Department of Labor Weighs in on Employees vs. Independent Contractors

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The U.S. Department of Labor (“DOL”) recently posted a proposed rule meant to help employers determine whether individuals performing services are employees or independent contractors for purposes of federal wage and hour laws.  Misclassifying an employee as an independent contractor is risky and exposes an employer to potential expensive lawsuits, including for unpaid minimum wages and overtime, liquidated (or double) damages, civil monetary penalties, costs and fees, and, in some instances, criminal penalties.  In addition, classification errors can lead to employment tax claims and penalties.  Employers want more clarity and the DOL is trying to do just that.

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Twitter, TikTok, and Termination: Navigating Employees’ Social Media Usage

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With approximately 3.6 billon people expressing themselves using social media platforms such as Facebook, Twitter, LinkedIn, YouTube, Instagram, and most recently, TikTok, employers have to ask themselves some important questions regarding their employees’ usage of these applications.  Should employers set boundaries as to what they will or will not accept in their employees’ online posting activities? Can employers legally terminate an employee for something posted to their personal social media account?

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Psst, Florida HR Pros: NY Paid Sick Leave Law Takes Effect September 30, 2020

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For those employers who also have New York employees, heads up: a new leave law will apply to you starting this Wednesday.

New York has enacted a state-wide, permanent sick leave law, separate and apart from the state’s COVID-19 Quarantine Leave Law. In an unusual twist, this state law in some cases affords a greater benefit to employees than local sick leave law counterparts, such as New York City’s Earned Safe and Sick Time Act (ESSTA).

Effective September 30, 2020, New York’s Paid Sick Leave (NYPSL) Law goes into effect, which is likely to require changes to your NY policies. The new law applies to all private employers in New York, and requires paid or unpaid, job-protected sick leave as outlined below. Continue Reading

Six Months of Benefits on Furlough – Now What?

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Most businesses in this country (and the world, for that matter) remain hobbled as a result of the COVID-19 pandemic.  (Amazon is the exception.  Another notable exception is Peloton, the exercise bike maker, which is glowing in its 172% surge in total revenue, with gains in subscribers and demand for its fitness products.)  But employees in several industries, including travel, hospitality and entertainment, remain uncertain about their futures.

Many struggling but optimistic employers have continued to offer medical, dental and other benefits to employees on “furlough.”  Before the pandemic, furlough was a concept more familiar to European countries, with furlough provisions mandated by law, than to U.S. employers.  We’ve now settled on the concept that the employer has not severed the employment relationship of an employee on furlough (still active in the HR system) but the employee is not actively working and is not being paid except for the value of the benefits that the employer continues to provide.

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Labor & Employment-Related Laws from 2020 Florida Legislative Session

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The 2020 Legislative Session concluded in May and bills have been making their way to the Governor for signature. Although this has progressed more slowly than is ordinary due to the ongoing pandemic, several labor and employment-related bills have been signed into law nonetheless. Here are three particularly notable bills that went into effect on July 1st:

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Black Lives Matter Apparel At Work – Legal, Business and Social Considerations

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The Black Lives Matter (“BLM”) movement has sparked significant emotion in the past few months.  As the NBA restarts the season, TV viewers will see the phrase emblazoned on the courts and on some players’ jerseys.  What you won’t see on TV are the large employers which have faced significant backlash for attempting to prohibit employees from wearing BLM masks and other apparel.  For example, last week, several Whole Foods employees initiated a class action lawsuit claiming they have been subjected to racial discrimination and retaliation for wearing BLM masks and other clothing, even after Whole Foods reversed its initial prohibition on BLM masks.

Some employees assert that their right to free speech should allow them to wear whatever they please to work, not realizing that the First Amendment only protects them from unreasonable restrictions on speech by the government.  Legally, private employers may restrict speech as long as it does not violate other laws.

