Implementation of the Department of Labor’s (“DOL”) proposed overtime rule remains in limbo as the Fifth Circuit Court of Appeal recently approved the DOL’s third request for an extension of time to file its reply brief in order to “allow incoming leadership personnel adequate time to consider the issues.” The most recent extension came within a week of the U.S. Senate’s confirmation of the nomination of Rene Alexander (“Alex”) Acosta as the Secretary of Labor which occurred on April 27, 2017. Accordingly, the DOL’s reply brief is now due June 30, 2017 giving the DOL another two months to evaluate its options, which may include anything from abandoning the appeal altogether to revising the rule to reflect more modest adjustments.
Secretary Acosta does not appear to support the Obama Administration’s efforts to implement and enforce the new overtime rule which would require employers to more than double the current minimum salary requirement of $23,660 to $47,476 in order to maintain the overtime exemption for “white collar” executive, administrative, and professional employees. Acosta has voiced his opinion that such a jump would create “a stress on the system.” Acosta is, however, sensitive to the fact that the threshold has not been updated in more than a decade. He has expressed an interest in consulting further with officials at the Department of Justice to determine whether the DOL has the authority to increase the salary threshold at all. If so, Acosta is on record supporting more modest increases to mirror inflation. During his March 22, 2017 confirmation hearing before the Senate, Acosta stated his belief that the salary threshold should be “somewhere around $33,000” after taking into account inflation to the cost of living since the last time the regulation was adjusted in 2004.
So, in a nutshell, it remains to be seen whether the proposed increase in the salary threshold will be pursued and implemented. In the meantime, however, employers are still encouraged to evaluate “white collar” employees’ primary job duties in order to assess whether they truly meet the second prong of the two-prong exemption analysis – the duties test.
We will continue to provide updates as more developments occur regarding the status of the DOL’s appeal and/or the fate of the new overtime rule.
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If you have any questions or would like guidance regarding compliance with wage-and-hour laws or other general employment law matters, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group.
The Fourth District Court of Appeals issued an opinion on April 5, 2017 that receded from its previous precedent on the issue of the causation standard a plaintiff must successfully prove in a Florida Civil Rights Act retaliation claim. The move appears to be a win for employers, as it raises the standard from "wholly unrelated"--meaning the employee needed only previously show that the protected activity by the employee and the retaliatory action by the employer were not "wholly unrelated'--to "but for"; meaning that employees must now show that they would not have been terminated or retaliated against "but for" the protected activity.
This represented a change from the court's precedent as set forth in Guess v. City of Miramar, 889 So. 2d 840 (Fla. 4th DCA 2004) to bring the standard of proof in line with that rendered by the United States Supreme Court in its decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013). Therefore, though the protections remain the same for employees under the Fourth District's new ruling, the burden of proving a claim of wrongful conduct by the employer has increased on employees.
If you are an employee that believes you are being retaliated against following some protected activity (e.g., you participated in an investigation of a discrimination claim or made such a claim yourself or threatened to or did report illegal activity by the employer), the advice of an attorney can be in some cases essential to ensure you file your claim in a timely manner and help stop retaliatory actions by your employer.
If you are an employer that needs help ensuring that it is taking the right steps in handling discrimination claims or investigations or need help educating and training managers in retaliatory behaviors to avoid, an attorney can be an invaluable resource, as well. In either case, the Employment Law attorneys at Icard Merrill are available to help.
In another high water mark for protections for employers, the recent case of Allied Universal Corp. v. Given, 2017 Fla. App. LEXIS 3459 (Fla. 3d DCA 2017), outlined various protections for employers from other cases and resulted in a case that is likely to be often cited by employers in their battles against former employees in the area of non-compete litigation.
The Third DCA starts by broadly construing Section 542.335, Florida Statutes (Valid restraints of trade or commerce) by referencing protections for "goodwill associated with an "ongoing business or professional practice," among other things, as a basis for injunctive relief. What makes the construction broad is that the Court found that the employer needed only establish that there were legitimate business interests, at which time there became a "rebuttable presumption of irreparable injury for purposes of obtaining a temporary injunction under section 542.335(1)(j)."
Unlike in many instances, the employer here was not required to show any actual interference with specific current or potential customers, nor any actual injury or damage. Simply having legitimate interests was enough to flip the burden of proof to the employee, who was expected to have evidence at the temporary injunction stage to show that the employer had not been damaged. Understandably, the employee was unable to show the absence of injury of any sort to the employer at that early stage and an injunction was entered against the employee. Often, the granting of an injunction is enough to break the employee's resistance and to end the case (since now the employee is unemployed, which makes funding ongoing litigation difficult, if not pointless).
