Tag Archives: Florida

Seminar: What’s a Business to Do in the Age of #MeToo?

In light of all of the attention that is being focused on issues relating to harassment and the #MeToo movement, it is now more important than ever for businesses to develop a better understanding of what constitutes harassment in the workplace.

Join us Wednesday, April 11, at the Lakewood Ranch Business Alliance’s upcoming seminar featuring Williams Parker board certified labor and employment attorney Jennifer Fowler-Hermes. Jennifer will discuss types of harassment and provide guidance on how employers can prevent, recognize, and respond to harassment.

WHEN:
Wednesday, April 11, 2018
7:30-8:00 a.m. Networking & Breakfast
8:00-9:00 a.m. Presentation

WHERE:
Keiser University
6151 Lake Osprey Drive
Sarasota, FL 34240

COST:
$10 Members, $20 Non-members

Register Online

MORE ON #METOO:
Catch Williams Parker labor and employment attorney Gail Farb discussing the #MeToo movement on a recent ABC7 news TV segment and roundtable discussion.

Intro Segment (Gail first appears at 2:31):

Roundtable Discussion (Gail first appears at 2:55).

The Tax Act May Limit Resolutions of Sexual Harassment Complaints

One aspect of the new Tax Act (the Act) that has not been widely reported impacts employers that amicably resolve claims of sexual harassment. The provision denies tax deductions for any settlements, payouts, or attorneys’ fees related to sexual harassment or sexual abuse if such payments are subject to a non-disclosure or confidentiality agreement. Specifically, Section 162(q) to the Internal Revenue Code provides:

PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—

(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or
(2) attorney’s fees related to such a settlement or payment.

The intent of this provision is to deter confidentiality provisions in settlements of harassment claims. It is unclear if this provision will actually have the desired impact. Companies may value the confidentiality provisions more than the tax deductions permitted in their absence, and thus continue to enter into confidential settlement agreements. Alternatively, this provision of the Act may end up hurting those bringing harassment claims. Alleged victims may want confidentiality provisions in order to avoid any publicity about their claims. However, by removing tax incentives for employers, an employer may reject a higher settlement amount or settlement of claims altogether.

Section 162(q) of the Act is bound to create confusion as to its applicability as it fails to define key terms. Namely, the Act fails to define “sexual harassment” or “sexual abuse,” both of which are pivotal to the application of the new provision. The Act also fails to contemplate how the provision is to be applied in settlement arrangements involving a variety of claims. Are the sex-based claims separable from a universal confidentiality covenant? Causing further confusion, the Act fails to explain what attorney’s fees are considered to be “related to such a settlement or payment.” Are these only the fees related to settlement negotiations, drafting the agreement, and execution or payment? Or does it extend to the claim’s inception and include the underlying investigation of the claims?

In light of the numerous questions raised by Section 162(q), employers should review their standard settlement agreements and practices and consider revising the breadth of any releases, nondisclosure provisions, or any representations or remedies.

Ryan P. Portugal
rportugal@williamsparker.com
941-329-6626

What is Harassment?

In light of all of the attention that is now being focused on issues relating to harassment and the #metoo movement, employers that do not take time to review policies and train employees may be at a disadvantage if claims ever arise. It is now more important than ever for employers to develop a better understanding of what constitutes harassment in the workplace, as well as how to prevent, recognize, and respond to harassment. Sexual (and other) harassment training is not just about reviewing company policies and telling employees how to report complaints. Training should be tailored for the specific workforce, in person, and promote respect and civility. It should be geared to help employees at all levels in an organization recognize harassment and when others are uncomfortable. In addition, employees that are responsible for receiving, investigating, and responding to complaints should be trained on how to properly fulfill these duties.

Harassment can occur both inside and outside of the workplace. Certain forms of harassment, such as a woman walking down the street getting cat-called by a stranger, do not implicate the workplace at all. However, if that same woman works for a construction company and is walking past other employees of the organization when she is cat-called by them, the same conduct may be workplace harassment and actionable. For more details on what is actionable harassment, see our October 14, 2016 blog post. Not all harassment is immediately obvious, and answering the question “what is harassment?” can sometimes be a difficult task. Are you able to recognize it?

