To Our Senior International Law Partner Daniel Vielleville, Thank You for your Service
Daniel Vielleville, a resident Partner in @assoulineberlowe‘s Miami Offices, has led the firm’s international practice for the last twelve years. We are very proud of the good work that Daniel provides to our clients, especially as it relates to complex international issues, involving cross-border disputes, and international arbitration and litigation.
Thank you Daniel for this dedicated service and we look forward to the next twelve years!
The Local Rules for the Middle District of Florida are strict as to font and size. Details about the requirements are provided below. Always make sure to look at local rules before filing, including the Florida appellate courts.
Local Rule 1.08 provides what is allowed in 14 point font, and then the exception:
Book Antiqua Calisto MT Century Schoolbook Georgia Palatino
Scale: 100% Spacing: Normal Position: Normal
(b) ANOTHER PERMISSIBLE TYPEFACE. Times New Roman is permitted if the main text is at least 14-point, an indented quotation is at least 13-point, a footnote is at least 12-point, and the paper otherwise complies with (a).
An examples of a recent Middle District opinion is provided for download.
On November 4, 2021, OSHA finally released the Emergency Temporary Standard (ETS) implementing President Biden’s vaccine mandate discussed below. Then, on November 6, 2021, after challenges to the ETS were filed by Republican attorneys general Texas, Louisiana, Mississippi, South Carolina and Utah, as well as several private companies, the Fifth Circuit Court of Appeals granted an emergency motion to stay the ETS. After further briefing, the appeals court reaffirmed the stay on November 9, 2021.
Because we do not know what will happen when the Fifth Circuit’s decision is appealed (and it surely will be), it is recommended that covered employers (those with 100 or more employees) start to prepare for implementing the rule.
Towards that end, the following is a summary of the ETS:
WHAT IS THE ETS AND WHO IS COVERED?
The ETS is the OSHA standard that mandates private companies with 100 or more employees require their employees to either (1) be vaccinated by January 4, 2022 or (2) test negative on a weekly basis and wear an approved face covering in the workplace. Employees choosing the second option are required to be in compliance starting December 5, 2021. The ETS is to be effective for six (6) months, unless an extension or permanent standard is put in place.
Part-time and at-home employees (but not independent contractors or volunteers) count toward the 100-employee threshold, but completely remote employees and those who work strictly outside are not subject to the ETS’ vaccine or face covering requirements. Workers who work remotely part of the time are required to comply with the ETS.
Note that healthcare providers, Medicare and Medicaid providers, government contractors, and government employees are covered by different mandates, not the ETS.
WHICH VACCINES COUNT?
The Pfizer, Moderna, and Johnson & Johnson vaccines are all acceptable. Booster shots are not yet required, and whether an employee has had COVID-19 in the past has no effect on the requirement: employers must still enforce the ETS against employees who have had and recovered from COVID-19.
ARE THERE EXCEPTIONS TO THE ETS?
There are medical exemptions and exemptions for sincerely held religious beliefs, as discussed below.
WHAT NOTICE MUST BE PROVIDED TO EMPLOYEES?
Covered employers must implement written policies covering the ETS, including the following:
Requirement of vaccination or weekly testing requirements, as well as exemptions
Documentation required to prove vaccination status and collection methods
Required paid-time-off: four (4) hours of paid leave for each dose for employees to get their vaccine starting December 5, 2021
Testing procedures and requirements (note that employers are not required to pay for testing or provide paid time off for testing)
Information regarding COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated
A representation that the employer will not discharge or discriminate against an employee for reporting work-related injuries or illness, exercising rights under, or as a result of actions that are required by, the ETS or filing an occupational safety or health complaint, reporting work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act.
For the duration of the ETS, employers must maintain records of their employees’ vaccination status.
As proof of vaccination, employers are authorized to accept the following:
A healthcare provider or pharmacy’s record of immunization
A copy of the U.S. COVID-19 Vaccination Record Card
A copy of medical records documenting the vaccination
A copy of immunization records from a public health, state, or tribal immunization information system
A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s)
Employees can also verify their status with an attestation in which the employee acknowledge their vaccination status (full or partial) and, if available, information regarding the type of vaccine, dates of administrations and who provided the vaccine, and a statement that the proof of vaccination is lost or cannot be produced. The attestation should include the following language: “I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
For those who are interested, a more detailed summary of the ETS can be found HERE, and the full text of the ETS can be found HERE.
