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.

Check out our Facebook photo albums to see if you can spot yourself or your colleagues!

If you were unable to attend the events or would like a quick refresher, below are the top takeaways from each session. Topics and speakers varied by location. Click on the speakers’ name next to the topic if you have questions or need more information.

This year’s theme was all about “When Really Bad Things Happen to Really Good Employers!”

DISCLAIMER: The information provided in this blog post does not, and is not intended to, constitute legal advice; it is for general informational purposes only. 

THIS CAN’T BE HAPPENING TO US!

    • Organizations must have a written plan for cybersecurity. HR has an important role in creating this plan. As part of this process, HR must understand what data it possesses, where the data is located, and how the data is protected. As part of this analysis, HR should review its contracts with vendors to make sure that those contractors have adequate protections for the organization in the event the vendor is hacked.
    • The cybersecurity plan should include preventive measures as well as the procedures that will be taken in the event of a data breach. It is important to have these advisors preselected before any breach occurs. The initial hours or minutes after an attack are vital and should not be wasted trying to find advisors who are capable of assisting.
  • The COBRA And Benefit Earthquake | Sharon Quinn Dixon (Miami); Andrew W. McLaughlin (Tampa)
    • Employers must understand the “eligibility requirements” of the employer’s group benefits plan, e.g., employees regularly scheduled to work 30+ hours each week.
    • Employers must understand what benefits are required to be offered during an employee’s leave of absence (e.g., during FMLA) and when COBRA rights are triggered.
    • The insurance contract or plan will govern what benefits may be offered during a leave of absence and for how long.  Various policies (e.g., medical, dental, life, STD, LTD) may have different rules.
    • It’s important to coordinate the employer’s leave of absence policies, e.g., the employer’s handbook, with the rules of the different insurance contracts to avoid having the handbook promise more than the insurance contracts require.
  • Our Staffing/Payroll Company Just Went Belly Up | Sharon Quinn Dixon & Robert S. Turk (Miami)
    • Staffing companies provide a valuable service but due diligence is critical to know you’re dealing with a reputable and financial strong company.
    • Certain contractual provisions are vital to avoid a nightmare, both before and after the staffing company is out of business.  These include:
      • Confirmation the staffing company is the employer and is properly licensed
      • Representation that it will comply with all requirements of employers
      • Details are important – e.g., pay rates, right of termination, right to audit, confidentiality, anti-solicitation rules.  Review the contract carefully
    • There are payment and tax risks in dealing with a staffing company.  Monitor the company regularly to minimize the risk of large loss if the agency goes out of business.
  • Rocked By A Hurricane | Paul Crucet (Miami)
    • We’ve been lucky in Southeast Florida to have avoided a direct hit by a hurricane for several years, but it is important to stay prepared. The following are four tips to consider when preparing for hurricane season.
      1. Have a plan
        • Can your business operate without equipment like computers, copiers, electricity, and internet?
        • Order supplies: batteries, bottled water, waterproof storage boxes, garbage bags, duct tape are essential.
        • Provide employees necessary office supplies if they will have to work from home.
        • Make sure employees secure company property they may have at home, such as laptops, electronics, and physical and electronic files.
      2. Communicate
        • How will you stay in touch with employees and customers?
        • Contact information should be updated regularly to ensure you can reach customers and clients.
        • Print contact information in advance of a storm in case electronic files are inaccessible.
        • Messages to employees should be posted on the company’s intranet and voicemail system.
        • An emergency response team should be created with specific duties delegated to each team member, including a dedicated group of employees each team member is responsible for contacting.
      3. Deciding whether to reopen
        • If you are able to remain open during and after the storm and decide to do so, keep in mind that OSHA’s general duty clause requires employers to provide a workplace that is free from recognizable hazards that are likely to cause death or serious injury.
      4. Comply with FLSA, FMLA, and WARN Act
        • The Fair Labor Standards Act, Family Medical Leave Act, and WARN Act all place certain obligations on employers that may be implicated during or after a storm. Employers should keep these laws in mind to ensure that you are paying employees correctly and meeting your obligations under the statutes.
  • Business Immigration – Do We Really Have To Let This Employee Go? | Glenn Rissman (Tampa)
    • Increased USCIS processing times and lack of diligence on the part of the foreign worker can result in the employee losing work authorization. Employers should be proactive and alert employees six months prior to the expiration of work authorization to prompt the employee to take needed action.  Employers should also be aware of automatic extensions of work authorization available under many circumstances.