Friends star David Schwimmer and writer and director Sigal Avin released several short videos that reflect different types of harassment in society, including three that involve workplace harassment. These videos start innocent enough, but develop into awkward and uncomfortable situations. At the end of this post is a link to one of these videos. Test yourself, watch the video, and consider the following questions:

Are you able to recognize when the harassment begins?

Can you identify the non-verbal and verbal cues that the employee is giving to indicate that she is not comfortable with the interaction?

Do you think that others in your organization would be able to recognize these cues?

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

A NLRB Christmas Story

If the NLRB is Santa, then Santa just left employers a Millennium Falcon under the Christmas tree. One day after issuing two well-received pro-employer decisions, the NLRB overruled one of its most detested decisions from the last eight years, E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), that broke from long-standing board precedent and dramatically altered what constitutes a “change” in the terms and conditions of employment and thus, when an employer is required to bargain with a union. In the DuPont decision, the Board held that bargaining would always be required, even if the parties had not yet agreed to a contract, in every case where the employer’s actions involved some type of “discretion.”

However, on December 15, 2017, in Raytheon Network Centric Systems, 365 NLRB No. 161, the Board continued its Fast and Furious dismantling of many of the more controversial decisions issued during the Obama administration, by rejecting DuPont and returning to what had been long-standing board precedent. The majority of the Board opined:

We conclude that the Board majority’s decision in DuPont is fundamentally flawed, and for the reasons expressed more fully below, we overrule it today. DuPont is inconsistent with Section 8(a)(5), it distorts the long-understood, commonsense understanding of what constitutes a “change,” and it contradicts well established Board and court precedent. In addition, we believe DuPont cannot be reconciled with the Board’s responsibility to foster stable bargaining relationships. We further conclude that it is appropriate to apply our decision retroactively, including in the instant case.

*  *  *

In sum, and for the reasons stated above, we overrule DuPont as well as Beverly I and Register-Guard, and we reinstate Shell Oil, Westinghouse, Winn-Dixie Stores, Beverly II, Capitol Ford, and the Courier-Journal cases. Henceforth, regardless of the circumstances under which a past practice developed—i.e., whether or not the past practice developed under a collective-bargaining agreement containing a management-rights clause authorizing unilateral employer action—an employer’s past practice constitutes a term and condition of employment that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past. We emphasize, however, that our holding has no effect on the duty of employers, under Section 8(d) and 8(a)(5) of the Act, to bargain upon request over any and all mandatory subjects of bargaining, unless an exception to that duty applies.”

The retroactive application of this decision is of particular importance and may impact many disputes currently pending with the NLRB. This decision will also have great impact on management-union negotiations, and will provide employers greater ability to act without being required to ask for permission from a union. This is particularly true in the context of employers that do not have a collective bargaining agreement in place.

[I wonder if unions are feeling as if they are Randolph and Mortimer Duke in Trading Places, Hans Gruber in Die Hard (one of my favorite holiday flicks), or Ted Maltin in Jingle All the Way.]

In addition to overruling the DuPont decision on December 15, the Board also overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). The Specialty Healthcare decision made it easier for unions to organize so-called “micro-units.”  With PCC Structurals, 365 NLRB No. 160, the Board reinstated its pre-Specialty Healthcare, community-of-interest approach for determining  “whether a proposed bargaining unit constitutes an appropriate unit for collective bargaining when the employer contends that the smallest appropriate unit must include additional employees.”

We are well into Hanukkah and only a few days before Christmas, let’s hope that the NLRB continues to shower employers with gifts this holiday season and that this Miracle on 34th Street continues.

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

Florida’s Minimum Wage Is Set to Increase: What Are You Doing New Year’s Eve?

It is only October and across the state, in department stores not named Nordstrom, holiday decorations are appearing. It may seem that, like these stores, reporting to you that on January 1, 2018, Florida’s minimum wage will increase, may be premature. But, like the holidays, the new minimum wage will be here before you know it. If you are not prepared, then you may be updating your payroll on New Year’s Eve.

Great, now I have Harry Connick Jr’s melancholy version of the 1947 classic by Frank Loesser stuck in my head (and it’s only October):

Maybe it’s much too early in the game
Ooh, but I thought I’d ask you just the same
What are you doing New Year’s
New Year’s Eve?

