoming Secretary of Labor and looking forward to his confirmation hearing. However, yesterday, on the eve of his scheduled appearance for questioning before the Senate Committee on Health, Education, Labor & Pensions, he issued a statement withdrawing his name for consideration.

As detailed in a previous blog post, Mr. Puzder is a fast-food executive who many believed would run the Department of Labor in a pro-business manner. Thus, labor organizations were greatly opposed to the President’s nominee and view his withdrawal as a win for workers.

This afternoon, it was announced that the President has selected former U.S. Attorney R. Alexander Acosta to serve as Secretary of Labor. Acosta is a former U.S. Attorney for the Southern District of Florida, a former member of the National Labor Relations Board, and a former assistant attorney general in the Department of Justice’s Civil Rights Division. He currently serves as the dean of Florida International University College of Law. Acosta has a very different background from the prior nominee.

If confirmed, it is not yet clear what approach Acosta will take in handing the pending appeal of the stay imposed on the 2016 overtime rules. The original briefing deadline on appeal was delayed as a result of the DOL’s request for additional time “to allow incoming leadership personnel adequate time to consider the issues.” The existing briefing deadline is currently March 2, 2017. It is possible that the administration will request additional time from the 5th Circuit Court of Appeals now that Puzder has withdrawn his name and Acosta is the new nominee. Oral argument has not been set.

Even though oral argument has not been set in the appeal, Washington is not taking a break from focusing on this issue. Today, a subcommittee of the House Education and the Workforce Committee is holding a hearing on “Federal Wage and Hour Policies in the Twenty-First Century Economy.” It is anticipated that the stayed overtime rule will take center stage at this hearing.

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

The Right-to-Work Movement Gains Momentum

On January 7, 2017, Kentucky became the 27th right-to-work state. Right-to-work laws make it illegal for unions or employers to compel workers to join a union and pay dues as a condition of employment. Florida was one of the first states with a right-to-work law pursuant to a constitutional provision passed in the 1940s. In Florida, and other right-to-work states, even if a worker is included within a bargaining unit of a unionized workplace and legally represented by the union, the employee still has an individual choice on whether to join the union and pay dues. Unions, of course, do not care for such laws or those states that adopt them.

Right-to-work initiatives have picked up steam in recent years with Indiana becoming the 23rd right-to-work state in 2012, followed by Michigan, Wisconsin, West Virginia, and now Kentucky. As a consequence of Republican victories in November 2016 it is anticipated that more states will climb on the right-to-work bandwagon —such laws are pending in Illinois, Missouri, New Hampshire and New Jersey. The driver for the expansion of right-to-work legislation is economics. Although right-to-work laws do not a bar unionization, industry and business typically view right-to-work states as more favorable economically, believing that there is a better opportunity to avoid unionization and the constraints that typically accompany union contracts.

A recent highly controversial issue associated with right-to-work is whether a political subdivision of a state, such as a county or municipality, may enact its own right-to-work law in the absence of state legislation.  A federal appellate court, the 6th Circuit Court of Appeals, just ruled that political subdivisions  of a state are legally permitted to enact their own right-to-work laws. On the other hand, a federal trial court in the Northern District of Illinois (part of the federal 7th  Circuit Court of Appeals ) recently ruled the other way.  It is likely this issue will eventually be addressed and resolved by the U.S. Supreme Court that will hopefully establish a uniform rule on this issue.

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