Upon taking office, one of the very first official acts by newly minted President Trump was to sign an executive order curtailing enforcement of the punitive elements of the Affordable Care Act. The full text of the EO (which can be found here) calls for enforcement agencies to "exercise all authority and discretion available to them" in order to minimize burdens of the Act pending repeal, to preserve choices in the marketplace for consumers, and to encourage open competition by insurers.
This executive order obviously heralds the most serious efforts to date to repeal the controversial health care bill that was signed into law (potentially without even being read by many lawmakers). This measure is being billed as an effort to reduce the impact of the more onerous provisions of the Act to employers and businesses, while trying to preserve some of the benefits achieved for consumers. The efficacy of the change from the ACA to some form of health care bill that has yet to take shape will be a point of interest (and, likely contention) among pundits in the coming years.
For employers, the question becomes "how does this effect my business?" As often is the case, the effects of this enforcement 'cool down' might not be clear for some time, but it is important to speak to an attorney to find out whether your business is likely to see impacts from the changing law and what those impacts might be. Talk to one of the employement attorneys at Icard Merrill to find out more about your business and how the ACA repeal may affect it.
As outlined here (and as covered by our own Jessica Farrelly here), three major Federal circuit courts are scheduled to decide whether Title VII should include in its definition of gender and/or sex discrimination the issue of sexual orientation/sexual preference discrimination. This is a potential watershed moment in national discrimination jurisprudence, as both the EEOC and lawmakers have an eye on increasing efforts to see LGBT and gay rights included in the long-held echelons of protected class under Title VII.
It is not unusual to see courts do a bit of a jive when it comes to balancing precedent and the tides of social evolution. What appears to be likely to be an escape hatch of sorts for courts considering the issue will be interpretation of other acts, notably the Sherman Act, which is much more liberally construed in today's jurisprudence compared to the period when it was enacted (in the late 1800s).
Employers, legal practitioners, and the LGBT community will be watching with great interest as these decisions are levyed in the coming months. In the meanwhile, employers may have questions about how these changes might impact their business. An employer should consult with an attorney if they have questions about how the law will affect their business and the experienced employment attorneys at Icard Merrill can help your business try to avoid finding itself soon under these changing tides.
First Annual Hot Topics in Employment Law
Over the past year, enforcement activity across all employment law areas has increased. The EEOC continues to spearhead efforts to broaden the federal antidiscrimination and retaliation laws, and its task force on harassment in the workplace issued guidance on "rebooting" harassment prevention. The DOL issued new overtime exemption regulations and continues to pursue enforcement of wage-and-hour laws and to prioritize the elimination of independent contractor misclassifications. The NLRB has continued to scrutinize company handbook policies. The Defend Trade Secrets Act was enacted, severance agreements came under fire by the SEC, workplace violence continues to escalate, and medical marijuana was approved by voter initiative in Florida. Court decisions also continue to impact employers in a variety of ways. Changes in the employment law arena are occurring at a rapid pace!
To help employers stay ahead of the curve in 2017, Attorney Jessica M. Farrelly will present an overview of the most recent and significant enforcement activity, court decisions and legislative changes in federal and Florida employment law during the past year.
Who should attend?
Details Regarding This COMPLIMENTARY Seminar:
DATE: January 27, 2017
TIME: 8:30 a.m. - 10:00 a.m.
LOCATION: ICARD, MERRILL, CULLIS, TIMM, FUREN & GINSBURG, P.A.
2033 Main Street, Suite 600
Sarasota, FL 34237
To ensure enough space is available, please pre-register on or before January 20, 2017 by contacting Toni Hashem at email@example.com or (941) 366-8100.
©2016 Jessica M. Farrelly, Esq. • Icard Merrill. This may be considered advertising under the rules of the Florida Bar. This information is general in nature and is not offered, and should not be construed, as legal advice with respect to any specific matter.
A decision is likely to come soon from the first United States court of appeals to address the issue of whether Title VII’s prohibition against “sex” discrimination extends to sexual orientation.
On December 15, 2016, the Eleventh Circuit (covering Florida, Alabama, and Georgia) heard oral arguments in the matter of Evans v. Georgia Regional Hospital, et. al., in which a lesbian security guard sued her employer and supervisors claiming she was targeted for termination on the basis of her sexual orientation and failure to conform to gender-based stereotypes held by her co-workers.
