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Last month, over 300 HR professionals, in-house counsel, and legal heavy hitters joined us for our Labor and Employment Law seminar at loanDepot Park, home of the Miami Marlins.

Speakers covered all the bases, navigating legal fastballs, changeups and curveballs in the workplace.

We’re recapping the top takeaways from this big-league event—because when it comes to staying compliant and proactive in today’s workplace, you can’t afford to strike out.

Stepping Up to the Plate: The EEOC’s Pregnant Workers Fairness Act Regulations | Lisa Berg

  • Generally, the Pregnant Workers Fairness Act (“PWFA”) requires a covered employer to make reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship.
  • The Equal Employment Opportunity Commission (“EEOC”) issued Final Regulations that became effective June 18, 2024 and which provide guidance for employers on how to interpret the PWFA.
  • Unlike the Family and Medical Leave Act (“FMLA”), there is no length of employment or minimum hour requirement to be eligible to request an accommodation.
  • A “known” limitation is one that is communicated to the employer by the employee/applicant or their representative, or of which the employer should be aware given the circumstances. 
  • A “limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
    • A “physical or mental condition” is:
      • An impediment or problem that may be modest, minor, and/or episodic (e.g., morning sickness)
      • A need or a problem related to maintaining the employee’s health or the health of the pregnancy (e.g., taking breaks, avoiding chemicals)
      • Seeking health care related to pregnancy, childbirth, or related medical condition.   
  • An employee/applicant must be “qualified” under the PWFA, meaning that “with or without reasonable accommodation, can perform the essential functions of the employment position.”  An employee who cannot do one or more essential job functions will still be considered “qualified” if:
    • Any inability to perform an essential function(s) is for a temporary period
    • The essential function(s) could be performed in the near future
    • The inability to perform the essential function(s) can be reasonably accommodated.
  • Covered employers must engage in the interactive process promptly with the employee and cannot impose any accommodation that has not been reached through the interactive process.
  • Unlike the Americans with Disabilities Act (“ADA”), covered employers must be careful about asking for documentation under the PWFA. According to the EEOC, documentation is not generally required when:
    • The limitation and need for a reasonable accommodation is obvious and employee provides self-confirmation
    • The employer already has sufficient information to support a known limitation related to pregnancy and employee provides self-confirmation
    • The request is for additional breaks for using the restroom, eating or drinking as needed, having water readily available, and sitting or standing as needed
    • The request is for a lactation accommodation & employee provides self-confirmation
    • The employer’s policies or practices don’t require documentation when employees without known limitations seek a reasonable accommodation.
  • An employer may seek documentation when reasonable, and documentation itself must be reasonable, meaning the minimum that is sufficient to:
    • Confirm the physical or mental condition;
    • Confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and
    • Describe the adjustment or change at work that is needed due to the limitation.
  • An employer cannot force an employee to take leave, even if it’s paid leave, if a reasonable accommodation exists that enables the employee to continue working.
  • Best practices:
    • Create PWFA policy or revise existing policy
    • Train supervisors and HR staff
    • Don’t use your ADA and FMLA forms when administering accommodations under the PWFA
    • Consult with experienced employment counsel before denying an employee’s reasonable accommodation request

Avoiding an Error: Family and Medical Leave Act Math | Andrew Rodman

At times, it may feel like calculating employee eligibility, use, and exhaustion of the Family and Medical Leave Act (“FMLA”) requires an advanced degree in mathematics:

  • Remember the general eligibility rules – 12 months, 1,250 hours of service, 50 or more employees within 75 miles.
  • Always confirm eligibility, especially with respect to recently hired employees who may previously have worked for the company.
  • Remember the eligibility exceptions that may require you to consider periods of employment more than 7 years ago.
  • Remember that a remote employee’s “home base” is the office into which s/he reports, from which s/he is assigned work, and from which s/he is supervised.
  • When it comes to intermittent leave, always pay attention to the employee’s regular schedule, and never simply assume that the employee is entitled to 480 hours of leave. 
  • For intermittent leave, calculate the percentage/fraction of the employee’s regular workweek as the amount to be deducted from the employee’s 12-week allotment.

Calling Balls and Strikes: Umpiring the Performance Improvement Plan | Robert Turk

  • A “rush” Performance Improvement Plan (“PIP”) to document an employee termination may be used as evidence of unlawful retaliation.
  • A meaningful PIP should really be used as a Growth and Development Plan (“GDP”).
  • A GDP should contain four parts:
    • A factual description of shortcomings of the employee
    • The objective(s) the employer would like to see the employee accomplish to address the shortcomings
    • A clear strategy or solution for the employee to meet the objectives, including actions the supervisor and employer will take to assist the employee
    • The action the employer will take if the employee meets/fails to meet the objectives
  • Company needs to analyze why a PIP or GDP is needed–focus on communication shortcomings of supervisors/managers.