 

MONSTER MISTAKES WHEN HIRING

  • Background Check Black Holes | Janet Goldberg McEnery (Miami, Tampa, and Tallahassee)
    • The use of background checks by employers should not be abandoned altogether. They serve a very useful purpose.  A proper background check can help an employer defend against a negligent hiring lawsuit filed by someone who was injured by its employee.
    • Background checks, however, must follow all of the technical requirements of the Fair Credit Reporting Act (“FCRA”). A disclosure, in a standalone document, must be made if there is a FCRA-covered background check including: before the background check is conducted; before an adverse decision is taken; and at the time of employment termination. What we have seen is that adding anything else to that standalone disclosure could result in a class action lawsuit.
    • Before communicating the decision not to hire an applicant due even in part to a FCRA-covered background check, an employer must allow the individual a minimum of 5 (and the better practice is 10) business days to respond to the report, and must provide the individual with a copy of the report and a Summary of Rights.
    • Before deciding to terminate an employee or not hire an applicant based on a conviction record, be sure to conduct an individualized assessment under the EEOC’s Enforcement Guidelines before deciding the individual is unsuitable for the job at issue.
  • TikTok Time Bombs/Social Media | Stephanie Turk (Miami); Ingrid H. Ponce (Tampa); Melanie Leitman (Tallahassee)
    • While it comes with many great benefits, the smart phone is probably the most dangerous thing in the workplace.
    • Beware of using social media and internet searches when hiring individuals. If you are going to screen candidates using social media and the internet, create a check-valve system for hiring.
    • Beware of firing individuals for what they post on social media, including TikTok. While some terminations based on an employee’s social media post(s) can be and are justifiable, firing an individual because of something he/she/they posted on TikTok (or other social media platforms) could violate certain laws.
    • Define generally what should not be tolerated (e.g., offensive, discriminatory, violent, illegal) with regard to social media and related activities.
    • Think about having a separate social media policy.
    • Remember certain activities and postings are protected.
    • Call your counsel to discuss before taking any action.
  • Offer Letters And Employment Agreements | Ingrid H. Ponce (Miami & Tampa); Robert S. Turk (Tallahassee)
    • Offer letters can create legal nightmares if not done correctly. Take the time to include all relevant information such as: language confirming at-will status; specifics regarding all compensation (including overtime, bonuses, commissions or other compensation); grounds for withdrawing offers (e.g., background checks, drug testing, proof of employment eligibility); and benefits information that does not conflict with plan documents.
    • For employment agreements, remember that one size does NOT fit all. Consult with your employment counsel to ensure you are adequately protected.

 

MONSTER MISTAKES AT WORK

  • Where Is Waldo Our New Hire? | Robert Paradela, Jr. (Miami); Andrew W. McLaughlin (Tampa & Tallahassee)
    • Employers throughout the country have embraced remote working.  However, allowing employees to work remotely in states or countries your company is not familiar with may open the company up to potential legal risks and burdens.  Here are some of the key issues you should consider:
      • State Overtime Requirements
      • State-Specific Family and Medical Leave
      • Worker’s Compensation Requirements
      • Required Employee Reimbursements
      • Enforceability of Non-Compete and Non-Solicitation Agreements
      • State and Local Tax Withholdings
      • And many more
    • If you are contemplating hiring or transitioning existing employees to fully-remote positions, make sure to contact your employment counsel so your company can be compliant with all local and state laws and understand the potential legal risks of such an arrangement.
  • Let’s Talk Non-Competes | Eric S. Roth (Miami); Giselle Gutierrez (Tampa)
    • Under Florida law, non-compete agreements are enforceable to the extent they are reasonably necessary to protect the legitimate business interests of the former employer.
    • Legitimate business interests include customer relationships, trade secrets and other confidential business information, goodwill in the market and extraordinary and specialized training.
    • The agreement must be reasonable in scope and duration.
    • A court can modify the terms to the extent it deems the provisions too broad.
    • Ask prospective new hires if they are party to a restrictive covenant agreement which might restrict their ability to work for your company.  If they are, study the agreement to determine if you can develop a position that does not infringe upon the former employer’s legitimate business interests.
    • If an employee leaves to work for a competitor, try to determine where they are going and what they will be doing for the new employer.  Consider conducting a forensic examination of their company-issued devices and email to determine if they took any company confidential information.  Strategize regarding potential enforcement actions – send a letter confirming the employee will not work in a manner that causes them to violate their non-compete agreement, send a cease and desist letter if you think they are violating the agreement or file a complaint for injunctive relief and damages.
  • I Need To Be An Independent Contractor | Eric K. Gabrielle (Miami); Ingrid H. Ponce (Miami); Janet Goldberg McEnery (Tallahassee)
    • There is no such thing as a 1099 employee;
    • Most federal and many state employment laws establish legal tests that determine whether a worker is an employee or an independent contractor and the label attached to the relationship by the employer has limited significance in the analysis;
    • Key factors in the analysis are the “economic realities” of the relationship, including:  (1) the worker’s opportunity for profit and loss; (2) the nature of control exercised over the worker; (3) the permanency of the relationship; (4) the nature of the work being done as compared to the operations of the business for which the work is performed.
    • There can be significant legal exposure arising from attaching an incorrect classification to the relationship, from the worker himself/herself, or taxing or other regulatory authorities upon a determination that the worker was improperly classified as an independent contractor instead of an employee.

