EXTRA! EXTRA! Read All About It! New FMLA Forms are Here!

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I have good news for you! The U.S. Department of Labor has finally released revised notices and forms for use with employee leaves under the Family and Medical Leave Act.  More good news: the new docs have a new expiration date – May 31, 2018.  

The revised notices/forms include the following:

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381 Notice of Eligibility and Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Current Servicemember – for Military Family Leave
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

(See the expiration date in the top right corner of the forms.) Prior to the new forms being issued, the old forms were scheduled to expire on May 31, 2015.

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Delivering a New Florida Law: Pregnancy

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Two hours at the gym, a full face of make-up and your best feel-good outfit: that’s how many a girls’ night out begins. But this one ended abruptly when a young woman claims she was turned away from a bar whose owner thought she was pregnant.

Last month, a local Jacksonville, Florida news channel aired this story about a girls’ night out turned sour. “I put on my outfit, my full face of makeup and I’m feeling great about myself. I just put in two hours at the gym,” the woman said. The night seemed full of potential, until the owner of the establishment stopped her at the door, demanding to know if she was pregnant! The outing ended with name-calling and tears before the first round of cocktails. As for the bar owner, he says he was just trying to be responsible by protecting pregnant women from second-hand smoke, alcohol consumption and injury from rowdy crowds.

The woman in this story may not have been pregnant, but the Florida legislature just passed a law that affects mothers-to-be. The amended law will make it illegal, as of July 1, 2015, for hotels, restaurants and employers to discriminate against pregnant women. The law amends the Florida Civil Rights Act to include pregnancy among the other protected classes already enumerated in the law: race, color, religion, sex, national origin, age, handicap, and marital status.

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TOP SECRET Takeaways from Our 25th Annual Labor & Employment Law Seminar

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Our 25th Annual Labor & Employment Law Seminar is a wrap. Wow, 25 years goes by in the blink of an eye!

Each year, our seminar continues to grow. Thank you to the attendees who have been with us from the beginning and the newcomers who attended for their first time this year.  With over 400 attendees from more than 200 employers, our 25th Annual Labor & Employment Law Seminar was a success!

The day was filled with plenty of TOP SECRET information. If you were unable to attend, or need a quick refresher, below are the top takeaways from each of our nine sessions.

  • Andy Rodman & Elitsa Yotkova The 6 Pre-Employment Issues Most Likely to Bite You in the Backside: Don’t ignore legal risks arising out of the recruitment and hiring process.  A review of your company’s hiring forms, such as the employment application and the background check disclosure and authorization form, may reduce legal exposure and save your company the time, money, and aggravation associated with litigation.  Also remember to cast a broad net in your recruitment efforts to achieve and maintain a diverse workforce.  And lastly, exercise caution when using the internet to obtain background information on your job applicants.
  • Lisa Berg & Glenn Rissman 10 Ways to Curb Intermittent FMLA Leave Abuse: In attempting to curb intermittent FMLA leave abuse, employers should scrutinize the initial medical certification, request a second opinion if it doubts the validity of the initial certification, request recertification as appropriate, or temporarily transfer the employee to another position that better accommodates the need for intermittent leave.
  • Ingrid Ponce and Bob Turk “La Oficina de mi Jefe” – Dealing with Workplace Telenovelas: Every HR professional deals with similar workplace dramas. The six “hot” (and complex) issues every employer needs to be prepared to deal with: 1. Applicants with previous criminal records; 2. Defining when bonuses and other compensation is “earned”; 3. Preparing for possible DOL regulations updating who is exempt from overtime; 4. Effect of dress code, grooming and other policies on transgendered employees and employees requiring religious accommodations; 5. Employee use of personal computers and smart phones at and outside of work; and 6. Bullies who can lead to lawsuits and unionization.
  • Guest Speaker Ileana Marcos Shocking Secrets When Dealing with Workers’ Compensation Claims: It is important to report all alleged work related injuries to the worker’s comp carrier within 7 days in order to preserve the Employer’s tort immunity.  Regardless of whether you believe an alleged incident will not or should not be covered by worker’s comp, reporting the accident preserves all viable defenses such as untimely Notice, Statute of Limitations, Misrepresentation and Lack of Major Contributing Cause.
  • Bayardo Alemán & Jennifer Saltz Bullock Surprising NLRB Decisions Hiding in Plain Sight: Carefully draft or revise your employee handbook policies in light of the recent NLRB rulings against non-union employers. Policies should be specific, capable of being easily understood, should not infringe on employees’ rights to discuss wages and terms and conditions of employment and should not contain general statements that require interpretation.
  • Sharon Quinn Dixon & Eric Gabrielle Quick Beauty Tips for Your Employee Benefits Package: Coordinate your health plan’s eligibility rules with the tax “pay or play” definition of full-time employee, or be prepared to handle the details of any differences between them; Consider whether you want to amend your Section 125 Plan to allow new changes in health plan elections due to the effect of “pay or play” rules; at the risk of finding your company on the losing end of a lawsuit, comply with the very specific DOL rules on electronic distribution of required information; To avoid being involved in the type of case we see almost weekly, become more involved in making sure employees properly update their beneficiary designations.
  • John Heber The Seven Habits of Highly Successful Severance Packages: Federal tax issues can have a significant impact on how and when departing executives receive severance payments. Employers with a policy requiring severance pay must comply with ERISA reporting requirements.
  • Eric Roth Jon Stage Five Effective Ways to Avoid Theft of Company Trade Secrets: Recognizing protectable trade secret information and implementing safeguards to protect against misappropriation or improper disclosure of those trade secrets will enhance your ability to compete more effectively in the market.
  • Freddy Perera and Rene Ruiz Secret Union Tactics Your Employees Can’t Resist: Union campaign speeches can be alluring and convincing–especially when employers create rigid hierarchies, a perception of favoritism, and an environment of poor communication.  Employers don’t win union elections through eloquent rebuttal speeches.  Elections are won through effective labor relations, which in turn requires a deep understanding of human psychology.