Extra Innings: Wage and Hour Update | Robert Turk

  • Florida Minimum Wage is heading to $14 per hour beginning September 30, 2025.
  • Paying an employee a salary alone does not exempt an employee from receiving overtime pay but a salary of at least $684/week is a prerequisite for applying the Executive and Administrative exemptions.
  • The Administrative exemption is the hardest to apply–an employee who has an important job is not necessarily exempt from overtime.
  • Federal courts in Florida look to the employee’s actual job duties to determine exempt status.

Triple Play: What’s Up at the EEOC, DOL and NLRB? | Eric Gabrielle & Melanie Leitman

Overarching principle: Agency opinions, decisions, and guidance in the wake of the Supreme Court’s decision rejecting Chevron deference will carry less weight when challenged in the courts, which could result in unexpected or inconsistent decisions on agency rules and regulations across the different federal circuits in the U.S.

Department of Labor (“DOL”):

  • New leadership under the Trump Administration will seek to implement different policy objectives than prior administration, including private sector comp time, recalibrating window for calculating overtime pay, and changes to the independent contractor and joint employer rules.
  • Widespread resignations and expected reductions in force could affect the DOL’s ability to implement its policy objectives.
  • Recent Executive Orders:
    • Minimum wage for federal contractors reverted to $13.30 per hour, down from $17.75 per hour pursuant to a Biden executive order
    • Certification that federal contractors and grantees aren’t participating in Diversity, Equity and Inclusion (“DEI”) programs (currently subject to an injunction)
    • Rescission of Biden executive order requiring pro-union commitments in exchange for clean energy incentives

National Labor Relations Board (“NLRB”):

  • Section 7 of the National Labor Relations Act applies to both unionized and non-unionized workplaces and protects employee communication and advocacy relating to workplace terms and conditions.
  • Currently, the NLRB does not have a quorum but can still investigate unfair labor practices charges, issue complaints, and reach settlement deals.
  • Many Biden-era NLRB decisions are vulnerable to reversal once the NLRB secures a quorum.

Equal Employment Opportunity Commission (“EEOC”):

  • Current makeup of the Commission (presently 2 of 5 members) will preclude some types policymaking or structural changes.
  • Future makeup of Commission uncertain until resolution by federal courts of legal issues surrounding Presidential authority to discharge independent agency officials.
  • Current Commission Chair has realigned the Commission’s guidance and enforcement approach consistent with the overall objections of the Administration, eliminating focus on transgender discrimination as actionable under Title VII, identifying anti-American discrimination as a basis for enforcement.
  • Anticipate end to Commission enforcement regarding allegations of “disparate impact” discrimination as a theory under Title VII, consistent with a recent White House Executive Order.

Handling the Unexpected Bounce: Preparing for an ICE Audit and Raid, Including Ways to Prepare for an I-9 and eVerify Audit | Glenn Rissman

It is the calm before the storm, but the forecasters predict an increase in I-9 audits and workplace enforcement actions aka raids.  Now is the time to prepare. 

  • Conduct a self-audit of your I-9 Forms and make needed corrections. 
  • Make sure those responsible for completing the Form I-9 are well trained and understand the ins and outs of the deceptively simple one-page form. 
  • Assemble an in-house response team who will serve as your experts and ICE-liaisons in the event of an ICE worksite visit. 
  • Know your rights under the law. 
  • Require a judicial warrant to access private areas of the business. 
  • Do not consent to a search of private areas.
  • Stay calm, be strong, but do not obstruct.

Instant Replay: Let’s Review the Most Recent Employment Law Cases | Ingrid Ponce

The past year has seen some interesting developments in the employment world.

Here are a few highlights:

  • An adverse employment action for a discrimination claim does not require a showing of significant harm – some harm (even if it does not result in reduction in pay or demotion) may be enough.
  • An employee’s failure to follow company policy can preclude a future Americans with Disabilities Act (“ADA”) discrimination claim, but remember that consistency remains key.
  • The burden of proof for establishing Fair Labor Standards Act (“FLSA”) exemptions is now preponderance of the evidence, not the higher standard of clear and convincing evidence. But employer still bears the ultimate burden of proof.
  • The Department of Labor (“DOL”) clarified that managers can keep tips received directly from customers, but managers cannot participate in a tip pool even if working in a shift in a non-managerial role.
  • Negative statements made by Company officers on their personal social media pages about employee who lodged DOL complaint can give rise to an FLSA retaliation claim – silence is golden!  
  • There is a split among the Florida appellate courts as to whether a claim under the Florida Whistleblower Act requires proof of an actual violation as opposed to the lower standard of good faith belief.  Stay tuned for an update on our blog once this split is resolved.
  • Family and Medical Leave Act (“FMLA”) retaliation claims require proof of but-for causation (not motivating factor) in the 11th Circuit.