On January 1, 2018, Florida’s minimum wage will increase from $8.10 to $8.25 an hour. Employers should be prepared to make adjustments to their minimum wage earners. Failing to pay non-exempt employees Florida’s statutory minimum wage can result in claims against employers pursuant to Section 24, Article X of the State Constitution and Section 448.110, Florida Statutes. The maximum tip credit ($3.02) that can be taken by Florida employers with tipped employees will remain the same, but the direct wage paid to tipped employees will increase from $5.08 to $5.23 an hour.

In addition to raising the minimum wage, Florida employers are required to post a minimum wage notice in a conspicuous and accessible location. Before the beginning of 2018 you will be able to download the 2018 Florida Minimum Wage Notice from the Florida Department of Economic Opportunity’s website. This notice requirement is in addition to the requirement that employers post regarding the federal minimum wage (which has not been increased). There will also be commercially available Florida-specific “all-in-one posters” that satisfy both the federal and state notice requirements. The 2018 “all-in-one” posters should also be available in the near future.

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

Reinforcing Florida Employers’ Ability to Protect Valuable Business Relationships

Florida employers and their attorneys received good news in September when the Florida Supreme Court finally issued its opinion in White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017). At issue in White, was whether referral sources could constitute protectable legitimate interests under Florida Statute s. 542.335. The Florida Supreme Court answered this question in the affirmative, holding that referral sources can be protectable interests sufficient to support a restrictive covenant in a non-compete/non-solicitation agreement.

For more information on how employers can protect their valuable information and business relationships see our previous post.

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

Should I Pay Exempt Employees Who Miss Work Due to Bad Weather Conditions?

As Florida prepares for a potential direct hit by Hurricane Irma, employers have many concerns. At some point, when decisions have been made about if a business will stay open and if goods or people need to be moved out of harm’s way, the following question will most likely be asked: “Should I pay exempt employees who miss work due to bad weather conditions?”

When it comes to deductions from exempt employees’ salaries it is easy to get into trouble.  The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the worksite closes for a partial week due to bad weather conditions (such as a hurricane), and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off.  If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation see this opinion letter from the U.S. Department of Labor.

As for non-exempt employees, the FLSA only requires that employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweeks, must be paid their full weekly salary in any week for which work was performed.

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

BREAKING NEWS: Overtime Rules Overruled

Employers, the wait is over. You finally have an answer regarding the 2016 overtime regulations. Yesterday afternoon, a Texas federal judge issued an order invalidating the U.S. Department of Labor’s overtime rules that had been set for implementation on December 1, 2016, but preliminarily stopped nationwide only days before by that same judge.

As noted in our earlier blog posts (“Breaking News: Federal Judge Halts Implementation of the DOL’s New Overtime Regulations” from November 23, 2016 and “2016 Overtime Regulations: They Are Still Out There” from June 13, 2017), the DOL had issued a final rule that was predicted to affect over 4.2 million workers, with Florida as the third most effected state. Those workers would no longer be exempt from overtime compensation due to increases in the minimum salary level for “white collar” exemptions from $455 per week ($23,660 annually) to $913 per week ($47,476 annually) and highly compensated employees from $100,000 to $134,000 annually.

The DOL quickly appealed the preliminary injunction to the Fifth Circuit Court of Appeals, which left employers wondering whether the hold would be lifted by the appellate court or the appeal withdrawn. The uncertainty increased on July 25, 2017, when the DOL published a formal Request for Information so the DOL could issue a new proposal related to overtime regulations.

In the order, the court granted summary judgment to the business group and other plaintiffs who had challenged the new overtime rules and issued a final judgment on their behalf. The court held that the white collar exemptions were intended to apply to employees who perform “bona fide executive, administrative, or professional capacity” duties, and that the DOL does not have the authority to use a salary-level test that will effectively eliminate the duties test or exclude those who perform the duties based on salary level alone.  Because the new overtime rules would have “exclude[d] so many employees who perform exempt duties” and are “not based on a permissible construction of [the law]”, the DOL did not carry out Congress’s unambiguous intent, exceeded its authority, and has “gone too far” with the rules.  In sum, the overtime rules have been overruled, and may be disregarded by employers.

Read the full order here.

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

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.

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