Category Archives: labor and employment law

Labor and Employment Law Annual Update

Department of Labor

Partner Ellen Leibovitch, Florida Board Certified in Labor and Employment Law, will be speaking at the 17th Labor and Employment Law Annual Update and Certification Review. The annual course, presented by the The Florida Bar Continuing Legal Education Committee and the Labor and Employment Law Section, is an advanced level course covering a wide array of labor an employment topic.  Ellen will be speaking on the Fair Labor Standards Act (FLSA) on January 26, 2017.  Given the recent law changes and case law surrounding the changes, this will be an informative panel about the FLSA.  Details about the event are below.

January 26 – 27, 2017
Gaylord Palms Resort & Convention Center
6000 W. Osceola Parkway
Kissimmee, FL 34746
(407) 586-0000

For those interested in attending, you can register for the event at the Florida Bar website.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Federal Stop to New Overtime Rules

Do Not Disturb

Six months ago, Partner and Florida Bar Board Certified Labor and Employment Attorney Ellen Leibovitch wrote to tell you about new overtime regulations that were to go into effect on December 1 (see below). However, on November 22, 2016, a federal judge in Texas issued a nationwide preliminary injunction which effectively put a stop to these rules – for now.

The injunction will preserve the status quo until the court decides the rule’s validity, a decision which will come weeks or months down the road and will likely be appealed in any event.

For employers, this ruling means that the new rules will not go into effect on December 1 and that the old regulations will continue to apply until further notice. Additionally, measures the employers planned in contemplation of the new rules going into effect on December 1 can be put on hold for the time being. Employers can decide if measures already taken in anticipation of the sweeping rule changes – such as raising the salary of exempt employees to meet the expected $47,476/year (or $913/week) threshold – should remain in place, although reversal of these changes may be met with employee backlash.

A note of caution: employers should not assume that the overtime rules will never go into effect. This situation is eerily similar to the rule changes made in 2015 regarding the companionship exemption under the Fair Labor Standards Act. In that situation, the Department of Labor announced changes which would render the exemption inapplicable to third party (home care) providers, then the federal court issued an injunction to prevent the changes from going into effect, then an appeals court struck down the injunction; and the changes eventually went into effect a year after the original date. Given the current political climate, your guess is as good as mine as to whether this same scenario will occur with respect to the overtime rules. As always, I will continue to keep you apprised of any developments.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

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New Overtime Regulations Impacting You

 

 

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Board Certified Labor and Employment Partner Ellen Leibovitch will be speaking on October 20, 2016 about important changes to the overtime regulations under the Fair Labor Standards Act (FLSA) that will go into effect on December 1, 2016.  Ellen, who recently appeared in the Boca Raton Observer, will discuss what employers need to know about the changes to the FLSA to protect their companies.

Please join the South Palm Beach County Bar Association’s Labor & Employment Committee on October 20, 2016 for breakfast and a panel discussion on the scope of the new rules and best practices for making sure your business is fully compliant as of day one.  To register online, click here.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

 

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Ellen Leibovitch Named Outstanding Board Member of the Year

Ellen SPBCBA Board Award

During the South Palm Beach County Bar Association’s 55th annual installation gala on June 4, 2106 at St. Andrews Country Club in Boca Raton, partner Ellen M. Leibovitch was named “Outstanding Board Member of the Year.”  Ellen has served on the association’s board of directors for the past five years.  During the 2015-2016 term, Ellen co-chaired the association’s annual holiday party as well as the search committee to replace the association’s executive director.  Ellen has also served as the editor-in-chief for the association’s newsletter – The Advocate – for the past three years.  Ellen is also the board liaison to the association’s Labor & Employment committee which sponsored a CLE seminar in the Fall of 2015 on the new  Computer Abuse and Data Recovery Act.  Congratulations, Ellen!

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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Significant Changes to Overtime Regulations!

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Just this week, the Department of Labor (DOL) released its much-anticipated final changes to the overtime regulations under the Fair Labor Standards Act (FLSA). The new guidelines will go into effect on December 1, 2016, so now is the time for covered employers to start preparing.

What has changed?

Most significantly, the new rules change the salary requirements for exempt employees. Under the old rules, employees could be classified as exempt from overtime if they were earning a salary of $455/week (or $23,660/year) and if they performed exempt professional, managerial, executive or administrative duties. Under the new rules, however, employees must earn $913/week (or $47,476/year) – MORE THAN DOUBLE THE PRIOR SALARY LEVEL – to meet the salary component of the exemption. The salary threshold will automatically be updated every three years, so this is a moving target. Note that the final rule did not include a change to the duties test.

Also, the new rule raises the salary threshold level for the highly compensated employee (HCE) exemption from $100,000 to $134,004. To be exempt, a HCE must customarily and regularly perform any one or more of the exempt duties or responsibilities of a professional, managerial, executive or administrative employee and have the primary duty of performing office or non-manual work. Like the standard salary level, the highly compensated employee salary level will increase every three years, beginning Jan. 1, 2020.

What does this mean?