Setting the Ground Rules:  Use of AI and Other Cutting Edge Technologies | Stephanie Turk

  • AI and new, cutting-edge technology can help improve the workplace. But it can also be dangerous and cost you your job, if you are not careful. Be sure to check for AI hallucinations and accuracy of AI output.
  • There have been recent cases alleging AI bias regarding applicants and employee promotion decisions. While use of AI tools in hiring or employment-related decisions can be helpful, you should proceed with caution.
  • Recently, the Trump Administration entered an executive order limiting enforcement of disparate impact claims, which will likely mean a lack of enforcement by the Equal Employment Opportunity Commission (“EEOC”) with respect to AI-bias claims (which tend to be disparate impact claims). However, this does not change the law and disparate impact claims can still be filed in court (and state and local agencies), even if not enforced by the EEOC.
  • When using AI tools in the workplace, be sure to balance usefulness of resume screening, hiring, and other decisions with legal compliance. Human oversight should remain intact in the decision-making process.
  • In orchestrating an AI and human workforce, ensure employee understanding of AI’s use, build trust and maintain human oversight, and prioritize ethical considerations. And consider adopting an AI policy.

Keeping Score: Adapting Benefit Plans for a Changing Workforce | Sharon Quinn Dixon

SECURE 2.0 Act provided enhanced opportunities to help employees save for retirement: 

  • A 401(k) plan with a matching contribution may treat student loan payments as an employee contribution and “match” the loan repayment.  The IRS has provided great flexibility to administer the “qualified student loan payment” program.
  • An employer can reimburse employees for student loan payments on a pre-tax basis under an Education Assistance Program.
  • Employees aged 60-63 can make a “super” catch-up contribution to the 401(k) plan–up to $34,750 in 2025.

Employers that offer a Roth contribution in their 401(k) plans and their payroll providers have to start preparing for 2026 when the 401(k) plan catch-up contributions of employees age 50+ who make more than $145,000 must be treated as Roth contributions.

Pitch Perfect: Hitting Home Runs with Restrictive Covenants | Thomas Raine & Eric Roth

The governor is likely to sign a new law which would significantly change the non-compete landscape as of July 1, 2025. 

While not a comprehensive summary of the new law, here are some highlights:

  • Allows for non-compete agreements up to 4 years in duration with no restriction on geographic scope.
  • Requires the employee be given at least 7 days’ notice and an opportunity to seek advice of counsel before signing a non-compete agreement.
  • Must have the employee acknowledge they will receive confidential information or customer relationships.
  • Allows an employer to restrict an employee from providing to another person or entity any services “similar” to the services they provided to the employer during the last 3 years of their employment. 
  • Requires a court to enter injunctive relief to prevent an employee from breaching the agreement.
  • Shifts the burden to the employee or the new employer to prove by “clear and convincing evidence” that the employee will not provide “similar” services or use the former employer’s confidential information or customer relationships.
  • Provides for garden leave agreements up to 4 years post-termination which allow the former employer to prevent the employee from providing similar services to another person or entity provided the former employer pays the employee during such post-termination period.
  • Applies to all persons who earn twice the annual wage of employees in the county in which the employer is based or if the employer is not based in Florida, the county in which the employee lives. Bonuses and commissions are not included in the calculation of “annual wage.”
  • Does not apply to health care professionals.
  • The former statute continues to apply to employees who won’t be covered by the new statute.

Bottom line: You may need to update your restrictive covenant agreements effective July 1, 2025. 

The Free Agency Error: Managing Independent Contractors and Remote Workers | Ingrid Ponce & Jaclyn Sanchez

  • New DOL Guidance: On May 1, 2025, the U.S. Department of Labor (“DOL”) issued updated enforcement guidance for determining whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (“FLSA”). The DOL instructed its investigators to apply the traditional “economic realities” test, instead of relying solely on the DOL’s January 2024 final rule. This shift reflects ongoing legal challenges to the 2024 rule and signals a potential return to pre-Biden principles.
  • Economic Realities Test – 6 Key Factors: This test is what the DOL will now use to assess whether a worker is an independent contractor or employee for FLSA purposes. The DOL will examine:
    • Whether the worker has the opportunity for profit or loss based on their own managerial skill;
    • The worker’s investment compared to the company’s investment;
    • The permanence of the working relationship;
    • How much control the company has over the work;
    • Whether the work is integral to the company’s business;
    • The worker’s skill and initiative.
  • No One Factor Decides: The DOL evaluates the totality of the circumstances. A written contract or a label like “independent contractor” does not control if the actual working relationship looks like employment.
  • Why It Matters: Misclassification can result in serious legal and financial consequences, including liability for unpaid wages and overtime, back taxes, workers’ compensation issues, and even violations of anti-discrimination laws like the ADA.
  • Review Classification Under All Applicable Tests: Different laws use different tests to define who qualifies as an independent contractor — including the IRS 3-Factor Test and the Common Law Control Test. Employers should assess classification decisions across these tests to avoid risk.
  • Practical Tips:
    • Use written contracts that reflect the actual nature of the relationship.
    • Limit control over when and how work is performed.
    • Avoid treating contractors the same way as employees.
    • Ensure contractors invest their own resources (tools and equipment) and show entrepreneurial activity.
    • Define project scope and duration to support independent status.