Independent Contractor or Employee? It’s Complicated

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Worker classification just got as complicated as Ross and Rachel’s relationship status on ‘Friends’! Last month, the U.S. Department of Labor (DOL) issued a new rule on how to classify employees and independent contractors under the Fair Labor Standards Act (FLSA).

Moving forward, the DOL will use a multifactor, “totality-of-the-circumstances” test to determine whether a worker classifies as an employee or independent contractor. Under the new rule, employers must weigh the following six factors, without giving greater weight to any individual factor:

  1. the worker’s opportunity for profit or loss depending on managerial skill;
  2. investments by the worker and the potential employer;
  3. the degree of permanence of the work relationship;
  4. the nature and degree of control;
  5. the extent to which the work performed is an integral part of the potential employer’s business; and
  6. the worker’s skill and initiative.

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Happy Holidays from Stearns Weaver Miller’s Labor & Employment Department!

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Thank you for being a subscriber. Wishing you a joyous holiday season and happy, healthy year ahead.

We hope that BeLabor the Point has brought you important information throughout the year and a few smiles along the way. Speaking of smiles, click on the image below to view our Labor & Employment Law Department’s holiday card!

Navigating the Naughty and Nice of Holiday Office Parties

‘Tis the season to be jolly, but also the season to be vigilant. Although this time of year is great for fostering camaraderie, it can also present challenges for HR. The office holiday party, in particular, can be a potential minefield of HR issues. View our previous blog posts by Janet McEnery and Glenn Rissman for a few tips to help you navigate your holiday party planning.

Some Recent Developments in Employment Authorization: TPS Extension for Venezuela and Five-Year EADs

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The Department of Homeland Security recently announced that it will extend Temporary Protected Status (TPS) for Venezuela for eighteen months.  TPS for Venezuela is currently set to expire on March 10, 2024.  Based on an advanced copy of the Federal Register Notice, the re-designation will extend TPS for Venezuela to April 2, 2025.  The U.S. Citizenship And Immigration Services (USCIS) will also automatically extend the Employment Authorization Document (EAD) of Venezuelan nationals through March 10, 2025.  To qualify for the automatic extension, the individual must currently hold an EAD with the notation A-12 or C-19 under “Category” and the EAD card must expire on March 10, 2024 or September 9, 2022.  The employee must also re-register for TPS but the employer may not ask for proof that the employee re-registered for TPS or proof of the employee’s Venezuelan citizenship.

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HERE WE GO AGAIN? COVID-19 Protocol Refresher

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COVID-19 infections are on the rise, and this week, the CDC and the FDA approved a new booster, recommending that all eligible people get the new COVID vaccine (as well as a flu shot) this Fall.  Are we heading back to mask mandates and quarantines?  No. But with the recent uptick in infections, perhaps now is a good time to refresh your employees’ recollection on COVID-19 protocols as more employees are likely to become sick in the coming months – clearly COVID-19 is not going away.  So here are some reminders summarized from the Department of Labor’s recent guidance for its employees.

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Florida’s Minimum Wage Increases to $12 on September 30!

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Florida’s minimum wage is currently $11 per hour. This is just a friendly reminder that on September 30, 2023, Florida’s minimum wage increases to $12 per hour. The new overtime wage rate will increase in tandem to $18 per hour.

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Is Civility in the Workplace Dead?

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Prior to 2020, the National Labor Relations Board (NLRB) took a three-pronged approach to analyzing whether vulgar, threatening, or offensive speech by employees fell inside or outside of the protections of section 7 of the National Labor Relations Act (NLRA). As we discussed at our recent breakfast seminar, depending on the context in which the vulgar or offensive speech was made, the NLRB would apply a different standard to determine its protection – the three scenarios the NLRB was prepared to address were speech towards management in the course of negotiations, speech on social media and among employees, and speech on the picket line.

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The Moment We’ve All Been Waiting For . . . .

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The Pregnant Workers Fairness Act (“PWFA”) goes into effect today!  For those of you who attended Stearns Weaver Miller’s Labor & Employment Law Breakfast Seminar on June 2, 2023, I discussed two new laws that were passed as part of the Consolidated Appropriations Act of 2023 signed by President Biden on December 29, 2022 – the PWFA and the PUMP Act (which stands for Providing Urgent Maternal Protections for Nursing Mothers Act).

If you were not able to attend, here is the cliff-notes version:

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Take the Off-the-Shelf Employment Agreements… Off the Shelf

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This is your reminder — always have counsel review and revise every agreement before offering it to an employee.  A number of new decisions and laws have made many standard employment agreements, restrictive covenant agreements, separation agreements, and settlement agreements completely unenforceable.  Below are a few examples…

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Is It Already Hurricane Season?

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If the folks on the news are talking about el Niño, it must be hurricane season. Last year, Hurricane Ian reminded us how devastating a storm can be. However, even fewer menacing storms can disrupt our lives and businesses. With that in mind, we once again offer tips on how to prepare your business for the new hurricane season.

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