Monthly Archives: May 2017

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