Florida Legislative Development: Corporations For The “Socially-Minded”

By Stuart Ames and Robert Turk on July 2, 2014 Posted in Legislation & Regulations

Many employees enjoy working for employers who “do good” in the world. Making money is important but not the sole concern. Many companies and their employees are involved in charities. However, a growing number of employers are making a profit while also focusing on social and environmental concerns. We think of the owners of these companies and employees as progressive capitalists.

Last week, Governor Scott signed a law, in which Florida now joins at least 23 other states, (including California, Delaware, Massachusetts, New York, Connecticut and Pennsylvania) which permits two new types of corporations to be created in Florida: a “Social Purpose Corporation” and a “Benefit Corporation.” Each is permitted to engage in significant societal benefit programs that may not involve or satisfy the traditional corporate goal of maximizing shareholder value.

Lactation Discrimination a Potential Risk for Employers

By Stearns Weaver Miller on June 30, 2014 Posted in Discrimination & Harassment, Legislation & Regulations

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Title VII and Pregnancy Discrimination Act could protect breastfeeding mothers at work

Some women do it in the break room. Other women do it in their office. What about men? Well, they never do it. Pump breast milk, that is.

Employers have had the last four years to get used to the break time requirement for nursing mothers. But now the risks for employers who do not accommodate their lactating employees have become even greater.

Now that nursing mothers are given the time and place to express milk at work (thanks to a 2010 amendment to the FLSA), more mothers are likely to continue lactating upon returning to work from maternity leave. While the FLSA has a break time and location requirement for non-exempt lactating employees, it does not protect an employee from discrimination or discharge because she lactates or takes breaks to express milk at work. But, according to an interesting case out of the Fifth Circuit, the FLSA is not the only law that offers protection to lactating employees. In the Fifth Circuit, discriminating or discharging an employee because she is lactating or expresses milk amounts to sex discrimination under Title VII and the Pregnancy Discrimination Act.

What Do You Mean Men Can’t Lactate?

EEOC Shines Spotlight on Employers’ Dress Code Policies That Interfere With Religious Practices

By Stearns Weaver Miller on June 26, 2014 Posted in Discrimination & Harassment, Employee Handbooks & Policies

Three cases brought by the Equal Employment Opportunity Commission (“EEOC”) highlight the importance of employers considering religious accommodations for their dress code policies. Pursuant to the law, a religious accommodation must be made as long as it does not impose an undue hardship to the employer.

Two of the cases brought by the EEOC are against popular clothing retailer Abercrombie & Fitch. In both cases, Abercrombie & Fitch prohibited Muslim employees from wearing a hijab (a Muslim headscarf) because it violated their “Look Policy” which included a prohibition against head coverings. On June 27, 2011, the EEOC sued the retailer claiming that it violated the civil rights of a Muslim woman, Hani Kari, when it fired her for refusing to remove her hijab. A few weeks later, on July 13, 2011, the EEOC prevailed in another case against the retailer on behalf of a Muslim woman, Samantha Elauf, who was turned town for a sales position with the company in 2008 because she wore a hijab.

On July 28, 2011, the EEOC sued a Taco Bell franchise owner, Family Foods, Inc., stating that it unlawfully terminated the employment of a devout Nazarite, Christopher Abbey, for not cutting his hair. Nazarites do not cut their hair as a sign of their devotion to G-d. Mr. Abbey began working for Taco Bell in 2004. Mr. Abbey had not cut his hair for four years. It was not until six years later that Taco Bell told Mr. Abbey that he had to cut his hair to comply with the company’s grooming policy.

These three cases serve as a reminder to employers that simply because a dress code policy prohibits “undesirable looks” such as like tattoos, piercings, long hair, head scarves, the policy may not be reason enough to deny a religious accommodation.

Tips to consider:

Communicate effectively with employees who request accommodations or exemptions from the rules.
Be open and willing to make reasonable accommodations.
Be consistent in your implementation of dress code and appearance policies.
If a dress code issue arises and you are not sure what to do, seek advice from an expert before it becomes a bigger issue.

The Wage & Hour Battle Rages On

By Andrew Rodman on June 25, 2014 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

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Over the last several months, President Obama has continued his push to revamp the nation’s minimum wage and overtime laws. He has faced an uphill battle.

In a Presidential Memorandum dated March 13, 2014, President Obama directed the Department of Labor to “propose revisions to modernize and streamline the existing overtime regulations” under the Fair Labor Standards Act, which the President characterized as “outdated.” The Department of Labor is believed to be considering revisions that would, among other things, update the current $455 per week salary threshold ($23,660 annualized) for the “white collar” professional, executive, and administrative exemptions. That $455 per week threshold has not increased since 2004.

Apparently, the U.S. Congress does not want to wait for the Department of Labor to act (perhaps because the Department of Labor’s “notice and comment” rulemaking process could take a year or more). Last week, a group of Democratic U.S. Senators introduced the “Restoring Overtime Pay for Working Americans Act” as an amendment to the FLSA. If passed, the bill would:

FMLA UPDATE: Proposed Revision to Definition of “Spouse” to Include Same-Sex Spouses, Regardless of Where They Live

By Stearns Weaver Miller on June 23, 2014 Posted in Disability & Leave, Employee Handbooks & Policies, Legislation & Regulations

On June 20, 2014, the Department of Labor (“DOL”) announced its proposal to change the FMLA’s definition of “spouse”. According to the DOL, the purpose of the proposed change is to “ensure that same-sex couples who have legally married will have consistent FMLA rights regardless of where they live.”