As always, if you have any questions about the ETS or any other employment-related matter, please feel free to reach out.
Over the past year, the U.S. Department of Labor has been in the process of reworking its final rule on tip regulations under the Fair Labor Standards Act. On October 28, 2021, the DOL announced publication of the final rule that effectively redefines the circumstances in which an employer can take a tip credit when employees are engaged in dual-role tipped work, such as “side work.” The final rule will take effect on December 28, 2021.
Under the final rule, an employer may take a tip credit only when an employee is performing work that is tip-producing or work that directly supports tip-producing work, provided that such support work is not performed for a substantial amount of time.
While taking and inputting orders and delivering food and drinks is tip-producing work, tipped workers (for instance, in the restaurant industry), are commonly required to set tables, make coffee, and occasionally wash dishes or glasses. These activities, which are “single-step, easily executed food and drink preparations,” support tip-producing work. As such, an employer may take a tip-credit so long as this support work is not performed for a substantial amount of time.
The final rule defines “substantial amount of time” as either (1) work exceeding, in the aggregate, 20% of the employee’s hours worked during the workweek or (2) work which is performed for a continuous period of time exceeding 30 minutes.
Though bearing some similarities, this final rule is a departure from the prior “20% rule.” Under the 20% rule, for an employer to take a tip credit for work that was not directly tip-producing, the employee’s side work had to be “incidental to” tip-producing work and must not exceed 20% of the employee’s overall duties.
This new rule is likely to require increasingly close supervision of employees by the employer to ensure compliance. A careful review and possible revision of current practices, policies and procedures, as well as training on the final rule, may be required for those employers impacted by this change. For any questions, please feel free to contact Giancarlo Cellini at Assouline & Berlowe.
Effective October 1, 2021, Florida’s minimum wage will increase to $10.00 per hour (from the current $8.65 per hour). This is the first in a series of annual increases designed to implement the voter-approved constitutional amendment to raise the state’s minimum wage to $15.00 per hour by September 30, 2026.
For tipped employees, the minimum wage will increase to $6.98 per hour (from the current $5.63 per hour). This rate will similarly increase up to $11.98 per hour by September 30, 2026.
Please make certain the persons or companies preparing payroll are aware of these changes as well as the resulting increases in the overtime rates.
If you have any questions, please feel free to reach out to Ellen.
As most of you know, President Biden recently outlined a multi-prong strategy designed to curb the current wave of the COVID virus. His plan includes the following points relevant to private employers:
• All employers with 100 or more employees must implement vaccine mandates for their workforce or require workers who remain unvaccinated produce a negative test result on at least a weekly basis before coming to work. OSHA is soon expected to issue an Emergency Temporary Standard (ETS) to implement this requirement and clarify which private employers are affected, i.e., how 100 employees should be counted. More than likely, the 100-employee determination will apply to the employer’s total number of employees rather than the number of employees at each worksite. The ETS should also require employers with 100+ employees to provide paid time off to those employees to get vaccinated or need time off to recover after vaccination.
• Mandatory vaccinations for all healthcare workers in healthcare facilities receiving Medicare or Medicaid reimbursement, including but not limited to hospitals, ambulatory surgical settings, and home health care agencies.
• Employers with vaccine mandates must consider accommodating only those employees with medical or religious exemptions, and employees who do not qualify for a medical or religious exemption may be subject to termination. Similarly, if an employer permits testing in lieu of vaccinations, an employee who refuses to test may also be terminated unless the employee requires an accommodation relating to testing.
To be clear, an employee requesting an exemption from the employer’s vaccination mandate due to a personal preference – rather than a medical or religious reason – is not protected from termination.
Religious exemptions or accommodations will surely increase in light of President Biden’s mandate, and since these requests are much more nuanced than medical exemptions, here is what employers should focus on in assessing these requests.
The threshold inquiry for any request for a religious accommodation is whether the employee has a “sincerely held religious belief, practice, or observance” that prevents the employee from receiving the COVID vaccine. Sincerely held religious beliefs include “moral or ethical beliefs as to what is right and wrong and held with the strength of traditional religious views.”
