All entries for September 2016

States Now Fighting Back on FLSA Overtime Changes

In the United States District Court for the Eastern District of Texas (in Civil Action No. 4:16-CV-00731), twenty-one states recently brought a challenge and motion for temporary injuction seeking to prevent the implementation of a series of overtime law changes announced by the Department of Labor and which are set to go into effect on December 1, 2016. 

In this case, Federal District Judge Mazzant is being asked by the states to forestall that implementation pending further challenge of a provision of the Department of Labor’s Final Rule that provides for an automatic updating adjustment mechanism whereby the minimum salary for executives to continue to be qualified for overtime exemption increases every three years (the first of which is set to take place January 1, 2020. 

The States argument, in essense, is that the DOL’s policy changes attempt to unlawfully coerce the states and the businesses in those states to adopt certain wage and hour policies and to make certain choices in that regard that will disrupt (and interfere with) the States’ right to set their own policies in employee wage and hour law.

This case figures to be only one step in what is likely to be a broad salvo by states pushing back against the federal government attempting to set national wage and hour policies (and, some may argue, widespread social engineering).

If you have questions about how the new Department of Labor wage and hour rules will affect your business or you personally, contact our business and employment attorneys today.

UPDATE:  The Texas District Court Judge issued on November 22, 2016 an order granting the states’ Emergency Injunction against the Department of Labor overtime changes, likely triggering increased and more heated litigation on the issue in the coming months.  http://www.txed.uscourts.gov/d/26042


Lower Court Compels Arbitration Based on Pamphlet Mailer

Arbitration clauses exist in plentitude all around us in most people’s everyday lives—they are in your contract with your builder, enclosed with a great many products you buy, and even in your workplace—but they generally go unnoticed unless and until something goes awry.  In those instances, people are often surprised to find that they have (usually without any real knowledge or consideration) waived their right to have a dispute heard before a judge or jury.  Instead, they are forced to take their case before a private arbitrator (in many-but not all-instances that person is an attorney in the field) and potentially pay to have their case heard.

Compelling arbitration has long been required where an arbitration agreement is found to be valid, to concern the issue presented, and to have not been waived.  This is outlined in the recent case of  All-S. Subcontractors, Inc. v. Amerigas Propane, Inc., and codified in Florida under Chapter 682.   41 Fla. L. Weekly D1859 (Fla. 1st DCA August 11, 2016).  In All-S. Subcontractors, Inc., the seller of propane affixed a “Terms and Conditions” flyer to its invoices which contained an arbitration provision.  It appears under the facts of the case that customers were neither expected to sign nor specifically told of this provision other than by attachment to a propane invoice.

Later, when a class action was sought by consumers against the propane seller, the seller attempted to force the parties to arbitrate based on that “Terms and Conditions” pamphlet attached to invoices.  The lower court agreed, but was reversed on appeal by the 1st DCA, which found that the class action initially rested on an invoice from several years prior to the first time the “Terms and Conditions” were ever attached to invoices.

For consumers, the scary part of this case’s holding is the possibility by implication that, had the invoices in question been from after the period of time when the “Terms and Conditions” pamphlet started being attached to invoices, the dispute could have been forced into arbitration even absent any proof of actual knowledge by the consumers that they had waived their right to a judge or jury hearing their dispute. 

This lesson is an old one and serves many people well—read your contracts and ensure you both understand and agree to the terms in them before you sign (or take delivery of the goods in instances such as that of the All-S. Subcontractors, Inc. case wherein no one was required to sign the agreement). 

If you have questions about a contract or are facing arbitration, consult with the experienced litigators of Icard Merrill today. 


Right to Gender Reassignment Treatment Claimed, Declared Medically Necessary

Those looking for further evidence of the changing tides of inclusion, gender and trans-gender equal opportunity, and broadening of the social consciousness can look no further than a recent brief the Equal Employment Opportunity Commission (EEOC) sought to file in aid of the American Civil Liberties Union (ACLU) in the case of exclusions in the employer’s employee health plan pertaining to “treatment, drugs, and services for or leading to ‘sex transformation surgery.’”  The brief can be found here:  https://www.aclu.org/legal-document/robinson-v-dignity-health-eeoc-amicus-brief

In what may raise eyebrows in many parts of the country, the EEOC supports claims in the complaint filed by the putative transgender employee that gender dysphoria is “a ‘serious medical condition’” and that “[u]nder ‘widely accepted standards of care,” the treatment (inclusive of “hormone therapy, sex reassignment surgery, and ‘other medical services that align individuals’ bodies with their gender identities’”) is “medically necessary.” 

In the brief, the EEOC explains that “discrimination against transgender individuals because of their gender non-conformity is discrimination on the basis of sex.” This represents a continued expansion in recent years by the EEOC to include sexual orientation, sexual conformity, and similar issues under the umbrella of sex and/or gender discrimination. 

This expansion has in some instances run afoul of judicial efforts to maintain a boundary between the two under Federal Title VII legislation, recently in a case before the U.S. Court of Appeals for the Seventh Circuit. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016). 

As some long-held boundaries and lines between sexual orientation and identification continue to blur and fade, these issues will likely present more challenges for both employees and employers to ensure that the rights of people under the law are respected while respecting the rights of businesses to operate efficiently and in a lawful manner without undue governmental oversight.  For help navigating these challenges on either side of the equation, contact the attorneys of Icard Merrill today. 


Graduate Students are Employees Under FLSA

A recent decision by the National Labor Relations Board opens up an new group of covered employees who were until recently treated more as volunteers or trainees rather than traditional employers.  A decision announced here: https://www.nlrb.gov/news-outreach/news-story/board-student-assistants-covered-nlra-0 makes clear that student assistants working at private colleges and universities (e.g., teaching assistants) are considered by the NLRB to be employees under Federal statutes, and are therefore entitled to all of the rights and protections of other employees.

This changes the dynamic potentially at many colleges and universities around the country and opens up possible avenues for claims against those universities for unpaid wages, rights to unionize, and potentially other rights never before generally considered applicable to student assistants. 

For employers in the private sector, this is another example of government agencies shining light on persons the employer may never have previously considered to be an employee.  Volunteers, interns, and trainees have long been the subject of scrutiny by the Department of Labor, the Internal Revenue Service, and the NLRB.   This decision simply opens the umbrella a little wider and raises doubt to the continued use of unpaid assistants in the academic realm.

Employers should take from this ruling the idea that the law can be a very complicated and, sometimes seemingly ever-shifting landscape and it is essential to have a partner as a business grows and changes (or even simply continues) in order to ensure compliance with the law and reduction of liability. 

If you have questions about your employees, independent contractors, or other business employment needs, speak to our well-trained and knowledgeable employment attorneys in any of Sarasota, Manatee, Lee, Charlotte, and surrounding counties.