Sixteen Years after Hurricane Mitch – Extended Work Authorization

hurricaneIt is hurricane season in Florida, but I am writing with emergency preparedness advice. I am writing about the lingering effects of Hurricane Mitch, which struck Central America in 1998, killing more than 11,000 people, destroying hundreds of thousands of homes, and causing more than $5 billion in damage. El Salvador, Honduras, and Nicaragua were hit especially hard, and since 1999, the United States has offered Temporary Protected Status (TPS) to qualifying citizens of these three countries who were present in the U.S., whether lawfully or not, at the time.  The United States has repeatedly extended TPS status in 18 month increments.  In May, the Department of Homeland Security (DHS) extended TPS status for qualifying citizens of Honduras and Nicaragua – from July 6, 2016 to January 5, 2018.  On July 8, DHS also extended TPS status for citizens of El Salvador – from September 10, 2016 to March 9, 2018.

Employers must be aware of the TPS extension announcements because, with each announcement, the DHS automatically extends the work authorization of applicants while they await the production and delivery of new Employment Authorization Documents (EADs). Citizens of Nicaragua and Honduras in the TPS program had EADs that expired July 5, 2016.  The DHS automatically extended their EADs to January 5, 2017.  These individuals will get new EADs valid to January 5, 2018.

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There is a New EEOC “Sheriff” in Town!

sherriffI recently attended a breakfast meeting with Michael Farrell, the new District Director for the Miami office of the U.S. Equal Employment Opportunity Commission. The Miami District Office has jurisdiction over the State of Florida (excluding a few counties in Florida’s Panhandle), as well as Puerto Rico and the U.S. Virgin Islands.  Federico Costales was the Miami District Director for many years.  Upon his retirement a few years ago, a parade of individuals filled the position for short periods of time.  As a result, the District seemed to lose its focus.  This resulted in varying practices among EEOC investigators and a backlog of charges of discrimination awaiting review.  However, Director Farrell is the new Sheriff. After 5 months in office, he has plans to refocus the Miami District Office.

By way of background, Mike is an attorney who spent approximately 16 years with the EEOC’s Miami and Los Angeles Offices as one of its senior trial attorneys. He left the EEOC for private practice, representing employees.  He has now returned to the EEOC to lead the District.

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Non-Compete Agreements Under Attack

“I‘m in Competition with Myself and Losing.” – Roger Waters

fight backAgreements restricting employees’ ability to compete against their employers are commonplace in the American workplace.  They serve as an effective means by which employers can protect their legitimate business interests in, among other things, their customer relationships, their trade secrets and intellectual property as well as their investment in the training and education they often provide employees. 

In most states, courts will enforce a restrictive covenant which is narrowly drafted to protect the employer’s legitimate business interests.  However, non-compete agreements have come under attack recently.  In New York, a legal news publisher recently settled litigation with the New York Attorney General by agreeing not to enforce non-compete agreements with reporters and certain other editorial employees (the argument being that the employer could have no legitimate business interest to protect by enforcing restrictive covenants against employees in those positions).  In Florida, an appellate court recently held that referral sources are not business interests which can be protected with a non-compete agreement.  Several states have enacted legislation restricting the enforceable scope of non-compete agreements including Hawaii (banning the agreements in technology jobs), New Mexico (banning restrictive covenants in health care jobs), Oregon (imposing an 18 month limitation on non-compete agreements) and Utah (limiting restrictive covenants to one year in duration). 

In May, the White House issued an analysis of non-compete agreements which, while acknowledging the usefulness of non-competes, focused on the adverse impact these restrictions have on employees and potentially on the economy. 

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The Writ (and Wisdom) of Wage Garnishments

locked bankYour employee, Debbie Deadbeat, doesn’t pay her debts and gets slapped with a judgment. Before you know it, a process server comes to your office and serves you with a continuing writ of garnishment of Debbie’s salary and wages. First:  What is a Writ?  Second:  What should you do about it?

A Writ is essentially a command from the court.  In this case, a Writ of Garnishment is a command to withhold a portion of the employee’s pay to cover a debt the employee owes to someone else.  When you receive a writ of garnishment, you have 20 days for your lawyer to file a written response to the writ with the court that issued it. (Hopefully, you already have a process in place so that court documents get appropriate attention and don’t languish on someone’s desk.)

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You Want to Raise the Minimum Wage to WHAT?!?!

money happyA year ago, Gravity Payments CEO Dan Price announced plans to raise the salary of every employee to $70,000 by 2017, even entry level staffers.  In order to help offset the increased labor costs, Price announced his intention to lower his own salary from $1,000,000+ to $70,000 (he apparently made around $2,000,000 in 2012).  Needless-to-say, Price achieved instant celebrity status and even graced the cover of Inc. magazine.  Some, on the right, labeled him a socialist. 

