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

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!

Florida Court Rules Expectant Father Not Entitled to FMLA

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Employers are regularly having to grapple with how and when to give their employees leave when their employees are expecting a child.  Unfortunately, the Family Medical Leave Act (FMLA) does not always provide the clearest answer as to when employers are obligated to provide employees with protected leave.  However, a federal court in the Middle District of Florida has just decided a case, Tanner v. Stryker Corp., which held that the FMLA does not require employers to give their employees job protected leave before the birth of a child. Instead, employers would only be required to provide protected leave after the birth of the employee’s child or under limited exceptions.

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Top Takeaways from Our 2022 Annual Labor & Employment Law Seminar

Wow, it has been a whirlwind past few weeks! It was great to see so many of you at our Labor Seminars in Miami, Tampa and Tallahassee. We hope you were able to gain valuable insight into a wide range of topics of interest and importance to you.

If you did not fill our surveys, feel free to fill them out now. We read every one and use your feedback to improve future Seminars and determine topics and content. Congrats to the winners of our Evaluation Raffle listed below!

  • Miami Survey: Marla Alpizar, City of Miami Beach & Elizabeth Cabezas Villano, Seaboard Marine
  • Tampa Survey: Kim Steager, Landis Evans + Partners
  • Tallahassee Survey: LaShonda Manuel, CW Roberts Contracting, Inc.

Congrats to our blog contest winners who will receive complimentary registrations for next year’s seminars!

  • Miami: Veronica Motrinec, Professional Aviation Management
  • Tampa: Mabel Duran, Curaleaf
  • Tallahassee: Monica Ross, Tallahassee Memorial Hospital

If you did not receive your HRCI, SHRM, and CLE credits, please email us.

If you would like additional copies of the 2022 edition of our most requested publication, The Pocket Guide to Florida Employment Laws, email us. We are more than happy to send you a few copies.

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Avoiding Halloween Horrors at Work

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Last week I took my 9 year old son to purchase a Halloween costume (he of course chose to be Thor). While I was in the costume shop, I decided to look for a costume for myself because my firm was doing a costume contest at work. However, every costume that I saw was more risqué than the next! After a well-meaning (although clueless) sales associate brought me six costumes, one more inappropriate than the next (e.g., dominatrix, naughty nurse, Harley Quinn, etc.), she eventually enlisted the help of her manager who suggested I wear a fifties-style pink poodle skirt, bobby socks and cardigan, and dress as Sandy from Grease. Finally, a costume suitable for a Labor & Employment Lawyer!

This silly experience reminded me of a blog post that I wrote a few years back with some important tips for HR departments to keep in mind if your company is having a Halloween party. View the post here: Halloween is a Scary Time for Employers | BeLabor the Point.

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Tales from the (En)crypt

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Approaching Halloween, want to hear something Really Scary?

Late last year, the U.S. Court of Appeals, Third Circuit (Philadelphia) in Clemens v. ExecuPharm, Inc. (3rd Circuit Dec. 14,  2021), made clear that employers can be held liable for failing to properly protect their employees’ personal data.  Why is this so scary? Well, in this case, an employee, Jennifer Clemens, was required to provide her employer, ExecuPharm, with her address, social security number, bank and financial account numbers, insurance and tax information, passport and information relating to her husband and child. (This is the type of information kept by most HR departments).  ExecuPharm agreed in writing to take appropriate measures to protect the information.  Clemens then left ExecuPharm.

At some point after her departure,  ExecuPharm was hacked through a phishing attack. ExecuPharm’s information (including its employees’ information) was then held for ransom. Either ExecuPharm refused to pay the ransom or “for nefarious reasons unknown” the hackers released  all the information on the Dark Web. The release of 123,000 files included the sensitive, personal information on Clemens and her former co-workers. ExecuPharm notified its current and former employees of the breach and provided them some after-the-fact support.   Clemens took action herself, which included her spending a substantial amount of her time and some expenditures to protect her information and  to protect herself from being the victim of fraud or identity theft.

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I-9 Update – Work Authorization of New Hires Applying to Renew Green Card

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The United States Citizenship and Immigration Services recently announced that lawful permanent residents who file a Form I-90 to obtain a new permanent resident card, aka green card, will have their green cards extended automatically for twenty-four months while USCIS processes the Form I-90 application.  What does this mean?