 

IT’S ALL HR’S FAULT

  • It Was Just A Typo! – Mistakes In Documents | Giselle Gutierrez (Miami); Melanie Leitman (Tallahassee)
    • Typos or mistakes in employee documents (i.e., Employee Handbooks, Employee Contracts, Severance Agreements, Settlement Agreements) can have serious financial consequences for your business. To avoid these mistakes:
      • Confirm your understanding of the agreement with the employee before committing it to writing and make sure all of the potential terms are clear (amounts, frequency of payments, etc.).
      • Document your understanding of the Agreement.
      • Once committed to writing in a contract, always triple check the amounts and frequency of payments (if applicable) is correct—this is where most companies get into trouble!
  • I Thought They Were Exempt From Overtime | Andrew L. Rodman (Miami); Robert S. Turk (Tampa & Tallahassee)
    • Be sure to reexamine your administrative exemption classifications in light of the recent Eleventh Circuit ruling finding “production” employees are not administrative exempt.
    • Be on the look-out for the revised DOL rule concerning classification of independent contractors.
    • Are your time-clock policies (rounding and meal period deductions) in compliance?
    • If you have thought about using a “fluctuating workweek” policy in an effort to curtail overtime expenses, make sure you know your math.
    • Are you properly including non-discretionary bonuses in your “regular rate” calculation for overtime purposes?

 

NOW FOR THE REALLY SCARY STUFF

  • FMLA and ADA – Long COVID and PTSD | Lisa K. Berg (Miami, Tampa and Tallahassee)
    • Post-COVID conditions, also known as Long COVID, are a wide-range of new, returning or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19.
    • These conditions can present as different types and combinations of health problems for different lengths of time. Common symptoms associated with Long COVID include fatigue, shortness of breath, muscle pain, cough, headache, joint pain, chest pain, difficulty concentrating, anxiety, depression, rapid heartbeat, brain fog, etc.
    • Millions of Americans are experiencing Long COVID.
    • Many of these people refer to themselves as “COVID long-haulers.”
    • Long COVID can affect employee mental health. For example, one study found that within six months of contracting COVID-19, one third of patients had been diagnosed with neurological psychiatric conditions, including anxiety, depression, PTSD, and psychosis.
    • Long COVID is contributing to our current, national labor shortage.
    • According to the EEOC, Long COVID may be a disability under the Americans with Disabilities Act, depending upon whether the employee can satisfy one of the definitions of a disability (i.e., “actual disability,” “record of,” and “regarded as”).
    • Employers should analyze requests for leave under both the ADA and the Family and Medical Leave Act (if applicable to the employer).
  • Your Employee Handbook Can Be Your Enemy | Lisa K. Berg (Miami, Tampa and Tallahassee)
    • The law on employee handbooks is continually evolving, and therefore, employers are well-advised to seek legal counsel when drafting handbooks.
    • Dangers of poorly drafted handbooks:
      • Using a form handbook without tailoring it (e.g., adopting a handbook from a prior employer that does not have an FMLA policy, yet your company is covered by the FMLA and has eligible employees)
      • Failing to include disclaimers and inadvertently creating an employment contract
      • Creating a handbook, but not distributing it or providing access to it (may result in not being able to establish a defense to certain claims)
      • Failing to update to comply with changing law
      • Drafting policies that guarantee certain processes without leaving discretion for application of policy
      • Providing information that can be outdated easily
    • When designed properly, handbooks have many advantages including:
      • Establish a basis for defending against certain employment lawsuits
      • Provide notice to employees of specific policies and company culture, mission and values
      • Communicate to employees what is expected of them
      • Help ensure compliance with federal, state, and local laws
      • Help prevent future wage and hour lawsuits (e.g., a well written timekeeping and overtime policy)
      • Show case benefits that employer offers to its employees, which is helpful in a tight labor market
      • Clarify what activities or conduct is prohibited
      • Promote consistency in how supervisors enforce rules
      • Establish a complaint resolution process that helps ensure employees have a voice and a means of resolving concerns internally
  • Workplace Violence | Thomas C. Raine (Miami)
    • Review your workplace violence policy to ensure that it is a “zero-tolerance” policy, and that it is inclusive of all forms of violence.
    • Review your reporting procedures to ensure that employees are encouraged to say something if they see something.
    • Be sure that your workplace’s Crisis Management Team is ready to respond in an emergency to minimize any bystander effects.
  • Mandatory Training and Florida’s Stop W.O.K.E Act | Stephanie Turk (Miami); Lisa K. Berg (Tampa); Melanie Leitman (Tallahassee)
    • Florida’s “Stop the Wrongs to Our Kids and Employees Act” is currently a zombie law – dead but not really dead.
    • The law applies to employers with 15 or more employees, and creates legal restrictions and prohibitions on what public and private employers can say or promote in workplace trainings tied to race, color, sex, and/or national origin.
    • On August 18, 2022, a federal judge in Tallahassee issued a preliminary injunction blocking part of the law and prohibiting enforcement of the law against employers. The judge said the law violates the First Amendment and is vague.
    • The State of Florida appealed the judge’s decision. We likely will not have a decision from the United States Court of Appeals for the Eleventh Circuit until early 2023.
    • In the interim, employers can do the following:
      1. Use disclaimers to limit potential liability. But there is still risk.
      2. Offer training on a voluntary – and not mandatory – basis.
      3. Consider delaying any diversity training until further guidance is issued.