Can’t wait to see what the next 25 years will bring!

Low Balling: Negotiation Starter or Negotiation Killer?

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Did you see Jon Lester pitch for the Red Sox against the Yankees a few days ago? I bet you more money than Floyd Mayweather made in his fight against Manny Pacquiao that you didn’t.  There is no way you could have. That’s because Lester does not pitch for the Red Sox anymore. Why? Well, probably because of a poor initial offer.

Lester was drafted by the Red Sox at the age of 18. He played 8 seasons for the organization. He won two championships, pitched a no-hitter, and even beat cancer with the ballclub. Despite his impending free agency after the 2014 season, Lester was not shy about declaring his love for the city and his desire to remain playing for the Red Sox. That’s where he wanted to be.

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Proving Emotional Harm: Using One’s “Head”

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Stress. Anxiety. Paranoia. Anger. Fear. Depression. Angst.

These are the types of words you would expect to hear from a plaintiff seeking compensatory damages (damages for alleged pain and suffering) in a discrimination or harassment case.

How does a plaintiff prove the existence of pain and suffering? Often times, a plaintiff simply takes the stand and explains to the jury how the discriminatory or harassing conduct has impacted his (or her) life. Perhaps he’ll call his treating physician to the stand to describe the symptoms and diagnosis in fancy medical terms.

As the plaintiff recounts the impact of the discrimination or harassment on his emotional well-being, how is the jury to know if he’s telling the truth? Stress is subjective. It’s not something that can observed and verified, like a broken bone. Right?

Maybe not.

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Everyone Can Be Replaced: And Maybe Sooner Than You Think

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I love a good sci-fi film as much as the next guy, but what happens when the science is no longer fiction?  If you’ve been following developments in the field of computers, you may have seen recent stories regarding how some fairly well regarded individuals, namely Stephen Hawking, Bill Gates and Elon Musk, think the greatest threat to mankind may not be Isis or terrorists generally, or nuclear proliferation, but artificial intelligence.  And they are not alone.

The thinking goes something like this: Once true artificial intelligence is developed, man will no longer be the most intelligent “species” (think of the Star Trek television episode where Data wanted recognition as a sentient being) on the planet, and, as was the case with man, the likely result that follows the development of artificial intelligence is that it will then proceed to dominate the world.  Think Will Smith in i, Robot. Not good.

Stephen Hawking’s glass half empty perspective is downright troubling.  In an interview with the BBC regarding AI, Hawking said “The primitive forms of artificial intelligence we already have, have proved very useful. But I think the development of full artificial intelligence could spell the end of the human race. Once humans develop artificial intelligence it would take off on its own and redesign itself at an ever-increasing rate. Humans, who are limited by slow biological evolution, couldn’t compete and would be superseded.”  Superseded.

In a February 4, 2015 article, published in The Guardian, Ray Kurzweil, director of engineering at Google, “estimated that robots will reach human levels of intelligence by 2029, purportedly leaving us about 14 years to reign supreme.”  IBM’s Watson computer, which won Jeopardy in 2011, has been successfully applied to medical diagnoses and can outperform doctors in some tasks.  The same machine has also been transformed into an “artificial lawyer,” which can search legal databases and correspondence for possibly relevant information.

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Who Doesn’t Like Non-Competes?

