Ambushed by Public Records Act Trolls: The Risk of Exposure for Private Companies

public recordsIt’s Friday, nearly 5 o’clock and you’re getting ready to go home. A stranger appears at your office waiving a copy of the Florida Public Records Act, demanding to see your company’s records. You explain that “this is a private company and not subject to the Public Records Act”. You send him away.

The following week, you are served with a lawsuit alleging that you violated the Public Records Act and seeking fees and costs. After your attorney explains how and why you are subject to the Act, you produce the requested records – no harm, no foul, right? WRONG!

The court will still hold a hearing to determine whether you unlawfully refused to produce the records (even though the records have now been produced). If your initial refusal is found unlawful, you will have to pay the requestor’s attorney’s fees and costs for the suit. Under current law, the award of fees and costs – which can be thousands of dollars (not including your own defense costs) – is mandatory. For example, a public records custodian was ordered to pay a requestor’s fees and costs, even though the custodian produced the requested records prior to the Public Records Act hearing and even though the custodian delayed the production because it thought it had a good faith basis to withhold the documents. Continue Reading

Employee Smart Phones: Smile, Your Meeting is Streaming Live and In Color

facebook phoneLet’s go back to happier times … for Pittsburgh Steelers fans, that is. On January 15, 2017, the Steelers won the AFC Divisional playoff, moving the team to the AFC Championship game against the New England Patriots the following Sunday. (Cue the “Boos”).  The players were elated.  The post-game speech in the locker room from Coach Mike Tomlin was rousing, sprinkled with some “colorful” comments about the Patriots. He also directed the players to keep a “low profile” and their mouths shut, and to focus on preparing for the next game.  An unidentified person added, “Keep cool on social media – this is about us, nobody else.”

So how do I know about this? Steelers Wide Receiver Antonio Brown captured it all on Facebook Live as the events occurred from the locker room. Now for the technologically challenged, Facebook Live is a live streaming app that allows the user to broadcast audio and video of a live event; essentially a personal television channel.  While many players knew that Brown was live streaming and performed for the “camera” (i.e., Brown’s cell phone), others clearly did not (that perhaps explains, the one player seen on video without a towel).  Most importantly, Coach Tomlin did not know that Brown was broadcasting what he thought was a “team only” event.  Brown’s video had 1.1 million views and 20,000 shares. Continue Reading

Super Bowl 51: A Time To Review Attendance And Tardiness Policies

superbowlThe stage is set. Super Bowl 51 will arrive in less than two weeks.  But will your employees?

In January 2016, the Workforce Institute conducted a survey to assess the impact of the Super Bowl on worker productivity the next day. According to the study, 77% of Americans planned on watching the Super Bowl. The same study estimated that 1 in 10 U.S. workers (approximately 16.5 million employed adults in 2016) would miss work the day after the Super Bowl. Of those 16.5 million, nearly 10.5 million requested the day off in advance.  Those figures did not account for the estimated 7.5 million employees who arrived to work late.

No offense to the Denver Broncos or Carolina Panthers, but 2016 was nothing special. Employment consultants estimate that each year, the productivity drop the day after the Super Bowl costs employers hundreds of millions of dollars. After all, it seems like everyone will want to share their thoughts on the final play or on the best commercials. Continue Reading

Class Action Waivers: Will The Supreme Court Successfully Realign The Litigation Galaxy?

SCOTUS Supreme CourtFinally. The wait is almost over. The U.S. Supreme Court will decide whether an employer may enforce a mandatory arbitration agreement that contains a class action or collective action waiver.

Last Friday, the Supreme Court agreed to hear 3 cases stemming from the NLRB’s 2012 decision in D.R. Horton, in which the NLRB held that class action waivers violate employees’ Section 7 rights to engage in protected, concerted activity. D.R. Horton created uncertainty whether, for example, an employer, through an arbitration agreement, may force an employee to waive his or her right to pursue a class action minimum wage or overtime claim, or a Title VII discrimination claim, in an arbitration proceeding. Continue Reading

What’s in YOUR COBRA Notice? Insufficiencies Could Drain Your Wallet

drain wallet-money

SunTrust Banks learned an expensive lesson about COBRA compliance recently. It was sued for failure to send proper COBRA election notices after employees terminated employment. SunTrust’s agent for COBRA notice purposes, Xerox HR Solutions, actually sent timely COBRA notices to the former employees.  But two former employees/plaintiffs claimed that the notices were legally insufficient and, as a result, “misleading and confusing.”  The notice directed them to a website to elect COBRA coverage but they apparently could not figure out how to actually make the COBRA election. As a result, the two former employees did not obtain COBRA coverage. 

The two former employees filed a lawsuit seeking “class action” status to include other former employees to make their lawsuit more meaningful to SunTrust.  They alleged the SunTrust COBRA notice was deficient because it did not adequately address two of the 14 content requirements of the Department of Labor’s COBRA notice regulations.  Specifically, they said the notice: (1) failed to state the name and address of the party responsible for administration of COBRA benefits and (2) failed to provide the COBRA election procedures or election forms. Continue Reading

Florida’s Medical Marijuana Constitutional Amendment Takes Effect Today

medical marijuanaThe Florida Medical Marijuana Legislative Initiative (also known as Amendment 2), passed with 71% of the popular vote on November 8, 2016.  Amendment 2 allows the medical use of marijuana for individuals with certain debilitating medical conditions as determined by a licensed Florida physician.  Because Amendment 2 is silent as to its effective date, under Florida law it becomes effective “the first Tuesday after the first Monday in January following the election.”  If you’re still on your holiday high (pun intended), that means – today.  Continue Reading

The EEOC Rings Out 2016 with End of the Year Stats

2016 review

We all love factoids-right? So if you are heading out to a New Year’s Eve Party this weekend and need a few icebreakers to get the conversation going, the U.S. Equal Employment Opportunity Commission (“EEOC”) has come to the rescue.

