Category Archives: labor and employment law

Does Non-Payment of Wages to an Exempt Employee Give Rise to an FLSA Claim?

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.   

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

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eml@assoulineberlowe.com

www.assoulineberlowe.com

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Can Employers Require Employees to Get the COVID-19 Vaccine?

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Happy New Year! 

Moving on from 2020 does not mean we have moved on from the scourge that is COVID-19.  However, the COVID vaccine is finally here! Though distribution has been slow, employers are planning ahead and wondering if they can require employees to get a vaccine as a condition to returning to work.  The short answer is yes, but there are some important factors to take into consideration to avoid potential risks, such as compliance with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other state and federal employment laws.

According to newly published EEOC guidance, employers, in general, can require employees to be vaccinated against COVID-19 and have determined that administration of a vaccine is not a medical examination under the ADA. “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” However, employers should be careful with any pre-vaccination questions as those could be subject to ADA laws. Employers need to make sure that these questions are job-related and consistent with business necessity.

Of course, there are always exceptions to the general rule.  Employees who have medical concerns related to a disability or sincerely held religious beliefs that preclude them from being vaccinated may be exempted from the vaccination requirement. In these scenarios, a reasonable accommodation that does not pose an undue hardship to the employer’s business may be required, such as allowing the employee to work from home, requiring the employee wear protective equipment at all times, or providing a separate space for the employee to work.

Where an accommodation is not possible or cannot substantially reduce the risk of infection to others, the employer must be able to demonstrate that the unvaccinated employee poses a “direct threat” to the safety and health of other individuals at the workplace. The following factors should be evaluated in determining if a direct threat at the workplace exists:

  • the duration of the risk
  • the nature and severity of the potential harm
  • the likelihood that the potential harm will occur
  • the imminence of the potential harm 

If there are no reasonable accommodations available and the employer finds that the employee does pose a direct threat to others, the employee may be prohibited from physically entering the workplace, but this does not mean the employer can terminate the worker without liability. Employers will need to determine if any other rights apply under other federal, state or local laws.

Finally, employers are not shielded from liability if an employee suffers adverse effects from a mandated vaccine administered by the employer or a third party with whom the employer has contracted. Therefore, the best option for employers is to encourage employees to take the vaccine voluntarily rather than mandating it. Employers can choose to give incentives to those employees that decide to get the vaccine to promote voluntary compliance.

Always best to contact legal counsel if you have any further questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

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BANKRUPTCY LAW – Small Business Reorganization Act, New Interim Rules Released

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The United States Bankruptcy Court for the Southern District of Florida, through its Chief Judge, Laurel M. Isicoff, issued several updates tonight regarding the new Small Business Reorganization Act (SBRA), which goes into effect TOMORROW!

As stated by the Chief Judge: “The SBRA creates a new subchapter V of chapter 11 for the reorganization of small business debtors.  It does not repeal existing chapter 11 provisions regarding small business debtors, but instead creates an alternative procedure that small business debtors may elect to use.”

The Court further stated that: The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has promulgated Interim Rules and Form Amendments to the Federal Rules of Bankruptcy Procedure as a result of the passage of the Small Business Reorganization Act.

Among the numerous orders, is Administrative Order 2020-02 In re: Adoption of Interim SBRA Bankruptcy Rules.  This is an important set of rules that bankruptcy practitioners in the Southern District of Florida must follow.

Amended Official Forms 101, 201, 309E (renumbered 309E1), 309F (renumbered as 309F1), 314 (use Local Form LF-33), 315, and 425A, and new Official Forms 309E2, and 309F2 become effective February 19, 2020. For changes in the Bankruptcy Forms please visit: https://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments/pending-changes-bankruptcy-forms.

Additional SBRA Resource:

A Guide to the Small Business Reorganization Act of 2019” by U.S. Bankruptcy Judge Paul W. Bonapfel Northern District of Georgia.

Eric N. Assouline, Esq.

 

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HAPPY 17th ANNIVERSARY to ASSOULINE & BERLOWE!

MIAMI – Assouline & Berlowe, P.A., The Business Law Firm, is pleased to announce that today it is celebrating its 17th Anniversary.

Started on February 10, 2003, through humble beginnings, in a small subleased space in Coral Gables, Assouline & Berlowe has weathered the many business climate changes and challenges of the past two decades.

Assouline & Berlowe is proud of its contributions to its communities in the tri-county area, as part of its presence with offices in Miami, Ft. Lauderdale/Dania Beach, and Boca Raton.  Assouline & Berlowe regularly supports both its legal community and numerous charitable organizations alike.

Assouline & Berlowe is strategically positioned to continue its expansion as a strong player in South Florida’s international business environment.

To all those that we have worked with in the past and to those we hope to work with in the future, we say thank you.

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INTERNATIONAL ARBITRATION / BANKRUPTCY PANEL DISCUSSION – October 23, 2019 at the University of Miami

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ONLY 7 DAYS LEFT.

