Category Archives: Employment Law

Arbitration Update: Eleventh Circuit Finds in Favor of Florida Employers

Florida employers are beginning to benefit from recent U.S. Supreme Court and National Labor Relations Board (NLRB or Board) rulings.  On June 26, 2018, the federal Eleventh Circuit Court of Appeals issued two decisions in favor of Florida employers in which it rejected NLRB rulings that the employers had violated the National Labor Relations Act (NLRA). The cases are Everglades College, Inc. v. NLRB and Cowabunga, Inc. v. NLRB.

Applying the Supreme Court’s Epic Systems decision (for further information on Epic, click here), the Eleventh Circuit held in both cases that the inclusion of class and collective action waivers in these employers’ mandatory arbitration agreements did not violate the NLRA. Additionally, relying on the Board’s Boeing decision (for more information, on Boeing click here), the Eleventh Circuit vacated the NLRB’s holdings that the arbitration agreements were unlawful because employees could “reasonably believe that they were prohibited from filing unfair labor practice charges with the NLRB.”

In Boeing, the NLRB retroactively changed the rationale it used to evaluate the lawfulness of facially neutral employee policies, thus eliminating the broadly applied “reasonably believe” standard that prohibited any rule that could be interpreted as covering protected activity. Without that standard, the Board could not defend its prior decisions in the appeals. Therefore, the Eleventh Circuit remanded the remaining issues in the cases to the NLRB so that it can apply its new Boeing rationale, which does not interpret ambiguities against the drafter and does not ban all activity that could conceivably be included in generalized provisions.

Even with the NLRB General Counsel’s recent memo addressing the application of the Boeing standard (for more on the memo, click here), it is unclear how the Boeing rationale will apply to arbitration agreements. Regardless, employers should remain hopeful as the new standard provides for a more balanced review.

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

[Editor’s Note: Williams Parker attorney Gail E. Farb represented the employer in the Everglades College, Inc. case cited above.]

Employment Law Seminar: Get a Handle on Workplace Scandal

Employers and human resources professionals, does turning on the news today make you cringe more than usual? Do you feel prepared to guide your companies away from the front page and out of the news spotlight?

We invite you to join us for a high-energy, engaging program, in which the panel will provide you with strategies to help prevent, investigate, and defend sexual and other harassment claims. Additionally, the presenters will share insights regarding Employment Practices Liability Insurance (EPLI), the use of non-compete agreements and other restrictive covenants, including a push from Washington, a new interpretation of Florida law, as well as voluntary compliance and litigation issues. The session will also address the legal landscape surrounding the gender pay gap.

PRESENTATION TOPICS

  • Harassment Prevention – Let’s Talk About Sexual Harassment, Baby
    Amie Remington, LandrumHR
  • Non-Compete Agreements – White House Initiative, Florida Law
    Interpretation, Voluntary Compliance and Legal Enforcement
    Gail Farb, Attorney, Williams Parker Harrison Dietz & Getzen
  • Gender Pay Gap Legal Landscape – Laws and Litigation
    Jennifer Fowler-Hermes, Attorney, Williams Parker Harrison Dietz & Getzen
  • Employment Practices Liability Insurance (EPLI)
    Pat Del Medico, Chief Operating Officer, Al Purmort Insurance

DATE AND TIME

Wed, April 18, 2018
8:00 AM – 11:30 AM EDT
Add to Calendar

LOCATION

The Francis
1289 North Palm Avenue
Sarasota, FL 34236
View Map

Click here for more information and to register. 

Office Holiday Parties: Avoiding Adding Names from Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

Most employers and employees now recognize that in today’s world there is a different expectation as to how to behave appropriately at work then there was in, say, the 1950s or 1960s. Setting aside a discussion of power and how power can lead some to believe that these social norms do not apply to them (see the list above), employers should keep in mind that social norms that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching. The office holiday party can be a quagmire of potential employment issues, even beyond sex harassment including, but not limited to, workers compensation, the Fair Labor Standards Act, and religion. However, this year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration.

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

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

Managing Political Activism and Avoiding Unlawful Pitfalls in Employment Relationships

Later this month in Orlando, one of the largest HR conferences in the state will take place, the 2017 HR Florida Conference & Expo*. The conference will be held August 28 – 30. This year, two of Williams Parker’s labor and employment attorneys are scheduled to speak.

Jennifer Fowler-Hermes will present two presentations on the opening day of the conference, and she will be featured in one of several “discussion dens.” A discussion den is a 30-minute opportunity for a small group of attendees to have a short conversation with speakers where it is anticipated that participants may want to have an extended conversation about the topic. Jennifer’s presentations are:

  • “Managing Employee Participation in Social Movements: What to do When Political Activism Impacts Your Organization”
  • “HR Professionals Just Want to Have Fun: Weird and Wacky Employment Cases”

Jennifer’s first presentation will address many situations where political activism can impact the workplace and will provide suggested employer responses. In light of ongoing political turmoil that has been in the news, Jennifer’s presentation on employee political activism will be featured in a discussion den following the presentation. Jennifer’s second presentation reviews the legal framework of several employment laws through analysis of some of the more wild and wacky employment cases.

Gail E. Farb will help to bring the event to a great close, and will present on the final day of the conference. Gail’s presentation, “Error-Free Employment Relationships – Avoiding Top Legal Mistakes from Hire to Fire” a/k/a “How to Steer Your Spaceship Away from Employment Law Black Holes” is designed to help employers recognize unlawful pitfalls in the employment relationship and overcome hazards.

If you are interested in the event, you can learn more and register online at hrflorida.org (the link to the registration page is at the bottom left of the webpage, under Quick Links).

*The HR Florida Conference & Expo is the annual conference of the HR Florida State Council, a state affiliate of the Society for Human Resource Management (SHRM). Each year the event attracts 1,500+ human resource professionals and vendors throughout the state of Florida and across the globe. These individuals represent virtually every industry, and companies ranging from small businesses to large industrial centers. Earn credits for both the HR Certification Institute certification and SHRM Competencies certification.

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.

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

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