The EEOC recently provided a brief review of its fiscal year which ended September 30. Feel free to use any of the highlighted stats below:

  • 91,503 charges were received by the EEOC this fiscal year and 97, 443 were resolved;
  • pending EEOC charges were reduced by 3.8 percent to 73,508, which is the lowest pending charge workload in the last three years;
  • 15,800 charges were settled by the EEOC pre-litigation;
  • The EEOC filed 86 lawsuits alleging discrimination (58 involved individual suits and 29 involved multiple victims or discriminatory policies)––the number of suits filed is lower than in prior years;
  • The EEOC ended the year with 165 cases that it was still actively prosecuting (of which 47 (28.5 percent) involve challenges to systemic discrimination and an additional 32 (19.4 percent) are multiple-victim cases)––the number of suits pending is also lower than in prior years;
  • The EEOC secured more than $482 million for victims of discrimination in private, state and local government, and federal workplaces (It took the EEOC’s annual budget of over $364 million to do this.);
  • $82 million dollars that was secured went to federal employees and applicants who claimed discrimination by the U.S. Government; and
  • The EEOC launched four digital services, including the EEOC’s Respondent Portal, which allows employers to receive digital notices of charges and to submit online responses. Additionally, members of the public can now make online requests for information under the Freedom of Information Act (“FOIA”).

Continue Reading

Employment Law Changes Likely Ahead

change aheadWith a new administration, folks in the employment world are anticipating change.  Here are some key issues to keep your eyes on:

  • Salary Test for Certain Overtime Exempt Employees– Expect the DOL to pull back or not enforce new regulations nearly doubling the salary threshold for the “white collar” exemptions to the overtime provisions of the FLSA (assuming they survive the current pending court challenges).
  • Right-to-Work– More states may pass legislation prohibiting requirements that unionized private-sector employees pay union dues. In fact, there may be enough support for national right-to-work legislation. Also expect the Supreme Court to revisit its recent decision in Friedrichs v. California, achieving the same result in the public sector.
  • Joint Employment– Expect the new Board to revisit its recent expansion of the definition of “joint employer.” The Board recently expanded the definition of “joint employer” to include temporary workers. This not only increases the risk that companies that use temporary employees may be deemed “joint employers” with temp agencies, but it also aids union organizing by allowing temporary workers to be included within the same bargaining unit as full-time employees.   It is also likely that the new Board will clarify that franchisors are not ordinarily “joint employers” with the employees of their franchisees.
  • Expedited Elections– It is likely that the new Board will address the issue of “quickie elections.” The current Board significantly reduced the time from union petition to election. This allows employers less time with which to inform their employees that the only guarantee that unionization currently provides is union dues.
  • Micro Units– The current Board has supported the notion that very small groups of employees may unionize. This helps carefully engineered proposed units to gain majority support for unionization, while increasing the likelihood that one company is forced to deal with several competing labor unions. This is yet another area where change is expected to be on the way.

New Law Widens Insurance Options for Eligible Small Employers

news update-01

A new law passed by Congress reinstates the ability of eligible small employers to reimburse employee paid premiums to purchase individual health insurance policies. The law reverses the application of huge penalties that would have applied to such reimbursement actions under the IRS’ interpretation of the Affordable Care Act.

The new law (the 21st Century Cures Act) takes effect January 1, 2017 and includes a retroactive exemption eliminating application of huge IRS fines on eligible small employers who made premium reimbursements before 2017.  Eligible small employers who want to use the new option for 2017 can do so, but must act fast.

Under the new law, eligible small employers can establish special health reimbursement accounts (called QSEHRAs) that provide funds to employees to pay for eligible medical expenses (as defined by the IRS). The expenses covered can be those of the employee and/or his or her dependents such as premiums to purchase individual health insurance policies and out of pocket medical expenses. Premiums to purchase other group health coverage, such as through the spouse’s employer, are not reimbursable. Continue Reading

Bob Turk Inducted As Fellow of The College of Labor & Employment Lawyers

Turk_Robert_HeadshotLast month, our Labor & Employment Department Chair Bob Turk was inducted as a fellow of The College of Labor & Employment Lawyers, one of the highest honors that can be bestowed on an attorney practicing in the field of labor and employment.  The College of Labor & Employment Lawyers is a non-profit professional association honoring the leading lawyers in this field throughout the country.

Fellows are recognized as distinguished members of the labor and employment community who promote achievement, advancement and excellence in the practice by setting standards of professionalism and civility, by sharing their experience and knowledge and by acting as a resource for academia, the government, the judiciary and the community at large.

In addition to his successful Labor & Employment practice, Bob makes an impact in the field. He is past Chair of the Labor & Employment Law Section of The Florida Bar and past President of the Academy of Florida Management Attorneys. He is also actively involved with the South Florida Hospitality Human Resources Association.

Bob lectures regularly to various legal and business groups. He is the mastermind behind our Annual Labor & Employment Law Seminar (approaching its 27th year – stay tuned for more info) and editor of BeLabor The Point blog which was recently recognized as one of the ABA’s top 100 legal blogs!

Bob continues to impress. Please help us in congratulating our colleague and friend on this well-deserved honor.