For example, if employees are engaged in concerted activity regarding the terms and conditions of their employment, the National Labor Relations Act (“NLRA”) may protect their conduct and speech.  Wearing a BLM mask could be permissible under the NLRA if employees were protesting workplace discrimination, but that’s not generally what we’ve been seeing.  Rather, employees want to express their support for the social movement that is embodied by the Black Lives Matter slogan.  Therefore, when considering restrictions on employee dress code, as with many other issues, employers must evaluate potential legal, social and business concerns all at once.

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Why Can’t We All Just Get Along?

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This sentiment is perfect for a Kenny Chesney summer concert.  Now it looks like the NLRB and the EEOC can “get along”, and at the same time make it easier for employers to appropriately discipline employees who engage in unacceptable behavior, even if that behavior occurs during otherwise “protected” activity.

The EEOC’s position uniformly has been that employers are required to discipline or terminate employees who use racial or sexual epithets at work.  Employers who do not take immediate corrective action can be held liable for discrimination and costly damage awards.  On the other hand, until this week, the NLRB took the position that taking adverse action against employees who made such comments while protesting working conditions violates the National Labor Relations Act (NLRA).  Thus, employers were often left between the proverbial rock and hard place.

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Hot Off the Presses: DOL Issues Revised FMLA Forms

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We are in the midst of a global pandemic, with many employers struggling financially to survive.  Yet, surprisingly, the biggest news from the U.S. Department of Labor (DOL) is not new safety rules intended to protect employees from the novel coronavirus.  Instead, last Friday, the DOL published revised optional-use forms to comply with the Family and Medical Leave Act (FMLA).

In early August 2019, the DOL had requested comments from the public on modifications to these forms.  Based on that feedback, the DOL has now published updated forms that employers can use to provide legally required notice to their employees and for employees to comply with their requirement to provide certification of their specific need for FMLA leave.  The updated forms are electronically fillable PDFs and can be saved electronically.

The newly revised forms include the following:

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Signing Your Life Away? – The COVID-19 Waiver

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Businesses often ask customers to sign a waiver before renting a Sea-Doo, zip-lining, tubing, or perhaps even so your child can bounce on a trampoline or in a bounce house.  But can a business use a waiver to avoid liability if a customer contracts COVID-19 after visiting the business?  Like the novel coronavirus, it is a novel legal issue.

Under Florida law, these kind of waivers are called exculpatory agreements and are frowned upon.  However, courts will enforce a waiver, even relieving a business owner from its own negligence provided the agreement is clear and understandable so that an ordinary and knowledgeable person would know what they are contracting away.  The better practice is to make it clear in the agreement that the signer is releasing the business even from its own negligence. Under these conditions, courts will enforce exculpatory contracts provided they do not violate public policy.

It is the public policy proviso that may stand in the way of an enforceable COVID-19 waiver.  A business that fails to take adequate steps to protect the public and its employees from the novel coronavirus may have a hard time convincing a court to relieve it of liability – assuming the plaintiff can prove that the business was the source of infection.  With respect to employees, it is highly unlikely that the business can waive away its duty to provide a safe workplace.  Also, although it is unclear whether Florida’s workers’ compensation law will cover a “work-related” novel coronavirus exposure, Florida law prohibits waivers of work-related injuries.

Waivers may be of little value to protect a business against claims from its employees.  The waivers may be more effective to protect a business from customers’ claims.  The best approach is to follow federal, state, and local guidelines and requirements to try to reduce the spread of COVID-19, thereby maximizing the likelihood that a court will enforce your waiver agreement.

Top Takeaways from Our Back to Work Virtual Chat

Earlier this week, we hosted a “Back to Work Virtual Chat.” As businesses begin to re-open and adjust to the “new normal”, we hoped to provide employers, big or small, with guidance to help navigate through these unprecedented times. Our goal was to provide practical information (not legal advice)  to help organizations address the various steps needed to implement back-to-work processes.

We had just under 500 folks join us and we received many good questions. Thank you to all who joined us! To our clients, if you have questions or need advice or guidance on any specific issue or workplace situation, do not hesitate to contact us. We also encourage others to contact their attorneys for additional information and guidance.

For those of you who need a refresher or weren’t able to join us, we’ve included our top takeaways below!

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