Equal Employment Opportunity Commission (EEOC) guidance states that employers should accept an employee’s claim of a sincerely held religious belief unless the employer has an objective basis to deny the exemption. The EEOC has identified four factors that may create doubt in an employer’s mind as to the sincerity of the employee’s religious belief, which include the following:
Whether the employee has acted in a way that is inconsistent with the claimed belief;
Whether the employee is seeking a benefit or an exception that is likely to be sought for non-religious reasons;
Whether the timing of the request is questionable, e.g., does the request follows closely on the employee’s request for the same benefit for a different reason; and
Whether the employer has other (secular) reasons to believe the employee is seeking the exemption.
Employers with an objective basis to question the employee’s stated religious belief should request additional information from the employee before deciding whether to grant the requested accommodation.
Even if the employer finds there is a valid religious reason behind the employee’s requested exemption, EEOC guidance (and other applicable precedent) further provides that an employer need not provide an accommodation if doing so would cause “undue hardship” to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. For example, an employer may be able to show that accommodations (such as regular testing, creating a separate area in which the employee can work, purchasing of personal protective equipment, etc.) are too costly or burdensome or that an unvaccinated employee can compromise the safety of its workforce and patrons. The law does not require that an employee’s religious beliefs be prioritized over workplace safety.
In all accommodation cases, the employer must engage in an interactive dialogue with the employee requesting relief and evaluate each situation on a case-by-case basis. Employers are encouraged to seek legal counsel before denying a request for accommodation and also consider implementing, reviewing or updating any policies and procedures for handling requests for both religious and medical accommodations.
If you have any questions about the implementation of vaccine mandates or other employment-related issues, please feel free to Ellen using the following contact information.
Registered Patent Attorney and Intellectual Property Board Certified Partner Greg Popowitz will be a panelist in an upcoming webinar about non fungible tokens (NFTs). The webinar will cover: 1) What is a NFT?; 2) How are NFTs being used prominently at the moment; 3) Legal issues that have currently arisen and possible conflicts; and 4) Looking forward to where the intersection of NFTs is going with the law as well as local government.
Greg will be presenting with Attorneys Josh Lida and Danielle Dudai for the Broward County Bar Association webinar. The webinar is approved for 1 General & Technology CLE Credit & 1 Business Litigation & Intellectual Property Law Certificate Credits.
Assouline & Berlowe is proud to announce that Partner and Registered Patent Attorney Greg Popowitz has earned board certification from The Florida Bar in Intellectual Property Law. Greg joins a group of only 140 board-certified Florida lawyers in the Intellectual Property practice area.
According to The Florida Bar, only 7% of eligible Florida attorneys have earned board certification in one or more of the bar’s 27 specialty areas. Board certification recognizes attorneys’ special knowledge, skills, and proficiency in their areas of the law and their professionalism and ethics in practice. Board-certified lawyers must have a minimum of five years in law practice, pass an examination specific to their area of practice, undergo a peer review assessment of their competence and character, and satisfy continuing legal education requirements. Greg joins fellow Assouline & Berlowe partner Ellen Leibovitch, who is board-certified in Labor and Employment Law.
Greg, who practices in the firm’s Fort Lauderdale office, helps clients protect their inventions, brands, and other creations using patent, trademark, and copyright law. Greg is a Registered Patent Attorney and he helps secure patents and trademarks before the United States Patent & Trademark Office (USPTO), along with work relating to licensing, co-existence agreements, evaluating new inventions, brands, and technology, clearance searches, and litigation. Greg enjoys counseling clients on the various mechanisms available to protect their Intellectual Property, which ultimately adds value to their business.
Greg earned his J.D. from Nova Southeastern University School of Law and his B.S. in Mechanical Engineering from the Georgia Institute of Technology (Georgia Tech).
For more information about Intellectual Property issues, please contact Greg M. Popowitz, Esq.
Famous kids’ toy manufacturer Lego sent a cease and desist letter to gun company Culper Precision regarding its sale and marketing of Glock handguns. Culper Precision offered a Glock handgun with an aftermarket kit to transform the outside of the firearm with Lego bricks (a little tidbit, the plural of Lego is not Legos). Aside from what famous gun manufacturer Glock might have to say about its brand being used by Culper as a not so playful “Block19”, it was not a wise decision for Culper to adorn the outside of a Glock handgun with Lego bricks. The use of the Lego bricks makes the handgun look like a child’s toy and associates a kids toy company with firearms.
The term Lego derives from the Danish words that mean “play well”. Lego is a Danish company. I do not think Culper was playing well with others with this ill-conceived Lego kit. The term Lego is a famous brand for Lego bricks commonly found in homes across the world, particularly when you are walking barefoot in your home.
