Employment is Now-But is a Separation Agreement Still Forever?

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It’s time! An employee needs to go. The departure needs to be a clean break with no threat of future litigation. A severance pay agreement, in exchange for a promise to never bring a claim against the company or speak ill of the company, looks like a good idea.

The employee accepts the extra money and signs the agreement waiving all potential claims and to keep corporate information confidential. You are a hero! The company will never hear from the employee again. Right? Not so fast-at least according to a number federal law enforcement agencies.

How Does Time Off Due to a Hurricane Affect Your Employees’ Pay?

By Stearns Weaver Miller on October 5, 2016 Posted in Disability & Leave, Employment Contracts & Corporate Issues, Wage & Hour/Employee Classification

With Hurricane Matthew expected to hit the east coast this week, Floridians are stocking up on water, batteries, gas, and canned food. It’s important to be prepared and plan ahead for your home and family.

For those in Human Resources, it is also a good time to plan ahead for what happens with employees’ pay if your company’s offices close due to a storm. Continue Reading

Clark Kent: Take Off Those Glasses if You Want a Passport or Visa

By Glenn Rissman on September 27, 2016 Posted in Immigration

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The Department of State is rolling out its “no four eyes” policy. Effective November 1, 2016, the Department of State will no longer accept photographs of visa and passport applicants wearing eyeglasses, except in very limited medical circumstances. From November 1 to November 30, the Department will accept photographs of applicants wearing eyeglasses as part of a soft-enforcement period. After December 1, applicants for passports and visas must submit photographs without eyeglasses. Visa applicants who submit a noncompliant photograph will receive a temporary refusal letter and will be required to provide an updated photograph with no eyeglasses.

The Department of State prohibited the wearing of glasses in passport and visa photos to enhance the performance of the facial recognition service the Department uses. The Department of State has created a webpage on passport and visa photos as part of Passport Awareness Month. (Who knew?) Here is the link with suggestions to improve your passport and visa photos and avoid delaying your application.

Happy travels.

It’s Easy Being Green in Florida: Corporations for the “Socially-Minded”

By Stuart Ames on September 21, 2016 Posted in Employment Contracts & Corporate Issues

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Many employees enjoy working for employers who “do good” in the world. Making money is important, but not always the sole mission of the employer. A large number of companies and their employees are involved in charities and volunteerism. However, a rising number of employers are making a profit while also focusing on societal and environmental concerns. This is a growing trend around the country that has attracted investment by socially-minded entrepreneurs and investors who wish to “do well while doing good.”

In 2014, Florida joined several other states in passing legislation which permits two new types of corporations: “Social Purpose Corporations” and “Benefit Corporations.” Each is permitted to engage in significant societal benefit programs that may not involve or satisfy the traditional corporate goal of maximizing shareholder value. Both, however, are for-profit corporations formed under the Florida Business Corporation Act.

Federal Court Gets Cat Scratch Fever

By Stearns Weaver Miller on September 12, 2016 Posted in Discrimination & Harassment, Legislation & Regulations

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The “Cat’s Paw” doctrine describes the situation where an employer may be liable for employment decisions based on the discriminatory animus of an employee who influenced — but who did not make — an employment decision. The phrase comes from an Aesop fable where a conniving monkey convinces a naïve cat to reach into a fire to get roasting chestnuts that they can both enjoy. But after the cat grabs the chestnuts, the monkey takes off with the chestnuts and leaves the cat with nothing but burnt paws.

In 2011, the U.S. Supreme Court endorsed the “Cat’s Paw” doctrine with respect to biased supervisors. Meaning an employer can be held liable where an ultimate decision-maker (such as a high-level manager) makes a decision (such as terminating an employee) based solely on untruthful reports from a biased lower-level supervisor. The U.S. Supreme Court, however, expressed no view as to whether the doctrine applies when a decision-maker is influenced by a biased lower-level, non-managerial employee.

Words Matter: Preparing for a Reduction in Force

By Andrew Rodman on September 6, 2016 Posted in Discrimination & Harassment, Hiring/Termination

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A few weeks ago, four former Hewlett-Packard employees between the ages of 52 and 63 filed a class action lawsuit in California alleging that HP engaged in age discrimination, and terminated their employment, in connection with a paring-down and restructuring of its workforce.