For exempt employees earning at least $913/week, nothing will change. However, employees who are now classified as exempt but who are earning less than $913/week will lose their exempt status as of December 1, 2016. Becoming non-exempt means that these employees will be eligible for overtime pay when working over 40 hours in a work week, which also means that these employees will be required to record their hours worked. For exempt employees who never “punched a clock,” this may be demoralizing, although some may welcome the opportunity to earn overtime.

Note that employers will be able to count non-discretionary bonuses, incentive payments and commissions toward as much as 10% of the salary requirement. However, such payments must be made on at least a quarterly basis.

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What should you do?

Step 1: EVALUATION

  • Determine which employees will be impacted by these new rules, if anyone.
  • Assess the cost of reclassifying these employees as non-exempt or increasing their salaries in accordance with the new guidelines to keep these employees exempt.
  • For employees who will be reclassified as non-exempt, no additional costs will result:
    • if the newly non-exempt employees do not work overtime. Remember that even if you have a policy that requires all overtime hours be approved in advance, non-exempt employees who work over 40 hours a week must be paid at the time and one-half rate.
    • if the hourly rate paid to the newly non-exempt employees is reduced to take into account the need for these employees to work some overtime hours each week.
  • Remember to train all newly-exempt employees on your time-keeping procedures.

Employers impacted by these new rules may need to consider covering increased overtime costs by reducing benefits, but this will certainly result in a drop in employee morale.

Step 2: COMMUNICATION

  • Notify impacted employees that changes are the result of new rules imposed by the DOL rather than a company decision
  • Assure reclassified employees that the changes do reflect the employer’s opinion of their work or the employees’ value to the company

As always, you should contact legal counsel for any specific questions you may have about the applicability of the FLSA to your business, these new rules and how to best implement same.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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Internal Investigations

20150713_173521Our corporate clients find the need to perform internal investigations.  The Firm’s attorneys pull their respective industry related experience to conduct such internal investigations and defend corporations and employees in complex investigatory and litigation matters.

In the current economic climate, corporate scrutiny is at an all-time high.  The public and private sectors find themselves subject to federal, state, and local agency investigation.  Corporate conduct, compliance and ethics have become an issue increasingly raised by private plaintiffs. As a result, our corporate clients see significant compliance related obstacles to navigate.

We have found that our corporate clients can be best protected from such scrutiny by understanding all the facts surrounding the allegations at hand. When the facts indicate a violation of policy, law, ethics, or other measure of scrutinization, the client must respond rapidly and measurably with remediation, employee discipline, and where necessary contacting appropriate governing agencies.

Corporate internal investigations are protected by the attorney-client privilege and can be beneficial for a number of reasons.  A well designed internal investigation can:

  • Identify key facts so that management and/or the board can make a fully informed decision as to how best to proceed;
  • Cease any offending behavior;
  • Prevent future misbehavior;
  • Document the corporation’s response as the facts are learned;
  • Protect management and boards of directors against a charge of being complicit in the misbehavior; and,
  • Establish and create a corporate culture of compliance and openness.

Planning is key to internal investigations.  The plan will address document and data collection and review, witness interviews, analysis of the facts and data, and regular reporting to the client on the investigation.  The attorneys of the Firm are well suited to developing the right plan for our clients’ needs.

For any questions about internal investigations and their legal implications, please call Peter below:

Peter E. Berlowe, Esq.

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: PEB@AssoulineBerlowe.com

http://www.AssoulineBerlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

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New Changes to the FLSA and Compensation toLive-In Domestic Care Workers

Department of Labor

In December 2014, Ellen Leibovitch held a seminar to discuss changes to the Fair Labor Standards Act (FLSA) relevant to third party agencies who employ companions and live-in domestic service employees.  The new regulations – which were set to go into effect on January 1, 2015 – made the long-standing exemptions to the FLSA’s minimum wage and overtime requirements for companions and live-in domestic employees inapplicable to third-party employers (like home health care agencies).

Just days after the seminar, a federal court struck down the new regulations.  Since then, the issue has been batted around the courts, but on August 21, 2015, a federal appellate court issued a unanimous opinion affirming the validity of the new regulations.  The appellate court’s opinion became effective on October 13, 2015.  The Department of Labor (DOL) will not begin enforcement of the new rules until November 12, 2015 but, more than likely, the DOL will not begin prosecuting offenders until January 1, 2016.

For more details, go to http://www.dol.gov/whd/homecare/litigation.htm#.VilP87RgRps.email

So what does this mean to you and your businesses?  For those who have been taking a wait-and-see approach or who had hoped that everything would remain unchanged, the time to act is now.  Businesses need to come to grip with the fact that live-in domestic care workers who reside in the private household where they are employed and home-health companions are going to be subject to the FLSA’s overtime and minimum wage requirements as well as the record-keeping requirements.  Among other things, this means these workers need to be paid a minimum wage (currently $8.05 in the State of Florida but likely to increase as of January 1, 2016), that employers need to maintain accurate records of the hours such employees work each day and each week and that overtime must be paid for all hours worked in excess of 40 each week.

Please note that these new rules apply only to employees, not independent contractors.

For additional information about these changes, please contact Ellen M. Leibovitch below:

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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