Although Florida employers have no obligation to give a reason or cause for terminating their “at will” employees, their failure to give a reason at the time of termination may increase litigation costs. In Mock v. Bell Helicopter Textron, Inc., the Eleventh Circuit held that the employer’s refusal to give the employee a reason on …
Employers must proceed with caution in drafting, presenting, negotiating, and executing severance agreements with current or former employees. A carefully drafted and properly executed severance agreement can provide a win-win exchange of financial benefits, release of liability, confidentiality, non-compete, non-disparagement for both parties. However, hastily drafted agreements may not be enforceable at all, particularly if …
The Good, the Bad, and the Ugly of Severance Agreements. Read More »
The ability to enforce a non-competition clauses often turns on what some unwisely deem “form” contract provisions dealing with “consideration”, “choice of law”, “merger” of prior agreements and “successor and assigns.” To avoid common pitfalls, employers should have existing agreements reviewed for enforcement problems and consult with employment counsel about drafting new ones.
Deciding who should investigate a workplace complaint is critical to an effective defense against an EEOC charge or other employment claim. Management should consult employment counsel on how the selection of a particular investigator will implicate the following considerations: 1. preserving attorney-client privilege to investigation itself; 2. preserving attorney work product doctrine protections for investigative …
The importance of maintaining organized personnel files is widely overlooked. Many employers, however, are unaware of federal and state laws that require employers to maintain personnel records for various time periods. Maintaining proper personnel files will avoid fines for noncompliance and also become the foundation for defending against unfounded claims of wrongful termination, unpaid overtime …
Maintaining Organized Personnel Files Can Ultimately Reduce Unnecessary Fines. Read More »
The EEOC recently determined that LGBT employees are protected from discrimination under Title VII. This is a major shift from prior determinations of the EEOC. The EEOC limited this new interpretation to federal workers. However, the ruling may result in similar rulings by courts as they consider private sector claims. Courts have traditionally ruled that …
The EEOC Sets New Precedent Regarding LGBT Cases. Read More »
When faced with a complaint of workplace discrimination or other misconduct, employers sometimes wait too long to start an investigation, wrap-up an investigation too early, fail to ensure all staff members are safe pending an investigation, fail to interview all relevant witnesses and/or select the wrong investigator. Management should consult employment counsel to determine how …
In a March 2013 decision of the U.S. Circuit Court of Appeals, Eleventh Circuit, the court rejected arguments of a hurricane shutter company that 7 undocumented workers were not entitled to recover unpaid overtime compensation based merely on their status as “undocumented”. To the contrary, the court held that undocumented workers were covered as “employees” …
Employers are increasingly requesting employees to arbitrate all employment disputes as a condition of employment or continued employment. Courts generally enforce such agreements pursuant to the liberal federal policy (under the Federal Arbitration Act) favoring arbitration agreements. In Walthour v. Chipio Windshield Repair LLC. (March 21, 2014), the Eleventh Circuit U.S. Court of Appeals joined …
Religious discrimination charges filed with the EEOC are on the rise. Title VII prohibits harassment and discrimination because of one’s religion as well as retaliation against an employee who complains of such misconduct. To minimize the risk of costly litigation, employers should 1. Revise employee handbooks to prohibit religious harassment and discrimination in the same …
Except for the breaks required for minors and the newly required lactation breaks for mothers after the birth of a child, employers are not generally required to offer work breaks. But for employers that do give their employees a break, they must follow strict rules to avoid unpaid overtime lawsuits. For example, an employer must …
In response to concerns regarding security issues arising from employees’ personal use of work-provided smartphones, the solution of a split-personality smartphone may put those fears to rest. CNN has reported that many companies, such as AT&T, are presenting the idea of dual purpose smartphones. “Toggle,” for example, is a service that “separates an Android phone …
Dress code requirements, such as prohibiting all tattoos and body piercing, may be seen as religious discrimination under Title VII. Title VII requires employers with 15 or more employees to “reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer.” Many religious practices today include the use …
Dress Code Requirements may Violate Title VII of the Civil Rights Act. Read More »
Often employers believe that hourly employees don’t have to be paid for time spent away from their regular duties and travelling between work locations or attending work functions and seminars. However, wage and hour laws contain very technical rules that govern when an employee must be paid for travel times before, during, and after an …
Determining How to Pay Hourly Employees for Travel Time Read More »