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Clients sometimes ask, “Which employees should sign non-competition agreements?”   The answer from a growing number of employers seems to be “Everyone” and from employees it seems to be “No One”.  Recent news reports have commented on large retailers requiring that temporary or seasonal workers, stock room clerks and delivery personnel sign restrictive covenants – not the types of workers usually associated with non-compete agreements.  So what’s the right approach?

Typically, states in which such agreements are enforced will honor a restrictive covenant that is narrowly tailored to protect a legitimate business interest of the employer.  Florida, in particular, has a statutory scheme which is very favorable to the enforcement of non-compete agreements drafted in accordance with Florida law.  Under the Florida statute, legitimate business interests include protection of trade secrets and other confidential or proprietary information, customer relationships, goodwill, and extraordinary or specialized training provided to an employee.  If an employee will receive or use any such information, he or she may be restricted from working for a competitor as long as the restriction is limited and reasonable in time and geographic scope so as to protect the employer’s legitimate business interests.

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Unions’ Dream of “Quickie” Elections, Now a Reality

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I was on my high school track team.  My favorite race was the 100-yard dash.  I distinctly remember practicing how to spring quickly out of the starting line blocks when the gun fired.  The faster I jumped out of the blocks, the greater the odds of winning.

This image came to mind when I met last week with the Regional Director of the National Labor Relations Board (the “NLRB”) for Region 12. Region 12 covers most of Florida (excluding the Panhandle), southern Georgia, Puerto Rico and the U.S. Virgin Islands.  The Regional Director discussed the new NLRB rules that give unions a “jump” on unionizing private sector employees.

In the past, after a union filed a petition for an election allowing employees to vote on whether to unionize, an employer had time to request a hearing on disputed pre-election issues.  These issues included whether the union had requested an appropriate group of employees who could vote, whether certain employees should be excluded from voting, and other important pre-election matters.  Once these issues were resolved (or if they did not exist), the NLRB usually would schedule an employee election 40 to 42 days out. This had been the practice for at least the last five decades.

Starting today, however, the NLRB is speeding up the process and allowing unions to obtain “quickie” elections.  Now if there is a dispute regarding pre-election issues, the NLRB can schedule a hearing as early as 9 calendar days after the filing of a petition.  The NLRB also is going to resolve these issues much faster.  In the past, pre-election hearings could last for a month or more.  Now, hearings may last just a few days. Continue Reading

Common ¢ent$, Glass Ceilings, and a 9-Year Old Girl

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Women may not yet have achieved equality in the corporate boardroom, but women have broken through the glass ceiling to take-on the CEO position in a handful of the largest U.S. companies, including General Motors (Mary Barra), Xerox (Ursula Burns), Yahoo! (Marissa Mayer), Hewlett-Packard (Meg Whitman), PepsiCo (Indra Nooyi), IBM (Virginia Rometty), Lockheed Martin (Marillyn Hewson), and TJX Companies (Carol Meyrowitz).

What about outside of the boardroom? Can you name a woman whose face currently appears on any U.S. paper currency?

Trick question. There aren’t any.

Why not? It’s not because we haven’t had a female president (yet). Alexander Hamilton (never president) appears on the $10, and Benjamin Franklin (never president) appears on the $100.

I’m aware (only because I researched the issue to write this blog) that Martha Washington appeared on the $1 Silver Certificate of 1886 and 1891, and that she appeared side-by-side with George on the $1 Silver Certificate of 1896. I have never held, seen, or heard of those bills . . . so they don’t count. I’m also aware that Susan B. Anthony and Sacagawea have appeared on $1 coins, but when is the last time you came across one of those when emptying your pockets?

Is there a glass ceiling for women when it comes to paper currency?

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Remind Us Not to Post On Moving Targets!

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The latest development in the H-2B saga came yesterday. The federal district court at the heart of the controversy decided to temporarily stay its order that had vacated the U.S. Department of Labor’s 2008 H-2B regulations. The court stayed its decision through April 15. The court did not have much sympathy for the DOL’s lack of a contingency plan but stated, “given that there are numerous United States employers who rely on the H-2B program to fill their temporary labor needs, the Court agrees that the requested temporary relief is warranted.”

According to its website, the DOL will begin processing H-2B applications under the 2008 rule and will continue to do so through April 15, 2015. Under the terms of the district court’s order, any application for certification or prevailing wage determination that has not completed DOL processing by the time the stay ends on April 16, 2015, may no longer be processed under the 2008 H-2B rule.

As we previously posted, the DOL and U.S. Citizenship and Immigration Services intend to issue an Interim Final Rule on the H-2B program by April 30.

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