 

THE FUTURE IS HERE NOW!

  • The NLRB On Steroids | Paul Crucet (Miami) & Janet Goldberg McEnery (Tampa)
    • The NLRB’s General Counsel has announced that the NLRB will become much more aggressive in challenging workplace rules, including policies regarding workplace behavior, dress codes, and confidentiality and non-disparagement policies. As employers draft or revise their employee handbooks or other workplace policies, they should consult with labor attorneys to ensure that they are aware of the latest developments in labor law and are in compliance with the National Labor Relations Act.
  • I Metaverse and I Liked It – AI, VR and Robots | Robert S. Turk
    • The metaverse is a growing technology of 3D virtual and augmented realities in cyberspace where remote employees will be able to meet and collaborate together in a virtual environment.
    • Workplace issues of concern when working in the metaverse include dealing with unlawful harassment, inappropriate dress of avatars, imposters, security breaches, accommodating those with disabilities, the technology-challenged employee and workplace injuries.
    • Robotics are entering the workplace in greater numbers replacing employees but also creating new job opportunities.
    • Artificial Intelligence (AI) is being used by employers to source, screen and hire applicants.  This includes using resume scanners that prioritize applicants; chatbots and virtual assistants which conduct written andvideo interviews to evaluate candidates based on face and speech patterns; software testing for personality and cultural fit; and games to test job skills. The EEOC is very concerned about AI discriminating against applicants based on race, sex, sexual orientation, age, disability, etc. based on algorithms screening out otherwise qualified applicants.
  • Our Predictions From Last Year’s Update | Melanie R. Leitman
    • Zoom life:
      • In the legal arena, it is still here and going strong, although trials and evidentiary hearings are returning to in-person, in large part
      • In the workplace, employees have grown accustomed to and are even insisting upon the convenience of remote work
      • Although, this can create problems for the employer:
        • Depending on where the employee is living and reporting from, and the implications of other jurisdictions’ laws on the foreign employer
        • For monitoring productivity of employees – productivity tracking software is a useful tool but employers should be careful how they use it.
    • Cryptocurrency is still not considered a negotiable instrument or legal tender and thus would be a FLSA violation if used to pay wages
    • Although the legal state of marijuana remains unchanged, we anticipate that recreational marijuana will be on the ballot in Florida in coming years, and President Biden’s recent executive order expressed an intention to re-examine the scheduling of marijuana
    • Other than the Stop WOKE Act, not a lot of legislative activity in the most recent legislative session in the employment law realm.