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

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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.

Warnings for Your Company Holiday Party

holiday party boozeIt is that time of year again – Holiday Party Season!  What’s a party without alcohol, and what’s a law blog without a curmudgeon preaching moderation and reasonableness? (Paramount Pictures’ 2016 trailer for Office Christmas Party shows just how out of control these parties can get!)

We all know the dangers of drinking and driving. Even if an employer can escape legal liability for the drunken actions of an employee, no company wants the public relations black eye or the moral guilt that will surely follow. Employers should take steps to limit consumption of alcohol at the holiday party. Employers may wish to have a cash bar or require employees to use a limited number of tickets to “purchase” drinks. Employees should be discouraged from giving their drink tickets away to coworkers. The company should hire professional bartenders and instruct them to require identification from guests who do not look substantially over 21 and to refuse to serve and to report any guest who the bartender feels has “enjoyed one too many.” Employers should also arrange free transportation home for any employee who cannot or should not drive. Services are available that will not only drive the employee home but also his or her car. Many companies are even paying for Uber of Lyft event codes that their employees can use to get home safely. Continue Reading

New DOL Overtime Regulations On Hold – Now What????

questions mark signLate yesterday, a Texas federal Judge issued a nationwide temporary injunction halting the Department of Labor’s (“DOL”) new overtime regulations, which were set to significantly increase the minimum salary required for the executive, administrative and professional overtime exemptions (known as the white collar exemptions). This unexpected ruling prevents the DOL from implementing the new regulations, which were set to go into effect on December 1st.

The new regulations were introduced back in May and sought to increase the minimum salary threshold from $455/week to $913/week for individuals employed in exempt executive, administrative and certain professional positions. The regulations did not modify the existing duties test, which meant that in addition to satisfying the new salary threshold the worker must continue to meet the actual duties of either an executive, administrative or professional employee to avoid any entitlement to overtime compensation. This increase was expected to impact more than 4 million workers who were anticipating either hefty salary increases or eligibility for overtime as of December 1stContinue Reading