Lego likely has a claim of dilution by tarnishing under the Federal Trademark Dilution Act (FTDA) and/or the more commonly known Lanham Act. Dilution of a brand occurs when someone uses a famous mark (brand) that blurs or tarnishes the mark. Dilution differs from a typical trademark infringement claim as dilution does not hinge upon whether consumers would be confused. Traditional trademark law was designed to protect consumers from confusion. While dilution is designed to protect the famous brand from being diminished by properly identifying and distinguishing its good or services.
The FTDA in 2006 clarified that a mark is “famous” if it is widely recognized by the general consuming public as a designation of the source of the goods or services of the mark’s owner, and it allows the court to consider all relevant factors when determining whether a mark is famous, including: (1) the duration, extent, and geographic reach of advertising and publicity of the mark; (2) the amount, volume, and geographic extent of sales of goods or services offered under the mark; (3) the extent of actual recognition of the mark; and (4) whether the mark was registered on the principal register.
Here, Lego is clearly a famous mark. The false association of its Lego bricks on firearms would tarnish its brand and reputation for kid’s toys (including theme parks). Culper would be best served looking at the age difficulty on the Lego box before it tries to connect Legos with firearms.
For more information about dilution or other Intellectual Property issues, please contact Greg M. Popowitz, Esq.
The Fair Labor Standards Act (“FLSA”) is the federal law that establishes, among other things, that employees who are classified as “non-exempt” are entitled to be paid a minimum hourly wage and overtime pay when working more than 40 hours in any workweek. A person who brings a successful FLSA lawsuit is also entitled to attorney’s fees and liquidated damages. Generally, and conversely, “exempt” employees are those who are exempt from the minimum wage and overtime provisions of the FLSA. Exempt employees must be paid on a salary basis (and a minimum statutory required under the FLSA) and must perform certain duties. Exempt employees include executives, administrators, and professionals.
The question that we are considering now is this: when an employer fails to pay one or more weeks of pay to an exempt employee whose exempt status is not in dispute, does that render the employee non-exempt and, therefore, entitle such employee file a lawsuit for violation of the FLSA and, in so doing, recover the lucrative damages and other relief thereunder? The short answer is no.
The Southern District of Florida considered this very issue in the case of Tadili v. Ferber, 12-80216-CIV, 2013 WL 12101132, at *2 (S.D. Fla. Nov. 22, 2013). In that case, the plaintiff, an master dental technician (exempt as both a learned professional and a highly compensated employee), made the “convoluted argument” that since he did not receive his salary for five of the seven weeks he worked, he could not be considered an exempt employee. The court noted, “An employee who is either a learned professional or a highly paid employee who is not paid for work performed may have a breach of contract claim for nonpayment of wages, but such employee will not have an FLSA claim.” The fact that the employee was not paid did not allow him to claim he was entitled to a minimum wage as a non-exempt employee. Based on this reasoning, the court went on to grant the defendant’s motion for summary judgment.
Other cases holding that non-payment of wages to an otherwise exempt employee does not give rise to an FLSA claim include Nicholson v. World Bus. Network, Inc., 105 F.3d 1361 (11th Cir. 1997) (notingCongress’s intent in formulating the FLSA was to protect “poorer and powerless” workers, whereas the exemptions are carved out for those in higher employment positions who do not require such protections), and Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843 (6th Cir. 2012). See also Donovan v. Agnew, 712 F.2d 1509 (1st Cir. 1983).
It is not unusual for an employer to run into cash flow issues and be unable to meet their payroll obligations. When this occurs, employees may rush to hire legal counsel to sue, and savvy plaintiff’s attorneys know that the FLSA is the best and most lucrative basis for a collections claim. Additionally, the FLSA allows employees to personally sue business owners and managers as well if they come within the definition of “employer” under the statute. These lawsuits are often tough to defend (because liability is clear) and costly (because the statute provides for attorneys’ fees and liquidated damages). However, if the employee bringing the lawsuit is clearly exempt – based on their salary and their duties – the foregoing line of cases should knock the wind out of plaintiff’s counsel’s proverbial sails. No attorney can continue to litigate a claim in federal court unless the facts alleged are supported by the evidence and are warranted under existing law or a non-frivolous argument to modify the law.
As always, when faced with these issues or served with an FLSA lawsuit – or even a demand letter – the best practice is to always consult legal counsel. Whatever you do, do not ignore the threat of an FLSA lawsuit or actual claim.