EEOC Sues to Give Fathers the Same “Maternity” Leave as Mothers

In last week’s blog, I highlighted Facebook CEO Mark Zuckerberg’s announcement that he’ll be taking 2 months off work following the birth of his daughter later this year (even though, presumably, he would be entitled to 12 weeks under the FMLA, and 4 months under Facebook’s policy).

Well, paternity leave has hit the news again. Just yesterday, the EEOC sued Estée Lauder in federal court in Pennsylvania alleging that the company’s parental leave policy discriminates against men in violation of Title VII and the Equal Pay Act.

According to the EEOC, female Estée Lauder employees are eligible for, among other benefits, up to 6 weeks of paid maternity, adoption, and primary caregiver leave, as well as a transition back-to-work benefit comprised of flexible scheduling and possible work-from-home arrangements. On the other hand, absent a surrogacy situation, biological fathers generally are eligible for up to 2 weeks of paid secondary caregiver leave and are not eligible for transition back-to-work benefits.  Continue Reading

New I-9 Form May Not Be AOK When Dealing With EADs

As many of you by now, on September 18, 2017, employers must start using the new Form I-9 that USCIS released on July 17. You can identify the new Form I-9 by the designation “Form I-9 07/17/17 N” in the lower left corner of the page.  You can find the current version of the Form I-9, including a fillable version of the form with drop down boxes, at the USCIS website.

The problem with the Form I-9 and its instructions, which are now fifteen pages long, is that the form and instructions cannot keep pace with changes to the rules and regulations governing who is authorized to work in the United States. A perfect example of this problem is the 180 day automatic extension of work authorization for certain employees who file to extend their employment authorization document (EAD).  The regulation creating this extension went into effect on January 17, 2017.  Yet the new Form I-9 and its instructions provide little in the way of guidance.  Employees who file for a new EAD before the current EAD expires will be eligible for an extension of work authorization for up to 180 days if: Continue Reading

“Like” or “Dislike” – Did Zuckerberg Overlook Facebook’s Paternity Leave Policy?

More than 3 years ago, I blogged about the unjustified criticism received by then-New York Mets (and now Washington Nationals) baseball player Daniel Murphy when he missed 2 baseball games for the birth of his child. That criticism – much of it voiced by other athletes and sports commentators – put a spotlight on the stigma associated with paternity leave.

The fact is that very few FMLA-eligible men take 12 weeks of leave for the birth of a child. In fact, according to a 2012 Department of Labor survey, 70% of men take 10 or fewer days of paternity leave. Continue Reading

Our group is growing – Tampa here we come!

This is an exciting time for the Firm, our Labor & Employment Law Department and our clients. We are pleased to welcome two new members to our group and to expand our footprint in Tampa. Janet Goldberg McEnery and Andrew W. McLaughlin each brings a wealth of knowledge and experience and a unique perspective to navigating the legal and business challenges that HR professionals face daily.

For those of you familiar with our department, you know that our seminars and training for HR professionals are not just lectures but include games and gameshows, polls and other learning activities. We’re talking Family Feud, Pokemon, EEO Monopoly and mock trials! We anticipate hosting similar workshops in Tampa in addition to our Miami and Ft. Lauderdale events.

Read on to learn more about Janet and Andy: Continue Reading

Did A Florida Appellate Court Just “Dis” An Employment Agreement’s Arbitration Provision?

Is it prudent for employers to require employees to sign mandatory arbitration agreements? There is no right or wrong answer to that question . . . just a long list of pros and cons.  Proponents of mandatory arbitration often focus on factors such as confidentiality, the ability to remove the risk of a “runaway jury,” and cost.  Conversely, opponents of mandatory arbitration often focus on factors such as the potential for the arbitrator to “split the baby” in an effort to appease both sides, limited discovery, cost, and limited appellate rights.