HP has denied the allegations of discrimination, stating that, “[t]he decision to implement a workforce reduction is always difficult, but we are confident that our decisions were based on legitimate factors unrelated to age.”

How do the plaintiffs intend to prove discrimination? They point to age-based statements made by CEO Meg Whitman during securities analyst meetings: Continue Reading

Don’t Forget About ACA Compliance with Staffing Firm Service Agreements

By Sharon Quinn Dixon on August 29, 2016 Posted in Employee Benefits & Compensation

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Applicable large employers – those with 50+ full-time employees (ALEs) – under the Affordable Care Act (ACA) must satisfy the law’s “employer mandate,” meaning that they may be assessed penalties for:

Failing to offer minimum essential coverage to full-time employees and their dependents
Offering eligible employer-sponsored coverage that is not affordable or does not provide minimum value, as defined under implementing guidance

The IRS rules under the ACA teem with definitional challenges for the terms “applicable large employer,” “minimum essential coverage,” “full-time employees,” “affordable” and even “dependent” and I won’t elaborate on the details here.

I want to focus here on what I consider to be the typical ALE that regularly uses the services of a staffing firm to fill some positions or even whole departments and the effect of those workers on the ALE’s compliance with the ACA. Continue Reading

What Employers Need to Know About Zika

By Lisa Berg on August 11, 2016 Posted in Employment Contracts & Corporate Issues

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The Zika virus — a disease spread primarily through mosquito bites — continues to make international headlines. While the virus is not new, it is new to the Americas. According to the U.S. Centers for Disease Control (CDC), outbreaks have been reported in at least 51 countries or territories. Brazil has been the country most affected by the virus. On July 29, 2016, the Florida Department of Health reported the first known local transmission of the virus through infected mosquitoes in the Wynwood neighborhood of Miami.

Despite the media frenzy, it is important to remember that most cases of Zika are mild. The disease poses the greatest risk, however, for pregnant women and is known to cause devastating birth defects. The CDC recently issued an advisory for pregnant women traveling to affected areas.

I recently wrote a Q&A published by Business & Legal Reports (BLR) to help employers better understand the disease and how to handle issues that are likely to arise in the workplace. You can view the article here.

For Immediate Posting in Your Workplace: Updated Minimum Wage and Polygraph Posters

By Stearns Weaver Miller on August 5, 2016 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

The U.S. Department of Labor (DOL) recently published two updated workplace posters: Federal Minimum Wage poster, and Employee Polygraph Protection Act (EPPA) poster. (Note: Federal, state or local governments are exempt from the EPPA so no poster is required for these employers)

The posters have been visually redesigned and includes a QR Code, which when scanned takes the user to the DOL’s Wage & Hour Division pages for “Wages and the Fair Labor Standards Act” and the EPPA.

The updated posters are dated 07/16 and went in effect on August 1, 2016. This means that employers must have these posters up now!

Action steps:

Print out the new poster in color (note: it requires letter size paper) and place over the existing federal minimum wage and EPPA posters in the workplace.
Update the electronic copies of the posters on your intranet site for employees (if applicable).
Update the electronic copies of the EPPA poster on your on-line application site. Remember, the EPPA poster must be visible to your applicants (29 C.F.R. 801.6)

When a Florida Employee Jumps Ship: Welcome to the Temporary Injunction Sprint

By Stearns Weaver Miller on August 4, 2016 Posted in Employment Contracts & Corporate Issues

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In today’s legal world, a very small number of lawsuits are litigated through trial, with less than 2% ever materializing into trial. Although for many clients that is good news (since trial can become very expensive very quickly), other clients want their day in court. However, trial isn’t the only way to get your case heard before a judge! Introducing …. The Motion for Preliminary Injunction!

A preliminary injunction, often referred to as a temporary injunction, is a court order prohibiting an action by a party to a lawsuit until trial or until the case is dismissed for another reason. Essentially, it is a mini trial before the trial, and the court hears these motions on an expedited basis. Continue Reading