Insane, right?  (Do the math:  assuming a work-year totaling 2,080 hours, that is an hourly rate of $33.65.  Overtime amounts to just over $50.00 per hour!)  No way a company can survive if it overpays what the market demands by that amount of money, right?  This must have been a ploy.  Some doubted Price’s true motivations.  It seems that not long before Price’s seemingly mind-boggling announcement, his brother (who also appears to be his partner) sued Price alleging that Price’s personal compensation was excessive, and asked the court to force Price to buy out his minority interest in the company.  Price decided in advance of the trial to turn over company financials to USA TODAY so company performance would be within the public realm.  And the financials offer an interesting glimpse into how the raise has impacted company performance. 

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Top Takeaways from our 26th Annual Labor & Employment Law Seminar

header-01With over 400 attendees from more than 200 employers, our 26th Annual Labor & Employment Law Seminar was a huge success! Thank you for allowing us to keep you “on Track”.

For the first time this year, following our morning sessions, attendees were able to choose from our “high-speed” track designed for experienced HR professionals or our “Hop Aboard” track covering broader HR fundamentals.

Below are the top takeaways from each of our sessions.

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NEW OVERTIME RULE DOUBLING MINIMUM SALARY REQUIREMENT EFFECTIVE DECEMBER 1

overtime 2Well, finally. This morning, the U.S. Department of Labor (DOL) issued its final rule, about two years and two months after President Obama directed the Department to update, streamline and modernize overtime regulations under the Fair Labor Standards Act (FLSA).

The Department estimates that the compensation of more than four million workers will be impacted by the new rule, the majority of whom are between the ages of 25 and 54.  More than two-thirds of the affected workers have at least some college education. Most will be women.  And fully one-fourth work in California, Texas or Florida. 

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Payperless Paydays – Paycards: A Good Alternative To Direct Deposit?

creditcardsFor years, employers have looked for ways to implement a one-size-fits-all paperless (all electronic) pay system for paying employees’ wages.

While direct deposit is a good option, there are very few states that allow an employer to implement direct deposit if an employee does not agree. Florida is not one of those states. Even still, in the few states that do allow employer-required direct deposit (e.g., Indiana), federal law requires an employee be allowed to choose the financial institution receiving the funds and state laws impose other strict requirements.

Now that paycard offerings are becoming increasingly more available, can employers finally go fully paperless? Continue Reading

What You Need To Know About a New Federal Law To Protect Trade Secrets

trade secretAnd people say Congress and the White House can’t agree on anything. Last week, by a vote of 410-2, the US House of Representatives passed the Defend Trade Secrets Act.  The Act will become law.  It has already been unanimously approved by the Senate and President Obama has indicated he will sign it.

The new law will do several important things.

  • First, it allows the owners of trade secrets to sue in federal courts, thought to be far more suited than state courts to the expedited relief necessary when confidential and proprietary business information has been misappropriated.
  • Second, a controversial portion of the Act provides for civil seizure of property “necessary” to prevent the dissemination or propagation of a trade secret – even (in extraordinary circumstances) before a hearing is held or the accused party has a chance to respond.
  • Third, the Act permits individuals to make certain disclosures of trade secret information in anti-retaliation lawsuits.
  • Fourth, the Act immunizes an individual from criminal or civil liability for disclosing trade secrets to government officials, attorneys, or in litigation, in specific circumstances.
  • Finally, the Act requires employers to provide notice of that immunity in “any contract or agreement” with an employee, contractor or consultant that governs the use of trade secret or other confidential information,” or by cross-referencing to a policy document that sets forth the employer’s reporting policy for a suspected violation of law.

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FMLA Update: New Poster and Employer Guide

updateThe Wage and Hour Division of the U.S. Department of Labor (DOL) has been busy with the Family and Medical Leave Act (FMLA) this week!

New FMLA Poster

There is a new FMLA General Notice, aka FMLA poster: Employee Rights Under The Family and Medical Leave Act. The substantive information about the FMLA is generally the same as the February 2013 poster (the one you currently have posted), but the poster has been redesigned and the DOL’s contact information for “additional information or to file a complaint” is printed in much larger type and highlighted with a green background.  The poster also includes a QR Code, which when scanned should take you to the DOL’s Wage & Hour Division home page.

The new poster is dated 04/16, so it is effective immediately. However, you do not have to immediately change the posters in your workplace because, per the DOL, the “February 2013 version of the FMLA poster is still good and can be used to fulfill the posting requirement.” (The DOL did not give any indication of when the February 2013 poster will expire.)  This is good news if you have the all-in-one posters or have printed employee handbooks which contain a copy of the poster as part of your FMLA policy.

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