On November 30, 2016, a full panel of the Seventh Circuit (covering Illinois, Indiana, and Wisconsin) held a rehearing in the matter of Hively v. Ivy Tech Community College. In Hively, the Appeals Court will similarly determine whether the claim pursued by a lesbian part-time adjunct professor who alleges she was denied the opportunity for a full-time professor position and was not promoted due to being openly gay is, in fact, covered by Title VII’s prohibition against “sex” discrimination.
The same issue is also currently pending before the Second Circuit (covering Connecticut and New York) in Christiansen v. Omnicom Group, Inc, et al.. The Christiansen case involves a claim by a gay male who contends he was harassed by a supervisor who created a hostile workplace atmosphere, in part, by drawing sexually explicit pictures of employees fornicating with each other, calling them “gay”, “bottom” “poof” and forcing them to discuss their “gay” sex lives on a daily basis. Oral argument is scheduled for January 20, 2017.
Momentum in favor of a broad interpretation of “sex” discrimination to include sexual orientation and transgender status -- as aggressively pursued by the Equal Employment Opportunity Commission (“EEOC”) -- has been growing. Various federal district courts across the country have encompassed such protection to the LGBTQ community as within the ambit of Title VII. Most recently, on November 17, 2016, a federal district court in Connecticut denied dismissal of a discrimination case concluding that a former lesbian teacher’s claim was entitled to protection under Title VII.
In the event of a split in the Circuits, we can expect the issue to ultimately be resolved by the United States Supreme Court.
In the meantime, employers should remain mindful that may states and localities have anti-discrimination laws and ordinances that are explicitly broader than Title VII. In Florida, for example, more than 50 cities, towns, and counties have ordinances that prohibit discrimination on the basis of sexual orientation. Because employers are bound by state and local laws that provide greater protection for employees than comparable federal laws, employers need to be aware of the applicable laws in the areas in which they operate.
To obtain a list of the Florida cities, towns, and counties that currently have non-discrimination ordinances prohibiting sexual orientation discrimination, or if you would like guidance regarding compliance with anti-discrimination laws, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group.
On December 8, 2016, the U.S. Court of Appeals for the Fifth Circuit granted the Department of Labor’s (“DOL”) request for an expedited hearing on its appeal of the issuance of a nationwide preliminary injunction blocking the implementation of the new overtime exemption regulations under the Fair Labor Standards Act (“FLSA”). The regulations, among other things, would have required employers to more than double the minimum salary requirement for “white collar” executive, administrative, and professional employees, or pay overtime compensation.
The Court issued an Order setting forth the following expedited schedule:
December 16, 2016 - Due date for the DOL’s opening brief;
December 23, 2016 – Due date for amicus briefs in support of the DOL;
January 17, 2017 – Due date for response brief from 21 states and business associations challenging the new rules;
January 24, 2017 - Due date for amicus briefs in support of states/business associations;
January 31, 2017 – Due date for final reply brief from the DOL.
Oral argument is anticipated to be scheduled for the first available sitting after the close of briefing, which is expected to be sometime in mid to late February, 2017 – after Inauguration Day. The appeal schedule, therefore, allows the DOL, under the new Trump administration, to possibly abandon its current position and the appeal. Stay tuned!
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If you have any questions or would like guidance regarding compliance with wage-and-hour laws or other general employment law matters, please contact the firm’s Employment Law Practice Group.
Two recent cases highlight some of the hotter "hot-button" topics in employment law - (1) the expansion of LGBT rights under Federal discrimination law and (2) the issue of pay for student-athletes.
The first case is that of Jacqueline Cote v. Wal-Mart Stores Inc in the U.S. District Court for the District of Massachusetts (Case No. 15-cv-12945), as reported by Reuters and posted on Yahoo.com here. In that case, Wal-Mart has agreed to settle claims of discrimination against employees with same-sex partners on the basis of failure to provide insurance options to those partners. The claims involved potentially thousands of employees and the total settlement proposed to the court was $7.5 million. This settlement provides yet another milestone on the path to broadened application of Federal law to same-sex couples and other members of the LGBT community that is currently being blazed by the EEOC and other agencies.
The second case is actually a decision from the Federal Court of Appeals for the Seventh Circuit. The decision can be found here. In that decision, the Seventh Circuit was asked to decide whether University of Pennsylvania student-athletes were considered "employees" for purposes of seeking minimum wage rights under Federal law. The Court hung its precedential hat on a long-held opinion by the Supreme Court of “a revered tradition of amateurism in college sports.” (quoting Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 120 (1984)). Essentially, the court found that this concept of amateurism was ". . .essential to the very existence of' collegiate athletics" Id. (citations omitted). This represents another blow in yet another forum to attempts by athletes to get paid for their participation in college sports. It appears the most viable avenue remaining to athletes is through the NCAA and its big-ticket institutions (potentially seeking a competitive advantage based on a much larger potential payroll).