A forum selection clause within a contract allows parties to agree that any litigation resulting from a conflict within a contract will be conducted in a specific forum. In some circumstances, an employee and his or her new employer, a non-signatory, may be bound to the terms within a binding non-competition agreement with a prior …
How One Word Can Change Everything: Forum Selection in Non-competition Agreements. Read More »
In the last couple of years, cases where an employee is fired after getting injured on the job and subsequently filing a Workers’ Compensation Claim are becoming more prevalent. However, under Section 440.205 of the Florida Statutes (which specifies that following a work-related injury, a covered employee may file a claim under the Florida Workers’ …
Firing After Filing: Illegal Retaliation under Florida Law? Read More »
Because the FLSA (federal wage and hour law) requires payment for all time that nonexempt workers are “suffered or permitted” to work regardless of whether it is recorded on a time sheet or whether it occurs outside of a scheduled workday, employers should implement training and policy to avoid all “off-the-clock” work. The following are …
While many employers rely on their ability to perform background checks to ensure a reliable workforce, the U.S. Equal Opportunity Commission (EEOC) has recently cracked down on “blanket policies” concerning who becomes ineligible for a job based merely on a criminal background check. The EEOC has opined that such blanket policies may unintentionally result in …
Knowing the Dos and Don’ts of Criminal Background Checks Read More »
EEOC charges alleging religious discrimination have risen dramatically in last 15 years. Religious accommodation disputes generally occur when an employee’s work schedule conflicts with a religious observance and when the work dress code is inconsistent with an employee’s religious dress and grooming obligations. To avoid many such conflicts, employers should consult counsel to establish a …
It is difficult for administrative staff with part-time H/R duties to intuit the right answer to payroll requirements under the FLSA (Fair Labor Standards Act). Properly classifying employees as “exempt” or “non-exempt”, determining payroll deductions and calculating the correct “regular rate” for overtime require technical knowledge of DOL regulations and Opinion Letters. For example, the …
Costly “Technical” Violations of Wage and Hour Laws Read More »
Wage and hour lawsuits are still among the most frequent claims by current and former employees. Resolving such claims with out-of-court settlements cannot be guaranteed because the federal wage and hour law (“FLSA”), like many employment statutes or related regulations, does not allow employees to waive their rights to receive full relief without court approval …
Increased interconnectivity across the social media world has clouded the clarity regarding an employee’s right to post information critical of his or her employer or coworkers and the subsequent ability of the employer to institute policies to restrict publication of that information. Under Section 7 of the National Labor Relations Act (NLRA) (which emphasizes the …
Social Media Posts May Constitute Protected “Concerted Activity.” Read More »
Many employment statutes or related regulations prohibit or limit the right of employees to waive statutory rights. For example, employees may not waive their rights to receive minimum wages or overtime pay under the Fair Labor Standards Act without court approval or Department of Labor supervision. Similarly, regulations issued under the Family Medical Leave Act …
Employees May Still Sue Notwithstanding Severance Agreements With General Releases. Read More »
On July 15, 2015, The Department of Labor narrowed the definition of “contractor”, which will result in the Department designating more workers as employees as opposed to independent contractors. The classification of a worker as an employee or contractor is determined based upon how integral their work is to the business, the skills required for …
The Department of Labor and IRS crack down on employee vs. contractor designation Read More »
In the recent case of Young vs. UPS, the U.S. Supreme Court ruled that employers would have a high legal burden to pass if any of their policies provided accommodations to some employees but not to pregnant ones. If an employer has a policy for accommodating some employees under the Americans with Disabilities Act or …
To have unpaid interns, employers must comply with six federal legal criteria. Three such criteria most often overlooked are: (1) internships must pertain to the training unpaid interns receive at their vocational schools, (2) employers must not receive immediate advantages by having such interns, and (3) unpaid interns must not displace paid workers. If any …
Calculating overtime pay is more complicated when employees tend to work longer shifts toward the end of an established workweek than at the beginning of that workweek. The amount of overtime may depend on where the workweek begins. Most employers utilize form policies that establish Monday through Sunday workweeks. This standard designation may not be …
The Fair Labor Standards Act (FLSA) does not require employers to provide an extra day off for employees that work on holidays. For employers that elect to establish such a holiday policy, that policy should be consistent with any other relevant state or local laws, employment contracts, and collective bargaining agreements. Some questions that should …
Are Employers required to give an extra day off for every holiday worked by an employee? Read More »
