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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It’s Official – Governor Signs SB 1718

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On Monday, we posted a blog on SB 1718, which requires private employers of twenty-five or more employees in Florida to use the E-Verify system for new hires, effective July 1, 2023.  Governor DeSantis signed SB 1718 into law early on Wednesday.  Although several groups have announced the intent to challenge the law, those legal challenges may not focus on the E-Verify portions of the law.  We will continue to post on the issue.

E-Verify Coming to a Florida Workplace Near You?

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Last week, the Florida Legislature passed SB 1718, which, among other things, requires private employers of twenty-five or more employees to start using E-Verify for any employee hired on or after July 1, 2023.  Governor DeSantis has not yet received SB 1718 from the Legislature.  He must sign or veto the bill within 15 days of transmittal, or it becomes law without being signed.

You may recall that I posted about SB 1718 on our blog on April 3, 2023.  The SB 1718 bill that passed the Legislature is very different from the bill I wrote about last month. The earlier version of the bill imposed no E-Verify requirement.

The SB 1718 that the Legislature passed amends two existing Florida statutes governing unauthorized employment of foreign nationals.  Florida Statutes Section 448.09 makes it unlawful for an employer to knowingly employ in the State of Florida an alien who is not authorized to work in the United States.  The statute empowers the Department of Economic Opportunity (DEO) to place a violating employer on probation for a year and require quarterly reporting of the employer’s compliance.  If an employer violates the statute twice in two years, the DEO can suspend or revoke all of the licenses of the violating employer. 

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REGISTER NOW! Miami Labor & Employment Law Breakfast Series

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In lieu of our annual seminar, we will be hosting a two-part breakfast series in our Miami office. In Part 1, we will analyze rapid changes in employment law and provide suggestions on how to navigate the multiverse of employment problems now facing HR. Stay tuned for details on Part 2 later in the year!

CLICK HERE TO REGISTER

JUNE 2, 2023

9:30 a.m. – 10:00 a.m. | Registration & Breakfast

10:00 a.m. – 12:00 p.m. | Presentations

Stearns Weaver Miller Miami Office | 150 W Flagler Street, Suite 2200, Miami, FL 33130

Space is limited to the first 100 registrants. Pending HRCI Credits, SHRM Credits and The Florida Bar CLE Credits. This is a live presentation/no webcast will be available.

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How Managers Can Curb Invisible Off-The-Clock Work Claims

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We published a shorter version on this topic in a previous blog post. You can also find this article published on Law360.com.

In the last few months, there has been a rash of federal court lawsuits across the country in which nonexempt employees have alleged that their employers have failed to pay them and their co-workers for off-the-clock work. These employees have sought overtime pay for work performed in addition to their weekly 40 hours of on-the-clock work. Recent court cases that have alleged employer knowledge of off-the-clock work include companies such as Michaels Stores Inc., Peloton Interactive Inc., Wells Fargo Bank NA, BOK Financial Corp, NCR Corp. and Liberty Mutual Group Inc., just to name a few.[1]

Employers are often flabbergasted to discover their nonexempt employees have been working very early mornings, during meal breaks, late nights or weekends off-the-clock. Apparently, no one in management asked or knew that off-the-clock work had occurred.

Here are a few scenarios:

  1. Employees were told not to work more than 40 hours per week, but also understood they had to complete all their work by the end of their shift;
  2. Employees clocked out for an extended meal period, but continued to read emails, take phone calls, send texts or work while on break;
  3. Incompetent employees were not able to complete their tasks in 40 hours but did not want anyone to know, so they worked extra hours off the clock before others arrived at work or after everyone was gone for the day;
  4. Without telling anyone, employees worked weekends and/or nights at home; or
  5. Employees loved their employer and thought they were helping to make the company better by donating extra hours to get the job done.

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Changes Coming to Florida’s E-Verify/I-9 Law

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If you attended our webinar “Fakes, Frauds and Factual Documents – Do You Really Know How to Fill Out an I-9 Form?” on March 21 or read my colleague, Marco Paredes’ Rotunda Report, then you may recall that the Florida Legislature is considering bills that would amend Section 448.095 of the Florida Statutes, Florida’s state law requiring E-Verify or I-9 compliance.  Section 448.095 took effect on January 1, 2021 and requires every public employer, contractor, and subcontractor to register with and use E-Verify to verify the work authorization of all newly hired employees.  The statute also requires private employers to verify the employment authorization of any newly hired employee either by: (1) using the E-Verify system or (2) requiring the person to provide the same documentation required by the Form I-9 process.  The statute requires employers who do not use E-Verify to copy and retain the documentation the employee submits to establish his or her work authorization and identity.  The employer must retain a copy of the documentation for at least three years after the person’s initial date of employment. 

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Look to Your Left…It’s the New NLRB

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For several years now, the National Labor Relations Board (“NLRB”) has been disavowing any pretension that it is an “intermediary” between labor and management.  Instead, the new NLRB has firmly tipped the scales in favor of organized labor.  This has clearly impacted all employers, as the NLRB has increasingly exerted its power over unionized and non-unionized employers alike. 

This past week, NLRB General Counsel Jennifer Abruzzo issued a memorandum to all Regional Directors outlining her “prosecutorial priorities.”  That memo identifies numerous Board precedents that she feels merit “Board reconsideration” because they are either “contrary to Congressional mandate” or “improperly compromise the statutory rights of workers.”  If you run a business, you need to take notice because it is clear that the Board’s new “priorities” do not include your best interests. 

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Must an employee making more than $200k still be paid overtime? Definitely, maybe.

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It is hard to imagine an employee earning over $200,000 per year and still being eligible for overtime pay. Yet, this is exactly what the U.S. Supreme Court held when it decided Helix Energy Solutions Group, Inc. v. Hewitt, last week.

Michael Hewitt worked for Helix Energy (and a sister company) as an offshore oil rig Toolpusher, supervising a dozen or so employees. He was paid a daily rate for each day he worked.  During the course of his employment, Hewitt’s pay ranged from $963 to $1,341 per day.  Hewitt worked long hours but received no extra pay when he worked more than 40 hours each week.  So he sued for overtime pay.

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The Overwhelmed Employee and the Clueless Employer–A Tale of the Hidden Costs of Off-the-Clock Work

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In the last few months, a number of employers have reported being flabbergasted to discover non-exempt employees working very early mornings, late nights or weekends “off the clock” (after working 40 hours on-the-clock).  Apparently, no one in management asked or knew that off-the-clock work had occurred.  How does this happen?

Here are a few scenarios:

  1. Employees were told not to work more than 40 hours/week but also understood they had to complete all their work by the end of their shift (or else!);
  2. Incompetent employees were not able to complete their tasks in 40 hours but did not want anyone to know, so they worked extra hours off-the-clock;
  3. Without telling anyone, employees worked weekends and/or nights at home; or
  4. Employees loved their employer and thought they were helping to make the company better by “donating” extra hours to get the job done

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