For employers who have adopted mandatory arbitration policies, the Fifth District Court of Appeal in Florida (with jurisdiction over Hernando, Lake, Marion, Citris, Sumter, Flagler, Putnam, St. Johns, Volusia, Orange, Osceola, Brevard, and Seminole Counties) recently issued an order that may make it more difficult for employers to enforce mandatory arbitration agreements, particularly arbitration agreements in employment contracts. Continue Reading

Massachusetts: Medical Marijuana May Be “Reasonable Accommodation”—Still No Guidance In Florida

On November 8, 2016, Florida voters approved the medical use of marijuana for individuals with certain debilitating medical conditions. The effective date was January 3, 2017.  However, to date, Florida has done nothing to address how employers are to treat employees who will be prescribed marijuana for their disabilities.

One of the unanswered questions for Florida employers is whether off-site use of medical marijuana is considered a reasonable accommodation for a disability. Some other state courts have held that employers have no affirmative duty to accommodate employees who use medical marijuana––relying on their drug-free workplace policy and federal law criminalizing marijuana use. However, the Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales and Marketing recently ruled the other way. Continue Reading

DOL Does A “Do Over” on Overtime Regs and White Collar Exemptions

On November 22, 2016, many of you breathed a (big) sigh of relief. Why? Because a Texas federal judge issued a nationwide temporary injunction precluding the U.S. Department of Labor’s (DOL) 2016 overtime regulations from going into effect on December 1, 2016. These regulations would have significantly increased the minimum salary amount for the executive, administrative and professional “white collar” exemptions.

What’s happened since? In December 2016, the DOL, under President Obama, appealed the injunction. The current DOL, under new Secretary of Labor Alex Acosta, has not withdrawn the appeal. The reason: the DOL maintains that contrary to the Texas court’s ruling, it does have the authority to set a minimum salary level for the white collar exemptions.  In pursing the appeal, the DOL has asked the appellate court to affirm the Department’s authority. Continue Reading

Emails – An essential tool that can make you look like a fool

Politics aside, the emails which the President’s son recently published serve as a reminder that email is a very powerful tool – one that can be both beneficial and detrimental.  The President’s son has admitted that, in hindsight, he should have handled the situation differently.  He’s probably referring both to the underlying meeting at issue as well as his email exchanges in advance of the subject meeting.  And, with regard to the emails, he is probably lamenting the fact that they’re virtually indestructible.  They create an evidentiary trail that can be helpful or debilitating, depending on the circumstances.

Electronic communications (emails, text messages, instant messages) are ingrained in our society as a means of personal and business communication.  They aren’t going anywhere – literally.  So we must be diligent in our use of those media to communicate. Continue Reading

Cyberattack: All Eyes On HR

data security-01Ransomware attacks are on the rise. Tuesday, a massive ransomware attack hit global businesses around the world. Last month, the worldwide cyberattack WannaCry affected more than 300,000 computers in over 150 countries. These are just the latest in a string of cybersecurity incidents that have threatened not only the confidentiality of company information, but the very ability of companies to conduct their day-to-day operations.

At our recent 27th Annual Labor & Employment Law Seminar, I spoke about the critical components of a company’s cybersecurity plan. I also discussed how an effective cybersecurity program requires participation and buy-in from various departments in an organization, and Human Resources is a critical component of that effort. More than 50% of all security breaches are caused by company employees. Many hackers target people inside the organization by tricking them into granting access to information or secure areas. Other threats result from careless employee mistakes, such as logging onto an unsecured public Wi-Fi hotspot.

You can read about the steps HR can take to protect a company in my article for the June 2017 edition of the Florida Employment Law Letter, “Cyberwarfare in the workplace: HR on the front lines.”  Implementing these measures can play a critical role in an organization’s ability to prevent and respond to cybersecurity threats.

Clean Up On Aisle 6: Federal Judge Rules That Winn-Dixie’s Website Violates The ADA

website accessabilityIs your organization a “public accommodation” under Title III of the Americans with Disabilities Act (ADA)?  Does your organization have a website?  If so, can that website be navigated with a keyboard (instead of a mouse) and with screen reader software?  Is the audio content on the website captioned?

At this point I know you are thinking, “What does this have to do with human resources or employment law?” As an HR professional, you are the ADA subject matter expert for your organization.  This post will help you showcase that expertise and be a business partner with your senior leadership to identify and remediate potential risk to the organization. Translation: You’ll be a hero. Continue Reading

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