If you have questions about your rights, either in discrimination disputes or in wage and hour disputes, contact Joseph Herbert with Icard Merrill's Employment Law Practice group today.
Just before Thanksgiving, a federal court judge in Texas issued an order enjoining – on a nationwide basis – the Department of Labor’s (“DOL”) new overtime exemption regulations that would have doubled the minimal salary requirement for executive, administrative, and professional (“white collar”) employees. As a result, employers are no longer required to increase the salary levels of eligible white collar employees from $455/week ($23,660 annually) to $913/week ($47,476 annually) by December 1, 2016 in order to maintain the exemption.
While this sounds like great news for many employers, the order issued a mere nine days before the anticipated deadline poses a difficult situation for many businesses. In the approximate six months following issuance of the final regulations on May 18, 2016, many employers already began taking steps to be in compliance by the December 1, 2016 deadline. Some employers already informed employees of their impending raises or their reclassification as non-exempt employees and its attendant time-keeping requirements for purposes of overtime compensation. For these employers, the recent order presents a difficult situation. Do you retract previous announcements and plans, or do you forge ahead? Unfortunately, there are no black and white answers and each business must consider its situation and unique workforce independently. Among the many considerations a business must evaluate in deciding how to proceed are the potential effect on employee morale, the cost and practicality of reversing planned payroll processing changes, and the ability to shift gears again if the regulations are ultimately implemented (possibility retroactively). For those employers who discovered during an internal audit that certain workers may have been misclassified based upon their duties – irrespective of their salary level – the answer is easier. They should proceed with reclassification.
Employers should carefully consider which approach works best for their business and consult with counsel regarding the most desirable option in light of the organization’s current circumstances. Employers should also continue to closely monitor the status of the regulations. They are likely to be subject to additional action by the courts, the legislature, or the new Trump administration. Stay tuned!
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If you have any questions or would like guidance regarding compliance with wage-and-hour laws or other general employment law matters, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group.
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.
Borrowers facing foreclosure are often scared, confused, and under extreme stress. The dream of the modern American family—ownership of a home—is in jeopardy for them. Some borrowers are also angry; whether with themselves, with the lender, or with someone else. In certain cases, this anger is justified, as has been made clear by a wave of mass or class actions in recent years against lenders for fraudulent or otherwise deceitful or predatory lending practices.
However, in some cases, that anger may not be entirely justified—as in the case of Wells Fargo Bank, N.A. v. Williamson, where the borrowers sought to have the court dismiss the lender’s foreclosure action on the basis of allegations that the lender’s “loan consultant” falsified certain portions of the loan application, including the borrower’s liquid assets, monthly income, and ownership of other real property. (199 So. 3d 1031 (Fla. 4th DCA 2016).
However, as the court astutely observed, the borrower either knew or should have known (and perhaps could not have been unaware) of those overstatements. Though the borrower claimed to have not read any of the documents and that she did not know of the false statements, the record seems to indicate she was fully aware of how much she was borrowing, how much she was required to make in payments, and the other essential terms of the loan.
As the court decided, the facts in this case could not prevent the lender from foreclosing an otherwise valid and enforceable note on the property. As for those borrowers with misplaced anger over being approved for loans they should have known they could not afford, they will have to take responsibility for those loans even if the bank was complicit in helping the borrowers get into a loan above their means. If they fail to take responsibility on their own, the court will not likely allow them avoid it for long.
If you are facing a foreclosure or need help understanding your closing documents or loan, please reach out to the transactional attorneys at Icard Merrill, who have helped thousands of people complete the purchase or sale of homes.
The Supreme Court of Florida recently ruled that Section 440.15(2)(a), Florida Statutes (2009) in the workers' compensation law chapter of the Statutes is unconstitutional because it limits disability benefits after 104 weeks to a worker who is totally disabled but who has not yet reached maximum medical improvement. The basis for the determination of the Court was that this limit denies access to the court system in violation of Florida's Constitution.
Some may perhaps term this judicial activism, however, since the Court effectively stated that the law should be rolled back to a previous iteration before legislators reduced the limit from 260 weeks to 104. The decision can be found here.
The Department of Labor recently passed new changes to overtime rules, expanding protections for workers, raising the minimum salary requirements for exempt (non-overtime) employees, changing duties for certain classes of employees to provide greater potential overtime, and other changes. These changes will have a substantial impact on a great number of businesses across the country.