The International Arbitration Society at the University of Miami School of Law is presenting a panel discussion on the conflict between International Arbitration and Domestic Insolvency.

Date : October 23, 2019

Time: 6:30 p.m. – 9 p.m.

The discussion will be followed by a networking social.

Students, professionals and practitioners are invited to attend and participate.

Please RSVP here: https://lnkd.in/eAT24JM

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PARALEGAL SEMINAR – OCT. 19, 2019 – South Florida Paralegal Association

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Assouline & Berlowe Litigation Partner Peter E. Berlowe is one of the guest speakers at this year’s Annual Fall Seminar for the the South Florida Paralegal Association. 

On October 19, 2019 at the Florida International University – College of Law

Located at Rafael Diaz Balart Hall (RDB) Room 2008, 11200 SW 8th Street, Miami, FL 33199

Offering 6.5 Credits

Including 1  Ethics Credit and 0.5 Technology Credit

With Keynote Speaker

Mercedes M. Prieto, Esq., Clerk of the Third District Court of Appeal on Introduction to Legal Research and Legal Memoranda Writing

and guest speakers


 Peter E. Berlowe, Esq. of Assouline & Berlowe, P.A. on Analysis of an Injurious Falsehood Case and the Paralegal’s Role

 Marc Hurwitz of Crossroads Investigations on A Former CIA Officer’s Guide to Investigations for the Divorce Process

Bianca Moreiras of Bianca Moreiras & Associates on Time Management, Goal Setting and Taking Action

 Felice Solomon of Solomon Search Group on How Paralegals Can Deal With Seven Personality Types in the Workplace

and

 Valencia N. Poitier, Esq. of American Integrity Insurance of Florida, Inc. on HIPPA: Accountability, Ethics and Evidence – Avoiding the Pitfalls of Suppression and Lack of Foundation

The cost to attend the event is:

Students: $25 

Member & Affiliate Members: $55

Non-Members: $65

Continental breakfast & hot lunch will be provided Your Savory Fare

For more information regarding the event, please contact SFPA Vice-President Summer Marshall by email at smarshallfrp@gmail.com


For more information on how to sponsor this event, please contact

Sadena Blatt Miropol by email at sb0929@gmail.com

This seminar meets the requirements of the NALA Certifying Board for Paralegals for continuing legal education credit required to maintain the CP (Certified Paralegal) credential.

To recap:

The South Florida Paralegal Association is proud to present its 2019 Annual Fall Seminar on October 19, 2019 at the Florida International University – College of Law, located at Rafael Diaz Balart Hall (RDB), RDB 2008, 11200 SW 8th Street, Miami, FL 33199

Celebrating 40 Years of Commitment to the Legal Community

Offering 6.5 Credits (including .5 Ethics Credit and 1 Technology Credit)

With keynote speaker:
Mercedes M. Prieto, Esq., Clerk of the Third District Court of Appeal

And guest speakers:
Peter E. Berlowe, Esq. of Assouline & Berlowe, P.A.,
Marc Hurwitz of Crossroads Investigations,
Felice Solomon of Solomon Search Group,
Valencia N Poitier, Esq. of American Integrity Insurance of Florida, Inc., and
Bianca Moreiras of Bianca Moreiras & Associates

The cost to attend the event is:
Students: $25
Member & Affiliate Members: $55
Non-Members: $65

Continental breakfast & hot lunch will be provided Your Savory Fare

For more information regarding the event, please contact SFPA Vice-President Summer Marshall by email at smarshallfrp@gmail.com

For more information on how to sponsor this event, please contact Sadena Blatt Miropol by email at sb0929@gmail.com

This seminar meets the requirements of the NALA Certifying Board for Paralegals for continuing legal education credit required to maintain the CP (Certified Paralegal) credential.

All content © SFPA 2019.

South Florida Paralegal Association, Inc. is a non-profit organization. 123 S.E. 3rd Avenue, #367, Miami, Florida 33131.

http://sfpa.info/event-3565682

 

 

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LABOR LAW UPDATE – Exempt Employee Thresholds

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It is Finally Here!

Over the years, the U.S. Department of Labor (DOL) has attempted to change certain rules applicable to implementation of the Fair Labor Standards Act (FLSA) and increase the salary threshold for exempt employees from $455 per week (the level it has been at since 2004).

Many may recall that a rule to increase the salary thresholds for exemptions was first enjoined and subsequently invalidated by the U.S. District Court for the Eastern District of Texas in 2016.   A year later, the U.S. Court of Appeals for the Fifth Circuit has held the appeal in abeyance pending further DOL rulemaking regarding a revised salary threshold.  In other words, the DOL has consistently enforced the 2004 salary level for the last 15 years.