During the I-9 process, a new hire may present an unexpired permanent resident card as proof of both work authorization and identity – a List A document.  The USCIS normally issues permanent resident cards for ten years.  A lawful permanent resident does not lose status when the permanent resident card expires but needs an unexpired card for travel or to use as a List A document when taking a new job.  To renew an expiring green card, the lawful permanent resident files the Form I-90 with the USCIS.  The USCIS will issue a Notice of Action confirming the filing of the Form I-90.  Traditionally, that Notice of Action would include a statement that the filer’s permanent resident card is extended for twelve months.  The individual could use the expired permanent resident card and the Notice of Action as proof of work authorization for that twelve month period.  With the recent announcement, USCIS is now making the extension of the permanent resident card twenty-four months.  When the USCIS issues a Notice of Action for a Form I-90 filed on or after September 26, the Notice of Action will say that the permanent resident card is extended for twenty-four months.  For those permanent residents who have a pending Form I-90 filed before September 26, USCIS will issue a new Notice of Action with the twenty-four month extension language.
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The NLRB Joint Employer Pendulum Swings Back Again…

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If your company engages with contractors to perform services you may think are completely unrelated to your business at first glance…beware.  It will soon be more likely that the National Labor Relations Board (“NLRB”) will deem the s employees to be yours.  For years, political interests have created a pendulum where the government seems to encourage the use of independent contractors, or severely scrutinize it to reduce contractor status.  The pendulum is indeed swinging back again.

After many years of following a single standard for determining joint employer status, the NLRB established a new and restrictive standard in 2015 with the Browning-Ferris case.  In Browning-Ferris, the Board held that a company could be deemed the joint employer of its contractor’s employees even if it did not exercise direct or immediate control over those employees.  For the Board in Browning-Ferris, the mere “possibility” that the company “could” exercise that control was enough to make it an “employer” for all purposes under the NLRA.

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Avoiding Unfair Labor Practices (ULPs)

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In January 2021, I made several “way too early” pre-season predictions about then president-elect Joe Biden’s agenda regarding labor and employment. High on President Biden’s wish list was the Protect the Right to Organize Act (“PRO”), which would substantially strengthen labor law to the advantage of employees and unions. Congressional Democrats have been unable to push the PRO Act through Congress so far, but that does not appear to have inhibited the Biden administration’s attempts to bolster organized labor.

Several high-profile unionization efforts at Amazon, Apple, and Starbucks are indicative of a motivated labor movement. The National Labor Relations Board (“NLRB”) recently reported that union representation petitions filed with the NLRB in the first nine months of fiscal year 2022 (October 1 – June 30) were up 56% from the first nine months of fiscal year 2021.

Even employers who are not facing any attempts at organizing their workforce have felt the impact. The Biden administration’s union-friendly agenda appears to be emboldening the NLRB to target all employers, even if their workforce is not unionized. The NLRB’s new general counsel has issued several edicts directing Board agents to seek more severe remedies for violations of labor law, and expressed that Board staff should pursue cases more aggressively in various areas, including employer handbook rules, confidentiality provisions, and employees engaging in protected concerted activities.

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Employers continue to receive nastygrams from the IRS threatening “Employer Shared Responsibility Payments” (ESRP). These penalties are assessed against an employer that doesn’t offer compliant, affordable group health coverage to a sufficient percentage of its employees when an employee who isn’t offered compliant, affordable coverage obtains tax-subsidized health coverage via the federal “marketplace.”

In our experience, and with just a few exceptions, the penalty notices are generated not because of an actual violation of the rules, but because of incomplete or incorrect reporting on IRS Forms 1094-C or 1095-C, which are the reporting forms the large employers use to report health coverage offered to employees.

Often an employer delegates responsibility for preparing the reporting forms to its payroll provider or a consulting firm. Employers should review these forms before they are filed. For example, does the form check the correct box indicating whether coverage was offered to employees? We have seen numerous ESRP penalties assessed based on forms stating that coverage was not offered when in fact the employer had offered coverage. Employers should look for other obvious errors such as inconsistent information, checkboxes not marked, blanks not filled in, etc.

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REGISTER NOW! Annual Labor & Employment Law Seminars

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After a two-year hiatus, we are thrilled to be back in person! This year’s theme is “When Really Bad Things Happen to Really Good Employers…”

Our annual seminars draw hundreds of human resource professionals, in-house counsel and senior executives from Florida’s top businesses. And for good reason! No one does events quite like we do – our seminars are not just lectures, they are learning experiences. This year will not disappoint. In addition to the Miami and Tampa seminars, we are excited to host our first annual Tallahassee seminar!

Find out more and register now using the link for your city below. Pending HRCI Credits, SHRM Credits and The Florida Bar CLE Credits. We look forward to seeing you in the fall!

Miami | October 14 | 8am-4pm | Jungle Island | REGISTER FOR MIAMI

Tampa | October 21 | 8am-3pm | Centre Club | REGISTER FOR TAMPA

Tallahassee | November 4 | 8am-1:30pm | Turnbull Center | REGISTER FOR TALLAHASSEE

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