All entries tagged with “labor law”

UPDATE: Appeal Of Department Of Labor's Overtime Rule Delayed.... Again

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.

Employer Enjoys Presumption of Harm in Non-Compete Injunction

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). 

First Annual Hot Topics in Employment Law Seminar

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?

  • Executives
  • Managers
  • In-House Counsel
  • Human Resources Professionals

Details Regarding This COMPLIMENTARY Seminar:

DATE: January 27, 2017
TIME: 8:30 a.m. - 10:00 a.m.
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 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.

Sexual Orientation Discrimination Under Title VII: Decisions Anticipated From U.S. Courts Of Appeals Soon

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. 

UPDATE: Department of Labor's Appeal of Injunction On Fast Track Before Fifth Circuit Court of Appeals

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.

Court Cases on Two Hot-Button Employment Topics

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 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. 


Hurry Up and Wait! December 1, 2016 Deadline for Implementation of the Department of Labor's New Overtime Exemption Regulations Enjoined by Federal Court Judge

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

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.

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:

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: 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.  

Isolated Rule Violation and Good Faith Error in Unemployment Claims

In another lesson to employers and human resources management, a recent decision once again highlights the importance of documentation when it comes to challenging unemployment compensation claims by employees purportedly terminated for cause.

The court in Williams v. City of Winter Haven, essentially provided employers with a mandate with respect to documentation, finding that “an isolated rule violation based on a good faith error in judgment does not amount to misconduct that would justify a refusal of benefits.”  41 Fla. L. Weekly D1657 (Fla. 2d DCA July 15, 2016).  This stems from the court’s interpretation of the term “misconduct” as defined by section 443.036(29), Florida Statutes.

Employers should read this pronouncement from the court to mean that an employer must show evidence (read: documents) that the employee undertook multiple violations of a known policy.  How do employers show this?  Employers should have proof in writing (by email or signature list) of receipt of a copy of a written policy, written evidence of coaching, corrective action, or other employee feedback for the problem employee showing how they were made aware of the policy and how their conduct was violating it, and at least one or more follow up documented corrective action discussions with the employee prior to termination.

Employers should keep in mind, “[t]he unemployment compensation statute must be liberally construed in favor of the claimant, and the “‘disqualification provisions, being remedial in nature, are to be narrowly construed.’” Id., quoting Davidson v. AAA Cooper Transp., 852 So. 2d 398, 401 (Fla. 3d DCA 2003).  The final takeaway from this notation by the court is that employers would be best served by implementing a thorough (and legally appropriate) interview and hiring process to screen applicants as well as a robust training and coaching program designed to bring in great applicants, train them for success, and retain them.   This will be far more cost effective (and operationally sound) than perfecting the challenge process for unemployment claims. 

For answers to your questions about unemployment compensation, sound human resources strategies under Florida and Federal law, or other questions about employment, speak Icard Merrill’s highly-qualified employment attorneys today.

Enforcement of Non-Competition Agreement Update

As the pendulum of non-competition agreement enforcement seemingly swings back and forth, we recently got an update on the arc of that sweep from the Third District Court of Appeals. 

In Telemundo Media, LLC v. Mintz et al., the Third DCA reversed a trial court's refusal to enter a temporary injunction against a Spanish television executive  who had a non-compete for a period of six months that spanned the entire United States.  Using somewhat standard boilerplate terminology, the Court found that the defendant had agreed his employer would be damaged irrevocably by his departure and subsequent employment with a competitor. 

Therefore, the Court found injunctive relief appropriate and reversed the trial court's refusal to enter one.   Thus, we see again that the best means of protecting yourself from an overbearing non-compete agreement is by disagreeing with the language at the time or refusing to sign in the first place.  

Employers in some cases sacrifice a great deal or put substantial assets into key employees, so having that person leave and take their talents (and, in some cases, secrets) to another employer in the marketplace can have a substantial impact.  In those cases, non-competes are both necessary and valuable.  However, it remains up to the employee whether they want to either negotiate the terms of the agreement or refuse to sign and roll the dice on a possible termination of employment. 

Speak to one of our employment attorneys today to find out your rights and options.

Worker's Compensation Statutory Provision on Fees Ruled Unconstitutional

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. 

Labor Law in College Athletics: The Possible Impact of Northwestern Football Players

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 student-athletes of Northwestern University as employees of the school. There are several important findings within the Chicago office’s decision that could have widespread ramifications in the world of college sports and labor law:

  1. The decision found that, unlike other students who offer additional services to the University such as graduate assistants, the players are not primarily students based on the amount of time the players spent on football versus the time they spend in the classroom;
  2. The decision found that the scholarships offered to the football players were unrelated to the players’ academic studies and were premised almost entirely upon the players’ athletic abilities and performance;
  3. The decision found that the scholarships not only provide value to the players in exchange for their football performance and activities, but also provide a financial incentive whereby Northwestern can exert control over the players’ activities athletically, academically, and socially, creating an employment relationship;
  4. While the decision found that Northwestern places a high value on the players’ academic education, it further found that the players are controlled by their coaches to such a degree that the University must make extraordinary efforts in order to ensure that the players receive an education;
  5. Non-scholarship players (“walk-ons”) were found to have nothing tying them to the team except their love of the game and the strong camaraderie that exists between the players, which is essentially the reason set forth by the National College Athletics Association (“NCAA”) as to why amateurism exists in college sports.
  6. Finally, the decision ordered a test-case election to be conducted in which the Northwestern football team would vote on whether or not to form a union.

The players cast their votes on April 18, 2014. However, the results have been impounded until a review of the decision is rendered by the three-person panel based in Washington, D.C., who agreed to hear the case on April 24, 2014. Most experts agree that the results of the vote itself matters little. If the review board affirms the decision of the Chicago office, the players will still be employees of the school regardless whether they decide to form a union or not. This legal status makes scholarship college players akin to professional players and, as the National Football League’s (“NFL”) history proves, is far more important than forming a union.

The present situation with Northwestern indicates that the NFL’s past history is set to repeat itself on the college level. There are a number of striking parallels between the current situation of the Northwestern football players and the most recent labor conflict within the NFL.

First, the main actors in both conflicts are not the players but members of the legal system, especially the attorneys for both sides.

Another parallel is that the institution in both cases, e.g., Northwestern University and the NFL, threatened to take away the season rather than negotiate. Northwestern’s president has recently suggested the university would eliminate the Division I program before negotiating with a players’ union, while the NFL locked out its players before the 2011 season.

Most importantly, as pointed out by an expert in the field, Northwestern and the NCAA are focused on archaic issues. Michael H. Leroy is the author of “Collective Bargaining in Sports and Entertainment” and a professor at the University of Illinois at Urbana-Champaign. His article shows that throughout its history, the NFL has always successfully opposed the tactics of the players’ union.

The real threat to the NCAA, as it was to the NFL, is antitrust lawsuits brought by the players. If the players at Northwestern are affirmed as employees, they could have the same ability as their professional counterparts to sue without a union. Just possessing the power to do so could be enough to completely alter the face of college athletics.

To learn more about labor law in general, continue browsing our blog and knowledge center, or contact us to discuss your case today.