However, the DOL has now finally announced a final rule which is expected to make 1.3 million American workers eligible for overtime pay under the FLSA.  In a nutshell, this rule, which will go into effect on January 1, 2020, accomplishes three primary objectives:

First, the rule updates the earnings thresholds – from $455 to $684 per week – necessary to exempt certain white collar positions, i.e., executive, administrative and professional employees, from the FLSA’s minimum wage and overtime pay requirements.

Second, the new rule will allow employers to meet up to 10% of the new salary level from nondiscretionary bonuses and incentive payments (including commissions).

Third, the rule will increase the salary requirements for the “highly compensated employees (HCE)” exemption from $100,000 to $107,432 per year.

Again, please note that the final rule will be effective on January 1, 2020.

Additional information about the final rule is available at www.dol.gov/whd/overtime2019.  Please feel free to contact me if you have any questions.

Ellen M. Leibovitch, Head of Labor & Employment Practice – Boca Raton Office and can be reached by email at eml@assoulineberlowe.com or by Telephone: 561-361-6566.

 

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NEW BANKRUPTCY JUDGE – Scott M. Grossman has been Appointed as a Bankruptcy Judge for the Southern District of Florida

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MIAMI – Welcome to Scott M. Grossman, to the bench!  Scott M. Grossman is the first bankruptcy judge appointed to the United States Bankruptcy Court for the Southern District of Florida, Fort Lauderdale Division, since February 2006, when Judge John Olsen joined the Court.

Judge Grossman was appointed by the United States Court of Appeals for the Eleventh Circuit, which controls all the federal and bankruptcy courts in the State of Florida.  Judge Grossman was appointed as a Bankruptcy Judge for a fourteen-year term, effective today, October 2, 2019.  [Press Release to the announcement from the Chief Judge is available through this link: General Order 2019-03 re: Assignment of New Cases and Adversary Proceedings, and Reassignment of Pending Cases Upon Appointment of Bankruptcy Judge Scott M. Grossman.

Assouline & Berlowe SuperLawyers 2019

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Eric N. Assouline, Esq. – Commercial Litigation and Bankruptcy Litigation Partner

 

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EMPLOYERS: Department of Labor Issued its Final Rule on Overtime Pay under FLSA – EFFECTIVE JANUARY 1, 2020

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Board Certified Labor & Employment Partner Ellen Leibovitch and Litigation Partner Eric Assouline, of Assouline & Berlowe

Human Resource Departments should take note, the overtime rules have now been clarified by the Department of Labor.

Over the years, U.S. Department of Labor (DOL) has attempted to change certain rules applicable to implementation of the Fair Labor Standards Act (FLSA) and increase the salary threshold for exempt employees from $455 per week (the level it has been at since 2004).

Many may recall that a rule to increase the salary thresholds for exemptions was first enjoined and subsequently invalidated by the U.S. District Court for the Eastern District of Texas in 2016.

A year later, the U.S. Court of Appeals for the Fifth Circuit held the appeal in abeyance pending further DOL rulemaking regarding a revised salary threshold.  In other words, the DOL has consistently enforced the 2004 salary level for the last 15 years.

The DOL has now announced a final rule which is expected to make 1.3 million American workers eligible for overtime pay under the FLSA.

In a nutshell, the rule, which goes into effect on January 1, 2020, accomplishes three primary objectives:

First, the rule updates the earnings thresholds – from $455 to $684 per week – necessary to exempt certain white collar positions, i.e., executive, administrative and professional employees, from the FLSA’s minimum wage and overtime pay requirements.

Second, the new rule will allow employers to meet up to 10% of the new salary level from nondiscretionary bonuses and incentive payments (including commissions).

Third, the rule will increase the salary requirements for the “highly compensated employees (HCE)” exemption from $100,000 to $107,432 per year.

Again, please note that the final rule will be effective on January 1, 2020.

Additional information about the final rule is available at www.dol.gov/whd/overtime2019.  Please feel free to contact me if you have any questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

Main: 561-361-6566

Direct: 561-948-2479

Assouline & Berlowe SuperLawyers 2019

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THANK YOU – To All Legal Administrators!

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Thank you to all the administrative assistants at Assouline & Berlowe who help make the firm a success.  Ana Hesny has been working with the Assouline & Berlowe team for over 10 years and her hard work and dedication has been a strong part of keeping clients happy making sure that the “trains run on time”.

Every year, the Broward County Women Lawyers Association hold its Administrative Professionals Day Luncheon at the Riverside Hotel in Fort Lauderdale, Florida, and it is never missed.  At this annual event the administrative assistants of prominent lawyers and judges in the community are recognized and rewarded with gifts and celebration.

Thank you to the Broward County Women Lawyers Association for putting on this very special annual event.

Assouline & Berlowe SuperLawyers 2019

Eric N. Assouline, Esq., Managing Partner, Head of Litigation.

Miami Tower, 100 SE 2nd Street, Suite 3105, Miami, Florida 33133

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