Under the current FMLA regulations, employees who live in states that do not recognize same-sex marriage (such as Florida) cannot take FMLA leave to care for their same-sex spouse, even if they were legally married in another state or country. The DOL’s proposal will eliminate this “place of residence” rule and replace it with a “place of celebration” rule. Under the new rule, an employee’s spousal status is determined by the law of the state where the employee got married and specifically includes same-sex marriages and common-law marriages. (Marriages entered into abroad also are recognized, provided they could have been entered into in at least one state).

What does the change mean for employers?

The change will mean that an eligible employee will be able to take FMLA leave to care for a same-sex spouse with a serious health condition, to care for a same-sex spouse who is a covered military member with a serious illness or injury (military caregiver leave), or for a qualifying exigency due to a same-sex spouse’s covered active duty status or call to active duty. An eligible employee also will be able to take FMLA leave to care for the same-sex spouse’s child as the FMLA’s definition of “son or daughter” includes a stepchild.

Employers’ Obligations Under Florida’s Medical Marijuana Laws Hazy

By Stearns Weaver Miller on June 16, 2014 Posted in Employee Handbooks & Policies, Legislation & Regulations

Florida Governor Rick Scott signed SB 1030 today. This law now makes it legal for qualified patients in Florida to take low-THC cannabis in liquid form to treat certain seizure disorders, such as epilepsy and muscle spasms, and for cancer. While SB 1030 will likely not have a huge impact on day-to-day operations in the workplace because the strain of marijuana that is being legalized claims to have no hallucinogenic effect, a broader medical marijuana law, Amendment 2, will appear on Florida’s November ballot.

If passed, Amendment 2 would legalize the cultivation, purchase, possession and use of marijuana (not just low-THC forms) to treat medical conditions. The proposed law would not require Florida employers to accommodate the on-site medical use of marijuana. However, it fails to address how employers should otherwise treat employees who are qualified to use marijuana medically.

Other States

How have other states, where medical marijuana laws also do not explicitly provide protected status to patients (California, Montana, Washington and Oregon), addressed the employment issues? Each state’s supreme court has upheld an employer’s decision to terminate employees for their marijuana use outside of the office. These courts held that medical marijuana laws only protect patients from criminal penalties and not from being fired by their employers.

Effective Use of Non-Compete Agreements

By Andrew Rodman on June 16, 2014 Posted in Employment Contracts & Corporate Issues

As recently reported by The New York Times, non-compete agreements are popping-up in a wide array of businesses to protect varied business interests.

As businesses have come to recognize, non-competes are not limited to protection against disclosure of a “top secret” formula, process, or technological invention. A properly drafted non-compete agreement may have much wider application.

The enforceability of non-competes, however, is a function of state law; they are enforceable in some states, but not others. And, in those states in which they are enforceable, the scope of permissible restriction varies.

Should Your Employment Policies Be Translated?

By Stearns Weaver Miller on June 10, 2014 Posted in Employment Litigation, Legislation & Regulations

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“Comprenden sus empleados las políticas de empleo?” If you did not understand that, take notice of a recent decision by a federal court judge.

In the case, an employee sued his former employer for alleged unpaid wages. When the employee began his employment, he signed an agreement stating he would be required to arbitrate any dispute relating to his employment. Not surprisingly, the employer asked the court to send the case to arbitration.

The employee argued the arbitration agreement was unenforceable because the employer had committed fraud by refusing his requests for: (1) a version of the agreement in Spanish (he was given other documents in Spanish, but not the agreement); (2) an explanation of the agreement in Spanish; and (3) time to take the agreement home to review it.

Social Media: A Blessing and a Curse for Employers

By Andrew Rodman on June 9, 2014 Posted in Employee Handbooks & Policies, Labor Law

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The explosion in popularity of social media has, in my opinion, been a blessing and a curse for businesses. On the one hand, social media helps businesses market products and services, and reach-out to current and potential customers, with relative ease and little cost. On the other hand, social media provides employees and customers with a platform to complain, air dirty laundry to the world, and otherwise draw negative attention to the business.

A medical center in Cincinnati recently experienced the curse of social media.

A patient at the University of Cincinnati Medical Center has sued the Medical Center alleging that one or more hospital employees posted on Facebook a screenshot of her medical records, including her name and diagnosis, syphilis. To make matters worse (if that’s possible), the Facebook group on which the information was posted was called “Team No Hoes.” Comments accompanying the screenshot referred to the patient as a “hoe” and a “slut.”

It’s Summer: How to Treat Your Interns Under the ACA

By Sharon Quinn Dixon on June 4, 2014 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

It is prime time of the year for hiring “interns.” With the Affordable Care Act’s “pay or play” rules scheduled to go into full swing next year for large companies (50+ employees), employers have to know how to treat interns.

The federal tax code imposes special taxes on large employers if their employees receive premium tax credits for the purchase of their own health coverage on one of the health care exchanges. We won’t repeat all the pay or play rules here but suffice it to say that avoiding the taxes hinges on offering group health coverage to “full-time employees.”

Regular, full-time employees (generally 30+hours/week/month) have to be offered coverage within 90 days of hire (with a possible one-month extra “orientation period”). Most other employees don’t have to be offered ACA-compliant coverage until after nearly a year and then only after the employer determines that the employee during that period averaged 30+ hours/week/month. This is under the “look back measurement period” of the ACA rules. So how does an intern fit into these rules?