The text of the new rule and explanatory materials can be found here.
If you have questions about your overtime rights, or how it will affect your business, talk to our employment law attorneys today.
A recent ruling by the First District Court of Appeals in Florida provides a bit of a novelty in jurisprudence; where a statute is declared unconstitutional. Asked to determine if Sections 440.105 and 440.34 of the Workers' Compensation statutes is unconstitutional based on their individual impact on a person's ability to secure counsel in a workers' compensation case, the court stated:
Thus, we conclude that, to the extent these statutes prohibit a workers' compensation claimant (or a claimant's union) from paying attorney's fees out of their own funds for purposes of litigating a workers' compensation claim, these statutes are unconstitutional, because they impermissibly infringe on a claimant's rights to free speech and to seek redress of grievances.
Miles v. City of Edgewater Police Dep't/Preferred Governmental Claims Solutions, 190 So. 3d 171, 176 (Fla. 1st DCA 2016). The issue here was that the claimant could not find attorneys willing to take on her rather complex case at the statutorily limited amounts under the workers' compensation statute (which limit an attorney to essentially 10% of the amounts recovered over $5,000).
The First District determined that these two statues unconstitutionally impinged on the claimant's ability to secure counsel and should be invalidated. It will be interesting to see if the legislature addresses this issue or if the case is taken to the Florida Supreme Court for further determinations.
Before you decide to hire the son or daughter of a family friend or co-worker for the summer, keep in mind Florida has certain rules and regulations for hiring minors between the ages of 14 and 17. Certain restrictions are also imposed under the federal Fair Labor Standards Act (“FLSA”). Summarized below are important criteria Florida employers should be aware of.
“Work permits” are not required in Florida. However, there are certain posting requirements. Specifically, all Florida employers who hire minors must display a poster in a conspicuous place on the property or place of employment notifying them of the Child Labor Laws. The poster can be obtained through the Florida Department of Business Professional Regulation’s website (http://www.myfloridalicense.com/dbpr/reg/childlabor/documents/childlaborposter0709.pdf) or by calling Child Labor Compliance at 1.800.226.2536.
A business hiring a minor is also required to keep proof of age documentation (i.e., copy of driver’s license, birth certificate, etc.) which must be maintained throughout the duration of the minor’s employment. Unless your company is exempt from the FLSA, the records must be kept until the minor turns 19.
Summer Hour Limitations
Both Florida law and the FLSA regulate the number of hours a minor may work. Employers must adhere to the stricter provisions when the laws differ. These limitations, however, are loosened when school is not in session. For example, during the summer from June 1st through Labor Day, 14 and 15 year-old minors may work up to 8 hours each day and 40 hours per week between the hours of 7 a.m. and 9 p.m. Teenagers who are 16 and 17 may work unlimited hours during summer vacation and non-school weeks.
Under Florida law, no minor may work more than four (4) hours without a 30-minute, uninterrupted meal break. This applies throughout the year, regardless of whether school is in or out of session. Similarly, minors are not permitted to work more than six (6) consecutive days in any one week throughout the year.
In an effort to ensure a safe working environment for minors, Florida has incorporated certain “hazardous occupations” of the FLSA into the Florida law and Child Labor Rule. As such, employers are prohibited from employing minors in certain occupations, and minors are not allowed to perform certain tasks. These include, but are not limited to:
There are additional restrictions for 14 and 15 year-olds including, but not limited to:
Failure to comply with the above restrictions could result in costly penalties. Florida Child Labor laws authorize fines up to $2,500 per offense. Not surprisingly, penalties under the FLSA are even harsher, with maximum fines up to $11,000 per minor/violation. Florida law also carries potential criminal consequences, e.g., the risk of being found guilty of a second-degree misdemeanor.
Before your company offers a position to a teenager in the hopes of providing a productive and positive summer work experience, be sure to take appropriate steps to ensure compliance with the various requirements and limitations imposed under both Florida and federal law. In particular, employers should:
Hopefully, the summer experience is a good one. Should the company desire to retain the teen worker after Labor Day when school resumes, be sure to reevaluate scheduling. Hours of work become more restrictive once school is back in session.
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If you have any questions or would like guidance with the hiring of minors or other Child Labor or employment law issues, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group.
Recognition of Players as Employees Opens the Door to More than Mere Unionization On March 26, 2014, the Chicago regional office of the National Labor Relations Board (“NLRB”) issued a decision recognizing... More »